671 S.E.2d 666
2. “The provisions of the police civil service act, W.Va. Code §§ 8-14-6-
24, which provide for the appointment, promotion, reduction, removal and reinstatement of
all municipal police officers and other employees of paid police departments of Class I and
Class II municipal corporations, are not exclusive. Therefore, a residency requirement
applicable to municipal police officers which is enacted by a municipal corporation pursuant
to W.Va. Code § 8-5-11 (1969) is valid. The police civil service act, rather, excludes the
enactment of only those measures which are inconsistent with the express provisions of the
act.” Syllabus Point 2, Morgan v. City of Wheeling, 205 W.Va. 34, 516 S.E.2d 48 (1999).
3. “A city ordinance, enacted pursuant to W.Va. Code § 8-5-11 (1969),
which requires all city employees, including police officers, to be residents of either the city
or county does not penalize the fundamental right to travel; does not burden the privileges
and immunities protected by the Privileges and Immunities Clause, U.S. Const. art IV, § 2,
cl. 1; and does not violate the right of equal protection under the Fourteenth Amendment of
the Constitution of the United States and Article III, Section 10 of the Constitution of West
Virginia if the residency requirement is reasonably related to a legitimate government
interest.” Syllabus Point 3, Morgan v. City of Wheeling, 205 W.Va. 34, 516 S.E.2d 48
(1999).
4. “Principles of due process . . . dictate that a police officer subject to civil
service protection must be afforded a predisciplinary proceeding prior to discharge,
suspension, or reduction in rank or pay . . . unless exigent circumstances preclude such a pre-
disciplinary hearing.” Syllabus, in part, City of Huntington v. Black, 187 W.Va. 675, 421
S.E.2d 58 (1992), modified on other grounds by Alden v. Harpers Ferry Police Civil Serv., 209 W.Va. 83, 543 S.E.2d 364 (2001).
5. “W.Va. Code § 8-14A-3(b) (1997) (Repl.Vol. 1998) requires that,
before a civil service officer may be disciplined through discharge, suspension, or reduction
in rank or pay, he/she must be afforded a predisciplinary hearing before a hearing board
unless there exist exigent circumstances that require the recommended disciplinary action to
precede such hearing.” Syllabus Point 4, in part, Alden v. Harpers Ferry Police Civil Serv., 209 W.Va. 83, 543 S.E.2d 364 (2001).
6. “The rules for construing statutes also apply to the interpretation of
municipal ordinances.” Syllabus Point 1, in part, Town of Burnsville v. Kwik-Pik, Inc., 185
W.Va. 696, 408 S.E.2d 646 (1991).
7. “When the constitutionality of a statute is questioned every reasonable
construction of the statute must be resorted to by a court in order to sustain constitutionality,
and any doubt must be resolved in favor of the constitutionality of the legislative enactment.”
Syllabus Point 3, Willis v. O'Brien, 151 W.Va. 628, 153 S.E.2d 178 (1967).
8. “In considering the constitutionality of an act of the legislature, the
negation of legislative power must appear beyond reasonable doubt.” Syllabus Point 1, in
part, State ex rel. Appalachian Power Co. v. Gainer, 149 W.Va. 740, 143 S.E.2d 351 (1965).
9. “Where there are two permissible constructions of an ordinance, one
rendering it valid and the other invalid, the former should be preferred.” Syllabus Point 1, Huntington v. Water Corp., 119 W.Va. 420, 194 S.E. 617 (1937).Per Curiam: (See footnote 1)
This declaratory judgment action is before the Court upon an appeal by the City
of Huntington from a final order of the Circuit Court of Cabell County entered on January
22, 2007. In that order, the circuit court ruled on behalf of Appellee Jason Eastham, a City
of Huntington firefighter, and Appellee Josh Coffey, a City of Huntington police officer,
declaring that the City of Huntington's residency requirement is void and unenforceable
because it violates the constitutional and statutory rights of the City's civil service
employees. For the reasons that follow, we find that the City of Huntington's residency
requirement is valid, and we reverse the ruling of the circuit court.
“[H]owever, any determinations of fact made by the circuit court in reaching its ultimate
resolution are reviewed pursuant to a clearly erroneous standard.” Cox, 195 W.Va. at 612,
466 S.E.2d at 463. We now proceed to review the circuit court's order according to these
standards.
Subject to the provisions of the constitution of this State, the provisions
of this article, and other applicable provisions of this chapter, any city may by
charter provision, and the governing body of any municipality, consistent with
the provisions of its charter, if any, may by ordinance, determine and prescribe
the . . . residency requirements . . . of municipal officers and employees[.]
In the fairly recent case of Morgan v. City of Wheeling, 205 W.Va. 34, 516 S.E.2d 48 (1999),
this Court upheld the validity of the City of Wheeling's residency requirement against several
constitutional challenges. In the syllabus points of City of Wheeling, we held as follows:
1. W.Va. Code § 8-5-11 (1969) provides express authorization to
municipal corporations, subject to the provisions of the Constitution of West
Virginia, the provisions of article 14, chapter 8 of the West Virginia Code, and
other applicable provisions of chapter 8, to, by ordinance, prescribe residency
requirements for municipal officers and employees including municipal police
officers.
