Superior Court judge says county is unlikely to prevail in airport suit

Martha's Vineyard Airport management is experiencing turbulence on the ground between the airport and county commissions. — Photo by Steve Myrick

Updated 11 am, Wednesday

Dukes County Superior Court Associate Justice Richard J. Chin handed the Martha’s Vineyard Airport Commission (MVAC) a significant victory in its legal battle with the Dukes County Commission over control of the county-owned Martha’s Vineyard Airport and its operations.

In an 11-page decision dated August 7, Judge Chin ruled in favor of the airport commission on every point in its request for a preliminary injunction against the County Commission, county treasurer Noreen Mavro Flanders, and county manager Martina Thornton based on his view that the airport commission has shown “a likelihood of success on the merits.”

In issuing his preliminary injunction, 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.

In a separate three-page decision, Judge Chin denied an airport commission request to dismiss the county commission’s counterclaim, filed May 30, which mirrored the airport claim, and rests on the county argument that the airport is under the jurisdiction of Dukes County, as a subdivision and department of the county, according to Massachusetts law.

That decision would allow the case to proceed toward a trial, unless the two sides settle the issues out of court.

“In this case, the MVAC does not argue that the counterclaims should be dismissed because the facts are insufficiently pled,” Judge Chin wrote in his August 7 ruling. “Instead the MVAC argues for their dismissal on their merits and asserts its own position is correct. This is better decided when both parties have fully briefed and argued the substantive issues.”

However, there is little in the judge’s decision that would indicate a ruling in favor of the county. Judge Chin said that the county charter “does not supersede the narrowly tailored airport act even though it was enacted afterwards.”

The latest battle in the lengthy history of county efforts to exercise control over the county-owned airport began with a13-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.

In his decision, Judge Chin said the standard for issuing a preliminary injunction when a government brings suit to enforce a state law has two parts. First, the judge said he had to decide whether there is a likelihood of success on the merits of the airport commission’s claims against the county commission. Second, he had to determine whether the preliminary injunction promotes the public interest, or at least does not harm the public.

Familiar route

The Dukes County commissioners met in executive session Tuesday to discuss the judge’s decision. Reached Wednesday by phone, county commission chairman Leonard Jason, Jr. declined to comment on the discussion or indicate if the county commission intends to continue its counterclaim.

In earlier comments Monday, Mr. Jason said the ruling was a split decision.

“It looks like the judge split the baby in half,” Mr. Jason said in a phone conversation Monday. “The judge did two things. He said I want to hear the case, because they [the airport commission] asked to dismiss it. And he said the county manager can’t sit on the airport commission, and Noreen has to pay the bills, until I hear the case.”

Attorney Robert Troy of the Sandwich law firm Troy Wall Associates represented county officials at the July 29 hearing before Judge Chin.

“Judge Chin is one of the most respected judges in the Commonwealth and the County appreciates that he recognized that its defense of county government asserted in its counterclaims is entitled to go forward and be adjudicated,” Mr. Troy wrote in a statement emailed to the Times Friday. “The Dukes County Airport is the only county airport in the Commonwealth and as such has unique status under Massachusetts law. I intend to confer with county officials about the most effective steps that can be taken to defend the county government structure that was approved by the Legislature and the voters of Dukes County.”

Attorney David Mackey of the Cambridge law firm Anderson & Kreiger, who represents the airport commission, said the judge affirmed the airport commission’s position.

“We’re pleased by the judge’s preliminary ruling that recognizes, once again, the airport commission, not the county, has responsibility for the care and management of the airport,” he said.

“We’ve been down this road before,” Dukes County commissioner John Alley of West Tisbury told The Times Friday afternoon, in reference to a 2005 decision by Superior Court Judge Robert H. Bohn that upheld the statutory authority of  the airport commission. Mr. Alley had served on the airport commission for more than three decades until his fellow county commissioners, angered over airport commission decisions, in April refused to reappoint him to the airport commission.

Mr. Alley said he expects to urge his colleagues on the county commission to end the legal action. “It’s almost like, what part of no don’t you understand,” Mr. Alley said.

Ms. Mavro Flanders declined comment until she consults with her attorney. Ms. Thornton was on vacation and unavailable for comment.

Public interest

In issuing his injunction, Judge Chin reviewed the foundation of the complaint and cited legal decisions and documents that have been cited repeatedly in the long-running feud between the county commissioners and their appointed airport commission over control of the airport.

These included the grant assurances, or contract agreements, that state aviation officials obliged the county commissioners to sign in an earlier legal battle. The assurances, signed most recently by the county commissioners and the county manager in 2012, defined the conditions for the airport and business park to receive millions of dollars in state and federal funds, andit  wrung an agreement from the county commissioners “not to take any action to reorganize the airport commission, or in any way to interfere with the autonomy and authority of the airport commission….”

In his decision, Judge Chin cited the grant assurances in underpinning his decision to grant a preliminary injunction in the public interest. “The county’s alleged violation of the grant assurances may also cause the MVAC to violate the grant assurances, putting its funding at risk and interfering with its ability to operate the airport safely and efficiently to the detriment of the public,” he wrote.

Judge Chin also cited Judge Bohn’s 2005 decision, known as the Weibrecht decision, in which Judge Bohn ruled that the legislation establishing the airport commission trumped the county charter, and the airport commission alone is responsible for the custody, control, and management of the airport, and is empowered to expend its own funds to pay salaries. That protracted legal battle began when then county manager Carol Borer, with the support of the county commissioners, refused to pay airport manager William Weibrecht and assistant manager, now manager, Sean Flynn, the full salaries agreed to in a contract signed by the airport commission. That legal decision cost taxpayers $525,000.

In a legal opinion sought by county commissioners in 2012, the county’s own attorney affirmed that the county commission has no authority over airport operations.

“The county commission argues that the Weibrecht decision is narrow in scope, addressing only the power to set salaries for the airport manager and assistant manager, and is consequently irrelevant to the issues before the court in this case,” Judge Chin wrote. “The court disagrees.”

With regard to the county charter, Judge Chin said, “The court agrees with Judge Bohn that the [county] charter, a broad enabling statute, does not supersede the narrowly tailored Airport Act even though it was enacted afterwards.”

Treasurer is grounded

The dispute with Ms. Mavro Flanders, the elected Dukes County treasurer, began when Ms. Mavro Flanders refused to pay redacted legal bills that the airport commission submitted from law firms it had retained. The airport commission redacted what it contends are details protected by attorney-client privilege, or health privacy laws.

“The County Treasurer has acknowledged that, in many cases, and apparently without notice to and without the consent of the MVAC (Martha’s Vineyard Airport Commission), she has communicated directly with staff at the law offices of the MVAC’s attorneys to obtain unredacted copies of the invoices,” stated the airport complaint. “In sum, the County Treasurer believes that she has the legal authority to refuse to pay invoices which have already been duly approved by the MVAC, to obtain privileged and confidential communications between the MVAC and its attorneys without notice to and without the consent of the MVAC, and to release those privileged and confidential communications to the public at large.”

Judge Chin rejected the county treasurer’s claim that invoices approved by the airport commission for payment were lacking detail required by state law.

“Where the MVAC is not using any of the county’s funds to pay its invoices for legal services, it may expend its funds without the county’s oversight,” Judge Chin wrote. The invoices “are not so deficient in detail that they fail on their face to comply with the statute.”

The judge said the law does not require release of confidential communications.

“The county treasurer has no authority to decide otherwise in this case, especially since the county treasurer has no decision-making authority with respect to the invoices.”