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County Commission Minutes 04/24/02

A regular meeting of the County of Dukes County Commissioners was held on Wednesday, April 24, 2002 at 7:30 p.m. in the Conference Room of the County Administration Building, notice of such meeting having been posted as required by law.

Commissioners Present:  Leslie H. Leland, Chairman
                                Daniel Flynn    
                                Robert Sawyer
                                Leonard Jason, Jr.
        E. B. Collins
                                John Alley (7:45PM)
                                Roger Wey
Also Present:           Carol Borer, County Manager     
                                Marsha Smolev, Executive Assistant      
                                Sheriff McCormack
                               Bill Mill, Airport Commission
                                Tim Carroll, Airport Commission
                                Marc Villa, Airport Commission Chair
Chairman Leland called the meeting to order at 7:35 p.m.

        Commissioner Collins Moved that the Minutes of April 10, 2002
be Accepted as written. Commissioner Sawyer Seconded the Motion. The Minutes were Approved with Commissioner Wey Abstaining.

Chairman Leland introduced Airport Commissioners who had requested a meeting with the County Commissioners. Chairman Leland asked Airport Commissioners Villa, Mill and Carroll if they had copies of the County Manager’s Memo dated 4/22/02 in which she addressed the conflict between the County and the Airport Commission centered on the Airport Manager’s and Assistant Airport Manager’s wages. They did.  The Chairman noted that the County’s Legal Counsel who handles employee matters said these two employees’ wages were governed by the County’s Classification and Compensation Plans. The proposed wages conflict with Employment Laws and the County Treasurer does not have the authorization to issue these checks.  Commissioner Flynn asked to be recognized.  The Chairman suggested that Commissioner Flynn had a conflict. Commissioner Flynn said he did not have a conflict and that the Chairman couldn’t raise a conflict.  Commissioner Flynn said he wanted to be heard about the letter that had to do with the right of contracts, and he was not talking about salaries for his son. Commissioner Flynn added that if the Chairman thought he was in conflict, he could write to the State Ethics Commission.  Commissioner Flynn asked for clarification on the Memo the County Manager wrote on April 22, 2002.

First, Commissioner Flynn asked, how did we arrive at the County’s position as is stated in paragraph 2?  Where was it ever voted?  The County Manager said she was referring to the two positions drafted by County Counsel, one of August, 2000 and the other December 27, 2000, included in the Commissioners’ packages. Commissioner Flynn asked if the County Manager believed she and County Counsel could establish policy for the County?  Mrs. Borer said the County Commissioners do, but we pay County Counsel for his opinion and this was his opinion.  Commissioner Flynn said before the County Manager established a position for the County, it should be voted on by the County Commissioners.  Mrs. Borer said she’d assumed that was done back in March of 2000 when the letter was reviewed.  Commissioner Flynn did not remember ever voting on a position of the County on this matter and he thought before discussing a position, the Commissioners should have a discussion as the policy makers of the County.  

Commissioner Jason believed the Commissioners had agreed on a position about the Airport Manager and Assistant Manager and the Compensation Plan.  Commissioner Sawyer agreed.  Commissioner Jason recalled at a meeting in the West Tisbury Senior Center that the Commissioners directed the County Manager to work it out with the Assistant Airport Manager and make sure his salary fit in the Classification Plan.  Commissioner Sawyer said Mrs. Borer was just relating position of Counsel.  Chairman Leland referred to documents that were signed by William Weibrecht and Sean Flynn putting them on Grade and Step Levels, clearly establishing that they were County Employees.  

Commissioner Flynn also questioned the words, “requested action.”  

Commissioner Flynn said he had not seen the contracts. Commissioner Flynn asked what the problem was with a contract and questioned the wording, “analysis.”  Mrs. Borer said the analysis were legal opinions previously given to the Commissioners. The letters were in the Commissioners’ packages.  Commissioner Flynn pressed what the analysis was.  Mrs. Borer said it was that these two employees were County employees paid by County check and they belong on the Compensation and Classification Plan.  Commissioner Jason said it’s more than that, and the County Manager was not on the stand.  He suggested Commissioner Flynn read the letter.  Commissioner Flynn questioned the terms, “conflict with County employment law.”  Mrs. Borer said it was the Personnel Bylaws.  Commissioner Flynn questioned who ruled that the County Treasurer wasn’t authorized to write a County paycheck as was stated in paragraph 3 of the Memo.  Mrs. Borer said if no money was appropriated, the Treasurer couldn’t cut the paycheck.  Commissioner Flynn asked if the Treasurer could cut an Airport Fund check, if she couldn’t cut a County of Dukes County check.  Commissioner Flynn asked whether the Airport money was in an Enterprise Fund, whether it was a fund or an account.  Mrs. Borer said she would get back to him on that.  Commissioner Jason asked what the difference was.  Commissioner Flynn said the Fund would be managed by the Airport under State Law if there was one, as the Auditors wanted.

Mrs. Borer reviewed the contents of the Commissioners’ packages.  Commissioner Flynn asked if the County Personnel Bylaws included all County employees and the County Manager.  Commissioner Jason said past County Manager Mike Johnson took it out.  Commissioner Flynn asked about Elected Public Officials and questioned if they’re paid for by the County, why they weren’t Employees of the County? He believed they were included.
Commissioner Sawyer noted that the two proposed contracts for Weibrecht and Flynn were executed, but not approved by the County.  Chairman Leland said that was where the issue fell.  Commissioner Jason thought George Balco was working on Classification of the two jobs.  Mrs. Borer said Airport Commissioner Balco met with the Personnel Board and April 16th gave to her his ranking of the position.  The Personnel Committee asked him to redraft the job descriptions so they could be ranked and placed.  His ranking was, Mrs. Borer believed from conversation with Mr. Balco, not based on job descriptions but on what the Airport Manager’s responsibilities were as he knew them.  Mrs. Borer said there was no revised Job Description ranked Grade 20.  Mrs. Borer said the Classification Scale could go higher than the Grade 15 we had presently and that MMA Consultants had been hired to look at our Compensation Plan.  
Commissioner Wey questioned the salary jumps for Airport Manager and Assistant Manager.

