In a recent session of the 35th Legislature, crowded with honorarium bills, a non-descript amendment referring to some date changes in “Act 8681” was slipped onto a popular measure concerning veteran’s benefits, along with a couple of other unrelated items.
It was so seemingly unimportant Act 8681’s name and purpose weren’t even included on the amendment.
But this rider was anything but innocuous.
It was a bit of housekeeping to repair some hurried redrafting when a bill creating a Sixth Constitutional Convention was passed seven months before, on the eve of the dissolution of the 34th Legislature, Dec. 30, 2022.
The bill, now law, appears to narrow the options for the next proposed constitution by opening the door to implementing the approach of adopting the Revised Organic Act of 1954 (in which Congress laid out the fundamentals of local V.I. government) as the Constitution, and/or, using as a starting point the document produced by the Fifth Constitutional Convention and revising it to meet federal objections.
Under the Act, the process will start with the November 2024 election of delegates to the Convention and will be a streamlined version of previous attempts.
The convention is to begin in January 2025 and produce a proposed Constitution by Oct. 31, 2025. That will be the subject of a binding referendum in November 2026 and, if passed, become the fundamental law of the land as of March 31, 2027 – roughly half a century after the U.S. Congress formally authorized the Virgin Islands to create its own territory constitution.
The acrimony that has accompanied previous failed attempts to draft a document that meets both federal dictates and local acceptance has left some leaders shy of the issue.
There were actually two attempts before the 1976 congressional authorization, one in 1964 and a second in 1971, and three after 1978, 1980 and one begun in 2007.
The most recent effort stretched on for roughly five years, finally ending in 2012 when the Fifth Constitutional Convention failed to meet a federal deadline to make recommended changes to the proposed document to bring it in line with federal laws.
The issue of a constitution was such a hot potato that the original bill to establish a sixth convention languished in the 34th Legislature for most of its two-year tenure before a modified version was suddenly passed at the 11th hour, with all 12 of the senators present voting for it.
The original bill had contemplated much earlier passage, so adjustments were required to the various dates, and only a few of those were made before it was passed, hence the need for the recent amendment correcting dates.
As it reads now, the Act prompts the sixth convention to build on previous work rather than to start from scratch.
“The Constitutional Convention has the authority and duty to: draft and finalize a proposed Constitution of the Virgin Islands in plain language to include an official name of the Virgin Islands, a Preamble and an Amendment Clause in compliance with Pubic Law 94-584 (the Congressional authorization from 1976) and “use, revise, modify, substitute, or delete parts of the Revised Organic Act of 1954 and “use, revise, modify, substitute, or delete parts of the 5th Constitutional Convention draft document if the provisions in the proposed constitution are not inconsistent with the U.S. Department of Justice Memorandum dated February 23, 2010, or violate Public Law 94-584 2(b) (1) and “forward the proposed document to the Governor of the Virgin Islands for transmittal to the President of the United States.”
There is no mention of a third option, that is, of the delegates working up a completely new draft.
Proponents of adopting the Organic Act as the Constitution say it would avoid the stumbling blocks of the past – including an impasse between native rights concerns and federal equal protection laws – while still giving the Virgin Islands more independence and control over its affairs. As a document written by Congress, it can be amended only by Congress, but the Organic Act as the VI Constitution can be amended by the Virgin Islands.
Proponents point to the results of a non-binding referendum in the 2020 General Election as support for adopting the Organic Act. The referendum asked if voters wanted the Legislature to call a sixth convention for the purpose of adopting the Organic Act as the VI Constitution. Only 56 percent of the 18,130 people who went to the polls that election answered the question. Of those who did, 72 percent voted yes.
V.I. Delegate to Congress Stacey Plaskett has thrown her support to the Organic Act as Constitution. In May 2023, she introduced legislation that would have Congress recognize the Organic Act as the V.I. Constitution and ensure that the territory may amend it. If her bill were enacted, it appears it could make a Sixth Constitutional Convention moot.
However, there is still some opposition to using the Organic Act as the Constitution.
Although she was a co-sponsor on the local Legislature creating the Sixth Constitutional Convention, former Sen. Genevieve Whitaker had attempted – unsuccessfully – to amend it to make several changes, including removing the reference to the Organic Act. She argued that the Legislature did not have the authority to direct the process the convention would take.
She did ultimately vote for the bill with that provision still in it, but last week she told the Source that using the Organic Act as the Constitution “puts us backwards. That’s like going back decades.”
Under what is now law, the Sixth Constitutional Convention will be a pared-down version of prior bodies.
It will have only 15 delegates; others have had 30 or more members. Nine delegates will be required for a quorum to do business, but a minimum of 10 delegates will be required to approve a final, proposed constitution.
Candidates for delegate seats must be U.S. citizens, qualified Virgin Islands voters and “bone fide residents” of the Virgin Islands. Seven must be “elected from” St. Thomas; seven must be “elected from St. Croix,” and one must be “elected from” St. John.
The language is a little fuzzy about monetary compensation for delegates. One section makes it clear that delegates who are also active V.I. government employees will be paid their regular salary while they serve on the convention (although they are on unpaid leave while they campaign for the post) and won’t lose any of their accumulated leave or seniority because of the convention service.
But the section concerning delegates who work in the private sector raises some questions.
The Act states “Employers, must pennit (sic) delegates employed by the employer to attend the Convention or any of its committee meetings or hearings without termination from position. Every delegate must be compensated not more than $150 per day for each day or part thereof in which the employee is certified by the President of the Convention or the President’s designee as being in full attendance at the Convention or one of its committee meetings or hearings.”
Does the $150 ceiling apply only to delegates who work in the private sector or to all? Is it in lieu of, or in addition to, the person’s regular salary? Is the money coming from the convention’s coffers? If not, can the government compel a private employer to pay a particular amount to its employee while the employee is working for the convention?
The Act appropriates a total of $300,000 for the convention, evenly split between the government’s fiscal year 2024 and 2025 budgets.
In compliance with the congressional mandate for a constitution, the Act stipulates that the convention must produce a draft proposed constitution by Oct.. 31, 2025, and transmit it to the governor, who must send it to the U.S. President within 10 days of receiving it. If the federal government accepts it, the last step is to hold a referendum in the territory for the V.I. electorate to vote it up or down.
There is no money earmarked in the Act for the Elections System to cover the cost of that referendum or the cost of the election of delegates either. Both costs should be relatively minor given that the items will be included during a General Election – in 2024 for the selection of delegates and in 2026 for the binding referendum on the proposed document.