City trying to close FBO. Claims tainted fuel

Noobie said:
Irony - being called out on a mesage board for using a moniker by a poster using a MONIKER...

And I still want Chris to post the analysis he has.
Click to expand...

Hmmm.. Lets see...
A person shows up as this is getting real incriminating for the City, with the screen name Noobie and just 4 posts and demands the test results from another person who has laid out a pretty compelling case against the City in their attempt to shut down a longtime FBO..... :idea::idea::idea::idea:

I call your bluff.

Ben.
 
Noobie said:
Irony - being called out on a mesage board for using a moniker by a poster using a MONIKER...

And I still want Chris to post the analysis he has.
Click to expand...

I have met probably over 100 people from this board. They all know who I am, where I live, what I fly, and what airport I manage. I've also posted my real name as recently as this week.

The name is Ed Frederick, I live in Caledonia, MI and manage 6Y9. Your turn. Put up or shut up.

Edit: Thanks Spike and Nick.
 
Last edited:
Noobie, you made a BAaaaaddd mistake. We have all met Ed Frederick. He's a real person, works at a specialty electronics firm in Grand Rapids, MI. Flies a Comanche 250 and a CFI.

4 posts and already in flames. He's the real deal. WHAT are you?
 
Noobie said:
I'd sure like to see Chris post the fuel analysis results they got from the lab...
Click to expand...
And I would sure like to see a few government officials suffer severe legal consequences if abuse of power can be proven in court.
 
Dean V said:
One needs to disregard some Airnav FBO comments these days.
Click to expand...

You mean all. Once they play games with a few, the whole site loses credibility. No time for that crap. Not even worth reading 'em lately.
 
AdamZ said:
So Noobie, who are you? I'd guess you are interested in the matter as your IP address IDs you as being from New Branufels TX. City employee? Airport employee? Interested local pilot?
Click to expand...

IT nerd hammer time. Loooooove it!

What's the Whois record say for the IP? Let's see if it's SWIPed to a government IP block. ;)

Dumbasses think they're anonymous on the Internet always give me a good laugh. There's no place like 127.0.0.1! ;)
 
bbchien said:
Noobie, you made a BAaaaaddd mistake. We have all met Ed Frederick. He's a real person, works at a specialty electronics firm in Grand Rapids, MI. Flies a Comanche 250 and a CFI.

4 posts and already in flames. He's the real deal. WHAT are you?
Click to expand...

I'm the new guy that's made 4 posts - and EdFred (iSeeYou) is a moniker - who got called out for asking Chris to post his analysis results. I do know folks here by name...not that difficult if you have followed the story in the local paper or paid attention to airport politics over the last 3 or 4 years.

As for being new...Chris (he's even identified himself by name multiple times in his postings, commentaries and letters to the editor) has repeatedly invited everyone who reads the blogs on the local paper to come to this forum board and get the whole story...

I did that, read everything, saw repeated references to his analysis results, and would still like to see them posted.
 
Noobie said:
I did that, read everything, saw repeated references to his analysis results, and would still like to see them posted.
Click to expand...


I think thats a fair enough request
 
gprellwitz said:
Maybe, once noobie identifies himself. If he's a city employee, that's basically the city saying "publish your results, but we won't publish ours."
Click to expand...


Never thought of it like that.
 
gprellwitz said:
Maybe, once noobie identifies himself. If he's a city employee, that's basically the city saying "publish your results, but we won't publish ours."
Click to expand...

Well, in fairness, a city employee isn't always representing the city. Of course, it's murky at best if the employee is using city resources to post.
 
Well, let's all maintain our neighborly demeanor... as we usually do!

Noob, I'd like to see results of analysis from everyone, but would sort of point out that it was the municipality which started the shooting war by making some pretty serious allegations against the FBO, but has since played "hide the ball" with the information. In the circumstances, a little circumspection by interested parties is not surprising.

Let's see where all this takes us...
 
Most Texans understand the reasons why you don't show your hole card until the hand is over. Why would anybody post anything of value on an internet forum? If you want to see the cards, you gotta call the bet.

Where are the results from the other side? Aren't those the only ones that matter insofar as this case is concerned?

Noobie said:
I'm the new guy that's made 4 posts - and EdFred (iSeeYou) is a moniker - who got called out for asking Chris to post his analysis results. I do know folks here by name...not that difficult if you have followed the story in the local paper or paid attention to airport politics over the last 3 or 4 years.

As for being new...Chris (he's even identified himself by name multiple times in his postings, commentaries and letters to the editor) has repeatedly invited everyone who reads the blogs on the local paper to come to this forum board and get the whole story...

I did that, read everything, saw repeated references to his analysis results, and would still like to see them posted.
Click to expand...
 
