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Land Use Appeals Board

In the VI, to appeal a CZM decision, one must appeal to the Land Use Appeals Board. This board has not had enough members to make a quorum for a long time, thus making CZM appeals impossible.

Vast number of board vacancies raises concern

By ALDETH LEWIN (Daily News Staff)
Published: February 16, 2011

ST. THOMAS – Sen. Usie Richards sent a letter to Gov. John deJongh Jr. this week outlining the excessive amount of vacancies and expired terms on the government’s various boards and commissions.

Richards is chairman of the V.I. Senate’s Rules and Judiciary Committee, which conducts confirmation hearings for the governor’s nominees to governmental boards. If the committee votes favorably on a nomination, it is forwarded to the full Senate for confirmation.

In his letter to the governor, Richards said that because the V.I. government does not have county commissioners, city councils or mayors, it is crucial that the boards and commissions provide representative government.

“It is truly troubling that we have not seen a thorough commitment to ensuring that all Boards and Commissions, vested with statutory authority and responsibility, are properly functioning and filled with the appropriate number of individuals whose terms have not expired,” Richards wrote.

Richards’ first purpose is to take an inventory of the government’s boards, he told The Daily News on Tuesday.

“The second purpose of us taking on this task is to make determination of whether a board or commission needs to be in existence, whether some of these boards could be consolidated,” he said.

Richards said taking the inventory is the first step and that the Legislature could decide to strengthen the law and force the governor’s hand to make nominations immediately after terms expire.

Richards and deJongh were scheduled to meet on the issue Friday, but the meeting was cancelled at the last minute.

Government House spokesman Jean Greaux Jr. said the governor intends to discuss the vacancies on the various boards and commissions with Richards soon. The date for that meeting has not yet been set.

“We are in receipt of and reviewing Senator Richards’ letter. The governor continues to move forward with the filling of vacancies and positions of the many boards and commissions within the territory. We have been, and will continue to identifying individuals, review their resumes, and look to nominate and in some cases re-nominate those most qualified and willing to serve,” Greaux said in a written statement.

According to V.I. Code, if a vacancy occurs on a governmental board when a member’s term expires, the vacancy must be filled within 60 days. If the position is not filled within 60 days, and the vacancy causes the board to lose a quorum, all actions taken by the board are null and void.

Additionally, the law mandates that board vacancies be advertised publicly, allowing residents to submit nominations and recommendations to the governor.

It has been common practice for decades, and is allowed under the law, for board members with expired terms to continue to serve until they are replaced. Doing so allows the board to keep its quorum and continue to function.

“It’s my position that that has been abused,” Richards said.

In his research, Richards found that some board members still were serving after their terms expired more than 10 years ago.

He also found several boards missing representation from one district or the other.

For example, the V.I. Public Finance Authority board should have two members from each district from the private sector. Only St. Croix currently is represented on the board with two private sector members. The two vacancies for the St. Thomas-St. John District mean that the government’s representatives – the governor, the Finance commissioner and the director of the V.I. Office of Management and Budget – have the majority vote on the board.

“The point is that some action needs to be taken,” Richards said.

Some nominations sent to the Senate by deJongh during the last Legislative term never were acted on and will need to be resubmitted for the 29th Legislature to consider them, Richards said.

In his letter to the governor, Richards also reminded deJongh about a new law, enacted in August, that mandates that all members of the Board of Medical Examiners be nominated to the Legislature. The new law also mandates that three citizen members be nominated, “to the Legislature within 60 days after the effective date of this Act.”

The only nominations submitted this term have been Alicia Barnes for Department of Planning and Natural Resources commissioner and Elton Lewis for V.I. Territorial Emergency Management Agency director, Richards said. The confirmation hearing for both nominees is scheduled for Feb. 24.

– Contact reporter Aldeth Lewin at 774-7882 ext. 311 or e-mail alewin@dailynews.vi.The staff of Sen. Usie Richards complied a list of boards and commissions with vacancies and expired terms. The list includes:

– University of the Virgin Islands Board – All terms are current with no vacancies.

