RICHARDS v. PUBLIC EMPLOYEES RELATIONS BOARD

2024 V.I. 37

Opinions

Opinion

For Publication

IN THE SUPREME COURT OF THE VIRGIN ISLANDS

RIISE RICHARDS ) S. Ct. Civ. No. 2023-0010

| Appellant/Plaintiff, ) Re: Super. Ct. Civ. No. 712/2004 (STX)

PUBLIC EMPLOYEES RELATIONS BOARD? and VIRGIN ISLANDS POLICE ) DEPARTMENT, )

Appellees/ Defendants

On Appeal from the Superior Court of the Virgin Islands Division of St. Croix Superior Court Judge: Hon. Douglas A. Brady

Argued: May 14, 2024 Filed: December 27, 2024

Cite as: 2024 VI 37

BEFORE MARIA M. CABRET, Associate Justice, HAROLD W.L. WILLOCKS Associate Justice; and JOMO MEADE, Designated Justice. !

APPEARANCES

Ryan C. Stutzman, Esq. (Argued) Gwendolyn W. Stroud, Esq CSA Associates, P.C Public Employees Relations Board St. Croix, U.S.V I St. Croix, U.S.V.1 Attorney for Appellant. Attorney for Appellee PERB

Sean Patrick Bailey, Esq. (Argued) Virgin Islands Department of Justice St. Thomas, U.S.V.1 Attorney for Appellee VIPD,

OPINION OF THE COURT

WILLOCKS, Associate Justice

' Pursuant to 4 V.LC. § 24(a), the Honorable Jomo Meade was appointed as a Designated Justice in this matter due to the recusal of Chief Justice Rhys S. Hodge and Associate Justice Ive A. Swan

Opinion of the Court

Page 2 of 38

91! Appellant Riise Richards (hereinafter Richards”) appeals from the Superior Court of the

Virgin Islands’ (hereinafter “Superior Court”) January 27, 2023 order affirming the Public

Employees Relations Board’s (hereinafter “PERB”} November 23, 2004 decision and order

dismissing with prejudice Richards’ appeal of her suspension by the Virgin Islands Police

Department (hereinafter “VIPD”) pursuant to the 2004 version of title 3, § 530(a) of the Virgin

Islands Code? for lack of jurisdiction. For the reasons that follow, this Court will reverse the

January 27, 2023 order and remand this matter to the Superior Court for further proceedings

consistent with this opinion

I, BACKGROUND

412 Richards was employed by the VIPD as the Director of Planning, Research and Evaluation

when she received a letter from the Police Commissioner of the VIPD, dated September 20, 2004,

advising her that effective immediately she was suspended without pay as a result of the criminal

charges? that had been filed against her in the Superior Court.’ In response, Richards filed a letter:

dated September 23, 2004, with the PERB to appeal her suspension by the VIPD pursuant to §

2 Section 530(a) has undergone multiple amendments over the years. Unless otherwise noted, all references to § 530(a) herein pertain to the 2004 version 3 The facts, procedural history, and the outcome of the criminal proceeding are not relevant to this appeal and thus not discussed in this opinion 4 At the time this matter arose, the Superior Court was known as the Territorial Court of the Virgin Islands. As of January 1, 2005, thename of the Territorial Court was changed to the Superior Court. See Act No. 6687, § 1(b) (V.I. Reg. Sess. 2004). For consistency, we refer to this court as the Superior Court throughout this opinion

Page 3 of 38

530(a)>Richards v. VIPD, PERB-GSA-04-16T (hereinafter “Suspension Matter”). On

November 9, 2004, the PERB held a hearing in the Suspension Matter. At the hearing, Richards

argued that, as a regular employee of the VIPD, the PERB has jurisdiction under § 530(a) over her

appeal, and while the VIPD conceded that Richards was a regular employee within the meaning

of § 530(a) and retracted its initial objection to Richards seeking relief under § 530(a) due to her

union membership,° the VIPD argued that the PERB does not have jurisdiction over Richards’

appeal under § 530(a) because she was not employed by one of the four entities listed in § 530(a)

On November 23, 2004, the PERB issued a decision and order in the Suspension Matter

(hereinafter “2004 PERB Order”) dismissing with prejudice Richards’ appeal for lack of

jurisdiction. In the 2004 PERB Order, the PERB explained

Appellant testified that she is an employee of the Virgin Islands Police Department As such, it is clear that the PERB does not have jurisdiction to hear Appellant’s appeal because she is not employed by any of the agencies listed in Title 3, Virgin Islands Code Section 530(a)

5 While Richards’ September 23, 2004 letter to the PERB indicated that she initially filed her appeal pursuant to both § 530(a) and the 2004 version of title 3, § 531 of the Virgin Islands Code “for disparate treatment and discrimination for non merit [sic] factors,” the ensuing proceeding before the PERB and the following review before the Superior Court only addressed Richards appeal pursuant to § 530(a). Thus, only Richards’ appeal pursuant to § 530(a) is addressed herein 6 At the November 9, 2004 hearing before the PERB, counsel for the VIPD stated Mr. Juergens If it pleases the chairman, the respondent is prepared to state that the appellant is a regular employee of the Government. Respondent is prepared to retract its objection to (Richards’] access to PERB because of union membership. We’ re not only prepared to, we do. Both of those entities

So in effect the respondent stipulates to the issue of regularness and to the issue of the lack of importance that she’s a member of the union (J.A. 57-58)

Page 4 of 38

Prior to August 7, 2001, the PERB may have retained jurisdiction over the instant matter. However, until the Legislature of the Virgin Islands decides to amend the statute and restore the language removed by Section 9 of Act [No.] 6425, the PERB will continue to deny 3 V.I.C. § 530 jurisdiction to any regular employee who is not employed by the agencies listed in the statute

(2004 PERB Order.)

93 On December 22, 2004, Richards filed a timely petition for writ of review of the 2004

PERB Order with the Superior Court Richards v. PERB and VIPD, Civil Case No. SX-2004

CV-712 (hereinafter “2004 Superior Court Case’’). On January !2, 2007, the respondents — the

PERB and the VIPD—filed their joint response brief to Richards’ petition for writ of review

therein

14 In 2006, while the 2004 Superior Court Case was pending, the VIPD terminated Richards

employment. In response, Richards filed another appeal with the PERB—Richards v. VIPD.

PERB-GSA-06-11T (hereinafter “Termination Matter”). The PERB held multiple show cause

hearings in the Termination Matter and issued multiple show cause decisions and orders against

the VIPD. On February 19, 2019, the PERB issued a decision and order in the Termination Matter

holding that title 3, § 667 of the Virgin Island Code was not applicable to Richards, ordered the

VIPD to comply with the PERB’s decision and order, and ordered the parties to resume mediation

{5 In April 2019, the VIPD filed with the Superior Court a petition for writ of review

followed by an amended petition for writ of review of the PERB’s February 19, 2019 decision

and order in the Termination Matter VIPD v. Richards and PERB, ST-2019-CV-144 (hereinafter

“2019 Superior Court Case”). In response, on September 13, 2019, Richards filed a motion to

The VIPD's petition for writ of review was filed on April 4, 2019 * The VIPD's amended petition for writ of review was filed on April 30, 2019

Page 5 of 38

dismiss the VIPD’s petition for writ of review in which Richards noted, inter alia, that she was a

“classified employee that was a member of the Supervisor’s Union.” On September 16, 2019, the

PERB filed a response brief to the VIPD’s petition for writ of review. On March 10, 2021, the

Superior Court affirmed the PERB’s February 19, 2019 decision and order in the 2019 Superior

Court Case, and Richards ultimately received backpay calculated based on her union membership

in the Termination Matter

{6 Inthe 2004 Superior Court Case, the Superior Court sua sponte entered an order on August

23, 2022, in which it noted that this matter had laid dormant since 2007 and permitted the parties

to supplement their filings to “present any post-briefing relevant case law and statutory changes.”

(Super. Ct. Aug. 23, 2022 Order.) On October 21, 2022 and November 10, 2022, Richards filed

her supplemented briefings. In response, the VIPD filed its opposition brief on December 12, 2022

in which it argued that “[the PERB] lacked jurisdiction to hear [Richards’ suspension appeal],

but not for its stated reasons in [the 2004 PERB Order],” but because Richards “was admittedly

a,..[uJnion member, covered by a collective bargaining agreement” and her “assertion for back

pay relied on her former membership in the union [and she]...received that backpay and is thus

judicially estopped from asserting PERB jurisdiction under 3 V.ILC. § 530.” (J.A. 9-10). On

January 5, 2023, Richards filed her reply thereto

97 On January 27, 2023, the Superior Court entered an order (hereinafter “January 27, 2023

Order’) in the 2004 Superior Court Case, in which it noted that the sole issue was whether the

PERB possessed jurisdiction under § 530(a) to hear Richards’ appeal of her suspension from the

VIPD. It found that there was no dispute that Richards was a regular employee within the meaning

of § 530(a) but that “the PERB reached the correct result in determining that it lacked jurisdiction

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over [Richards’ suspension appeal] because of “a plain reading of the statute {§ 530(a)] as it existed

at the time [Richards’] cause of action arose,” and affirmed the 2004 PERB Order. (Super. Ct. Jan

27, 2023 Order.) The January 27, 2023 Order did not address the judicial estoppel argument raised

by the VIPD in its 2022 opposition brief.