Commissioner Jason asked how we got to contracts, if on April 7th Airport Commissioner Balco was working on classifying the jobs on the Plans. Mrs. Borer said at the Advisory Board Meeting of 2/4/02, the possibilities of classification or contracts were discussed and the Airport Commission came back with contracts.  Mrs. Borer said there was a request to take it to the Advisory Board first, but the Advisory Board said no, take it to the County Commissioners.  

Commissioner Sawyer asked if the contracts were standard County contracts or custom made?  Airport Commission Chairman Marc Villa volunteered to explain.  Mr. Villa said that Mrs. Borer reported that the Advisory Board asked the Airport to come back to the County Commissioners.  Mr. Villa said the Chairman asked specifically that the Airport Commissioners inform the County Commissioners exactly what they were doing so they’d understand.  He said the Advisory Board did not ask that the County Commissioners to approve, vote, on it.  Mr. Villa added that the County Advisory Board was presented with a Supplemental Budget that included the wages, the increases for the Airport Manager and Assistant.  The Advisory Board questioned the amount, etc. and asked that the Airport Commission decide how they wanted to proceed.  The Airport Commission wanted contracts for the two employees and Mr. Villa reported that the Advisory Board agreed with the idea of contracts.

Mr. Villa said the fundamental issue was when the County Commission appoints an Airport Commissioner to the Airport Commission that implies a specific authority to do specific things by State statute.  One of those is for the Airport Commission to expend the funds that the Airport has, Mr. Villa continued.  Another was to negotiate wages for employees, to include the Manager and Assistant Manager. Mr. Villa stated that the Airport Commission, plus Attorney Dewitt from Palmer and Dodge, who was paid for by the FAA and MAC to review the memos and documents produced by Attorney Gilman, put considerable thought into how they would deal with the Airport Manager and Assistant Manager.  He said they worked diligently with publications and relied heavily on the American Association of Airport Executives, to establish a wage that was on par with a similar sized airport on a national basis.  Mr. Villa said the numbers they arrived at fit well with Nantucket, Hyannis and others.  The numbers were passed by the Mass Aeronautics Commission (MAC), which is the overseer of much of the Airport’s actions at the Airport Commission.  Mr. Villa maintained and said Attorney Dewitt maintained that the Airport Commission has the absolute authority to negotiate these wages.  Mr. Villa offered to answer questions and said he was there to bring information, but he wanted to get back to a supplemental meeting as soon as possible since the Airport could not wait until June.  

Mr. Villa said the Advisory Board said something contrary to what Mrs. Borer said, that the contracts were created because they have the specific authority to do it.  He continued that the actual contracts were drawn up by a labor lawyer from Palmer and Dodge.  The legal opinion of Palmer and Dodge supports the Airport Commission’s action.  Mr. Villa said they were not asking for money or anything, but that they were at the meeting to inform the Commissioners at this stage.  He added that they have the wages to do this.

The Airport has functioned, Mr. Villa continued, extraordinarily well, even through a crisis.  The Manager and Assistant Manager come from strong educated Airport backgrounds, particularly the Manager came very well experienced.  Mr. Villa commended the Manager and Assistant Manager and said the Airport continued to have surplus budgets.  He said the Airport does not ask the County for funds and the two employees were bringing in large sums of money because of the respect for them in MAC and FAA.  They’re professionals.

Commissioner Wey asked about the size of the raise.  Commissioner Jason noted that the $10,700 included brings the raise to about $30,000.  Mr. Villa said it was not a bonus, but the single lump sum payment was for around the clock work during the 911 crisis, and the retro pay held up by the budgetary problems. Mr. Villa explained that it was hard convincing the County Commissioners where money was going to come from to hire Mr. Weibrecht in the first place and they had to do it on a pro forma basis.  Mr. Villa said when Mr. Weibrecht was hired, they explained it was a two year contact, that in two years they’d sit down with him and go over the wages and bring him up to a level that was on par relative to other airports of this magnitude.

Commissioner Wey questioned the travel expense.  Mr. Villa guessed around $5,000 would be travel expenses.  Commissioner Jason said this was public money, when Mr. Villa said the County Commissioners didn’t have to come up with any money.  Commissioner Wey agreed that it was public money.  Commissioner Jason said he thought the overtime was already discussed, that it could be compensatory time off maybe, but not cash.  That would be a bonus.  Commissioner Jason objected to a reference by Mr. Villa that they had discussed the Airport Manager’s salary, saying he had never once discussed how the Airport Manager was going to get paid.  Commissioner Jason reviewed how he believed the Advisory Board meeting went.  He said that Chairman Morgan suggested doing a contract if the Airport Commissioners were having a problem with the Classification Plan, adding that’s what they did in Edgartown with Mr. Bettencourt who was hired on a contract.  Commissioner Jason recalled Advisory Board Member Richard Combra asking to see the contract Mr. Villa referred to at that meeting (February 4, 2002), but then Mr. Villa saying it wasn’t really a contract.  Mr. Villa agreed he remembered that, but said “right now was where we’re at.”  Commissioner Jason said the Advisory Board didn’t say to go out and get a contract.  Mr. Villa referred to the Minutes of that meeting saying it was contrary to what Mrs. Borer said.  Commissioners wanted that section of the Minutes read.  Mr. Villa reiterated his belief that he asked the Advisory Board if they had to get a vote from the County Commission before it comes back to the Advisory Board for a vote and Mr. Morgan said no, they just needed to inform the County Commissioners.