– V.I. Government Hospital & Health Facilities Corporation, St. Croix District Board – Wallace Phaire Sr.’s term expired in 2009.

– V.I. Government Hospital & Health Facilities Corporation, Schneider Regional Medical Center Board – Mulo Alwani’s term expired May 28.

– Government Employees Service Commission Health Insurance Board of Trustees – Yolanda Samuel Deterville’s term expired April 20. Clemmie Moses’ term expired in 2002.

– V.I. Port Authority Board – One vacancy.

– V.I. Civil Rights Commission – Three vacancies.

– V.I. Lottery Commission – Three vacancies.

– V.I. Historic Preservation Commission – Five vacancies.

– Government Employees Retirement System Board – Five members’ terms have expired: Vincent Liger, 2004; Leona Smith, 2004; Carver Farrow, 2006; Yvonne Bowsky, 2010; Marvin Pickering, 2010.

– Public Employees Relations Board – One vacancy. All members’ terms have expired: Aubry Lee, 2004; Hugo Dennis Jr., 2005; Omar Henry, 2005; Rodney Moorhead, 2008.

– V.I. Waste Management Authority – One vacancy. Three members’ terms have expired: Llewellyn Reed II, 2006; Winston Adams, 2007; Brion Morrisette, 2007.

– V.I. Public Services Commission – Two vacancies. Four members’ terms have expired: Donald Cole, 2009; Verne David, 2004; Sirri Hamad, 2009; M. Thomas Jackson, 2009.

– V.I. Water and Power Authority – Five members’ terms have expired: Juanita Young, 2010; Noel Loftus, 2010; Donald Francois, 2010; Brenda Benjamin, 2010; Cheryl Boynes Jackson, 2007.

– The West Indian Company Limited – Four members’ terms expire this month.

– V.I. Public Television System – Three members’ terms have expired: Raul Carrillo, 2010; Eugene Petersen, 2010; Caroline Polydore-Simon, 2009.

– V.I. Housing Finance Authority – One vacancy. Two members’ terms expired in 2006: Earl De Windt and Carmen Wesselhoft.

– V.I. Public Finance Authority – Two vacancies.

– V.I. Economic Development Authority – Jose Penn’s term expired in 2007.

– V.I. Banking Board – Four members’ terms have expired: Pablo O’Neal, 1996; Winston Bennett, 1997; Ernesto Gutierrez, 1997; Desmond Maynard, 1997.

– V.I. Parole Board – Four vacancies. Three members’ terms have expired: Chesley Roebuck, Samuel Garnett, and Dennis Howell.

– V.I. Board of Land Use Appeals – Two vacancies. Four members’ terms have expired: James Hindels, Fred Vialet, Jose Penn and Aloy Nielsen.

– V.I. Board of Tax Review – Two vacancies. Four members’ terms have expired: Ester Smith,
Read more: http://virginislandsdailynews.com/news/vast-number-of-board-vacancies-raises-concern-1.1105709#ixzz1FN3HVriG

Governor ignores the law on filling board vacancies

By Susan K. Wolterbeek
Published: July 13, 2010

This is an open letter to V.I. Attorney General Vincent Frazer with a copy to Solicitor General Elliot M. Davis:

The Governor keeps blatantly breaking the law: According to the V.I. Code, the Governor must advertise for boards and commissions, and accept nominations from the public and organized groups. He refuses.

U.S. Air Force Maj. David L. Maxwell (Ret.) wrote Gov. John deJongh Jr. a letter discussing these laws, which was published in The Daily News on Oct. 15, 2009, and attached hereto. Maj. Maxwell never received a reply from the governor.

Instead, Gov. deJongh continued with his practice of shutting out all the rest of us who live in the US Virgin Islands. We have a right to nominate good people for the boards and commissions, and our rights are continually being violated by our governor who just appoints whomever he wants.