OK Noobie AKA Momtie on the Herald , as you most likely work at the airport or are the spouse of the airport director or his secretary/ administrative assistant you likely know where the Cafe is. I will be there tomorrow morning and every Wednesday and Saturday Morning. Thats where the fuel analysis results are posted. I did read the results to the Fire Marshal Capt. Patrick O'Connell back in March face to face. He refused to show me his. I didn't "show" him mine since he wouldn't reciprocate but I did read the results to him. Just as I will write here. "Sample meets ASTM D-910 standard for aviation gasoline. Sample shows No sign of contamination with a heavier product ." It isn't posted here because it is a PDF and I can't directly cut and paste it to the web. I'm to cheap to buy acrobat.

Now Noobie or Momtie, You wouldn't be the guy that I photographed fueling the Cessna without cones or fire extinguishers deployed would you. Stop by the Cafe and I will give you a color photo of you pumping gas into that Cessna while talking on the phone. You see it takes two hands to fuel . One to hold the fuel nozzle and one to put the cap back on. Since you were using one hand to hold the phone guess what didn't get replaced when you were done.........Thats right . The left fuel cap was not replaced....We also have some of you fueling an AC in a hanger. Definately against the fire code and airport rules.

When are you going to install the Bollards that the building inspector ordered you to place in front of the new fuel cabinets?

Now if you are the airport director or his wife.....You really should talk to Alpha Aircraft about getting free rides ... A test flight at that....Isn't that against the rules having PAX on a test flight? And putting it on FACEBOOK isn't so smart. It shows bias and favoritism accepting favors from a tenant. It could be thought of as taking a bribe. No hurry, We already have copys of the facebook photos.

I'm glad you are reading the newspaper and comments so you can be reminded of the truth.

Have you read the paper last week. We had 2 front page articles and one on page 3. Also several Letters to the editor.

Chris
 
Last edited:
Just to get everyone caught up with whats happening in the local newspaper.

▼ NB AERO / AIRPORT FUEL FLAP

FAA gets involved

Agency investigating airport fuel dispute


By Greg Bowen

The Herald-Zeitung

The Federal Aviation Administration is investigating allegations that the City of New Braunfels has violated the terms of the agreement under which it receives federal grants to improve the city-owned airport.

The allegations center around the rocky relationship between the city and New Braunfels Aero Services, which operates an aviation business in facilities leased from the city at New Braunfels Municipal Airport.

Issues being examined include troubled leaseextension negotiations between the city and NB Aero, as well as a fueltransfer incident in March that resulted in the city obtaining a restraining order against NB Aero and the closure of the firm’s aviation fuel sales operation. Both issues are already the subjects of court actions.

FAA officials visited with city officials last week to discuss the allegations.

Airport Manager Lenny Llerena, in a letter to the FAA, said the city is actively working to resolve the lease issue and has determined that, to ensure safe operations, NB Aero should not be allowed to sell aviation fuel until a criminal investigation related to the March incident is completed.

FAA spokesman Lynn Lunsford said Thursday that the FAA hasn’t come to any conclusions in the investigation.

“There are multiple steps in this process and were kind of at step two,” Lunsford said.

He said last week’s visit was simply a part of the investigation triggered by the informal complaints filed against the city. Both NB Aero and a local pilot, Chris Penski, have lodged complaints.

Lunsford explained that when cities receive federal funding for airport improvements, covenants known as “grant assurances,” which cover a whole variety of requirements, are signed.

“One is that the city pledges to not discriminate or favor one business over another,” he said.

If a city is found in violation, it could possibly affect the city’s ability to get future federal funding for airport improvements, Lunsford said.

“But it’s way premature to speculate whether the city’s ability to receive airport grants is in danger,” he said.

“At this point, we’re simply investigating allegations.”
 
Hello again, Just picked this up off the Herald-Zeitung . More BAD PR for the city. Keep it going guys.

AG asked to rule on city's release of emails

Posted: Wednesday, July 13, 2011 12:00 am
AG asked to rule on city's release of emailsBy Greg Bowen New Braunfels Herald-ZeitungHerald-Zeitung | 0 comments
NEW BRAUNFELS — The City of New Braunfels is asking for an attorney general’s opinion that would allow it to withhold emails between city officials concerning the New Braunfels Aero controversy.
The emails are being sought by resident Fred McMichael under the Texas Public Information Act.


On June 23, McMichael filed a request for all emails concerning the municipal airport sent from Jan. 1, 2009 until June 23 between any two of three city officials: the airport director, the city attorney and City Manager Michael Morrison.

Interim City Attorney Paul Isham said Tuesday that the city intends to release emails that are not related to NB Aero.

The city and NB Aero, which operates an aviation business in facilities leased from the city at New Braunfels Municipal Airport, are fighting court battles over a lease extension and a fuel-transfer incident that resulted in the city obtaining a restraining order against NB Aero and the closure of the firm’s aviation fuel sales operation.

