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Airport

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Judge Richard Chin listened to arguments at the hearing on July 27. — File photo by Steve Myrick

Attorneys for the Martha’s Vineyard Airport Commission and the Dukes County Commission presented oral arguments in Dukes County Superior Court Tuesday in connection with the latest lawsuit sparked by a long-running dispute over control of the county-owned Martha’s Vineyard Airport and its operations.

In a 13-page civil complaint filed May 5, airport commission lawyers from the Cambridge law firm of Anderson & Kreiger asked the court to prohibit county officials from seeking to “unlawfully interfere with, and obstruct the functioning,” of the Airport Commission. The seven members of the airport commission are appointed by the elected members of the seven-member county commission.

The complaint is based on two ongoing disputes that are only the latest eruptions in the lengthy history of county efforts to exercise control over the county-owned airport. Over the objections of airport officials, county treasurer Noreen Mavro Flanders has refused to pay airport invoices approved by the airport commission and she has publicly released invoice details the airport considers confidential. And on April 23, the county commissioners recognized county manager Martina Thornton as an ex-officio member of the Airport Commission.

Airport lawyers asked the judge to issue injunctions to prohibit the county commission from naming the county manager an ex-officio member; prohibit the manager from sitting on the airport commission; prohibit the county treasurer from refusing to pay airport invoices; and prohibit the treasurer from releasing confidential information she had obtained between the airport commission and its attorneys.

Airport commission attorney David Mackey (standing) shares a document with county commission attorney Robert Troy in Dukes County Superior Court.
Airport commission attorney David Mackey (standing) shares a document with county commission attorney Robert Troy in Dukes County Superior Court.

In its answer to the lawsuit, filed May 30, the county commission made a series of counterclaims, including a request for the court to declare that the airport is under the jurisdiction of Dukes County, as a subdivision and department of the county, according to Massachusetts law. The county commission also asked the court to issue a temporary restraining order prohibiting the airport commission from submitting invoices without proper documentation. The county commission asked the court to dismiss the airport commission’s complaint, and award the county commission costs to defend itself, with interest.

In a hearing before Associate Justice Richard Chin in Dukes County Superior Court on July 29, attorney David Mackey of Anderson & Kreiger was first to make his case for the injunctions and declaratory judgement.

“This is much more urgent than it was when we brought this case,” Mr. Mackey told the court. “The county’s position has become more extreme. The county commission is attempting to take control of the airport.”

Mr. Mackey said Chapter 90 of the Massachusetts General Laws give the airport commission sole authority for custody, care, and management of the county-owned airport. He said the grant assurances signed by the county commission and the county manager with each round of state and federal funding make it clear that the county commission is prohibited from depriving or diminishing the powers of the airport commission. He also argued that a 2006 court ruling known as the Weibrecht decision reaffirmed the airport commission’s role as a body independent of county government with sole responsibility for the airport’s financial affairs.

“There is some considerable urgency about clearing up this issue about who is running the show,” Mr. Mackey said. He cited language from the law, the grant assurances, and the Weibrecht decision in support of the airport commission’s claim that each overrules the state law and county charter, when there is a conflict.

Judge Chin questioned the airport commission attorney about his requests for immediate injunctions.

“What is the urgency,” Judge Chin asked. “After reading his (the county commission attorney’s) submissions, are you going to turn the keys of the airport over to him?”

Mr. Mackey also argued that an immediate injunction was necessary to prevent the county treasurer from releasing invoices and other documents which could compromise the airport commission’s right to keep communications with its attorneys confidential.

Judge Chin also questioned whether an injunction was warranted on that issue.

“Part of the problem is the lawyers,” Judge Chin said. “Why are they just handing over privileged communication? The attorneys bear some responsibility. It doesn’t sound like you need a court order to prevent these communications. I don’t want this court used as a tool by which information is kept from people. I’m not going to interject myself in this controversy. that’s not the role of this court.”

Attorney Robert Troy of the Sandwich law firm Troy Wall Associates represented the county commission at the hearing. He characterized the disagreement between the two commissions as a political dispute. He said no injunction is warranted to prevent the county manager from sitting as an ex-officio member of the airport commission, because the provision is included in state law. He said “one person sitting at the table who has no vote, for an airport that is owned by Dukes County,” is not an attempt to diminish the airport commission’s authority.