Chairman Leland read the paragraph from the Minutes of the Advisory Board Meeting of February 4, 2002:

Chairman Morgan added that he wanted to see a firm proposal and contract or amended Classification Plan, and hoped that the Airport Commission would discuss this with the County Commissioners and County Manager and come back with a proposal.  Marc Villa asked if the Chairman was asking the Airport Commission to create job descriptions for the Manager and Assistant, illustrate numerically the rationale behind wages and create an unsigned contract and present it to you to be ratified by the County?  Chairman Morgan said he wasn’t saying it had to be ratified by the County first, but the Commissioners should see it.  He stressed communication and added once he had that, he’d call a meeting and expedite it.  He added this wasn’t just the salary, but the breakdown of other items too.  Marc Villa said fine.  He would bring it to the County Commissioners.  

Mrs. Borer added that with the contracts that the County Commissioners had in front of them, was a memorandum from Mr. Villa asking to schedule a meeting of the Advisory Board.  Mrs. Borer said she had recalled from the Minutes that first the Airport Commissioners had to come speak to the County Commissioners.  She and Mr. Weibrecht were going to schedule some meetings.  Mr. Weibrecht had spoken with Mr. Morgan, so Mrs. Borer called Mr. Morgan and asked what he wanted, for the Airport Commission to go straight to the Advisory Board, or to the County Commission first and he said he wanted it to go to the County Commission first.  

Chairman Leland reviewed what was said in that paragraph and suggested had the Airport Commission revisited the Job Descriptions, perhaps the Grade level would be looked at again and it would fall within the bounds, in the process.
Mr. Villa said the Commissioners may disagree with the concept of contracts, but it is perfectly legitimate and appropriate to go through the system and have the appropriations approved at the supplemental budget process and have those contracts paid through our funds, through the County Treasurer. It may be contrary to the way you’d design it, but Mr. Villa said he and the Airport Commission maintained that they not only had the authority to do it, but they had the job to do it, that the County Commissioners appointed them to do it.  He said if the Commissioners thought the wages were too high, that was just their opinion.

Mrs. Borer spoke about contractual employees, saying towns and cities have the right to enter into contracts for their town manager, administrators, executive secretaries, police chiefs and fire chiefs.  That was the limit.  It didn’t apply to counties.  Also, Mrs. Borer said, the contracts addressed salaries and benefits.  Mrs. Borer explained that in order to receive health and retirement benefits, the Airport Manager and Assistant Manager have to be County employees.  Mrs. Borer said there needed to be a decision, either put them on the Classification Plan, or get them a separate contract.  She also explained independent contractors have to get their own insurance and liability documents.  Beyond salary, there are these issues too.  Mrs. Borer referred to the presented contracts, noting they included health benefits and retirement.  She said they couldn’t be offered these.  

Mr. Villa said these contracts were drafted with a labor attorney and other airport oriented attorneys and they maintained it could be done.  He said, “if you don’t want it to be done, you can make it extraordinarily difficult for it to be done, but it can be done.”  Mr. Villa said if it required a separate health and retirement program for them, they’d address it.  Mrs. Borer said she saw something separate for health.  Commissioner Jason said, $13,200, but Mrs. Borer added the retirement is different.  Mr. Villa said if there was a problem with it, they’d address it.  He added the Airport already ‘supported’ the County Retirement Plan.  Mrs. Borer said because there are retired County employees there.  Mr. Villa said, no, it was that financially, the Airport supports it. Mrs. Borer said the Airport pays the benefits for retired employees.  

Commissioner Flynn said he wrote down what Mrs. Borer said and hoped she correct him if he was wrong.  He questioned what Mrs. Borer said about not be able to participate in the County health plan and retirement if they weren’t on the Classification Plan.  Mrs. Borer said if they’re not a County employee.  Commissioner Flynn asked about the police departments.  Commissioner Alley said the towns participate in the County Plan. Commissioner Flynn said, “but they’re not employees of the County.”  Commissioner Alley said each town was a unit.  So, Commissioner Flynn concluded the Airport could do it if the towns were.  Mrs. Borer said they would have to petition the Board for membership and noted that the Wampanoags have petitioned and they’re still not receiving benefits.  Commissioner Flynn asked about the Transit Authority.  Mrs. Borer asked Commissioner Alley, since he is on the Retirement Board and he explained that they are a unit.  Commissioner Flynn said Mrs. Borer’s statement was about the way it was now, but if they went a different way, they could petition, so it wasn’t a big deal.  Commissioner Jason said it was, that Commissioner Flynn just made the assumption that they’re separate.  The Chairman called for order when discussions broke out.

Commissioner Flynn continued that under the scenario the County Manager presented, they could not participate in health insurance and retirement, but in fact that wasn’t totally accurate.  Mrs. Borer repeated if they weren’t County Employees.  Commissioner Flynn reiterated they could petition though.  Mrs. Borer said yes, if they wanted to set up their own unit of two people.
Airport Commissioner Carroll said that was the direction he was about to talk about.  He said just like a Water or Sewer Commission for a town, the Airport could petition to become its own group and if the County did the Enterprise Fund that Powers and Sullivan was recommending for a number of years, the County would almost be forced to do that anyway.  Commissioner Carroll said all the costs for retirees from the Airport was being billed back to the Airport and the County Manager agreed.  So unfunded liability for the current people, Airport Commissioner Carroll said, and all expenses for retirees from the Airport is currently being borne by the Airport and if the Airport goes into an Enterprise Fund, it would become its own unit and the ‘retirement insurance thing’ would be a non-issue.  Mrs. Borer said she didn’t know.  Mr. Carroll said statutorily they couldn’t reject a local unit.  