After receiving McMichael’s request, Isham on July 7 sent a letter to the Texas Attorney General seeking an opinion that would allow the city to withhold release of NB Aero-related emails under Public Information Act exemptions protecting information dealing with litigation and the attorney-client privilege.

Laurie Saathoff, a public information officer with the AG’s office, said Tuesday that the AG has a 45-day deadline — until Sept. 12 —to release its ruling.

Meanwhile, the city is assembling a cost estimate for McMichael on expenses it would incur — and charge to him — for assembling the non-NB Aero related emails, Isham said.

He said the city can charge $15 to $28.50 per hour for employee costs in retrieving the emails, plus 10 cents a page for copying them.

“We’d require him to put up a deposit totaling an estimate of the costs,” Isham said.

If the AG rules the city has to release the emails on NB Aero, the city would have to develop a cost on those as well, he said.

If McMichael disagrees with the cost estimate to be given to him by the city, he can ask the AG for a review of the city’s calculations.

“The AG would come back to us and ask how we developed the estimate and we’d provide an analysis and then they’d make a decision if it’s OK or too much,” Isham said.
 
OK Fred, You need to ASK for the emails to be given to you for FREE as it is in the public interest.. I know I'm interested in seeing what the city manager and airport director have been scheming and what their attorney had to say about it. The emails are useless unless you get those concerning NB Aero.

I think the attorney client privilege goes away when we take the attorney out of the picture.

By going to the Attorney General the city bought itself another 45 days.

I was thinking of moving to Quartzite Arizona but this is more interesting. Quartzite is also having problems at their airfield I hear.

Attorney: New Braunfels can release emails for freePosted: Thursday, July 14, 2011 12:00 am

Attorney: New Braunfels can release emails for freeBy Greg Bowen New Braunfels Herald-ZeitungHerald-Zeitung | 0 comments
NEW BRAUNFELS — A resident seeking emails sent between New Braunfels city officials concerning the municipal airport might not have to pay for the requested documents, a First Amendment attorney with the Freedom of Information Foundation of Texas said Wednesday.
The emails are being sought by resident Fred McMichael under the Texas Public Information Act. He’s asking for all emails concerning the airport sent from Jan. 1, 2009 until June 23, 2011, between the airport director, the city attorney and the city manager.


The city is compiling a cost estimate for staff time that would be involved in retrieving the emails and for copying charges. The city plans to have McMichael pay the estimated costs before he receives the copies.
But attorney Joel White of Austin said a provision of the Texas Public Information Act allows agencies to release documents requested under the act free of charge.
The provision requires that the documents must be of sufficient interest to the public, he said.
The request for emails concerning the airport would seem to qualify, White said.
The city and an airport tenant, NB Aero, are fighting legal battles over NB Aero’s lease and ability to sell fuel at the airport.
“That kind of thing is just what that provision is intended for,”White said.
“The airport is the airport and, of course, there is public interest in it.”
But the decision not to charge rests entirely with the city, White said.
“So the chance of them saying they’ll do that — it doesn’t happen very often,” White said. “If there’s something they’re not wanting to release, then they’re not going to help you by providing it free.”
White, who represents media organizations in Public Information Act cases, says he always advises news organizations to request the documents free of charge.
Some governmental agencies are good about complying with the request. “Others say, ‘Sorry, we have real budget constraints.’”
White said governmental agencies typically do not provide records without charge unless they are first asked to do so.
“Maybe (McMichael) hasn’t asked that they provide them to him free because they are of sufficient interest to the general public. He should. They’re not going to do it if he doesn’t,” White said.
Another way to get around paying a fee for requested documents is to ask to simply review the documents, rather than to have them copied, White said.
“He doesn’t have to pay a dime. He can request to just look at the documents, not get copies of them.”
An agency cannot require someone to pay a deposit just to look at documents. If copies are requested after the documents are reviewed, the agency can charge 10 cents a page for copying.
“He can look at them and then pay 10 cents a page for copies of those he’s interested in.”
Agencies cannot generally charge for staff time in such cases, White said



 
ultrasonix said:
OK Noobie, as you most liikely work at the airport or are the spouse of the airport director you likely know where the Cafe is. I will be there tomorrow morning. Thats where the fuel analysis results are posted. I did read the results to the Fire Marshal Capt. Patrick O'Connell back in March face to face. He refused to show me his. I didn't "show" him mine since he wouldn't reciprocate but I did read the results to him. Just as I will write here. "Sample meets ASTM D-910 standard for aviation gasoline. Note: No contamination by a heavier substance noted." It isn't posted here because it is a PDF and I can't directly cut and paste it to the web. I'm to cheap to buy acrobat.

