Did a simple typo kill Upper Darby’s residency rule?
UPPER DARBY » The township finds itself without a residency requirement for employees for the first time in decades - and all because of one little letter of the alphabet.
Council in August 2019 passed Ordinance 3059 by a vote of 9-0 with two members excused. Then-Mayor Thomas Micozzie and former council President Donald Bonnett, both Republicans, signed off on the ordinance, making it effective immediately.
The stated intent of the ordinance was to “broaden the equal employment opportunity provisions set forth in section 6.02A” of the administrative code to include nondiscrimination language for “actual or perceived sexual orientation, gender identity, or gender expression,” as well as age, race, creed, color, sex, national origin and political affiliation.
Article 6 of the code covered personnel rules and section 6.02 dealt with appointments, promotions, performance review and residency requirements. There were six paragraphs to Section 6.02 laying out township rules for those areas, labeled A through F. Those are still posted on the township website.
Ordinance 3059, first introduced in July 2019, states that the Law and Government committee had reviewed Article 6 and “recommends that amendments be made to Section 6.02A of the same.”
However, the ordinance then states: “Now therefore, Upper Darby Township hereby ordains … Section 6.02 Appointment;
Promotion; Performance Review; and Residency Requirement is deleted in its entirety and amended to read as follows:”
The ordinance goes on to amend the language of what had been section 6.02A. But the current administration, now headed by Democrat Barbarann Keffer, claims that by indicating “Section 6.02 … is deleted in its entirety,” the ordinance effectively did away with all six lettered paragraphs and replaced them with only the non-discrimination portion.
That includes paragraph E, which stated that “All persons, other than police officers and paid firefighters, hired as full time employees of Upper Darby Township must either be or become, within six (6) months after their date of hiring, and continue to remain during their employment, a resident of Upper Darby Township.”
Upper Darby would now appear to be operating with no residency requirement and no language from Section 6.02 at all, other than that of nondiscrimination contemplated by Ordinance 3059.
Micozzie and Bonnett maintain that that was never council’s intent, pointing out that the top of the ordinance specifically relates to “6.02A” twice. Micozzie contends that the current Democratic administration is using what he deems an easily amended clerical error in an attempt to change the residency requirement so that directors and the Chief Administrative Officer do not have to live in the township.
“If we look at the prefix, if we look at the advertisement of the ordinance, if we look at the introduction to the ordinance and we look at the public hearings of the ordinance, and we look at the minutes of the ordinance and we look at the approval of the ordinance, not once is residency mentioned,” said Micozzie. “The easiest way to solve this would be to reintroduce the ordinance and correct the ordinance and add the letter ‘A.’”
But township Solicitor Sean Kilkenny said it is not that easy. The problem is that residency requirements are bargained-for rights, which has been recognized by both the Pennsylvania Labor Relations Board and state courts up to and including the Pennsylvania Supreme Court.
“So therefore, once the residency requirement was removed by Mayor Micozzie, then it has to be bargained for back to be reinstated,” said Kilkenny. “Regardless of whether it was a typo at the time, it was a rather large typo that was in front of council and publicly advertised, and that is not going to change the union’s position.”
The current council did draft a new ordinance to replace section 6.02 this month, but it is subtly different from the old language in that the residency requirement would apply to “all employees represented pursuant to a collective bargaining agreement … unless there is a specific provision in the employee’s collective bargaining agreement modifying this requirement.”
That ordinance was tabled at a council meeting last week and the township issued a release stating that its passage would have been a unilateral change of a mandatory bargaining issue in violation of the Pennsylvania Public Employee Relations Act.
“When an ordinance uses a phrase like ‘deleted in its entirety’ there is no room for interpretation,” said Kilkenny Law Associate Courtney Richardson, who first discovered that the requirement had been eliminated while researching another issue, according to the release.
“We see a lot of municipalities getting away from these requirements anyway and moving toward the earned income tax model,” said Richardson. “You hate to see your clients hands tied in any situation, but our job is to help them understand it from a legal perspective and make the best of it moving forward.”
Transportation Workers Local 234 Business Agent George Bannon said that in his interpretation, the language of the ordinance is “crystal clear” that the residency requirement was eliminated. He said it had been a sticking point in bargaining meetings for at least the last three contracts and probably longer. It isn’t necessarily that employees want to move out of the township, he said, but they do want to have that ability without it impacting their jobs.
“If you want to bring that type of employment condition back, the only way to get that now for the employer is collective bargaining,” said Bannon. Doing otherwise is an unfair labor practice, he added.
“That is why we tabled our version – to avoid a lawsuit for unfair labor practices from TWU,” said CAO Vince Rongione, who does not currently live in Upper Darby. “To be clear, the removal of the requirement was also a violation of labor law since it was also a unilateral change to a mandatory bargaining issue, but because it was one that the union wanted, they would have no reason to challenge it.”
As far as Bonnett is concerned, he is not opposed to unionized workers living outside of the township. But he said he believes the highest paid, highest ranking and most responsible employees should be residents of Upper Darby.
And Bonnet said he is not alone – dozens of other residents voiced that same opinion through calls and emails last week.
“What I’m most concerned about is having a requirement by ordinance, in this case the administrative code, that requires non-bargaining personnel to live in Upper Darby Township,” said Bonnett. He added that a labor attorney advised council during a recent executive session that such a requirement could by crafted that would not violate any labor laws.
Bonnett said he hopes the issue eventually comes before a judge who can put it to rest, but exactly how that might happen – absent Upper Darby attempting to reinstate the residency requirement for unionized workers – remains to be seen.
The tabled ordinance will meanwhile go back to the Rules and Procedures Committee and will likely come up again in some form. Exactly what that form will take is uncertain.