State aviation officials caution county as airport commission returns to court

The Martha's Vineyard Airport commission is responsible for the care and custody of the airport. — File photo by Nelson Sigelman

The Martha’s Vineyard airport commission returned to the Dukes County courthouse last Thursday and asked a superior court judge to block the Dukes County commission from expanding the size of its appointed airport commission from seven to nine members, on the basis that it is a direct violation of state and federal funding-grant assurances that prohibit county interference in airport affairs.

The latest battle in the long-running war between the county and airport commissions also attracted the attention of the Massachusetts Division of Transportation (MassDOT) Aeronautics Division, which expressed uneasiness with the expansion and demanded an immediate explanation from the county commission chairman of the rationale behind the vote, and the benefits of the airport commission, which by state statute is responsible for the care and custody of the county-owned airport, expanding from seven to nine members.

Last Wednesday 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.

On Sept. 17, the commissioners appointed Beth Toomey, retired West Tisbury police chief and briefly an interim county commissioner, to fill the unexpired three-year term of Mr. Bettencourt, who resigned in August.

Since April the county commissioners have appointed five new members, who would constitute a majority if the commission is allowed to expand to nine members.

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.

No problem

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.

Ms. Thornton cited as an example the Norwood Airport Commission, which expanded earlier this year.

“The grant assurances that Norwood has have the same things that our grant assurances have,” Ms. Thornton said. “Norwood signed them in 2013, and they expanded their commission from five to nine this spring. There hasn’t been any controversy. Being the same, I don’t think we should have a problem. And I also was on the phone with the counsel from MassDOT, and I asked him the question if expanding the board would trigger us violating the grant assurances. They told me as long as we stay within the law, which is 3 to 11, and as long as the new members adhere to the other grant-assurance provisions, that there should not be an issue.”

County commission chairman Leonard Jason, Jr., of Chilmark, a veteran county commissioner who has been in the thick of the battle, had his own view. “I’m sure they’ll sue us again,” Mr. Jason said.

Clear violation charged

On Thursday airport commission attorney David Mackey filed a motion in Dukes County Superior Court, and asked to amend the airport commission’s existing lawsuit against the county. If the court allows that motion, the airport commission will ask for a temporary restraining order to prevent the county move to expand the commission.

“This action constitutes yet another direct violation of the grant assurances, which is a legally binding contractual commitment to the [county commission] ‘not to take any action to reorganize’ the MVAC (Martha’s Vineyard Airport Commission) or ‘in any way to interfere with the autonomy and authority’ of the MVAC,” Mr. Mackey wrote in the motion filed Sept. 25.

Mr. Mackey asked the court to “declare that the county commission lacks the legal authority to increase the size of the MVAC from seven to nine members, and to appoint two new members, or otherwise to interfere with the autonomy and authority of the MVAC, without the express written approval of the Aeronautics Division of the Massachusetts Department of Transportation, and issue an injunction prohibiting the county commission from so doing.”

Motives questioned

In 1997, Stephen R. Muench, executive director of the Mass Aeronautics Commission (MAC) sought the signatures of the county commissioners on a set of grant assurances that freed up millions of dollars in state and federal funding for a new terminal, and which prohibited interference by the county manager or county in airport affairs. The commissioners also signed in their capacity as self-appointed airport commissioners.

Last week, one day after the county commission vote, in a letter dated Sept. 25,

Christopher Willenborg, MassDOT Aeronautics Division administrator, asked Mr. Jason for an explanation of the vote.

“Given the litigious history between the county and the airport commission, it is incumbent upon the Aeronautics Division to ensure that this sudden increase in membership is not a reorganization of the airport commission, nor is it an attempt to interfere with the autonomy and authority of the airport commission, as referred to in the Martha’s Vineyard Airport Grant Assurances,” Mr. Willenborg said. “Please be advised that any such reorganization or interference would require ‘the express written approval of the Aeronautics Division. Accordingly, please immediately provide me, in writing, with your rationale for the increase in membership, the qualifications of the two appointees, and how the appointments benefit or improve the functioning of the airport commission beyond that of what was a seven-member board.”

No choice

Airport commission chairman Constance Teixeira of Tisbury, in a phone conversation Friday morning, said the commission needed to take immediate legal action.

“The airport has a responsibility to maintain the airport without interference,” Ms. Teixeira said. “We have no choice.”

A Superior Court judge is expected to hear arguments on Oct. 7.

Ms. Teixeira canceled the airport commission’s regular monthly meeting, scheduled for Sept. 26. She said the airport commission would not have been able to get a quorum, because of the illness of several commissioners.

The airport commission filed its original lawsuit on May 5. This is the second time the airport commission has amended its lawsuit in response to the actions of the county commission. The county commission filed a counterclaim to the lawsuit, asking the court to declare the airport is under the jurisdiction of Dukes County, as a subdivision and department of the county, according to Massachusetts law.

The court has already issued a preliminary injunction against the county commission on all other issues in the original lawsuit. On August 7, Associate Justice Richard Chin ruled for 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.” 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.