One of the primary arguments put forth by the Residency Compliance Commission is that they are the steadfast defenders of the Lynn charter and the residency ordinance. The 1999 residency ordinance created the Residency Commission specifically to enforce the provisions of residency for all city employees. Ultimately their argument as defenders of residency fails when the record of this commission is examined; instead of being defenders, they are the exception makers. On numerous occasions, this commission has exempted persons from having to live in the city.
If you click on this link, you will read the proposals from lawyers for the LPA to the outside counsel for the city, under which persons are proposed to be exempt from the residency requirement of the Association's collective bargaining agreement. Beginning on page 3 of the document is Solicitor Barry's response on the part of the commission, where he in part writes that the “City of Lynn…withdraw its appeal of” the original 2000 Superior Court ruling, effectively agreeing to the legal reasoning and holding of the decision that residency is subject to bargaining. In this letter, Mr. Barry also noted the commission did not object to the Katz decision under which police officers were exempted from the residency requirement. In 2001, Katz had ruled that police officers not residing in the city prior to May 14, 1999 would be exempt from the residency requirements. This 1999 date is clearly outside of the mandates of the city charter which specifies, “that all police officers appointed after January 7, 1980 will be governed”…by residency requirements.
The exemption of employees should have been restricted to only those city employees who were part of the LPA at the time of the Katz arbitration and to only those who were specifically exempted by that decision under our contract. In the years after the Katz decision the residency exceptions relative to May 14, 1999 were extended to other city employees who were not part of the LPA or its bargaining unit.
While the residency compliance commission is an investigative body it does not have the right to create policy; however this is precisely what has been done, amending by virtue of their actions, what they say we cannot through bargaining. They have amended by virtue of their own hand what they say is sacred and reflective of the electorate. There were never any votes of the electorate or any input from the city council, whose position on the actions of the Solicitor’s office and the Residency Compliance Commission is unclear.
It is not without a sense of irony that exceptions have occurred in light of constitutional concerns raised by Solicitor Michael Barry in 1994. In the linked document, the Solicitor clearly agrees with the Association's ongoing concern and main demand, to ensure equality in the application of such a fundamental restriction on personal liberty as a residency requirement.
The Association will be expanding on and exploring the actions of the Residency Compliance Commission as well as any legal opinions underpinning those actions. From a recent Lynn Item story,
City Solicitor Michael Barry said the police association’s attempt to bargain residency and get it out of collective bargaining “shows no respect for the city. Our argument is that 85,000 people voted for it,” Barry said. “It’s in the City Charter and the charter overrides any collective bargaining agreement.”
While we dispute his notion of respect (we have followed all legal avenues to address our fundamental concerns), any exceptions would undermine what the Solicitor has represented regarding the city charter overiding bargaining. Additionally, the charter does specify what can amend its contents without electorate input:
Section 81
Charter Changes
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In General this charter may be replaced, revised or amended in accordance with any procedure made available under the state constitution, or by statutes enacted in accordance with the state constitution.
Our statute directs a 15-mile rule for police, which can be amended only through bargaining. As is noted elsewhere on this issue, teachers have a state statute that similarly exempts them from residency requirements. Whearas their exception has never been challenged, ours has been wholely diesregarded. Our agreement with the mayor keeps the residency rule alive in the city, but under clear and fair terms that reflect the public and Association's interest. The insinuation of the commission will work against the compromises reached and may spur more rounds of endless litigation over an issue that has been settled by the Mayor. Mr. Barry's insistence that the charter cannot be amended by bargaining is clearly controverted by the language of the charter and the record.
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