“The real issues, that are petty issues, are due to improper practices of the airport commission,” Mr. Troy told the court. “This is about a very petty and illegal practice. The airport commission has been approving invoices that have no detail.”

As an example, he offered an invoice from a law firm in Colorado that he said the airport commission had retained.

“It says 3.4 hours at $525 per hour,” he said. “What was the work done? T-R-D, that’s all it says. The airport commission should have been communicating with the treasurer and not coming to court.”

Judge Chin noted that all the invoices were eventually paid.

“It seems to me there is no controversy before me about the bills,” Judge Chin said. “There are procedures in place to pay the bills. It sounds like the matter has been resolved. What would I rule on?”

All the parties in the lawsuit were present in the courtroom Tuesday, listening intently to the hearing. Also present was Tracy Klay, chief counsel for the Massachusetts Department of Transportation’s Aeronautical Division. He said the issues in the case are important to state regulators, no matter what the decision.

Judge Chin told the attorneys he will take the matters under advisement and issue a written ruling.

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The Dukes County Commission building. — Marthas Vineyard Times File Phot

In a special meeting of the Dukes County Commission on Wednesday, June 18, that followed an earlier meeting of the Martha’s Vineyard Airport Commission, county commission chairman Lenny Jason Jr. called on the airport commissioners to resign.

Following further discussion and expressions of dissatisfaction, a majority of  commissioners prevailed on Mr. Jason to modify the outright call for resignation.

The Martha’s Vineyard Airport commission is responsible by state statute for the care and custody of the county-owned airport. The county commission exercises authority over the airport through its appointing authority.

Mr. Jason is dissatisfied with the airport commission’s stewardship of the airport. In an unusual noon meeting on Wednesday, the airport commission granted airport manager Sean Flynn a leave of absence to address personal issues. Members of the county commission have been highly critical of the airport commission for its handling of several public disciplinary hearings involving an airport employee.

“It’s sad when you see your appointees not performing as you hoped,” Mr. Jason said. “It seems to be a circus atmosphere. It’s not in the best interest of the people of the county. I think we have no alternative but to ask the airport commission to resign. It’s almost like the inmates are running the asylum. The last meeting was disgraceful. That’s not the kind of meeting Thomas Jefferson envisioned.”

Mr. Jason’s fellow county commissioners also voiced withering criticism of the airport commission. They included Christine Todd of Oak Bluffs, who was appointed to also serve on the airport commission earlier this year.

“The experience so far has been frustrating for me,” Ms. Todd said. “It’s been quite difficult to get some basic information, like executive session minutes and procedural questions. I’ve found it to be very frustrating. I’m concerned.”

County commissioner Leon Brathwaite of West Tisbury said he was concerned, after watching MVTV recordings of the airport commission meetings. “I’ve watched the videos,” he said.

“I’m shocked and appalled.”

However, a majority of the commissioners argued to soften Mr. Jason’s outright call for resignation and were leary of using the word “resign.” The county commissioners acknowledged that they have no authority to revoke their appointments, or demand a resignation outright. They will instead send a letter.

While the letter has yet to be drafted, after the meeting Mr. Jason summarized what the full commission agreed the letter should state.

“The letter will ask you to reexamine how you are conducting business, if you feel it’s in the best interest of the people of this county or not,” Mr. Jason said. “If upon reflection you feel you haven’t been doing a good job, perhaps you should consider an alternative.”

Three airport commissioners attended part or all of the county commission meeting. Following the meeting, airport commission chairman Norman Perry said he would not resign. Airport commissioner Constance Teixeira declined any comment.

The discussion of the airport commission was the only item on the agenda for the special meeting.

The decision by the airport commission to grant a leave of absence to airport manager Sean Flynn also came in for criticism at the county commission meeting.

A short statement issued by the Airport Commission made no mention that Mr. Flynn asked for the leave prior to the meeting, and Mr. Perry unilaterally granted the leave, according to Ms. Todd.

Mr. Perry said he had no alternative, under the federal family leave regulations.

“Once a person asks for that, you have to give it to them,” Mr. Perry told county commissioners. “This is something the government says you have to give the person the time.”

Richard Michelson, also appointed to the airport commission by county commissioners earlier this year, was unhappy with the process by which Mr. Flynn was granted leave.

“As an airport commissioner, this and other issues are pretty frustrating,” Mr. Michelson said. “When decisions are made by one person and not the entire commission, members of the commission aren’t included, given any input, communication, or notification.”

