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ALCORN v. WOLFE

July 16, 1993

DANIEL S. ALCORN, Plaintiff,
v.
GREGORY D. WOLFE, Defendant.



The opinion of the court was delivered by: JOYCE HENS GREEN

 Plaintiff Daniel S. Alcorn ("Alcorn"), appointed to the Board of Directors of the Metropolitan Washington Airports Authority ("MWAA") by Governor L. Douglas Wilder ("Wilder" or "the Governor") on November 28, 1990, commenced this suit against Gregory D. Wolfe ("Wolfe"), Secretary of the MWAA, on May 27, 1993. Plaintiff seeks a judgment declaring, inter alia, that he remains a bona fide member in good standing of the MWAA and its Board of Directors. The plaintiff also seeks a permanent injunction barring the defendant from denying his enjoyment of the rights and privileges of a bona fide member in good standing of the MWAA and its Board of Directors.

 Upon consideration of all filings by Alcorn, Wolfe, and Wilder, who has participated in this case as an intervenor-defendant, and upon consideration of evidence and arguments presented at trial, a declaratory judgment is entered in favor of plaintiff and against defendant and intervenor-defendant. Plaintiff's request for injunctive relief is denied.

 FINDINGS OF FACT

 In 1984, United States Secretary of Transportation Elizabeth Dole formed an advisory commission to explore transferring control of National Airport ("National") and Dulles International Airport ("Dulles"), both owned by the federal government, to a regional authority. The Secretary considered that such a transfer would enable the financing of necessary capital improvements for the airports through the issuance of tax-exempt bonds. The advisory body, sometimes referred to as the Holton Commission, recommended the creation of an authority and suggested that it be established by a congressionally approved compact between Virginia and the District of Columbia. The Commission further recommended that the authority be governed by a Board of Directors comprised of eleven members serving staggered six-year terms, five members to be appointed by the Governor of Virginia, three by the Mayor of the District of Columbia, two by the Governor of Maryland, and one by the President of the United States with the advice and consent of the United States Senate.

 In 1985, the Commonwealth of Virginia and the District of Columbia legislatures enacted enabling legislation authorizing the creation of the recommended regional airports authority and the lease of National and Dulles from the United States to the authority. 1985 Va. Acts, ch. 598; 1985 D.C. Law 6-67. The Virginia enabling act provided, inter alia, that members appointed by the Governor of the Commonwealth "shall be subject to confirmation by the Virginia General Assembly." 1985 Va. Acts, ch. 598 § 4(A). Likewise, the District of Columbia enabling act required that members appointed by the Mayor are "subject to confirmation by the Council of the District of Columbia." 1985 D.C. law 6-67, § 5. Under both acts, all appointments, except for the initial appointments, must be for six-year terms. 1985 Va. Acts, ch. 598 § 4(C); 1985 D.C. Law 6-67, § 5(c).

 In 1986, Congress authorized the transfer, by long-term lease, of the operating authority to the MWAA. Metropolitan Washington Airports Act of 1986 ("Transfer Act"), codified at 49 U.S.C. App. §§ 2451-2461. The Transfer Act provided that the MWAA "shall be . . . independent of the Commonwealth of Virginia and its local governments, the District of Columbia, and the Federal Government." 49 U.S.C. App. § 2456(b)(1). It was strongly believed that an independent authority was necessary, inter alia, to avoid negative influence on contracting processes, to facilitate necessary though unpopular decisions relating to the airports, and to ensure the protection of revenue generated by the airports. Testimony of Gregory D. Wolfe, Transcript of June 28, 1993 Trial ("Tr.") at 41. Like the terms of the enabling acts, the Transfer Act required members of the MWAA to be appointed for staggered six-year terms. 49 U.S.C. App. § 2456(e)(3). Terms of that length were prescribed to help guarantee the independence of the MWAA and to ensure a certain level of experience and expertise. Testimony of Gregory D. Wolfe, Tr. at 42.

 On March 2, 1987, the United States, acting by and through the Secretary of Transportation, and the MWAA, by the Chairman of its Board of Directors, entered into a fifty-year lease of National and Dulles. Following execution of the lease, Virginia and the District of Columbia amended their enabling acts to conform with the Transfer Act. Among other sections added to the Virginia statute was the following provision:

 
Pursuant to Section 6007(b) of the Metropolitan Washington Airports Act of 1986, the Authority is established solely to operate and improve both metropolitan Washington airports as primary airports serving the metropolitan Washington area and shall be independent of the Commonwealth and its local political subdivisions, the District of Columbia and the federal government in the performance and exercise of the airport-related duties and powers enumerated in subdivisions 1 through 16 of subsection A of this section. Any conflict between the exercise of these enumerated powers by the Authority and the powers of any local political subdivision within which Authority Facilities are situated shall be resolved in favor of the Authority.

 1987 Va. Acts, ch. 665 § 5(B).

 On November 28, 1990, intervenor-defendant Wilder appointed Alcorn as a member of the MWAA. The certificate evidencing the appointment was signed by the Governor and the Secretary of the Commonwealth and stated:

 
Know Ye that from special trust and confidence reposed in his fidelity, our Governor by virtue of authority vested in him by law, hath appointed and hereby commissions Daniel S. Alcorn a member of the Metropolitan Washington Airports Authority, effective November 24, 1990, to serve for a term of six years, ending November 23, 1996.

 Plaintiff's Exhibits 1, 1A. Although the Virginia enabling act required the Governor's appointees to the MWAA to be confirmed by 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 ...


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