March 11, 2002 – A Senate override on Jan. 30 of 12 lines of legislation line-item vetoed by Gov. Charles W. Turnbull at the end of last year made three changes in the territory's election law — and all of them are turning out to be political hot potatoes.
Turnbull made no bones about his objection to the first section of Act No. 6488, which called for banning campaigning after 2 a.m. on election days. Obscured in the governor's veto message and in the Senate override were two other provisions that also have far-reaching implications.
While Section 1 of the bill restricted campaign activity on the day of a primary or general election, part of what's in section 2 could mean that there won't be any more primary elections.
Section 2 has two parts.
Part (a) deletes a former requirement that V.I. government employees running for public office take a leave of absence from their jobs from the date of filing as candidates until the election (the primary election, should the candidate be eliminated at that point).
Part (b) ostensibly deletes a former requirement that the government conduct primary elections for political party candidates for public office.
The V.I. Code section referenced in part (a) formerly stated that "Persons employed in the legislative, executive or judicial branches of the government of the United States Virgin Islands shall be eligible for nomination as candidates for public office, but any such person who becomes a candidate shall be granted and shall take a leave of absence from his governmental duties … Persons becoming candidates may use accrued or accumulated annual leave or sick leave in taking such leave of absence, however sick leave may not be used in the absence of such certification of sickness as is required by the government … Persons taking such leave of absence who have no accrued or accumulated annual leave shall do so without pay but without prejudice to seniority or other employment rights." The section further stated that the requirement did not apply to candidates for the Board of Education except for employees or officials of the Education Department or the Board of Education; or to candidates for the district boards of election except for employees or officials of the Office of the Supervisor of Elections or of a board of election.
As now amended, part (a) reads in its entirety: Persons employed in the legislative, executive or judicial branches of the government of the United States Virgin Islands shall be eligible for nomination as candidates for public office."
The V.I. Code section referenced in part (b) previously stated: "Party primary elections shall be held in the Virgin Islands on the second Saturday of September for the purpose of choosing candidates for nomination to public offices to be voted for at the ensuing general elections. The Board of Elections will be responsible for certifying the process to be used by any political party to select party officers."
The new law adds these words: "and candidates for public office." That is, the Joint Boards of Elections now has responsibility "for certifying the process to be used by any political party to select party officers and candidates for public office." That is understood by Sen. Celestino White, who sponsored the bill, and Supervisor of Elections John Abramson, who has responsibility for enforcing the election law, to mean that the government itself is no longer responsible, administratively or financially, for conducting primaries as the means of selecting party candidates for office.
Both Section 1 and Section 2 are being challenged in federal District Court, and objections are being raised within political circles regarding both parts of Section 2. (See related story, "Parties disputing intent of new primary law".)
On Feb. 19, Hiram Rasool Abiff, Colleen E. Abiff and Simba Salaam Abiff of St. Thomas filed suit in U.S. District Court on behalf of themselves and "all similarly situated registered voters who feel the same," arguing that the ban on campaigning after 2 a.m. amounts to "violation of First Amendment rights of freedom of press, freedom of speech and the right to assemble, i.e., free association, under the U.S. Constitution."
Further, the Abiff complaint states, removing the requirement that government employees go on leave to campaign "is unconstitutional because it violates the Hatch Act."
An annotation to Title 18 [Elections], Section 2 of the V.I. Code includes this statement: "An individual employed in the executive branch of the territory whose principal employment is in connection with an activity which is financed in whole or in part by loans or grants made by the United States or a federal agency may not be a candidate for partisan elective office."
According to the web site of the U.S. government Office of Special Counsel, "The Hatch Act restricts the political activity of executive branch employees of the federal government, the District of Columbia government and certain state and local agencies. In 1993, Congress passed legislation that substantially amended the Hatch Act, allowing most federal and D.C. employees to engage in many types of political activity. (These amendments did not change the provisions applying to state and local employees.)"
When Sen. Celestino White introduced his bill on Oct. 15, 2001, the summary read thus: "To amend Title 18, Section 556, Virgin Islands Code, to prohibit campaign activity after 2 a.m. on the day of a primary or general election."
