Governor and senators see nothing wrong in keeping HOVENSA meeting from public
Published: February 22, 2013
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ST. THOMAS - For three days, the territory's elected leaders knew about a scheduled meeting to discuss the next step in the government's ongoing negotiations with HOVENSA, but they kept it a secret and no one bothered to tell the public until after they gathered, possibly illegally.
According to a number of senators, Gov. John deJongh Jr. invited the entire Senate to the Tuesday meeting on Feb. 15.
Present on Tuesday were Delegate to Congress Donna Christensen, V.I. Attorney General Vincent Frazer and all 15 members of the 30th Legislature, among others.
According to the V.I. Code, "all meetings of a governmental agency or of a subdivision thereof authorized to take action on behalf of the agency shall be open to the public."
There was no public notice of the meeting until Government House issued a press release at 11:05 p.m. Tuesday, hours after the meeting ended.
"It wasn't my meeting - it was the governor's meeting," Senate President Shawn-Michael Malone said Thursday, referring to the meeting not being open to the public.
The territory's open meetings law includes several exceptions to the above-stated rule, and Government House maintains that at least one of those exceptions protected Tuesday night's meeting.
"Why would there be public notice?" Government House spokesman Jean Greaux Jr. said.
Greaux said the governor simply invited members of the Legislature to Government House to update them on the status of the administration's negotiations with HOVENSA regarding the company's post-closure plans for its St. Croix refinery. He acknowledged that a quorum of the Legislature was present, but he said no final decisions were made and no votes were cast.
"Simply information," Greaux said.
Several senators echoed Greaux's position that the meeting did not have to be open to the public because there was never any intention of taking formal action.
"There was no intention of calling for a quorum," Senate Secretary Janette Millin Young said. "No attendance was taken because it wasn't a formal meeting as we would have in the Legislature. I was an invited guest."
Fifteen of the governor's invited guests just happened to be sitting V.I. senators and the territory's entire legislative body.
The term "meeting," as defined by the territory's open meetings law, has two components.
First, there must be present "at least the number of individual agency members required to take action on behalf of the agency" - otherwise known as a quorum. No one contests that Tuesday's meeting met that criterion.
The law also states that such a quorum must be conducting "deliberations" that "concern the conduct or disposition of official agency business."
Because no formal votes were taken Tuesday, the meeting was not subject to the open meetings law, Greaux and several senators argued.
Frazer, who could not be reached Thursday for this story, has taken the same position in the past.
However, the V.I. Code contains conflicting language about whether any open meetings requirements apply to the Legislature.
One section of the law states that the definition of a "government agency" bound by the open meetings law "does not include the courts of the Virgin Islands or the Legislature of the Virgin Islands or any of its Standing or Special Committees."
The following section states that "all meetings of Standing and Special Committees of the Legislature of the Virgin Islands, established pursuant to the Rules of the Legislature, shall be open to the public," subject to the same exemptions provided to other decision-making bodies.
Such exemptions require the agency to follow certain steps to close a meeting to the public, including specifying the exemption under which the meeting is being closed and then voting to do so.
Several senators said there was nothing discussed at their meeting with deJongh that was so sensitive as to fall under one of the exemptions.
"In my opinion, I don't believe so," Senate Vice President Sammuel Sanes said.
Sanes said the question of whether the meeting should have been open to the public "wasn't raised as an issue" Tuesday night. He then said, "Our main concern was how this affects the general public."
"Maybe it should have been open to the public," he said. "I didn't give it too much thought."
Sanes said he would raise the issue with Malone, who said in his view the governor was "being prudent" about how much information to release regarding the negotiations in order to not jeopardize the territory's position negotiating with "a very big company, with lots of money."
"He couldn't tell us a lot of things, either," Malone said.
Malone said the negotiations, which are a function specifically of the executive branch, are in a "very delicate phase."
Once the negotiations conclude, the governor will forward a proposal to the Senate for ratification, at which point the process will be open to public scrutiny, Malone said.
Sen. Nereida Rivera-O'Reilly, who is not a member of the 30th Legislature's majority caucus, also said the government's precarious negotiating position justified the closed meeting.
"The situation is so delicate," Rivera-O'Reilly said. "As an elected official, you have to be careful you don't do or say anything to jeopardize the negotiations, because at the end of the day you want more on your side of the table."
Based on Tuesday night's meeting, obvious gaps exist between the stated purpose for the territory's open meetings law, the actual language in the law and the behavior of government officials.
The declaration of policy preceding the law states: "It is hereby declared to be the policy of the Government of the Virgin Islands that the public is entitled to the fullest practicable information regarding the decision making processes of this government. It is the purpose of this chapter to provide the public with such information, while protecting the rights of individuals and the ability of the Government to carry out its responsibilities."
Rivera-O'Reilly suggested that the lack of legal clarity surrounding a meeting like the one on Tuesday should prompt senators to re-examine the territory's open meetings law.
"I think it's high time for us to really revisit the law and see what areas need to be amended so we are actually walking the talk, so that transparency is across the spectrum," she said.
According to information compiled by the Reporters Committee for Freedom of the Press, the territory would not be alone in exempting its Legislature from open meetings rules. Seven states in the U.S. explicitly do so.
The other 43 state legislatures plus the District of Columbia Council must follow some form of open meetings rules, according to the committee's information. Twenty-nine states, plus the D.C. Council, require their legislative bodies to follow the same open meetings laws as other deliberative bodies; 14 states require their legislatures to follow open meetings laws in part, with specific exemptions, usually for political caucuses or committee meetings.
- Contact reporter Lou Mattei at 714-9124 or email firstname.lastname@example.org.