Upper Darby’s income tax is headed back to court

Upper Darby’s beleaguered and stumbling earned income tax (EIT) is facing yet another legal challenge from residents, the latest claiming that the township is attempting to institute the new tax in a way that does not align with state law.

Four residents of Upper Darby Township, led by John DeMasi, filed suit Monday in the county’s Court of Common Pleas against Mayor Ed Brown’s (D) administration and the township council, and are asking a judge to invalidate the tax ordinance “from inception.”

DeMasi and colleagues begin by saying Mayor Brown signed the EIT ordinance on February 19 and that the ordinance “shall take effect and be in force immediately[.]”

However, the plaintiffs also point to a section of law called the Local Tax Enabling Act which says, “No tax levied for the first time by any political subdivision to which this chapter applies shall go into effect until thirty days from the time of the adoption of the ordinance or resolution levying the tax.”

Because the township apparently put the ordinance into effect immediately with Mayor Brown’s signature, it ran counter to the state guidelines, and should be invalidated, the plaintiffs say.

Councilwoman Meaghan Wagner (R-1st District) blasted the overall process.

“I have always been against the EIT. That being said, if it’s going to happen, I want it to be legal,” Wagner said. “I suggested that we wait until a new solicitor was appointed until we address the EIT as I felt if we didn’t we would end up back in court. Also I questioned who was sick of ending up in court. I was ignored and yet here we are, back in court. Hate when I’m right.  The sloppiness is disgusting especially just to push the EIT down the taxpayers throat.” 

At-large Councilwoman Laura Wentz (I) was similarly critical, saying sloppiness had become a habit.

“It’s a pattern. This administration and council president, in my opinion, have failed on the concept of proofreading the documents before they put it out to the public. Whether it’s ordinance or resolution or the agenda itself, the concept of proofreading doesn’t exist anymore, as far as I can tell.” Wentz said.

The mayor and all other members of council did not respond to a request for comment.

Wagner references the fact that the township is in the midst of choosing a new solicitor after Sean Kilkenny and his firm resigned in January. But Kilkenny’s firm remains on until a new solicitor is chosen.

Kilkenney, who is also the sheriff of Montgomery County, had a troubled tenure as solicitor of Upper Darby. Broad + Liberty published a two-part series exposing the many questionable decisions by Kilkenny, including stifling public debate at a township meeting and giving cover to former Mayor Barbarann Keffer (D) when she chose to continue her duties remotely even as she was in a rehabilitation clinic following DUI charges.

Kilkenny was also part of an earlier legal challenge to the EIT in which a judge ruled the township failed to adhere to its own timetable in its home-rule charter. DeMasi was the driving force behind that effort as well.

The township has been trying to implement the new EIT since September.

Although Brown did not respond to a Broad + Liberty request for comment, he told the Inquirer the suit was “from a small group focusing on technicalities, rather than addressing the core sustainability issues in the township.”

“We are confident in the legality of our actions and will strongly defend the Council’s right to implement the EIT as passed,” Brown told the paper.

“Despite the lawsuit’s claims that the ordinance was immediately enacted, Brown said the tax was not set to take effect until July,” the Inquirer also noted.

DeMasi says the “sustainability” issue is the mayor’s own fault.

“There was no reason to pass this [tax] at one percent other than they passed a budget that they couldn’t pay for” DeMasi told Broad + Liberty. “They passed a budget that spent $9 million more than they had planned coming in. They created a deficit and an emergency and then tried to plug that hole and didn’t bother to read the law that they passed.”

“If they can’t pass a law legally, they shouldn’t have control of millions of dollars,” DeMasi added.

The tax, if ultimately put into effect, would act the same as a federal or state income tax, and most residents should be able to have their tax deducted from every paycheck.

DeMasi and the group is also challenging a finer issue in which the tax ordinance said, “The provisions of this Ordinance shall be liberally construed…” (emphasis added).

The plaintiffs say the law and court rulings agree that in matters of taxation, ordinances and the like must be construed strictly rather than liberally.

Todd Shepherd is Broad + Liberty’s chief investigative reporter. Send him tips at tshepherd@broadandliberty.com, or use his encrypted email at shepherdreports@protonmail.com. @shepherdreports