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Attorneys: City stand on airport ‘baseless’

AIRPORT
TODD SUMLIN - tsumlin@charlotteobserver.com
US Airways jets are parked at the terminal at Charlotte Douglas International Airport Tuesday, May 7, 2013. TODD SUMLIN - tsumlin@charlotteobserver.com/ Aboard NBC Charlotte's AirStar

Attorneys for the Charlotte Airport Commission said Tuesday that the city’s efforts to stop it from running the airport are “utterly baseless” because the state is no longer removing airport ownership from the city, according to a court document filed Tuesday.

The city will seek an injunction Thursday against legislation passed last week in the General Assembly that created a 13-member airport commission. Even though the commission would operate Charlotte Douglas International Airport, the city would own it.

The city argues the legislature’s action is unconstitutional, and cited in its court filings a July 29 letter from the Federal Aviation Administration saying it had “concerns” about the proposed transfer.

On July 18, the General Assembly passed a bill that would immediately transfer ownership and operation of the airport to an authority. The city filed a lawsuit to stop the legislation, and it received a temporary restraining order against the change.

A week later, legislators tried a new approach to circumvent the city’s objections.

The General Assembly repealed the airport authority bill and replaced it with legislation that created a commission. Under the new plan, the city would still own the airport. But the commission would operate it, making decisions such as awarding contracts, hiring and firing and approving expansion plans.

The City Council and Mayor Patsy Kinsey oppose that plan.

But in a preview of Thursday’s arguments, the airport commission attorneys say the new legislation addresses the city’s objections outlined in its lawsuit.

“Under the authority act, a newly created outside entity would have been responsible for operating the airport,” reads the commission’s objection, written in part by attorney and former Charlotte Mayor Richard Vinroot.

“This is not true of the Commission Act. Instead, as the legislation makes abundantly clear, the Commission is an agency of the city that was created by amending the charter of the city of Charlotte. The distinction matters. Although the city’s claims against the authority act – all of which objected to the transfer of the airport – lacked a strong foundation in the North Carolina Constitution, they are utterly baseless as applied to the Commission Act…”

At a news conference Tuesday, Vinroot said “there is a little bit of crying wolf (on the city’s part).”

He added: “It’s not a transfer.”

The airport commission, in its filing, argues that the legislation passed last week does not violate the FAA’s authority to grant an operating certificate to the airport. That’s because, according to the filing, the commission will operate the airport as an agency of the city – meaning the certificate would not transfer to a new entity and would remain with the city.

Commission attorneys said they viewed the FAA letter as “routine.”

On July 15, the City Council and Kinsey offered a compromise plan similar to the commission legislation passed last week. They said they would create a commission to help run the airport, though council members and the mayor would appoint all members. In addition, the city did not give a firm commitment as to what power the commission would have.

City Manager Ron Carlee declined to comment Tuesday.

“We will let our team of attorneys address (the city’s concerns) in court,” he said. “There were no shocking surprises in their filing.”

Orr’s ouster

Tuesday’s court filings also provided new details on Carlee’s July 18 removal of Aviation Director Jerry Orr from the airport.

The city has said Orr resigned when he delivered a letter that day to Carlee saying that his role leading the authority had begun and that his employment with the city had ended. Vinroot said the city fired Orr.

In his affidavit, Orr said the letter he sent to Carlee was not meant to be a resignation. “I believed that it was my legal duty, as the Authority’s Executive Director, to explain the provisions of the Act to Mr. Carlee and to initiate the process of implementing a smooth transition of the Airport.”

Orr also said the letter was intended to be a draft and that he sent it as a courtesy in case it raised any issues. At the time he dropped it off with Carlee’s secretary, he didn’t know the city had obtained a temporary restraining order halting the airport’s transfer to the authority, he said.

Soon after, Orr received a call from the city manager’s office saying Deputy City Manager Ron Kimble was on his way to the airport. When they met, with Carlee and City Attorney Bob Hagemann joining in by phone, Orr said he explained his reasons for sending the letter and that he was willing to continue on with the city as aviation director. Carlee insisted he leave the airport, and Orr complied, according to the affidavit.

Less than a week later, on July 23, Orr says he sent a follow-up letter to Carlee reiterating that he did not intend to resign and that he was willing to continue working for the city.

In his affidavit, Carlee said the Charlotte city attorney’s interpretation of events is that once the July 18 legislation was ratified, an airport authority was created – even though the temporary restraining order stopped it from executing its power.

The legislation specifically said that Orr would be the authority’s new director.

“Stated another way, the legislation installing Mr. Orr as the authority’s executive director and his acceptance of that post, effectively terminated his employment with the city,” Carlee said in his affidavit.

In a news conference last week, Vinroot said Orr was prepared to return as director of the airport, in accordance with the airport commission legislation passed by the General Assembly but that he would wait for the outcome of Thursday’s hearing.

Questions remain

As lawmakers debated the future of the airport, one of the city of Charlotte’s key arguments centered around transfer of $800 million in airport bonds and the potential harm to the city and state’s bond rating.

Transferring the airport to an authority, the city argued, would send the bonds into default.

It became one of the central points the city made in its lawsuit to block the transfer. The document stated that the city’s bond trustee had said the bonds would go into default if the airport was turned over to the authority.

The new state law passed July 26 left the possession of the airport bonds with the city to avoid this problem.

The only mention of bonds made in the new court papers deals with possible sanctions from the Federal Aviation Administration. Those could cause revenue that would be directed toward bond payments to “dry up,” the document states.

“The bond claim has been dropped,” Vinroot said.

Part of the city’s argument against the legislation is that it should have been filed as a general bill, not a local bill, and subject to a possible veto by the governor.

But Vinroot said there have been 69 airport-related bills passed in the General Assembly since 1987 that were local bills, including two that related to Charlotte Douglas.

City Attorney Bob Hagemann said that, as far he knows, none of those bills triggered a lawsuit.

“I’m not sure any conclusion can be drawn,” Hagemann said in an e-mail to the Observer.

Staff writer Andrew Dunn contributed to this story.

Harrison: 704-358-5160
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