The statutes are clear and unequivocal, as I pointed them out to Sen. Michael Thurland, chairman of the Rules and Judiciary Committee in my letter dated May 12, 2010, and published the next day in The Daily News. I never received a reply to my letter either.

Would you please enforce these laws? All illegal appointments to boards and commissions should be void, and those positions advertised, following the V.I. Code. The language in these statutes is mandatory, and specific, as to the procedure for filling vacancies.

It is the governor’s duty and obligation under V.I. Code, Title 3, Chapter 5, Subchapter 1, Section  § 65a. to fill the vacancies on boards within 60 days of the date the vacancy occurred.

The Board of Land Use Appeals had not had a quorum since 2007. Last year two groups filed appeals to that Board against the planned illegal dumping in Lindbergh Bay. Their appeals were never heard, a clear violation of due process.

It took considerable environmental advocacy with federal agencies and publishing documented violations of federal criminal laws to finally get the permit application withdrawn. All of that effort would have been avoided had the Governor complied with the law.

Despite Major Maxwell’s letter and mine, the governor again refused to advertise, and he nominated only his choices to the Land Use Appeals Board this spring.

We Virgin Islanders have Constitutional Rights, which include being fairly and justly governed according to our laws.

Pursuant to V.I. Code, Title 3, Chapter 5, Subchapter 1, Section  § 65b:

“Prior to the submission of a nomination to the Legislature to fill a vacancy on a board or commission, which nomination requires the advice and consent of the Legislature; the Governor shall cause to be printed in a newspaper of general circulation in each island district, a public notice that a vacancy exists. Such notice shall state the name of the board or agency on which the vacancy occurs, the fact that the Governor will be submitting a nomination to the Legislature, any qualifications required by law of prospective nominees, and an invitation to the public and organized groups to recommend persons to the Governor for nomination to fill the vacancy. The public notice shall be published not less than twice a week for two consecutive weeks.”

The Daily News confirms these public notices have never been issued for seats on boards and commissions.

Would you please compel the governor to follow these laws now and advertise for all board and commission seats that were filled illegally?

It is no wonder that many people feel they are powerless, when even our own governor refuses to obey the law and honor our rights.

Please show us that you care about enforcing the rights of the people. Thank you.

— Susan K. Wolterbeek is an attorney who lives on St. Thomas.

Nominations for the Board of Land Use Appeals

Committee on Rules and Judiciary                                                                                May 13, 2010

Senator Michael Thurland, Chairman

Legislature of the Virgin Islands

#1 Lagoon Street Complex

Frederiksted, St. Croix, VI  00840

Re: Nominations for the Board of Land Use Appeals

Dear Senator Thurland:

The Virgin Islands Code is very specific in regard to filling seats on Boards and Commissions. These laws are not being observed.  As Retired Major David Maxwell wrote to Governor deJongh in a Letter to the Editor published in the VI Daily News on October 15, 2009, it is the governor’s duty and obligation under V.I. Code, Title 3, Chapter 5, Subchapter 1, Section § 65a. to fill the vacancies on this Board within 60 days of the date the vacancy occurred.

 

The last time there was a quorum was in 2007. When the CZM Board made an illegal decision in regard to Lindbergh Bay in 2009, local attorneys filed appeals to the Land Use Appeals Board, which did not have enough members to hear the case, because the Governor and your committee did not follow the VI Code. Thus, their appeal was never heard, and due process rights were flagrantly violated.

“A public hearing on an appeal shall be held by the board within 60 days after the appeal is filed with the board, and a decision shall be rendered by the board within 30 days after the conclusion of such public hearing.” (V.I. Code, Title 12, Chapter 21, § 914(c)).

