Government of the Virgin Islands and Virgin Islands Police Department v. Riise E. S. Richards and Public Employees Relations Board

• Court: Superior Court of The Virgin Islands
• Decided: March 10, 2021
• Docket: ST-19-CV-144
• Status: Unpublished

Opinion

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN x***x**xxx**

GOVERNMENT OF THE VIRGIN ISLANDS ) AND VIRGIN ISLANDS POLICE ) CASE NO ST 2019 CV 00144 DEPARTMENT ) ) Petitioners ) PETITION FOR WRIT v ) OF REVIEW ) RIISE E S RICHARDS and PUBLIC ) EMPLOYEES RELATIONS BOARD ) ) Resgondents )

Cite as 2021 VI Super 32U

MEMORANDUM OPINION AND ORDER

fill THIS MATTER is before the Court on

1 Amended Petition For Writ Of Review filed April 30, 2019;

2 Brief In Support Of Petitioner 5 Petition For Writ Of Review filed August 23 2019

3 Respondent 5 Motion To Dismiss The Petitioners Writ Of Review, filed September 13 2019

4 Respondent Public Employees Relations Board 5 Responsive Brief, filed September 16 2019 and

5 Respondent Riise E S Richards Motion To Dismiss The Petitioners Writ Of Review filed September 18 2019 l 112 For the reasons set forth below the Public Employees Relations Board s ( PERB ) interpretation of the statute was correct Therefore PERB s decision will be affirmed

‘ Respondent Riise E S Richards filed p20 5e two identical motions within five days of each othe1 The Court will treat them as one Gov tofthe VI er a! v Richards et a] 2021 V1 Super 32U Case No ST 2019 CV 00144 Memorandum Opinion and Order Page 2 of 7

I INTRODUCTION

{[3 Riise E S Richards ( Richards ) was the Director of Flaming, Research, and Evaluation for the Virgin Islands Police Department ( VIPD ) 2 On September 14 2004 the People of the Virgin Islands ( People ) filed a multi Count information against Richards 3 Richards was subsequently suspended from her job was convicted by a jury on February 10, 2006, on two of the seven charges and was then terminated from her job on May 25, 2006 4 Richards appealed her termination Following a two day trial, the jury returned a verdict of guilty on two counts C ount Four charging embezzlement by a public officer and C ount Seven, charging grand lalceny 5 On July 19, 2006, the trial court judge set aside the jury s verdict of guilty on the charge of embezzlement by a public officer and entered a judgment of acquittal The People appealed this judgment of acquittal to the Appellate Division of the District Court 6

114 PERB reinstated Richards employment status and granted her backpay on August 7, 2006 7 Years later, on June 11, 2015, the Appellate Division of the District Court reversed the Superior Court 3 judgment of acquittal and on January 19 2017, the Superior Court entered judgment convicting Richards of embezzlement by a public officer in Violation of title 14 § 1089 of the Virgin Islands Code 8 While this was ongoing, Richards and VIPD were in PERB ordered mediation to resolve an issue of backpay and after the Superior Court s judgment VIPD filed a motion to dismiss the PERB matter on May 29, 2018, citing title 3, § 667 of the Virgin Islands Code 9 {[5 On February 19,2019 PERB issued a Show Cause Decision and Order( PERB Decision ) that denied VIPD's motion to dismiss arguing that 3 V I C § 667 was not applicable to Richards s conviction ‘0 PERB reasoned that the language of the statute said that an employee would not be eligible for government employment if the employee was found to violate a provision of thzs

7 Pet F01 Writ Review 1 3 Pet For Writ Review 1 4 Pet F01 Writ Review 1 People v Richards D C Crim App No 2006 79 2015 WL 3668804 at *1 (D VI June 11 2015) (unpublished) 6 Pet For Writ Review 2 7 Pet F01 Writ Review 2 3 Pet F01 Writ Review 2 VI CODE ANN tit 14 § 1089 states

Whoever being an officer of the V11 gin Islands or a subdivision thereof or a deputy clelk or servant of such officer or an officer director trustee cle1k servant attorney or agent of any association society or c01poration (public or private) fraudulently appropriates to any use 01 purpose not in the due and lawful execution of his trust any property which he has in his possession or under his control by virtue of his txust or secretes it with a fraudulent intent to appropriate it to such use or purpose is guilty of embezzlement

