A federal lawsuit was filed Jan. 21, 2011 by DeKalb Aviation, LLC naming the City of DeKalb, City Manager Mark Biernacki, City Attorney Norma Guess, and Airport Manager Tom Cleveland.
From the City of DeKalb:
City to file suit against its airport operator
The City of DeKalb announced today that it will be filing suit against DeKalb Aviation, LLC, which had been serving as its fixed base operator (FBO) at the DeKalb Taylor Municipal Airport since November, 2008. The City’s suit will be added as a counterclaim to a federal lawsuit filed last week by DeKalb Aviation against the City and several of its officials.
The City’s counterclaim will seek damages arising from DeKalb Aviation’s breach and default in its FBO contract with the City. “Last December, the City declared DeKalb Aviation in default due in part to unpaid rents and DeKalb Aviation’s failure to store and sell fuel as required under the contract,” said Michael Bersani of Hervas, Condon & Bersani, P.C., special counsel to the City. “Since the default declaration, according to City officials, the City has been unable to fully operate the airport, particularly the fueling operations, where the equipment and contracts needed to do so have been tied up by DeKalb Aviation. These revenue losses have been adding up which has forced the City to file suit,” Bersani said. In addition, the grant assurances that the City has with the FAA require the operation of a viable and accessible airport.
The City will be responding to DeKalb Aviation’s suit, which alleges that the City unreasonably seized DeKalb Aviation’s property, violated due process, and interfered with their business operations. Bersani said DeKalb Aviation’s allegations are meritless and the City defendants will seek dismissal of that suit. “This case is really about the City declaring DeKalb Aviation in breach because it was not operating the airport in a manner that met its obligations in the FBO contract. The City is mandated to run an airport. It took the steps necessary, and within the law, to do so,” Bersani concluded.
DeKalb Aviation’s suit named the City of DeKalb, City Manager Mark Biernacki, City Attorney Norma Guess, and Airport Manager Tom Cleveland. The City retained Bersani as special counsel since the City attorney was named as a defendant in DeKalb Aviation’s suit.
DeKalb Aviation filed a six count lawsuit against the City of DeKalb, alleging:
COUNT I (42 U.S.C. § 1983—Fourth Amendment—Unreasonable Seizure of Property—DeKalb Aviation, LLC Against the City of DeKalb, Mark Biernacki, in his individual capacity and in his official capacity as City Manager of the City of DeKalb, and Thomas Cleveland, in his individual capacity and in his official capacity as Airport Manager of the DeKalb Taylor Municipal Airport)
COUNT II (42 U.S.C. § 1983—Fourteenth Amendment—Deprivation of Property Without Due Process of Law—DeKalb Aviation, LLC Against the City of DeKalb, Mark Biernacki, in his individual capacity and in his official capacity as City Manager of the City of DeKalb, and Thomas Cleveland, in his individual capacity and in his official capacity as Airport Manager of the DeKalb Taylor Municipal Airport)
COUNT III (Conversion under Illinois law—DeKalb Aviation, LLC Against the City of DeKalb, and Thomas Cleveland, in his individual capacity and in his official capacity as Airport Manager of the DeKalb Taylor Municipal Airport)
COUNT IV (Fraud under Illinois law—DeKalb Aviation, LLC Against the City of DeKalb, Thomas Cleveland, in his individual capacity and in his official capacity as Airport Manager of the DeKalb Taylor Municipal Airport, and Norma Guess, in her individual capacity and in her official capacity as City Attorney for the City of DeKalb)
COUNT V (Interference with Prospective Economic Advantage under Illinois law—DeKalb Aviation, LLC Against the City of DeKalb and Thomas Cleveland, in his individual capacity and in his official capacity as Airport Manager of the DeKalb Taylor Municipal Airport)
COUNT VI (Interference with Prospective Economic Advantage under Illinois law—DeKalb Aviation, LLC Against the City of DeKalb and Thomas Cleveland, in his individual capacity and in his official capacity as Airport Manager of the DeKalb Taylor Municipal Airport)
The full complaint (will open as a PDF):
DEKALB-COMPLAINT-FILED-KLING (1)
City to file suit against its airport operator
The City of DeKalb announced today that it will be filing suit against DeKalb Aviation, LLC, which had been serving as its fixed base operator (FBO) at the DeKalb Taylor Municipal Airport since November, 2008. The City’s suit will be added as a counterclaim to a federal lawsuit filed last week by DeKalb Aviation against the City and several of its officials.