Now Noobie, You wouldn't be the guy that I photographed fueling the Cessna without cones or fire extinguishers deployed would you. Stop by the Cafe and I will give you a color photo of you pumping gas into that Cessna while talking on the phone. You see it takes two hands to fuel . One to hold the fuel nozzle and one to put the cap back on. Since you were using one hand to hold the phone guess what didn't get replaced when you were done.........Thats right . The left fuel cap was not replaced....We also have some of you fueling an AC in a hanger. Definately against the fire code and airport rules.

When are you going to install the Bollards that the building inspector ordered you to place in front of the new fuel cabinets?

Now if you are the airport director or his wife.....You really should talk to Alpha Aircraft about getting free rides ... A test flight at that....Isn't that against the rules having PAX on a test flight? And putting it on FACEBOOK isn't so smart. It shows bias and favoritism accepting favors from a tenant. It could be thought of as taking a bribe. No hurry, We already have copys of the facebook photos.

I'm glad you are reading the newspaper and comments so you can be reminded of the truth.

Have you read the paper last week. We had 2 front page articles and one on page 3. Also several Letters to the editor.

Chris
Click to expand...


aaaaaaaaand Noobie gets the smackdown
 
May I refer you to the photos of the city fuel farm and the response from the city building inspector concerning the condition of the city fuel farm. Much of the work has been done but the bollards have yet to be installed. Also. Open records requests show no building permit issued for the work even though the city building inspector required it.

We will get to the discrimination issues at a later time. It involves $$$. Like $225,000. And still counting. Ask yourself why the city won't release the emails Or the fuel analysis results.
 
Last edited:
To Noobie,

How the New Braunfels Aero fuel fiasco began most recently.
The dispute between NB Aero and the city has been ongoing. The city doesn’t like competition.
In September 2010 the city and NB Aero were negotiating the lease under the settlement agreement ordered by the court. All had been settled except the per square foot cost. The city then interrupted and requested a buy out amount.
NB Aero gave the amount and said the offer was good for 2 weeks. The city never responded. Shortly after, the city began a period of compliance inspections by the fire marshal, building department and code compliance dept. These inspections were ongoing and harassing to NB Aero tenants and customers disrupting business. This continued for months.
In February the fire marshal visited the NB Aero fuel farm and left without incident. A few days later the building inspector arrived at the fuel farm and found safety hazards and shut down the facility (The city actually owns the fuel farm and leases it to NB Aero).
NB Aero was then forced to purchase fuel in small quantities and transfer directly to its fuel truck. This was very expensive.
The city then contacted all of the fuel suppliers and transporters in the area and ordered them not to deliver fuel to NB Aero.
NB Aero then learned that a company called VP Racing sold avgas and other specialty fuel and was actually a worldwide company located nearby. VP was already a seller of aviation fuel to the specialty market such as the Reno air races and various war birds. They were looking to expand into the general aviation fuel market in the area as the base product used in their fuels was 100LL. They agreed to deliver 1100 gallons of 100LL to NB Aero.
Saturday March 5 the tanker arrived at the airport and stopped at the terminal to ask directions to NB Aero. During the fuel transfer a city employee observed the Placard on the tanker didn’t read 1203 as he was taught it should. The airport director had been taught that avgas comes in a truck placarded 1203 and made the claim that the fuel wasn’t Avgas because it wasn’t placarded 1203 for gasoline but 1268, petroleum distillates. A few days later he swore an oath that his claims were correct and a Temporary Restraining Order was issued by the court. NB aero had already given the requested documentation to the court but the city seized the NB Aero fuel truck.
Before the city seized the truck NB Aero removed fuel from the tanker and had it analyzed by Alcor Petrolab.
The city fire marshal had samples taken by a contractor and analyzed. The results remain unknown to the public.
During the TRO hearing a letter from the Guadalupe County DA was given to the judge requesting the results not be released due to a pending criminal investigation that he had just learned about.
During the hearing the city attorney admitted 2 of his samples were good but 1 was “A Little Squirrely.”
Many open records requests were requested by local pilots. All were denied.
The city even attempted to withhold the invoice for the tests but was directed to release it by the TX Attorney General. The cost was $5,343 plus shipping.
During our attempts to expose the truth we contacted our Congressman, TxDOT and the FAA. We learned from Congressman Lamar Smith that the city was attempting to obtain Proprietary Exclusive Rights to sell fuel at the airport. However, NB Aero had a contract with the city allowing them to provide their own fuel and sell it.
We later found a change to the city airport rules that stated the city had claimed exclusive rights to sell fuel.
NB Aero’s contract effectively blocked the city’s plan as a contract overrides exclusive rights.
This is why the city must cause NB Aero to break their lease which the city claims that they don’t have.
The city attorney has recently complained to the TX Attorney General that we have ATTACKED the city and its airport director by filing 23 open records requests and contacting Congressman Lamar Smith, TxDOT and the FAA.
He must think he lives in China or the old Soviet Union.
We have since filed about 10 more requests but who's counting. I will say thay the city hasn't truthfully responded to our requests.
The more information we learn the more questions we have concerning the citys activities at the airport.

