Kilkenny versus Upper Darby’s Home Rule Charter, Part One
This is the first article in a two-part series examining the manner in which Sean Kilkenny, an attorney working as legal counsel for many Philadelphia-area governments, handles Upper Darby’s Home Rule Charter, the township’s governing document. A powerful political figure in the region, his interpretations of the charter have spurred controversy on multiple issues, including taxation, free speech, and municipal leadership.
“What you’re not going to do is silence us,” Olivia Taylor warned the Upper Darby officials perched two dozen feet in front of her. “We got at least ten of us right here to take your sorry asses to court! See you there!”
The east end township resident chastised councilpersons who would soon vote, with Democratic Mayor Ed Brown’s support, to limit public comment during legislative hearings. With the new restrictions in place, councilpersons would then proceed to impose a new one-percent earned income tax (EIT).
Over a dozen of Taylor’s fellow citizens rose during the September 4 meeting’s early forum period to echo her outrage. Across from the Council chamber’s center podium where they stood sat Brown and most of the eleven-member Council. Also at the dais was a man who never ran for election in Upper Darby but still regularly occupies the very middle seat, as if to suggest his peculiar sway over the Philadelphia border town: Solicitor Sean Kilkenny.
A lawyer with a ubiquitous government-counsel practice, Kilkenny lives outside of Delaware County, in neighboring Montgomery where he serves as county sheriff. His firm receives $22,500 in monthly retainer from Upper Darby plus billable hours to ensure Brown and Council can ratify the legislation they want without legal headaches.
It’s not going well.
The lawsuit Taylor predicted is getting filed Monday by Drexel Hill resident John DeMasi and six other plaintiffs who complain the township violated state and federal law as well as the municipality’s Home Rule Charter (HRC) when adopting the new speech restrictions and the EIT.
The case is only the latest in a series of collisions between Kilkenny and the governing document the township hired him to defend.
A ‘desperate weapon’
DeMasi, a financial advisor and family man whose local activism often rankles Upper Darby’s administration and the council’s Democratic majority, already bested them this summer in an unrelated legal matter. After officials tried to alter plans for millions of American Rescue Plan Act dollars, County Common Pleas Judge Barry C. Dozor sided with the two-decade resident who sued to restore the original spending ordinances.
In his new petition, DeMasi exhorts the Delaware County court to find Brown and aligned lawmakers, led by Council President Hafiz Tunis Jr. (D -7th District), flouted the HRC and other laws numerous times. At the September 4 meeting, DeMasi marveled that the Tunis faction seemed prepared to do that, since they could boast seven votes for both the income tax and the speaking curtailment. That was enough to easily pass them, although the votes were closer at six to four because of Fourth-District Democrat Danyelle Blackwell’s absence.
“You guys screwed this up,” DeMasi told them. “…You could’ve just listened to the audience, listened to the residents. You have the seven votes. You could have voted on the EIT and [there’s] nothing we could do. If you pass this illegal resolution and enforce it against us tonight, we will all have standing to sue and get an injunction on this EIT.”
His case relies partly on local, state and federal free-speech guarantees. Upper Darby’s HRC demands a public hearing for any proposed ordinance and declares “all persons interested shall have an opportunity to be heard at the public forum preceding the public meeting.”
But under the new Resolution 26-24, some must forgo that opportunity. The resolution sets “rules of decorum” that limit each private citizen’s remarks to five minutes and the span of the public forum to one hour. And that’s at Council’s discretion; a majority can shut the forum down after 30 minutes.
That means only twelve people in a population of 86,000 can talk, assuming all twelve take the full five minutes. When Tunis asked his colleagues to pass the rules, he urged them to assume otherwise.
“I’m confident, with this resolution, residents would be able to speak,” he said. “Not every resident is going to take five minutes.”
Yet that very evening some individuals could not speak on the EIT, though they tried. Among those who did get a chance to discuss the tax, almost all of them disapprovingly, Chris Fabre was the first Tunis cut off after five minutes.
“This is B.S.,” Fabre said. “You’re stifling free speech.” The Beverly Hills resident and grandfather returned to his seat, but not before quoting children’s author Laurie Halse Anderson thus: “Censorship is the child of fear, the father of ignorance and the desperate weapon of fascists everywhere.”
Joanne Nammavong was the last private resident to make remarks and, invoking the HRC, refused to sit down when Tunis said her time was up. “No, it’s not,” she gently replied. After the threat of removal by police prompted her to sit back down, Spiro Pappas approached the podium and insisted he be recognized despite Tunis’s assertion that the hourlong forum expired.
Kilkenny chimed in on the president’s behalf.
“[Public forum’s initial half-hour timeframe] was extended once,” he said. “The public hearing is closed.”
Audience members, several of whom still hoped to speak, rose in protest and Councilwoman Meaghan Wagner (R-1st District), an attorney herself, voiced her solidarity with them: “This is where we’re absolutely violating the Home Rule Charter. Absolutely!” Tunis called a five-minute recess while disgruntled attendees gathered at the back of the room to commiserate and strategize. When Council came back, it took a vote on extending the forum but decided against it six to four.
