The V.I. Supreme Court panel hearing oral arguments Tuesday in Gov. Albert Bryan Jr.’s lawsuit over changes to the composition of the Water and Power Authority governing board by the V.I. Legislature seemed skeptical that the law infringes on the powers of the executive branch, as the governor has argued.
Central to the issue is WAPA’s status as an autonomous agency — “separate and apart from the government of the Virgin Islands,” Associate Justice Ive Arlington Swan noted — that was created in 1964 by an act of the 5th V.I. Legislature.
The three-judge panel — Chief Justice Rhys S. Hodge, Associate Justice Maria M. Cabret, and Swan — returned to this fact again and again as they sought to understand how legislative amendments to the composition of the board infringe on the governor’s powers when he may still nominate all the members and remove them for cause, and when it is the Senate’s job to pass and amend laws.
Act 8472 was passed in May 2021. It reduced the WAPA board from nine members to seven, cut the number for a quorum from five to four, and the number of cabinet appointees from three to one — specifically, the director of the V.I. Energy Office. It also requires members to reside in the districts they represent and for all non-government members to have formal education in any one of several fields, from energy production to information technology.
Bryan vetoed the measure two weeks later, saying it was an attempt to remove the number of individuals directly appointed by the governor from amongst cabinet-level heads of departments and agencies, which put it in violation of the Revised Organic Act of 1954, the territory’s de facto constitution. The Senate overrode that veto in August 2021.
One month later, Bryan filed suit through the V.I. Justice Department, which said in a statement at the time that the legislation was “unconstitutional and unlawfully infringes upon the power and authority of the executive branch and chief executive, in violation of the separation of powers doctrine under the Revised Organic Act of 1954 and the Constitution of the United States.”
The Superior Court denied Bryan’s request for a permanent injunction last March and lifted the temporary injunction. An appeal was filed on Sept. 18, asking the Supreme Court to find the Superior Court’s decision incorrect.
On Tuesday, Bryan’s attorney, Ian S.A. Clement, argued before the justices that the legislation was a pretext for removing the power of the government, that the governor needs the flexibility to nominate whom he sees fit, and that designating the Energy Office director as the sole cabinet appointee is an unconstitutional restriction. He also said that without reliable cabinet members, the WAPA board might struggle to form a quorum, as he said happened during a crucial meeting about undergrounding utility’s infrastructure on St. John.
Those arguments came under fire from the Legislature’s legal counsel, Amos Carty Jr., and the justices themselves.
“It is the board who governs the authority, not the governor,” said Carty. While the utility is part of the executive branch, it is an autonomous entity of the government of the Virgin Islands and not part of an executive department, he said, adding that the government has conflated the two in bringing the lawsuit.
Carty noted that Act 8472 was passed on the same day as Act 8452, which sets qualifications for Public Services Commission members, yet Bryan vetoed the former but not the latter. As another example, Act 8845 became law in 2021, limiting the number of boards that cabinet members may serve on to two, he said.
Additionally, the law does not state that the director of the V.I. Energy Office must be the chairman of the WAPA board, that is up to the board to decide, Carty said.
Moreover, the 5th Legislature created WAPA in 1964, and has amended its governing legislation prior to Act 8472, including in 1968, 1978, and in 1984, when it provided for the removal for cause of existing cabinet members, he said.
Cabret questioned why Act 8472 violates the separation of powers under the Revised Organic Act because it does not disturb the power of the governor to appoint and remove board members. Rather, it simply reduces the membership and leaves the Energy Office director as the only cabinet member on the board.
Hodge noted that the Legislature set the composition of the V.I. Port Authority board — also an autonomous agency — without challenge. In that case, four members of the governor’s cabinet serve on the board, including the Tourism and Public Works commissioners, attorney general, and chairperson of the Economic Development Authority Board. He also remarked that the legislation makes it easier, not harder, for the WAPA board to form a quorum, given the reduced number of members required.
Theoretically, the Legislature could determine tomorrow that there can be no more cabinet members on boards, he said. And, said Swan, what’s to say that cabinet members possess some special talent that private professional citizens do not. “Cabinet members are not the only ones with expertise,” he said.
“WAPA is a creature that was created very, very long ago,” and given a measure of independence, said Swan. It can sue and be sued, it can enter contracts and issue bonds of its own volition, he said, adding that none of the executive branch departments “come close to having the power that WAPA has.”
Additionally, its budget, which is submitted to the board and then goes to the Legislature for approval, is separate from the V.I. government’s, said Swan.
“You’ve got to start with the premise that WAPA is not an executive branch department,” he said. It is independent and, while governmental in nature because of the essential services it provides, is controlled by a policy-making board.
While the government has had to bail out the utility to the tune of some $4 million a month because “for WAPA to fail would be catastrophic,” the fact that it has had to beg for money does not change its status as “separate and apart from the V.I. government,” said Swan.
