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Friday, January 23, 2015

Sympathetic Facts and Real Efforts Allow Employee to Establish Residency Compliance

Absent language in state law or a union or employment contract, a governmental body can require an employee or an appointed officer to live either within the government body’s jurisdiction or some maximum distance from its boundaries.  Establishing residency, however, is a matter of intent and courts will listen to sympathetic facts about employees who made a conscientious effort to comply with residency requirement.  That was the issue in a recent Illinois appellate case, where the court overturned lower decisions and returned the employee back to his former position.  Thomas v. CTA (Dec. 2014).

In 2008, Thomas was hired by the CTA as a resource planner.  At the time of his employment, he and his family owned and resided in a home in Arlington Heights.  Under the CTA rules, a new employee was required to move into the CTA service area within 6 months of employment. Arlington Heights is outside of the CTA service area.  Thomas tried to sell his house but was unable to do so.  He applied for and received a one-year extension to this requirement.  At the end of the year, he moved into an apartment in Chicago in a building owned by one of his relatives.  He changed his mailing addresses to the Chicago location, and he slept at this location most evenings.  He attempted to buy a house in Glenview, which is within the CTA service area, but the deal fell through.  

His wife and two children continued to live in Arlington Heights.  His wife suffered from a physical disability and the home in Arlington Heights was handicap equipped.  Thomas testified that the family continued to look for a more permanent residence for the entire family in the service area, but that they could not afford to make that move until they were able to sell their house.  Each day, he would leave the Chicago apartment for Arlington Heights, where he helped his children go to school and his wife to work.  He would then return to his job in Chicago.  He assisted the family at the end of the day in the same way and then returned to Chicago.  The evidence showed that this really was Thomas’ living situation. Thomas testified that the CTA seemed to be asking him to get divorced in order to establish a separate domicile form his wife.  Even though it was very difficult to do so, he slept in his Chicago residence from Monday through Thursday.

In its analysis, the appellate court concluded that in order to establish residency, a person must demonstrate physical presence at a particular location and intent to remain at that place as a permanent home.  The court concluded that Thomas did, in fact, spend every night between Monday and Thursday at the Chicago home and had established an adequate physical presence.  The court concluded that Thomas intended to abandon the Arlington Heights home, but that circumstances would not allow his family to do so.  There was no evidence to show that Thomas’ residence in Chicago was a sham and all of the evidence shows that the family made a longstanding effort to comply with the rules under very difficult circumstances.  The relative who owned the Chicago residence allowed Thomas to stay there rent free.  Thomas paid the utilities.  Again, the court, reviewing a sympathetic set of facts, said that Thomas “should not be penalized for a kindness extended to him by a family member.”  The court reviewed a number of cases, all of which were decided based upon the particular facts and whether there was a pattern to demonstrate that the employee’s argument for residence was merely a subterfuge or a scam.  

The Thomas case teaches us that government bodies should be sympathetic with efforts by their employees to comply with a residence requirement and to consider granting extensions for demonstrably hardship circumstances.  The alternative is much litigation and perhaps unnecessary costs.  The court also dealt with the argument that not only the employee, but his or her entire family must move into the area of required residency.  Absent a specific provision in the employment policy of the governmental body making that requirement, the courts will view residency requirements to generally only cover the employee.  The court concluded that “any suggestion that Thomas needed to formally separate from his family and abdicate his family responsibilities in order to perfect an abandonment of his suburban residency would be contrary to public policy.”  

Post Authored by Stewart Diamond, Ancel Glink


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