9 Pet For Writ Review 2 3 V I C § states Whoever is convicted of an offense under this chapter shall for a peiiod of five years be ineligible for appointment to 01 employment in any position in the Government Service, and if he is an officei or employee of the Government, shall forfeit his office or position ‘0 Pet For Writ Review 3 Gov tofthe VI er a! v Richards e! a! 2021 VI Super 32U Case No ST 2019 CV 00144 Memorandum Opinion and Order Page 3 0f 7

chapter, and Richards was found to violate a law under another chapter 1‘ VIPD then filed its Petition For Writ Of Review on March 18, 2019 12

II LEGAL STANDARD

A Jurisdiction & Appellate Review

116 Title 3, § 530a vests the Superior Court of the Virgin Islands with appellate authority over PERB decisions which are final orders so long as an application for review is filed within thirty (30) days '3 A final order ends litigation on the merits ‘4 Questions of fact determined by PERB are conclusive if supported by substantial evidence in the record considered as a whole ‘5 In reviewing a final order of the PERB the court may enforce the order, modify the order and enforce it, set the order aside, or return the matter to the PERB with instructions for further proceeding not inconsistent with this chapter ‘6 B Statutory Interpretation

117 Under statutory rules of construction

Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the English language Technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to their peculiar and appropriate meaning '7

" PERB Decision" Resp t Public Employees Relations Board 5 Responsive B1 (emphasis added) '7 Pet For Writ Review ‘3 3 V I C 530a(a)p10vides

Any party aggrieved by any final order of the PERB issued under section 530 01 531 of this chapter may appeal to the Superior Court ofthe Virgin Islands An application for review must be filed within 30 days after the date of the Final Order and name the PERB as a party respondent The rules of procedure ofthe Superior Court regarding a writ of Review shall govern the appeal proceeding

'4 Prossel v Public Semis Comm n ofthe US V I , 56 V I 391, 401 (V I 2012) (citing Estate ofGeOIge v GeOIge, 50 V I 268 274 (V I 2008)) ( The September 14 2010 order from the Superior Court was a final order, because it end[ed] the litigation on the merits ) I 3 V I C 530a(b) ‘6 3 V I C 530a(a) ‘7 1 V I C § 42' see also One St Peter LLC v 8d OfLand Use Appeals 67 V I 920 924 (V I 2017) ( In doing so we read the words and phrases of the statute in their context, and construe them according to the common and approved usage ofthe English language ) Felix Frankfurter Some Reflections On The Reading OfStatutes 47 COLUM L REV 527 528 (1947) ( Though it has its own preoccupations and its own mysteries and above all its own Jargon judicial constmction ought not to be torn from its wider nonlegal context ) Gov I 0ftlte V! et a! v Richards er «I 2021 VI Super 32U Case No ST 2019 CV 00144 Memorandum Opinion and Order Page 4 of 7

118 The first step when interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning If the statutory language is unambiguous and the statutory scheme is coherent and consistent, no further inquiry is needed ‘8 The plainness or ambiguity of language is determined by reference to the language itself the specific context in which the language is used, and the broader context of the whole statute '9 Lastly Virgin Islands courts must interpret statutes so as not to render them redundant or wholly unnecessary In the case of In re L 0 F ,20 the Supreme Court of the Virgin Islands stated that [i]n analyzing a statutory scheme, we must give effect to every provision, making sure to avoid interpreting any provision in a manner that would render it or another provision wholly superfluous and without an independent meaning or function of its own 2‘

III ANALYSIS

119 As a preliminary matter, jurisdiction is proper here The Count is vested with jurisdiction by statute to review PERB final orders The application for writ of review was timely filed within thirty (30) days Although the PERB decision is named Show Cause Decision and Order, because of the procedural background of this case, PERB s decision dismissing VIPD s contentions about why they should not have to comply with a previous order directing them to pay Richards functionally ends the litigation on the merits and is therefore a final order

1110 VIPD presented PERB with the argument that Richards is not owed any additional monies because 3 V I C § 667 [ ] states that a government employee that is a convicted felon may not be employed by the Government for 5 consecutive years after the conviction 22 PERB states that a plain reading and interpretation of 3 V I C § 667 in its broader context indicates it is applicable to those convicted of offenses under Chapter 25, Subchapter X, of Title 3 73 In liberally construing Richards pro se motion,24 Richards also argues that rules of statutory interpretation and legislative intent favor dismissal of the petition 25 A 3 V I C § 667 is limited to chapter 25

1111 Title 3 chapter 25 of the Virgin Islands Code generally governs Government personnel matters within the Virgin Islands Executive branch This includes personnel matters such as hiring,

