ST. CROIX — Senators are expected to discuss what steps the lawmaking body can take to address the governor’s controversial appointment of Haldane Davies to head the Bureau of Economic Research, a division under the Office of the Governor.
One of the options recommended by the Senate majority leader is to remove Davies from BER by defunding his position.
Governor Albert Bryan Jr. announced on May 19 his appointment of Davies to serve as BER director effective immediately. There is a question about whether Davies can legally hold the position considering it has not been two years since he served on the Public Officials Compensation Commission.
No member of the Compensation Commission is eligible for appointment to public office so long as the person is a member of the Commission and for two years thereafter, according to Act No. 7878, which established the Commission. The Commission concluded its work when it submitted its salary recommendations on August 13, 2024.
Former Senator Positive Nelson, who sponsored the legislation that created the Commission, said the intent of the language creating the two-year delay was to prevent members of the Commission from being appointed to public office and taking advantage of recommended pay raises.
“I believe it really was intended to align with what the other boards and commissions have relative to having served on them and then receiving benefits from them,” Nelson, who now serves as the governor’s cannabis advisor, said. “Is the position being questioned one which is listed in the Compensation Commission? If it’s not, then I think that also answers our question.”
The Commission reviewed the salaries of 42 public officials, recommending increases for 12 of them, including the governor and lieutenant governor. The BER director was not one of the positions reviewed.
The governor addressed the issue when asked last Monday during an exclusive interview with Ernice Gilbert, founder and editor-in-chief of The Virgin Islands Consortium, if he was going to remove Davies as BER director. Bryan took the position that Davies is not a public official because he was not confirmed by the Legislature and did not take an oath of office. Bryan said Davies is simply a government employee like the directors of the Office of Gun Violence Prevention, Law Enforcement Planning Commission, and Virgin Islands Energy Office.
However, the positions of LEPC director and VIEO director were among the 42 positions the Commission reviewed before recommending salary increases for public officials.
While the legislation that created the Compensation Commission does not specifically define the term “public official,” the courts have made determinations regarding whether individuals are public officials.
The Virgin Islands District Court tackled the definition of public official in the 1982 case of Moorhead v. Millin, in which James Moorhead, who served as a director within the Virgin Islands Department of Public Works, sued then-Lieutenant Governor Henry Millin and The Daily News Publishing Company Inc. alleging defamation. The District Court found Moorhead was a public official because he was appointed, had substantial responsibilities, and those responsibilities included the health of people in the Virgin Islands.
Senate President Milton Potter said last Friday that he requested a formal opinion on the matter from the Senate’s chief legal counsel. He said he anticipates getting feedback sometime this week. Potter acknowledged the governor’s stance that Davies is not a public official.
“That is the governor’s perspective on it, but the Legislature will weigh in and do our due diligence prior to just concluding that what the governor is saying is accurate,” he said.
While the Senate president stressed the need for the lawmakers to discuss their options, one senator suggested defunding the BER director’s $125,000 salary.
Senator Kurt Vialet, majority leader, said the Senate is weighing its options to see what it can do to remove Davies from the position, adding that the body does not regularly have to act because another branch of government has disregarded the law.
“I am to the point where if there’s no compliance, we write the position out of the budget, and we move legislation to remove that position altogether from the budget,” Vialet said. “So, I’m having a discussion with my colleagues. We’ll be making a decision very shortly as to what we’re going to do.”
Although the governor said Davies does not hold a public office because he was not confirmed by the Legislature and did not take an oath, Vialet said he stands by his position that Davies is illegally serving as BER director since it is an appointed position.
“The issue that I have is that if you enact laws, the laws need to be adhered to by the administration,” he said.
Vialet said last Friday that he anticipates the senators will meet to discuss the matter after they receive the legal opinion. He also suggested that the Senate could move for a temporary restraining order to prevent Davies from serving as BER director.
Vialet directly questioned Davies about his legal right to serve as BER director when Davies appeared before the Committee on Budget, Appropriations and Finance on June 3.
“Are you serving illegally?” the senator asked.
Davies attempted to deflect and focus on the budget discussion. Vialet insisted on putting his concern on the record.
“You are not supposed to be in a seat based on laws passed by this institution, and at some point, you got to respect the laws that this institution passed,” Vialet said.