48 On February 23, 2023, Richards timely filed her notice of appeal of the January 27, 2023

Order. See V.1.R.AppP.P. 5(a){1), On May 14, 2024, the parties appeared before this Court for oral

argument

II. DISCUSSION

A Jurisdiction and Standard of Review

{9 The Revised Organic Act of 1954? provides this Court with appellate jurisdiction over “all

appeals from the decisions of the courts of the Virgin Islands established by local law...” 48 U.S.C

§ 1613a(d). Title 4, § 32(a) of the Virgin Islands Code vests this Court with jurisdiction over “all

appeals arising from final judgments, final decrees or final orders of the Superior Court, or as

otherwise provided by law.” V.I. CODE ANN. tit. 4, § 32(a). The January 27, 2023 Order affirmed

the 2004 PERB Order and resolved all the claims raised in Richards’ petition for writ of review in

the 2004 Superior Court Case. Hence, it constitutes a final order within the meaning of § 32(a) and

conferred jurisdiction on this Court

410 This Court exercises plenary review in examining the issues of statutory interpretation,

Lopez v. People, 60 V.1. 534, 536 (V.1. 2014) (citing Shoy 1. People, 55 V.1.919, 925 (V.L 2011))

° The complete Revised Organic Act of 1954 is found at 48 U.S.C. §§ 1541-1645 (2012) reprinted in V.1, CODE ANN., Historical Documents, Organic Acts, and U.S. Constitution at 73-177 (1995 & Supp. 2013) (preceding V.I. CODE ANN. tit. 1)

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Under title 3, § 530a of the Virgin Islands Code, “all questions of fact determined by the PERB

shall be conclusive, if supported by substantial evidence in the record considered as a whole.” 3

V.1.C. § 530a(b). “Substantial evidence is such evidence that a reasonable mind would accept as

adequate to support an agency's conclusion.” Williams-Jackson v. Pub. Emples. Rels. Bd., 52 V.1

445, 450 (V.1. 2009) (internal quotation marks and citations omitted)

B. Overview of Issues

411 On appeal, Richards—disagreeing with the 2004 PERB Order and the January 27, 2023

Order—argues that the language of § 530(a) is ambiguous. However, when the statutory text is

considered in light of the legislative history, she asserts that it shows a clear legislative intent that

it applies to all regular employees of the executive departments of the Government of the Virgin

Islands, not only to the regular employees of the four entities then listed in § 530(a), namely “the

Government Development Bank, the Virgin Islands Water and Power Authority, the Virgin Islands

Port Authority, or a hospital under the jurisdiction of the Virgin Islands Hospitals and Health

Facilities Corporation.""° As a result, she contends that the PERB had jurisdiction over her

suspension appeal. Richards further asserts that the VIPD’s separation of powers argument is

“baseless,” and points out that the VIPD had previously conceded to this interpretation in the 2004

Superior Court Case when the VIPD stated in its 2022 opposition brief that “[the PERB] lacked

'© Section 530(a) of title 3 of the Virgin Islands Code expressly covered these four entities as a result of legislation passed in 1999. See Act Nos. 6279, § 4 and 6325, § | (V.I. Reg. Sess. 1999) More entities were added or substituted in subsequent amendments. See Act No. 6815, § 1 (V.I is ee 2005); Act No. 7144, § 1 (V.L Reg. Sess. 2009); Act No. 7832, § 10(c) (V.J. Reg. Sess

Page 8 of 38 jurisdiction to hear [Richards’ suspension appeal}, but not for its stated reasons in [the 2004 PERB

Order}.”

412 Richards also argues that subsequent amendments to § 530(a) have “plain and ambiguous

retroactive effect” so “(t]he PERB’s supposed jurisdictional ‘issue’ regarding the 2001 amendment

was not only wrong from the outset, it is mooted by subsequent clarifying amendments, which

apply retroactively and unambiguously to the benefit of employees such as [Richards].” Richards

also contends that the VIPD waived its argument that her union membership precluded her from

seeking relief under § 530(a) since the VIPD had previously retracted such an objection in the

Suspension Matter before the PERB. She further argues that, even if the union membership

argument was not waived, it has no merit because “while [she] was in fact unionized at the time

of her suspension, her union was newly certified and did not have a new collective bargaining

agreement in force.” Thus, Richards concludes that this Court should reverse the January 27, 2023

Order affirming the 2004 PERB Order.

413 In contrast, the VIPD-—agreeing with the 2004 PERB Order and the January 27, 2023

Order argues that the language of § 530(a) is unambiguous in providing that it is applicable only

to the regular employees of the various entities listed therein, and therefore, the PERB lacked

Page 9 of 38

jurisdiction over Richards’ suspension appeal.'! The VIPD avers that, “to avoid a violation of the

Separation of Powers doctrine, this Court must hold, as the Superior Court did, that the PERB

properly determined that it did not have jurisdiction to hear {[Richards’] appeal based on Section

530(a) as it existed in 2004.” Additionally, the VIPD also argues that this Court “should find that

[Richards] is [judicially] estopped” because Richards “received a judgment payment based on

those arguments [regarding her union membership] and the [collective bargaining agreement

executed between the United Steelworkers Union and the Government of the Virgin Islands in

2005}, which she now admits would have divested her of the protection of the PERB if it were in

'! Arguably, the VIPD waived this argument—that the PERB lacked jurisdiction under § 530(a) over Richards’ suspension appeal because Richards was not employed by one of the four entities listed in § 530(a)}—due to the VIPD’s subsequent retraction in the 2004 Superior Court Case. See V.LR.APP.P. 4(h) (“Only issues and arguments fairly presented to the Superior Court may be presented for review on appeal; provided, however, that when the interests of justice so require, the Supreme Court may consider and determine any question not so presented.”) ; see also, V.LR.App.P. 22(m) (“Issues that were (1) not raised or objected to before the Superior Court, (2) raised or objected to but not briefed, or (3) are only adverted to in a perfunctory manner or unsupported by argument and citation to legal authority, are deemed waived for purposes of appeal, except that the Supreme Court, at its option, may notice an error not presented that affects substantial rights.”). As noted above, the VIPD stated in its 2022 opposition brief that the PERB lacked jurisdiction over Richards’ appeal “but not for its stated reasons in [the 2004 PERB Order], but because Richards was “judicially estopped from asserting PERB jurisdiction under 3 V.L-C. § 530.” (J.A. 9-10)

Notably, the language in the VIPD’s 2022 opposition brief made it clear that the judicial estoppel argument was not an additional reason that the PERB lacked jurisdiction over Richards suspension appeal, but that it was the only reason why the PERB lacked jurisdiction. Nevertheless, this Court has discretion under Rules 4(h) and 22(m) of the Supreme Court Rules of Appellate Procedure “to reach issues waived on appeal ‘when the interests of justice so require’ and when such issues ‘affect (] substantial rights.’” Rodriguez v. People, 71 V.I. 577, 633 (V.1. 2019) (citing Phillip v. People, 58 V.1. 569, 585-87 & n.t9 (V.1. 2013) (reviewing waived argument under Rule 22(m)); Brown y. People, 55 V.1. 496, 503-04 (V.1. 2011) (reviewing waived argument))

In this instance, this Court chooses to exercise its discretion——in the interests of justice and because it affects Richards’ substantial rights under § 530(a)- to review this issue on the merits especially since the Superior Court reached this issue in the January 27, 2023 Order. See V.I.R.ApP.P. 4(h); see also, V.ILR.ApP.P. 22(m)

Page 10 of 38

place when she was suspended.” The VIPD further disagrees that it waived its union membership

argument because “[i}n its supplemental briefing in 2022, [the VIPD] provided significant and

relevant intervening facts and authority to flesh [sic] out the union argument it raised in 2004.” As

such, the VIPD concludes that this Court should affirm the January 27, 2023 Order affirming the