The story continues>>>>>>>>
 
It could be worse. The city could just have canceled the lease agreement with the FBO with no reason at all like they just did here on my aircraft maintenance shop. City's and local authorities can do what they want and there isnt much that can be done about it.
 
flyer said:
It could be worse. The city could just have canceled the lease agreement with the FBO with no reason at all like they just did here on my aircraft maintenance shop. City's and local authorities can do what they want and there isnt much that can be done about it.
Click to expand...

Not entirely true; what is happening in New Braunfels is, if true (and all appearances support the clearly-recited allegations above) a blatant violation by the municipality of the non-discrimination aspects of federal AIP grants.

They cannot, despite their arrogance, simply "do what they want."
 
SCCutler said:
Not entirely true; what is happening in New Braunfels is, if true (and all appearances support the clearly-recited allegations above) a blatant violation by the municipality of the non-discrimination aspects of federal AIP grants.

They cannot, despite their arrogance, simply "do what they want."
Click to expand...
None of that stopped Mayor Daley from doing what he wanted with Meigs.

In the end he and the city paid a pittance, call it a small fee, but they did and got what they wanted.
 
ScottM said:
None of that stopped Mayor Daley from doing what he wanted with Meigs.

In the end he and the city paid a pittance, call it a small fee, but they did and got what they wanted.
Click to expand...

Sadly, Meigs had no grant assurances in place - they were weapons free, constrained only by the promises they had made - promises crafted of gossamer...
 
SCCutler said:
Not entirely true; what is happening in New Braunfels is, if true (and all appearances support the clearly-recited allegations above) a blatant violation by the municipality of the non-discrimination aspects of federal AIP grants.

They cannot, despite their arrogance, simply "do what they want."
Click to expand...



That issue has already been brought up on my situation, and the airport boards response was "they cant tell us what to do"

But it sounds like the New Braunfels situation is turning into a long legal battle. Not good for either sides.
 
flyer said:
That issue has already been brought up on my situation, and the airport boards response was "they cant tell us what to do"

But it sounds like the New Braunfels situation is turning into a long legal battle. Not good for either sides.
Click to expand...

If the FAA has given them money, they most certainly can.
 
What is happening with the temporary restraining order? Has it been lifted? Is it still in place (or made permanent)? Have there been any developments in that case?
 
SCCutler said:
Sadly, Meigs had no grant assurances in place - they were weapons free, constrained only by the promises they had made - promises crafted of gossamer...
Click to expand...
That is true, they had no grant assurances. I was thinking about the regulations that Daley violated to close the airport without the 30 day notice.
 
Obi Heed Kenobi said:
What is happening with the temporary restraining order? Has it been lifted? Is it still in place (or made permanent)? Have there been any developments in that case?
Click to expand...

The TRO was disolved in April.

NB Aero made repairs to its fuel farm.

The city building inspector approved all work.

The city manager refused to allow NB Aero to place the fuel farm into service citing past performance.

City fuel sales have nearly tripled.

FAA and Tx DOT visited city June 29. No word on findings.

July 9 NB Aero held fundraiser for lawsuit against city.

City still hiding fuel analysis results in Phoney criminal investigation.

City attempting to prevent open records requests.

More open records requests filed.
 
New Braunfels Airport Advisory Board Meeting

The next airport advisory board meeting will be held Wednesday August 10 at 6:30 pm in the City Terminal.

Come join us as we make our voices heard. Fly, drive, bike or walk but be there.;)

The July meeting was unexpectedly Cancelled.:confused: :nono:

JOIN US!:yikes:
 
Noobie,

If you really are a city employee you must be a very low level worker since the Fuel analysis was provided to the city on March 8. You would know that if you were anybody. Or maybe you are just playing stupid. So you haven't been following very long......
Again in court and again it was provided to the FAA during their visit. You might also find it floating in cyberspace someplace. Perhaps in the Herald comments. One place that the results have been on display since March is the Aviator Cafe. You know where that is don't you? http://www.newbraunfelsairport.com/dl/Menus/Lunch.pdf

The Cafe is closed and the employees lost their jobs because the city lied.

We meet there. Its called the KBAZ Clubhouse. Join us Saturday morning and I promise I will personally show you the results. I am attempting to post them here but I need assistance from the management.

Chris
 
Last edited:
Chris I get your passion, I really do and, and if Noobie is from the opposing team so to speak there's nothing wrong with calling him out but lets keep things mature and avoid calling or suggesting that others are stupid. It does nothing to further your position and it sounds like you have a good one so don't sully it.

Thanks.
 
