Last month, the Dukes County commissioners requested a legal opinion on whether the county commission, or its appointed Martha’s Vineyard airport commission, has the authority to establish salaries for airport employees.
The county commissioners have short memories.
Almost eight years ago, the county lost a lengthy legal battle that cost taxpayers more than $500,000, to answer a similar question regarding its authority to set and change airport salaries.
Last week, county lawyer Darren R. Klein of the Boston law firm of Kopelman and Paige essentially reaffirmed a July 2005 decision by Superior Court Judge Robert H. Bohn Jr.
“In my opinion, the Airport Commission has the authority to establish the salaries for its employees,” Mr. Klein said in a letter dated December 11.
Martina Thornton, recently appointed county manager, told The Times the issue arose when county department heads questioned why cost of living adjustments (COLA) for county employees differed from those of airport employees.
Ms. Thornton serves as the administrative manager for the seven county commissioners. In terms of day-to-day supervision and responsibilities, the county manager oversees three people in three departments — her office, veterans affairs, and integrated pest management. The sheriff’s office is now under state control. The registry of deeds and the office of the county treasurer are county departments headed by elected county officials. Each has direct control over their employees. Health Care Access, a county department, operates without day-to-day county supervision.
In a memorandum to the county commission dated November 14, Ms. Thornton said, “At a department heads’ meeting on November 11, 2012, the department heads raised a question why the airport non-union employees received a 3.1 percent COLA for FY2013, starting July 1, 2012, and the rest of the county employees received only 1.28 percent COLA.”
Ms. Thornton said “it was suggested” that based on state law all employees should be receiving the same benefits. She said the different COLA created two different pay scales and sets of benefits — one for county employees and one for airport non-union employees.
Ms. Thornton, a former paralegal, said, “This situation points to an unfair labor practice, and the county employees would like to know why this is allowed.
“As the airport employees are in virtue county employees, the airport non-union employees should be receiving the same COLA as the rest of the county employees, as they receive the same benefits as well.”
Ms. Thornton said the department heads “asked to get a legal opinion from a labor lawyer if the airport non-union employees can receive a different COLA than the rest of the county employees and if the airport can have a different pay scale.”
County commissioners agreed to seek a legal opinion.
As it sees fit
In his opinion, Mr. Klein said that Massachusetts General Law gives the airport commission the authority to fix the salaries of all officers and employees appointed or employed by it and, in his opinion, as long as the airport commission has sufficient funds, it has the authority “to fix salaries as it sees fit.”
Mr. Klein wrote, “In my opinion, this is true even if the salaries and/or increases are different than what other county employees receive or if the salaries are on a different pay scale than other Dukes County employees.”
Mr. Klein said that including airport employees on a county pay scale would arguably violate the provisions of state law.
“Moreover, it is not an unfair labor practice, in my opinion, to give out different raises to different employees, especially when those employees fall under the authority of the Airport Commission rather than the County Commissioners,” he said.
Why a new legal opinion was needed in light of earlier rulings is not clear. Not that long ago, county officials spent a considerable sum to answer the question of county authority over airport affairs.
The earlier case centered on a dispute between the county commission and its appointed airport commission over which agency had authority to negotiate compensation with airport employees.
The airport commissioners insisted that the airport commission set the airport manager’s salaries. Then county manager Carol Borer, with the support of the county commissioners, insisted that the men were county employees subject to the county pay scale, and she refused to pay the employees the full salaries agreed to in a contract signed by the airport commission.
In a decision entered on July 18, 2005, Judge Robert H. Bohn ruled that the appointed Martha’s Vineyard Airport Commission had the authority to set the salaries of their professional airport manager, Bill Weibrecht, and assistant manager Sean Flynn, who is now manager.
In his 30-page ruling, Judge Bohn wrote that the long-running legal issue could be reduced to a single question: “Who has the power, the airport commissioners or the county commissioners, to hire and set the salaries of the airport manager and the assistant airport manager?”
Judge Bohn reviewed the history and law surrounding the issue, including the creation of the airport, the enactment of a state statute in 1946, vesting the “custody, control and management” of local airports in an airport commission and the adoption of a county charter by county voters in 1992.
The judge also reviewed the county’s poor and uneven stewardship of its chief asset. The dispute, the judge found, arose when the county took the position that the county charter superseded the powers conferred on the airport commission. As a result, concerned state aviation authorities presented the county and airport commissioners with a set of grant assurances, or contract agreements, and obliged the county commissioners to sign them. The assurances defined the conditions for the airport and business park to receive millions of dollars in state and federal funds.
The airport and county commissioners signed the required assurances, in which they agreed not to interfere with the “powers, authority and responsibilities” of the airport commission, as provided for by state law.
Judge Bohn wrote, “The county officials entered into these assurances with free knowledge of what they were forfeiting with respect to management of airport activities.”
With respect to the right of the airport commission to set salaries, Judge Bohn wrote, “There is no evidence that the legislature intended to make any exception to the Airport Act for Dukes County; to the contrary, at the same time it added the provision concerning airport managers, it also expressly stated that the act was to apply to county-owned airports.”
In May 2006, a state Superior Court judge set aside a portion of the July 14, 2005 decision. The May 22 order by Justice Richard T. Moses saved the county about $344,942, two-thirds of a triple damages judgment by Judge Bohn.
Reducing earlier calculations of the cost to the county of the battle with the airport commission and its two employees by the amount of the reduction in damages, the total, including legal fees for the airport and county, reached approximately $525,000.
The current seven county commissioners are: Melinda Loberg of Tisbury, Tom Hallahan of Oak Bluffs, Lenny Jason of Chilmark, Beth Toomey of West Tisbury, Carlene Gatting of Edgartown, Tristan Israel of Tisbury, and John Alley of West Tisbury.