Correction: An earlier version of this story incorrectly reported that county commissioner Leon Brathwait is from Oak Bluffs. He is from West Tisbury.

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The Martha's Vineyard Airport commissioners have changed their leadership. — File photo by Ralph Stewart

The Martha’s Vineyard Airport Commission granted airport manager Sean Flynn a leave of absence to address personal issues, following more than two hours of discussion behind closed doors on Wednesday, June 18. Mr. Flynn made the request, according to a commission statement.

Airport commission chairman Norman Perry declined to talk about the terms or the time frame. Mr. Flynn will be paid his regular salary during the leave, by using accumulated vacation and personal time, according to Mr. Perry

The commission met at noon Wednesday in executive session, and they issued a short statement following the meeting.

“The Martha’s Vineyard Airport Commission met in executive session at length this afternoon to discuss certain personal information regarding the airport manager, Sean Flynn. Mr. Flynn has requested a leave to address these personal matters which was approved.”

The commission designated assistant airport manager Deborah Potter to run airport operations during Mr. Flynn’s leave.

“The Martha’s Vineyard Airport Commission has tremendous confidence in Ms. Potter and the entire airport staff in their ability to run the airport,” the statement said.

Mr. Perry called the unusual noon meeting following the arrest by Edgartown police on Friday, June 6, of Mr. Flynn’s wife, Rebecca Donnelly, on a charge of domestic assault at their Edgartown home. The police report detailed an argument over Mr. Flynn’s use of prescription drugs, and allegations by Ms. Donnelly that Mr. Flynn is abusing pain medications.

Mr. Flynn was not arrested. Mr. Flynn denied to police that he has a prescription drug problem.

Occasionally, raised voices could be heard outside the meeting room, but the mood was cordial when the executive session broke up. Mr. Flynn smiled, bantered with a reporter, and shook hands with some of the airport commissioners. He declined to comment.

Present for the meeting were airport commissioners Norman Perry, Christine Todd, Richard Michelson, Denys Wortman, Constance Teixiera, and James Coyne (by conference call). Commissioner Peter Bettencourt was absent.

Mr. Flynn was represented by Edgartown attorney Rosemary Haigazian. Kim Elias, assistant to the airport management, and Ms. Potter also attended the meeting.

Airport commission lawyers Susan Whalen and David Mackey of the Boston law firm Anderson & Kreiger flew from Boston Wednesday morning to attend the meeting.

In the vote to go into executive session, airport commission members cited an exception to the open meeting law which includes discussion of, “The reputation, character, physical condition or mental health” of an employee as the reason for conducting business behind closed doors in executive session.

Chairman Perry confirmed to The Times in a telephone conversation Tuesday evening that the police report detailing the domestic disturbance was included in the information he sent to commission members prior to the closed door session.

“I felt everybody should have a copy of it,” Mr. Perry said. “It was important, all the details that were in it, like it or not. The police report is available: it’s now public.”

Following the airport commission meeting, the Dukes County commissioners, the airport commission’s appointing authority, also met. In an unprecedented action, county commissioner Lenny Jason called on the entire airport commission to resign. That call was later modified (See related story, “Dukes County Commission thrashes airport commissioners”) to a request that the airport commission reexamine how it conducts business.

Abuse denied

On Friday, June 6, Mr. Flynn called Edgartown police and reported that he had just had a domestic situation with his wife, Rebecca Donnelly, according to the police report. He told police that during an argument sparked by his use of prescription medications, she threw a can of fruit punch which struck him in the face.

A few minutes after Mr. Flynn’s call, Ms. Donnelly arrived at the Edgartown police station, where she turned over numerous pill bottles to police.

“Rebecca explained that Sean has been abusing his prescription medications for a long time now and she has had enough,” Det. Sgt. Chris Dolby wrote in his police report. “She said he is taking all kinds of pain medications and is clearly addicted to them. She said that he can no longer function normally and can’t even drive a car today, which is why he didn’t go to work this morning.”

According to the report, she told police she dumped the soft drink on him in the heat of an argument but did not throw the can at him.

Edgartown police officer William Bishop later interviewed Mr. Flynn at his Edgartown home. In his police report, he said he observed minor swelling and redness on Mr. Flynn’s face.