2004 PERB Order

q'!4 This Court notes at the outset that it is not in dispute that Richards was a regular employee

within the meaning of § 530(a) when this matter arose, '*

C. Statutory Interpretation of Section 530(a)

415 The right of a regular employee of the Government of the Virgin Islands to appeal to the

PERB from a decision to dismiss, demote, or suspend employment is derived from § 530(a). As

noted above, the parties dispute the interpretation of § 530(a), which at the time that Richards’

cause of action accrued provided that

Notwithstanding any other provision of law, in any case after January 1, 1977 where a department head, including the Executive Directors of the Government Development Bank, the Virgin Islands Water and Power Authority, the Virgin [slands Port Authority, and the Chief Executive Officer of a hospital under the jurisdiction of the Virgin Islands Hospitals and Health Facilities Corporation, decides to dismiss, demote, or suspend a regular employee of the Government Development Bank, the Virgin Islands Water and Power Authority the Virgin Islands Port Authority, or a hospital under the jurisdiction of the Virgin Islands Hospitals and Health Facilities Corporation, for cause, he shall furnish the employce with a written statement of the charges against him. The employee shall have ten days following the date of receipt of said statement of the charges to appeal the proposed action to the Public Employees Relations Board Such appeal shall be in writing and a copy shall be furnished to the department head and the Attorney General by the Board

'2 In the January 27, 2023 Order. the Superior Court noted that “the Government did not dispute that [Richards] was a classified regular employee of the Government.” (Super. Ct. Jan. 27, 2023 Order.) This is supported by the record before this Court. See supra note 6

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Former 3 V.I.C. § 530(a) (2004)."°

416 “The first step when interpreting a statute is to determine whether the language at issue has

a plain and unambiguous meaning.” Miller v. People, 67 V.1. 827, 844 (V.I. 2017) (citations

omitted). It is well settled that when “the statutory language is unambiguous and the statutory

scheme is coherent and consistent, no further inquiry is needed.” /n re L.O.F., 62 V.1. 655, 661

(V.I. 2015) (citations omitted); see Thomas v. People, 69 V.1. 913, 925 (V.I. 2018) (“[BJecause

‘the statutory language[of 14 V.LC. § 2101(a)}] is plain and unambiguous, no further

interpretation is required.’”) (citation omitted); see also, Codrington v. People, 57 V.I. 176, 185

(2012) (Accordingly, when the language of a statute is plain and unambiguous, a court does not

look beyond the language of the statute in interpreting the statute's meaning.” (citations omitted)

717 “Statutory language is ambiguous when it is susceptible to more than one interpretation.”

One St. Peter, LLC y. Bd. of Land Use Appeals, 67 V.1. 920, 924 (V.1. 2017). If statutory language

is ambiguous, “we will proceed to examine the legislative history of the statute and its purpose to

ascertain if [a proposed] interpretation was within the legislature's intent,” id., at 926 (quoting

Sonson v. People, 59 V.1. 590, 598 (V.1. 2013)), but “remain mindful that ‘[a] statute should not

be construed and applied in such a way that would result in injustice or absurd

consequences.” One St. Peter, LLC, 67 V.L at 926 (quoting Gilbert v. People, 52 V.1. 350, 356

(V.1. 2009) (citing Am. Dredging Co. v. Local 25, Marine Div., int'l Union of Operating Eng'rs,

338 F.2d 837, 842-43 (3d Cir. 1964))); see V.L. Narcotics Strike Force v. Gov't of the V1. Pub

Emples. Rels. Bd., 60 V.1. 204, 214 & n.7 (V.I. 2013) (observing that in the statutory construction

'5 For a discussion of the amendments to 3 V.I.C. § 530(a) that expanded the number of entities covered by the statute, see supra note 10

Page 12 of 38

context, an “absurd result” refers to an interpretation of a statute that would be “clearly inconsistent

with the Legislature's intent’ and finding that an interpretation of a statute that would ‘ underminfe]

the entire regulatory regime established in” a chapter of a title of the Virgin Islands Code would

produce an absurd result) (citing Gi/bert, 52 V.I. at 365)

q!8 The United States Supreme Court has instructed that statutory interpretation requires the

court to “look to the statute's language, structure, subject matter, context, and history — factors

that typically help courts determine the statute's objectives and thereby illuminate its text

Almendarez-Torres v. United States, 523 U.S. 224, 228 (1998) (citations omitted)

{'9 Additionally, this Court has also instructed that “[i]Jn 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.” n re L.O.F., 62 V.1. at 661 (quoting Defoe v. Phillip, 56 V1

109, 129 (V.E. 2012)); see Ottley v. Estate of Bell, 61 V.1. 480, 493 (V.I. 2014) (we must look to

“the context surrounding each statute” to determine the legislative intent). However, “even where

a statutory scheme is plain and internally consistent, ‘no statute should be read literally if such a

reading is contrary to its objective [and] this Court must consider whether applying the statute's

literal language leads to ... absurd consequences or is otherwise inconsistent with the Legislature's

intent.” /n re L.O.F., 62 V.1. at 661 (quoting Gilbert v. People, 52 V.I. at 356 (internal quotation

marks, citation, and alteration omitted)): see e g.. Peters v. People, 60 V.I. 479, 483 (VI

2014); Rohn v. People, 57 V.1. 637, 646 n.6 (V.L. 2012); Brady v. Gov't of the V.L, 57 V.I. 433

442-43 (V.1. 2012)

Page 13 of 38

120 “Interpretations that are unjust or lead to absurd results must be avoided because they are

inconsistent with legislative intent... An interpretation that renders a statute nonsensical or superfluous, or that deties rationality, is absurd.” Dupigny v. Tyson, 66 V.1. 434, 440 (V.I 2017)

Lastly, and equally important, our Legislature has mandated that when construing provisions

appearing as part of the Virgin Islands Code, “[w]ords and phrases shall be read with their context

and shall be construed according to the common and approved usage of the English language.” | VIC. § 42; Miller, 67 V.I. at 844

1. The Language of Section 530(a) was Unambiguous

{21 Upon review of § 530(a) as it existed at the time that Richards’ cause of action accrued,

this Court concludes that its language was plain and unambiguous that it was applicable to all

regular employees of the executive departments of the Government of the Virgin Islands, in

addition to the regular employees of “the Government Development Bank, the Virgin Islands

Water and Power Authority[,] the Virgin Istands Port Authority, {and] a hospital under the

jurisdiction of the Virgin Islands Hospitals and Health Facilities Corporation.” Former 3 V.I.C §

530(a) (2004). Accordingly, the PERB and the Superior Court should have looked into all relevant

key terms of § 530(a), such as “department head,” “the Government Development Bank,” “the

Virgin Islands Water and Power Authority,” “the Virgin Islands Port Authority,” and “the Virgin

Islands Hospitals and Health Facilities Corporation.” These key terms were not addressed in either

the 2004 PERB Order or the January 27, 2023 Order

422 “{D]epartment head,” as used in chapter 25 of title 3 of the Virgin Islands Code—which

includes § 530(a)-- means “the Commissioner at the head of any executive department of the

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Government.” 3 V.1.C. § 451'* (emphasis added). By defining “department head” as such, § 530(a) necessarily includes the regular employees of the executive departments, otherwise it would imply

that a Commissioner of any executive department could dismiss, demote, or suspend a regular

employee of “the Goverment Development Bank, the Virgin Islands Water and Power

Authority[,] the Virgin Islands Port Authority, or a hospital under the jurisdiction of the Virgin

'4 According to the legislative history, § 451 was last amended in 1994. See Act No 6010, § 1(d) (V.I. Reg. Sess. 1994), Thus, this Court concludes that the definition of “department head” as set forth in the 2004 version of § 451 has remained the same to date In its appellee brief, the VIPD argues that this Court should reject the definition of ‘ department head” provided in § 451 because “[§} 451 does not contain a separate definition for chief executives of governmental instrumentalities”; instead, the VIPD asked this Court to resort to the dictionary definitions of “department” and “head” in Merriam-Webster. This argument is unpersuasive. First, § 451—which sets forth the definitions of key terms used in chapter 25 of title 3 of the Virgin Islands Code-—was intended to be read alongside § 530(a). To be sure, since § 45] appears in the same chapter of the Code as § 530(a), the in pari materia canon of statutory construction compels us to harmonize these statutes and construe them together as part of a consistent legislative scheme See, e.g., Phillip v. People, $8 V.I. 569, 590 (V.I. 2013) (statutes in pari materia must be harmonized unless there is a clear inconsistency between them) (citing Jn re Richards v, Elective Board of Frederiksted, | V.1. 351, 354-55 (D.V.I. 1936) and McBean y. Gov't of the V.1., 32 V.1 120, 126 (V.I. Terr. Ct. 1995)). Second, the definition for the roles of “Executive Director” and “Chief Executive Officer” of the entities listed in § 530(a)—namely, “the Government Development Bank, the Virgin Islands Water and Power Authority, the Virgin [Islands Port Authority, [and] a hospital under the jurisdiction of the Virgin Islands Hospitals and Health Facilities Corporation”-~are provided by the governance and the regulatory scheme of each respective entity, Given that § 451 provides definition specific to chapter 25 of title 3 of the Virgin Islands Code, it would be unnecessary, not to mention entirely improper, for § 451 to provide the definition for the roles of “the Executive Directors of the Government Development Bank, the Virgin Islands Water and Power Authority, the Virgin Islands Port Authority, and the Chief Executive Officer of a hospital under the jurisdiction of the Virgin Islands Hospitals and Health Facilities Corporation.” Third, this Court finds that it is not otherwise provided, and the context does not require a different construction, application, or meaning of “department head” in § 530(a) See 3V.1.C. § 451 (“As used in this chapter, unless it is otherwise provided or the context requires a different construction, application, or meaning---"). Thus, the statutory definition of “department head” under § 451 should be used in this instance

