County Dispute Comes to Trial

Judge Robert Bohn Jr. Hears Case of Airport Commission Against Dukes County Commission; Salaries, Control at Issue

By JAMES KINSELLA
Gazette Senior Writer

A complicated contract dispute that pits the Dukes County Commission against its own airport commission was the subject of a three-day trial in Dukes County Superior Court this week. The outcome of the case will ultimately determine who controls salaries and personnel at the Martha's Vineyard Airport - the elected county commission or the appointed airport commission.

Airport manager William Weibrecht and assistant airport manager Sean Flynn launched the case in December 2002, after the county refused to pay them the salaries they had negotiated with the airport commission. Instead, the county insisted on paying the managers lower salaries according to a wage scale governing county employees.

Attorneys representing the county commission, the airport commission and the airport managers will submit closing arguments in writing by March 25.

The Hon. Robert H. Bohn Jr. presided over the jury-waived session, which was structured more as an extended summary judgment proceeding than a formal trial. In summary judgment the facts are undisputed and the case is decided solely on questions of law.

Judge Bohn said the core of the case can be found in the meaning of three words in the last line of state law Chapter 90, Section 51e: "subject to appropriation." The full line reads: "Subject to appropriation, said commission shall appoint such other officers and employees as its work may require and shall fix the salaries of all officers and employees appointed or employed by it."

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Chapter 90 principally is designed to give airport commissions independent control of the airports they manage. But the words "subject to appropriation" may bring in control by an appropriating authority, such as the county financial advisory board. On the other hand, the airport in recent years has operated using its own revenue rather than tapping tax money from the county's towns.

On Tuesday morning, after hearing arguments on a summary judgment motion, Judge Bohn frankly questioned the need to go forward with the case. He ordered a brief recess and recommended that the parties find an imaginative way to resolve the matter.

But with figurative heels dug in around the courtroom, the trial went ahead.

Mr. Weibrecht and Mr. Flynn want the annual salaries they say they negotiated in good faith with their supervisors, the airport commissioners. According to those agreements, Mr. Weibrecht would be paid about $86,000 and Mr. Flynn about $67,000. Instead, the county is paying them according to its wage scale, with Mr. Weibrecht receiving $74,000 and Mr. Flynn $60,000.

The airport commission wants the flexibility, which it says exists in its charge to manage the airport, to offer salaries that will attract and retain qualified managers.

County commissioners consider the airport managers county employees who receive the same health and retirement benefits as other county employees. They do not want the airport commissioners, whom they appoint, to have the ultimate say over how the managers are paid.

Attorneys Michael Gilman and Jay Sullivan, representing the county, emphasized state law Chapters 34A and 35, which lay out how counties should be governed.

Attorney Harry C. Beach, representing the airport managers, and Kevin D. Batt, representing the airport commission, stressed the independence of airport commissions found in state law Chapter 90, as well as sections in federal and state grants emphasizing the Vineyard commission's independence.

Former airport commission chairman Mark Villa, former county and airport commissioner Tim Carroll and county treasurer Noreen Mavro Flanders were among those called to the witness stand.

No one disputed the fact that the Vineyard airport in the mid-1990s was in disarray, both physically and financially.

Mr. Villa testified the terminal was literally falling down, that an accounting system was lacking at the airport, and that the airport was undercollecting revenues.

He said the airport commission set out to improve airport operations, despite what he characterized as a lack of cooperation and even a certain degree of interference from county management.

The commission determined that the airport needed better management, and needed to pay salaries that would attract better managers, Mr. Villa said. He testified that the commission began to set airport revenue aside to fund the higher salaries, and brought in Mr. Weibrecht and Mr. Flynn in 2000.

But the county commissioners, county management and the county financial advisory board refused to go along with the higher salaries, leading the airport managers to file a lawsuit in December 2002.

Under cross-examination, Mr. Villa said he believes the county commissioners have the right to appoint and to fire the airport commissioners, but not to tell them how to run the airport - which he said would include setting the salaries of its managers.

Asked why the managers received the same health and retirement benefits as other county employees, Mr. Villa said the airport decided to make use of the existing government benefits structure. While the airport was a public facility, he testified, the managers were not necessarily public employees.

Mr. Carroll, now executive secretary for the town of Chilmark, testified that the airport is owned by the county, funded through sources that include leases and airline passenger fees, and managed by the airport commission.

Ms. Flanders, under cross-examination by Mr. Beach, testified that laws and legal rules outside the county charter could restrict the actions she takes on behalf of the county. Ms. Flanders said she had followed requests from the Federal Aviation Administration not to use Vineyard airport funds for other county activities. But she also testified that she and her assistant are the only people authorized to cut checks from the airport expense account.

The proceedings, which have stretched on for more than two years, are more than an academic exercise. The county commissioners had spent just under $100,000 on the case before the trial began this week. Through mid-September 2003, the airport commission had spent $33,000 from its own legal budget on the battle. No further information was available yesterday on how much money the airport commission has spent since then.