Nov. 16, 2008 — The election to the V.I. Legislature of two 5th V.I. Constitutional Convention delegates, Craig Barshinger and Michael Thurland, creates the potential appearance of a conflict of interest and may have slowed down progress somewhat, but is probably not a major hurdle.
The convention was to have completed a draft constitution by Oct. 1 of this year but, because of a late start and other reasons, in September it asked for and received an extension until May 31, 2009. (See "Senate Extends Deadline for Constitutional Convention to May 2009.")
Shortly afterward, the convention took a pause.
"We did take a hiatus, that is true," said Gerard Luz James II, the convention's president. "Because some of our individuals were vying for seats in the 28th Legislature, we stopped in October to give them an opportunity for a bit of last-minute campaigning and a chance to attend various forums."
Six Constitutional Convention delegates were candidates for the Legislature: Myron Jackson, Stedmann Hodge Jr., Adelbert Bryan, Kendall "Seigo" Petersen, Craig Barshinger and Michael Thurland, with Thurland and Barshinger winning seats. Now the convention is asking the Legislature for $1.3 million in additional appropriation, raising the question of the appearance of a conflict.
"We've received all the appropriations given to us, and all totaled, it is well below $500,000," James said. "Now we are pretty much in a quandary because we don't have the funding we need to finish. … If you look at what this has cost elsewhere, or what was spent the earlier conventions here, what we have is not even a drop in the bucket. Hawaii's constitutional convention cost between $10 and $20 million, for example."
Does asking the Legislature for more funding put the delegates who have been elected to the Legislature into a conflict of interest?
"I wouldn't see it as a conflict," James said. "There is no law on the books prohibiting it per se. The Senate votes on all appropriations, including their own. If voting on their own is not a conflict, I don't see why voting on the budget of the convention would be."
The two do not take office until January in any event, and James hopes the request for more funding will have been voted upon before then. They are only two of 30 convention delegates, so the convention could live without their participation, but James would prefer not to have to change course now.
"I'd have to check the law to be sure, but I certainly hope they stay with us," he said. "Since the two have already agreed to do certain tasks and are in the middle of that, it will be difficult to bring in another delegate to take their place. It would be a setback."
Barshinger, elected to the Senate for a second term this year after a two-year hiatus, sees no conflict either.
"I see us, myself and Thurland, as liaisons between the Senate and the convention," Barshinger said. "I don't see a conflict of interest there, because the amount of money needed additionally is really modest. And we are very far along. It is not like we will go at the same intensity as before. A lot of what will be done now will be an educational effort."
V.I. law says no elected official may have a direct financial interest in a contract he or she votes on, or "have any interest, financial or otherwise, direct or indirect, or (be) engaged in any business or transaction or professional activity, or incur any obligation of any nature, which is in substantial conflict with the proper discharge of his duties in the public interest and of his responsibilities."
So long as any new funding is voted upon before Barshinger and Thurland take office, there would not appear to be a conflict. If there is another funding request at a later date, the question becomes more complicated. Does merely being on the convention "conflict with the proper discharge of his duties" as a senator, or not?
The Legislature has no further direct role in the passage of the constitution. After the convention creates a draft constitution and two thirds of the delegates vote to adopt the document, it will go to the governor's desk. He will have 60 days to add his comments and forward it to the U.S. Congress, which has 60 days to look it over. The V.I. delegate to Congress and others may testify, and Congress has the power to add or delete by amendment. If passed, the constitution will go to the president for signing, like any U.S. law. Then it comes back to the territory to be voted up or down in a referendum.
But, should the convention again ask for more funding, or ask for another extension of the deadline, the Legislature could again be called to act.
Meanwhile, the convention plans to convene in December and begin putting the final touches on its draft document.
"We are looking at plenary sessions for the second week of December, probably around the 8th, 9th and 10th," James said. "We want to conclude by February so we can work on public education in March and April."
Public education is the next big task, Barshinger said.
"We are mostly done and with just some focus we can get through with a first draft," he said. "Then it will be time to take it to the public with a line-by-line explanation. January to May should be an opportunity for people to understand and comment on it, and for us to revise what we've drafted. … Now is the time to proof what we've written on the ground with the people."
Gov. John deJongh Jr. recently said passing a constitution will be important for the Virgin Islands to demonstrate political maturity as the territory presses the incoming Congress and president to address its needs. (See "Governor Details How Changes in Washington Will Affect Territory.")
Noting the president must sign off on the constitution and can propose changes if he wishes, James said the incoming administration of Barack Obama is an historic opportunity and an obligation for the convention.
"To have (Obama) now, to actually work along with us and help approve our constitution is remarkable," James said. "We are the only African-American majority and African-American run territory in the U.S. So if we do not have it worked out, we will have done a dishonor to our people and ourselves. Not to have this done now would be more than a disaster. … But if everything falls into place, we will be able to do what we should have done years ago."
There have been four previous constitutional conventions. For a detailed history of previous conventions and extensive background information on the subject, see "V.I. CONSTITUTIONAL CONVENTIONS: BACKGROUND."
More information can also be found at itsourfuture.vi.
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