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FOR PUBLICATION IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX GREGOREESE WILLOCKS-GONZALEZ, Petitioner, Case No. SX-16-CV-224 vs. PUBLIC EMPLOYEES RELATIONS BOARD and GOVERNMENT OF THE VIRGIN ISLANDS DEPARTMENT OF JUSTICE, ACTION FOR WRIT OF REVIEW Respondents. Cite as 19 V.I. Super 108 APPEARANCES: KYE WALKER, Esq. The Walker Legal Group Christiansted, St. Croix, USVI Attorney for Petitioner HENRY C. SMOCK, ESQ. Law Office of Henry C. Smock Charlotte Amalie, St. Thomas, USVI Attorney for Respondent PERB Su-LAYNE WALKER, Esq. Assistant Attorney General St. Thomas, USVI Counsel for Respondent V.I. Department of Justice MEMORANDUM OPINION Willocks-Gonzalez v. PERB Civil No. SX-16-CV-224 Cite as 19 V.I. Super 108 Memorandum Opinion {1 This matter is before the Court on Gregoreese Willocks-Gonzalez’ Petition for Writ of Judicial Review of a decision of the Public Employees Relations Board (“PERB?” or the “Board”).! In its March 10, 2016 Decision and Order, the Board found that while employed by the Government of the Virgin Islands Willocks-Gonzalez was not a regular employee for purposes of 3 V.I.C. § 530, and as a result she had no right of appeal to PERB of her termination from employment. Accordingly, the Board determined that it lacked jurisdiction over the appeal and dismissed the appeal. This Court affirms the Board’s decision. I. Facts and Procedural Background {2 In 2003, Gregoreese Willocks-Gonzalez heard about an opening for a forensic chemist with the Virgin Islands Department of Justice (the “Department” or “DOJ”). Interested in the position, she went to the Department, inquired about the position, and submitted a resume. (PERB—54). She was called for an interview and eventually offered the position. She testified that, prior to receiving her offer, she was not certified for the position by the Office of Personnel. (PERB—55). {3 On November 19, 2003, Willocks-Gonzales signed an Acceptance letter from the Office of the Governor. The letter stated that Willocks-Gonzales was to be appointed to the position of forensic chemist with DOJ, with employment effective 1 Although Gonzalez initiated her appeal with the Court through a Petition for Writ of Review, she is invoking the Court’s appellate jurisdiction as of right. “Because appeal to the Superior Court... from [PERB] under section 530a of title 3 . . . is of right and not by petition for writ of review, [Gonzalez] should not have filed a petition. [She] should have filed a notice of appeal.” Baumann v. Pub. Emples. Rel. Bd., 68 V.1. 304, 339 n.6 (V.I. Super. Ct. 2018). Nevertheless, the Court can and will convert the petition into a notice of appeal. See id; see also id. at 325-39 (discussing the differences between appeal and review by writ). Willocks-Gonzalez v. PERB Civil No. SX-16-CV-224 Cite as 19 V.I. Super 108 Memorandum Opinion February 9, 2004. (PERB—123). On November 21, 2003, Willocks-Gonzalez wrote to the Attorney General expressing her acceptance of the position. (PERB—116). {4 On December 1, 2003, Willocks-Gonzales signed a memorandum from the Attorney General that stated: In accordance with Act No. 5336, Section 6(c) and Section 8(a), I am electing to be placed in the EXEMPT SERVICE of the Government of the Virgin Islands by accepting the position of Forensic Chemist at $42,000, in the Department of Justice.” (PERB—134). q5 In a January 26, 2004 letter, the Governor wrote to Willocks-Gonzalez, accepting the recommendation of the Attorney General and appointing Willocks- Gonzalez to the position of forensic chemist, effective February 9, 2004. (PERB— 119). "6 In another letter dated January 26, 2004, the Director of Personnel wrote to Willocks-Gonzalez, congratulating her on her appointment. The letter stated in part: Please be advised that although the position to which you are appointed to is a permanent one, you do not attain status as a permanent and regular employee (in this position) until you satisfactorily completed a probationary period. The probationary period is intended to be a working test period during which time your immediate supervisor and department head will evaluate your work performance. At the end of the probationary period, your department head will be required to certify whether you have performed satisfactorily. If at that time your services have been satisfactory, you will automatically attain permanent and regular status in the position... . Willocks-Gonzalez v. PERB Civil No. SX-16-CV-224 Cite as 19 V.I. Super 108 Memorandum Opinion (PERB—121).? A Notification of Personnel Action (“NOPA”) dated January 26, 2004 reflects Willocks-Gonzalez appointment to the position of Forensic Chemist in the Exempt Service. (PERB—86). 