Page 15 of 38

Islands Hospitals and Health Facilities Corporation.”'> A reading of § 530(a) that would exclude

the regular employees of the executive departments would result in absurd consequences contrary

to the authority provided to the Commissioners of their respective executive departments

Specifically, it would allow them to usurp the authority of “the Executive Directors of the

Government Development Bank, the Virgin Islands Water and Power Authority, the Virgin Islands

Port Authority, and the Chief Executive Officer of a hospital under the jurisdiction of the Virgin

Islands Hospitals and Health Facilities Corporation” to dismiss, demote, or suspend the respective

entities’ regular employees. See e.g., Act No. 6279, § 4(V.E. Reg. Sess. 1999) (Act No. 6279 was

enacted to “provide for the semiautonomous administration of the V.I. Government Hospitals and

Health Facilities and for other purposes”; it added § 244a under title [9 of the Virgin Islands Code,

which provides: “The Chief Executive Officer shall serve as the head of the hospital to which he

is appointed and shall: (a) appoint and remove the Medical Director, and the Chief Financial

Officer with the advice and consent of the respective District Board; (b) appoint and remove all

managerial personnel, health care providers and all other professional and nonprofessional

personnel,...”). An interpretation that leads to such absurd results must be avoided. See Dupigny

66 V.1. at 440 (“Interpretations that are unjust or lead to absurd results must be avoided because

'S If we were to insert the definition of “department head” from § 451 into § 530(a), it would read Notwithstanding any other provision of law, in any case after January 1, [977 where a Commissioner at the head of any executive department of the Government, including the Executive Directors of the Government Development Bank, the Virgin Islands Water and Power Authority, the Virgin Islands Port Authority, and the Chief Executive Officer of a hospital under the jurisdiction of the Virgin Islands Hospitals and Health Facilities Corporation, decides to dismiss, demote, or suspend a regular employee of the Government Development Bank, the Virgin Islands Water and Power Authority the Virgin Islands Port Authority, or a hospital under the jurisdiction of the Virgin Islands Hospitals and Health Facilities Corporation

Page 16 of 38

they are inconsistent with legislative intent...An interpretation that renders a statute nonsensical

or superfluous, or that defies rationality, is absurd.”). Additionally, an interpretation that renders

a statute superfluous—such as the VIPD’s proposed interpretation of § 530(a) based on the

dictionary definitions of “department” and “head” that would render § 451’s definition of

‘department head” meaningless—must also be avoided. Jd

423 Given this reading of § 530(a), the question arises: why did the Legislature of the Virgin

Islands incorporate the language “including Executive Directors of the Government Development

Bank, the Virgin Islands Water and Power Authority, the Virgin Islands Port Authority, and the

Chief Execute Officer of a hospital under the jurisdiction of the Virgin Islands Hospitals and

Health Facilities Corporation, decides to dismiss, demote, or suspend a regular employee the

Government Development Bank, the Virgin Islands Water and Power Authority, the Virgin Islands

Port Authority, or a hospital under the jurisdiction of the Virgin Islands Hospitals and Health

Facilities Corporation” after “department head”? In other words, why did these four entities—the

Government Development Bank, the Virgin Islands Water and Power Authority, the Virgin Islands

Port Authority, and the Virgin Islands Hospitals and Health Facilities Corporation — get “singled

out” in § 530(a)? The explanation is simple. These four entities are not executive departments, so

they cannot be included within the definition of “department head”; instead, they are corporations

and/or instrumentalities of the Govemment of the Virgin Islands. Specifically, the Government

Development Bank!® was “created as a public corporation and governmental instrumentality as a

subsidiary entity of. subordinate in administration and operation to the V.I. Economic

'® In 2014, the Government Development Bank was renamed to the Economic Development Bank throughout the Virgin Islands Code. See Act No. 7632, § 2 (V.L. Reg. Sess. 2014)

Richards v PERB and VIPD 2024 VI 37 S. Ct. Civ. No, 2023-0010 Opinion of the Coun Page {7 of 38

Development Authority.” 29 V.I.C. § 901. In turn, the Virgin Islands Water and Power Authority

is “a body corporate and politic constituting a public corporation and autonomous governmental

instrumentality of the Government of the Virgin Islands.” 30 V.I.C. § 103(a). Continuing, the

Virgin Islands Port Authority is a ‘body corporate and politic constituting a public corporation and

autonomous governmental instrumentality for the Government of the Virgin Islands.” 29 V.LC. §

541(a). Finally, the Virgin Islands Government Hospitals and Health Facilities Corporation ‘‘is a

body corporate and politic constituting a public benefit corporation of the Government of the

Virgin Islands.” 19 V.I.C. § 243(a). Thus, these four entities the Government Development

Bank, the Virgin Islands Water and Power Authority, the Virgin Islands Port Authority, and the

Virgin Islands Hospitals and Health Facilities Corporation—had to be specifically listed in §

530(a) in order for their regular employees to have the right to appeal to the PERB pursuant to §

530(a). “[W]hen enacting [a] ... statute, the Legislature is presumed to know the existing state of

the law.” People y. Looby, 68 V.1. 683, 696 (V.I. 2018) (citing Cascen v. People, 60 V.L. 392, 404

(V.J. 2014)); see Brooks v. Gov't of the V.L, 58 V.1. 417, 428 (V.L 2013) (citing Henderson v

Shinseki, 562 U.S. 428, 435 (2011)). Additionally, “this [C]ourt[ ] must presume that a legislature

says in a statute what it means and means in a statute what it says there.” Thomas, 69 V.I. at 924

25 (quoting People v. Baxter, 49 V.1. 384, 389 (V.1. 2008))

(24 Because the language of § 530(a) is plain and unambiguous, this Court need not look

beyond the language of the statute in interpreting its meaning and will give effect to its plain words

See Thomas, 69 V.1. at 925 (noting that when the language of a statute is plain and unambiguous,

no further interpretation is required); see also, Codrington, 57 V.I. at 185 (“Accordingly when

the language of a statute is plain and unambiguous, a court does not look beyond the language of

Page 18 of 38

the statute in interpreting the statute's meaning.”). Given that Richards was a regular employee of

the VIPD, an “executive department in the Government of the Virgin Islands,” see 3 V.LC. § 251

and this Court’s conclusion that § 530(a) was applicable to all regular employees of the executive

departments, the Superior Court erred when it affirmed the 2004 PERB Order dismissing with

prejudice her suspension appeal pursuant to § 530(a) for lack of jurisdiction

2. Assuming, Argeuendo, that the Language of Section 530(a) was Ambiguous

425 Assuming, arguendo, that the language of § 530(a) was ambiguous—as shown by the

differing interpretations before this Court, see One St. Peter, LLC, 67 V.L. at 924 (‘Statutory

language is ambiguous when it is susceptible to more than one interpretation.”), we are obligated

to resolve that ambiguity. Richards interprets it to be applicable to all regular employees of the

executive departments of the Government of the Virgin Islands in addition to the regular

employees of the four entities listed therein, while the VIPD, the PERB, and the Superior Court

interpret it to be applicable only to the regular employees of the four entities listed therein.'

{26 This Court must now examine the legislative history of § 530(a) and its purpose to

ascertatn whether a proposed interpretation correctly identifies the legislature's intent. See One St

Peter, LLC, 67 V.1. at 926 (noting that if statutory language is ambiguous, “we will proceed to

examine the legislative history of the statue and its purpose to ascertain if [a proposed]

interpretation was within the legislature’s intent”). A review of § 530(a)’s legislative history is

instructive here—it evidences a clear legislative intent for the availability of the statutory avenue

'? However, as noted above, this difference in interpretation may not necessarily be due to ambiguity of the language of § 530(a) but because the PERB and the Superior Court failed to look at alt the relevant key terms of the statute and the VIPD arbitrarily rejected the definition of “department head” as provided in § 451 and opted for the dictionary definition instead

Page 19 of 38

of relief under § 530(a) to be expansive, as shown by the amendments over the years that have

broadened its reach to include more public employees

927 = Prior to 2004, § 530(a) was amended four times to expanded its scope—to include the

employees of the Virgin Islands Water and Power Authority in 1977,'* the Virgin Islands Port

Authority in 1984,'? and hospitals under the jurisdiction of the Virgin Islands Hospitals and Health

Facilities Corporation and the Government Development Bank in 1999.7° After 2004, the

Legislature continued to expand § 530(a) to include more public employees.”'

