Superior Court justice rules for airport in legal battle with county

For the second time in 10 years, a Superior Court justice said unequivocally that the county may not meddle in airport affairs.

The Martha's Vineyard Airport commission voted in unanimous approval of the airport master plan, a layout of the next 20 years. — Photo by Nelson Sigelman

In a decision handed down Monday in Dukes County Superior Court, Justice Cornelius J. Moriarty II found for the Martha’s Vineyard Airport Commission on all points in the latest legal battle between the Dukes County Commission and its appointed airport commission.

The ruling was handed down as a summary judgement, meaning both sides agreed on the facts, and left it to the judge to decide based on the law, with no need to go to a jury trial.

The ruling was unequivocal. The county commissioners, County Manager Martina Thornton, and County Treasurer Noreen Mavro Flanders may not interfere in airport affairs.

In his ruling, Judge Moriarty said the county 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; the county treasurer is enjoined from refusing to pay invoices approved for payment by the airport commission; the county treasurer is enjoined from obtaining privileged or confidential communications between the airport commission and its attorneys without the consent of the airport commission; the county treasurer is enjoined from releasing privileged or confidential communications between the airport commission and its attorneys to the public; the county is enjoined from expanding or reducing the size of the airport commission from seven members without the express written approval of the state Aeronautics Division; and the county “is enjoined from in any way interfering with the autonomy or the authority of the airport commission without the express written approval of the Aeronautics Division.”

In his 18-page decision, dated June 8, Justice Moriarty continually returned to the legal foundations that underpinned previous court rulings in favor of the airport commission — namely, that the Airport Act that established the authority of the airport commission supersedes the County Charter, and that the grant assurances which the county commissioners signed, and which prohibited their involvement in airport affairs, mean something.

The grant assurances, or contract agreements, that state aviation officials obliged the county commissioners to sign in an earlier legal battle, and most recently in 2012, defined the conditions for the airport and business park to receive millions of dollars in state and federal funds, and 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….”

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

Judge Moriarty wrote, “This case stands as another chapter in the long-running power struggle between the Martha’s Vineyard Airport Commission and the County Commission for Duke County over the control of the Martha’s Vineyard Airport.”

Hare and hound

The case began with a lawsuit the airport commission filed April 24, 2014, in response to a series of county actions that culminated with a county vote to appoint the county manager to the airport commission as a nonvoting member.

Justice Moriarty reviewed the history pertinent to the lawsuit, various filings by both sides, and the respective legal arguments.

With regard to whether the Airport Act or the County Charter prevailed, he said, “When in conflict, the provisions of the Charter, a broad enabling statute, must yield to the Airport Act, a narrowly tailored statute, even though the Charter was enacted at a later date.”

Justice Moriarty said, “The county’s position with regard to the grant assurances is more difficult to contemplate. On one hand, the county claims that the provisions of the Charter trump the Airport Act. Yet, on the other hand it agrees that the grant assurances are a binding contract and it committed to the grant assurances being honored … It appears that the County seeks to run with the hare and hunt with the hounds. It may not do so. Here the county has forfeited its right to manage the airport through the execution of the grant assurances and the acceptance of state and federal funds.”

See ‘Webster’s’

One by one, Justice Moriarty returned to the grant assurances.

The Airport Act made no provisions for an ex-officio, nonvoting member, he said. In addition, the appointment of the county manager “runs afoul of the promises made by the county” not to reorganize the airport commission.

The treasurer’s refusal to pay airport invoices also violated the grant assurances “which require the county to take no steps which in any way interfere with the autonomy, i.e., independence, see Webster’s Third New International Dictionary.”

Currently, the airport pays the elected county treasurer approximately $100,000 annually for accounting responsibility, under a separate contract that allows airport funds to flow into county coffers.

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

In many cases, and without the consent of the airport commission, she communicated directly with staff at the law offices of the airport commission’s attorneys to obtain unredacted copies of the invoices, and without the consent of the airport commission, released copies to the public at large, according to court documents.

Justice Moriarty said the treasurer’s actions violated the grant assurances and “trample on the attorney-client privilege.”

Justice Moriarty’s findings echoed, in some cases verbatim, earlier findings

by Dukes County Superior Court Associate Justice Richard J. Chin in his preliminary rulings on the case.

Judge Chin also cited Judge Robert 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 that 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.

Looking forward

Only one of the original members of the airport commission that backed the lawsuit, Norman Perry, remains on the commission. The rest either resigned or failed to win reappointment.

Newly appointed airport commission member, Chairman Myron Garfinkel, said he is very happy that the lawsuit is concluded.

“I look forward to building a solid relationship with the county as well as all the other Island institutions as we move forward,” Mr. Garfinkel, a pilot and businessman, told The Times in a telephone call Wednesday.

Mr. Garfinkel said he hoped to forge a more productive relationship with the county and avoid any future lawsuits. Asked how he would do that, Mr. Garfinkel said he would try to foster good communication.

“I never really had any doubt how this would wind up,” said newly appointed airport commission Vice Chairman Bob Rosenbaum. “It is my understanding that granting summary judgement is not very common if there is any possibility of issues back and forth. The fact that this was granted is clearly another message that there were just no disputed facts, and there was no chance of any arguments that would counter anything in the airport commission’s claims.”

Asked what the message is in this decision, Mr. Rosenbaum said yet again, “It has been made clear that the airport is an independent organization, totally separate from the county. It may reside in the county, but it has its own funds, it has its own administration, and really the only thing that the county has in terms of any kind of influence over the airport is in appointing airport commissioners.”

“We’re disappointed,” said County Commission Chairman Leon Brathwaite, “but the judge has spoken, and that’s it.”

Asked about an appeal, Mr. Brathwaite said the commissioners would discuss it, but he did not see what there was to appeal.

Mr. Brathwaite said the county, at least while he has been on the commission, never wanted to interfere in airport affairs. Reminded that the county’s actions were in fact judged to be interference, and that was how the judge saw it, Mr. Brathwaite said he had not had an opportunity to speak with the county lawyer, and he was troubled that The Times had acquired the judge’s decision before he did.

Asked if he was also troubled by the expenditure of taxpayer funds in a lawsuit in which Judge Chin said the county was unlikely to prevail, Mr. Brathwaite said that if the airport is being managed well, “the issues that are before us should not be there.”

Asked if there were any lessons learned in this latest lawsuit, Mr. Brathwaite said, “I think the only lesson learned is that the grant assurances supersede the County Charter.”

For his part, longtime county commissioner and former airport commissioner John Alley was elated.

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.

“I’ve read the decision, and I find it a complete rejection of all the county arguments,” Mr. Alley said. “And as the lone county commissioner who voted against the lawsuits — another example of a waste of taxpayer money — I was retaliated against my fellow county commissioners for doing my job as a sworn airport commissioner to protect the airport from county interference, and the same happened to Connie [Teixiera] and JIm [Coyne].”

Mr. Alley said he considers himself “of average intelligence,” and he understood what the grant assurances meant and what they said, even if his fellow county commissioners did not.