the Virginia General Assembly, the names of Alcorn and Gerald Lee, another appointee commissioned at the same time, were never forwarded for confirmation.
The person responsible for the clerical task of forwarding names to the General Assembly for confirmation was Sheila Evans, who has served in the Secretary of the Commonwealth's Office as the conflict of interest and appointments specialist since August 1990. At trial and in an affidavit attached to the intervenor-defendant's June 23, 1993 motion to amend his answer, Ms. Evans stated that she was told by her predecessor that interstate compact appointees such as Alcorn did not need to be confirmed by the General Assembly. Evans Affidavit at P 5; Tr. at 102. Ms. Evans also testified that she asked research assistants compiling information about appointees to indicate in writing whether each appointee had to be confirmed. The research assistant in charge of the appointments of Alcorn and Lee wrote on their corresponding forms "Not Confirmed," which Evans interpreted to mean that their commissions did not require confirmation. Tr. at 104. Ms. Evans stated that it was her decision alone not to refer the names of the MWAA appointees to the General Assembly for confirmation, Tr. at 101, Evans Affidavit at P 6, and there is no evidence in the record to support a finding that her decision was anything but an innocent mistake.
Curiously, although Alcorn and Lee's names had never been submitted for confirmation, the Secretary of the Commonwealth issued "Certificates as to Appointment and Incumbency of Directors" on March 19, 1991 and April 8, 1992 which represented that Alcorn and Lee had been confirmed. Plaintiff's Exhibits 2 and 3. The certificates were prepared by outside bond counsel for the MWAA and, under the "preferred" method of issuance, should have been reviewed by Sheila Evans before they were sent to the Secretary of the Commonwealth for her signature. Testimony of Penelope S. Anderson, Tr. at 69, 67. Ms. Evans has represented, however, that she does not remember seeing the 1991 and 1992 certificates, Evans Affidavit at P 7, and it is unclear why the Secretary of the Commonwealth mistakenly concluded that Alcorn and Lee had been confirmed.
After taking his oath of office, Alcorn invested much time familiarizing himself with matters concerning the MWAA. He studied the statutory framework of the MWAA, previous annual reports, and other background documentation. He also reviewed the substantive operations of the MWAA, including a two billion dollar capital development program for the airports and lease arrangements with the United States Department of Transportation and airlines using the airports. Alcorn regularly participated in the monthly meetings of the MWAA Board and attended numerous workshops to study ongoing activities of the airports. At trial, Alcorn testified, "I find that hardly a workday goes by that I do not spend time on Authority business." Tr. at 14. In accordance with the terms of the compact, Alcorn has not received compensation for his work as a member of the MWAA.
While serving on the Board of the MWAA, Alcorn had several politically-related differences with the Governor. The first concerned the 1992 election of a Chairman of the Board by MWAA members. Governor Wilder, through a representative, asked Alcorn to support the candidacy of a newly appointed member who had previously served as the Governor's Deputy Chief of Staff. Alcorn refused to do so, based on his belief that the candidate lacked the requisite MWAA experience. The second dispute concerned a proposal supported by Governor Wilder to move the Washington Redskins to a new stadium in Alexandria, Virginia near National Airport. Alcorn insisted that the proposal not go forward until the MWAA investigated whether increased traffic caused by a new stadium would adversely affect the operations of National. The third matter concerned a statement made publicly by Alcorn and printed in the press in March 1993 that many people involved in Virginia Democratic politics were disturbed by the deteriorating relationship between Governor Wilder and United States Senator Charles Robb. Alcorn later learned that the Governor "did not agree with [his] perspective" on the Wilder-Robb relationship. Tr. at 30.
In early March 1993, outside bond counsel submitted another certificate of incumbency stating that all of Governor Wilder's appointees to the MWAA had been confirmed by the General Assembly. Sheila Evans reviewed the document and recognized that it was incorrect. She brought the matter to the attention of Penelope Anderson, the Deputy Secretary of the Commonwealth, who informed the staff counsel to the Governor that none of the Governor's appointees to the MWAA, including Alcorn, had ever been referred for confirmation.