The bill made it to the Senate floor on Dec. 12 — where it was passed, 10-4, with Sens. Adelbert Bryan, Adlah "Foncie" Donastorg, Alicia "Chucky" Hansen and Norman Jn Baptiste voting against it and Sen. David Jones absent. By that time, it had grown to include the two provisions of Section 2 as well as three other amendments appropriating funds for unrelated purposes — to hire Housing Parks and Recreation Department personnel, purchase nine voting machines and support the Love City Pan Dragons and Baby Pan Dragons steelpan groups.
Turnbull approved all three funding amendments. He line-item vetoed the original proposal to cut off campaigning, saying in his Dec. 29 letter to Senate President Almando "Rocky" Liburd that it would be "difficult to conceive a more unconstitutional restriction on the freedom of speech in direct violation of the 14th Amendment of the United States Constitution." [Editor's note: Reference would appear to have been to the First Amendment.] In his letter to Liburd, Turnbull further stated: "Section 2 of Bill No. 24-0164 is also line-item vetoed," with no reference to its provisions.
Staying on the job while campaigning
Section 2, part (a) — allowing government workers to remain on the job while campaigning for office — has James O'Bryan, the governor's special assistant for public affairs, upset. "What has taken place," O'Bryan said recently, "is a very innocuous way of doing things. It only speaks to removing the language, without describing what the language is." He called the measure "unprecedented," adding, "I don't think it's allowed anywhere."
It is O'Bryan's fear that the measure will allow government employees to campaign on government time. White says that's not at all what it's about.
"I'm leveling the playing field," White said recently. "Why should a person be required to take leave to campaign? I say the person doesn't have to do that. There are 24 hours in a day, and only eight are spent at work. Why can't the person campaign after 5 p.m. and on weekends?"
White noted that in 1998, when he was out of the Senate after having held a seat for the five previous legislatures and
was back working for the Police Department, he was required to take leave to campaign for that fall election, which returned him to the 23rd Legislature.
"I saw no reason why I was required to do that, and now that I'm in a position to change it, I'm doing that," he said. "There's no reason why a candidate can't campaign on his own time. If the employee uses government time to do that, he is in violation of the employee handbook."
People often "say we should operate the government more like the private sector," he continued. "In the private sector, if you decide to be a candidate, your employer doesn't require you to take leave."
But, White added, "If you're working in a Main Street store and you campaign on company time, your employer wouldn't tolerate that. It's the same with the government."
Responding to O'Bryan's concern, he said, "What the administration is saying is they can't manage as well as the private sector. If you campaign between 8 a.m. and 5 p.m., you are in violation of the employee handbook, and your supervisor should take care of that. This is an indictment against the administration. They're in charge, and they must say you can't campaign during working hours, just like a lot of other things you can't do on working hours."
White reiterated, "This bill levels the playing field. I want to give the guy who is challenging the incumbents a chance, without having to use his leave to do that."
The same holds true for any candidate's campaign manager or staff, he said. "If the employee is using the fax machine or phone for personal use, those are violations of rules, even if they're not campaigning."
He continued, "As a candidate, right now while I'm in office, I shouldn't be campaigning between 8 a.m. and 5 p.m. That isn't to say at 6 p.m., on my own time, I can't start."
White has announced more than once on the Senate floor that he will run for governor this year. "I haven't moved from that position," he said recently, "but a lot of people have been talking to me. I haven't announced yet that I'm not running for governor, but I generally follow the wishes of the people, and lots of people believe I can do more good for them from the Senate."
Responsibility for primary elections
White, who is an independent without political party affiliation, said he is vehemently against the idea of the government paying for political parties' primary elections, which he said cost the territory $260,000. Supervisor of Elections John Abramson put the price tag at $160,000 two years ago, after the election law was changed to end the government's responsibility for conducting primary elections to choose party officers — but not candidates for public office.
For one thing, White noted, "Historically, only about 20 percent of the people turn out for the primary vote."
"You can have 50 independents running, and they don't hold primaries," he said. "The Republicans don't hold primaries; they settle who is running amongst themselves and then make the announcement. They are disciplined."
While the Democrats don't do that, "There's no reason the people should have to pay for their primary elections," he said. "They could hold a convention and figure it out themselves."
He added, "The parties go to the States to the primary conventions up there, and they pay for that. They can pay for their own primaries here."
For the coming fall elections, White contends, "People are not going to be voting the party line. They are going to go down the list and see who they think can do the best job."
