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Don’t Tell Me Where to Live! – New Jersey Public Employee Residency Requirements Deemed Unconstitutional

5/19/21

By: Stephanie Greenfield

A recent decision from the Superior Court of New Jersey held that the New Jersey First Act (“Act”) and its residency requirements are unconstitutional in their present form.

The Act, signed by Gov. Chris Christie in 2011, says nearly all public officers and employees must live within the state borders unless they are granted an exception for financial, health or other reasons. At the time, Christie and other supporters of the law said workers paid by New Jersey taxpayers should also be living in the state and paying state taxes. See N.J.S.A. 52:14-7. The limited exceptions apply to certain temporary or per-semester higher education teaching staff members and to those persons who are employed full-time by the State but spend a majority of their time working outside the State. For all other public employees required to maintain their principal place of residence in New Jersey, the Act contains a waiver provision, which provides in pertinent part that “[a]ny person may request an exemption from the provisions of this subsection on the basis of critical need or hardship from a five-member committee hereby established to consider applications for such exemptions.” N.J.S.A. 52:14-7.

In Somerville Bd. of Educ. v. Drake, Docket No. SOM-L-465-19 (decided Feb. 11, 2021), the Defendant Rebecca Drake (“Drake”), a tenured teacher in the Somerville School District (“District”), was terminated from employment because in or about August 2017, she moved from her principal residence in New Jersey to Pennsylvania.  Prior to moving to Pennsylvania, Drake sought a waiver, but her request was denied. She subsequently submitted a second waiver request (after she had already been living in Pennsylvania), which was ultimately granted. In or about March 2018, the District advised Drake that by her having moved to Pennsylvania prior to obtaining a waiver, she was in violation of the Act.  Drake was given the option to resign or the District would pursue legal action to separate her from employment.  Drake refused to submit a letter of resignation and, thus, in or about April 2018, the District filed suit against Drake to separate her from employment.

After responsive pleadings had been filed, Drake filed a motion to dismiss (or, in the alternative, a motion for summary judgment) and the District filed a cross-motion for same.

Many cities and local governments around the country have residency laws requiring police officers, firefighters and other public employees to live within their borders. However, Drake’s attorneys argued in court that New Jersey may be the only state in the nation to require all public employees, including teachers, to live in state.

Under the Act, the only exceptions are for workers who can prove a financial hardship, cite a health reason or provide a letter from their employer that they are “critical” in their workplace. In addition, any employee who was already living out of state when the law was signed in 2011 is grandfathered in and doesn’t need to move, according to the law.

On February 11, 2021, the Court issued an opinion granting Drake’s motion for summary judgment and dismissing the Complaint.  The Court held that The Act’s waiver provision does violate due process principles in that the standards applicable to waiver requests [are] unconstitutionally vague. The statutory standard of ‘critical need or hardship’ provides only a vague standard that is likely subject to a different interpretation by virtually every person who considers it.” 

The takeaway from this case is that public employers must be mindful of the Court’s holding in Drake prior to separating a public employee from employment because the employee violated the Act’s residency requirements.  The decision will also likely force lawmakers in New Jersey to revisit a decade-old law.

For more information, please contact Stephanie Greenfield at [email protected].