Commissioner Alley thought the central issue was whether or not William Weibrecht and Sean Flynn were County employees.  Commissioner Alley read from a letter to William Weibrecht dated January, 2000, stating ‘you will be a County employee reporting to the Airport Commission.’ Commissioner Alley wondered if he were missing something, were they not County employees?  

Commissioner Jason said something happened in those two years.  Mr. Carroll said the Airport never made any contention about them not being County employees.  He said, all they were saying was that under Statute, under Legislative control of the Airport, Managers and Assistant Manager’s salaries are to be set by the Airport Commission appointed by the County Commission.  And, Mr. Carroll added, that was ‘Palmer and Dodge’s and all the people at FAA opinion’ that that’s what they could do.
Mrs. Borer added, ‘subject to appropriation.’  Commissioner Alley said, following up, that besides subject to appropriation, don’t they also have to follow the Personnel rules for County employees? Commissioner Jason said, ‘that’s the argument.  They maintain they have the right to appoint and set salaries.’  Commissioner Jason said he agreed they had that right, but it had to be done in compliance with Personnel Bylaws.  Commissioner Jason added that he thought they were moving, with Airport Commissioner George Balco, to get it into the Classification program.  

Mrs. Borer said that was the advantage, as County employees they’ll get the benefits without petitioning.  She said if they came back with a revised Job Description it’s possible it could come close to that salary, she didn’t know, adding the Committee hadn’t seen one revised.

Mr. Villa said the Airport Commission and MAC maintain, and the attorney at Palmer and Dodge maintain, that having the Airport Manager and Assistant Manager on a contractual basis where ‘he/she answers to the Airport
Commission as construed by State Law, is the appropriate way to go.’  Mr. Villa said added to the fact that the Enterprise Fund should have been set up years ago, there was the other piece relative to the County’s Bylaws.  Mr. Villa said a ‘perfect example of one of the many problems that exist in this system,  is having the Airport Manager, as directed by the County Manager, be reviewed…which was recently attempted…by the County employee, what do you call it… Personnel Board, and having to present things to that Personnel Board, having the, our Airport Commission review presented to that…committee and having anything hinge on that relationship with that Airport Manager and the Committee has many conflicts to it.  I’m not suggesting there’s a problem here, but a good example is the Sheriff sits on that Committee.  At the very same time, we have an Airport Manager who is going to be and is presently working with the FAA in making his own opinions and decisions…which we’re pushing him towards…relative to the Sheriff’s position on a potential prison here.  These are conflicting issues.’  Mr. Villa said it gets cloudy, and they want the Airport Manager and Assistant Manager to be responsible to the Airport Commission. And they want to set wages as they are authorized to do.  

Mrs. Borer said the Job Description does say they report back and take direction from the Airport Commission.  Mr. Villa said there’s been a continued effort, and the County Manager has prepared memos stating the Airport Manager answers to the County Manager as all Departmental Heads do.  Mr. Villa said that was a problem.  He said the primary issue was they were at the meeting to inform the County Commissioners as to how they came up with the wages and that they want the two employees on a contractual basis.  That being done, Mr. Villa said he would answer questions about how they got to the figure, he’d answer them.  He added if there were questions about where the money would come from, they did that in the supplemental budget part.  

Commissioner Wey wanted to know how they came up with the $86,000, but Chairman Leland recognized Commissioner Flynn.  Commissioner Flynn asked who was on the Personnel Committee?  Mrs. Borer said Mike McCormack (Sheriff), Dianne Powers (Register of Deeds), and Marsha (Executive Assistant.) Commissioner Flynn asked, “Nobody from the Airport?”  Commissioner Flynn said if the next discussion was about Weibrecht, he’d stay, but if it were about Sean Flynn, he’d recuse himself.  Mr. Carroll said they would divide the question.  Commissioner Flynn added, ‘to make it perfectly clear to you and the Minutes of this meeting, I’ve had no conversations with anyone at the Airport level, my son, the Airport Manager or the Airport Commissioners concerning either one of these.’ Commissioner Flynn said it was the first he was seeing the contract documents.

Commissioner Wey asked about the salaries and compensation package again.  Mr. Villa said they were fortunate in that the American Association of Airport Executives had compiled wages and categorized airports in a variety of different levels.  They do it annually.  He said they subscribed to these and then took what type of a hub they have here, and came up to the wages.  Then they compared the wages to Nantucket, Barnstable, Worcester, Bedford….  Mr. Villa said our Airport Manager is paid approximately what the Assistant Airport Manager is paid on Nantucket.  Commissioner Wey asked if Nantucket was busier.  Mr. Villa said it was busier, that it had more private planes, more take-offs and landings. Commissioner Wey supposed they have more responsibility then.  Mr. Villa added they have no Business Park.  Barnstable, Hyannis were closer.  

Commissioner Wey asked for the figures, saying it would be interesting to see.  Mr. Villa said they could get them.  Bedford was mentioned. There were different problems living on this Island that living around Bedford too.  Commissioner Wey asked how they came up with the $10,000 and also the Travel issues.  Mr. Villa said the Airport Manager is required to travel a fair amount and is compensated for that.  Commissioner Wey noted there was no figure for the travel included, asked if it would be around $5000?  Mr. Villa guessed around $5000 or $6000.   Commissioner Wey asked again about the $10,000 lump sum.  Mr. Villa said it was because ‘part of his retroactive pay takes us into another fiscal year, a prior fiscal year.’  Mr. Villa said he was due for this raise, this increase, this contract last year.

Commissioner Wey said he thought the $10,000 was for his performance during Sept. 11th. Mr. Villa said that was the other part of it, they’re both included. He added both people were here seven days a week, 12, 14, 16 hour days for two months.  Mr. Villa said it should be noted that we were the first airport up and running after Sept. 11th.