AdamZ said:
Chris I get your passion, I really do and, and if Noobie is from the opposing team so to speak there's nothing wrong with calling him out but lets keep things mature and avoid calling or suggesting that others are stupid. It does nothing to further your position and it sounds like you have a good one so don't sully it.

Thanks.
Click to expand...

+1. Really.
 
Edit: I stand corrected. I only saw the sanitized version. You may proceed.

Objection. He didn't say he was stupid, he said he was playing stupid.

The former suggests a lack of intelligence, the latter describes a strategy.
 
Last edited:
Here is one I forgot to post. The City attorney letter to the TX Attorney General.

OFFICE OF THE CITY ATTORNEY
July 7, 2011
Public Information Coordinator Texas Attorney General's Office P.O. Box 12548
Austin, Texas 78711-2548
Re: Texas Public Information Request
Requestor: Fred McMichael​
Date Received: 06/14/11​
Request for Clarification: 06/21/11​
Date of Clarification: 06/23/11​
Ladies and Gentlemen:
CMRRR NO. 7006 2760 0003 8893 2452​

The City of New Braunfels (hereinafter referred to as the "City"), received a written request under the Texas Public Information Act ("PIA"), Chapter 552, Texas Government Code, on June 14, 2011 from Fred McMichael ("Requestor"). The Requestor seeks the following
"All email correspondence between the Airport Director, City Attorney, and City Manager concerning the Municipal Airport from January 1, 2009 until today June 14, 2011."
The City requested a clarification from Requestor by letter dated June 21, 2011 and Requestor responded on June 23, 2011 and requested the following:
"All email correspondence between any two of the following three individuals: the Airport Director, City Attorney and City Manager, concerning the Municipal Airport From January 1, 2009 until Today June 23. 2011."
True and correct copies of the Request for Public Information served upon the City, the Request for Clarification, and the Clarification Letter from Requestor are enclosed with this correspondence and marked as "Exhibit A."
There are two issues involved with this request. One is the cost of complying with the request because it is clear that the cost will exceed $40.00. The City is developing a cost estimate in accordance with Section 552.2615, Texas Government Code, and will require the Requestor to deposit an amount equal to the cost estimate prior to producing any documents that are not excepted from disclosure under the law.
Since the Requestor has requested emails between: (a) the City Attorney and City Manager; (b) the City Attorney and Airport Director; and (c) the City Manager and the Airport Director [copies of which were forwarded to the City Attorney], the City claims an exception from public disclosure of a substantial majority of these emails on the basis of the attorney-client privilege. As will be explained below, most of the requested emails involve litigation situations dealing with New Braunfels Aero Service, Inc. ("NB Aero"), a tenant and lessee at the New Braunfels Municipal Airport (the "Airport"). With regard to email correspondence involving other matters at the Airport and subject to reviewing those matters for possible attorney-client privilege, the City will produce such emails pursuant to the request and after the cost deposit has been paid by the Requestor.
BACKGROUND
NB Aero has been a tenant at the Airport since August, 1970, and has had its lease extended, renewed, and/or modified on several occasions since that date. In 2003, NB Aero sued the City concerning the interpretation of the lease as well as the validity of an option to renew the lease and the parties eventually reached a settlement agreement of the litigation in January, 2008. At the time of the settlement, NB Aero's lease was due to expire on August 31, 2010, but the settlement agreement provided that NB Aero would be entitled to enter into a new lease for the period of September 1, 2010 to August 31, 2030 provided that it was not in default of the current lease at the time that it entered into the new lease.
NB Aero and the City have not entered into a new lease because it is the City's position that NB Aero was in default under the lease that expired on August 31, 2010. NB Aero has remained at the Airport under a month to month tenancy.
On April 23, 2010, the City hired the Austin law firm of Slack & Davis (particularly Michael Slack and Paula Knippa) to represent it with regard to:
"representing the City of New Braunfels ('City of New Braunfels' or "Client') as counsel to advise and represent Client with respect to disputes and controversies with New Braunfels Aero Services, Inc. ('NB Aero') arising from the lease agreement dispute between Client and NB Aero and NB Aero's operations in connection with the leased property (the 'Matter')."
As previously mentioned, a substantial portion of the emails requested by the Requestor deal with the City's dealings and relationship with NB Aero and the lease agreement disputes.
P.O. Box 311747 TEL 830.221.4280 424 SotrrH CASTE LL AVENUE
1. The Fueling Incident:
