IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS

DIVISION OF ST. THOMAS AND ST. JOHN



POLICE BENEVOLENT ASSOCIATION CIVIL NO. ST-14-CV-490



(Local 816, St. Thomas Chapter)



ACTION FOR DECLARATORY

JUDGMENT & INJUNCTIVE

RELIEF



POLICE BENEVOLENT ASSOCIATION

(Local 1910, St. Croix Chapter),



Plaintiffs,

vs.



GOVERNMENT OF THE VIRGIN ISLANDS

JOHN P. DeJONGH, (in his official capacity)

RODNEY QUERRARD, SR. (in his official

capacity as Commissioner of Virgin Islands

Police Department),



VIRGIN ISLANDS POLICE DEPARTMENT,



Defendants.



mm a ee re er er er ee ee ie Se See See eee ee eee See eee”



MEMORANDUM OPINION



THIS MATTER came on for hearing on December 3, 2014 on the Motion for

Preliminary Injunction Pursuant to Fed. R. Civ. P. 65(a) and (b)' filed by Plaintiffs Police

Benevolent Association (Local 816, St. Thomas Chapter) and Police Benevolent

Association (Local 1910, St. Croix Chapter). Plaintiffs, who were present through

representatives Lisa Plaskett-Samuel (Local 816) and Arthur Joseph (Local 1910), were

represented by Nizar A. DeWood, Esq. Defendants Government of the Virgin Islands,

John P. DeJongh, in his official capacity, Rodney Querrard, Sr., in his official capacity,

and Virgin Islands Police Department were present through Rodney Querrard, Sr., Police



Commissioner. All Defendants (collectively “the Government”) were represented by Joss



' Filed on November 7, 2014. Defendants filed an Opposition on December 2, 2014.

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N. Springette, Assistant Attorney General-Labor. For reasons explained below, the Court

will grant PBA’s Motion for Preliminary Injunction.

I. Background



The Complaint was filed on October 28, 2014. On November 7, 2014, PBA filed a

Motion for Temporary Restraining Order and/or Preliminary Injunction Pursuant to Fed.

R. Civ. P. 65(a) and (b) to stop the Government from promoting any Virgin Islands police

officers to the rank of corporal. The Court entered a Temporary Restraining Order on

November 19, 2014. A hearing on PBA’s Motion for Preliminary Injunction was held on

December 3, 2014, and upon consent of the parties, the TRO was twice extended to



December 29, 2014.



Hl. Facts

Plaintiffs, Police Benevolent Association (Local 816, St. Thomas chapter) and

Police Benevolent Association (Local 1910, St. Croix chapter) (collectively, “PBA”), are

unions representing hundreds of police officers and corporals in the Virgin Islands. The

PBA Complaint seeks to stop promotions of certain police officers to corporal rank? that

were scheduled to take place in November 2014. PBA alleges the planned promotions

violate Virgin Islands law and the Collective Bargaining Agreement between PBA and the



Virgin Islands Police Department. Additionally, Plaintiffs allege the Governor of the Virgin



? The Virgin Islands Police Department has five ranks, in escalating order: Police Officer, Corporal, Sergeant,

Lieutenant, and Captain. Promotions to Sergeant, Lieutenant and Captain are done by competitive examination and

those ranks are not covered by the Police Benevolent Association Collective Bargaining Agreement and are not

involved in this dispute.

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Islands and management in the Virgin Islands Police Department (VIPD) promote only

those police officers they personally favor and the planned promotions are unlawful,

secretive, discriminatory and in violation of their Collective Bargaining Agreement and

local law.?



Twenty-four (24) police officers in the two island districts were identified as eligible

for promotion to corporal rank. Defendants’ Ex. 13, December 3, 2014 Hearing. Due to

financial constraints, only eleven police officers were scheduled for promotion in

November 2014. Three of the St. Thomas/St. John officers and one of the St. Croix

officers are assigned to the Executive Security Unit which provides security services to

the Governor.



