                     IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
                                 DIVISION OF ST CROIX


  LUZ C BROWNE

                                        Appellant           CIVIL NO sx 2015 CV 00175
                     v

 PUBLIC EMPLOYEES RELATIONS                                       P131311: ggfégm
 BOARD VIRGIN ISLANDS LOTTERY


                                        Apgellees


                                    MEMORANDUM OPINION
T 1    THIS MATTER is before the Court on Appellant Luz C Browne 5 Amended Petition for
Writ of Judicial Review (‘ Notice of Appeal”), ﬁled May 14, 2015;' Order entered February 26,
2024 setting schedule Appellant 3 Brief in Support of Her Appeal ( Brief ) ﬁled April 29 2024
and Appellee Public Employees Relations Board’s (“PERB ’ or “the Board ’) Bn'ef in Opposition
(“Opposition ), ﬁled June 3, 2024, which Appellees Virgin Islands Lottery Commission (“VIL ’)
and Government of the Virgin Islands (‘ GVI”) join Appellant’s Notice oprpeal and Briefappeal
the April 20 2015 Decision and Order of PERB ( Decision ) in PERB GSA 15 37X following
the PERB hearing that began March 19 2015 and concluded April 9 2015 The Decision found
that Browne was not a “regular employee under 3 V l C § 530 and therefore had no right to
appeal to PERB her termination from her employment at VlL Accordingly, the Board determined
that it lacked jurisdiction and dismissed the appeal For the reasons set forth below, the Decision
will be afﬁrmed

1] 2   “Any party aggrieved by any ﬁnal order of the PERB issued under section 530 or 53! of
this chapter [title 3, chapter 25 of the Virgin Islands Code] may appeal to the Superior Court of
the Virgin Islands       ’ wherein the “rules of procedure of the Superior Court regarding a writ of
Review shall govern the appeal proceeding       3 V I C § S30a(a)




' Per 3 V I C § 530a(a) Appellant may appeal a ﬁnal order of the PERB under 3 V I C §§ 530 or 531 to
the Superior Court as a matter of right Accordingly, the Amended Petition is deemed a Notice of Appeal
Browne 1 PERB c! a! 8X 2015 CV 00l75
Memorandum Opinion                                                   2024 VI SUPER 37U
Page 2 of 7



                                       BACKGROUND

1] 3   Appellant “had received information that VIL was looking for someone strong in sales and
marketing She submitted her information to former Executive Director Paul Fleming, and she was
subsequently hired for the position of Marketing Coordinator ” Decision, at 3 Appellant 8
employment with VIL began October 1, 2003, and her Notiﬁcation of Personnel Action ( NOPA”)
listed her as an exempt employee [d

1] 4   Appellant was promoted to the position of Marketing Manager at VIL and on March 2,
2007, signed the Voluntary Acceptance of Exempt (Unclassiﬁed) Position, electing to be placed
in the exempt services ofGVI Id at 3 4 Browne received another promotion to “Senior Marketing
Specialist, pay plan exempt," effective March 21, 201 l [d at 4

1| 5   Sometime in 2014, Browne requested to be reclassiﬁed from exempt services, where she
had served since her date of hire to the classiﬁed services Id at 4 5 VIL agreed to request a
reclassiﬁcation review by the Division of Personnel (‘ DOP ’) In that regard, Browne completed a
Position Description Questionnaire and VIL conducted and forwarded a Desk Audit to DO? with
its recommendation that Browne be reclassiﬁed ﬁ'om exempt to classiﬁed status 1d at 5 Aﬁer the
BOP Director advised that VIL is not under the central Govemment’s Personnel System and that
the reclassiﬁcation can be done internally within VIL, the VIL Commission Chairman signed off
on Browne’s reclassiﬁcation NOPA on November 20, 2014, changing her position classiﬁcation
ﬁ'om exempt to classiﬁed 1d

1] 6   On February 13, 2015, by hand delivered letter VIL’s Executive Director Designee
terminated Browne’s employment as Senior Marketing Specialist effective at 5 00 p m that day
Id Appellant timely ﬁled an appeal of her termination with PERB on February 23 2015 1d
Following hearings before PERB, Browne’s appeal was dismissed with prejudice by PERB on
April 20 2015 on the basis that PERB lacked jurisdiction Id at 13

                                  STANDARD OF REVIEW

1] 7   In an appeal to the Superior Court from a PERB decision regarding an employee’s
termination rendered under 3 V l C § 530 ‘ all 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 §
Browne v PERB er a] SX 2015 CV 00175
Memorandum Opinion                                                            2024 VI SUPER 37U
Page 3 0f 7



