Dear Source:
In the days following the enactment of the bill allowing huge increases in debt to the government, coupled with the ridiculous pay increases for the legislature, governor and lieutenant governor, one has to pause, take a breath and try to figure just what went wrong. No one outside of government could have seen what was coming when the bill emerged on December 28, 2006 and passed by less than half of the Senators. The governor signed the bill promptly and we are now stuck with a problem that will, most likely, pervade for many years.
In looking at the bill, one must ask-can they really do that? The answer may bemaybe. The Organic Act, like the Constitution of the United States and every State of the Union, disallows bills from being enacted which may be retroactive. Generally, it has to do with criminal activity and the ability for lawmakers to "change" a law so that the penalty for a criminal act may be made more severe. This "ex post facto" provision prohibits any law that is "after the fact". The fact that it was created to disallow the kind of callousness which could occur if a law was "re-enacted" for say, murder in a state that disallowed the death penalty to allowing same, so the state could put to death an offender. This is why the law was created. The laws in place at the time the crime was committed are the laws under which a penalty can be prescribed.
The governor chose to make his salary increase "retroactive" that is, he created, and the legislature approved an ex post facto law. Not only that, the question persists: can an elective official receive a retroactive salary increase? I believe it is no. Where salary increases are prohibited during a term of office, the salary increase must be effective on or after the date that the term of office has passed. This is the law in the Virgin Islands. A retroactive pay increase would be then be viewed as an illegal gift of public funds, since the governor's services were already rendered without expectation of additional renumeration. Therefore, the salary increase for a governor or anyone whose vote was not necessary to pass the ordinance could not be made retroactive to a date prior to what the law allows. Effectively, the governor took a shot at getting a pro rata bonus and a possible increase in retirement benefits based upon the fact that he made more money within a fiscal year. But hold on! The retroactive pay increase was to take effect on October 1, 2006-which is the BEGINNING of the NEXT fiscal year. Does this mean the governor looked hard at the law and said: gee, if I put it into NEXT years budget, I can't be accused of adding to the appropriations of the 2006 budget. Smart huh? I mean, he could have made it retroactive back to the beginning of the fiscal year but alas, it wasn't included in the budget so October 1, 2006 gets me out of the possible ramifications of "getting an illegal gift of public funds". We know why he did it; we now have to figure out how to get it back.
No one has said the governor is not smart-crooked-but very smart.
Should there be a legal challenge to this possible ex post facto pay raise? The best challenge and the easiest way to do it is to have the next legislature simply repeal it, put back those provisions that REALLY matter, like keeping the minimum wage higher, giving the minimum salary a lift and maybe allowing those zoning variances to continue. What ever is taken away by repealing the bill, can always be given back under another bill.
So, what will you do 27th legislature? We are watching
Paul Devine
St. John
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