Undercurrents: When is a Bribe Not a Bribe?

A regular Source column, Undercurrents explores issues, ideas and events developing beneath the surface in the Virgin Islands community. This is Part One of a two-part series about attempts to contain public corruption.

When the developer’s assistant arrives at the government office with a plain white envelope full of crisp tens and twenties, it’s pretty clear.

But what about the time the senator’s old classmate invites him to lunch and mentions he has a new job with a firm that happens to be looking for a government contract? Or when the deputy commissioner gets flowers from her cousin just after his grant request was approved? Or the loyal campaigner’s job application floats mysteriously to the top of the stack?

“Those little things chip away” at public trust, says former Senate president Shawn-Michael Malone. They are both insidious and common.

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“Under the table stuff” is “constant,” he said. “It’s just a behavior that we need to change.”

Last year, while still in office, Malone introduced a government ethics bill that died in committee.

Virgin Islands Inspector General Steven van Beverhoudt concurs. “It’s long overdue for something to tell government employees what’s ethical and what’s not.” Van Beverhoudt said he did not support Malone’s bill because of drafting mistakes and concerns over financing and administrative jurisdiction, but he said, “The concept was okay.”

There have been other attempts to curb government corruption, both the blatant and the subtle, but the collective public will seems only half-hearted.

Thirty years ago, the territory had a Commission on Ethics and Conflict of Interest. It was not particularly active, but had enough presence that – according to an old newspaper clipping – in 1984, a then-senator announced he was asking the commission to look into a possible violation by an executive branch attorney.

Today few people contacted for this article even remembered there was such an entity and none could say what ever happened to it. One government official suggested the only apparent explanation: The members’ terms expired and they were never replaced.

Even earlier, the late Gov. Ralph M. Paiewonsky had tried to address the issue. Shortly after taking office in December 1961, he issued an executive order “To Prescribe and Establish an Ethical Code of Conduct for Officers and Employees of the Government of the Virgin Islands” and followed it a couple weeks later with another, “Responsibilities and Conduct of Government Officers and Employees.”

Both documents are gathering dust in a government archive, but they did serve to inspire some rudimentary legislation passed 10 years later.

There is a Conflict of Interest statute on the books and it does cover the most basic concerns. It’s Chapter 37 of Title 3 of the V.I. Code, enacted in 1971. Among other things, it requires the governor, lieutenant governor, judges, commissioners, directors and all salaried appointed officials exempt from the Personnel Merit System (read: elected officials and political appointees) to file a Financial Disclosure Report annually with the V.I. Justice Department.

It also prohibits the most obvious conflicts of interest and self-dealing. But it does not deal with the fine points of ethics.

Under the statute, an official is forbidden to:

(1) be financially interested in any contract made or negotiated by him in his official capacity, or by any public agency of which he is a member.

(2) be a purchaser at any sale or a vendor at any purchase made by him in his official capacity.

(3) have any interest, financial or otherwise, direct or indirect, or engaged in any business or transaction or professional activity, or incur any obligation of any nature, which is in substantial conflict with the proper discharge of his duties in the public interest and of his responsibilities as prescribed in the laws of the Virgin Islands.

(4) accept other employment that will either impair his independence of judgment as to his official duties or require him, or induce him, to disclose confidential information acquired by him in the course of and by reason of his official duties.

(5) willfully and knowingly disclose, for pecuniary gain to any other person, confidential information acquired by him in the course of and by reason of his official duties or use any information for the purpose of pecuniary gain.

Every year in April government officials are required to submit a two-part form listing any nongovernmental business or professional activities they have had in the previous year which resulted either in financial gain or in debts above a given threshold. The idea is to look for potential conflicts of interest.

Part One asks for the names of the entities concerned, but not for the exact amount of money involved. It is an open document.

If an official lists no interests on Part One, he is not required to file Part Two. But if he does list anything on Part One, he must also submit Part Two, which includes the amounts involved in each entity in which he has an interest. Part Two is sealed until and unless authorities deem it should be unsealed.

The Justice Department does collect and keep the forms on file. However, it’s not clear who, if anyone, looks at them. They are supposed to go to the “Ethics Administrator” but no one currently holds that title.

Moreover, the instructions that come with the forms say that Part Two is to remain under seal “unless opened after a vote of the Commission as part of an investigation.” That’s the Commission on Ethics and Conflict of Interest, which doesn’t exist.

In practice, the forms can be subpoenaed by law enforcement authorities such as the FBI or the V.I. Police Department. But that doesn’t happen unless the authorities already suspect a problem. Apparently no one routinely reviews the Part One forms to look for potential conflicts.

(Next: A closer look at some gray areas.)

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