‘8 Gov tofthe V l v V I Casmo Cont; 01 Comm Civil No SX 16 CV 025 VI 2018 VI LEXIS 103 at *14 (VI Supe1 Ct Oct 1 2018) (quoting lnIeL 0F 62 VI 655 661 (VI 2015)) 1’ One St Pete) LLC 67 VI at 924 (quoting Robmson v Shell 01/60 519 U S 337 341 (1997)) "62VI 655(V12014) ' Id at 661 ’7 Br In Supp Of Pet r 5 Pet For W1it Of Review 3 ’3 Resp t Public Employees Relations Board 5 Responsive Br 7 74 See Candle v CItIMOItgage Inc 63 V I 670 679 (VI 2015) (quoting Etienne v Etienne 56 V I 686 691 n 5 (VI 2012)) Donovan v Virgin Islands Case No ST 12 CV 547 2013 VI LEXIS 21 at *7 (VI Supe1 Ct Mai 25 2013) 73 Mot To Dismiss Pet r’s Writ Of Review Gov toftlte VI et a] v RIcImrds er a] 2021 VI Super 32U Case No ST 2019 CV 00144 Memorandum Opinion and Order Page 5 0f 7

promotion, and dismissals,26 pay systems,27 insurance,28 and training,29 among other matters Subchapter X governs penalties and forfeitures for Virgin Islands Executive branch personnel 30 Title 3, § 667 of the Virgin Islands Code states Whoever is convicted of an offense under this chapter shall for a period of five years, be ineligible for appointment to, or employment in, any position in the Government Service, and if he is an officer or employee of the Government shall forfeit his office or position

1112 A plain reading of this statute indicates that fhlS chapter refers to all of chapter 25 There is no ambiguity in the statute It does not refer to any chapter, it does not refer to conviction of an offense under this or another chapter, it does not merely say convzcted of an offense without anything more nor does it say as VIPD suggests, convzcted ofafelony The Legislature is perfectly capable of inserting such language if that was their intent The language is clear, plain, and unambiguous in limiting the penalty provision to offenses in title 3, chapter 25

1113 Read within the specific context of the chapter the rest of chapter 25 deals with the kind of administrative issues discussed above Subchapter X deals specifically with Executive branch personnel offenses These offenses include personnel giving false testimony;3 ' refusal of personnel to appear, testify, or waive immunity;32 fraud or false statements by personnel;33 the payment or solicitation of bribes for promotion;34 obstructing persons in their appointment35 and a general catchall penalty for violation of any provision or rules adopted under any provision of this chapter 36 That there is a particular subchaptei for specifically enumerated offenses suggests that § 667 may, as PERB indicates, be funher limited to offenses solely within subchapter X of chapter 25 although the catchall provision of § 666 suggests the opposite for why else have such a provision? Thus, the Court will not adopt such a narrow reading here

1114 Each of these offenses in subchapter X provides for a specific penalty unique to it,37 with § 667 appearing at the end, providing an umbrella penalty of forfeiture of employment for conviction under any of the preceding offenses The comprehensiveness of the provisions which largely have to do with Executive personnel betraying the trust of their office or abusing their power, as well as the catchall provision of § 666 strengthen the argument that the penalty provided for in § 667 is a penalty exclusive to chapter 25

~63VIC §§521535 73V1C §§551570a 83V1C§§631640a °3V1C§§671690 3"3 VIC §§661667 3' 3 v I C § 661 3 3 v I C §662 33 3 v I C § 663 34 3 v I C § 664 3 3 v 1 C §665 36 3 V I C §666 37 Cf. 3 V I C § 661 ( shall be fined not more than $200 01 imprisoned not more than 1 year 01 both ) With 3 V I C § 663 ( shall be fined not more than $100 or imprisoned not more than six months or both ) Gov toftlie VI e! a] v Richards et a! 2021 VI Super 32U Case No ST 2019 CV 00144 Memorandum Opinion and Order Page 6 0f 7