At the December 3, 2014 hearing, PBA proffered four witnesses with terms of

service with VIPD ranging from 10 to 18 years’, who each testified that there exists no

mechanism to apply for a promotion to corporal, no corporal vacancies have ever been

announced, no competitive test has ever been administered for promotion to corporal,

and the officers who were designated for promotion in November 2014 did not submit to



a competitive test. This testimony is undisputed. Those witnesses also testified,



3 At the December 3, 2014 hearing, PBA stressed that it does not question the merit of the police officers nominated

for promotion to corporal rank. Instead, it asserts that the promotion decisions were not made in accordance with

Virgin Islands law.



* The following four persons testified as witnesses for PBA: Arthur Joseph, President of the St. Croix PBA and a

police officer for ten years; (2) Lisa Plaskett-Samuel, President of the St. Thomas PBA and police officer for eleven

years; (3) Charles Gumbs, Vice President of the St. Thomas PBA and police officer for twelve years; and (4) Alphonso

Boyce, Sr., a police officer for 18 years and former President, Vice President and Chair of the PBA.

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however, that they are unaware of any noncompetitive test ever rendered for promotion

to corporal, which is the true subject matter of this case.



The Government's witnesses included Rodney Querrard, Commissioner of the

Virgin Islands Police Department and Thomas Hannah, Assistant Commissioner of the

Virgin Islands Police Department. Hannah testified that the VIPD requirements for

promotion to corporal are set out in General Orders® that date back to 1980.®



General Order 80-3, dated June 5, 1980,’ “set[s] forth the procedures and

establish[es] the criteria for promotion to the rank of Police Corporal.”® The Order has

four category of factors: (1) Basic Requirements; (2) Additional Requirements; (3)

Additional Supportive Factors; and (4) Pay Scale.



The “basic requirements” for promotion to corporal are “long and honorable

service” or “exceptional meritorious service.” To be promoted by way of long and



honorable service, a candidate must have a minimum of ten years? with the VIPD.



’ Title 3 of the Virgin Islands Code, at § 258(a) permits the Commissioner of the Virgin Islands Police Department

to issue General Orders. The statute provides:



The Commissioner may prescribe rules and regulations, not inconsistent with law or other

regulations authorized by law, for the proper administration of the Department, the conduct of its

officers and other personnel, the distribution and performance of its business, and the custody, use,

and preservation of the records, papers, and property appertaining to it.



® See Defendants’ Exhibits 3, 6, and 7, December 3, 2014 Hearing.

7 Admitted into evidence as Defendants’ Ex. 3.



8 General Order 80-3A, dated November 2, 1998, amended General Order 80-3 to reduce the number of years

required for long and honorable service from fifteen years to ten years. It also amends the language in the “Pay

Scale” section. Defendants’ Ex. 7.



° General Order 80-3, dated June 5, 1980, states that a candidate must have a minimum of fifteen years with the

VIPD, but General Order 80-3A, dated November 2, 1998 reduced this requirement to ten years. Defendants’ Ex. 6,

December 3, 2104 Hearing.

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“Exceptional meritorious service” is defined as “performance of a police duty in an

exceptional manner.” To be promoted for exceptional meritorious service, a police officer

must have served at least three years with VIPD.



In addition, General Order 80-3 provides that candidates for promotion to corporal

must meet four requirements:



1. Candidates must have no record of suspension or serious disciplinary



infraction in the past three years;



2. Recommendation for promotion must come from the candidate’s

immediate supervisor and all intermediate supervisors up to and

including the Deputy Commissioner;



3. Satisfactory record of attendance for the preceeding (sic) twelve

months; and



4. Demonstrated job efficiency

In the “Additional Requirements” section, the Order also provides that “the Commissioner

may nominate a candidate for promotion to Police Corporal by his own initiative.”



The Order also lists additional supportive factors that will be considered: (1) the

candidate's contribution to the Department and community; (2) letters of Commendation;

and (3) departmental awards.