Commissioner Wey asked about the second salary.  Mr. Villa said they came up with it the same way, only difference was it wasn’t retroactive.  Commissioner Wey asked about travel expenses, was it the same?  Mr. Villa said more or less.

Commissioner Flynn recused himself and left the room at 8:35PM.  

Mr. Villa said the Assistant Manager travels less and the expense would be less.  Mr. Carroll said the travel is to monthly MAC meetings, meetings with FAA, meetings with consultants, and because the two are up there, we’re getting the millions of dollars in grants.  

Chairman Leland asked why the Airport Commission didn’t put in for step increases for Weibrecht or Flynn when, as County employees, they could’ve gone up a step or two depending on the Airport Commission’s recommendation.  They could’ve been up at a higher wage than they are.  Mr. Carroll said they were waiting for the legal examination of the Law by the consultants paid for by MAC and FAA. When it came back, they acted on it.  Chairman Leland said they could’ve acted prior, but Mr. Carroll said, “why act before you know what you can legally do?”  Legally, Chairman Leland said, it could have been done because they’re County employees at a Grade and Step.  Chairman Leland said that was where the conflict came in and the County’s legal representative says they’re County employees on the Classification Plan.  Chairman Leland said the County was asking leave it there, and maybe revisit Job Descriptions.  He recalled that when Mr. Weibrecht was hired, a Grade was created for him because the Airport Commissioners had promised “x” amount of dollars for him to come on board.  Chairman Leland noted the Airport Commissioners and Mr. Weibrecht all signed the document that said he was a County employee.  

Mr. Villa agreed with Chairman Leland that there was a conflict.  He said Airport Commissioners and the employees have chosen to go the route of the contract, as it’s a cleaner route for them and it was within the bounds of what they can do legally and financially.  

Commissioner Sawyer stated his opinion.  Legal opinion from our Counsel, Commissioner Sawyer said, “In conclusion, for the reasons stated herein, it is my opinion that the County Commissioners remain the public employer or employer of Airport employees who are encompassed by a bargaining unit or not in a bargaining unit and thus, Airport positions continue to be governed by the terms and conditions of the County’s Wage and Classification Plan.”  Commissioner Sawyer said we were fortunate to have an eminent Labor Attorney in Michael Gilman and it was difficult for him to suggest the County could take a position contrary to its own Counsel.  

Commissioner Sawyer said the wages proposed were a symptom of the problem.  He suggested some Airport Commissioners had been provocative and contentious and he was distressed hearing about Airport Commissioners seeking separate legal opinions which precipitate conflict.  He was also concerned about separate contracts and about hearing about the Airport Commission bypassing the County Commission and going directly to the Advisory Board.  Commissioner Sawyer suggested that there would be fewer problems if the Airport Commission would be a team player.  

Commissioner Flynn returned  ______PM.

Commissioner Sawyer said it would have been better had the Airport Commission said they had a problem with the two wages and done something more in line with the Classification Plan.  He stressed that a great deal of the problem was the approach and not the issue.  

Mr. Carroll referred to a memo of April 16th by Mr. Balco which included rating using the Classification System.  Mrs. Borer said Mr. Balco said he didn’t use a Job Description.  Mr. Carroll said it may not be complete to your standards, but he gave you a rating.  Mr. Carroll said Mr. Balco should provide more information as to how he came up with the rating if that’s what Mrs. Borer would like.  

Mr. Villa said the Airport Commission recognized as the primary overseer, the place they turn for advice, as MAC.  MAC paid for, solicited, attorney opinion as to how many of these issues are handled.  Attorney Dewitt’s opinion, Mr. Villa continued, was contrary to Attorney Gilman’s.  Mr. Villa said Attorney Dewitt used to be MassPort’s Attorney and was well respected.  He also used their labor attorney for parts of this.  The FAA and MAC, responded to Dewitt memoranda positively, Mr. Villa reported.  Mr. Villa said the Airport Commissioners work diligently to run the Airport the best they can and they do it ‘independently of your thought process.’  He said the Airport Commission was not a mirror image of the County Commission.  He added, ‘you appoint us to do a job, and we do it to the best of our ability.’  He said they were not of the manner to change their mind once they do their job.  

Commissioner Jason said he didn’t think anyone tried to interfere with how they do their job.  He said, ‘you raise your right hand and do everything under the Law. We all raise our right hand and do everything under the Law.  It’s a question about which Law we should be following.’  Commissioner Jason suggested there would be continued arguments until the two legal opinions were resolved and the sooner the better.  Commissioner Jason said, “Let’s let a judge decide which lawyer is right, and move on.”

Commissioner Wey agreed that it was going round and round.  Mr. Villa said this night was supposed to be informative and it was, but what they were then asking for was a supplemental budget meeting.  They had a number of things to do before year’s end.  Mr. Villa said if the County Commissioners chose to report to the Advisory Board that they object to what they’re doing, it was their prerogative, but he pressed for a supplemental budget meeting as soon as possible.  He said the Airport doesn’t have the ability to post the date.   

Chairman Leland asked if he meant supplemental minus the wage?  Mr. Villa said no.  Chairman Leland agreed the issue had to be resolved, that the County looked at MGL Ch 34 and the Airport looked at MGL Ch 90 and both sides had legal opinion.  

Commissioner Jason said there were other disagreements, such as the Compensation for Overtime.  Commissioner Jason thought that was already discussed at another meeting, that that could not be done, yet the Airport’s attorney said they can.  That was another conflict.  

Mr. Carroll asked if it was fair to summarize the part of the Memo that said the County Treasurer currently could not cut the check because there was no appropriation.  Mrs. Borer agreed.  He suggested it would be cured by an appropriation with the Advisory Board and added it’s in conflict with the Personnel Bylaw and asked by whom it was adopted?  

