Judge’s non-ruling puts airport commission deeper in limbo

elyportillo@charlotteobserver.comNovember 1, 2013 

An independent commission set up to run Charlotte Douglas International Airport suffered a setback Friday in its struggle to get off the ground when a judge punted key questions back to the Federal Aviation Administration.

The city sued to block the new commission in July, and the outcome of Friday’s hearing assures the case will stretch into at least December and possibly for months beyond.

Both sides in the tug-of-war over Charlotte’s airport agreed Friday that the case hinges in large part on whether the 13-member commission is part of the city’s government or a completely separate legal entity.

The FAA said in September it needs an answer to that question from a local court before it can certify the 13-member commission as Charlotte Douglas’ official airport operator.

But Superior Court Judge Robert Ervin decided Friday not to rule on the key question, saying he didn’t believe he has jurisdiction to do so. Ervin said it’s ultimately up to the FAA whether the new commission can run the airport, and that as a state court judge he has no power over the federal agency.

“I’m issuing an opinion that I’ve got no business whatsoever acting as the legal counsel for a federal agency,” Ervin said.

The judge’s non-ruling leaves the case in limbo, where it’s been since July. With the next hearing tentatively scheduled for early December, the onus is now back on the FAA to make a decision.

The lengthy proceedings have caught former Charlotte aviation director Jerry Orr off guard.

“Heavens, no,” he said, when asked whether he ever thought the process of creating a commission would be so drawn out. A few months ago, he predicted the FAA could make its decision in a day.

Orr lost his job after the N.C. General Assembly passed the bill taking the airport from city control, but he is now executive director of the new commission. Orr is still paid his $211,000 annual salary.

The General Assembly said it needed to protect the airport from political meddling by the City Council, while opponents of the legislation called it a power grab.

Former Charlotte mayor and attorney Richard Vinroot is representing the commission. After the two-hour hearing, Vinroot said he was disappointed that Ervin didn’t issue a ruling. Vinroot had also asked Ervin to say who is the “sponsor” for the airport’s financial obligations, another key question the FAA said it needed clarified.

“I was frustrated,” Vinroot said. “I wanted the judge, badly, to answer those two, I thought, obvious questions.”

The questions are key because if the commission is an agency of the city’s government – as Vinroot contends – then authority for the airport has not been transferred to a new legal entity, and no new airport operating certificate is needed from the FAA.

On the other hand, if the commission is a new, totally separate body – as the city argues – then the FAA has to issue it a new operating certificate, and the city says existing leases and contracts at the airport could be in jeopardy.

The FAA hasn’t spoken publicly about how it might rule. On Friday, an FAA spokesman didn’t return a message seeking comment.

After the hearing, city officials painted Ervin’s decision not to rule as a victory.

“The court’s action today affirms that the legislation presents serious legal issues that cannot be quickly and easily resolved,” Mayor Patsy Kinsey said in a statement.

Vinroot said he plans to keep working for the commission “until we get it right,” even though he and his firm are not currently being paid because the new airport commission doesn’t have the power to spend money.

“We will prevail,” Vinroot said.

He plans to file a motion to dismiss the city’s case. But Vinroot admitted that even a total dismissal of the city’s lawsuit still might not force the FAA to make a decision.

“The other possibility is dismissing the whole lawsuit plays into the city’s hand, because it’s in the FAA’s hands and they’ll just sit on it,” he said. “Our hope is the FAA will see the light.”

Contentious, confused hearing

At Friday’s hearing, Ervin and the attorneys wrestled over what the court could actually do as much as they debated questions of law.

“We believe the court should abstain from answering these questions,” Jim Phillips, an attorney representing Charlotte, told Ervin. “No matter what you rule, the FAA is still able to do whatever it wants to do. If you rule, maybe it will matter. And with all due respect, maybe it won’t.”

Vinroot urged Ervin to just ignore the FAA and resolve the question of whether the commission is legally part of the city.

“Forget the FAA,” he said. “We’re asking you, as the commission, to resolve those issues.”

Ervin seemed deeply skeptical from the start. He repeatedly said that the question of who should run Charlotte Douglas is a federal issue, not one he’s in a position to resolve.

“Normally, when I issue a ruling, I’m binding somebody,” Ervin said. “You’re asking me to issue a legal opinion to someone who’s not even in the courtroom. … It’s just a piece of paper someone can send or fax to the FAA and say, ‘Here’s what this judge thinks.’”

Vinroot accused the city of dragging its feet.

“I think they want this thing to go on and drag on,” he told Ervin.

Ervin told Vinroot and Orr they need to pressure the FAA, not him.

“It seems to me that’s the way to proceed,” he said. “Go to the FAA and use whatever legal authorities there are, and say, ‘Decide.’”

Commission proceeding anyway

Regardless of the outcome in court, the Charlotte Airport Commission has been appointed and still plans to meet for the first time Thursday.

Because the commission is still enjoined from using most of its powers, members won’t be able to do much except get to know each other, choose a chairman and pick an official seal.

But even as the commission takes shape, Charlotte Douglas remains an independently funded city department for the foreseeable future. Interim aviation director Brent Cagle is in charge, reporting to City Manager Ron Carlee and the City Council.

“The airport has made a smooth transition in its leadership,” Carlee said. “We regret the distraction caused by the legislation, but we are moving forward.”

Orr, who was head of the airport from 1989 until July, said he’s still eager to come back and run Charlotte Douglas. Orr has said he would come back to put a transition plan in place and retire by June 2015, 20 months from now.

“When you’ve led an organization for a long time, you miss it,” he said. “I always thought that when I left, there’d be some kind of transition.”

Portillo: 704-358-5041; On Twitter @ESPortillo

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