“I’m glad that everyone was heard,” Council Secretary Michelle Billups (D-At Large) said before casting her negative vote. When someone yelled, “No they weren’t!” Billups corrected herself: “I’m glad that everyone that has spoken was heard.”
DeMasi and his co-plaintiffs point out not only that the HRC states everyone must be heard but that the federal and state constitutions say the same. The Pennsylvania Constitution guarantees citizens the “right… to apply to those invested with the powers of government for redress of grievances or other proper purposes, by petition, address or remonstrance.” The U.S. Constitution’s First Amendment also protects that right.
If Kilkenny intends to save the new forum rules and the EIT, he’ll need to answer other problems raised by the plaintiffs as well. For one thing, Kilkenny presented the public-comment legislation himself, though the HRC’s “Legal Officer” section does not empower the township’s attorney to perform that task; neither, petitioners maintain, does any other law.
Moreover, the resolution attempts to repeal other ordinances inconsistent with it. But the HRC makes clear that only ordinances can repeal ordinances. It also says only ordinances can impose penalties and resolutions can’t.
Why would anyone propose a resolution when an ordinance is needed instead? The state’s official Manual for Municipal Secretaries provides an answer.
“Procedures for adopting ordinances are more complex, involving the expense of advertising and recording in a permanent manner,” the manual explains. “Some municipalities are tempted to bypass these procedures by adopting resolutions instead of ordinances, but if they wish their actions to have permanent effect and be enforceable with penalties, they cannot shortcut the ordinance adoption procedures.”
And Kilkenny faces another major burden: To defend the speech curtailment and the new tax, he’ll need to show they passed Council under “emergency circumstances.” Per Chapter 7, Article II of the HRC, only under such urgency may Council take “final [legislative] action” on the first meeting of the month. No one expects Kilkenny to argue the EIT was an emergency measure, for the charter says “such ordinances may not levy taxes.”
Armed with copious legislation and case law, DeMasi thinks the court may deal Kilkenny a figural gut punch. It wouldn’t be the first one he took over his stewardship of the HRC.
‘Concerned persons’
Former Upper Darby resident Rich Blye arrived early at 100 Garrett Road for the township’s 7 p.m., July 24, 2024, Council meeting. Though he knew it would start in a few minutes with a public-comment period, he reckoned he should address audience members beforehand. Turning to them, he said in a measured voice that he would approach the podium at the proper time to speak but Kilkenny would forbid him.
So it went. Though Blye, who recently lost two sons to Philadelphia gun violence, was a longtime community leader before moving to neighboring Lansdowne, his thoughts on crime prevention, homelessness, and other issues would go unheard.
Having co-founded the nonprofit Taylor Made Vets with the late Brian Taylor, the African-American grandfather successfully campaigned for infrastructure repairs, Juneteenth recognition, substance-abuse treatment, and other community improvements. But the packaging and logistics worker who called Upper Darby home for 23 years often criticizes township leaders on governance and development issues, drawing their disfavor.
“Excuse me, Mr. Blye,” Kilkenny began. “Just to be clear, you are not a resident of Upper Darby, nor are you a business owner in Upper Darby and, per our rules of protocol and the Pennsylvania Open Meetings Law, you are not eligible to speak at our meeting.” When a few seated viewers protested aloud, the solicitor continued, “Mr. Blye has previously been warned of this. Thank you.”
People kept shouting objections. After Kilkenny repeated his enjoinder and asked Blye to reseat himself, the 57-year-old Sons of the American Legion commander retorted, “You’re gonna violate me again? You’re gonna go down this road? You’re gonna violate my rights to speak…?”
The chippy exchange continued for another minute and Tunis directed police officers to remove Blye from the podium. After speaking with an officer who said he had confronted Blye in the past, Blye returned to his seat but not before pointing out who the HRC invites to speak during public forum.
The charter’s “Procedures” section says the same thing Blye did: “Concerned persons may address the Council.” It never mentions “residents,” “taxpayers” or “business owners.”
Pennsylvania’s Open Meetings Law, known also as the Sunshine Act, to which Kilkenny referred does explicitly allow both residents and taxpayers to orate, but it does not require excluding others. An FAQ by the Pennsylvania Office of Open Records interprets the law as stating “agencies,” not the statute itself, “can limit comment to residents and taxpayers.”
When Kilkenny and his colleagues originally refused Blye a chance to speak a year ago, they cited his boisterous conduct at the July 19, 2023 meeting when he ran long speaking about Juneteenth, local veterans and other matters. When Council reconvened on August 2, 2023, Kilkenny Law associate Colleen Marsini ordered him to step away from the podium. When he refused, Council recessed for a few minutes and policemen soon prevailed upon him to leave.
Kilkenny briefly relented when Blye got up to speak later that year, but the attorney’s line subsequently has been that nonresidents and non-business owners, whoever they are, must stay mum. He cited the township’s Rules of Decorum which refer to “residents” but do not mention “taxpayers” although state law mandates taxpayers’ inclusion. He also invoked the Sunshine Act and and even the permissive HRC.