2. The provisions of the police civil service act, W.Va. Code §§ 8-
14-6-24, which provide for the appointment, promotion, reduction, removal
and reinstatement of all municipal police officers and other employees of paid
police departments of Class I and Class II municipal corporations, are not
exclusive. Therefore, a residency requirement applicable to municipal police
officers which is enacted by a municipal corporation pursuant to W.Va. Code
§ 8-5-11 (1969) is valid. The police civil service act, rather, excludes the
enactment of only those measures which are inconsistent with the express
provisions of the act.
3. A city ordinance, enacted pursuant to W.Va. Code § 8-5-11
(1969), which requires all city employees, including police officers, to be
residents of either the city or county does not penalize the fundamental right
to travel; does not burden the privileges and immunities protected by the
Privileges and Immunities Clause, U.S. Const. art. IV, § 2, cl. 1; and does not
violate the right of equal protection under the Fourteenth Amendment of the
Constitution of the United States and Article III, Section 10 of the Constitution
of West Virginia if the residency requirement is reasonably related to a
legitimate government interest.
Therefore, our law clearly recognizes the general validity of residency requirements.
Significantly, as set forth above, residency requirements are subject to the State
constitution and civil service protections and are invalid to the extent that they are
inconsistent with these laws. Civil service officers in our State enjoy certain constitutional
and statutory protections. This Court has held that “[p]rinciples of due process . . . dictate
that a police officer subject to civil service protection must be afforded a pre-disciplinary
proceeding prior to discharge, suspension, or reduction in rank or pay . . . unless exigent
circumstances preclude such a pre-disciplinary hearing.” Syllabus, in part, City of
Huntington v. Black, 187 W.Va. 675, 421 S.E.2d 58 (1992), modified on other grounds by
Alden v. Harpers Ferry Police Civil Serv., 209 W.Va. 83, 543 S.E.2d 364 (2001). (See footnote 6) We have
also held:
W.Va. Code § 8-14A-3(b) (1997) (Repl.Vol. 1998) (See footnote 7) requires that,
before a civil service officer may be disciplined through discharge, suspension,
or reduction in rank or pay, he/she must be afforded a predisciplinary hearing
before a hearing board unless there exist exigent circumstances that require the
recommended disciplinary action to precede such hearing. (Footnote added.).
Syllabus Point 4, in part, Alden, supra. Accordingly, absent exigent circumstances, a civil
service officer may not be discharged absent a pre-disciplinary hearing.
The appellees do not contest the general validity of residency requirements.
Rather, the appellees argue that by specifically requiring the “immediate discharge” of those
civil service officers who fail to prove residency by a certain date, the City of Huntington's
residency requirement conflicts with the constitution and civil service statutes by providing
for discharge without a pre-disciplinary hearing. The City of Huntington responds that its
residency requirement should be read as preserving the right to a pre-disciplinary hearing.
In other words, opines the City, its residency requirement should be construed to mandate
a pre-disciplinary hearing prior to the dismissal of any civil service employee in accord with
the constitutional and statutory laws of this State. We agree with the City.
This Court looks to several principles of construction when determining the
constitutionality of a legislative statute or municipal ordinance. First, “[t]he rules for
construing statutes also apply to the interpretation of municipal ordinances.” Syllabus Point
1, in part, Town of Burnsville v. Kwik-Pik, Inc., 185 W.Va. 696, 408 S.E.2d 646 (1991). This
Court also has held that “[w]hen the constitutionality of a statute is questioned every
reasonable construction of the statute must be resorted to by a court in order to sustain
constitutionality, and any doubt must be resolved in favor of the constitutionality of the
legislative enactment.” Syllabus Point 3, Willis v. O'Brien, 151 W.Va. 628, 153 S.E.2d 178
(1967). In addition, “[i]n considering the constitutionality of an act of the legislature, the
negation of legislative power must appear beyond reasonable doubt.” Syllabus Point 1, in
part, State ex rel. Appalachian Power Co. v. Gainer, 149 W.Va. 740, 143 S.E.2d 351 (1965).
Finally, “[w]here there are two permissible constructions of an ordinance, one rendering it
valid and the other invalid, the former should be preferred.” Syllabus Point 1, Huntington
v. Water Corp., 119 W.Va. 420, 194 S.E.2d 617 (1937).
Applying these rules to the residency ordinance at issue, we believe that it is
reasonable to construe the ordinance as preserving the pre-disciplinary hearing guaranteed
by our laws. Although the ordinance provides for “immediate discharge,” it contains no
language that expressly or unambiguously precludes a pre-disciplinary hearing for those
employees who fail to prove residency. Absent such language, this Court will not presume
that Huntington's City Council intended to abrogate constitutional and statutory law when
it enacted the residency requirement. In other words, we find nothing in the provisions of
the ordinance that negates the City's power to enact the ordinance beyond a reasonable
doubt. Thus, we adopt a construction that upholds the validity of the ordinance. We
therefore find that the City of Huntington's residency requirement provides for the discharge
of a civil service employee for violation of the requirement only after the employee receives
a pre-disciplinary hearing fully in accord with constitutional and statutory protections.
Reversed and remanded.