The City’s counterclaim will seek damages arising from DeKalb Aviation’s breach and default in its FBO contract with the City. “Last December, the City declared DeKalb Aviation in default due in part to unpaid rents and DeKalb Aviation’s failure to store and sell fuel as required under the contract,” said Michael Bersani of Hervas, Condon & Bersani, P.C., special counsel to the City. “Since the default declaration, according to City officials, the City has been unable to fully operate the airport, particularly the fueling operations, where the equipment and contracts needed to do so have been tied up by DeKalb Aviation. These revenue losses have been adding up which has forced the City to file suit,” Bersani said. In addition, the grant assurances that the City has with the FAA require the operation of a viable and accessible airport.
The City will be responding to DeKalb Aviation’s suit, which alleges that the City unreasonably seized DeKalb Aviation’s property, violated due process, and interfered with their business operations. Bersani said DeKalb Aviation’s allegations are meritless and the City defendants will seek dismissal of that suit. “This case is really about the City declaring DeKalb Aviation in breach because it was not operating the airport in a manner that met its obligations in the FBO contract. The City is mandated to run an airport. It took the steps necessary, and within the law, to do so,” Bersani concluded.
DeKalb Aviation’s suit named the City of DeKalb, City Manager Mark Biernacki, City Attorney Norma Guess, and Airport Manager Tom Cleveland. The City retained Bersani as special counsel since the City attorney was named as a defendant in DeKalb Aviation’s suit.
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8 Comments
I think its terrible news and that’s regardless of which side prevails. The residents of DeKalb, its corporate citizens and the local, state and federal taxpayers are substantially invested in DeKalb Taylor Municipal Airport. The City of DeKalb is not in the position to continue to provide airport funding from its challenged General Fund but it must because that huge investment of federal grants evidently came with clawback provisions. Each year the city council is told that DTMA is on the brink of turning the corner to financial self dependency. There is simply too much invested and at stake for such disputes to end up in the courts. The Mayor and City Council should conduct a hearing or investigation into this matter and DTMA operations in general. This is not the expected or desired result of public-private partnership.
The Wogengate story occupied the last 3 months of 2009, Leaseholdgate the latter half of 2010.
I agree, it would be interesting to find out what the big crisis was.
It will also be interesting to read the latest minutes of the Airport Advisory Board, since the DC seems to think the board has some sort of involvement in these events. The board should have met January 18 (after taking December off). If so, the November meeting minutes are approved and ready for the council to receive and file next meeting — or somebody might FOIA them, I suppose.
Mac, thanks for posting the PDF of this suit. I agree that this is likely to get both messy and expensive. Mac, how does the timeline for the City’s legal department’s actions as outlined in this suit match up with your take on the timeline for Wogengate? It might be interesting to know the nature of the crises mentioned by Attorney Guess in this suit. What else was going on that we do not know about as yet?
There are two sides to every lawsuit but I see, based entirely on the allegations, the potential for criminal investigation as well.
I’ve had this document for about a week. It was filed on Jan 21 but the court clerk did not confirm until the 27th. It was filed in Dist 3 of the US District Courts, Northern Illinois District, Western Division. The trial will likely be held in Rockford.
This could get really messy.
Thanks for bringing this document to us, Mac.
From about page 29 on it is particularly riveting, as I think I may be seeing grounds for a criminal investigation as well.
Will the trial be held in Chicago?
That’s the problem J.P. the city was probably still looking at DeKalb Aviation to pay something on the gallon while forced not to make any profit on the fuel.
This airport is nothing but a financial black hole for the taxpayers in this community. I wonder what the payback is going to involve to the Federal government for defaulting on their Agreement. Good to see that someone is challenging Norma Guess on some of her legal advice.
Wonder how Rick Monas plays into this or how he will eventually become involved.
How can the city claim loss of revenue? On the sign for hanger lease, it says “buy fuel at cost”?
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I have to say that this is the best news that I’ve heard in a long time. The people of the fine city of DeKalb don’t seem to realize that the city is being run by a bunch of “thugs in khaki’s”. Norma Guess seems to be the head honcho, and Mark Biernacki, Rich Monas and the rest are her minion’s. It’s about time something is done about the corruption in this city. However, I do find that this is a major misuse of city resources.