News and Tribune

November 15, 2012

Clark County air board mulls joining suit against its attorney

Board will reconvene from recess on Tuesday with its decision

By MATT KOESTERS
matt.koesters@newsandtribune.com

CLARK COUNTY — They didn’t say yes. But they didn’t say no either.

Clark County Attorney Greg Fifer attempted to persuade the Clark County Board of Aviation Commissioners to ratify his legal malpractice claim against air board attorney Jack Vissing at the board’s meeting Thursday.

“You can use whatever verb you want to,” Fifer said. “I’m advocating, I’m recommending, I’m respectfully requesting, I’m begging, I’m pleading for you, no matter how you personally feel about this issue, to ratify my authority and Mr. Voelker’s authority to continue to maintain this action on your behalf at no expense to you. The [Clark County] Commissioners will bear all of the litigation expenses, both in the appeal and the malpractice action.”

But the members of the board decided they needed some time to think it over and consult with legal counsel before moving forward.

“I’d like to know exactly what it is that I’m going to agree to, and what repercussions it’s going to have on us as a board and individually,” Aviation Commissioner Alan Conner told Fifer.

Board President Ron Barnes agreed on the need to seek independent counsel.

The decision to table the matter until next week came after Fifer presented a 124-page document to the board outlining the history of what went wrong in the purchase of a 72-acre tract of property sold to the air board by Margaret Dreyer, who successfully sued the county. With interest, as of Dec. 3 the county will owe the Dreyer estate $870,000. The county has already paid Dreyer $203,000.

Fifer wants to pursue action against Vissing because he believes that if his appeal of the judgment in favor of Dreyer — who died Oct. 20 — fails, he wants the county to have other means to recover the loss. However, Fifer believes that his appeal has a good chance of succeeding, he said.

“I hope we win the appeal. I hope [the lawsuit against Vissing] means absolutely nothing,” Fifer said. “We should win the appeal.”

Conner made the motion to withhold judgment on ratifying the right of Voelker and Fifer to continue pursuing the appeal, which the board approved. The board recessed and will reconvene at 5 p.m. on Tuesday to give its decision.

The air board was reluctant to give an immediate answer partially because Fifer informed its members that if they refused to give him the authority to pursue action against Vissing, that he would be forced to amend his case to a suit filed solely by the commissioners against Vissing, and possibly to name the air board as a defendant in the case.

That amounted to a threat against the air board if they did not agree, said Matt Breetz, who Vissing retained as legal representation. Barnes disagreed.

“I’m not taking it as if I’ve got a gun to my head,” Barnes said. “I don’t see it that way.”

In his presentation, Fifer explained why he believed Vissing had committed legal malpractice, an argument that seemed to sway Aviation Commissioner Dan Gregory.

“Even though we like Jack and I think he does a good job ... our obligation is to the taxpayers,” Gregory said.

Fifer’s presentation included correspondence between Vissing and Fifer, starting with a letter Vissing wrote to Fifer and County Council Attorney Scott Lewis in which he explained how he had relied on a single appraisal of property purchased by the air board in an eminent domain action.

“Unfortunately, I do not think the jury liked our appraisal and they cetainly did not like our presentation, and the fact that we did not have a separate appraisal was a surprise to me until I got to court,” Vissing wrote in a letter dated Feb. 22, 2011.

Fifer’s presentation lasted more than 50 minutes. In it, he pointed out what he felt were key components of the correspondence, including Fifer’s request to Vissing to sign an agreement tolling — essentially delaying — any statute of limitations regarding the filing of a claim of legal malpractice against Vissing. Fifer said if Vissing had agreed to that, the meeting between Fifer and the air board would not have been necessary.

“For the life of me, I can’t figure out how that’s a rational position to have taken,” Fifer said. “But it left me with no choice in my duty to protect the county’s interests. Mr. Voelker tells me he has offered to— even though it’s now public — to do the same thing, to put this action on hold until the appeal is decided, and we have not been able to reach agreement on that.”

Fifer also explained the basis of his appeal of the judgment against the air board in the Dreyer matter, and explained that Dreyer attorney John Mead should only have had 20 days to file an exception to the county’s assessment, which valued the contested property at $203,000. Mead filed the exception 61 days after the issuance of the appraiser’s report.

The county council had been scheduled Thursday to consider signing an agreed order to pay the Dreyer estate the judgment balance to prevent forfeiture action by the estate, but Lewis said his sense of the county council’s previous opinions on the matter led him to believe they would take no action on the agreement that evening.

Federal Aviation Administration grants would retire the debt for the Dreyer settlement, Vissing contended.

“That’s still taxpayer money,” said County Council President Barbara Hollis, who was in attendance at the meeting.

Clark County Regional Airport Manager Melodee McNames said the Federal Aviation Administration had given around $7 million for the airport improvement project. Mike Harris, an engineer employed by Jacobi, Toombs and Lanz contracted by the air board, declined to speculate on what would happen if the county allowed the forfeiture of the property to take place.

“We definitely need that piece of property,” McNames said, adding that she thinks the county would need to purchase it again at a higher price if it was forfeited.

Barnes had previously written a letter to Fifer and the commissioners requesting that Fifer’s suit against Vissing be dropped. Vissing asked the board to reiterate that position in an e-mail sent sometime before the meeting.

“I would like to head off Greg Fifer so he does not turn [the meeting] into a circus,” Vissing wrote. “If each board member would support Ron’s earlier letter to the commissioners and say no to joining a suit against me, he has no reason to come.”

Fifer didn’t take kindly to the sentiment.

“I find that to be a little irritating,” Fifer said.

HOW THIS HAPPENED

• As part of a runway expansion project at the Clark County Regional Airport, the air board needed to purchase property owned by the Dreyers. According to court records, the Clark County Board of Aviation Commissioners offered to purchase part of the Dreyer property at $55,000 per acre, which was accepted. However, an offer of $3,000 for another portion of property that lies in a floodplain was rejected by the Dreyers. As a result of the rejected offer, the board filed an eminent domain action in 2009.

The land in question lies at the end of the proposed 7,000-foot expanded runway and is needed not only to be able to expand the tarmac, but to allow for the relocation of Bean Road. According to court records, Ed Haire was hired to do the appraisal for the air board and returned a total of $203,000 for the price of the property. Dreyer filed an objection to the figure and an appraiser the property owner hired returned a figure of $1.09 million as the value of the land.

According to court records, the large difference in the value for the appraisals of the land was due to the location of the property in the floodplain and a zoning designation of agricultural, instead of light industrial.

Following a jury trial in Clark County Circuit Court, a ruling was issued that valued the Dreyer property at $865,000.