Now, 3 years after he was required by law to do so, the Governor has selected contacts and cronies to fill these important seats, rather than following VI Code to look for the people best qualified for these  positions. Pursuant to V.I. Code, Title 3, Chapter 5, Subchapter 1, Section  § 65b:

“Prior to the submission of a nomination to the Legislature to fill a vacancy on a board or commission, which nomination requires the advice and consent of the Legislature; the Governor shall cause to be printed in a newspaper of general circulation in each island district, a public notice that a vacancy exists. Such notice shall state the name of the board or agency on which the  vacancy occurs, the fact that the Governor will be submitting a nomination to the Legislature, any qualifications required by law of prospective nominees,  and an invitation to the public and organized groups to recommend persons to the Governor for nomination to fill the vacancy. The public notice shall be published not less than twice a week for two consecutive weeks.”

According to the VI Daily News last fall, these public notices have never been issued for boards and commissions. In regard to this specific board, there was no invitation to the public and organized groups to recommend persons for nomination. Instead, the Governor has selected Members for the Board of Land Use Appeals just as he has for other Boards and Commissions, and these nominees all have blatant conflicts of interest.

John Woods, Jr. is related to the Governor. Further, Mr. Woods is the principal of Jeredian Design Group.  In addition to private development projects (including CZM), he has been involved in many government projects, for example, the Christiansted Boardwalk, the design of the St. Croix offices of the Government Employee Retirement System, and several Department of Public Works (DPW) highway projects.

James Benton is the founder of J. Benton Construction which has managed many private and government construction projects.  Recently he was contracted to complete the St. Croix GERS office building.

Roberto Cintron is a civil engineer who has been Assistant Commissioner of DPW since April 2007.  Prior to that, he was St. Croix District Engineer for Public Works.

When there is a conflict of interest, board and commission members must announce the conflict, then recuse themselves from participating. If several board members recuse themselves, they may not have a quorum to vote on an issue. In the past, many board members and commission members have not recused themselves, despite blatant conflicts. This also is against the law, and only opens the government to further lawsuits.

 

We are asking your commission to deny this slate of candidates, and instead demand that Governor deJongh follow the above laws, advertise positions, review resumes, select the best candidates, who will not be conflicted out by their special interests, and who can then make sound, legal decisions.  Thank you.

Sincerely yours,

Susan K. Wolterbeek

Major David Maxwell, Major, USAF (Ret.)

cc: Members of the Committee on Rules and Judiciary

Citizens, Environmentalists and the VI Daily News

Governor Ignores Law – Fails to Fill Essential Vacancies

VI Daily News Guest editorial

Governor ignores V.I. law by failing to fill vacancies on Board of Land Use Appeals with cases pending

David L. Maxwell

Thursday, October 15th 2009

I devoted over 20 years of my life serving in our nation in the U.S. Navy and the U.S. Air Force, upholding the very values and rights of U.S. citizens our forefathers fought to create for us.

As citizens of the United States of America, we have unalienable rights, guaranteed to us by the 14th Amendment to the U.S. Constitution, which include the Right to Procedural Due Process.

At present, Virgin Islanders are being denied the right to procedural due process by our own governor, who is choosing not to fulfill his legal duty to appoint members to the Board of Land Use Appeals.

In regard to the West Indian Co.’s proposed dumping in Lindbergh Bay, hoteliers, citizens and environmental groups have appealed the CZM decision. Now the case is before the Board of Land Use Appeals.

“A public hearing on an appeal shall be held by the board within 60 days after the appeal is filed with the board, and a decision shall be rendered by the board within 30 days after the conclusion of such public hearing.” (V.I. Code, Title 12, Chapter 21, § 914(c)).

The appeal of the CZM decision in favor of WICO’s dumping in Lindbergh Bay was filed on Aug. 3, 2009, over 60 days ago, and thus the public hearing required by the law should have taken place already. However, the Board of Land Use Appeals lacks enough members to even have a quorum, so at present it cannot function as a board.

It is the governor’s duty and obligation under V.I. Code, Title 3, Chapter 5, Subchapter 1, Section § 65a. to fill the vacancies on this Board within 60 days of the date the vacancy occurred.