'§ In 1977, § 530(a) was amended by including the employees of the Virgin Islands Water and Power Authority. 1977 V.I. Sess. Laws 39 (Act. No. 3960) '" In 1984, § 530(a) was amended by including the employees of the Virgin Islands Port Authority 1984 V.1. Sess. Laws 209 (Act No. 4971) "In 1999, § 530(a) was amended by including the employees of the hospitals under the jurisdiction of the Virgin Islands Hospitals and Health Facilities Corporation, Act No. 6279, § 4 (V.L Reg Sess. 1999), and the employees of the Government Development Bank, Act No. 6325, § | (V.1 Reg. Sess. 1999) 2! The current version of § 530(a) provides (1) Notwithstanding any other provision of law, in any case after January 1, 1977, before a head officer of an executive department, agency or instrumentality of the Government dismisses, demotes or suspends a regular employee of a department, agency or instrumentality of the Government, the head officer shall furnish the employee with a written statement of the charges against the employee. The employee shall have ten days following the date of receipt of the statement of charges to appeal the proposed action to the Public Employees Relations Board. The appeal must be in writing, and the Board must provide a copy to the head officer and the Attorney General (2) As used in this section (A) “head officer” means the Commissioner of an executive branch department, the director of an executive branch agency or instrumentality or the director, executive director, chief executive officer, president or other titular head of an instrumentality of the Government of the Virgin Islands (B) Instrumentality of the Government includes (i) the Virgin Islands Water and Power Authority (ii) the Virgin Islands Port Authority

Page 20 of 38

28 Furthermore, a review of the legislative history of the creation of the PERB supports a

finding that the language of § 530(a) included all regular employees of the executive departments

In 1980, the Legislature enacted the Public Employee Labor Relations Act (“PELRA") and added

“Chapter 14, Public Employee Labor Relations” to title 24 of the Virgin Islands Code to “provide

for orderly and constructive relationships between public employers and their employees.” 24

V.LC. § 361; see United Steelworkers Locals 9488 & 9489 v. Gov't of the V.1., S. Ct. Civ. No

2020-0106 VI 2024 V.L. Supreme LEXIS 9, at *6 (V.I. Feb. 7, 2024). PELRA also

“provides for the creation of the ... PERB, and gives PERB the power to certify and decertify

representatives of appropriate bargaining units, establish rules, conduct hearings, and carry out

other duties, similar to those performed by the NLRB [(National Labor Relations Board)],” United

Steelworkers Locals 9488 & 9489, 2024 V.I. Supreme LEXIS 9, at *6 (quoting Gomez, 882 F.2d

at 737 (citing 24 V.I.C. §§ 364-366, 370-373)), with title 24, § 364 of the Virgin Islands Code

(iii) the Waste Management Authority; (iv) the Magens Bay Authority; (v) the Virgin Islands Housing Authority (vi) the University of the Virgin Islands; (vii) the Virgin Islands Public Broadcasting Systems; (viii) the Government Employees Retirement System; (ix) a hospital under the jurisdiction of the Virgin Islands Hospitals and Health Facilities Corporation; and (x) Any other entity established within the executive branch whose staff includes regular employees (C) “Regular employee” means an employee who (i) has been appointed to a position in the classified or career service or served in a temporary position for more than two years in a department or agency of the executive branch or in an instrumentality, as defined in subparagraph (B) of this subsection or and (ti) who is not on contract, is not on probation, and therefore subject to dismissal, demotion or suspension, only for cause 3 V.L.C. § 530(a)

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creating the PERB on June 2, 1980. More specifically, under PELRA, the PERB has the power

and the duty “to conduct hearings and/or proceedings, when warranted, on complaints of

prohibited practices by employers or by employee organizations and take such actions with respect

thereto as it deems necessary and proper.” 24 V.LC. § 365(i); see 24 V.1.C. § 379 (“Any party

aggrieved by the action of another, which action is believed to be a violation of this chapter, may

complain of such violation in writing to the PERB and shall state in the complaint any relief

sought.”)

{29 The PERB was substituted in place of the Government Employees Service Commission in

§ 530 in 1995,” and thereafter, the interpretation that § 530(a) was applicable only to the regular

employees of the entities listed therein and not to the regular employees of the executive

departments would be contrary to the purpose of PELRA and the powers and duties given to the

PERB thereunder. For example, the [995 version of § 530(a) provided

Notwithstanding any other provision of law, in any case after January 1, 1977, where a department head, including the Executive Directors of the Virgin Islands Water and Power Authority and the Virgin Islands Port Authority, decides to dismiss, demote, or suspend a regular employee, or employee of the Virgin Islands Water and Power Authority or the Virgin Islands Port Authority, for cause, he shall furnish the employee with a written statement of the charges against him. The employee shall have ten days following the date of receipt of said statement of the charges to appeal the proposed action to the Public Employees Relations Board. Such appeal shall be in writing and a copy shall be furnished to the department and the Attorney General by the Board

See Act No. 6010, § 1(g) (V.I. Reg. Sess. 1994)

7? In 1994, § 530 was amended by deleting words “Government Employees Service Commission” whenever they appear and inserting the words “Public Employees Relations Board” in lieu thereof and by deleting the word “Commission” whenever it appears and inserting the word “Board” in lieu thereof, and scheduled such amendments to become effective on January !, 1995. Act No 6010, §§ 1,2 (V.1. Reg. Sess. 1994)

Page 22 of 38

430 To construe the 1995 version of § 530{a)} as being applicable only to the public

employees of the entities listed therein so that the PERB only had jurisdiction over the appeals of

the regular employees and employees of the Virgin Islands Water and Power Authority and the

Virgin Islands Port Authority”? would be unreasonably restrictive and subvert the legislative intent

in enacting PELRA and creating the PERB to achieve PELRA’s purpose of providing for “orderly

and constructive relationships between public employers and their employees” when no such

limiting language was found in PELRA. The inappropriateness of such a limiting interpretation of

§ 530(a}—that it was applicable only to the public employees of the specific entities listed

therein—is also evident when considering former versions of § 530(a), before the Government

Employees Service Commission was replaced by the PERB. The Government Employees Service

Commission had the powers and duties related to personnel administration within the Government

73 In 2001, § 530(a) was amended by deleting “, or employee” following “regular employec.” See Act 6425, § 9 (V1. Reg. Sess. 2001). Arguably, prior to the 2001 amendment, the statute could be read to refer two categories of public employees: regular employees within the executive branch who were dismissed, demoted, or suspended by a department head; and employees of the government instrumentalities named in the statute who were dismissed, demoted, or suspended by the respective executive director This Court, for the sole purpose of considering the VIPD’s argument for a limiting interpretation of the statute, construes the statute to refer to one category of public employees: regular employees and employees of the government instrumentalities named in the statute who were dismissed, demoted, or suspended by the respective executive director

Page 23 of 38

of the Virgin Islands, See 3 V.LC. § 472;’* see also, 3 V.LC. § 451.25 Under a limiting

interpretation of the former versions of § 530(a) before 1995, the Government Employees Service

Commission would not have had jurisdiction over a majority of the appeals of the public

employees’ appeals from a decision to dismiss, demote, or suspend only the appeals of the

regular employees and employees of the Virgin Istands Water and Power Authority after the 1977

amendment, plus the appeals of the regular employees and employees of Virgin [slands Port

Authority after the 1984 amendment”-—when no such limiting language was found in § 472

4 The current version of § 472 provides In addition to the powers and duties imposed upon it elsewhere in this chapter, the [Government Employees Service] Commission (1) shall represent the public interest in the improvement of personnel administration in the Government Service (2) shal] advise the Director of Personne] and the Governor on problems concerning personnel administration; (3) shali advise and assist the Director of Personnel in fostering the interest of civil, professional and employee organizations in the improvement of personnel standards in the Government Service (4) shall make such reports and recommendations as it considers desirable to the Director of Personnel, for submission to the Governor, regarding personnel administration in the Governnent Service and recommendations for improvement therein; and (5) may, when the Attorney General determines that representation of the Commission by him would constitute a conflict in representation, retain the services of private legal counsel to advise and represent the Commission in administrative hearings and before the courts of the Virgin Islands 3 V.LC. § 472 Section 472 was amended in 1962—-namely, references to Director of Personnel was substituted for references to Government Secretary, see 1962 V.J. Sess. Laws. 52 (Act. No. 819), and in 1973—namely, reference to “powers” were inserted and a new paragraph (5) was added, see 1973 V.1. Sess. Laws. 83 (Act No. 3429) *5 Under § 451, “Government” or ‘Government Service’ means the Government of the United States Virgin Islands, including governmental activities administered by boards, commissions, and authorities.” 3 V.I.C. § 451] 6 See supra note 23