Hannah testified that police officers are promoted to corporal in accordance with

General Orders 80-3 and 80-3A. He also testified that an officer might also be promoted

if he or she was shot in the line of duty. In agreement with Plaintiffs, Hannah testified that



no competitive test was ever given to officers being promoted to corporal, but emphasized

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that officers are “tested” every day in carrying out their duties and that supervisors

observe officers’ performance on a regular basis as part of their supervisory role. He also

testified that factors considered in corporal promotions include an officer's monthly

ratings, performance appraisal and timely filing of reports.



Querrard testified that he believes the Police Department can lawfully promote the

proposed list of police officers to corporal rank as a list of proposed promotions was

submitted to the Governor and the Governor approved the list. Defendants’ Ex. 13,

December 3, 2014 Hearing.



Correspondence between PBA’s counsel, Attorney Nizar DeWood, and

Commissioner Querrard gave a fuller picture of Querrard’s position. On September 10,

2014, DeWood wrote a one-page letter to Querrard stating that the Virgin Islands Police

Department's promotion procedure is and has been violating 3 V.I.C. § 5217° with respect

to promotions from police officer to corporal. Defendants’ Ex. 9, December 3, 2014

Hearing. Querrard responded by letter on October 6, 2014, stating “Competitive

examinations are not undertaken overnight and will not achieve the necessary numbers

of supervisors expeditiously.” Defendants’ Ex. 10, December 3, 2014 Hearing. He cites

§ 522 and emphasizes the clause permitting a noncompetitive test based on an

employee's “special qualifications . . . or special or unusual requirements of the service”



Based on that language, Querrard concludes that the Virgin Islands Code “indisputably



'° Section 521 provides: “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.”

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provide[s] the Governor with the authority to promote Officers to Corporals as he has in

the past.”"

lil. Discussion



PBA alleges the proposed promotions of certain police officers to corporal rank

violates sections 521, 522, 523, and 526 of Title 3 of the Virgin Islands Code. 2



Sections 521, 522, 523, and 526 address the procedure for promotion of

employees within the Virgin Islands’ Personnel Merit System, which includes police

officers and other employees of the executive branch of the Virgin Islands Government.

V.I. Code Ann. tit. 3, § 492(a). Section 521 provides:



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.

Generally, then, all promotions in the classified service must be based on the results of a

competitive examination which evaluates a candidate’s merit and fitness.



Section 522(a) provides more detail about the promotion tests"? and provides that



in special circumstances, a noncompetitive test may be administered:



'! Over the last 30 or more years, corporal promotions have been made sporadically, at no set intervals, and without

competitive testing. This case appears to be the first time the practice has been challenged in the courts.



"2 In its Complaint, PBA alleges two causes of actions. First, it alleges the Government violated sections 521, 522,

523, and 526 of Title 3 of the Virgin Islands Code. Second, it argues that the promotions violate the Collective

Bargaining Agreement between itself and the Virgin Islands Police Department because that Agreement incorporates

the general Virgin Islands employment statutes. Thus, PBA’s causes of action are based on the same statutory sections,

but one cause of action is based solely on the law and the other is based on contract principles. The Court will therefore

address PBA’s two causes of action as a single argument: whether Defendants complied with specific statutory

sections.



'3 “<TP]romotion test’ means a test for positions in a particular class, admission to which is limited to regular

employees in the classified service.” V.I. Code Ann., tit. 3, § 451.

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(a) The Director of Personnel shall from time to time conduct such entrance

tests and promotion tests as he considers necessary for the purpose of

establishing employment lists and promotion lists. The tests shall be

competitive and shall be of such character as to determine the relative

fitness and ability of the person tested to perform the duties of the class of

positions for which a list is to be established, except that with the approval

of the Governor a noncompetitive test may be given to an employee for a

promotion on the basis of special qualifications of the employee or special

or unusual requirements of the service. (emphasis added)



The remainder of the statute provides:



Tests may be written, oral, physical or in the form of a demonstration of skill,



or any combination of such tests. The tests may take into consideration



such factors including education, experience, aptitude, capacity,



knowledge, ability, character, physical fitness, and other qualifications, as



in the judgment of the Director of Personnel enter into the determination of



the relative fitness of the applicant. No part of the examination shall be so



framed as to solicit information concerning the political or religious opinions



or affiliations of an applicant.

