What exactly is residency and when does an elected official have it?
The answer would seem to be fairly straightforward, but Middletown Town Councilman David Fisher's current living situation has raised some unexpected questions about what constitutes the definition of residency.
Fisher, who assumed office last March after no one else filed for the town council seat previously held by Charles Dixon, separated from his wife of 18 years in October and has been spending his nights at various homes outside the town's corporate limits ever since.
While he hasn't been resting his head in town for four months, Fisher says the address on his driver's license remains the Middletown home he previously shared with his wife and four children.
"My legal address hasn't changed and my responsibility to the town and its residents hasn't changed," he said this week. "Unfortunately, I'm going through a very personal and painful process and some things are just out of my control. As of right now, nothing has been settled as far as a divorce, and my situation is very much up in the air and at the mercy of attorneys."
Fisher said he informed Middletown Mayor Kenneth Branner and the other members of town council about his living situation soon after he moved out.
"They felt I wasn't doing anything wrong," he said. "If I were in a situation where my house burned down and I had to live with family while my home was being rebuilt, it's not that different."
Like most municipalities in Delaware, Middletown requires town council candidates to be residents of the town for at least one year prior to their election. However, the town charter does not address the issue of residency after a councilmember has been elected.
"It's not that unusual for a town charter to not spell out exactly what it means by 'residency,'" said Doug Tuttle, a Newark City Councilman who helps municipalities prepare charter revisions as a policy scientist in the University of Delaware's Institute for Public Administration. "The question in a case like this would seem to be what constitutes moving outside of town. It seems to me that would be a question that would have to be answered by the town solicitor."
Middletown Town Solicitor Scott Chambers of the Dover-based law firm Schmittinger & Rodriguez said he was unfamiliar with the specifics of the matter and declined to comment further.
Kristen Krenzer, Middletown's public relations officer, said the town has received no formal complaints about Fisher's residency that would necessitate a legal opinion on the matter.
Branner also declined a request to comment on Fisher's living situation.
Like Middletown's charter, the Delaware Constitution also requires candidates for state senator and state representative to prove that they have lived in the district they're seeking to represent when filing to run for the office.
Page 2 of 2 - The state constitution also specifically states that elected members of both bodies be an "inhabitant" of their districts during the last year of their term "unless he or she shall have been absent on the public business of the United States or of this State."
Delaware Elections Commissioner Elaine Manlove said the state department of elections typically examines driver's licenses, voter registration or household bills to verify residency.
A state legislator moving out of their district would trigger a special election, she said.
"Residency challenges are complaint driven and in a case like the one being described here, which is not identified in the state code, we would seek out an opinion from the Attorney General's Office before making a ruling," she said, noting that municipal residency questions do not fall under state jurisdiction. "In a situation like this, where the person still owns a house in the district, we would probably look at whether this is a temporary situation and whether it might settle itself."
Fisher said he has no plans to resign his seat on town council, with the belief that his current living situation is a temporary matter that will eventually be resolved.
"I've attended all of the council meetings and as many functions as I could get to since this started and my intent is to continue serving the people of Middletown," he said. "This is my home."