Page 24 of 38

setting forth the powers and duties of the Government Employees Service Commission. Further

when the Legislature first amended § 530 in [962 by adding subsection (a), it did not list any entity

therein. See Act No. 819, § 6(V.L Reg. Sess. 1962).”’ Under a limiting interpretation of the original

1962 version of § 530(a), it would not be applicable to any public employee—since it did not list

any entity—and thus the Government Employees Service Commission would not have had

jurisdiction over any public employees’ appeals from a decision to dismiss, demote, or suspend

Such a limiting interpretation of § 530(a) is manifestly inconsistent with legislative intent and leads

to absurd results, and thus, it must be avoided. See Dupigny, 66 V.I. at 440; see also, In re L.O.F.,

62 V.I. at 661

43! Moreover, a review of the placement of § 530 in the Virgin Islands Code further supports

a finding that § 530(a) was applicable to all regular employees of the executive departments

Almendarez-Torres, 523 U.S. at 228 (noting that statutory interpretation requires the court to “look

to the statute's language, structure, subject matter, context, and history --- factors that typically

help courts determine the statute's objectives and thereby illuminate its text’) (citations omitted)

Ortley, 61 V.1. at 493 (we must look to “the context surrounding each statute” to determine the

legislative intent). Section 530 has always been placed within title 3 of the Virgin Islands Code,

which governs the executive branch of the Government of the Virgin Islands

27 In 1962, the Legislature amended § 530 to read as follows § 530(a). When a department head decides to (1) dismiss, or (2) demote, or (3) suspend for a period over thirty days a regular employee, for cause, he shall furnish the employee with a written statement of the charges against him. The employee shall have ten days from and after the date of receipt of said statement of charges to appeal the proposed action to the Government Employees Service Commission. Such appeal shall be in writing and a copy shall be furnished to the department See Act No. 819, § 6 (V.I. Reg. Sess. 1962)

Page 25 of 38

432 To interpret that § 530(a) is inapplicable to the regular employees of the executive

departments but applicable only to the regular employees of the entities listed therein—despite

being placed within the title governing the executive branch—would again subvert the legislative

intent, see Looby, 68 V.I. at 696 (“[W]hen enacting [a]...statute, the Legislature is presumed

to know the existing state of the law.”) (citing Cascen, 60 V.I. at 404), and such a reading must be

avoided, see Dupigny, 66 V.I. at 440; see also, In re L.O.F , 62 V.I. at 661

433 The VIPD has pointed to the 2005 amendment— which rewrote § 530(a) to include, inter

alia, the language “including, but not limited to, the Executive Director of the Government

Development Bank, the Virgin Islands Water and Power Authority’?*—to further support its

8 In 2005, the Legislature amended § 530(a) to read as follows Notwithstanding any other provision of law, in any case after January 1, 1977, where a department head, of the executive branch of the Government of the Virgin Islands or the Executive Director or Chief Executive Officer of any agency or instrumentality of the Government including, but not limited to, the Executive Director of the Government Development Bank, the Virgin Islands Water and Power Authority, the Virgin Islands Port Authority, the Waste Management Authority, the Magens Bay Authority, the Virgin Islands Housing Authority, the University of the Virgin Islands, the Virgin Islands Public Television Systems, the Government Employees Retirement System and the Chief Executive Officer of a hospital under the jurisdiction of the Virgin Islands Hospitals and Health Facilities Corporation, decides to dismiss, demote, or suspend a regular employee of, or an employee, who is not on contract, is not temporary, and is not on probation, with the Government Development Bank, the Virgin Islands Water and Power Authority the Virgin Islands Port Authority, the Waste Management Authority, the Magens Bay Authority, the Virgin Islands Housing Authority, the University of the Virgin Islands, the Virgin Islands Public Television Systems, the Government Employees Retirement System or a hospital under the jurisdiction of the Virgin Islands Hospitals and Health Facilities Corporation, for cause, he shall furnish the employee with a written statement of the charges against him. The employee shall have ten days following the date of receipt of the statement of charges to appeal the proposed action to the Public Employees Relations Board. The appeal must be in writing, and the Board must provide a copy to the department head, the agency head or the Chief Executive Officer, as the case may be, and the Attorney General See Act No. 6815, § t (V.1. Reg, Sess. 2005)

Page 26 of 38

argument that § 530(a) was unambiguous that it was applicable only to the four entities listed

therein. This argument is unavailing. As discussed above, a limiting interpretation of § 530 prior

to the 2005 amendment as suggested by the VIPD would lead to absurd results and must be

avoided. Additionally, the VIPD never addressed and failed to acknowledye that the 2005

amendment was consistent with the Legislature's intent to provide this statutory avenue of relief

to more, rather than fewer, public employees by adding more instrumentalities to the statute: Waste

Management Authority, the Magens Bay Authority, the Virgin Islands Housing Authority, the

University of the Virgin Islands, the Virgin Islands Public Television Systems, and the

Government Employees Retirement System. In sum, the rewriting of § 530(a) in 2005 was to better

illuminate the Legislature’s intent to provide this statutory avenue of relief to more, rather than

fewer, public employees.”°

34 Thus, the interpretation that § 530(a) was applicable to all regular employees of the

executive departments of the Government of the Virgin Islands, in addition to the regular

employees of the four entities listed therein, is the more reasonable interpretation consistent with

the legislative intent and produces a coherent statutory scheme

3. Separation of Powers Doctrine

435 When the United States Congress enacted the Revised Organic Act of 1954, it “not only

delegated certain powers to the Government of the Virgin Islands, but also established a system of

2» This conclusion is supported by the Legislature’s subsequent enactment of Act No. 7144 in 2009, which expanded § 530 again by extending it to “[a]ny other entity established within the a branch whose staff includes regular employees.” Act No. 7144, § | (V.1. Reg. Sess

Page 27 of 38

separation of powers within its branches, with executive functions vested in the Executive Branch

legislative functions vested in the Legislative Branch, and judicial functions vested in the Judicial

Branch.” Balboni v. Ranger Am. of the V.1., Inc., 70 V.1. 1048, 1084 (V.I. 2019) (citing Kendall v

Russell, 572 F.3d 126, 135 (3d Cir. 2009)); see Martin v. Hunter's Lessee, 14 U.S (1 Wheat.) 304

329 (1816) (“The object of the constitution was to establish three great departments of

government; the legislative, the executive, and the judicial departments. The first was to pass laws,

the second to approve and execute them, and the third to expound and enforce them.”). “Unless otherwise expressly provided or incidental to the powers conferred, the Legislature cannot exercise

either executive or judicial power; the executive cannot exercise either legislative or judicial

power; [and] the judiciary cannot exercise either executive or legislative power.” Bryan v. Fawkes,

61 VI. 201, 212 (V.1. 2014) (quoting Springer v. Gov't of the Philippine Islands, 277 U.S. 189

201-02 (1928))

136 This Court rejects the VIPD's contention that any interpretation of § 530(a), other than an

interpretation consistent with the January 27, 2023 Order, violates the separation of powers

doctrine. The “[i]nterpretation of a statute...is unquestionably within the jurisdiction of the

Judicial Branch of the Virgin lslands—within which this Court serves as the court of last resort.”

Balboni, 70 V.1. at 1085 (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)

(discussing role of the judiciary under separation of powers and concluding that “i]t is

emphatically the province and duty of the judicial department to say what the law is”))

Furthermore, as explained above, this Court has not added any language to § 530(a) that did not

already exist. See Thomas, 69 V.1. at 925 (“add[ing] language into ... [a] statute that does not

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currently appear in it ... is an exercise [courts] cannot undertake under the guise of construing the

statute”) (quoting Sonson v. People, 59 V.1, 590, 601-02 (V.I. 2012))

4. The Superior Court Erred

137 For the reasons stated above, regardless of whether the language of § 530(a) was

unambiguous or ambiguous, the Superior Court erred when it affirmed the 2004 PERB Order

dismissing with prejudice Richards’ suspension appeal pursuant to § $30(a) for lack of jurisdiction

Given this finding, this Court need not reach the merits of Richards’ argument that subsequent

amendments to § 530(a) were retroactive to 1977

D. Richards’ Waiver Argument

138 As noted above, the parties also dispute whether the VIPD waived its argument that

Richards’ union membership precluded her from seeking relief under § 530(a)

439 = Title 3, § 530a(b) of the Virgin Islands Code provides that “[i]n a review by appeal under

this section, all questions of fact determined by the PERB shall be conclusive, if supported by

substantial evidence in the record considered as a whole” and that “[n]o objection not made before

the PERB shall be considered in a review by the Superior Court, unless the failure to make the

objection is excused by the court because of extraordinary circumstances.” 3 V.I.C. § 530a(b)

140 A review of the records in the present proceedings reveals that while the VIPD did initially

object to Richards seeking relief under § 530(a) in the Suspension Matter before the PERB due to

her union membership, the VIPD subsequently retracted its objection at the November 9, 2004

hearing held therein." Black’s Law Dictionary defines “retraction” as “{t}he act of taking or

30 See supra note 6

Richards v, PERB and VIPD 2024 VI 37 S. Ct. Civ. No. 2023-0010 Opinion of the Coun Page 29 of 38

drawing back” and “(t]he act of recanting; specif., an official statement that something one said

previously is not true.” Black's Law Dictionary (12th ed. 2024), available at Westlaw

{41 Thus, once the VIPD retracted its objection, the objection was no longer before the PERB

This is supported by the fact that the 2004 PERB Order never addressed this objection. The 2004

PERB Order’s summary of the VIPD’s argument did not mention such an objection and only stated

that “Respondent [the VIPD] argued that: the PERB does not have jurisdiction to hear Appellant[}

[Richards’] appeal because she is not employed by any of the government agencies listed in Title

3, Virgin Islands Code, Section 530(a).” (2004 PERB Order.)

