County commissioners reverse legal strategy, will defend against airport lawsuit

The Dukes County commissioners are headed back to court to fight a battle a judge previously said they are unlikely to win.

Dukes County commissioners will focus on addiction in the coming year. -Martha's Vineyard Times File Photo

Dukes County commissioners, defendants in a lawsuit brought by the Martha’s Vineyard Airport Commission, voted in executive session on Jan. 14 to actively defend the county’s position. The vote was a reversal of course for the county commissioners, who on Nov. 12, 2014, faced with a cutoff in funding, voted not to further defend against the lawsuit, the latest chapter in the contentious struggle between the county and its appointed commission over airport authority.

Newly elected county commission Chairman Leon Brathwaite of West Tisbury confirmed Tuesday that the county will be back in court next month.

“I can’t talk about a lot of this that happened, because it was dealt with in executive session,” Mr. Brathwaite said. “We’re not going to be suing anybody. Will the county defend itself? Yeah, we’ll probably defend ourselves.”

The county commission decision to move forward comes after several months of inaction, and a request by the county’s lawyer, Robert Troy of Troy Wall Associates in Bourne, to withdraw from the case because the county advisory board told commissioners it would not authorize any more funds for legal costs. The advisory board is made up of one selectman from each Island town, and has oversight authority over the county budget.

When asked how the county intended to pay for additional legal costs, Mr. Brathwaite said, “That will be an issue that we’ll have to deal with when the time comes.”

County treasurer Noreen Mavro Flanders and county manager Martina Thornton are also named as defendants.

The airport commission lawsuit, filed May 5, 2014, asked the Dukes County Superior Court to prevent the county manager from sitting as an ex-officio member of the appointed airport commission; prevent Ms. Mavro Flanders from refusing to pay invoices approved by the airport, and from releasing to the public privileged communications; and prevent the county commission from expanding the airport commission from seven to nine members.

In response, the county filed a counterclaim against the airport commission on May 27, 2014, in which it asked the court to declare the airport commission is under the jurisdiction of Dukes County and that the airport commission is a subdivision and department of Dukes County.

Mr. Brathwaite said he was unaware of the counterclaim, and could not comment on whether the county will vigorously pursue that legal avenue as well.

In a ruling dated August 7, 2014, and another ruling dated Nov. 5, 2014, Dukes County Superior Court Associate Justice Richard J. Chin issued preliminary injunctions against the county on all five major points in the airport commission lawsuit, and said that the county is “unlikely to prevail in the lawsuit.”

Legal developments  

The most recent legal volley in the county-airport standoff came on Dec. 10, when the airport commission served the county commission with a motion for summary judgement, in effect asking Judge Chin to rule in favor of the airport commission before trial, ending the case.

On Tuesday, Jan. 13, attorney David Mackey of the Cambridge firm Anderson & Kreiger, who represents the airport commission, and Mr. Troy appeared before Judge Chin, sitting in Brockton Superior Court.

Mr. Troy asked to withdraw from the case, noting the county advisory board’s unwillingness to continue funding the lawsuit. “On Nov. 13, the county manager notified Robert S. Troy that the Dukes County defendants could not continue defense of the case without additional funds from the Dukes County advisory board,” Mr. Troy said in his motion to withdraw.

Following the hearing, Judge Chin denied Mr. Troy’s motion to withdraw from the case.

Judge Chin gave Mr. Troy until Feb. 9 to answer the motion for summary judgement, and scheduled a hearing on that motion for Feb. 12 in Brockton.

Mr. Troy, the county’s attorney, did not respond to a request for comment on the latest developments. Mr. Mackey declined to comment to The Times.

CAB unaware

In a joint meeting with the county commission on Nov. 24, the county advisory board urged the county commission to quickly negotiate a settlement. They said they would not authorize any more funds for legal costs.

At that meeting, Ms. Thornton said the $16,500 appropriated for legal costs was depleted.

Art Smadbeck, acting chairman of the county advisory board, said Tuesday in a phone interview he was not informed of the county’s decision to reverse its legal strategy.

“The county hasn’t told me anything about it, and the county advisory board hasn’t been asked to authorize any expenditures,” Mr. Smadbeck said.

Open-meeting complaint

In a separate matter, the Massachusetts Attorney General Division of Open Government ruled on Jan. 15 that the county commissioners did not violate the open-meeting law when they met in executive session on August 19 and August 27. In those meetings, the commissioners cited an exception to the open-meeting requirement which allows them to discuss litigation.

The attorney general’s ruling came after county commissioner John Alley of West Tisbury filed a complaint charging the commission’s closed-door discussions about expanding the size of the airport commission from seven to nine members violated the law, and that the matter should have been discussed in open session.

“The discussion was not about the litigation but about how to change the structure of the Martha’s Vineyard Airport Commission (MVAC) in order to exercise control over it,” Mr. Alley wrote in his complaint. “I believe the violation was intentional and preplanned.”

In an answer to Mr. Alley’s complaints, attorney Michael Goldsmith of the Edgartown firm Reynolds, Rappaport, Kaplan, and Hackney, wrote that all discussions were part of the county’s legal strategy.

“The commission raised a strategic concern that the county had limited financial means to continue with the litigation and, therefore, needed to look at alternative strategies to resolve the dispute,” Mr. Goldsmith wrote.

In his ruling, Assistant Attorney General Jonathan Selarsic ruled in favor of the county.

“Although the commission’s discussions included proposing legislation and changing the composition of the airport commission’s membership, these discussions were part of a discussion about resolving the pending litigation,” Mr. Selarsic wrote in his ruling.

The county paid $3,000 to its attorney, Mr. Goldsmith, for his work researching and responding to Mr. Alley’s open-meeting complaint.

At its Sept. 24 meeting, the county voted to expand the airport commission, and appointed two new members. The Dukes County Superior Court issued a preliminary injunction on Nov. 5, preventing the county’s expansion of the airport commission.

Open-records violation

Requests for public records related to the open-meeting complaint were met with rejections and delays by county manager Martina Thornton.

On Sept. 5, 2014, The Times requested a copy of Mr. Alley’s open-meeting complaint, and minutes of relevant minutes of the executive sessions.

On Sept. 13, Ms. Thornton responded, saying she would not provide the records. In an email statement Tuesday, she said she was advised by counsel not to release any documents.

The Times appealed that rejection to the Massachusetts Secretary of State Public Records Division. On Dec. 16, Supervisor of Records Shawn Williams ruled that the county did violate the open-records law, and ordered Ms. Thornton to provide the requested records within 10 days of the order.

On Jan. 9, 2015, Ms. Thornton emailed to The Times the minutes of the August 19 and August 27 executive sessions that were the subject of the complaint. According to the attorney general, those minutes were approved and released to the public by the county commission on Dec. 3, more than a month earlier, but were not forwarded to The Times as requested. County commissioners have still not released minutes of the Sept. 24 executive session where the open-meeting complaint was discussed.

On Jan. 16, two months and 11 days after the public records request, Ms. Thornton’s assistant faxed to The Times, the open-meeting complaint filed by Mr. Alley. Printed prominently on the first page of the complaint form, under the heading “Disclosure of your complaint,” is a declaration that the complaint is a public record.

Ms. Thornton wrote in the email statement that because of vacation time and a personal issue, she did not provide minutes requested until Jan. 9. She said she did not provide the original open-meeting complaint because she assumed The Times got the public record somewhere else.