97 | Willocks-Gonzalez would eventually work for DOJ for approximately 12 years. Her duties included analyzing physical evidence and presenting the information to the prosecution and defense in court proceedings. Willocks-Gonzalez testified that while she handled confidential information related to drug testing results and court cases, she never in her time of working had a confidential relationship with any policy makers or with any of the Attorneys General. (PERB—51, 59).3 She also testified, and PERB found, that she was never reprimanded and never received any negative evaluations during her time at DOJ. (PERB—5, 48). Nevertheless, on December 21, 2015, Willocks-Gonzalez received a letter from Governor Kenneth Mapp indicating that her employment would be terminated effective at 5:00 pm that day. The termination letter did not state, and Willocks-Gonzalez never received, a reason for her termination. (PERB—63). {8 On December 29, 2015, Willocks-Gonzalez filed her appeal with PERB, seeking relief pursuant to 3 V.I.C. § 530. PERB held hearings on January 21 and February 26, 2016. Willocks-Gonzalez, representing herself, was the only witness to testify. 2 The letter was unsigned but was submitted into the PERB record by DOJ as part of Willocks- Gonzalez’ Official Personnel File. See PERB—77. 3 The Government did not challenge this testimony at Willocks-Gonzalez’ PERB hearing. Willocks-Gonzalez v. PERB Civil No. SX-16-CV-224 Cite as 19 V.I. Super 108 Memorandum Opinion The Board issued a decision dated March 10, 2016, whereby it found that it did not have jurisdiction to hear her appeal. Il. Jurisdiction and Standard of Review 49 “The Appellate Division of the Superior Court of the Virgin Islands has jurisdiction over all appeals from ‘any party aggrieved by any final order of the PERB issued under section 530 or 531’ of title 3 of the Virgin Islands Code.” Baumann v. Pub. Emples. Rel. Bd., 68 V.1. 304, 318 (V.I. Super. Ct. 2018). An application for such review must be filed within 30 days after the date of the Board’s Order and must name the PERB as a party respondent. 3 V.I.C. § 530a. Willocks-Gonzalez filed her appeal within 30 days of the PERB’s Decision and Order and thus it was timely, and the Court has jurisdiction. 410 “When hearing an appeal from the PERB, the Superior Court functions as an appellate court.” V.I. Narcotics Strike Force v. Gov't of the V.I. Pub. Emples. Rel. Bd., 60 V.I. 204, 218 (V.I. 2013) (citing 3 V.I.C. § 530a(a)-(c)). “[A]I] questions of fact determined by the PERB shall be conclusive, if supported by substantial evidence in the record considered as a whole,” 3 V.I.C. § 530a(b), “and the board's legal findings are afforded plenary review,” Clark v. V.I. Housing Authority, Super. Ct. Civ. No. ST- 16-CV-745, 2017 V.I. LEXIS 81, at *2 (V.I. Super. Ct. May 26, 2017) (unpublished). “Substantial evidence is such evidence that a reasonable mind would accept as adequate to support an agency's conclusion.” Gov't of the V.I. v. Crooke, 54 V.1. 237, 256 (V.I. 2010) (citations and internal quotations omitted). Willocks-Gonzalez v. PERB Civil No. SX-16-CV-224 Cite as 19 V.I. Super 108 Memorandum Opinion 411 “The rules of procedure of the Superior Court regarding a writ of Review shall govern the appeal proceeding.” 3 V.I.C. § 530a(a). “No objection not made before the PERB shall be considered in a review by the Superior Court, unless the failure to make the objection is excused by the court because of extraordinary circumstances.” Id. § 530a(b). “In reviewing a final order of the PERB, the court may enforce the order, modify the order and enforce it, set the order aside, or return the matter to the PERB with instructions for further proceeding[s] ....” Id. § 530a(c). III. Discussion a. Only regular employees in the classified service may appeal to PERB pursuant to 3 V.I.C. § 530. q12 “The hallmark ofa constitutionally protected property interest is an individual entitlement that ‘cannot be removed except “for cause.”” Richardson v. Felix, 856 F.2d 505, 509 (3d Cir. 1988) (quoting Logan v. Zimmerman Brush Co., 455 U.S. 422, 430 (1982)). In