530a(b) Substantial evidence is ‘ evidence that a reasonable mind would accept as adequate to
support an agency’s conclusion ” Williams Jackson v Pub Emp Rel Bd , 52 V I 445, 450 (V I
2009) (citation omitted) PERB 5 “legal ﬁndings are afforded plenary review             Wzllocks Gonzalez
1 Pub Emp Rel Bd 71 V I 137 143 2019 VI SUPER 108 1[ 10 (V 1 Super Ct 2019) (citing
Clark v V] Housmg Authority 2017 V l LEXIS 81 at *2 (V I Super Ct May 26 2017))
(unpublished)

                                             DISCUSSION

1| 8      Regular, career service employees may appeal the termination of their employment to
PERB 3 V I C § 530(a)(1) 2 Those regular GVI employees are a 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 l 2015) (citing 3 V I C § 530' Iles V dc Jongh
638 F 3d 169, 174 (3d Cir 201 1)) 3 That is, “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 employee       Wzllocks Gonzalez 71 V l at 144 2019 VI SUPER 108 1| 14 (citations and
internal quotations omitted)

1] 9      To be categorized as “regular ’ a career service employee must have been appointed to a
position within the career service in accordance with title 3, chapter 25 of the Virgin Islands Code
aﬁer completing a working test period 3 V I C § 451 Title 3, chapter 25, entitled Personnel Merit
System, Compensation, Expenses and Miscellaneous Beneﬁts, includes subchapter 1V (§§ 521
535), entitled Tests, Appointments, Promotions, and Dismissals Section 521 requires that ‘ except
as otherwise speciﬁed in this chapter, all appointments and promotions to positions in the classiﬁed




  The terms ‘career service’ and ‘exempt service’ are intended to be synonymous with the terms ‘classiﬁed
service’ and ‘unclassiﬁed service, respectively, as heretofore used in this Code 3 V I C (5 4513(d)
‘ “Notwithstanding any other provision of law, in any case aﬁer January 1, 1977, 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
Public Employees Relations Board The appeal must be in writing, and the Board must provide a copy to
the head ofﬁcer and the Attorney General    3 V I C § 530(a)( l) (emphasis added)
Browne 1 PERB a a] SX 2015 CV 00175
Memorandum Opinion                                                              2024 V1 SUPER 37U
Page 4 of 7



service shall be made on the basis of merit and ﬁtness, to be ascertained by competitive
examinations ’

11 10     A vacant classiﬁed service position is ﬁlled through a competitive process wherein the
names of no fewer than three persons eligible for such position are certified and the appointing
authority, after consultation with the department head, shall appoint one of those certiﬁed eligibles
3 V I C § 526(a) Every person appointed to a position in the classiﬁed service shall serve a
probational period or working test before being given a status as a regular employee ” 3 V I C §
527

TI 1 l    Browne does not assert that she complied with the prerequisites for regular employee status
as outlined in chapter 25 Rather, she argues that the ‘ new” 2010 amendment to the deﬁnition of
‘ regular employee,” in 3 V 1 C § 530(a)(2)(C)4 implicitly repealed or otherwise renders ‘ wholly
inapplicable ’ the pre existing deﬁnition of “regular employee ’ found in 3 V 1 C § 451 5 ‘ PERB
erroneously concluded Petitioner was not a regular employee because it failed to correctly apply
the amended and subject matter speciﬁc deﬁnition of regular employee’ codified in 3 V I C §
530(a)(2)(C)      Brief at 3

11 12     In Willocks Gonzale , the Superior Court considered the same argument, explaining as
follows

          Section 530 falls under title 3, chapter 25, which is entitled Personnel Men! System
          Compensation Expenses and Miscellaneous Beneﬁts and contains the portion of
          the Code addressing those topics [t is the same chapter under which § 451 and the
          older deﬁnition of regular employee fall Additionally, and more telling § 530 falls

‘ 3 V 1 C § 530(a)(2) provides
          As used in this section
             ‘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 instrumentalin as deﬁned in subparagraph (B) of this
                  subsection or and [sic]
                  (ii) who is not on contract, is not on probation, and therefore subject to dismissal,
                  demotion or suspension, only for cause
53 V 1 C §451 “Deﬁnitions’ provides
“As used in this chapter, unless it is otherwise provided or the context requires a different construction,
application, or meaning        ‘regular employee’ means an employee who has been appointed to a position
in the classiﬁed service in accordance with this chapter after completing his working test period
Browne v PERB at a] SX 2015 CV 00175
Memorandum Opinion                                                      2024 VI SUPER 37U
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        under the same subchapter, entitled Tests Appomtments Promotions and
        Dzsmzssals, as § 52], Competztne examinations Section 521 directs that, “[e]xcept
        as otherwise speciﬁed in this chapter, all appomtments and promotions to positions
        in the classiﬁed service shall be made on the baszs of merit and ﬁtness to be
        ascertained by competztne 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 appomted to a position in the classiﬁed service, and that appomtment must be
        based on merit and ﬁtness as ascertained by competitive examinations There is
        nothing within § 530 to indicate that the Legislature intended to abrogate the
        competitive examination requirements for appointments to the classiﬁed service
Wzllocks Gonzalez 71 V I at 148‘ 2019 VI SUPER 108 1] 19 (emphasis in original)

