ST. CROIX — A requirement for government employees to take a leave of absence while running for public office not only affects the nominated candidates but the government as well.
While a nominated senatorial candidate who works for the government recently withdrew his name because of the requirement, other government employees seeking public office discussed the financial fallout that comes with taking leave.
A senator, however, is continuing her effort to amend the law after previously introducing a bill held in the Committee on Rules and Judiciary on Sept. 28, 2023.
A government employee who filed a nomination petition to run for a seat in the Senate submitted a letter on Friday to the Elections System of the Virgin Islands requesting to withdraw his name as a nominated candidate after learning that running for public office would require him to take leave.
John McCoy, a 15-year St. Croix resident from Texas who owns businesses on island and works for the Virgin Islands Territorial Emergency Management Agency as territorial maintenance manager, wrote in his letter that he must make a living, so he had no choice but to withdraw his name.
McCoy said during a phone interview that after filing his nomination petition Tuesday, he was notified by VITEMA the next day that he would no longer be able to work, but he could use accumulated annual leave while running for public office. He said, however, he only has about 35 hours of accumulated time.
“For four months of being without pay, there’s no way I could survive,” he said. “I’ve got to make my house payments and take care of my bills.”
McCoy said the fact he had to pull out from the election process hurt his feelings.
“I don’t feel like it’s right that I should be jeopardized as far as my pay,” he said. “I’m not in a critical position. I’m not over any kind of finances. I am over logistics with VITEMA, and so there’s no reason why I should have to jeopardize my pay and my income.”
While the law completely deterred McCoy from seeking a Senate seat, other government employees who filed nomination petitions to run for public office discussed the impact of the requirement to take leave.
Democratic State Chair Stedmann Hodge Jr., an employee with the Virgin Islands Department of Labor who filed a nomination petition to run as a delegate to the Sixth Constitutional Convention, said the law creates a financial burden on the employees and employers.
“Based on the overall consensus for any individual that’s gonna be required to take a leave of absence for any public office, it is going to be a hardship,” he said.
Hodge, who previously served as a delegate to the Fifth Constitutional Convention, said he was not required to take leave while running at that time.
Voters, however, elected the delegates to the Fifth Constitutional Convention during a special election on June 12, 2007.
The Sixth Constitutional Convention was created by legislation enacted into law on January 19, 2023 that requires government employees to take leave while running for the public office.
Hodge, a former one-term senator elected in 2018, said he has major issues with the law because it places a financial burden on the government when employees running for public office must take leave.
“We have individuals that work in government and they’re the only person doing that job, filling one role,” he said. “So, when they’re out on leave, now we have an issue because we don’t cross-train.”
St. Thomas/Water Island Administrator Avery Lewis, a nominated candidate for Senate, agreed with Hodge.
“It is a hardship to go so long without a paycheck,” he said.
Devin Carrington, Casino Control Commission legal counsel who filed a nomination petition to run as a delegate to the Sixth Constitutional Convention, said being required to take leave is not an issue for him.
“This is about public service,” he said, adding he’s willing to make a sacrifice to contribute toward drafting a constitution for the Virgin Islands.
Although the law requires government employees to take leave if they want to run for office, one senator is working to amend it.
After hearing concerns from colleagues while vetting her measure that originally would have allowed government employees to run for public office without taking leave, Senator Marise James adjusted Bill No. 35-0032 so that leave would not be required until the dates for early voting ahead of the primary and general elections.
James said her initial intent was that government employees would not have to take any leave while running for office. Due to concerns that government employees running as political candidates would have their work duties disrupted the closer it got to Election Day, James said she updated her measure so leave would not be required until the beginning of early voting.
“In the spirit of compromise I said, ‘OK, lets use early voting as the beginning of the time when they would have to take annual leave,’” she said.
If government employees run as candidates in a primary election, James said her measure would require them to take leave when early voting starts ahead of the primary. If they are successful during the primary and advance to the general election, she said her bill would allow them to return to work until early voting begins ahead of the general election.
“I understand the disruption that may be caused by an employee running for office and working at the same time but that only occurs closer to the election, so that’s why I had the early voting,” James, who is hopeful her bill will be on the agenda during the next Committee on Rules and Judiciary meeting, said.
Given the existing law, James said the government is essentially limiting the ability for its employees to run for public office until they retire unless they are wealthy. She stressed the need for government employees seeking public office to maintain their annual leave.
“To use up your annual leave is just unfair to me,” James said. “That’s the bottom line really. It then forecloses an entire group of people; precludes them from running for office simply because they’re government employees, and that’s not fair.”
Government employees who become candidates for public office must take a leave of absence from the date of the filing of nomination petitions or papers until the date of the ensuing general election and may use accrued annual leave in taking such leave of absence, according to Title 18, Chapter 1 of the VI Code. The requirement does not apply to government employees who become candidates for party offices or who serve as party officers, to candidates for the Board of Education, or to candidates for the Board of Elections.
Any employee of the government who files a valid petition and becomes a candidate for delegate to the Sixth Constitutional Convention must be granted a leave of absence, according to Act No. 8681, which established the Sixth Constitutional Convention. The legislation was amended by Act No. 8814, Section 7 to allow government employees who become candidates as delegates to use accrued annual leave in taking such leave of absence. Individuals who have no accrued annual leave must take leave without pay but without prejudice to seniority or other employment rights.
McCoy questioned the constitutionality of the law.
“I’m just trying to figure out how to resolve this because I’m gonna lose my right to run because nobody wants to fight for our rights,” he said. “This is not a privilege. Because it’s a territory, it’s not a privilege. It’s just civil rights. It’s a federal constitutional right. So, even though we’re a territory, federal laws still apply to us.”
Although federal law allows government employees to run for office, state or local laws can prevent it.
“There is no violation of civil rights with our laws,” James, who is an attorney, said, noting some states prohibit government employees from running for public office and some allow it. “It’s the state’s choice really, so there wouldn’t be a violation.”
The Hatch Act Modernization Act of 2012 allows most state and local government employees to run for partisan political office, according to the U.S. Office of Special Counsel, a permanent independent federal investigative and prosecutorial agency. With the change in 2012, the federal Hatch Act no longer prohibits state and local government employees from running for partisan office unless their salaries are paid for completely by federal loans or grants.
State or local laws, however, can prohibit government employees from running for office.
Nearly every state, many localities, and the District of Columbia have ethics rules that govern the political activity of their employees, according to OSC. This includes, in some cases, the ability of employees to run for state or local office. While the rules under the federal Hatch Act have been relaxed regarding partisan candidacies, states and localities are free to implement more rigid requirements at their discretion.
As the Elections System prepares for the general election, the deadline for withdrawal of nominated candidates is today.
Since the ESVI offices will be closed today, and Monday in observation of Memorial Day, nominated candidates who want to withdraw can submit an original notarized letter with today’s date on it when the offices reopen between 8:30 a.m. and 5 p.m. Tuesday at the Elections System on St. Croix and St. Thomas, or between 9 a.m. and 3:30 p.m. at the office on St. John. A scanned copy of the letter can be emailed to esvi.info@vi.gov.
