March 10, 2003 – The V.I. government was ordered on Monday not to revive its contract with Global Resources Management Inc. for sewer system repairs on St. Croix and to hire a "qualified independent private contractor" within 90 days to operate and maintain the island's pump stations and sewage collection system for the next 18 months.
The contract with GRM, awarded without competitive bidding, "was issued in violation of Virgin Islands procurement law because there was no emergency to justify the governor's emergency declaration," District Judge Thomas K. Moore concluded.
That, however, was just the tip of the iceberg in Moore's scathing 60-page opinion entered Monday in the case of the U.S. government vs. the V.I. government filed in January by U.S. Attorney David Nissman and the U.S. Justice Department.
Addressing a subject with which he has become intimately familiar through judicial proceedings over the last three years, Moore excoriated Gov. Charles W. Turnbull for placing politics above both the law and the public interest in the administration's repeated failures to deal with the disastrous state of St. Croix's sewage system.
"A distinct odor emanates from the construction contract the governor of the Virgin Islands, Charles Wesley Turnbull, signed with Global Resources Management Inc. on Dec. 20, 2002, for emergency sewer repairs, and it is not the smell of sewage from the decrepit and failed St. Croix sewer system. It is the reek of politics and political influence, and quite possibly of political corruption," Moore wrote in the introduction to the memorandum he issued in conjunction with his order.
The case began on Jan. 23, when Nissman, in cooperation with the Environmental and Natural Resources Division of the U.S. Department of Justice, filed an emergency motion in District Court asking Moore to order the V.I. government to show cause why it should not be stopped from proceeding with the $3.6 million sewer system repairs contract Turnbull had signed on Dec. 20 with GRM. The next day, Moore set a hearing date of Jan. 30.
The contract at issue was for various repair projects that Moore in December 2001 had initially ordered the V.I. government to complete by mid-2002, then had in all instances but one extended to last Dec. 30.
The federal government contended that the contract was improper because it was awarded without competitive bidding and because the recipient was a start-up company with no track record, equipment or bonding. Further, the motion accused Turnbull of having declared the territory's sewer system in a "state of emergency" in order fraudulently to bypass the competitive bidding process and charged that at least one of Global's principals was closely connected with the governor.
Three names surfaced as key politically connected Global players: Ohanio Harris, special assistant to Turnbull, who was chief executive of the company until last spring; Esdel Hansen, recently retired Public Works employee and husband of Alicia "Chucky" Hansen, Global's utilities director; and Ashley Andrews, the current chief executive. Andrews' previous contractual dealings with the V.I. government included the aborted Rogge capital projects contract in the 1980s and the renovation of Christiansted's Government House at an ultimate cost millions of dollars more than was initially contracted.
The Attorney General's Office argued that it was up to the V.I. government to determine what constitutes an emergency and that the federal court lacked jurisdiction. On Jan. 28, with no public announcement, Turnbull ordered the cancellation of the contract with Global Resources. On Jan. 29, the government moved to cancel the Jan. 30 show cause hearing since the contract had been terminated.
Moore said in Monday's memorandum that he chose to proceed with the hearing at Nissman's request because the Global contract allowed the company to seek compensation in case of the agreement being terminated "for the convenience of the government." According to Property and Procurement Commissioner Marc Biggs, Moore said, "GRM could still claim and sue for certain payments after its termination."
Compliance problems dating from 1984
The federal government's involvement with the territory's wastewater system dates back to 1984, when a consent decree was entered into by the federal and local governments. The decree was amended in 1996. Since 2000, Moore has imposed numerous compliance deadlines and, in response to petitions from the V.I. government, granted numerous extensions. On Aug. 29, 2000, he made site visits to the LBJ and Figtree pump stations, the Anguilla waste-water treatment plant and a collapsed sewage pipe at Castle Burke.
On Oct. 18, 2001, under threat of contempt of court, Turnbull himself appeared before Moore, accepted responsibility for the government's failure to deal with the sewage system and vowed to "micromanage" the matter himself.
In his memorandum filed Monday, Moore said: "Most disturbing to me is the paucity of evidence that the government was even half-heartedly trying to get these sewer lines repaired. After all, tens of thousands of gallons of sewage have been flowing from Bethlehem Gut every day for two years and the hole at the [Randall 'Doc' James] Race Track has been open for some seven years."
In his memo, Moore noted that he had "become all too familiar with the details of the St. Croix sewer system," but that with "this experience and background I am able to assess which of the various witnesses at the recent hearings on the GRM contract were telling me the whole truth."
He concluded that the Public Works Department, including Commissioner Wayne Callwood, "tried to include contract terms that would keep control of the quality, scope and cost of the work … Unfortunately, DPW's efforts were no match for the corrupting political pressure from the Turnbull administration through Ohanio Harris, Gov. Turnbull's special assistant for St. Croix."
Moore said that specifications advocated by Public Works were not included in the final contract, while new provisions were added to make it "open-ended" for changes that could more than double its value. While the contract provided for it to become effective upon the date of the governor's signature, "no notice to proceed was ever issued by the government's contracting officer," Biggs. In fact, the judge said, Biggs never saw the executed contract until Turnbull on Jan. 28 told him to terminate it.
Moore cited examples of Andrews proposing or advising the governor of the need for certain language which found itself verbatim, or nearly so, in the contract that Turnbull signed.
The judge also took issue with Attorney General Iver Stridiron's suggestion that "for the good of the residents of this community" the government consider putting the contract back in effect or renegotiating it. Moore said the evidence was clear that "the award of this contract to Ashley Andrews and GRM is yet another example of elected and appointed officials of the Virgin Islands government putting crass politics ahead of fiscal responsibility, not to mention the health and safety of the people."