During the time that the City and NB Aero were discussing issues concerning the lease agreement, several things occurred. First, an inspection was made of the NB Aero fuel farm and said inspection revealed discrepancies and violations. The fuel farm was closed until the violations were corrected. Then, on March 5, 2011, the City noted that VP Racing delivered approximately 1,000 gallons of fuel to NB Aero at the Airport by transferring the fuel from a VP Racing tank truck directly into an NB Aero fuel truck marked with "Texaco" insignias. To the City's knowledge, VP Racing is not a distributor of Texaco products nor is it in the business of selling aviation gasoline ("AvGas"). Between March 6 and March 9, NB Aero resold the fuel or fueled specific airplanes with the fuel no less than 12 times. The City became concerned about the public safety of the aviation public with regard to the use of the fuel in aircraft and whether the fuel was, in fact, AvGas. In order to protect the aviation public, the City filed an application for temporary restraining order, and on March 9, 2011, the District Court of Comal County entered a TRO requiring NB Aero to produce documentation about the fuel purchase and sale and also to notify all purchasers of the unidentified fuel that the fuel sold to them was not AvGas and that NB Aero did not have a certificate of analysis to verify the quality or integrity of the fuel. NB Aero was also to notify its customers that had purchased the fuel that the fuel should be removed from their aircraft immediately. A copy of the TRO is attached as Exhibit "B." The TRO was extended twice by agreement of the parties.
Additionally, the District Attorney commenced an investigation into the source and quality of the fuel and whether any criminal violations had occurred as a result of the purchase, delivery and resale of the fuel as AvGas. The City's Fire Marshal obtained samples of the fuel and has had same tested to determine whether it meets the specifications for AvGas. Several private pilots have requested copies of the results of the tests conducted at the request of the Fire Marshal, but the City has refused to release such results because of a request of the Guadalupe County District Attorney's Office not to release the results. In OR2011-05351 (April 18, 2011), your office ruled that the City did not have to publicly disclose the analysis results of the fuel sample. Your ruling is enclosed and marked Exhibit "C." The investigation by the Guadalupe County District Attorney's Office is still in progress as of this date.
2. The Attack on the City and its Airport Director:
A group of friends and supporters of New Braunfels Aero have commenced an attack on the City and its Airport Director as a result of the fueling incident. Since March, 2011, this group has filed no less than 23 Public Information requests with the City. In addition, members of the group have contacted the Federal Aviation Administration, Texas Department of Transportation Aviation Division, and Congressman Lamar Smith's office all in an effort to deter the City from continuing with the fuel investigation and to either run-off the City's Airport Director or have him fired. Even though these requests have consumed a great deal of staff time. the City has responded to the requests in accordance with the provisions of the Texas Public Information Act. Copies of the various requests are attached as Exhibit "D."
P.O. Box 311747 TEL 830221.4280 424 SOUTH CASTELL AVENUE
NEw BRAUNFELS, TEXAS 7812 Fax 830.626.5578 NEW BRAUNFELS, TEXAS 78130
www.nbtexas.org
EXCEPTIONS FROM PUBLIC DISCLOSURE 1. Section 552.103(a):
Section 552.103(a) of the Government Code excepts from public disclosure "information relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party or to which an officer or employee of the state or a political subdivision, as a consequence of the person's office or employment, is or may be a party." The "litigation exception," as it is commonly called, is intended to prevent the use of the Public Information Act as a method of avoiding the rules of discovery used in litigation. Thomas v. Cornyn, 71 S.W.3d 473, 487 (Tex.App. — Austin 2002, no pet.); AG Opinion JM-1048 at 4 (1989).
For information to be excepted from public disclosure by § 552.103(a): (1) litigation involving the governmental body must be pending or reasonably anticipated; and (2) the information must relate to that litigation. Univ. of Tex. Law Sch. v. Tex. Legal Found, 958 S.W.2d 479, 481 (Tex.App. — Austin 1997, no pet.). Exhibit "B" clearly shows that there is existing litigation between the City of New Braunfels and NB Aero. Also, it is clear that the group of allies of NB Aero is supporting NB Aero in the litigation and assisting with the raising of funds to help NB Aero's litigation expenses. See attached Exhibit "E" concerning the raising of funds to help NB Aero.
Once litigation has been initiated, a party can reasonably anticipate that pleadings will be amended and that additional claims could be raised against it. In that regard, the City anticipates amending its pleadings against NB Aero to include allegations concerning the breaches of the airport lease by NB Aero. There should be no question that litigation related to NB Aero and its lease at the airport was pending, and/or reasonably anticipated as of the date that it received the open records request from the Requestor. The sole issue for review, then is whether the information requested, as it relates to NB Aero, is related to the subject matter of the pending litigation. (ORD. No. 551 at 5(1 990)). Whether the information requested is related depends upon the issues in the litigation as compared to the information sought.
Although the initial pleading in Cause No. C2011-0283D, City of New Braunfels, Texas v. New Braunfels Aero Service, Inc. is an Application for Temporary Restraining Order, the City has engaged outside counsel to represent the City with respect to disputes and controversies with NB Aero arising from the lease agreement, and the City intends to amend its pleadings to litigate the disputes, including alleged breaches of the lease agreement, with NB Aero. In addition, the criminal investigation being conducted by the Guadalupe County District Attorney with regard to the purchase and resale of unidentified fuel continues. This information clearly shows that there is ongoing litigation or contemplated litigation, both civil and criminal, between the City and NB Aero.