142 = It is not procedurally sound to recognize or rely upon this retracted objection of the VIPD

as previously raised in the Suspension Matter, because it would promote gamesmanship in the

appellate practices before the PERB-—to wit, a pai, could simply raise any and all objections just

to cover its bases, then retract the objections later, knowing that said objections were preserved for

the purpose of subsequent review before the Superior Court. This would be problematic in and of

itself because, under such circumstances, the retracted objections would not be considered by the

PERB and thus no proper determination would be made by the PERB prior to the subsequent

review before the Superior Court

143 The VIPD’s argument that Richards’ union membership precluded her from secking relief

under § 530(a) is therefore treated as not having been made before the PERB due to the VIPD’s

retraction of that claim, and such an argument “shall [not] be considered in a review by the Superior

Court, unless the failure to make the objection is excused by the court because of extraordinary

circumstances.” 3 V.L.C. § 530a(b)

Page 30 of 38

144 A review of the records in these proceedings further reveals that, in the 2004 Superior Court

Case, the VIPD did not present any extraordinary circumstances excusing its failure to reassert this

objection after its retraction before the PERB and, thus, the Superior Court did not make any

findings relating thereto. The language of § 530a(b) is plain and unambiguous that under these

circumstances—when the objection was not made before the PERB and the failure to make the

objection was not excused by extraordinary circumstances—such an objection shall not be

considered in a review by the Superior Court since the “shall” language “*normally serves to create

an obligation impervious to judicial discretion.’” In re Asbestos, Silica & Catalyst Dust Claims I,

75 V.I. 173, 176 (V.1. Super. Ct. 2021) (quoting Lexecon Inc. v. Milberg Weiss Bershad Hynes &

Lerach, 523 U.S. 26, 35 (1998)). Thus, no further inquiry regarding § 530a(b) is required, and the

Court will give effect to the plain words of the statute. See Thomas, 69 V.I. at 925; see also

Codrington, 57 V.1. at 185

445 This, in turn, means that the VIPD’s argument that Richards’ union membership precluded

her from seeking relief under § 530(a) was not raised before the Superior Court. This VIPD

argument is therefore deemed waived on this appeal unless exceptional circumstances are shown

to exist. See V.I.R.APP.P. 4(h) (“Only issues and arguments fairly presented to the Superior Court

may be presented for review on appeal; provided, however, that when the interests of justice so

require, the Supreme Court may consider and determine any question not so presented.”); see also

V.L.R.AppP.P, 22(1n) (“Issues that were (1) not raised or objected to before the Superior Court, (2)

raised or objected to but not briefed, or (3) are only adverted to in a perfunctory manner or

unsupported by argument and citation to legal authority, are deemed waived fot purposes of

appeal, except that the Supreme Court, at its option, may notice an error not presented that affects

Page 31 of 38

substantial rights.”); V.4. Port Auth. v. Joseph, 49 V.1. 424, 428 (V.1. 2008) (“It is well establishe

d

that failure to raise an issue in the [trial] court constitutes a waiver of the argument on appeal

There is an exception to the general rule of waiver where exceptional circumstances are shown to exist.”) (internal quotation marks and citations omitted). Exceptional circumstances exist when

“public interest requires that the issues be heard, or manifest injustice would result from the failure

to consider such issues.” Moore y. Walters, 61 V.I 502, 510 (V.1. 2014) (quoting V.. Port

Authority, 49 V.L. at 428 (V.I. 2008) (quoting Brown y Philip Morris, Inc., 250 F.3d 789, 799 (3d

Cir. 2001))); see also Hormel v. Helvering, 312 U.S. 552, 557 (1941) (“There may always be

exceptional cases or particular circumstances which will prompt a reviewing or appellate court, where injustice might otherwis rlt, to consider questions of law which were neither pressed

nor passed upon by the court or administrative agency below.”)

Richards v. PERB and VIPD 2094 VI 37 S. Ct. Civ. No. 2023-0010 Opinion of the Count Page 32 of 38

4146 Here, the VIPD did not present this Court with any exceptional circumstances that

warrant a departure from the general rule:*! thus, the VIPD’s argument that Richards’ union

inembership precluded her from seeking relief under § 530(a) is deemed waived on this appeat and

will not be considered by this Court.” See Etienne v, Etienne, 56 V,1. 686, 691-92 (V.1. 2012)

4! In its appellee brief, the VIPD—citing to § 530a(b)—claims that the following constitutes extraordinary circumstances: (i) Richards’ failure to prosecute the 2004 Superior Court Case “for 18 years” and only proceeded to prosecute “upon the [Superior] Court’s prompting” and (ii) Richards is judicially estopped from seeking relief under § 530(a). This Court disagrees. First, § 530a(b) is not applicable to this Court since it governs a review by the Superior Court. See 3 V.1.C § 530a(b) (“No objection not made before the PERB shall be considered in a review by the Superior Court, unless the failure to make the objection is excused by the court because of extraordinary circumstances.”) (emphasis added). Nevertheless, as noted above, this Court recognizes that exceptional circumstances may warrant a departure from the general rule of waiver Second, the VIPD failed to explain why the circumstances presented are exceptional —to wit, there was no discussion that the public interest requires this argument to be heard or that manifest injustice would result from the failure to consider this argument. See Moore, 61 V.L. at 510. “It is not the Court's job to research and construct legal arguments open to parties ... In order to develop a legal argument effectively, the facts at issue must be bolstered by relevant legal authority; a perfunctory and undeveloped assertion is inadequate.” V.. Taxi Association v. West Indian Company, Limited, Super. Ct. Civ. No. 551/2016 (STT), 2016 V.I. LEXIS 170, at *4 (V.I. Super Ct. 2016) (unpublished; citation omitted). As such, this Court declines to make such argument on the VIPD’s behalf. See Encarnacion v. Testamark, S. Ct. Civ. No. 2020-0118, Vii 2023 V.L. Supreme LEXIS 12, at *8-9 (V.I. Sept. 8, 2023) (“This Court has repeatedly emphasized that our adversarial system of justice is premised on the parties presenting facts and legal arguments before a neutral and relatively passive judge, and that it is extraordinarily disfavored for courts to forsake their roles as arbiters of legal questions presented and argued by the parties before them and instead sit as self-directed boards of legal inquiry and research.”) (internal quotation marks omitted). Lastly, this Court reminds the VIPD that it chose to retract its objection to Richards seeking relief under § 530(a) due to her union membership in the Suspension Matter before the PERB, and it never reasserted this objection. See supra note 6 32 As noted infra, the VIPD appears to conflate the argument it previously raised before the PERB in 2004 with its judicial estoppel argument. The record shows that, in contrast to its judicial estoppel argument, the VIPD’s 2004 argument was that Richards’ union membership alone precluded her from seeking relief under § 530(a); there was no mention that Richards was covered by a collective bargaining agreement. See supra note 6. That is because the collective bargaining agreement mentioned in the VIPD’s judicial estoppel argument was not executed by the United Steelworkers Union and the Government of the Virgin Islands until 2006

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(rejecting arguments as waived where circumstances were not exceptional and the arguments could

have been raised at the trial level); see also, Gardiner v. Diaz, 58 V.I. 199, 206 n.7 (V.L. 2013)

(declining to reach Gardiner's contractual counterclaim because of his failure to raise the issue in

the first instance and the circumstances were not exceptional)

E. The VIPD’s Judicial Estoppel Argument

{47 This Court previously acknowledged that judicial estoppel is a common-law doctrine that

prevents a party from adopting inconsistent positions when doing so would constitute a fraud on

the court. See Sarauw v. Fawkes, 66 V.1. 253, 260 (V.I. 2017) (citing Walters v. Walters, 60 V.1

768, 775 n.7 (V.L 2014); Fontaine v. People, 56 V.1. 571, 583 n.7 (V.I. 2012) (quoting Boston 1

