WEST VIRGINIA RECORD

CHARLESTON – Anyone the city of Huntington has hired since July 1, 2002, must live in Huntington, the state Supreme Court of Appeals has decided.

In a Sept. 30 ruling, all five justices upheld a city ordinance authorizing immediate discharge of employees who fail to prove they live in Huntington.

Immediate doesn't really mean immediate, the justices declared.

"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," they wrote in an unsigned opinion.

"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," they wrote.

They reversed Cabell Circuit Judge John Cummings, who voided the ordinance last year after finding that it violated the due process rights of city employees.

Mayor David Felinton forced the issue in 2006 by notifying all civil service employees that he would fire them if they didn't show proof of residence.

Two days before his deadline, firefighter Jason Eastham and policeman Josh Coffey separately sued the city and the mayor.

Eastham moved for summary judgment, arguing that the requirement conflicted with statutory and constitutional protections of civil service employees.

The city answered that in 1999 the Supreme Court of Appeals rejected constitutional challenges to a similar ordinance in Wheeling.

Cummings consolidated the Eastham and Coffey suits, held a hearing, and decided that the Wheeling and Huntington ordinances weren't similar enough.

He held that immediate termination would violate due process.

On appeal, the city argued that it never intended to fire employees without following civil service procedures.

The argument succeeded. "We agree with the City," the justices declared.

They relied on a 71-year-old decision, which by coincidence came from Huntington.

In that decision, Huntington v. Water Corp., the Court held that, "Where there are two permissible constructions of an ordinance, one rendering it valid and the other invalid, the former should be preferred."

Applying that principle to the current case, the justices adopted a construction that upheld the validity of the ordinance.

They emphasized that it provides for discharge "only after the employee receives a pre-disciplinary hearing fully in accord with constitutional and statutory protections."

Scott McClure of Huntington represented the city.

Bert Ketchum and Paul Farrell of Greene, Ketchum, Bailey, Walker, Farrell and Tweel in Huntington represented Eastham.

Greg Howard Jr. of Barboursville represented Coffey.