Last September, when DeMasi rose to ask which section of the charter prohibits nonresidents like Blye from speaking, Kilkenny said, “I answered your question.” DeMasi replied, “Wow!” though the lawyer’s answer to his follow-up question shocked him even more.
“So, I just want to get it straight that the solicitor is saying that his point of view is what has the force of law and regulation, not the Home Rule Charter?” DeMasi asked.
“Actually,” Kilkenny replied, “it does under the Home Rule Charter.”
DeMasi asked where the HRC said that, and the solicitor promised to tell him. After DeMasi said, “Go ahead, I’ll wait,” Kilkenny said, “I’m not gonna do it right now,” prompting laughs from the audience.
DeMasi told Broad + Liberty he is still waiting to hear why Kilkenny’s opinion trumps the HRC’s very text. Nevertheless, Blye finally got a resolution to his dispute with Kilkenny, one the solicitor resisted.
At Council’s August 21 meeting, Kilkenny associate Jim Gallagher filled in for his boss and reaffirmed his refusal to recognize Blye. After DeMasi, Olivia Taylor and three others took the floor to support their friend, Wagner moved that the Council let Blye make remarks.
Gallagher attempted to cite the Sunshine Act, mentioning that it covers residents but neglecting to mention that it does not expressly exclude nonresidents. DeMasi darted from his seat to the podium to remind him of that, further noting the HRC bars no one. Councilwoman Laura Wentz (I-At-Large) joined DeMasi’s demurral.
“The Home Rule Charter overrules and supersedes any other document…,” she said. “Right now it says ‘concerned persons’ and I think we should follow it.”
Wentz, a Kilkenny critic, surprised no one by saying so. But her Fourth District Democratic colleague Danyelle Blackwell, often a Kilkenny ally, heartened Blye’s champions with her deciding vote, saying “Let him speak: Yes!” With Tunis absent and two other pro-Kilkenny members abstaining, Wagner’s motion narrowly succeeded.
Blye walked to the podium as onlookers clapped.
“You are not my leaders!” he told Kilkenny and other unsupportive officials. “You are not my gods! You cannot stop this voice! That’s what you are afraid of.”
That speech, and Council’s vote to allow it, were hammer blows to Kilkenny and his HRC jurisprudence.
Rehabbing mayor ‘not absent’
Kilkenny, an influential Democrat whose law firm employs two state representatives — Tim Briggs (D – Montgomery County) and Chris Pielli (D – Chester County) — has scarcely avoided controversy. His zealous pursuit of local legal work is a longstanding subject of contention. It captured widespread notice when he and business partners gave gifts and made $14,000 in campaign contributions that The Philadelphia Inquirer said were “in pursuit” of a contract eventually awarded by disgraced Allentown Democratic Mayor Ed Pawlowski.
And controversy dogs him when he walks into the municipal building in Bywood. First appointed in 2020 by Brown’s predecessor Barbarann Keffer (D), Kilkenny has made numerous rulings on the Home Rule Charter that often leave observers bewildered about their rationales.
One of the more notable examples came when Keffer got arrested for driving under the influence and entered a treatment program in January 2023. Then Council President Brian Burke (D-At Large) announced he’d assume her responsibilities per an HRC provision putting the Council president in charge when a mayor is “absent, temporarily incapacitated, or unable for any cause to perform his duties.”
Keffer’s own statement suggested she couldn’t carry out official tasks remotely during her weeks away. Therein, she declared acting co-chief administrative officers Alison Dobbins and Rita LaRue would “ensure the smooth operation of Upper Darby Township” during her treatment period. Still, Kilkenny refused to recognize Burke as acting mayor, insisting Keffer was “not absent” despite her stay in a rehabilitation clinic. The event played out poorly for the solicitor in the local press.
“[Keffer’s] temporarily absent, she’s admitting that the day-to-day operations are gonna be done by the chief administrative officer,” Kilkenny’s fellow government attorney — and fellow Democrat — William E. Vinsko Jr. told CBS Philadelphia at the time. “So, for those purposes, I think that, legally, the president of Council does assume the role until she’s back.”
Burke, who since became a Republican, said the solicitor sided with Keffer out of fear for his own contract, something the former Council president confirmed he hoped to terminate. Kilkenny opponents had a one-vote edge on Council at the time, but Burke couldn’t have finalized Kilkenny’s dismissal while the solicitor still considered Keffer to be present.
Issues like these matter deeply to a home-rule community. Pennsylvania’s municipal codes instruct cities, townships and boroughs on how to structure their governments, conduct business and raise revenue. When Upper Darby residents desired their own set of rules, they started the labor-intensive HRC adoption process in 1973, convening a Government Study Commission that reported its recommendations the following spring. On the strength of that report, officials put a home-rule ballot question before the voters in 1974; it won their approval that year and the charter took effect in 1976.
Kilkenny’s interpretation of that document has led to several other heated disputes concerning legislation and Council-leadership elections. The solicitor did not reply to an email seeking comment on them.
This concludes the first piece in a two-part series. The second article is available at this link.
Bradley Vasoli is a writer and media strategist in Pennsylvania. You can follow him on X at @BVasoli.