A crisis is not an emergency
Andrews submitted an unsolicited proposal to the government for 11 sewer system projects, Moore said. Key experts at Public Works found four of them unnecessary; one official felt that the scope of work proposed for the remaining seven projects "called for more than needed to be done."
Turnbull issued the first of four wastewater "state of emergency" proclamations on Oct. 9, 2001, stating that for 90 days sewer system repair contracts would bypass the bidding process because of "public exigency." On March 27, 2002, he issued a similar proclamation, for 120 days. On Sept. 20, 2002, he issued another, retro
active to July 27, for 120 days. On Nov. 25, 2002, he issued the fourth, again for 120 days.
Moore said Stridiron referred to the government's need to circumvent the "well known cumbersome competitive bidding requirements." However, Moore rejected that characterization, saying he agrees with the court's finding in a 1985 case involving a contractor with the Water and Power Authority. The court held that "competitive bidding laws originated in distrust of public officers whose duty it was to execute public contracts. The laws are designed to prevent fraud, collusion, favoritism and improvidence in the administration of public business."
Moore discounted arguments that bypassing bidding would speed up the process of getting work done. He quoted Biggs as stating that contracting for the court-ordered repairs, if expedited, could have taken as little as 45 days to complete. "This is what the people of St. Croix and the Virgin Islands had every reason to expect would happen when Gov. Turnbull told me at the contempt hearing he would be doing 'some micromanaging' to make sure that these critical repairs would be carried through," the judge said.
And yet, he said, on Jan. 29 of this year, he received a government progress report showing that "other than cleaning the manholes at Adventure Gut, none of the repairs to the sewers in St. Croix that were ordered by the court in December 2001 have been performed."
Ultimately, Moore said, "the continuing crisis in St. Croix's wastewater treatment system does not meet the statutory definition of 'emergency.'" Territorial Court, he said, has defined "emergency" as "a sudden or unexpected necessity requiring speedy action."
The definition came, ironically, in a 1999 case involving another Andrews company, C & C/Manhattan, a disappointed bidder for a St. Croix prison construction contract. The judge noted, Moore said, "that prison overcrowding existing for well over 10 years did not constitute an emergency that could justify disregarding competitive bidding" in that case.
Moore said it is within the court's purview "to invalidate the GRM contract and enjoin the parties from performing the contract" because "a district court has a broad range of equitable powers to enforce and effectuate its orders and judgments." The evidence is "overwhelming," he said, that the GRM contract "would likely frustrate compliance and promote further noncompliance" with the court's December 2001, order as amended.
Bench considerations
Moore's position in ruling on the Global contract case is unique not only because he was thoroughly backgrounded in the sewer system situation but also because he is currently sitting in District Court on borrowed time. While federal judicial appointments on the mainland are for life, in the Virgin Islands they are for 10 years, and Moore's term ended last June.
Although he is a Republican, he was told last year that President Bush would not renominate him. However, he is expected to remain on the bench until a successor is confirmed by the U.S. Senate — a process that could take many months because of the large numbers of vacancies in the judiciary and contentiousness between Democrats and Republicans over a number of nominees.
Moore expressed outrage at charges of racial and anti-local prejudice on the part of Nissman levied by former Sen. Alicia "Chucky" Hansen, whom he did not name in his memo, and "great disappointment" that Stridiron "joined in this public slander." Stridiron charged that Nissman's show-cause motion "started out by trying to slander the government of the Virgin Islands and ended up by trying to smear the governor."
Hansen and Stridiron, Moore said, "seem to have forgotten that it is the United States and this United States court that have been trying to force the executive and legislative branches of the Virgin Islands government to live up to their obligations to provide for the health and safety of the people of the Virgin Islands who elected them to office."
Further, Moore said, "I have done everything I can in the circumstances to be respectful of the governor and his elective position. Even at the contempt hearing, I allowed Gov. Turnbull to address the court unsworn from the podium and not under oath from the witness stand."
In a footnote to that comment, Moore elaborated: "Furthermore, I accommodated the governor's request to speak to me in chambers, only to have that respect disregarded and those accommodations abused in intemperate pleadings filed by Attorney General Iver Stridiron. The problem will not reoccur, because everyone, including the governor if the occasion again arises, will respond in court under oath from the witness stand."
Order covers contracting, repairs and funds
Moore's order requires that:
– The V.I. government be enjoined from proceeding with or reviving the GRM contract.
– Any future contracts for repairs required by the amended 1984 decree or Moore's Dec. 19, 2001, ruling comply with bidding requirements "unless there is a valid reason to bypass them and all applicable rules and regulations are followed to the letter." In letting such contracts, the government "shall ensure that none of its employees is in violation of any conflict-of-interest provisions of local law."
– The government report to District Court on any such contracts exceeding $250,000 within 15 days of entering into them.
– The government promptly repair any new sewer system breakdowns which result in sewage bypasses — initiating work within 60 days and completing it within the next 60 days.
– At the request of the U.S. government, the V.I. government within the next 90 days hire a private contractor to operate and maintain the St. Croix wastewater collection system and pump station for at least 18 months.
– The V.I. government report to the court on the status of the Corrective Action Trust Fund by March 31; deposit $5 million by July 1 to bring the fund up to its mandated level of $16 million and deposit $4 million more by Oct. 1. Additionally, any funds expended for St. Thomas projects must be replaced "forthwith." Moore on Dec. 19, 2001, ordered the government to establish the fund, a separate bank account for money earmarked for sewer repairs.
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