the realm of public employment, not all employees have a proprietary interest in their continued employ such that they may be terminated only for cause. “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. [She] must have more than a unilateral expectation of it. [She] must, instead, have a legitimate claim of entitlement to it.” Bd. of Regents uv. Roth, 408 U.S. 564, 577 (1972). Whether or not an employee has such an interest, and thus can be fired only for cause, derives from state or territorial law. Id.; McDaniels v. Flick, 59 F.3d 446, 458 (8d Cir. 1995) (“The question of whether an Willocks-Gonzalez v. PERB Civil No. SX-16-CV-224 Cite as 19 V.I. Super 108 Memorandum Opinion employee has a property right in continued employment is a question of state law.”) (citing id.). 413 In the Virgin Islands, “regular employees of the . . . Government are [the] category of public employees that have a statutorily created property interest in continued employment, protected by due process.” Fleming v. Cruz, 62 V.I. 702, 715 (V.I. 2015) (citing 3 V.I.C. § 530; Iles v. de Jongh, 638 F.3d 169, 174 (3d Cir. 2011)). That interest springs from title 3, section 530 of the Virgin Islands Code, which states: Notwithstanding any other provision of law . . . before a head officer of an executive department, agency or instrumentality of the Government dismisses, demotes or suspends a regular employee of a department, agency or instrumentality of the Government, the head officer shall furnish the employee with a written statement of the charges against the employee. The employee shall have ten days following the date of receipt of the statement of charges to appeal the proposed action to [the PERB]. The appeal must be in writing, and the Board must provide a copy to the head officer and the Attorney General. (emphasis added). The Virgin Islands Supreme Court has held that only regular employees of the Virgin Islands Government are afforded due process protection. Fleming, 62 V.I. at 715 (citing Iles, 638 F.3d at 174 (“(U]nder the employee termination procedures of § 530, [only] employees who are regular employees may be terminated only for cause, thus granting them a property interest in continued employment.”)). 14 Inother words, “not all ‘career service’ employees have due process protection,” or may be fired only for cause, “but rather, only those who also meet the definition of ‘regular’ employees.” Frazer v. Police Benevolent Ass'n, Local 816, Super. Ct. Civ. No. ST-13-CV-168, 2017 V.I. LEXIS 177, at *12 n. 75 (V.I. Super. Ct. 2017) (citing Iles, Willocks-Gonzalez v. PERB Civil No. SX-16-CV-224 Cite as 19 V.I. Super 108 Memorandum Opinion 638 F.3d at 173-74); Williams-Jackson v. Pub. Emples. Rels. Bd., 52 V.1. 445, 453 (V.I. 2009) (“[H]olding a position in the career service does not, by itself, entitle a government employee to PERB review under section 530. ‘To receive [that] benefit ... {an employee] must have been at the time of [her or his demotion] not only a career service employee but also a regular employee.”) (quoting Richardson, 856 F.2d at 509).4 b. The definition of ‘regular employee’ in 3 V.I.C. § 530(a)(2)(C) is harmonious with the definition of ‘regular employee’ in 3 V.I.C. § 451. {15 To receive the benefits of section 530, Willocks-Gonzalez must have been, at the time of her termination, not only a career service employee but also a regular employee. Title 3, chapter 25, under which § 530 falls, provides two definitions of ‘regular employee’. At issue is whether those two definitions are consistent. Willocks- Gonzalez argues they are not. The Court will discuss the older definition first, as (U]nder Virgin Islands law, public employees are divided into (1) “career service” and (2) “exempt service” employees. . . . [A]n employee is in the career service unless the employee holds an exempt position described in 3 V.I.C. § 451a(b)(1)-(8).... Employees who are not exempt are then considered career service employees. The career service category is further divided by § 451 into two subcategories: employees who are “regular” and those who are “not regular,” respectively. Thus, the categories of career service employees and regular employees are not interchangeable. Iles v. de Jongh, 638 F.3d at 173 (citations and internal quotations omitted); Baumann, 68 V.I. at 319- 20 (quoting id.). Willocks-Gonzalez v. PERB Civil No. SX-16-CV-224 Cite as 19 V.I. Super 108 Memorandum Opinion that one has been interpreted by courts in the Virgin Islands, and its interpretation is not disputed here (as the second, newer definition is).5 416 Under the General Provisions subchapter of chapter 25, ‘regular employee’ is defined as, “an employee who has been appointed to a position in the classified service in accordance with this chapter after completing his working test period.” 