“I noticed that Flynn had slurred speech, was not balanced, and his motor skills seemed to be less than favorable,” Officer Bishop wrote. “I discussed with Flynn the possibility of evaluating his prescription intake, and consider that he may in fact have a problem. Flynn then began a long explanation of how he has been evaluated by his doctor, therapist, and the pain clinic.  Flynn truly believes he does not have a problem.”

Based on the interview with Mr. Flynn and evidence observed at his home, police arrested Ms. Donnelly and charged her with domestic assault. When she was released after booking at the Dukes County Jail, she returned to the police station, and asked to apply for an emergency restraining order. A short time later, Mr. Flynn arrived at the station. He was directed to a separate area, where he also applied for an emergency restraining order.

A judge granted both emergency restraining orders Friday evening, instructing both not to abuse each other, not to contact each other, and to stay 100 yards away from each other. The judge also ordered Mr. Flynn to leave his home, and to surrender any firearms and ammunition in his possession.

Both Mr. Flynn and Ms. Donnelly later appeared in Edgartown District Court on Monday to extend the emergency restraining orders, and the court approved both, according to police.

Det. Sgt. Dolby told Ms. Donnelly that he had no authority to hold Mr. Flynn’s prescription medications, and that he would return them to him, according to the police report.

Police also spoke to Mr. Flynn’s physician, Dr. Gerald Yukevich, to make him aware of the situation and let him know that police would be returning all the pills to Mr. Flynn.

Airport turbulence

Wednesday’s meeting was the latest turbulence for the members of the airport commission, which is statutorily charged with the care and custody of the airport.

Beth Tessmer, a nine-year employee who was promoted, suspended, and then fired in less than one year, filed a civil complaint on May 6 against the Martha’s Vineyard Airport Commission, asking a judge to order the Airport Commission to give her job back to her. Members of the county commission and Ms. Tessmer’s supporters were highly critical of the airport commission for its handling of several public disciplinary hearings. Prior to her termination, Ms. Tessmer filed a complaint with the Massachusetts Commission Against Discrimination against Mr. Flynn.

In April, citing the handling of the disciplinary hearings, county commissioners voted not to re-appoint two members of the airport commission. In a sharply divided vote and disputed procedure, the county commission rejected the applications of Benjamin Hall Jr. and John Alley to three-year terms on the seven-member airport commission. Mr. Alley, a Dukes County commissioner, has served on both the county commission and the airport commission for more than three decades. Mr. Hall, an Edgartown businessman, was finishing his first term.

Instead, the county commissioners appointed Christine Todd of Oak Bluffs, a county commissioner, to the airport commission. They also appointed Richard Michelson, a former airport employee now on disability retirement, who helped organize airport employees to form a union and served as shop steward. He has been a frequent and vocal critic of airport management.

The county commissioners also instructed county manager Martina Thornton to sit in on airport commission meetings as an ex-officio member. However, grant assurances signed by the airport and county commission at the insistence of the Mass Aeronautics Commission, which provided funding for the construction of a new airport, specifically bar the county commissioners from interfering in airport affairs.

In May, the Martha’s Vineyard Airport Commission filed a lawsuit in Dukes County Superior Court, asking a judge to prohibit the Dukes County Commission, the county treasurer, and the county manager from interfering with the airport commission’s statutory authority to manage and run the Martha’s Vineyard Airport.

The 13-page civil complaint dated May 1 was filed in Dukes County Superior court by lawyers from the Cambridge law firm of Anderson & Kreiger, against the county commission, county manager Martina Thornton, and county treasurer Noreen Mavro Flanders. It asks the court to prohibit the county officials from seeking to “unlawfully interfere with, and obstruct the functioning,” of the Airport Commission.

The complaint is the latest chapter in the lengthy history of county efforts to exercise control over the county-owned airport.

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The county commissioners cited a provision in the county charter that is at odds with grant assurances state officials put in place to keep the county manager at arm’s length in airport affairs.

The Martha's Vineyard Airport is experiencing some turbulence in its relationship with the county commission. — File photo by Ralph Stewart

Provisions in the Dukes County charter and the Martha’s Vineyard Airport grant assurances once again appear to be on a collision course. Dukes County Commissioners, pointing to provisions in the state law that govern the current form of county government, want their paid county manager, Martina Thornton, to participate in Airport Commission meetings as a non-voting ex-officio member.