Gov't of the V.L, 46 V1. 520, 526 (D.V.1. App. Div. 2005)). In Sarauw, after conducting a Banks

analysis, this Court concluded that “the judicial estoppel doctrine will preclude a party from

Assuming, arguendo, that the VIPD’s 2004 argument was not waived on this appeal, it must be rejected. In its appellee brief, the VIPD fails to cite to any authority or provide any support for its proposition that Richards “being a union member and not filing a union grievance” precluded her from seeking relief under § 530(a). Even a review of the VIPD’s 2022 opposition brief filed in the 2004 Superior Court Case, which was referenced in its appellee brief, did not clarify the VIPD's reasoning since it focused on the later-executed 2006 collective bargaining agreement. (J.A. 10) Again, this Court declines to make such argument on the VIPD’s behalf. See V.1. Taxi Association 2016 V.1. LEXIS 170, at *4; see also, Encarnacion, 2023 V.1. Supreme LEXIS (2, at *8-9 33 In Banks v. Int'l Rental & Leasing Co., this Court instructed that a three-part analysis is necessary when considering a question not foreclosed by prior precedent from this Court. 55 VI. 967 (V.1 2011). As this Court previously explained, The first step in the analysis — whether any Virgin Islands courts have previously adopted a particular rule -- requires [a court] to ascertain whether any other local courts have considered the issue and rendered any reasoned decisions upon which litigants may have grown to rely. The second step — determining the position taken by a majority of courts from other jurisdictions — directs the [court] to consider all potential sides of an issue by viewing the potentially different ways that other states and territories have resolved a particular question. Finally, the third step in the Banks analysis —— identifying the best rule for the Virgin Islands —- mandates that the [court] weigh all persuasive

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asserting a position on a question of fact or a mixed question of law and fact that is inconsistent

with a position taken by that party in a previous judicial proceeding if the totality of the

circumstances compels such a result.” 66 V.I. at 264-65. This Court directed that “[iJn conducting

this inquiry, a court must focus on the impact that allowing the inconsistent claims would have on

the judicial process, which may include considering the extent of the inconsistency (including any

reasonable explanations that would harmonize both positions), whether the party has received an

unfair advantage or benefit from asserting the inconsistent claims, and whether another court has

already relied on the claim made in the first proceeding” but emphasized that “these factors are

neither exclusive nor exhaustive, and that a court may consider any relevant factor in light of the

particular situation before it.” /d., at 265. “Because of the harsh results attendant with precluding

a party from asserting a position that would normally be available to the party, judicial

estoppel must be applied with caution.” /d., at 266 (quoting Lowery v. Stovall, 92 F.3d 219, 224

(4th Cir. 1996))

448 Although not directly stated, implicit in the VIPD’s argument is the premise that, because

Richards had previously asserted in her termination review cases that she was a union member

covered by a collective bargaining agreement and received backpay based thereupon, Richards is

judicially estopped from adopting an inconsistent position in this appeal—that she was not a union

member and not covered by a collective bargaining agreement when she appealed her suspension

to the PERB in 2004—and thereby judicially estopped from seeking relief under § 530(a)

authority both within and outside the Virgin Islands, and determine the appropriate common law rule based on the unique characteristics and needs of the Virgin Islands Sarauw, 66 V.I. at 260-61 (citing Gov't of the VI. v. Connor, 60 V1. 597, 603-04 (V.1. 2014) (internal citations omitted)

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149 Before reaching the merits of the VIPD’s judicial estoppel argument, this Court must first

consider whether it has been waived, The judicial estoppel argument is distinct from the VIPD’s

2004 argument that Richards’ union membership alone precluded her from seeking relief under §

$30(a). The VIPD appears to have conflated the two arguments when it indicated in its appellee

brief and at the May 14, 2024 oral argument that the “union membership argument” was raised in

2004 and then again in 2022. The VIPD could not have raised the judicial estoppel argument back

in 2004 since Richards did not assert that she was a union member covered by a collective

bargaining agreement and did not receive backpay based thereupon unti! her subsequent

termination review cases. Thus, given that the VIPD raised this argument in its 2022 opposition

brief in the 2004 Superior Court Case, it is not waived on this appeal. See V.LR.App.P. 4(h) &

22(m)

450 Turning to the merits of the VIPD’s judicial estoppel argument, it must fail. Notably, aside

from simply restating Richards’ appellate brief to point out that Richards conceded that only

“{rjegular employees... who are not bound to grievance procedures in a collective bargaining

agreement may challenge adverse employment actions under 3 V.L.C. § 530(a)” and asserting that

she was a union member covered by a collective bargaining agreement and received backpay based

thereupon, the VIPD never explained the significance of Richards being covered by a collective

bargaining agreement. Based on its briefing of the issue, the VIPD appears to argue that Richards

only recourse to challenge her suspension was mandatory arbitration under the collective

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bargaining agreement’s grievance procedure, and thus Richards is precluded from seeking relief

under § 530(a).*4

451 However, the VIPD concedes in its appellee brief that Richards was not covered by a

collective bargaining agreement in 2004 when it admitted that that “{t]he USW and the

Government [of the Virgin Islands] executed a [collective bargaining agreement} in 2005.”

(Appellee’s Br. 24). A review of the record further supports the conclusion that Richards was not

covered by a collective bargaining agreement in 2004: (i) In 1998, the Government of the Virgin

Islands and the Transportation Technical Warehouse Industrial and Service Employees Union

Affiliated with American Maritime Officers (District 2A-AMO) (hereinafter “District 2A-AMO”)

executed a collective bargaining agreement commencing on October !, 1995 and expiring on

September 30, 1999 (hereinafter “1995 CBA”); (ii) Upon the expiration of the 1995 CBA, the

In its appellee brief. the VIPD stated that “nothing in the record suggests that she tried to file a grievance or was advised to file an appeal in the PERB because of the union situation,” In its 2022 opposition brief filed in the 2004 Superior Court Case, which was referenced in its appellee brief, the VIPD explained 2. Richards is Judicially Estopped from Asserting Jurisdiction The PERB did not have jurisdiction over [Richards’] Suspension Appeal because she was a Supervisors’ Union member covered by the CBAs. The CBAs expressly state that its grievance and arbitration procedure are the exclusive means of redress for its members And there is no evidence that [Richards] used the CBAs’ redress procedure. [Richards] cannot now disclaim her former membership in the union for jurisdictional purposes when she has received backpay because of that former membership

If this Court allowed [Richards] to proceed with this case, it would contradict well-settled case law that enforces mandatory arbitration in collective bargaining agreements... It would be unfair to [the VIPD] to allow [Richards] to rely on her former union membership to receive back pay before the PERB, then skirt that former membership to assert PERB jurisdiction here to receive more back pay. Thus, this Court should find that [Richards] is judicially estopped from asserting PERB jurisdiction here (J.A. 11-13)

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parties- by stipulation extended the 1995 CBA on a day-to-day basis until the provisions of a

new contract is executed; (iii) The Government of the Virgin Islands subsequently construed

District 2A-AMO’s September 20, 2002 letter as a cancellation of their day-to-day stipulation and

their day-to-day stipulation was canceled; and (iv) In 2006, the Government of the Virgin Islands

and the United Steelworkers Union (hereinafter “USW") executed a collective bargaining

agreement commencing on October |, 2005 and expiring on September 30, 2008. (J.A. 179-187

190-191)

752 Thus, contrary to the VIPD’s argument, Richards is not adopting an inconsistent position

in this appeal by asserting that she was not a union member and not covered by a collective

bargaining agreement when this matter arose in 2004. Instead, the differing positions taken by

Richards in her termination review cases and here simply reflected the changed circumstances

from 2004 to 2006 due to the execution of the collective bargaining agreement between the

Government of the Virgin Islands and the USW in 2006

453 Based on the foregoing, this Court rejects the VIPD’s judicial estoppel argument

III. CONCLUSION

454 The Superior Court committed reversible error in its January 27, 2023 Order when it

interpreted § 530(a) as being applicable only to the regular employees of “the Government

Development Bank, the Virgin Islands Water and Power Authority the Virgin islands Port

Authority, [and] a hospital under the jurisdiction of the Virgin Islands Hospitals and Health

Facilities Corporation,” and thus erred when it affirmed the 2004 PERB Order dismissing with

prejudice Richards’ suspension appeal pursuant to § 530(a) for lack of jurisdiction. Deeming the

VIPD’s objection to Richards’ seeking relief under § 530(a) in the Suspension Matter waived, and

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rejecting the VIPD’s judicial estoppel arguments, this Court reverses the January 27, 2023 Order

and remands this matter to the Superior Court for further proceedings consistent with this opinion

Dated this 27th day of December, 2024

BY THE COURT

kL Dalx v/a HAROLD W.L. WILLOCKS Associate Justice ATTEST

VERONICA J. HANDY, ESQ

Deputy Clerk II Dated: (2/7 t/244