dissenting.
I respectfully dissent. Ordinance § 27.03 does not require city residency as a condition of employment. Rather, it gives new employees a choice to receive an additional 10 points on their civil service examination if they agree to become city residents within the six months after coming off their probationary period. The choice is theirs. It is neither mandated nor are they penalized for not becoming city residents. They simply then take the test and it gets scored like everyone else.
As the majority correctly notes, prior to 1979, the City had a residency requirement that affected AFSCME members. In 1979, the City, by resolution, lifted the residency requirement. The resolution required that classified employees were required only to be residents of the State of Minnesota. Every CBA between the parties since 1980-81 has incorporated by reference the 1979 residency language. This reference language is as follows:
The resolution pertaining to residence approved July 26, 1979, under Council File No. 27378 shall apply to all employees covered by this agreement.
In 1994, the Minnesota Legislature enacted 1994 Minn. Laws, ch. 570. This section allowed the City to enact, by ordinance, a residency requirement for all employees and provided:
Notwithstanding Minnesota Statutes, section 415.16 or any other statute or home rule charter provision, the city of St. Paul may by ordinance require that a person be a resident of the city as a condition of employment by the city. The residency requirement may be applied by the city only to persons hired by the city after the effective date of the ordinance.
1994 Minn. Laws ch. 570 § 1.
1994 Minn. Laws ch. 570 is enabling legislation. It allows the City of St. Paul, by ordinance, to establish a residency requirement for individuals employed by the city. Pursuant to this enabling legislation, the City enacted ordinance § 27.03, which provides that applicants for original entry to a position in the classified service of the City of St. Paul may obtain an additional 10 points on his or her civil service test score if the applicant becomes a resident of the City of St. Paul within six months after of the end of his or her probationary period.
As the district court correctly noted, ordinance § 27.03 does not impose a per se residency requirement for new employees of the City of St. Paul. Respondent concedes that the city does hire and employ individuals who do not live in the City of St.' Paul. The ordinance simply offers the benefit of 10 additional test points for those applicants who agree to become residents of the City of St. Paul.2 An individual may still obtain employment in a classified position with the city even if he or she does not reside within the city limits. The only difference is that the individual would not receive the additional 10 bonus points.
I suggest that Minn.Stat. § 179A.16, subd. 5, is dispositive of the issue. This section details the jurisdiction of the arbitrator under PELRA, and provides, in part, that:
A decision which violates, is in conflict with, or causes a penalty to be incurred under: (1) the laws of Minnesota; or (2) rules promulgated under law, or municipal charters, ordinances, or resolutions, provided that the rules, charters, ordinances, and resolutions are consistent with this chapter, has no force or effect and shall be returned to the arbitrator * * * to make it consistent with the laws, rules, charters, ordinances, or resolutions.
Minn.Stat. § 179A.16, subd. 5 (emphasis added).
Here, enforcement of the arbitration award would call for the commission of an illegal act by the city. If allowed to stand, the arbitration award would require the City to employ, and continue to employ, individuals who opted for the additional 10 points on their civil service test score but who do not *529become residents of the City of St. Paul within six months after coming off their probationary period. This is in violation of ordinance § 27.03 and therefore is prohibited by Minn.Stat. § 179A.16, subd. 5.
I note that Article 6, § 6.5 and Article 30, § 30.2 of the parties’ CBA explicitly states that the CBA is subject to the laws of the State of Minnesota and the City of St. Paul and that the arbitrator shall not make a decision contrary to law. This prohibits the arbitrator from rendering a decision in violation of a city ordinance.
The ordinance and Article 8 of the CBA are not inherently inconsistent nor mutually exclusive. An applicant for employment with the city, whether he or she opts for the additional 10 bonus points, must still be a resident of the State of Minnesota. The city residency requirement contained in the ordinance applies only when the applicant chooses to receive the additional 10 bonus points.
I would affirm the district court’s decision to vacate the arbitrator’s award. The arbitrator exceeded his authority under the parties’ CBA and state statutes. Further, nothing was forced on appellants’ members. The members, not the city, controlled the option of wanting the extra ten points to enhance their chances of employment in a highly competitive market. Good judgment tells us that it can hardly be argued that a city employee who voluntarily solicits extra points on a civil service exam should not be asked to do what they agreed to do, namely comply with the modest residency requirement. The employees at all times are protected by the CBA to the extent that they can live anywhere in the State of Minnesota. Here, appellants are, in effect, interfering with the prospective employees’ freedom of choice. The prospective employee who wishes to gain voluntarily the additional ten points on the civil service exam by agreeing to a residency requirement wall be prevented from doing so by their own union, which is supposed to look out for their best interests. It is axiomatic that if the city cannot ask the new employees to live up to the residency requirement that the new employees agreed to, the option open to employees who want those ten points will be seriously impaired and/or disappear completely.
. The 1979 residency requirement contains language similar to ordinance § 27.03. The language provides that an applicant to an original entry position in the classified service of the City of St. Paul was eligible to receive an additional 5 points on his or her civil service test if the applicant had been a resident of the city at least one year prior to the date of the examination.