'End the tension:' Judges hear arguments in Nashville vs. Tennessee airport board fiasco

Three Tennessee judges heard a litany of complaints and acrimony among Nashville leaders, the airport, the FAA and the state, via their attorneys, in an emergency court hearing Friday.

At issue is whether Nashville's mayor or top state leaders have majority control of the Metro Nashville Airport Authority that oversees business at Nashville International and John C. Tune airports. Gov. Bill Lee signed a law on May 19 giving himself, Lt. Gov. Randy McNally, R-Oak Ridge, and House Speaker Cameron Sexton, R-Crossville, six of the eight board appointments.

Metro Nashville sued for a temporary injunction on June 30 to stop the July 1 seating of state appointees, arguing the county's power was being unconstitutionally stripped. In protest, Cooper refused to appoint the two seats allocated to him under the new rule. Four vacated airport board members have met in the mayor's office and are seeking to be reinstated as the true governing officers with the help of a Metro-funded attorney.

"The state is so eager to target Nashville that it draws boxes around Nashville. But the Tennessee Constitution says you can't do that," Assistant Metro Attorney Melissa Roberge told the three-judge panel. "Because this act specifically regulates Metro Nashville, it violates the local legislation clause. What would end the tension is a decision on the likelihood of success of the merits."

The panel deciding which board will prevail includes Scott County Criminal Court Judge Zack Walden, Davidson County Chancery Court Judge Anne C. Martin and 29th Judicial District Circuit Court Judge Mark Hayes. They said they will set a schedule next week to quickly resolve the issue in the Tennessee Administrative Office of the Courts.

During the Friday hearing, the judges questioned the three parties on how to resolve the dispute as tactfully as possible.

"How do we consider the harm of ping-ponging boards?," Walden asked the attorneys. "If we were to grant the injunction, a third board would be reconstituted within weeks."

'FAA doesn't have the authority'

State attorneys told the judges that the airport authority is independent of the Metropolitan Government of Nashville and Davidson County and, therefore, is subject to being an "instrumentality" of the state.

Metro Nashville Airport Authority attorney George Cate assailed the "dramatically, emphatically wrong" Federal Aviation Administration officials who wrote letters and spoke publicly against the state's actions, even pledging their loyalty to Metro and the vacated board members.

"There was no need for the FAA to intervene because it would be up to this court to decide," Cate said. "In any event, the FAA did not ground its recognition in any kind of legal authority. The FAA doesn’t have the authority to override or negate state law."

In April, FAA Office of Airport Compliance and Management Analysis Director Kevin C. Willis wrote a letter and spoke to Metro and state leaders about FAA concerns that the board shakeup would threaten federal grants and airport ratings. Cate said there have been no disruptions to federal grants, and three payments have been dispersed to MNAA since the state board members were seated.

In June, FAA Associate Administrator of Airports Shannetta R. Griffin wrote another letter of concern about the change and promised to recognize the board appointed by Cooper, despite state law.

Roberge, Metro's attorney, told the judges that county leaders expected airport officials to reject state law because of the letters from Griffin and Willis.

"We did not have a reasonable expectation that the word of the FAA would be disregarded," Roberge said, responding to why Metro waited two weeks after starting the lawsuit to file an emergency action. "The point of this injunction is to avoid irreparable harm."

FAA officials referred The Tennessean to the letter from Griffin when asked for comment on the hearing.

"The FAA takes no position regarding the validity of the legislation or on the issues presented inthe litigation," Griffin wrote. "To avoid this uncertainty, please be advised that the FAA will continue to recognize the existing Board until such time as the Chancery Court rules on the issue."

'They want to get through this'

The new board has held three meetings, and it includes two members originally appointed by Cooper — longtime local businessmen Jimmy Granbery and Bobby Joslin. The new appointees are Nashville high-rise developer Tony Giarratana; Tennessee Economic and Community Development Commissioner Stuart McWhorter; Senate Majority Leader Jack Johnson, R-Franklin and Masami Tyson, a global business attorney at Womble Bond Dickinson's Nashville office.

State attorney Timothy Simonds argued that another disruption to business would be unfair.

"If you grant the injunction, you would be disrupting the status quo by putting a board in that’s no longer legally in existence," Simonds said. "The act was intended in part to recognize the flagship status of BNA and to ensure the continued success, growth and development of that kind of airport. It's our position that because it's acting in its governmental capacity, Metro doesn't have standing to pursue an equal-protection claim in this instance. There are no fundamental rights being infringed here."

Airport officials are tired of being a political football, Cate said, before asking the panel to deny the injunction request.

"The airport authority is run day-to-day by President Doug Kreulen and a group of executive staff with all the expertise to conduct major operations," Cate said. "All these dedicated staff want to do is run the airport. They want to get through this and run the airport. The authority maintained the position it was staying neutral, and it takes no position on Metro's constitutional challenge."

Sandy Mazza can be reached via email at smazza@tennessean.com, by calling 615-726-5962, or on Twitter @SandyMazza.

This article originally appeared on Nashville Tennessean: Judges hear arguments in Nashville vs. Tennessee airport board fiasco