Mrs. Borer answered the County Commissioners.  Commissioner Jason said Mr. Carroll voted for it.  Mr. Carroll reiterated it was in conflict with the Board not State statutes as she was aware. She said yes, as she was aware.

Commissioner Flynn asked if it was fair to assume the money did not have to be appropriated because it was in fact there and so not subject to appropriation?  It’s subject to expenditure, he continued, not appropriation because he assumed the money was in the account?  Mrs. Borer said no, it had to be appropriated by the Advisory Board, that it was presently not in a line.  It needed to be moved from one place to another.  Commissioner Flynn said it was semantics.  

Commissioner Jason asked if that meant Commissioner Flynn thought the Airport could spend that money without approval from the Advisory Board?  Mrs. Borer said they couldn’t.  Commissioner Flynn said no, he didn’t mean that.  He meant, if there was money under the accounts that money doesn’t need to be appropriated, it needs to be authorized for expenditure.  He added he meant you don’t have to appropriate it by assessing the towns, for example, or borrowing.  He said it was subject to authorized expenditure, not appropriation.  

Furthermore, Commissioner Flynn said, we were going to possibly enter into plaintiff or defense situation in the Court based on an opinion that was offered by the County Attorney in relation to the City of Beverly and the Labor Relations Commission, not a rule of Law?  Commissioner Flynn asked if that was true?  Mrs. Borer said she hoped not.  

Commissioner Jason said the discussion about possibly entering into litigation shouldn’t happen in public meeting.  

        Commissioner Flynn Moved that the County of Dukes County
        establish an Enterprise Fund for the Martha’s Vineyard Airport
        as recommended in several Management Letters of the County Auditor.
       Said Enterprise Fund shall be in accordance with established Accounting
Practices.  There was no Second.

Chairman Leland asked if that was already done.  Mrs. Borer noted there was no Second.  Mr. Villa said couldn’t they get a Second from the other Airport Commissioner?  County Commissioner Alley said no.  Mr. Villa said it was asked for, for years and was recommended by MAC.
Commissioner Sawyer asked if a Department of the County such as the Airport go with a supplemental budget directly to the Advisory Board without going first through the County?  He said in reading Counsel Gilman’s letter, “Finally the Airport’s Annual Budget must be submitted to the County for approval in accordance with the County Charter and Finance Laws in order that the County may protect its interest in the Airport including its financial contribution….”

Mr. Carroll said Town Meeting is equivalent to the Advisory Board.  He asked if Commissioners Jason and Wey recommended that the conflict be taken to Court?  Commissioner Jason said when two legal opinions differ, the only way to resolve it was in a Court of Law.  Mr. Carroll asked if there was any reason why they shouldn’t all sit down and talk about it first.  Commissioner Jason referred to the letter of April 16th in which George Balco talked about Classification, but noted now they’ve gone to a contract.  So, Commissioner Jason said he could assume either something happened without George being aware or they’ve given up on something and not told George.  Commissioner Jason asked what happened in eight days?  

Mr. Carroll said the contract predated that by a long time, was done in March.  Commissioner Jason said that only made it worse.  Mr. Carroll said after the contract was done the County Manager asked for more information and that’s when Mr. Balco brought that.  

Commissioner Jason said what bothered him more than anything was that “guys aren’t gonna get money that’s owed them, because we’re in a pissing contest.”
Commissioner Collins agreed with Commissioner Jason and said he was confused.  He said he was listening to the situation for months and didn’t understand why grown people couldn’t sit down and work it out.  He said he was sick of it.  To resolve the current problem of properly paying the County Airport Manager and County Airport Assistant Manager can simply be done by taking George Balco’s recommendation to the Personnel Board, setting it up on the Compensation Plan and be done with it.  He asked if that was too simple.
Commissioner Jason suggested there would only be something else, but he agreed, write a letter, say what they’ve done….

Chairman Leland agreed with Commissioner Collins that they all agree that they’re doing an excellent job.  They’re great. We’re proud of them.  He said he didn’t have the facts to decide what the appropriate wages were but put the information the Airport and Mr. Balco did and put it into the system and pay them.  Commissioner Collins wished he could make a Motion to that effect.

Mr. Carroll thanked Commissioner Collins for that, but said the problem was the conflict with the Airport Manager with the possibility of Jail at the Airport, that he would be going as a Department Head before other Department Heads which have other interests at the airfield.  He added he wasn’t saying the Sheriff was doing anything wrong.  Commissioner Alley said, but it was implied.  

Mr. Carroll said a conflict could be perceived if one has to go before someone, another Department Head, he’s negotiating with.  Mr. Carroll used the example of the Transfer Station, and how the Airport felt it was in conflict with Edgartown when the Airport Commissioners were told to vote for it. Mr. Carroll questioned why the Airport wasn’t represented on the Personnel Committee.  

Commissioner Jason reminded Mr. Carroll that he was on the Commission when the Personnel Board was set up, and that he had every opportunity to set it up differently at that time.  Mr. Carroll said that the Minutes would show otherwise, that he voted that the Airport should have been on it.

Commissioner Alley said he resented the implications that were made in the direction of the Sheriff, and found them inappropriate.  He agreed with Commissioner Collins, “Get on with it.”

Commissioner Flynn brought up the fact that the County Engineer was hired under a contract, reports to the County Manager, works out of the County Administration Building and drives a County vehicle.  He didn’t see any difference with the County Engineer’s contract or the County Manager’s contract and contracts the Airport wants to establish for any personnel including Union.  He thought this was wrong, that Labor Laws would substantiate the fact that a contract employee like the Engineer can’t drive a County vehicle, report to the County Manager and work out of the County office, not working under a contract.
The Sheriff addressed Mr. Villa’s comments, stating that he wanted to formally answer him since the issue was raised.  The Sheriff asked Mr. Villa if he believed that he would rate a job description based on a favorable or unfavorable request he’d presented from the Airport Commissioners?  