This section provides that the Director of Personnel shall conduct competitive promotion

tests to establish a list of persons eligible for promotion. However, a noncompetitive test

may be given with the Governor's approval to an employee if (1) the employee has special

qualifications or (2) there are special or unusual requirements of the service.



The Government does not dispute the 2014 promotion candidates did not take a



competitive examination. However, it argues that § 522 allows the Government, with the



Governor's approval, to promote police officers to corporal without a competitive test.

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IV. Preliminary Injunction Factors



To determine whether a preliminary injunction is appropriate, the Court must

consider whether



(1) the movant has shown a reasonable probability of success on the merits;



(2) the movant will be irreparably injured by denial of the relief;



(3) granting preliminary relief will result in even greater harm to the



nonmoving party; and



(4) granting the preliminary relief will be in the public interest.

Yusuf v. Hamed, No. 2013-0040, 2013 WL 5429498, at *3 (V.I. Sept. 30, 2013). The

Supreme Court of the Virgin Islands has yet to opine on whether this is “ta sequential



injunction test,’ where all four factors must be satisfied in full, or a ‘sliding-scale test,’



where the four factors are balanced and weighed. Appleyard v. Governor Juan F. Luis



Hosp. & Med. Ctr., No. 2014-0056, 2014 WL 6783132, at *7 (V.I. Dec. 2, 2014); Tip Top



Constr. Corp. v. Gov't of the Virgin Islands, Dep't of Prop. & Procurement, No. 2014-0006,

2014 WL 571905, at *2 (V.1. Feb. 14, 2014). Because PBA can satisfy the more stringent

“sequential injunction test,” we need not dwell on which test is applicable. Yusuf, 2013

WL 5429498, at *3 n. 3.



A. Reasonable Probability of Success



To satisfy the first factor, reasonable probability of success, PBA need not “show

that [it] will actually prevail on the merits at trial, or that [its] success is ‘more likely than

not,’ only that [it] has ‘a reasonable chance, or probability, of winning.” Yusuf, 2013 WL



5429498, at *4.

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This dispute revolves around the interpretation of certain sections of the Virgin

Islands Code. In Bryan v. Christian, the Third Circuit Court of Appeals addressed a Virgin

Islands police officer's similar claim that he had been unfairly denied a promotion to the

rank of sergeant. 550 F.2d 890, 891 (3d Cir. 1977). Bryan argued that the Police

Department (then the Department of Public Safety) did not comply with Virgin Islands law,

including 3 V.I.C. § 522(a), in making promotions to sergeant. /d. at 894. As in the case

now before the Court, promotions were made according to requirements developed by

the Commissioner of Public Safety. /d. at 893. The Third Circuit agreed with Bryan that

the promotion procedure was not authorized by statute and “was totally inconsistent with

Virgin Islands law.” In so finding, however, the Court opined



We concede that there is much to be said for a legislative judgment that



the qualities which make for a good police sergeant cannot readily be



quantified. But the legislature of the Virgin Islands has made the



legislative judgment. It has placed policemen in the classified service,



with promotion to be made on the basis of merit “to be ascertained by



competitive examinations.”



Id. at 895. Like the Third Circuit in Bryan, this Court must interpret the relevant statutes

and decide whether the statute has been violated.



The law requires promotions in the classified service to “be made on the basis of

merit and fitness, to be ascertained by competitive examinations.” 3 V.I.C. § 521.