1115 Looking at the broader context, Richards was convicted of 14 V I C § 1089 Title 14 generally covers crimes applicable to anyone in the Virgin Islands Title 14, chapter 25 governs the crimes of larceny and embezzlement and is applicable to anyone in the Virgin Islands 38 Title 14 § 1089 governs embezzlement of all public or private officers, whether in any branch of the Government or of a private corporation, society or association 39 Title 14 § 1094 provides a specific punishment for Violation of any of the embezzlement statutes, with no reference to other titles chapters, or punishments 40 1116 Title 3 chapter 25, subchapter X of the Virgin Islands Code has no provision related to embezzlement Nor does 3 V I C § 667 make any mention of barring felons in general, as VIPD asserts It is clear from the structure of title 14 and title 3 that the legislative intent behind 14 V I C §§ 1089 1094 is to punish anyone, in a specific and particular manner, who is an officer who embezzles It is also clear that the intent behind subchapter X and § 667 is to categorically restrain Executive personnel in particular from a distinct set of actions within their unique employment context and to temporarily suspend them from serving the public because of the betrayal of the public trust that arises when such an offense occurs These are distinct and separate purposes

1117 Section 667 is not an additional penalty for violations of other crimes Defendants pay their debt to society under title 14 when they comply with the penalties set forth in title 14 and Executive personnel pay their debt to the Government when they comply with the penalties set forth in title 3 It is plain they are not to be used conjointly If the Legislature intends to bar felons who are also Executive personnel from working for five (5) years after a conviction then the Legislature can plainly say it Section 667 is not to be used as a tool by VIPD to renege on its obligation under PERB s orders to pay Richards

3814v1c §§ 1081 1094 3’14VIC §1089 states

Whoevei being an officer of the Virgin Islands or a subdivision thereof 01 a deputy cleik or seivant of such officer or an officer director trustee clerk servant attorney or agent of any association society or corporation (public or private) fraudulently appiopriates to any use 01 purpose not in the due and lawful execution of his tiust, any property which he has in his possession or under his control by virtue of his trust or secretes it with a fraudulent intent to appiopriate it to such use or purpose is guilty of embezzlement

4° 14 V I C § 1094 provides that

(a) Whoever is guilty of embezzlement shall (1) ifthe property or money embezzled was less than $100 in value be fined not more than $200 01 imprisoned not more than 1 yeai or both or (2) if the property or money embezzled was S 100 or more in value be imprisoned not m01e than 10 years (b) Where the property embezzled is an evidence of debt or right of action the sum due upon it or secured to be paid shall be taken as its value Gov toftlte VI et a] v Richards e! (II 2021 VI Super 32U Case No ST 2019 CV 00144 Memorandum Opinion and Order Page 7 of 7

IV CONCLUSION

1118 Richards was an employee for VIPD and was eventually convicted of Embezzlement By A Public And Private Officer, in Violation of title 14, § 1089 of the Virgin Islands Code After a lengthy procedural history of mediation, orders, and appeals PERB concluded that Richards was owed payment by the VIPD VIPD refused arguing that title 3 § 667 of the Virgin Islands Code precludes her from employment and thus pay, for five (5) consecutive years after Richards 14 V I C § 1089 conviction PERB disagreed, arguing that under canons of statutory interpretation the phrase this chapter plainly limits the penalty of 3 V I C § 667 to offenses under title 3, chapter 25, subchapter X of the Virgin Islands Code

1119 This Court has statutory appellate authority to review final decisions by PERB and consequently has jurisdiction over this matter Looking at the plain language, the specific context, and the broader context of the statute, the five (5) year suspension from Government work penalty of 3 V I C § 667 is clearly limited to offenses detailed under title 3, chapter 25 of the Virgin Islands Code Thus the Court denies VIPD 5 Petition For Writ Of Review denies as moot Richards Motions To Dismiss The Petitioners Writ Of Review, and affirms the PERB Decision

1120 Accordingly, it is hereby

ORDERED that the Public Employees Relations Board Show Cause Decision and Order, dated February 19 2019 is AFFIRMED and it is further

ORDERED that Respondent Riise E S Richards Motion To Dismiss The Petitioners Writ Of Review filed September 13 2019 and September 18 2019 is DENIED as moot and it is further

ORDERED that a copy of this Memorandum Opinion and Order shall be served upon Riise E S Richards and a copy thereof directed to counsel of record

DATED March /O 2021 2 £1 1” m @ 55 MW) DENISE M FRA COIS Judge of the Superior Court of the Virgin Islands ATTEST

TAMARA CHARLES Clerk Of the CCU ( ERTIFIED A TRUE COPY 1

D TLD By m Ck LC a” TAM \R s CH \RLrs 1 D NNAD DONOVAN LERROFT EUJL RT 1 Court Clerk Supervisor 6 / 13/ m 8\ [hr 4 m: c URTCLEREx n 1