WEST VIRGINIA RECORD

CHARLESTON – The West Virginia Supreme Court of Appeals will give Huntington Mayor David Felinton a chance to prove that an ordinance requiring city employees to live in the city doesn't violate their rights.

After a hearing Jan. 8, three of five Justices agreed that the Court needed to review an order of Cabell Circuit Judge John Cummings, striking down the ordinance.

Cummings ruled last year that a provision authorizing "immediate discharge" of nonresidents violated the West Virginia Constitution and state civil service code.

For Huntington, attorney Scott McClure has argued that immediate discharge doesn't really mean immediate discharge.

According to McClure, the city would not fire an employee until the employee has exercised his or her rights.

"Mp municipal ordinance can operate to deny municipal employees enumerated rights guaranteed by State Constitution and civil service statutes," he wrote in a brief to the Court.

At a hearing on the city's motion for appeal, he told the Justices that the Court upheld a residency requirement in Wheeling.

Wheeling's ordinance, however, does not prescribe immediate discharge. It states that living outside the city constitutes "cause for removal."

McClure called this "a slight variation."

Justices Joseph Albright, Robin Davis and Larry Starcher granted Huntington's appeal. Chief Justice Spike Maynard and Justice Brent Benjamin would have refused it.

The ordinance applies to employees hired after July 1, 2002.

Huntington firefighter Jason Eastham challenged the ordinance in 2006. Bert Ketchum and Paul Farrell of Huntington will represent Eastham before the Court.