3 V.LC. § 451. Appointment to a position in the classified, or career, service has certain requirements. [It] requires that a notice of the vacancy be given to the Director of Personnel, that candidates for the position take competitive examinations, that a list of eligible candidates be provided by the Division of Personnel, and that the successful candidate appointed from that list complete working test or probationary period. Williams-Jackson, 52 V.1. at 453 (citations omitted); 3 V.I.C. § 521 (“Except as otherwise specified in this chapter, all appointments and promotions to positions in the classified service shall be made on the basis of merit and fitness, to be ascertained by competitive examinations.”). An employee must undergo her probationary period immediately after beginning employment. 3 V.I.C. § 527. Under the older definition then, to have regular employee status—and thus a proprietary interest in continued employment—an employee must have been appointed to the career or classified service® through the competitive appointment process, or through one of the exceptions to the competitive appointment process detailed in chapter 25, see, 3 V.I.C. 5 It appears that no Virgin Islands court has yet interpreted and applied the newer definition. 6 “The terms ‘career service’ and ‘exempt service’ are intended to be synonymous with the terms ‘classified service’ and ‘unclassified service’, respectively, as . . . used in [the Code].” 3 V.I.C. § 451a. Willocks-Gonzalez v. PERB Civil No. SX-16-CV-224 Cite as 19 V.I. Super 108 Memorandum Opinion § 521 (requiring competitive examinations “[e]xcept as otherwise specified in this chapter”), and must have completed her probationary period. 417 However, a second definition of ‘regular employee’ was added to the V.I. Code in 2010, and that second definition has fueled the dispute here as to what qualifies as a regular employee for purposes of § 530. The newer definition, found at § 530(a)(2)(C), reads: “Regular employee” means an employee who (i) has been appointed to a position in the classified or career service or served in a temporary position for more than two years in a department or agency of the executive branch or in an instrumentality ... and (ii) who is not on contract, is not on probation, and therefore subject to dismissal, demotion or suspension, only for cause.” 3 V.I.C. § 530(a)(2)(C). While both definitions require that a regular employee be appointed to a position in the classified service, the newer definition has lost the words “in accordance with this chapter” that were present in the older definition. Those words mean, essentially, appointment through the competitive examination process. See Williams-Jackson, 52 V.1. at 451-52. "18 Willocks-Gonzalez argues that the omission of that language in the new definition is significant. She argues that, because the newer definition omits “in accordance with this chapter”, an employee that has obtained classified or career 7 Section 530 in fact says, “[r]egular employee means an employee who .. . as defined in subparagraph (B) of this subsection or and who is not on contract ... .” (emphasis added). In Baumann, Judge Robert A. Molloy of the Superior Court, recognizing the obvious irreconcilability of “or and”, completed a thorough and well-reasoned analysis of the statute and concluded that “{t]he word ‘and’ in Section 530(a)(2)(C)(i) controls and the word ‘or’ is implicitly repealed.” 