Saturday, December 20, 2014

High Cost of In-House Attorneys Questioned at Martha's Vineyard Airport (KMVY), Vineyard Haven, Massachusetts

Ongoing internal clashes at the Martha’s Vineyard Airport are now focusing on an often unseen, but costly presence at the regular meetings of the airport commission: legal counsel.

Attorneys have regularly participated in the monthly meetings of the public body since last winter, when a former employee brought a lawsuit against the airport for what she claimed was a wrongful discharge.

When two lawyers are present, as was the case at Friday’s meeting, with David Mackey and Susan Whalen both participating by speaker phone, it costs the airport $525 an hour.

The airport incurred approximately $271,191 in legal expenses during fiscal year 2014, nearly 11 times what had been budgeted.

“It seems like we have two attorneys on the phone at just about every commission meeting and that that is racking up quite an expense,” said commissioner Christine Todd, an outspoken critic of the way her board has been conducting its business.

Both attorneys are based in the Boston area, and more than often they participate via conference call.

On Friday, their presence was unannounced.

“Do we have an attorney on the phone now?” asked airport commissioner Denys Wortman nearly an hour into the meeting.

At meetings, the attorneys offer counsel with respect to open meeting and public records laws, and the development of written policies.

They also attend the regular meetings of the litigation subcommittee, a group charged with making decisions that pertain to two ongoing lawsuits involving the public airport. In one case, the airport is suing its appointing authority, Dukes County, for interfering in its affairs. In the other, a former employee claims she was unfairly discharged from her job at the airport.

Nearly all of the meetings of the litigation subcommittee are held in executive session.

But at the open meetings of the commission, legal counsel is not always required, airport commissioners said Friday.

“In looking at today’s agenda, nothing really jumps off the page at me for needing attorneys,” said Mr. Wortman.

When questioned, airport chairman Constance Teixeira said the litigation subcommittee “has [the lawyers] on the line.”

She also said she had anticipated Ms. Todd would raise a topic that warrants legal advice.

Ms. Todd said she didn’t understand why the litigation committee, which was formed to handle the two lawsuits, was making decisions about legal counsel at general meetings, where lawsuits were not discussed.

“I would not approve that kind of an expense as a commissioner,” she said. Ms. Todd has been barred from the litigation committee due to a conflict of interest. She also serves as a member of the Dukes County Commission, the defendant in one of the lawsuits. The county commission appoints the airport commission.

The commission has formed a legal services committee to address the rising costs of legal counsel at the airport, but the committee has not yet met.

Mr. Wortman suggested that items requiring legal counsel be scheduled for certain meetings and not others, and that they be scheduled for the first part of the meeting.

The airport commission did not meet for the months of September and October, while they waited for the superior court to issue a decision about whether the county could vote to expand the size of the board. The decision came this month, when a superior court judge ruled in favor of the airport, blocking the county from appointing new commissioners.

Airport manager Sean Flynn said the presence of counsel allowed the commission to consult them right away, instead of postponing decisions.

“Although it’s a $525 expense for an hour’s meeting, sometimes it is money well spent to get that good opinion quickly so that we don’t bog everything down,” he said.

The lawyers also defended the practice.

“Having represented airport authorities extensively over the course of my career, it would be an unusual board meeting that doesn’t have an attorney in the room,” said attorney David Mackey, former chief legal counsel for the Massachusetts Port Authority.

Mr. Mackey said he thought he charged $275 per hour, though he said he couldn’t be sure.

“Don’t hold me to that,” he said.

Attorney Susan Whalen, who is based in Charlestown, charges $250 per hour.

Meetings vary in length, though they usually last between one and two hours. The lawyers charge in ten minute intervals, Mr. Flynn said after the meeting.

He said before the litigation began last winter, the lawyers attended meetings with less regularity.

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