MEA: Judge hears arguments in Scott, Babcock lawsuit

PALMER — Having failed to reach an agreement, two former Matanuska Electric Association executives are heading for a November trial date in their lawsuit against their former employer.

Bruce Scott and former Assistant General Manager Tuckerman Babcock were fired in April 2009. The case is scheduled for trial to begin Nov. 29 before Superior Court Judge Eric Smith. The attorneys present at a hearing Monday said they are ready for trial. They also engaged in a bit of pre-trial sparring.

“This is a breach of contract case in search of a breach,” said attorney Kevin Clarkson, representing MEA, in arguing that the case should be thrown out.

To explain why Clarkson is arguing this, first a little background — MEA’s board of directors didn’t fire Babcock and Scott directly; instead, it ordered then-general manager Wayne Carmony to drop the axe. Carmony did so, though he made a point of saying he did so in protest. Later, the board fired Carmony as well.

It seemed convoluted at the time, but at Monday’s hearing, Clarkson pointed out that Babcock’s and Scott’s contracts had provisions that allowed them to receive compensation if anybody but Carmony fired them without cause.

That’s why, acting under the board’s orders, Carmony was the one who dropped the axe. So there was no breach of contract here. Done deal, right?

Not so fast, argued Susan Orlansky, attorney for Scott and Babcock.

The cooperative’s board of directors may have been trying to follow the letter of the contracts, but what matters here, she argued, isn’t so much what those contracts said as what everyone who was a part of negotiating them believed they said.

“You could write ‘black’ when you meant ‘white,’ just so long as everyone who was involved knew that the intent was ‘white,’” she said.

The point in drawing up the contracts the way they were was to make it expensive for anyone but Carmony to fire these two men.

“They never in a million years believed that this situation would happen,” she argued.

If the board ordered Carmony to fire the two men, it wasn’t Carmony who was taking that action, but the board.

“Mr. Carmony being ordered to fire them is equivalent to someone else firing them,” Judge Smith said in summing up the plaintiffs’ argument.

On the other side, Clarkson argued that if Scott and Babock somehow believed nobody could order Carmony to fire them they were mistaken. If they wanted to be sure that they would get those damages if someone else ordered Carmony to fire them, they should have written the contract that way.

And, anyway, in depositions recorded prior to Monday’s hearing, Carmony said he never promised the two men anything like that.

“He never promised any of these managers that they would receive the liquidated damages if the board told him to fire them,” Clarkson said.

Smith compared the depositions in this case to ones he’d recently seen depicted on screen in the new movie “The Social Network,” where attorneys were asking questions to elicit answers that favored their side. He said he would try to make a ruling in writing as soon as possible on the motion to have the case thrown out.

Contact Andrew Wellner at andrew.wellner@frontiersman.com or 352-2270.