Officer’s Use Of ‘Free Time’ Can Be Considered In Judging Compliance With Residency Rule

The Milwaukee, Wisconsin City Charter requires all City employees to live within the city limits. Some time prior to July 1, 2005, Milwaukee police officer Mark Vasquez and his wife made a “family decision” to move their daughters to Mukwonago, located 30 miles from Milwaukee. They sold their home in Milwaukee, took out a substantial loan, bought an empty lot, and designed a five-bedroom, three and one-half bathroom home in Mukwonago. On July 15, 2005, Vasquez’s wife and daughters moved into the new home in Mukwonago.

On July 1, 2005, Vasquez began renting a two-bedroom apartment in Milwaukee. He kept his car insured at the Milwaukee apartment, used the Milwaukee address for his voter’s registration and fishing license, and received his mail there. All of his personal belongings were kept at the Milwaukee apartment.

During his normal workweeks, Vasquez slept at the Milwaukee apartment four of five nights, and went to work the next morning from that location. He left work each day and either stopped briefly at the Milwaukee apartment or drove directly to Mukwonago where he spent several hours with his wife and children. He then drove back to Milwaukee to sleep and repeat the routine once again. On his final workday of the week, Vasquez would normally leave the Milwaukee apartment that morning to go to work and not return to the Milwaukee apartment until the night after his next workday, an absence of more than three-and-a-half days.

The City fired Vasquez for not complying with its residency requirement. Before the Wisconsin Court of Appeals, Vasquez argued that the City had not provided him with advance notice that it intended to consider his use of his free time in assessing compliance with its residency rule.

The Court rejected Vasquez’s argument, and upheld his termination. The Court pointed to the City’s “Dual Residency Policy Statement,” which sets forth a variety of factors for consideration when an employee has two residences. The Court noted that “while the residency rules do not expressly use the words ‘free time,’” one of the factors set forth in the Dual Residency Policy Statement expressly states that the Board of Police and Fire Commissioners “shall consider ‘at which location does the employee spend his or her time?’ During the hearing, Vasquez acknowledged being familiar with all of the factors set forth in the Dual Residency Policy Statement. That testimony belies Vasquez’s claim that he was not informed that the Board would consider where he spent his free time when determining his bona fide residence.”

The Court also rejected Vasquez’s argument that where he spent his free time was “key” to the Board’s decision. Instead, the Court found “the location at which an employee spends his time was only one of eight different factors the Board was to consider when determining Vasquez’s bona fide residence under the Dual Residency Policy Statement. The Board found the following facts to support its finding that Vasquez’s bona fide residence was in Mukwonago: (1) his wife and children reside and go to school in Mukwonago; (2) the Mukwonago home was more suitable in terms of aesthetics, habitability, and comparative comfort; (3) the Mukwonago home was more convenient and accessible to almost all important aspects of his life outside of his job; (4) the Mukwonago home was the central focus of family activities; (5) the Mukwonago home was owned by Vasquez and his wife while the Milwaukee home was rented; and (6) Vasquez testified that when he retires he will move to the Mukwonago home and that is the home he intends to make a permanent domicile.”

Vasquez v. Milwaukee City Bd. of Fire and Police Com’rs, 2010 WL 2364433 (Wis. App. 2010).

This article appears in the August 2010 issue