P.O. Box 311747 TEL 830.221.4280 424 SOUTH CASTELL AVENUE
To the extent that the request for information seeks documents related to the City's dealing with NB Aero, the City's request to withhold the requested documents while the litigation and/or the criminal investigation is ongoing should be granted. In Univ. of Tex. Law Sch., 958 S.W.2d at 483, the Court said that the words "related to" mean "pertaining to," "associated with," or "connected with." The Court went on to state that "information can be related to litigation without being relevant to the substantive issues in the litigation." Thus, the City argues that all emails between the City Manager, Airport Director, and/or the City Attorney are related to the litigation between the City and NB Aero or the criminal investigation concerning the unidentified fuel and are excepted from public disclosure pursuant to the "litigation exception" of §552.103(a).
2. Section 552.107(1):
The City also seeks to withhold documents based on Section 552.107(1) of the Act. This section, as it applies to the request at hand, recognizes and exempts from disclosure information protected by the attorney-client privilege. The Requestor has requested emails exchanged between any two of the three officials of the City: City Manager, City Attorney and Airport Director. As it relates to the situation involving NB Aero, the City Attorney is a legal representative of the City. The City Manager is responsible for the administration of the city government and the Airport Director manages the operation of the City's airport. Both the City Manager and the Airport Director are representatives of the governmental entity, i.e. the City of New Braunfels, and are "upper echelon" employees.
Your office issued an extensive opinion on the attorney-client privilege as it relates to an exception to the Public information Act in ORD No. 676 (2002). In ORD No. 676 you stated that the applicability of the attorney-client privilege to particular information depends more on the facts surrounding the creation and maintenance of the information than on its contents. As indicated earlier in this Request Letter, the City is involved in litigation with NB Aero arising from its lease agreement with the City as well as purchasing and reselling unidentified fuel. Most, if not all, of the communications between the City Manager, Airport Director, and City Attorney, involving NB Aero relate to the litigation between the City and NB Aero. The privilege not only applies to communications between the City Manager and/or Airport Director and the City Attorney, but it applies to communications between or among clients. See ORD No. 676.
To the extent that any email involving NB Aero does not contain confidential information or is not made for the purpose of effectuating legal representation of the City in the NB Aero matters, the City will release the email document to the Requestor.
P.O. Box 311747 TEL 830.221.4280 424 SOUTH CASTELL AVENUE
Based on the foregoing exceptions to disclosure, the City requests that the Attorney General issue an opinion allowing the City to withhold from public disclosure the requested documents that relate to the City's dealings and litigation with New Braunfels Aero Service, Inc. The City will forward representative samples of the requested information within 15 business days of the date of the receipt of the clarified request for information due to the voluminous nature of the request.
If you need any additional information, please contact me, at 830-221-4279.
Very truly yours,
Paul C. Isham Interim City Attorney
Enclosures: Exhibit A — TPIA Request, Request for Clarification, and Clarification Letter Exhibit B — Copy of Temporary Restraining Order
Exhibit C — OR2011-05351
Exhibit D — Copies of Requests for Information
Exhibit E — Copies of Fundraisers
cc: Mr. Fred McMichael CMRRR NO. 7006 2760 0003 8893 2476
430 FM 306
New Braunfels, Texas 78130
(with enclosures)
P.O. BOx 311747 TEL 830.221.4280 424 SOUTH CASTELL AVENUE
 
That is the buggest pile of rat turd, this side of washington. SO WHAT?? If someone submits 1000 FOIA requests, SO WHAT? It is freedom of information that subverts many forms of corruption but the half baked city lawyers, wasting the taxpayers money, seem intent on criminalizing freedom of information to avoid the light of day shining on their little fiefdom of corruption.
 
ultrasonix said:
Noobie,

If you really are a city employee you must be a very low level worker since the Fuel analysis was provided to the city on March 8. You would know that if you were anybody.
Click to expand...

Swing and a miss...I work at ABIA. I have been paying attention to the airport issuses for quite some time as I told you before. Not being based at NB, and being on the outside looking in, you have made some interesting allegations but you've also come across as extremist and paranoid.

At any rate, you don't have to persuade the majority in this forum, your real audience should be the folks in and around New Braunfels. That's why I think posting your analysis would be so interesting. If the document is what you say it is, it would be difficult to argue with. Hopefully you will get the technical posting difficulties worked out soon.

As for meeting you at the airport - don't think that's something I'm interested in right now - I'll see if you learn to mind your manners.
 
You must log in or register to reply here.
Back
Top