USVI Public Records

Document text

IN THE TERRITORIAL COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX: AT KINGSHILL RONALD A. BROW Plaintiff, CASE NO: CIVIL 774/1986 vs. ACTION FOR JUDICIAL REVIEW | GEORGE FARRELLY, DEPARTMENT OF PUBLIC SAFETY & GOV'T OF THE VIRGIN ISLANDS Defendants. Nee Se ae et ee et Ne ee eee ee et RENEE DOWLING, ESQUIRE 26 Company Street Christiansted, St. Croix U.S. Virgin Islands 00820 (ATTORNEY FOR PLAINTIFF) ROSALIE SIMMONDS~-BALLANTINE Assistant Attorney General Norre Gade 46 Charlotte Amalie, St. Thomas U.S. Virgin Islands 00801 (ATTORNEY FOR DEFENDANTS) SILVERLIGHT, J. * MEMORANDUM OPINION (April 21, 1987) This matter came before the Court on a petition for : i Writ of Review from a decision of the Government Employees Sevvien Uraission (hercinafter "G.E.S.C." or "“commission") upholding a recommendation of suspension of the petitioner, © Ronald Brow). = The respondents have moved for summary i The Court does not have in its file the written decision of the G.E.S.C., however, the parties in their Memoranda concede that the G.E.S.C. did in fact sustain the recommendation of suspension and did issue a written decision. Ronald Brow v. George Farrelly, et als. Civ. 774/1986 Memo Opinion judgment. For the reasons which follow, the motion will be granted. Before proceeding, a word must be said concerning this Court's decision to dispose of this matter in the absence of further oral argument. The docket in this case discloses a continuing disagreement as to the manner of presentation of the case between petitioner and his counsel. This disagreement continued until January 23, 1987 at which time petitioner's then counsel of record sought and was granted leave to withdraw. At that time, in open Court and on the record, petitioner was advised by the Court that he would be granted ten (10) business days within which to retain new counsel and to notify the Court of same, in default of which he, petitioner, would be deemed to | have elected to proceed pro-se. = On February 4, 1987, petitioner advised, the Court that | he was seeking counsel but had not been able to retain the | services of one. Nearly two months later, on April 2, 1987, a | new notice of appearance was filed on behalf of petitioner, | This, however, changes nothing. Petitioner's new counsel has” not submitted anything to this Court that would indicate a 2 1987. = On that same date, the Court set the matter down for dispostion of the pending summary judgment motion on March 16, i Ronald Brow v. George Farrelly, et als. Civ. 774/1986 Memo Opinion change in petitioner's position. It is extremely doubtful that counsel could add anything that would alter the outcome of this case given the record before the Court. Thus, the Court pro- | ceeds. On March 25, 1986, petitioner was served with a letter signed by respondent, George Farrelly, which purported to suspend the petitioner for 30 days. The following day, peti- | tioner served notice of appeal. On May 15, 1986 the petitioner was served with another letter signed by respondent which rescinded the suspension imposed in the initial suspension letter dated March 25, 1986. 3 In the same letter which 3 The regulations of the G.E.S.C. give the respondant authority to dismiss the charges against the petitioner without prejudice. Regulation § 530-7 provides: . §530-7 Voluntary and involuntary dismissals (a) At any time prior to the swearing of the first witness, the Appellant, or in the ctse of hearing. D.uught uaces section 530, the department head, my dismiss the action without | prejudice, subject however, to the possibility of assessment of costs to the opposing party. A party may dismiss once as a matter of course and all subsequent dismissals may only be i obtained with leave of the G.E.S.C. (b) If at the time an employee files a notice to appeal a proposed disciplinary action initiated by a department head, the ; G.E.S.C. cannot for some reason maintain a quorum for the pendency of such appeal, the disciplinary action will be dismissed without prejudice. (Footnote Continued) | Ronald Brow v. George Farrelly, et als. Civ. 774/1986 Memo Opinion rescinded the suspension, respondent informed petitioner that he | was recommending that the petitioner, be suspended. 