In a ruling that helps define the governor’s powers to dismiss assistant attorneys general in the V.I. Department of Justice, the V.I. Supreme Court overturned on Thursday a Superior Court judgment directing an assistant attorney general be reinstated after his dismissal by Gov. John deJongh Jr.
The government employee at the heart of the case, Ernest Bason, became an assistant attorney general in 1997. Both the government and Bason agree he was subject to a collective bargaining agreement with the United Industrial, Service, Transportation, Professional and Government Workers of North America Seafarers International Union (UIW-SIU)
In July 2010, Attorney General Vincent Frazer placed Bason on a 30-day suspension at reduced pay and told Bason he intended to have him fired.
The union filed a grievance in August 2010, but Frazer said the 10-day clock for filing a grievance had passed and forwarded his recommendation to have Bason fired to deJongh. DeJongh then fired Bason.
The termination arose out of a dispute between Bason and Wilson Campbell, his immediate superior at the time. The Supreme Court decision says an arbitrator assigned to the case found that Campbell assigned two criminal cases to Bason on May 28, 2010, but Bason initially refused the assignments and got into a verbal confrontation with Campbell, in which there is "some evidence that Campbell was unable to close the door to his office due to the placement of Bason’s foot."
Bason then told coworkers Campbell was illegally practicing law without a license. Bason ultimately took the assignments, but Campbell categorized Bason’s actions as "insubordination" and recommended Bason’s termination.
Campbell resigned his own position in 2011, after concerns were raised about whether he could legally serve in his position without being a member of the V.I. Bar. Campbell was and is a member of the New Jersey Bar, which would allow special admission to the V.I. Bar, but that was held up due to concerns over a New Jersey reprimand of Campbell for a consensual relationship with a coworker.
When Bason’s case went to arbitration, the V.I. Government argued V.I. law specifically states the governor may remove an assistant attorney general at will. The arbitrator rejected this and ordered Bason reinstated on the grounds that another law allows the government to enter into a collective bargaining agreement with the assistant attorneys general, and that the collective bargaining agreement was violated because Bason could only be terminated for "just cause," but had no opportunity to respond to the allegations against him.
The V.I. Government filed a complaint seeking to vacate the arbitrator’s award and a statement that the V.I. Justice Department had no obligation to reinstate Bason.
The Supreme Court ruled the laws specifically giving the governor the power to remove attorneys general take precedence over the collective bargaining agreement.
"Given that (the law) actually mandates automatic discharges of assistant attorneys general without cause at the conclusion of a governor’s term, it is now clear to the court how the provisions of the collective bargaining agreement which permit reinstatement by an arbitrator … can in any way be reconciled with the statutory enactment," the justices wrote in an opinion signed by Chief Justice Rhys Hodge and filed Monday.
The court rejected Bason’s reinstatement and sent the case back to Superior Court for a final judgment consistent with the Supreme Court’s ruling. Whether and how much back pay Bason can receive are among the questions remaining for the Superior Court to adjudicate.
