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Councilman: Case law addresses residency

By Staff | May 16, 2013

A Cape Coral councilman who has come under fire after being accused of not living in his district as required by the City Charter has received case law that supports the legality of his actions.

Legal residency is determined by a number of factors, said Councilmember Marty McClain, who sought a legal opinion from City Attorney Dolores Menendez after he was questioned by the media on whether he was residing in District 1.

He said he was told that according to case law, residency is legally determined by intent and by public record documentation.

“It is not determined by where you lay your head, in total,” McClain said. “It comes down to homestead, driver’s license, vehicle registration, voter’s registration, and utility bills.”

He said the legal opinion to that effect, including the citing of a Supreme Court case, will be distributed to council.

By those standards, his legal residency is his home in District 1, he said.

“My legal residence is still Majestic Court,” McClain said in a telephone interview Thursday. “You can go to any legal document out there. There is nothing that changes that.”

What he is going to do in the wake of controversy, though, remains uncertain.

“I’m going to spend the weekend and ponder and pray on this,” McClain said. “The decision I make has to be in the best interest of the city, not me. I took this office for the best interest of the city, and I have stood steadfast on that for three and a half years.”

What he will not do is accept a rental room or quick rental in his district as he says numerous supporters have offered.

“I personally think that circumvents the system,” he said. “I could do that and be in compliance on Monday.”

The question came to light after a media outlet was notified that he had not been living in the Majestic Court home since late last year. McClain confirmed that he has been traveling due to his job and that a personal situation has resulted in his staying elsewhere when in the Cape.

He never thought is was a charter violation as he did not change any paperwork, McClain said.

“If I weren’t (certain it was not) I would have executed a different avenue before,” he said.

The fact that a personal matter has now become a matter of public concern is distressing, he added.

“Personal, private decisions have spilled over onto my seat and the position is far more respectable than that,” he said. “It comes down to where do we go from here?”

He has already made up his mind that he will not seek re-election this year.

“I made a conscious decision many, many months ago that I would not seek re-election,” McClain said. “Right now, that option is off the table. I have no desire to pursue that.

“This has been a very, very expensive endeavor,” he said of public office, adding that as he nears retirement age, the current council compensation of $16,000 per year has been of increasing concern.