ST. CROIX — Virgin Islands law apparently prevents Tourism Commissioner Joseph Boschulte from leading the West Indian Company Limited as its president and CEO since he serves on the public corporation’s board.
Virgin Islands law prohibits individuals from serving as an employee of a board or commission, in any capacity, within one year of having served as a board or commission member of the same board with which they are seeking employment, according to Virgin Islands Code, Title 3, Chapter 5, Section 65d (c).
The law applies to boards or commissions of the Virgin Islands government.
WICO, a St. Thomas port facility with a cruise ship pier, is a wholly-owned subsidiary of the Virgin Islands Public Finance Authority, established as a public corporation rather than as a private corporation, according to the PFA.
In addition to the PFA’s characterization of the West Indian Company Limited as a public corporation, WICO describes itself on its website as “a publicly owned while privately managed company.”
However, as recent as last week, attorney Greg Ferguson, WICO board’s legal counsel, described the entity as a “private corporation” in response to a dispute about the media recording its board meeting.
The debate of whether WICO is a public or private corporation has been settled by the courts, which determined it is a public agency within the executive branch of the VI government.
The courts weighed in on the matter after the St. Croix Avis filed a Superior Court complaint on July 31, 2015 against WICO seeking a court order requiring WICO to provide board meeting minutes and a lease agreement the newspaper requested under the Virgin Islands Public Records Act pertaining to WICO’s decision to lease Villa Fratelli at Estate Nazareth for use by former Governor Kenneth Mapp. After WICO declined the request, the St. Croix Avis filed a petition for mandamus and injunctive relief through attorney Lee Rohn.
The Virgin Islands Code in Title 3, Section 883 defines governmental agencies as “the Legislature, any governmental entity, board, bureau, commission, department, agency, division, authority, office, or agent, or semi-private governmental entity receiving governmental funds for its operation in whole or in part, or any entity having bonding authority under the United States Virgin Islands government in whole or in part.”
WICO, which argued it was not a government agency under the Public Records Act, asserted it does not receive any governmental funds for its operation in whole or in part.
Currently, WICO receives federal disaster recovery funds provided to the VI government in the aftermath of Hurricanes Irma and Maria, according to Adrienne Williams-Octalien, Office of Disaster Recovery director.
The Third Circuit Court of Appeals held in Sprauve v. the West Indian Company Limited that WICO is a public agency for purposes of the Virgin Islands’ taxpayer lawsuit statute. The Virgin Islands Supreme Court further held in Virgin Islands Taxi Association v. the West Indian Company Limited that WICO is a public agency for purposes of the Virgin Islands’ taxpayer lawsuit statute.
WICO conceded that the Third Circuit Court of Appeals did conclude in Sprauve that it “is part of the government for purposes of the constitutional claims and section 1983 claims.” WICO, however, contended that finding did not extend to the Public Records Act.
Founded in 1912, WICO began as a coal bunkering business and later grew to serve as the port agent for cruise lines that visit the port of Charlotte Amalie. The VI government purchased 100% of the shares of WICO in 1993. The Legislature of the Virgin Islands approved the stock purchase agreement in Act No. 5826.
Act No. 5826, which became law in 1993, specifically states that WICO “shall be deemed to be a public entity operating on behalf of the government.”
The Superior Court held that WICO is a public agency within the executive branch of the VI government for purposes of the Public Records Act.
WICO, however, argued it was not public, but private, because subsequent amendments to Act No. 5826 requiring WICO to make contributions to the general fund transformed it from a public entity back into a private entity. WICO further contended that the definition of a public agency under the Public Records Act clearly excluded WICO.
The Superior Court found that none of the amendments expressed any intent by the Legislature to change the status of WICO from a government entity to a purely private corporation. The Legislature subsequently listed WICO as a semiautonomous agency of the government for emergency management and homeland security purposes in Act No. 7974 passed in 2009. The Legislature also amended Act No. 5826 in 2002, specifically to clarify that WICO is a public corporation.
During a status conference on May 7, 2019 in Superior Court, WICO unequivocally waived any objection to the disclosure of the unredacted transcript to the St. Croix Avis.
On June 7, 2019, then-Superior Court Judge Robert Molloy ordered WICO to provide unredacted copies of the transcripts of the meetings held by the WICO board on April 14, 2015 and June 9, 2015 to the counsel for the St. Croix Avis. The judge further ordered the clerk’s office to docket and unseal transcripts that WICO filed on October 13, 2015.
WICO appealed to the Virgin Islands Supreme Court.
WICO filed an emergency motion in the Supreme Court to stay the Superior Court’s June 7, 2019 order pending appeal. The Supreme Court, on June 18, 2019, found good cause to grant a limited stay pending its determination as to whether it had jurisdiction to consider the issues raised in the appeal since the disclosure of the unredacted copy of the transcript at issue would effectively moot the appeal. Supreme Court Chief Justice Rhys Hodge signed an order on July 1, 2019 to vacate the court’s June 18, 2019 order granting WICO’s emergency motion to stay the Superior Court’s June 7, 2019 order.
The Virgin Islands Daily News subsequently reported in an article published July 3, 2019 that Government House Communications Director Richard Motta Jr. said in a written statement on July 2, 2019 that Governor Albert Bryan Jr. wanted WICO to comply with court orders. Government House acknowledged the court’s ruling that WICO is a government entity and thus subject to open records laws.
Although the WICO board did not report its determination to select Boschulte to head the entity during its meeting on February 28, Bryan confirmed the job offer to The Virgin Islands Consortium in an article published the same day. Bryan told VI Consortium founder Ernice Gilbert that while WICO has made its selection, Boschulte must still accept the offer. The governor noted that he had not yet decided who he would nominate as the next Tourism commissioner.
Boschulte began his journey with WICO as its president and CEO on May 1, 2012, according to his biography. He replaced Edward Thomas, who retired after 17 years at the helm of WICO. On March 21, 2017, the WICO board formally announced it would not renew Boschulte’s contract, which expired on April 30, 2017.
Bryan nominated Boschulte to serve on the WICO board and the PFA board approved his nomination on February 13, 2019. He then became the board’s chair. While Boschulte was serving as board chair, the WICO board voted on May 31, 2019 to terminate former Senator Clifford Graham as WICO’s president and CEO.
Anthony Ottley, who served as WICO’s property manager, replaced Graham. Boschulte was removed as chair on April 21, 2023, but he remains a board member. The board announced in October 2024 that it would not renew Ottley’s contract as WICO president and CEO and would look for new leadership.
In seeking new leadership, the WICO board has reportedly made an employment offer to Boschulte, a member of its own ranks, which on its face conflicts with the Virgin Islands code.
Boschulte was present during last week’s meeting as a board member when the board reportedly selected him as WICO’s next president and CEO.
In addition to Boschulte, the other WICO board members are Jason Charles, chair; Olric Carrington, vice chair; Roosevelt St. C. David, secretary; Hugo Hodge Jr., Finance Committee chair; Vincent Richards, Development Committee chair; Enrique Rodriguez; and Prakash Daswani.
Even though the governor indicated that Boschulte was offered the position as WICO CEO, WICO’s board chair remains tight-lipped on the subject.
