Residency requirement questioned
To the Editor:
My advice on the Bedford town manager residency requirement is that it is probably unconstitutional and illegal. A corporate charter should not contain a directive to the corporation’s governing body to commit what is probably an illegal act – that should go without saying.
Freedom of residency receives much greater protection in New Hampshire than under the federal Constitution or the constitutions of most other states where literally a restriction is permitted if the "ordinance is not irrational." McCarthy v. Philadelphia Civil Service Commission, 424 U.S. 645 (1976). The N.H. Municipal Association published this advisory in March 2012:
The New Hampshire Supreme Court has held that residency requirements for municipal employees infringe on the fundamental constitutional right to travel. Such a restriction is lawful only if the municipality can show that the "restriction is necessary to achieve a compelling state interest" and is narrowly drawn to achieve its purpose. Seabrook Police Assoc. v. Seabrook, 138 N.H. 177, 179 (1993). In Donnelly v. Manchester, 111 N.H. 50 (1971), and Angwin v. Manchester, 118 N.H. 336 (1978), residency requirements for school employees were held invalid.
In the Seabrook case, the court upheld a residency restriction for police officers. The town demonstrated that Seabrook needs especially prompt emergency response because of its nuclear plant, greyhound track and limited beach access. The court was particularly impressed with the unique role of police, compared to other town employees who have roles in emergency management. "[T]he totality of the police officers’ job differentiates them from these others who might on rare occasion need to respond to a major emergency…. [P]olice officers alone have the necessary police power to protect persons and property during an emergency situation." 138 N.H. at 182. Under the "compelling state interest" standard of the Seabrook case, the town would have the burden to justify the residency requirement in terms of the person’s unique and crucial role during emergency responses and why this role requires their continuous presence in the community in anticipation of an emergency."
Bedford does not have compelling town manager residency need comparable to Seabrook police officers. Under the Bedford Emergency Operations Plan that all town officials and employees follow, the town manager provides only support functions, and never has a primary role. (EOP, Figure 2). Bedford has nothing like a nuclear power plant, no ocean, no need to evacuate the town for the equivalent of a nuclear accident or ocean storm. Consider, as a court would, that Bedford has not had a resident town manager for 4½ years (except possibly a few 24/7 instances in 2013) – a time of enviable commercial growth, infrastructure improvements and revenue surpluses. How would Bedford do before the 3-2 Supreme Court that narrowly allowed Seabrook’s residency requirement for police officers? You know the answer.
All of the references above are easily found on the Internet.
While the preference for town manager residency is understandable, the charter should not have a hiring directive that is probably unlawful. Please vote "Yes" on Article 3.
Bedford Town Councilor