The language in these statutes is mandatory, and specific, as to the procedure for filling vacancies.

Pursuant to section 65b, “Prior to the submission of a nomination to the Legislature to fill a vacancy on a board or commission, which nomination requires the advice and consent of the Legislature; the Governor shall cause to be printed in a newspaper of general circulation in each island district, a public notice that a vacancy exists. Such notice shall state the name of the board or agency on which the vacancy occurs, the fact that the Governor will be submitting a nomination to the Legislature, any qualifications required by law of prospective nominees, and an invitation to the public and organized groups to recommend persons to the Governor for nomination to fill the vacancy. The public notice shall be published not less than twice a week for two consecutive weeks.”

After Gov. John deJongh Jr. nominates a member to the Board of Land Use Appeals, the appointment will be effective upon an affirmative vote by a majority of the entire V.I. Legislature. (§ 65c).

Despite the fact that the appeal of the CZM’s decision to the Board of Land Use Appeals was months ago, Gov. deJongh has chosen to not even begin the process of looking for appropriate board members yet, which begins with simply placing an advertisement of the available positions in the local Virgin Island newspapers.

It is Gov. deJongh’s specific legal duty to fill these positions, now, to allow the Board of Land Use Appeals to continue with the mandated appeals process of scheduling a Public Hearing in this matter. Pursuant to the Revised Organic Act of 1954, Section 11, this discusses the duties and obligations of the Governor of the United States Virgin Islands:

“The Governor shall have general supervision and control of all the departments, bureaus, agencies, and other instrumentalities of the executive branch of the government of the Virgin Islands. … He shall appoint, and may remove, all officers and employees of the executive branch of the government of the Virgin Islands, except as otherwise provided in this or any other Act of Congress, or under the laws of the Virgin Islands, and shall commission all officers that he may be authorized to appoint. He shall be responsible for the faithful execution of the laws of the Virgin Islands and the laws of the United States applicable in the Virgin Islands.”

It is now time for Gov. deJongh to begin to faithfully execute these laws, to fill the membership of the Board of Land Use Appeals, and to no longer block V.I. citizens’ right to due process.

Perhaps the governor and WICO would like to ignore the appeals process, but it is there, to guarantee Americans due process of law.

Whether the U.S. Army Corps of Engineers approves the permit application or not, according to both federal law and Virgin Islands law, the dredging and dumping cannot proceed unless and until the requisite members are appointed and the Board of Land Use Appeals process is fully completed.

If the Board of Land Use Appeals were to issue an illegal or incorrect ruling, that decision could also be fought in federal district court.

We should all remember that John deJongh Jr. was vehemently against dumping in Lindbergh Bay in 2000 but has totally reversed his opinion now that he is governor.

Gov. de Jongh said in his letter dated March 30, 2009, that he was gratified to learn that dumping dredge spoils in Lindbergh Bay “will not compromise, but will improve the quality of the water” This is a dramatic reversal, and is not supported by the facts, as cited in the Environmental Protection Agency’s May 21, 2009, letter to the U.S. Army Corps of Engineers.

I understand that the Governor of the Virgin Islands oversees and appoints the Board of Directors of WICO, which is pressing to dump in Lindbergh Bay as the cheapest solution, even though this dumping would harm, among other protected species, staghorn coral, elkhorn coral and their critical habitat.

The governor also is a member of the Coral Reef Task Force. Isn’t there an inherent conflict of interest in wearing these two hats?

I call on the governor to fulfill his duties and obligations to the people of the Virgin Islands; the people of the Virgin Islands have a legal right to appeal the erroneous CZM decision, which even the legal counsel to the V.I. Legislature said was an illegal decision.

Gov. deJongh must, by V.I. Law, fill the vacancies in the Board of Land Use Appeals so that the people’s appeal can proceed.

– U.S. Air Force Maj. David L. Maxwell (Ret.) lives on St. Thomas.

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