Friday, November 07, 2014

Judge rules county commission cannot expand airport commission: Martha's Vineyard (KMVY), Vineyard Haven, Massachusetts

A Dukes County Superior Court Judge  issued a temporary restraining order Wednesday that prevents the Dukes County Commission from expanding the Martha’s Vineyard Airport Commission (MVAC) by appointing two new members to increase its size from seven to nine members.

As he did in an earlier ruling on August 7 on four other points in the long running and costly legal dispute, Associate Justice Richard J. Chin sided with the airport commission, which argued that the county vote to expand the airport commission was a violation of the grant assurances, agreed to by the county, and which provided millions of dollars in state and federal grants to the airport under the condition the county “agree not to reorganize the MVAC or in any way interfere with the autonomy and authority of the MVAC.”

“The court concludes that it will not harm the public interest to continue operating the airport with only seven members on the MVAC, as it has been operated for some time,” Judge Chin wrote in his November 5 decision. “Further, the county’s alleged violation of the grant assurances could put the MVAC’s funding at risk and interfere with its ability to operate the airport safely and efficiently to the detriment of the public. The county is enjoined from expanding the size of the MVAC and appointing new commissioners to the MVAC or from otherwise interfering with the autonomy and authority of the MVAC without the express written approval of the Aeronautics Division.”

In an October 7 hearing before Judge Chin, airport commission attorney David Mackey, of the Cambridge law firm Anderson and Kreiger, argued that the county commission’s September 24 vote to expand the airport commission violated state law, and violated the grant assurances, in which the county commission acknowledged the airport commission’s sole authority for “custody, care, and management” of the airport. He also argued that any attempt to reorganize the airport commission without permission from the Massachusetts Department of Transportation Aeronautics Division, violated the grant assurances.

Judge Chin said state law grants the county commission the authority to establish an airport commission, but does not give it authority to change the makeup of the commission once it is established.

“Particularly considering the history between the parties,” Judge Chin wrote, “the court concludes that the MVAC had shown a likelihood of success on the merits of its contention that by adding two additional seats to the MVAC, the county is trying to reorganize the MVAC and/or interfere with the autonomy and authority of the MVAC.”

The county had argued that any grant assurances must respect the authority of the County Commission to appoint the Airport Commission. In a footnote, Judge Chin wrote that the county “makes a convoluted argument.”


In a phone interview with The Times Friday, Mr. Mackey said he was pleased with the decision. “We’re pleased that the court once again has clearly affirmed that the airport commission, not the county, has authority over the airport,” Mr. Mackey said. “We’re also pleased that the court once has blocked the county’s attempt to take control of the airport commission by changing its membership. We look forward to bringing this case, and the issue of the airport commission’s autonomy and authority to a prompt and final resolution. The airport commission intends to pursue its claims as speedily and aggressively as possible.”

Airport manager Sean Flynn said the airport commission has not met since September 26, as it waited for the court to rule.

“From my perspective as the executive officer, now that we’ve received clarification of what the makeup of the airport commission is, we can move forward again with the current membership,” Mr. Flynn said. He said the airport commission is tentatively scheduled to meet next on November 21.

County commission chairman Leonard Jason, Jr. said the decision was confusing, especially on Judge Chin’s ruling that the county commission cannot expand the airport commission without permission from the Aeronautics Division.

“I really don’t understand how he can say that,” Mr. Jason said. “We asked Mass. Aeronautics, they said we could. It’s very confusing.”

Mr. Jason was asked if the county commissioners intend to continue defending the lawsuit. “Obviously we haven’t met, so I can’t answer that.”

Explanation demanded

On September 24, the county commissioners voted 6 to 0, with one abstention, to increase the size of the airport commission to nine members. The commissioners immediately appointed pilot and businessman Myron Garfinkle of West Tisbury, and Robert Rosenbaum, a seasonal resident of Chilmark, former businessman and pilot.

The county commissioners said the move was warranted because a large number of qualified candidates had expressed interest in filling the seat left vacant by the recent departure of Peter Bettencourt.

Former airport commissioner and county commissioner John Alley of West Tisbury was the only dissenting vote. Mr. Alley questioned whether the expansion would violate the grant assurances.

County manager Martina Thornton told commissioners that she had researched the issue of expanding the size of the airport commission. She assured the commissioners she did not foresee any problems and cited a phone conversation with the counsel from MassDOT.

One day after the county commission vote, in a letter dated Sept. 25,

Christopher Willenborg, MassDOT Aeronautics Division administrator, asked the county for an explanation of the vote and said that any such reorganization or interference would require the express written approval of the Aeronautics Division.”

Previous injunctions

In an August 7 ruling, Judge Chin sided with the airport commission, on four other issues in the latest lawsuit, filed in response to actions of the county commission this year.

In that ruling, Judge Chin said the county commission is enjoined from appointing the county manager to the airport commission as an ex-officio, nonvoting member; the county manager is enjoined from serving in such a capacity; and the county treasurer is enjoined from refusing to pay invoices duly approved for payment by the airport commission, from obtaining privileged or confidential communications between the airport commission and its attorneys without notice to, or the consent of, the airport commission, and from releasing those communications between the airport commission and its attorneys to the public.

At issue in the legal dispute are two conflicting state laws, Chapter 34, which governs how the county operates, and Chapter 90, which establishes airport commissions as the sole authority to operate airports. In every instance throughout the 14 year legal dispute, courts have ruled that Chapter 90 prevails in any conflict between the two laws, and that the county agreed to abide by Chapter 90 as a condition of receiving state and federal funding.

Legal costs

The legal squabbling has been costly. According to figures compiled by county treasurer Noreen Mavro Flanders, the airport commission has spent $33,463 in the current fiscal year on legal costs associated with its lawsuit against the county. According to county manager Martina Thornton, the county has spent $11,453, to defend itself, which leaves only about $1,007 in the amount allotted for the lawsuit in the county budget. Ms. Thornton said the county has yet to be billed for attorney Robert Troy’s preparation and appearance at the October 7 hearing, and expects that bill to exceed the amount budgeted.

The County Advisory Board (CAB), made up of one selectman from each Island town, and which is responsible for oversight of the county budget, must approve any additional expenditures for legal costs. At a joint meeting of the county commission and the CAB on October 29, the two boards clashed over legal costs.

“I don’t think the county should be spending any more money on this issue,” said Jeffrey “Skipper” Manter, the West Tisbury representative to the CAB.

“So you think the county should just walk away from the lawsuit,” said county commission chairman Leonard Jason, Jr.

“I don’t believe it’s valuable to spend taxpayer dollars, because I don’t think it makes any difference to the people which side wins or loses,” said Mr. Manter.

CAB acting chairman Art Smadbeck, Edgartown’s representative to the oversight board, declined comment on the latest ruling.

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