Court Rules County Must Pay Triple Damages, Attorney Fees

By JAMES KINSELLA
Gazette Senior Writer

Dealing a potentially crushing blow to Dukes County government, a superior court judge has ruled that the Martha's Vineyard airport commission is by law vested with independent authority to hire and set the salaries of its airport managers.

If the decision by the Hon. Robert H. Bohn Jr. is allowed to stand, the county faces monetary damages that could reach $500,000, including attorney's fees for the plaintiffs in the case and triple damages stemming from breach of contract on unpaid salaries.

Judge Bohn ruled that the Dukes County commission was wrong when it refused to pay former airport manager William J. Weibrecht and then-assistant airport manager Sean C. Flynn salaries at levels that had been negotiated with the airport commission.

"[This] issue can be reduced to a single question: Who has the power, the airport commissioners or the county commissioners, to hire and set the salaries of the airport manager and the assistant airport manager?" Judge Bohn wrote in the 30-page decision issued July 14. "[T]his court concludes that the . . . county defendants have breached the plaintiffs employment agreements by refusing to pay the full amount of the salary fixed by the airport commission," he also wrote.

The case is complicated because it involves three parties. In December 2002, Mr. Weibrecht and Mr. Flynn sued the airport commission, which in turn sued the county commission. Judge Bohn heard verbal arguments in the case in February.

The case is about salaries and also about who controls the airport - the airport commission, or its appointing authority, the seven-member elected county commission.

Judge Bohn ruled that the airport commission has the power to set salaries, that the county must pay the salaries and that it has no authority to interfere with the payment. He found that employment contracts signed by Mr. Weibrecht and Mr. Flynn were valid, and that Mr. Weibrecht is now owed $255,678, while Mr. Flynn is owed $181,375.

Mr. Weibrecht resigned his position in May to take a job in the private sector. Mr. Flynn is the acting airport manager. The airport commission is about to launch a search for a permanent manager.

"Obviously, both Bill and I are happy with the decision," Mr. Flynn said yesterday. "We knew it would come out in our favor. We didn't want to go down this path, but felt we were forced to."

Former airport commission chairman Marc Villa, who presided over the commission at the time the salary contracts were signed, also welcomed the decision.

"I'm very pleased that the judge clarified the situation and ruled in favor of the plaintiffs, absolutely," he said yesterday.

"I think it's very unfortunate that it had to go to litigation to do what clearly was the right thing to do for the plaintiffs," he said. "I think it's also unfortunate it had to go to litigation to educate the county commissioners on how this works. It's difficult for them to recognize people who can do some things. They can't seem to do anything."

County commission chairman John Alley also called the litigation unfortunate. He said three separate attempts were made to arrange a settlement, with no success.

"No one likes to see lawsuits drag out," Mr. Alley said. "No one likes to lose lawsuits."

Mr. Alley did not downplay the financial implications for county government from the ruling, and said it is important to get the county advisory board involved.

County manager E. Winn Davis said county attorneys will file a motion to amend Judge Bohn's decision, in light of a recent ruling by the Massachusetts Supreme Judicial Court which found that treble damages under the relevant law are not mandatory, as Judge Bohn found in his ruling.

If the judge decides to reverse triple damages, which he is not required to do, it could save the county more than $291,000. Mr. Davis said he has the power as county manager to have the attorneys file the motion without a formal board vote.

Mr. Davis said he received a copy of Judge Bohn's decision around the middle of last week, and that the county commissioners all are aware of the decision, although he said they have not all seen it.

Mr. Davis said the county commission and the county advisory board will meet, both together and separately, this week to discuss a possible appeal.

As of June 3 the county has spent $130,000 on the case and the airport commission had spent $180,000. Legal expenses are paid by county taxpayers.

The ruling has the potential to place a serious financial hardship on the county, whose proposed budget for the current fiscal year totals $4.45 million. More than half of the budget covers airport expenditures. County officials recently spent a couple of weeks working to close an $11,000 deficit on the non-airport side of the proposed budget. The budget has yet to be approved by the advisory board, which has the final say before the budget goes to the state.

Mr. Davis estimates that the cost of the lawsuit, aside from the legal bills that it already has paid, could reach $500,000, including triple damages, attorney's fees and interest on the damages. The airport commission has already set aside the portion of the managers' salaries that it authorized but the county refused to pay.

If the ruling is allowed to stand the county could be forced to ask voters to approve a Proposition 2 1/2 override in order to pay damages.

At the center of the ruling is a state law known as Chapter 90, which concerns the operation of public airports in Massachusetts. Judge Bohn found that Chapter 90 trumps other state laws when it comes to airport management, including the law that authorized the creation of the Martha's Vineyard Airport and the law on which the county charter is based.

Even if the county commission had the power under state law to constrain the payment of airport manager salaries, Judge Bohn wrote, they gave up control when they signed grant assurances with the Massachusetts Aeronautical Commission in return for receiving government funds to improve the airport.

County attorneys had argued that because Mr. Weibrecht and Mr. Flynn participated in the county retirement system and health and life insurance plans, they were effectively county employees and under the control of the county commissioners.

Judge Bohn took a different view. "Reliance on the county budgetary process for administrative convenience is not inconsistent with either Chapter 90 or the grant assurances, and does not amount to a concession that the county has the authority to hire the airport's manager and assistant manager and to set their salaries," he wrote.

Mr. Weibrecht and Mr. Flynn moved to recover triple damages and attorney's fees under the state Wage Act.

Judge Bohn found that because the county, rather than the airport commission, detained the funds, it is appropriate to hold the county alone responsible for multiple damages, costs and attorney's fees under the Wage Act.

In the ruling he invites attorneys for Mr. Weibrecht and Mr. Flynn to submit affidavits detailing their legal expenses and lost wages.

The case traces its roots to 1999, when the airport commission reorganized and decided to employ professional airport managers.

The commission hired Mr. Weibrecht in February 2000, agreeing to pay him an annual salary of $65,000, and Mr. Flynn in June 2000, agreeing to pay him an annual salary of $51,000. In both cases, the airport commission agreed to review each manager's performance after a year and adjust the salaries based on individual performance and also the financial performance of the airport.

The county refused to sign off on salaries at those levels.

In March 2002, the airport commission agreed to pay Mr. Weibrecht an annual salary of $86,000 for the two-year period ending June 30, 2003, plus a lump sum payment of $10,718 for past performance. The commission also agreed to pay Mr. Flynn an annual salary of $67,000 for the two-year period ending June 30, 2003, plus a lump sum payment of $2,792 for past performance.

The county again refused to pay the managers at the salary levels approved by the airport commission. Instead, the county paid Mr. Weibrecht at an annual rate of $74,000 and Mr. Flynn at an annual rate of $60,000.

Last month, with the judge's decision still pending, the airport commission and the county commissioners agreed on a plan designed to address the turf battle over managers. Under the plan, the airport commission would have the power to hire the managers, but would pay them according to the county wage plan.