68 V.I. at 351-54. The parties did not argue the point. The Court finds the Baumann analysis persuasive and adopts the same interpretation. Willocks-Gonzalez v. PERB Civil No. SX-16-CV-224 Cite as 19 V.I. Super 108 Memorandum Opinion status despite not having completed the competitive process would nevertheless have obtained regular employee status. The newer definition, she argues, thus casts a broader net and includes a wider range of classified employees within the definition of regular employee, and that she is included in the new definition. PERB argues that the two definitions are in harmony, that the amendment “essentially changed the sentence structure” and that it was intended to clarify the definition of regular employee. PERB’s Oppo. to Brief of Petitioner 4. DOJ similarly argues that the newer definition is no broader or narrower than the old, that both definitions require appointment through the Personnel Merit System, and the newer definition seeks to explain the older and has more “artful” language. DOJ’s Oppo. to Petitioner’s Petition 4-5. With the parties in dispute about the meaning and effect of the newer language, a bit of statutory interpretation is required. 8 The Virgin Islands Supreme Court has made clear that a person’s NOPA is not determinative of their status as classified or exempt, that a person is classified if they do not fall into an exempt category 3 V.I.C. § 451a(b) regardless. Williams-Jackson, 52 V.I. at 452; id. at 453 (“Accordingly, despite the DOE's contractual designation of Williams-Jackson's position as exempt, the position was a classified, career service position” because it did not fit within one of the exceptions listed in § 451la(b).). The Supreme Court has made clear however, that even if an employee is deemed classified or career, if she was not hired through the competitive examination process, she cannot become a regular employee. Id. at 453-46 (remanding back to PERB to determine if the employee was “properly appointed to her career service position with the DOE” and therefore a regular employee). The Court assumes for purposes of this decision that Willocks-Gonzalez was a classified employee, despite what her NOPA said: there is no evidence on the record, and the Government provided no evidence, that the Governor submitted Willocks-Gonzalez’ appointment to the Legislature for approval. That would be the only potential exempt category under which Willocks-Gonzalez’ position might fall: {One exempt position is] a position of a policy-determining nature when the position is so designated by the Governor and submitted to the Legislature; and an employee who is a special assistant, or who is on special assignment to, or whose position requires a confidential relationship with a policy-making official when the position is so designated by the Governor and submitted to the Legislature. 3 V.LC. § 451a(b)(8). The parties do not argue that Willocks-Gonzalez’ position fell into any other exempt category. Willocks-Gonzalez v. PERB Civil No. SX-16-CV-224 Cite as 19 V.I. Super 108 Memorandum Opinion 419 “The first step when interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning. The inquiry ends if the statutory language is unambiguous and the statutory scheme is coherent and consistent.” Brady v. Cintron, 55 V.I. 802, 821 (2011) (citations omitted). A plain reading of § 530(a)(2)(C) requires in relevant part that a regular employee has “been appointed to a position in the classified or career service ....” The Court has no difficulty discerning what that means. “It is axiomatic that a statute should be read as a whole.” Department of Energy v. Ohio, 503 U.S. 607, 630 (1992) (White, J., concurring in part, dissenting in part). Section 530 falls under title 3, chapter 25, which is entitled Personnel Merit System, Compensation, Expenses and Miscellaneous Benefits and contains the portion of the Code addressing those topics. It is the same chapter under which § 451 and the older definition of regular employee fall. Additionally, and more telling, § 530 falls under the same subchapter, entitled Tests, Appointments, Promotions, and Dismissals, as § 521, Competitive examinations. Section 521 directs that, “[e]xcept as otherwise specified in this chapter, all appointments and promotions to positions in the classified service shall be made on the basis of merit and fitness, to be ascertained by competitive examinations.” (emphasis added). A plain reading of § 530 together with § 521—two sections of the same subchapter located in the same Personnel Merit System chapter—clearly states that a regular employee must have been appointed to a position in the classified service, and that appointment must be based on merit and fitness as ascertained by competitive examinations. There is nothing within § 530 to indicate that the Willocks-Gonzalez v. PERB Civil No. SX-16-CV-224 Cite as 19 V.I. Super 108 Memorandum Opinion Legislature intended to abrogate the competitive examination requirements for appointments to the classified service. 