4 Once again, a notice of appeal was filed on May 23, 1986. The | G.E.S.C. thereafter conducted a hearing, which included several continuances, and rendered a decision which was served on the | petitioner on July 8, 1986. | Pursuant to Rule 56 of the Fed. Rules of Civ. Pro., summary judgment is appropriate when there is no genuine issue | as to any material fact and the moving party is entitled to judgment as a matter of law. The nonmoving party must be able | to show a factual dispute warranting a trial. Celotex Corp vs. Catrett, 106 S. Ct. 2548, 2552-53 (1986). The Court has considered all the pleadings on file and the entire record of the proceedings before the G.E.S.C., including the exhibits that were admitted below and now concludes that no factual material | issue is in dispute. The matter is, therefore, ripe for disposition. (Footnote Continued) (c) Unless otherwise stated, all dismissals not within the meaning of subsection (a) or (b) shall be with prejudice except | that dismissals for failure to adhere strictly to the notice | requirements shall be without prejudice to the reinstitution of | the matter. 4 The Commissioner of Public Safety does not have the authority to suspend an employee, but he may recommend that the | employee be suspended. 3 V.1I.C. § 530 (a); Reefer v. Government of the Virgin Islands, 17 V.I. 373, 376 (D.V.I. I980). Ronald Brow v. George Farrelly, et als. Civ. 774/1986 Memo Opinion Petitioner asserted during the administrative proceed- ings and continues to assert that the G.E.S.C. was without | jurisdiction to conduct the hearing of the charges against him. According to petitioner, when the suspension letter was served upon him on March 25, 1986 and he subsequently gave notice of appeal the following day, the G.E.S.C. had 30 days within which it was required to meet to conduct a hearing on the dispute. See 3 V.I.C. § 530 (b) (Cumm. Supp. 1985). The G.E.S.C., however, concluded that the charges in the suspension letter dated March 25, 1986, which suspension was later rescinded, were not before the commission but that the | recommendation of suspension contained in the letter dated May 15, 1986 and which was appealed on May 23, 1986, was properly before the commission. Because petitioner was | reinstated with respect to the suspension period recited in the_ March 25, 1986 suspension letter, the G.E.S.C. madeadetermi- nation that it had jurisdiction over the May 15, 1986 recommen- dation -f£ cuspencicm. Ls tec end the May 23, 1986 appeal there- from and proceeded to dispose of the matter. In fact, the G.E.S.C. issued its own order directing that the petitioner be | reinstated. This Court agrees with the conclusion reached by the | G.E.S.C. Whether petitioner received the relief of reinstate- | ment to which he was entitled from respondent, George | Ronald Brow v. George Farrelly, et als. Civ. 774/1986 Memo Opinion Farrelly, or from the G.E.S.C. is of no consequence. Since the petitioner has already received the relief to which he is entitled, he cannot be heard to complain. Petitioner also argues that the regulations of the G.E.S.C. are invalid because they are inconsistent with 3 V.1.C. § 530, a duly legislated enactment. This argument is clearly without merit and is therefore, summarily rejected without discussion. Since the G.E.S.C. properly assumed jurisdiction to hear the charges filed against the petitioner, this Court need only determine whether there is substantial evidence in the record to support the decision of the G.E.S.C. to sustain the recommendation of suspension. Donastorg v. Gov't Employees Service Commission, 285 F Supp. III, 6 V.I. 368 (D.V.I. 1968). The Court concludes that the decision of the G.E.S.C. sustaining ; the recommendation of suspension is supported by substantial : evidence and the petition fer the Writ of Review should therefor | be dismissed. 2 2 A writing that purports to be a motion to amend the petition has been filed by the petitioner over his signature, notwithstanding the appearance of counsel on his behalf. This motion is clearly redundant and lacking in merit and is summarily denied. Ronald Brow v. George Farrelly, et als. Civ. 774/1986 Memo Opinion Dated: April.2/, 1987 ENTER: IRWIN J. STLVERL IGE JUDGE Nw ATTEST: VIOLA E. SMITH ADMIN. /CLERK OF THE COURT BY Ya (Bien D eoury/C CLERK