1] 13   In the present context, there is no irreconcilable difference between the two deﬁnitions of
 regular employee” which can be readily harmonized The Supreme Court has emphasized
that ‘ repeal 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 ”’ McIntosh v People, 57 V I 669,
685 (V 1 2012) (citing V 1 Public Servs Comm n v V 1 Water & Power Auth 49 V I 478 486
(V I 2008) (quoting Nat I Ass n of Home Buzlders 1 Defenders of Wildlife 55] U S 644 662
(2007)) (other citations omitted)

1] 14   The Third Circuit explains

        the rule of construction for analysis of the applicability of general and speciﬁc
        legislation on the same subject
                they should be construed together Where one statute deals with a subject in
                general terms, and another deals with a part of the same subject in a more
                detailed way, the two should be hannonized if possible
Creque v Lats

803 F 2d 92

 94 (3d Cir              1986) (citing 2A Sutherland StatutOIy
Construction § 51 05 (4th ed 1984))
1] 15   The greater detail of the more recent deﬁnition of “regular employee” in section
530(a)(2)(C) does not “expressly contradict” the preexisting deﬁnition of the same term in section
451 and repeal by implication is not ‘ absolutely necessary ’ to give meaning to the words of the
subsequent deﬁnition Section 52| requires that ‘ 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      Appellant cites n0 legislative
Browne v PERB at a! SX 2015 CV 00175
Memorandum Opinion                                                     2024 V1 SUPER 37U
Page 6 of 7



history or other support for the proposition that the 2010 amendment “otherwise speciﬁed,”
providing her with an exemption from the standard mandatory process for appointment of all GVI
employees to the classiﬁed service

1| 16   The hearing on Browne’s appeal to PERB of her termination was held for the express and
sole purpose to determine whether PERB had jurisdiction to hear the appeal The hearing
continued that Appellant’s November 20, 2014 reclassiﬁcation into the classiﬁed service was
processed internally by the VIL Commission not through DOP as mandated by chapter 25 See
Decision, at 5, l I    DOP Director Designee Milton Potter testiﬁed regarding the DOP
reclassiﬁcation process, continuing that Browne’s reclassiﬁcation did not follow that process 1d
at 12 Any contention that VIL as an instrumentality of GVI is treated differently than the central
government and may reclassify its employees without regard to the Govemment’s Personnel Merit
System is unavailing

1| 17   The statute establishing VIL provides that it is “established as an instrumentality of the
Government of the Virgin Islands     and shall be managed by a Director, subject to the supervision
of the Virgin Islands Lottery Commission ” 32 V I C § 243 The Director

        shall have the power, and it shall be his duty to    Subject to the approval of the
        Commission and m accordance wzth chapter 25 ofTitle 3 ofthis code, employ such
        professional, technical and clerical assistants and employees as may be necessary
        to perform the duties imposed upon the Lottery by this chapter
32 V I C § 247(c) (emphasis added) By this language, Browne s reclassiﬁcation could not be
accomplished independent of the requirements of the Personnel Merit System

1| 18   Following the hearing, PERB found that     Based on the record as a whole, we cannot find
where VIL secured the approval of the Commission, in writing or otherwise, or that Appellant s
reclassiﬁcation was processed in accordance with the Virgin Islands Code and the Personnel Rules
and Regulations” and ‘ determined that Appellant’s reclassiﬁcation was not in accordance with
Chapter 25 of Title 3, which is also known as the Virgin Islands Personnel Merit System”
Decision, at 12 Accordingly, PERB “concluded that Appellant was not appointed to a position
within the classiﬁed or career services, and she cannot be considered as a ‘regular employee’ who
would be entitled to PERB review under 3 V I C § 530        [d
Browne! PERB a a1 SX 20l5 CV 00175
Memorandum Opinion                                                  2024 VI SUPER 37U
Page 7 of 7



1] 19   The Court ﬁnds that PERB’s Decision is supported by substantial evidence in the record
considered as a whole ’ The evidence before PERB established that Appellant was not a regular
employee under 3 V I C §§ 451 and 530 Therefore, PERB correctly determined that it was without
jurisdiction to hear her appeal under 3 V I C 530(3), and PERB 3 Decision and Order will be
afﬁrmed An Order consistent with this Memorandum Opinion is entered herewith



SO ORDERED this Z ‘4’ day of September 2024




                                                DOUGLAS A BRADY J/DGE

 ATTEST
 TAMARA CHARLES
 Clerk of the Court


 By      WW 8/421?»
            Court Clerk Supe isor

         SW02, Z7, 2021/