120 Nor does the legislative history support that finding. Act 28-0142 (VI. Reg. Sess. 2009), which amended the relevant portions of § 530, stated as its Bill Summary: This Bill seeks to clarify the applicability of 3 V.I.C. §530(a) to regular employees. The former paragraph of §530(a) was reconfigured to make the section more readable and easier to follow and understand. There is nothing in that language to suggest that by omitting “in accordance with this chapter,” the Legislature intended to carve out an exception to the normal, mandatory process for appointments to the classified service. “[R]epeal by implication is generally disfavored and should occur only when the later statute expressly contradicts the original act or when such a construction is absolutely necessary in order that the words of the later statute shall have any meaning at all.” V.I. Public Services Commission v. V.I. Water and Power Authority, 49 V.I. 478, 486 (V.I. 2008). Neither of those is the case here. Section 530(a)(2)(c) might be interpreted as broadening the applicability of § 451only in that it explicitly added employees who have “served in a temporary position for more than two years in a ® Willocks-Gonzalez correctly notes that the Virgin Islands Supreme Court has held that, “[w]hen two statutes irreconcilably conflict, the more recent statute controls.” Simmonds v. People, 59 V.I. 480, 501 (V.I. 2013) (quoting In re Southern Scrap Material Co., LLC, 541 F.3d 584, 593 (5th Cir.2008). However, it also reiterated in Simmonds that “repeal by implication ... should occur only when the later statute expressly contradicts the original act.” 59 V.I. at 501. And it has also held that, “when a general and specific act are in pari materia, i.e., they address the same subject matter, they should be harmonized if possible.” McIntosh v. People of the V.I., 57 V.I. 669, 685 (V.I. 2012) (citation and internal quotations omitted). The two sections of the Code are easily harmonized here. Willocks-Gonzalez v. PERB Civil No. SX-16-CV-224 Cite as 19 V.I. Super 108 Memorandum Opinion department or agency of the executive branch or in an instrumentality.” However, its definition vis-a-vis appointments to the classified service in no way conflicts with the definition provided by § 451. The newer definition of regular employee sits comfortably with the older one, and it would be inappropriate for the Court to find the newer definition implicitly repealed the requirement that regular employees be appointed pursuant to the competitive examination process. This is especially true when the sections are read together. {21 In arguing for a broader interpretation of § 530, Willocks-Gonzalez places faulty reliance on Iles. There the United States Third Circuit, while recognizing the newer definition of regular employee in § 530, determined that the definition should not apply to the suit before it because the suit was commenced before the new definition took effect. Therefore, the Third Circuit court did not interpret the new definition or make any determination as to whether the definition, while new in language, was new in effect. In the same vein, Willocks-Gonzalez’s reliance on McIntosh-Luis v. DeJongh, 2012 U.S. Dist. LEXIS 45362, a case from the District Court of the Virgin Islands, is unconvincing. In that case, the District Court wrote that the Third Circuit in Iles, “noted that a 2010 amendment to 3 V.I.C. § 530 removes the requirement that a ‘regular’ employee have been appointed in accordance with the requirements of Chapter 25....” Id. at *18. More precisely, the Third Circuit in Iles instead wrote, “Gerard and Iles also contend, however . . . that the amendment removes the requirement that a ‘regular’ employee have been appointed in accordance with the requirements of Chapter 25 of the Virgin Islands Code.” (emphasis added). Willocks-Gonzalez v. PERB Civil No. SX-16-CV-224 Cite as 19 V.I. Super 108 Memorandum Opinion Yet as explained above, because the Third Circuit determined that the 2010 amendment did not apply to the case before it, the court never decided whether the newer definition removes the competitive examination requirements. {22 The Court finds the definitions for regular employee in 3 V.I.C. §§ 451 and 530 are in harmony, and that § 530 does not broaden the spectrum of employees entitled to ‘regular employee’ status. 