At their regular meeting on April 23, county commissioners crafted a motion, first incorporating the word “add” and then the word “recognize,” that they approved by a vote of 6-0, to “recognize that Martina is an ex-officio member to the Martha’s Vineyard Airport Commission under the terms of the charter and the administrative code.”

The vote followed a debate that highlighted the continuing dispute over the lines of authority in the management and operation of the only county-owned airport in Massachusetts. Ms. Thornton often attends airport commission meetings.

The county charter specifically provides a non-voting role for the county manager on all boards and committees that are appointed by the county. The county appoints the airport commission.

However, grant assurances signed by the airport and county commission at the insistence of the Mass Aeronautics Commission, which provided funding for the construction of a new airport, specifically barred the county commissioners from interfering in airport affairs.

At last Wednesday’s meeting, county commission chairman Lenny Jason of Chilmark said the airport commission recently refused to admit Ms. Thornton to a closed-door executive session of the Airport Commission. He said that recognizing that Ms. Thornton as an ex-officio member according to state law is not an attempt to interfere with airport operations.

“The charter requires it,” Mr. Jason said. “She shouldn’t be banned from attending a meeting. She should be sitting at the table like it always was.”

Commissioner Tristan Israel of Vineyard Haven called the timing of the county commission vote curious. “Obviously we’ve had some issues in the past couple of weeks,” Mr. Israel said. “I have no interest in us becoming involved in how that commission conducts airport business. Martina goes to many of their meetings already. I think that stirs up things that are not necessary at this point.”

Mr. Israel, who is also a Tisbury selectman, was referring to the county commission’s rejection at their April 9 meeting of two incumbent airport commissioners and their appointment of two new members to the airport commission. The county commission, in a split vote and a disputed procedure, declined to reappoint county commissioner John Alley to the airport commission. He has held seats on both commissions for more than three decades.

Some county commissioners were unhappy with Mr. Alley, who, as chairman of the airport commission, presided over disciplinary hearings for an airport employee who was twice suspended, then fired, by airport management. The county commission also declined to reappoint Benjamin Hall Jr. to the airport commission.

Instead, the county commissioners appointed one of their own commission members, Christine Todd of Oak Bluffs, and Richard Michelson, a former airport employee and frequent and vocal critic of airport management.

Conflicting cases

Norman Perry, the new chairman of the Airport Commission, challenges the idea of the county manager as an ex officio member. He said it is not appropriate for the county manager to sit in executive session.

“If you’re discussing issues which would pertain to what she does in the county, then she couldn’t be in it,” Mr. Perry said in a phone interview Wednesday. “There is a process that is going to straighten that out, hopefully not court action, but attorney to attorney.”

According to Massachusetts General Law, Chapter 34A, among the duties of the county manager is to, “Serve, as ex-officio, non-voting member of all appointive bodies in county government.”

Recent court rulings and legal opinions restrict the ability of the Dukes County Commission to interfere with airport operations.

In 1997, involvement by the county manager and county commissioners in airport affairs led state and federal aviation officials to present the county commission with a set of grant assurances they signed in order to secure funds used to rebuild and expand Martha’s Vineyard Airport. Those assurances state that, “Notwithstanding any powers, authority or responsibility that may be granted to the County Commissioners by Chapter 34A of the General laws (the ‘charter’), the county commissioners agree not to interfere in any way with the powers, authority and responsibilities granted to the Airport Commission by Chapter 90, Section 51E of the general laws.”

A 2005 court ruling, known as the Weibrecht decision, further clarified the separation of authority between the county and the airport.

“It came to the attention of the airport commission,” Kevin Batt, of the Cambridge law firm of Anderson & Kreiger who represents the Airport Commission, told The Times. “They’re taking a closer look, and they will have a response. The grant assurances and the Weibrecht decision are very relevant.”

Mr. Batt was among those invited to an executive session at the Airport Commission last Friday that only airport officials were invited to attend. Mr. Perry cited an exception to the open meeting law for going into secret session. “I declare this executive session is necessary to protect the litigation position of the airport commission,” Mr. Perry said.

The decision

In a decision entered on July 18, 2005, Judge Robert H. Bohn ruled that the airport commission had the authority to set the salaries of their professional airport manager at the time, Bill Weibrecht, and assistant manager Sean Flynn, who is now manager.

In his 30-page ruling, 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 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.”