AG Walker Disputes Legislature’s Claim To Authority Over Government Pay Levels

Attorney General Claude Walker and Gov. Kenneth Mapp’s Chief Legal Counsel Emile Henderson III at Thursday’s press conference. (Elisa McKay photo)

Attorney General Claude Walker, speaking at a Thursday news conference, asserted the governor can move funds around from lump sum budgets without legislative approval and set government pay levels without legislation.

Walker called the news conference to rebut a legal opinion from the Legislature invalidating Gov. Kenneth Mapp’s recent executive order setting a new base pay for executive branch employees. The Legislature asserted the Revised Organic Act, the federal law setting up the territory’s government, gives the Legislature, not the governor, authority over spending.

Walker and Emile Henderson III, Mapp’s chief legal counsel, repeatedly emphasized government employees are underpaid and deserve more, as they asserted the governor had the legal authority to take this action. Walker also said the fact that the government spending is in the executive branch puts it outside the Legislature’s purview.

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“It’s an insulting discussion,” Walker said. “The governor is seeking to provide a living wage, a just wage … any assertion that the governor does not have the authority to establish minimum salaries for government employees in the executive branch is false.”

When asked if the timing of the elections had anything to do with the salary increases, Walker did not respond to the question but made an emotional appeal that government employees needed the increases for the sake of dignity.

“The governor is seeking to provide a living wage, a just wage for those employees who have very low salaries. The discussion is almost insulting to talk about giving someone $30,00 a year, $35,000 a year. Is that a lot of money for a place like the Virgin Islands, one of the most expensive jurisdictions in which to live?” Walker said in response to the question about the timing of the pre-election move.

The dispute comes in the wake of a July 30 executive order (Executive Order on Pay Raises) setting new base pay levels for executive branch employees.

The Legislature issued a legal opinion (Legislature Opinion on Executive Order) saying “unless the funding of the salary increases is allocated from funds already appropriated” they “are in violation of applicable laws.”

The senators assert the governor “can use only the funds appropriated to the respective agency for salaries within that agency” and say his executive order “is devoid of any information on the source of the funding for the base salary increases.”

It is also unclear, the Legislature’s legal opinion letter says, if the raises replace the government’s union contracts.

The Legislature’s letter says base pay is already set by statute and can be changed only by statute, pointing to the V.I. law the Legislature enacted in 2005 setting the current base salary. (See: Senate Increases Base Government Salaries in Related Links.)

Thursday Walker said the opinion issued by the Legislature’s Legal Counsel was “factually incorrect.”

Walker said the Revised Organic Act of 1954 gives “the executive power and authority of general supervisory control over all Departments, Bureaus, Agencies, and Instrumentalities of the Executive Branch of the Government of the Virgin Islands” and requires the government to establish policy necessary to protect the health, safety and welfare of its citizens.

While not explicitly asserting powers granted by the governor’s ongoing monthly extensions of the territory’s state of emergency, Walker did cite last year’s hurricanes as part of the rationale for why the governor had the power to set salary levels. Walker said Mapp “made it clear that the territory needs personnel in critical positions in the executive branch of government as we continue the recovery from two category five hurricanes.”

Walker asserted Mapp “has the power to issue executive orders so long as such orders do not conflict with valid and existing laws enacted by the Legislature and this order poses no such conflict as it does not re-appropriate territorial funds.” He said the V.I. Office of Management and Budget has identified sources for these increases within the existing budget.

The Organic Act expressly gives the governor “general supervision and control” over the executive branch but does not mention executive orders or a gubernatorial “power to establish policies.”

The Organic Act gives the Legislature power to set V.I. law concerning “all rightful subjects of legislation not inconsistent with this Act or the laws of the United States made applicable to the Virgin Islands.”

V.I. law gives the Legislature final say over all budgeting and all policies regarding spending. V.I. Code Title 2 Section 22 lays out its budgetary powers, saying the Legislature shall “(c)onsider the program and financial plan recommended by the Governor, including proposed goals and policies, recommended budget, revenue proposals, and proposed long-range programs plans” and “(a)dopt those programs and alternatives to the plan recommended by the Governor that it deems appropriate.”

Walker said the V.I. Office of Management and Budget has identified sources for these increases within the existing budget.

There is no existing budget for the current fiscal year but V.I. law automatically extended the FY 2017 appropriation levels. Last year’s hurricanes interrupted the Legislature’s budget hearings and made revenue and spending projections difficult. V.I. law says the previous year’s appropriation levels apply if no budget is approved. The FY 2019 budget takes effect Oct. 1. The Legislature has not finished amending and approving the FY 2019 budget, which takes effect Oct. 1. Legal counsel Henderson said Thursday the pay raises took effect Aug. 1, giving them effect for two months, until Legislature’s new budget appropriation takes effect. The pay raises impact multiple agencies that have already presented their FY 2019 budgets to the Senate Finance Committee, changing their personnel costs.

Some senators and gubernatorial rivals have questioned how the territory can afford the raises when the V.I. government has been in fiscal crisis for years, cannot borrow on the private market and owes millions of dollars to numerous vendors, including the operators of the territory’s sewage treatment plants. Revenues are relatively stable in the wake of an influx of disaster recovery funding however.

The executive order does not cite funding sources and Walker did not specify what existing funding OMB was able to divert.

During his July press conference trumpeting the pay raises, Mapp said new funds from a restarted Limetree Bay refinery on St. Croix would fund the increases. (See: Mapp: Government Base Salary Increase Will Be Fueled by Refinery in Related Links)

While Limetree Bay officials have said they hope to restart the refinery, Mapp’s new agreement with Limetree Bay actually gives them five more years to decide whether or not to restart. When pressed, Limetree Bay officials committed to considering a restart but would not say they will definitely restart the refinery. (See: Mapp Signs Legislation That Might Lead to STX Refinery Restart in Related Links.)

 

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