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Former Inspector: Actions of Undermanned Casino Commission Not Valid

April 21, 2008 — The Casino Control Commission may be acting without legal authority, says Elliott Durand, a former inspector with the V.I. Casino Control Commission (CCC).
The CCC regulates the ongoing operations of the existing Divi Carina Bay Resort and Casino on St. Croix, licenses its card dealers and other employees, and grants the casino its operating license. It also approves gaming licenses for prospective casino developers such as the proposed Wyndham Resorts casino project of New Jersey developer Paul Golden.
Although V.I. law stipulates that the CCC have six members, Durrand wrote to the Source recently saying there has never been a full complement.
"At one time there were four, but when Dennis Brow left in 1998 the position was left vacated," Durrand wrote. "The commission has operated with only three members ever since, which is the minimum required for a quorum. Without a full quorum, the commission cannot legally make any decisions."
Durrand argues that CCC Chairwoman Eileen Petersen is no longer legally a member of the CCC, therefore it has no quorum and all actions of the CCC since the expiration of her term are void.
"Subsection 406(f) states that no member may serve for more than 10 years," he said. "Subsection 406(h) states that each member shall serve until the end of his term, and if a successor is not duly appointed within 120 days after the expiration of the member's term, a vacancy is deemed to exist."
The text of V.I. law does read the way Durrand says. V.I. Code is online and searchable at michie.com/virginislands.
Petersen has chaired the CCC since its inception, which she placed at early 1996.
Durrand believes this voids Paul Golden's casino license — his principal concern — as well as all of its other actions, such as the licensing of employees at Divi Casino.
Reached by phone last week, Petersen said the commission has been operating with three members because she felt that with only one casino, having the full complement of six well-paid, full-time members was wasteful of the V.I. government's resources. She proposed keeping the commission on light staff to then-Gov. Charles Turnbull, who agreed, she said.
"Once we have a second casino operational we will need a larger commission," she said. "But until then, there really isn't enough activity to justify it."
Petersen acknowledged that her term had expired, but said she could not in good conscience step down until a replacement is named.
"There is also a paragraph of the law directing that the law is to be read liberally, so that the functioning of the commission is not hindered," she said.
Subsection 427 of the act says: "The commission may exercise any proper power or authority necessary to perform the duties assigned to it by law, and no specific enumeration of powers in this chapter shall be read to limit the authority of the commission to administer this chapter."
Another section of the law says that if a vacancy has persisted on the CCC for some time, a simple majority can still act. Taken together, they suggest an intent to keep the CCC flexible and functional under uncertain circumstances. But no passage directly addresses the questions at hand.
If Petersen's position is legally vacant there are only two of six seats filled and thus no majority, Durrand says.
Asked for comment, Gov. John deJongh Jr. issued a statement through Government House Spokesman Jean Greaux Jr. saying he recognizes the need for nominees and is working on identifying the best possible candidates.
"However, the responsibilities of the commission are great," Greaux wrote. "The governor wants to ensure that the body charged with overseeing casino gaming in the territory is properly constituted to regulate the industry in best interests of St. Croix, especially in light of the new proposed projects, which envision casino gaming as a part of their development."
The governor also believes that the actions taken thus far by the commission have been legal and enforceable, Greaux wrote: "The Virgin Islands Code has several subsections dealing with the terms of membership of the commission, and contains certain inconsistencies. Thus, while recognizing that one may be of the opinion that the actions of the commission may be legally flawed, the governor does not share this view."
Asked for comment Friday, Senate President Usie R. Richards said he was studying the issue.
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