Mr. Villa said absolutely not, and he regretted offending the Sheriff since he thought the Sheriff would never do anything inappropriate, but he believed a perception could be formed based on it.  Perceptually, at the Airport, it could seem the employee has to do something, think something, say something different.  He said it’s not a normal system.  He reiterated there was NO accusation at all.  

Mr. Villa agreed with Commissioner Jason that there was a conflict.  He asked to include wages, a number of pieces of equipment, safety equipment, lawn moving equipment and have a supplemental budget.  Mr. Villa said the Airport Commission wanted it all there.  He asked that the supplemental budget meeting be held and he assumed the County Commissioners would make their recommendations.  He said all the Airport was asking was for the supplemental budget meeting and to let the Advisory Board deal with it.  

Mrs. Borer responded to Commissioner Flynn about the County Engineer’s contract.  The County Engineer, Mrs. Borer explained, was solicited through an RFP that resulted in a contract.  Mrs. Borer, being the Administrator of Contracts for the County, signs contracts.  The Engineer is an Independent Contractor with no sick days, no vacation.  He pays his own insurance and taxes.  He produces his own insurance and liability policies and is paid hourly.  If he doesn’t work, he doesn’t get paid.  Resources in the building and supplies, etc. are provided by the County to operate the Department, so there is a difference in that contract and the others.

Commissioner Flynn asked if there was going to be discussion about the letter from MAC, because he thought they were asking for clarification.  

Commissioner Jason said first, he could not in good conscience approve a contract that in his mind appropriates a sum of money that he did not believe the Commissioners had the right to approve…the $10,700.  He believed it was against the Law and he’d never in 29 years in Public Service, ever become aware of employees getting compensated that way.  

Chairman Leland stated that if the Job changed, the Job Description changed.  If the Job Descriptions were rewritten and put before the Board, they would perhaps go another Grade up to Grade 16 or 17, and that was asked quite a while ago and nothing happened.  Chairman Leland said it appeared now, that the Airport was waiting for its legal opinion.  So we’re back to square one, but that would be a way to resolve the issue.

Mr. Villa repeated that the Airport Commission negotiates the wages.  He said the Chair was asking that the County Commission be the determiner of the wages.  

Commissioner Jason disagreed.  He said he was being asked to approve something that he believed was against the Law.  

Mr. Villa said he was not asking for approval.  He was just there to inform them.   

Break: 9:07 PM.  Meeting resumed 9:13 PM.  (Mr. Villa, Mr. Carroll, Mr. Mill left.)

Chairman Leland asked if the Commissioners would get a legal opinion.  Commissioner Sawyer said we had one.  There was discussion about whether or not to go forward with an opinion about the conflict.  Chairman Leland said he would like to see it resolved.  The Commissioners agreed they’d tried sitting down and discussing the conflict, that it had been going on for years.  

Commissioner Jason suggested there be an Executive Decision for this.  

Mrs. Borer asked if the Airport was going to the Advisory Board?  Commissioner Sawyer said he had a problem with that.  Commissioner Alley said they can’t call a meeting.  Mrs. Borer said she would speak with Mr. Morgan, that now that Town Meetings were over, maybe they’d have a more open schedule.  

Commissioner Jason thought the process was the County Commissioners looked at it, approved it and sent it to the Advisory Board…or, was it they look at it, send it to the Advisory Board, they approve it and then the Commissioners vote?  Commissioners Sawyer and Jason said they thought they vote first.  Chairman Leland said we send it with a recommendation.  Commissioner Sawyer said, whatever…we vote first.  Commissioner Jason said in the past, the Advisory Board had not wanted to be the referee.  He added that he could not support the $10,700.  Commissioner Alley said he could not support sending it to the Advisory Board the way they structured it.  In respect to the $10,700, he said the Airport needed to work on it, and work on the Job Descriptions, and “get real.”  Commissioner Wey suggested ‘cooling down’ and having the chance to go through all the information he just got.  

Commissioner Flynn said there were some items that needed to go before the Advisory Board that were safety related issues.  He asked Commissioner Alley to agree, since he was also an Airport Commissioner.  Commissioner Flynn said the Airport needed a meeting of the Advisory Board in order to spend funds on safety related equipment.  He suggested there was a possibility the Airport could ‘lose their index’ if the meeting wasn’t held.  Commissioner Flynn said he didn’t not what the implications were, but under the current climate that the TSA and FAA are operating, if the Airport has to do something, if there was anything on that list of things they need, then he thought there needed to be an Advisory Board meeting as soon as possible to at least put those things forward.
Mrs. Borer asked, “What list of things?”  Commissioner Jason said there was some equipment, capital expenses, Mr. Villa said they had to purchase.  Commissioner Collins asked, “Do we have a copy of that proposed supplemental budget?”  Commissioner Jason said, “He never gave us a copy of that.”  Commissioner Collins said then he didn’t see anything to approve.  

Commissioner Wey agreed.  Commissioner Collins said Mr. Villa said he hoped the County Commissioners would approve the supplemental budget without the salaries.  Commissioner Sawyer said, no, with the salaries.  Chairman Leland agreed, with the salaries.  Commissioner Sawyer said last time they went directly to the Advisory Board.  Commissioner Collins said there was no point talking about it if they had nothing to approve.

