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Rules Does Confirm Personnel, Fire Service Nominees

June 30, 2004 – Acting Personnel Director Kevin Rodriguez and Acting Fire Service Director Merwin Potter left the Senate Rules Committee on Wednesday confirmed in their respective permanent positions. Their nominations will now go to the full Senate for a final vote. But the process was hardly that easy.
As the Senate gallery filled with family and friends of both nominees and as Fire Service and Personnel Division staff sat patiently by, more than half of Rodriguez's time before the committee was consumed with the legalities of his even being there. The committee chair, Sen. Roosevelt David, prefaced the formal testimony with a summary of the legal maneuvering to date.
He said the committee had decided not to abide by the opinion of the Legislature's legal counsel, Yvonne Tharpes, last week that the two had been approved by default without a hearing because the Legislature had failed to confirm them in the time allowed. (See "Fire Service, Personnel Heads 'Confirmed' by Default".)
"The legal counsel erred in this case," David said on Wednesday. He said he had "reluctantly agreed" to the default ruling at last Thursday's Rules meeting, but that Sen. Celestino A. White Sr. then challenged the opinion. Senate President David Jones "and I concurred," David added.
David said that nowhere does the law stipulate a time limit for a nomination to stay in the Rules Committee. "The Legislature must act within 90 days after the nominee appears on the full Senate agenda, but the nominations never got there," he said.
David said he had hired independent counsel Arturo Watlington to render an opinion. Watlington concurred with David's assessment. Since "neither of the two nominations were ever placed on an agenda of the 25th Legislature," he said, "there exists no 90-day period" within which the body's advice and consent needs to have been given.
Watlington concluded that if the law were interpreted to mean that the time for consideration of nominees would expire "as the result of the fact that they were submitted to the Legislature more than 90 days ago," it would "erode the entire purpose of the advice and consent requirement of executive nominations."
Shortly after Jones began questioning Rodriguez on Wednesday, Sen. Lorraine Berry asked that a second opinion from Tharpes be read into the record. Tharpes then proceeded to read a 12-page, exhaustively detailed document backing up her first opinion.
Tharpes submitted copies of 1984 legislation stating "….once received, should the Legislature fail to either approve or disapprove the nomination by the 60th day following the first day the Legislature next meets in regular session or in a special session the agenda for which includes consideration of the nomination, whichever meeting occurs first, then the advice and consent of the Legislature shall be deemed to have been given on the nomination at the end of that 60th day."
The act contains an explanation which reads in part, referring to a provision of the legislation: "this provision has proven to be nearly impossible to understand let alone administer…." It further says: "The Legislature would be required to act on the nomination within 60 days of its first opportunity to do so, or the nomination would be deemed approved."
There is no mention of the nominations appearing on a full Senate agenda.
Berry asked what would happen if the body acted Wednesday on the nominations. Tharpes said nothing if the nominations were approved; it would be moot. If not, she said, there might be cause for action.
The committee chose to ignore Tharpes's opinion and to proceed with the hearing. David and other senators said the public is entitled to hear testimony and the questioning of nominees.
White said: "All the governor has to do is send down 200 nominations at once with 90 days to investigate. We couldn't do that. The counsel is in error."
David asked Rodriguez, "Do you believe you should be confirmed by default?"
"No, sir," he replied.
In his prepared statement, Rodriguez said: "It has never been my intention to secure the position of the director of Personnel by default. It has been my desire to share my vision of the future of this division with this body…"
David was still smarting from the extended period of time he allowed Rodriguez in which to submit a completed data questionnaire and resume, as required by the Rules Committee, something he had commented on last Thursday. Although David chided Rodriguez about that, he supported Rodriguez's nomination.
"I publically apologize" for the lateness, Rodriguez said on Wednesday, adding that he had been busy doing the jobs of assistant director and director. "Let's move on."
Rodriguez was hit with a barrage of questions from the senators. The minority leader Sen. Usie Richards, wanted to know the status of the Employee Assistance Program and what had happened to certain Justice Department employees whose raises were rescinded. Rodriguez said he would have to get documentation on the matter. Richards wanted to ascertain whether the EAP is being equally applied to all employees.
Jones questioned Rodriguez about the government's health insurance coverage. "Almost every time, the Legislature gets the new insurance proposals at the 11th hour," Jones said. "It puts us under the gun. The process should be so the Legislature can do due diligence, without the threat of the current insurance expiring looming over us."
Rodriguez said health insurance policy renewal talks are to begin July 29. The current policy expires Sept. 30. Rodriguez said he was "hopeful" of getting the information to the Legislature in the next few weeks.
Under further questioning by Jones, Rodriguez said there are 9,506 executive branch employees. He said 8,800 employees and 5,100 retirees are covered by the government's insurance. "Isn't it mandatory all employees have the insurance?" Jones asked.
Rodriguez explained that sometimes an employee's spouse has a more attractive plan that the employee prefers. "They can elect not to get government insurance then," he said.
Also under Jones's questioning, Rodriguez said that since he became acting Personnel director last October the government has hired 47 unclassified, 118 classified, 65 temporary, 12 part-time and 10 per diem employees.
Rodriguez said that since October he and his staff have "made significant strides" in developing standard operating procedures for the division, standardizing personnel rules and regulations, offering wellness seminars under the Employee Assistance Program and implementing a government-wide timekeeping procedure.
His short-term goals include holding training sessions to familiarize staff with re-engineered procedures, publishing a revised employee handbook, implementing an electronically secure network to organize personnel records, bar-coding personnel records and establishing a pilot satellite office in Frederiksted.
For the long term, Rodriguez said, he wants to computerize all entrance and promotional exams, offer more management training sessions, implement a customer satisfaction program for employees, establish a satellite office on St. John and conduct quarterly workshops with the Office of Collective Bargaining to improve productivity.
The nominations passed 4-0, with Berry not voting. Berry said that she agrees with Tharpes's opinion and for that reason did not vote, although she highly commends Rodriguez for the Personnel post.
Committee members present were Sens. Berry, Douglas Canton Jr., David, Carlton Dowe and Jones. The other two members, Sens. Louis Hill and Ronald Russell, were excused. Also attending were Richards and White, who are not members of th
e committee.

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