A regular Source feature, Undercurrents slips below the surface of Virgin Islands daily routines and assumptions to explore in greater depth the beauty, the mystery, the murky and the disregarded familiar.
Can the government “change the rules” for an employee’s retirement after he/she begins working?
Former Judge Leon Kendall begs the question in a lawsuit he has filed against the Superior Court of the Virgin Islands; Darryl D. Donahue Sr., in his official capacity as its presiding judge; and the V.I. Government – seeking approximately $440,000 Kendall says he is due in accrued sick leave, annual leave and compensatory time.
The suit has been churning its way through District Court for two years with no public attention, despite the high profile Kendall acquired with numerous controversial rulings during his time on the bench.
Paperwork and side issues are mounting. So far, there have been 174 documents filed in the case. An Omnibus Hearing to deal with a number of outstanding motions is scheduled for Nov. 8.
Kendall retired from Superior Court in 2009 and applied to convert his unused leave and comp time to a lump sum payment. According to subsequent court documents, he has put the figures at $163,516.50 for sick leave, $243,658.26 in comp time (in lieu of overtime) and $32,678.72 for accrued annual leave.
The presiding judge denied Kendall’s request, saying that when Kendall was appointed to the bench in 2003 the law that had previously allowed judges to obtain such payments upon leaving the court had already been changed. It now reads “any member having accumulated and unused sick leave at date of retirement shall be entitled to service credit towards the service retirement annuity to which the member may be entitled,” but not a lump sum payment.
Donahue noted that Kendall himself had written an opinion in 2002, when he was not a judge but was the general counsel for Superior Court, supporting former Judge Ishmael Meyers in getting a lump sum payment for sick leave on the basis that when Meyers came to the bench, the law allowed the practice and that the law in place at the time he became a judge is what should apply. Under that scenario, Donahue said, the newer law disallowing the payment is what should apply in Kendall’s case.
Kendall, however, is arguing that his service started not just with his October 2003 appointment as a judge, but that it started in November 1983 when he was made assistant general counsel to what was then called the Territorial Court. He was promoted to general counsel in 1987.
The leave time issue aside, having served one six-year term as a judge, Kendall is entitled to an annual retirement of one-third of his $152,000 salary. Judges who serve two terms get two-thirds of their salary, and those who serve for at least 20 years may retire at full salary.
Superior Court has been vigorously defending against the suit. Attorney Paul Gimenez inherited the case earlier this year when he took over as the court’s general counsel when attorney Queen Terry resigned the position.
Responding to the question of motivation, Gimenez said the decision to defend “was made completely on the merits. It has nothing to do with Judge Kendall personally or his profile in the community.”
Further, he said, “All of the issues turn on changes in the Statute” and the court is arguing to uphold those changes.
There is also the practical matter of the cost. With interest and possibly even court fees added, the amount Kendall is seeking could grow to well over $500,000. The Superior Court’s budget for the fiscal year that just started this month is only $23 million. Donahue testified at the Legislature that it is significantly underfunded; he had asked for $31 million and said it will be a major struggle to stay within a lesser amount.
Perhaps most importantly, there is the possibility the case could set a precedent.
The V.I. Government, through the Attorney General’s Office, has made a motion to be removed as a defendant.
Attorney General Vincent Frazer said Monday that Kendall’s claim is against the judicial branch of the government, and the executive branch does not control the courts. The claim may also affect the Government Employees Retirement System, but that is a semi-independent agency, he said.
GERS is not currently a party to the case. The Superior Court attempted to have it included, but its initial motion for that was denied.
Frazer acknowledged that the timing of laws governing compensation could affect the executive branch in other circumstances.
“There are certain ramifications that will have an overflow for other government employees similarly situated,” he said. But he added that he does not believe the government will see another similar case.
Asked about the possibility of setting a precedent, Kendall’s local attorney, Darren John-Baptiste replied, “Perhaps,” but he referred questions to Kendall’s stateside representatives, the law firm of Todd and Weld. Initial attempts to reach them for comment were unsuccessful.