Mrs. Borer said she didn’t want to tie herself to it, but some supplemental budgets don’t come before the County Commissioners.  She said the Commissioners approve the Annual Budget.  Commissioner Sawyer was concerned about that, that they didn’t come before the Commissioners first.  Commissioner Collins said they don’t.  Commissioner Sawyer asked why? Borer said that was how it always was.  Commissioner Alley said the Department Heads used to bring to the County what they wanted to have in the supplemental budget.  The County put together the form, call the meeting, and it came from the County Commissioners to the Advisory Board.  Commissioner Jason said the Treasurer would prepare the list of transfers.  Commissioner Sawyer said for the record, it had a problem with that.  He questioned sitting at an Advisory Board meeting when County funds were being considered and he had no role in it.  Commissioner Flynn said he believed the County Charter authorized the County Manager to do that.  Commissioner Jason agreed.  Commissioner Sawyer said he believed the County Commissioners had the authority to create any policy such as that.  Commissioner Flynn said not if it was in conflict with State Law and State Law gave that authority to the County Manager. Commissioner Sawyer wanted to find out.  Mrs. Borer said the Commissioners approve the Annual Budget and after that it was moving lines from one to another.  Commissioner Sawyer said it was not just moving lines.  It was spending more money if more revenues came in during a good year and he had a problem with that.  

Chairman Leland said some agenda items would have to be held until next meeting, as it was getting late.  Commissioner Jason said he would, “hate to see the Airport lose any kind of grant, any kind of monies, if they have to match or anything.  Is there anything out there hanging that we’re gonna look like idiots over if they don’t get through the supplemental budget, anything like an inspection coming up?”

Mrs. Borer said she didn’t know.  She hadn’t seen the order.  She said, “gotta find the list.” Commissioner Jason said she should find out.  Commissioner Alley said, “have them send you a sheet.” Several Commissioners spoke at once. Commissioner Wey said, “Have them send you the information.” Mrs. Borer said she would sit down with Bill and Sean and review it. And if it required an Advisory Board meeting, she’d schedule it.   She added it generally took a few days, but she’d get it done.

The County Manager’s report began with the letter from the MVC granting permission to the County Commissioners to demolish the white building on the New York Avenue property and conveying ownership of all the buildings on Lots 423, 424, 425, 426, 427, 428, 430, 434, 435, 436, 437 and 438.  The transfer of ownership was to occur on or before June 21, 2002 in exchange for reimbursement to the MVC of $10,228.30 for improvements made to the buildings by the Commission.  Commissioner Collins noted that the County Commissioners sold the property to the MVC for $1.00 but were asked to pay $10,228.30 now.  Commissioner Alley questioned the idea of paying for improvements only to demolish them.  Mrs. Borer said there was a bid to demolish the building for $7,700 with a dump fee of $4,000.  

Commissioner Wey Moved that the Commissioners move forward with
the agreement and demolish the building.  Commissioner Alley Seconded
the Motion.  The Vote to pass the Motion was Unanimous.

Mrs. Borer explained that the Commissioners were given final copies of the Personnel Bylaws that included the changes they requested to Sections 11 and 13, about Injury Leave, and Military Leave.

Other documents distributed were noted.  Mrs. Borer reported that access would not be denied while the Lagoon Pond Bridge was under construction.  Commissioner Flynn stressed the importance of Oak Bluffs, Tisbury and Edgartown having contingency plans.  Mrs. Borer said she would follow up on this with the County Engineer.

Mrs. Borer noted the letter in the Commissioner’s packages from Wayne Kerchner of MAC.  Mrs. Borer explained that the Grant Policies is important because other Departments besides the Airport receive grants too.  

Commissioner Flynn suggested having the County’s attorney review it and questioned if there would be retroactive application of the Policies.  Commissioner Jason suggested having the Counsel look at the Grant Assurances to see if those were legitimate. He noted that the Commissioners had been under the impression that the Airport would have lost $8,000,000, had they not signed that.  Commissioner Sawyer said it should be run by Counsel.  Mrs. Borer explained that the Airport already followed this Policy.

Commissioner Jason Moved that the Commissioners adopt the Grant
Policies.  Commissioner Alley Seconded the Motion.  All Commissioners
Except Commissioner Flynn Voted “aye.” Commissioner Flynn voted “nay.”  The Motion carried.  

Mrs. Borer distributed the Draft Fiscal 2003 Budget and asked that the Commissioners review it.

Commissioner Sawyer Moved that the Commissioners officially monitor
what was going on in the Woods Hole Parking Lot and that the
Commissioners appoint him and Marie Laursen to do the monitoring.
Commissioner Alley Seconded the motion.  

Commissioner Flynn maintained that that was the same Motion that didn’t carry at the last meeting.  Commissioner Jason said, for the record, he thought there was a problem with Commissioner Sawyer having the role, since he was a Parking Lot Permit Holder.  Commissioner Jason added that he thought it would be micromanaging to get involved and that if the SSA representative needed assistance, she would ask for it.  Commissioner Flynn agreed.  Mrs. Borer left the room and returned with a copy of Robert’s Rules.  Commissioner Collins agreed with Commissioner Jason, noting that when he was SSA Representative and he wanted assistance, he asked for it.  He thought it was premature to act without SSA Representative Roessel’s request for assistance.  Commissioner Sawyer said he and Ms. Laursen were already appointed years ago, and there was no term limit.

Commissioner Sawyer remarked that he communicated with Ms. Roessel and thought she was open to assistance.  Commissioner Flynn said he hoped the communication was in keeping with the County’s Code of Conduct and that communication should go through the County Manager.

Mrs. Borer read from Robert’s Rules about Reconsideration of a Vote.  A Motion can be voted again if the Motion was made by someone who voted no last time.  That was not the case this time, so Chairman Leland said there was no Motion on the table.  

For the record, Commissioner Flynn wanted it known that he was handing in the copy of Sean Flynn’s Contract for Assistant Airport Manager that was in his package.

Commissioner Collins Moved that the meeting adjourn. Commissioner Wey Seconded the Motion.  The meeting adjourned at 9:47 PM.  

Complete text of meeting is available on tape at the County Commissioner’s office.


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