423 Turning to Willocks-Gonzalez case, even assuming she is a classified employee, the record reflects that: she was not appointed through the normal competitive process!®; that she was not appointed under any exception outlined in chapter 2511, and; that she was not hired to and did not serve in a temporary position!2. Based on those facts, Willocks-Gonzalez could not have obtained regular employee status. 10 Willocks-Gonzalez took no competitive examination (3 V.I.C. §§ 521-24) and was not selected through a list of eligible candidates provided by the Division of Personnel (3 V.I.C. § 527). 11 In Williams-Jackson, the Virgin Islands Supreme Court discussed one such exception found under 3 V.I.C. § 457, which provides an exception for appointments made within the Department of Education. That exception is not applicable here, and the Court located no other applicable exception in chapter 25. Also, Willocks-Gonzalez was not hired as a provisional, emergency, transitional, or temporary appointment, which appointment might be construed as an exception under 3 V.I.C. §§ 528- 29. See Williams-Jackson, 52 V.I. at 455 (“While the Executive Branch is authorized to make provisional, transition, or emergency appointments to career positions without following the procedures discussed above, these appointments can only be made under limited circumstances and for limited terms.”). 12 See 3 V.I.C. 528b: (a) Temporary appointments. (1) (A) “Temporary appointment” means an appointment of an employee made to a position for a specified timeframe not to exceed a period of one year. (B) Temporary appointments must be filled utilizing certification and appointment procedures which are the same as if the appointment is permanent, (2) In the event that a temporary appointment is made to work on a special project or to fill in for an employee who is out on long term leave and it is necessary to extend the leave to ensure the efficient continuation of Willocks-Gonzalez v. PERB Civil No. SX-16-CV-224 Cite as 19 V.I. Super 108 Memorandum Opinion 24 Willocks-Gonzalez makes the counter-argument that, “[e]ven if the merit system ... was strictly applied [she] is still considered a regular employee because her working test period after her interview constitute[d] a competitive examination.” Resp. to Oppositions Filed by Defs.’ 4-5. Yet she cites no legal authority for that proposition and the Court has found none. As is clear from the statute, the competitive examination and probationary period are separate prerequisites to gaining regular employee status. {25 Because Willocks-Gonzalez did not participate in and was not appointed pursuant to the competitive examination process, she was not a regular employee and PERB did not have jurisdiction to hear her appeal.3 V.I.C. § 530. The Board correctly concluded it had no jurisdiction.13 IV. Conclusion {26 Under Virgin Islands law, only classified, regular, public employees are entitled to the due process protections of 5 V.I.C. § 530 and are entitled to a right of appeal to PERB of a termination decision. Under 3 V.I.C. §§ 451 and 530, a regular employee is one who has been appointed to the classified service through the competitive appointment process and has completed her working probationary government services, the temporary appointment may be extended, but in no case may the extension last for a period in excess of one additional year. 13 The Court recognizes the circumstances that Willocks-Gonzalez is placed in: she was likely a classified employee; she was told that she would be given regular status after completing a probationary period; and she went on to work for the Government for 12 years without any reprimands; yet she is denied regular employee status and the due process protections of section 530. However, the case law compels these findings. Willocks-Gonzalez v. PERB Civil No. SX-16-CV-224 Cite as 19 V.I. Super 108 Memorandum Opinion period. Willocks-Gonzalez was not appointed to the classified service through the process mandated by Personnel Merit System. Accordingly, she was not a regular employee entitled to appeal her termination to PERB. PERB correctly found it lacked jurisdiction to hear her appeal. The Court will affirm and enforce the Decision and Order. 427 An Order consistent with this Memorandum follows. DATED: August 2019 V ted Latzolle, Kathleen Mackay Judge of the Superior Court of the Virgin Islands ATTEST: ESTREL EORG Clerk mS aye DONOVAN | oN Clerk Superviso 1S, iF 20 If