Home News Local news Fire Service, Personnel Heads 'Confirmed' by Default

Fire Service, Personnel Heads 'Confirmed' by Default


June 24, 2004 – Two nominees for top government positions who did not appear at a Senate Rules Committee meeting on Thursday have been confirmed "by operation of law" without a vote by lawmakers, according to an opinion issued by the legislative legal counsel.
The nominations, submitted by Gov. Charles W. Turnbull as is custom, were of Kevin Rodriguez for Personnel Division director and Merwin Potter for V.I. Fire Service director.
Because a 90-day window of opportunity in which to act on the nominations has expired, legal counsel Yvonne Tharpes said, the nominations are therefore confirmed and "the Legislature is without jurisdiction to conduct any further proceedings."
One senator openly disputed that opinion, however.
Sen. Celestino A. White Sr. said that as he reads the law, "only in cases where the nominee's name appears on the full Senate agenda and has not been acted on after 90 days is it approved by default … nothing is triggered until Rules moves the nominations out of committee and on to the full Senate."
"Personally, I know both nominees extremely well," White added, "but I think the Legislature sets a bad precedent by not hearing testimony."
Rodriguez's nomination was sent to the Legislature on Feb. 5 and Potter's was submitted on March 4. Each has been serving in an acting capacity as director of his agency, Rodriguez since last October and Potter since January.
Tharpes' opinion states that the Legislature must act on a nomination by the 90th day following the first day it next meets in regular session or in a special session whose agenda includes consideration of the nomination, whichever occurs first. Failing that, she said, the advice and consent of the Legislature is deemed to have been given "at the end of that 90th day."
For the Rules Committee, time had run out in the cases of both nominees, she said.
Sen. Roosevelt David, Rules chair, said at Thursday's committee meeting that based on that opinion, he had both nominations removed from the day's agenda. "According to the legal counsel, there is lack of jurisdiction at this time," he told his colleagues.
Standard procedure once the committee receives a nomination is to send the nominee a questionnaire requesting background information.
David said Rodriguez returned his questionnaire on May 7, more than two months after it was sent out and 92 days after his nomination was submitted. David also stated, with documentation, that Rodriguez had repeatedly been unavailable to appear before the committee on dates David had posed.
The questionnaire for Potter was hand delivered to his office on March 8, David said. Because Potter's brother died in a fire on March 18, David said, he allowed for a time of mourning, but later made several attempts to contact Potter. The questionnaire was returned on May 18, more than two months after it was sent out and 76 days after the nomination was submitted, David said.
As also is customary, the committee requested a legal opinion on each nominee's qualifications. David said on Thursday he felt "disappointment, shock and embarrassment" upon reading the conclusion Tharpes reached — that both nominees are granted their respective posts by default.
"Inadvertently, after extreme cooperation, extensive leniency and compassion for two young men who needed an opportunity to serve, the clock ticked beyond the June 10 deadline for advice and consent," David acknowledged
Sens. David Jones and Carlton Dowe commended David's "good nature and compassion" but said they thought he had gone along too willingly with the delays. The nominees "should be the ones knocking your door down, not the other way around," Dowe said.
Jones said: "It doesn't indicate a lack of leadership, but I hope the governor will instruct nominees to be more responsive and the chair won't be so accommodating … While you're overaccommodating, I think it was an effort [on the nominees' part] to prevent coming under scrutiny."
While he personally would have voted for both nominees, Jones said, "many persons have serious reservations about these nominees. They have been confirmed without scrutiny."
Some senators said their offices had received complaints about one or both of the nominees from employees in their respective agencies.
According to Tharpes, "the Legislature held its first regular session afer receipt of Mr. Rodriquez's nomination on March 10 and 11. The time has expired for the Legislature to act." Further, her opinion states, "it appears that Mr. Rodriguez's temporary appointment expired in April of this year." However, with the nomination approved by default, "the issue of his illegal holding over in the position is moot."
By law an appointee may serve in an acting capacity no more than 180 days.
With the 90 days expired, the opinion states, Rodriguez's nomination was "confirmed by operation of law, on or about June 10," leaving the Legislature "without jurisdiction to conduct any further proceedings."
Tharpes' opinion on Potter contains basically the same language, with differing dates. Tharpes says it is of "no moment" whether Potter may have served longer than 180 days in an acting capacity, since the 180 days "had not lapsed on June 10."
"Inasmuch as the Legislature received Mr. Potter's nomination on March 4, and the Legislature held a regular session on March 10 and 11, more than 90 days have elapsed after the receipt of Mr. Potter's nomination," the opinion states. Consequently, Potter was confirmed as director of the V.I. Fire Service "by operation of law on or about June 10."
White said on Thursday that "the legal counsel is in error" and that the idea that any nominee can be confirmed by default "is totally wrong."
He noted that Clement "Cain" Magras won nomination for Tourism commissioner by default in 1999 but that the circumstances were different. The Rules Committee had forwarded his nomination to the full Senate, White said, where it was placed on the agenda and "remained there in excess of 90 days."
He added, "Rules doesn't give advice and consent. It is only a committee of the Legislature." Further, he said, "If the Legislature were to fall for this, then it means that once the governor sends down a name, the Legislature must act on that name within 90 days."
A couple of senators suggested a need to amend the law, but White said: "There's nothing wrong with the legislation. The interpretation is faulty. Our forefathers never intended to put a deadline on the investigative arm of the Legislature."
White, who is not a member of the Rules Committee, said he has asked Sen. Ronald Russell, a Rules member, to write to the Senate president "indicating he agrees with my opinion and that these nominees need to appear before the Rules Committee."
Committee members present for the meeting were Sens. Lorraine Berry, David, Dowe, Louis Hill, Jones and Russell. Sen. Douglas Canton Jr. was excused. Non-member White also attended.

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