On March 16, 1993, Jean Mundy, an employee working in the Secretary of the Commonwealth's Office, telephoned Alcorn to inform him that the Office had recently become aware that he and the other MWAA members appointed by the Governor -- Lee, William Porter, who was appointed to fill the vacancy created when Lee accepted a judicial appointment, and Randal Kell -- should have been referred to the General Assembly for confirmation but were not. Mundy told Alcorn that the matter would be resolved by the General Assembly when they convened for a one-day special session in April 1993, and she asked him to fill out a standard resume form to be sent to the General Assembly for consideration during the confirmation process. Mundy faxed the form to Alcorn on March 16, 1993 and he returned it the same date.
Sometime during the first week of April 1993, the Governor reappointed Porter and Kell and referred their names to a special session of the General Assembly for confirmation. Kell and Porter were confirmed on April 7, 1993. On April 19, 1993, the Governor issued a press release informing the public that he had appointed James M. DeFrancia to the position held by Alcorn. The release stated, "DeFrancia succeeds Daniel S. Alcorn who has temporarily held the board position since November 24, 1990." Plaintiff's Exhibit 5. Alcorn learned of the new appointment the following day. DeFrancia took an oath of office on April 28, 1993 and the Governor plans to submit his name for confirmation during the 1994 session of the General Assembly. The Governor has not contradicted Alcorn's accusation that the decision not to reappoint Alcorn was motivated by the three political disputes between them; indeed, the Governor has failed to proffer any reason for his refusal to reappoint the plaintiff. Based on the undisputed record, it is evident that the Governor did not recommission Alcorn because of the cited political differences.
On May 5, 1993, both DeFrancia and Alcorn attended the monthly meeting of the MWAA's Board but agreed to abstain from voting at that time. By letter dated May 20, 1993 counsel to the Board of Directors, also serving as counsel to defendant in this case, advised the Chairman:
Since [the validity of the DeFrancia appointment] is an issue of first impression under the compact and Virginia law and since existing law and precedent do not establish unequivocally who would prevail in a court of law, it is our further recommendation that the Airports Authority not recognize the votes or participation of either Mr. Alcorn or Mr. DeFrancia as members of the Board until such time as the parties lawfully resolve the controversy between themselves or the legal issue is determined by a court of law. Controversies of this type are properly resolved by the affected parties usually by resort to the courts.
Plaintiff's Exhibit 6 at 3-4. By letter dated May 26, 1993, the Chairman informed Alcorn that he was accepting counsel's advice and would recognize neither Alcorn nor DeFrancia as a voting member of the MWAA until the dispute is resolved.
Alcorn commenced this action on May 27, 1993, naming only the Secretary of the MWAA, Gregory D. Wolfe, as a defendant. On June 7, 1993, Wolfe filed a motion to join DeFrancia as a defendant, claiming that were DeFrancia not joined, he would be subject to a substantial risk of incurring another lawsuit and potentially inconsistent obligations. At plaintiff's request, a status conference was held on June 8, 1993 and the Court placed this case on an expedited schedule. Plaintiff filed an opposition to defendant's motion for joinder on June 9, 1993. Governor Wilder filed a motion to intervene as a defendant on June 14, which was granted on June 21. In light of the entry of the intervenor, the defendant withdrew his motion to join DeFrancia. The final hearing was held on June 28, 1993.
CONCLUSIONS OF LAW
The Governor relies on the Virginia enabling act's confirmation requirement and Article V, § 7 of the Virginia Constitution as the sources of his authority to appoint DeFrancia to the seat held by Alcorn. Article V, § 7 states in relevant part:
The Governor shall have power to fill vacancies in all offices of the Commonwealth for the filling of which the Constitution and laws make no other provision. . . .
Gubernatorial appointments to fill vacancies in offices which are filled by election by the General Assembly or by appointment by the Governor which is subject to confirmation by the Senate or the General Assembly, made during the recess of the General Assembly, shall expire at the end of thirty days after the commencement of the next session of the General Assembly.