ST. CROIX — After the Virgin Islands Supreme Court ruled in 2017 that the West Indian Company Limited is a public corporation, the Government Employees’ Retirement System attempted to have WICO and its employees contribute to the pension system.
Austin Nibbs, who served as GERS administrator from 2007 until his retirement in 2023, recalled that effort.
“It is a public entity and should be part of the GERS,” he said about WICO.
A pending bill a senator has submitted to the Legislature’s legal counsel could potentially codify WICO’s obligation to contribute to GERS.
Senator Alma Francis Heyliger is taking legislative action to ensure the West Indian Company Limited becomes part of the Government Employees’ Retirement System, citing multiple court rulings that confirm WICO’s status as a public entity.
“When you have a court ruling, not only from the federal side but multiple times from the local side, establishing that WICO is a public entity, I have no idea why WICO keeps putting out this message, as if they have the right to reject the decisions of the court, that they are private when the court has said over and over and over, you are a public entity,” she said.
When GERS reached out to WICO after the Supreme Court ruling, the System was met with pushback and did not make any progress toward having WICO become a contributing member as WICO maintained it was a private corporation.
Nibbs said GERS requested information on WICO’s employees but never received any documentation.
“We got no movement on it,” he said.
WICO’s legal counsel at the time held the position that the entity was not a public corporation, Nibbs said.
“They felt that it was private,” he said. “We felt it’s public based on the law.”
The Government Employees’ Retirement System remains open to discussing the potential inclusion of the West Indian Company Limited in the pension system, according to the new GERS administrator.
“GERS is always interested and has a vested interest in abiding by legal requirements, so anything that is deemed to be legally required is something that we would be addressing,” GERS Administrator Angel Dawson Jr., who has led the System since 2023, said.
The legal requirement of whether WICO is a public entity, which would subject it to making contributions to the government’s pension system, has been settled in local and federal courts.
Although WICO originally existed as a private corporation after being founded in 1912, the courts confirmed it became a public corporation of the Virgin Islands in 1993 when the VI government purchased 100% of WICO’s shares.
Dwane Callwood, GERS board chair, said WICO should contribute to GERS since the courts have concluded it is a public entity. He said, however, determination is needed on whether existing WICO employees would receive credit for the time they have already put in working.
“It’s not as simple as turning the switch on,” he said.
The Legislature of the Virgin Islands approved the government’s purchase of WICO in Act No. 5826, which noted the government’s acquisition of the company granted it the status and authority of a public corporation and governmental instrumentality. WICO was subsequently deemed to be a public entity operating on behalf of the government, rather than a private corporation.
The Third Circuit Court of Appeals, in an opinion filed August 15, 2015, 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, in an opinion filed March 22, 2017, 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 officials argued in court proceedings and subsequently maintained that Act No. 5826 established WICO as a public entity for purposes of taxation only. Although WICO conceded 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,” it contended that finding did not extend to the Public Records Act.
WICO made its argument in Superior Court after the St. Croix Avis filed a 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.
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 appealed to the Virgin Islands Supreme Court. On July 1, 2019, the Supreme Court upheld the lower court’s finding that WICO was a public agency.
The classification of WICO as a public rather than private entity could affect whether the WICO board can immediately hire Tourism Commissioner Joseph Boschulte as WICO’s president and chief executive officer since he currently serves on the board. The WICO board announced in October 2024 that it would not renew Anthony Ottley’s contract as WICO president and CEO and would look for new leadership. The WICO board has reportedly offered the job to Boschulte. Local law, however, prohibits individuals from serving as an employee of a board or commission of the VI government, 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.
READ MORE: “Virgin Islands law appears to restrict Joseph Boschulte from heading WICO as its president and CEO”
Governor Albert Bryan Jr., in response to a question from a reporter during the weekly Government House briefing on Monday, discussed the possibility of Boschulte accepting the job at WICO.
“He has made me aware that they have offered him the position but he’s still negotiating the specifics of that offer and has not accepted or declined at this point,” Bryan said.
Senator Novelle Francis Jr. noted the absence of Boschulte on Monday when officials from the Department of Tourism appeared before the Committee on Government Operations, Veterans Affairs and Consumer Protection. During the meeting, Francis told Assistant Tourism Commissioner Alani Henneman he was “rooting” for her to be the next Tourism commissioner.
Francis clarified to WTJX that he is rooting for Henneman to compete for the job of Tourism commissioner if the position becomes vacant. He said he does not support allowing Boschulte to accept the job as WICO’s next president and CEO at this time because the law prohibits individuals from serving as an employee of a board or commission within a year of having served on the same board.
“I stand by the law, and certainly I believe that if there’s an interest by Boschulte to go over to WICO, then he’ll have to sit it out and wait for that year time in order for him to assume that position,” he said.
While the WICO board remains silent on the public corporation’s next leader, WICO is still not paying into the Government Employees’ Retirement System.
While past efforts to bring WICO employees into GERS were unsuccessful, Dawson emphasized the System’s commitment to following legal requirements and pursuing discussions. He said there is no active dialogue between GERS and WICO regarding retirement system contributions but suggested the possibility of future engagement.
“I stress that it would be amicably, and it would be in such a way that it wouldn’t be disruptive to WICO or to its employees,” Dawson said. “But at the end of the day, we all as officials have to abide by laws and statutes.”
Dawson stressed that any potential integration would require careful consideration of WICO’s existing retirement plans and a nuanced approach to migration that protects employee interests.
Ottley, who continues serving as WICO interim president and CEO, deferred comment on the matter to attorney Greg Ferguson, WICO board’s legal counsel.
“I would refer you to our legal counsel on that,” Ottley said. “He would have the information on that.”
Attempts to contact Ferguson were unsuccessful, and messages were not returned.
