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Charlotte Amalie
Thursday, March 28, 2024
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Undercurrents: Governance by Fiat

A regular Source feature, Undercurrents explores issues, ideas and events as they develop beneath the surface in the Virgin Islands community.

So you think you know how laws are made.

First, one or more duly elected senators proposes an idea. Legislative legal counsel puts it into bill form. The bill is assigned to the committee of jurisdiction which discusses it and asks for public comment, maybe even holds public hearings. If the majority of members agree, the committee sends it to the Rules Committee which assigns it to the agenda for a public session of the Legislature where senators debate its merits and vote it up or down. If it passes and it isn’t vetoed, it becomes the law of the land.

or

The governor can just write an executive order and sign it. Done. It has the full force of Law.

And unless the administration makes an announcement about the order, you may never even know it happened.

There have been hundreds of executive orders issued by V.I. governors, starting at least as early as 1955.
The Lieutenant Governor’s Office is the official repository for them, but it appears a lot of the old ones are missing. The Source was allowed to look through the files in the St. Thomas office and read and take notes on the executive orders found there, but they covered only the period from 2006 through 2013 – the current administration and the last year of the Turnbull administration. Staff said the rest might be in storage somewhere or, possibly, some might be in part of the building under renovation.

Shawna Richards, communications manager for the Lieutenant Governor’s Office, said she does not know where all the hard copies are and the office does not maintain an electronic record of them. She said Government House may also have copies.

After three weeks of knocking at Government House, looking for the orders, the Source has received only an index of them, furnished by Nagesh Tammara, legal counsel for Gov. John deJongh. The index lists the orders chronologically by descriptive title, date of issue, and governor. The last on the list is No. 468 dated July 30, 2013, but 39 numbers scattered throughout the index are missing – suggesting that those orders may have been misplaced even before anyone began compiling the index.

Such handling is not unusual. The federal government didn’t start formally tracking Presidential executive orders until 1907 when the State Department instituted a numbering system.

If the “missing” Virgin Islands gubernatorial orders are typical, their loss is more of a historical than practical matter.

Like presidential executive orders, the territory’s executive orders are used primarily for creating boards, commissions and task forces as well as for administrative functions such as reorganizing departments, regulating travel and government vehicle use by government workers, setting salaries or establishing fees and establishing mechanisms for tax collection. Some are limited to a point in time, such as declaring a state of emergency. With a few exceptions, their effectiveness tends to be temporary, sometimes lasting only as long as an administration – if that.

The first V.I. executive order of record was issued by Gov. Archibald A. Alexander in 1955.

That is three years after the U.S. Supreme Court ruled against President Harry S Truman in a case challenging his right to make an executive order placing all steel mills in the county under federal control. The court ruled the order was invalid because it had overstepped executive authority by attempting to make law rather than clarify law.

The case may have offered some guidance to governors in the territory.

All of them from Alexander to deJongh have made use of the device.

The first deJongh order, according to the records on the file in the Lieutenant Governor’s Office, was issued March 28, 2007. It was No. 433 and its purpose was to set the due and delinquent dates for the 2005 property tax collection.

Of the 35 orders attributed to deJongh, 15 relate to commissions and executive agency committees – some creating new ones, some making changes to existing ones.

Another nine orders, including No. 433, are about property tax collection dates. Because of litigation that spanned several years, dates had to be adjusted more than usual.

An order signed May 18, 2011 (but with an effective date of May 13 to May 22) activates the civil support team of the National Guard to respond to “strong gaseous odors” on St. Croix in mid-island and west into Frederiksted. Another order declares a state of emergency, basically for the weekend of Carnival 2013, because of violence.

Two other orders involve a state of emergency also. These are because of Tropical Storm Maria which passed near the territory in 2011. But neither bears a number so they are not included in the count of 35 orders attributed to deJongh. Based on weather reports, the emergency was declared Sept. 9 but rescinded, in a second order, the next day when forecasters changed their predictions.

While most executive orders may be administrative, some are a bit more substantive. Presumably the pardons granted by previous administrations as a governor left office were by executive order.

Under the current administration, an order in 2007 amended the salary schedule for Level I government employees, moving it upwards from $97,000 to $115,000. A 2011 order raised it again to $130,000.

A 2008 order tightened restrictions on government travel. In 2012, an executive order expanded the Enterprise Zone. In May 2013, an order transferred government property in Spanish Town St. Croix to the VI Water and Power Authority for construction of a solar site.

(Next: A look back at 50 years of gubernatorial executive orders – everything from regulating the vaccination of hogs and pigs to implementing the Water and Power Authority.)

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