Noncompetitive exams may be administered in specific circumstances: with the

Governor's approval and on the basis of special qualifications of the employee of special



or unusual requirements of the service. 3 V.I.C. § 522(a). The Government argues the



existing procedure for promotion from police officer to corporal is lawfully based on letters

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of recommendation from supervisors and the Governor’s approval, not on a test or

examination."4



The Government relies upon General Orders 80-3 and 80-3A as justification for

the corporal promotions. However, it is doubtful whether the procedure laid out in the

General Orders comply with § 522(a)’s noncompetitive test exception.



First, the Government does not argue and has not demonstrated that the police

officers slated for promotion in November 2014 have “special qualifications” distinct from

their fellow officers. There is also no evidence that the corporal positions to be filled

encompass “special or unusual requirements” beyond the duties and requirements

imposed on all corporals. Therefore, the 2014 promotion candidates do not qualify for

the noncompetitive test exception that permits the administration of noncompetitive tests

on the basis of “special qualifications” of the promotion applicant or “special or unusual

requirements of the service.”



Second, even if the 2014 promotion candidates did qualify for the exception, they

are required to take or submit to a noncompetitive test, and there is no evidence that was

done.



The statute does not define “noncompetitive test.” To “compete” is “[t]o strive for

something that someone else is also seeking,” “to strive to outdo another for



acknowledgement, a prize, etc.; engage in a contest,” “to compete emulously; to strive



'* Hannah’s comment that officers are “tested” every day by virtue of performing their jobs cannot satisfy § 522’s

noncompetitive test requirement. Counsel for the Government did not argue this theory in its filings or orally during

the hearing. More significantly, § 522 only permits noncompetitive tests on the basis of special qualifications of an

employee or special or unusual requirements of the service. The Government has not argued that either of these

conditions apply to the police officers scheduled to be promoted to corporal in November 2014.

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for the position, reward, profit, goal, etc., for which another is striving; to contend in

rivalry.” West’s Legal Dictionary/Thesaurus 157 (Special Deluxe Ed. 1986); Random

House Webster's College Dictionary 270 (2d ed. 1999); West’s Law & Commercial

Dictionary 293 (1985). It follows from these definitions that a “noncompetitive” test does

not measure test-takers against one another, but instead against some established

threshold or objective standard.



The Legislature’s meaning of a “noncompetitive test” is also open to interpretation.

It appears from the statute’s language that the “noncompetitive exception” is meant to be

read separately from the rest of the statute. Section 522(a) uses plural language

throughout, except when it refers to noncompetitive tests if shifts to the singular form:



The Director of Personnel shall from time to time conduct such entrance

tests and promotion tests as he considers necessary for the purpose of

establishing employment lists and promotion lists. The tests shall be

competitive and shall be of such character as to determine the relative

fitness and ability of the person tested to perform the duties of the class of

positions for which a list is to be established, except that with the approval

of the Governor a noncompetitive test may be given to an employee for a

promotion on the basis of special qualifications of the employee or special

or unusual requirements of the service. Tests may be written, oral, physical

or in the form of a demonstration of skill, or any combination of such tests.

The tests may take into consideration such factors including education,

experience, aptitude, capacity, knowledge, ability, character, physical

fitness, and other qualifications, as in the judgment of the Director of

Personnel enter into the determination of the relative fitness of the applicant.

No part of the examination shall be so framed as to solicit information

concerning the political or religious opinions or affiliations of an applicant.

(emphasis added).



The Legislature’s adoption of the singular form in the noncompetitive test exception



indicates that clause is to be read as an exception and apart from the rest of the statute.

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Thus, the language following the exception clause describing “the tests” does not apply

to noncompetitive tests.



West's Legal Dictionary/Thesaurus defines a test as “an inquiry or inspection.” 744

(Special Deluxe Ed. 1986). Random House Webster’s College Dictionary provides a

more descriptive definition: “the means by which the presence quality or genuineness of

anything is determined,” “the trial of the quality of something,” “a particular process or

method for trying or assessing,” or “a set of problems, questions, etc., for evaluating

abilities or performance.” 1349 (2d ed. 1999). Similarly, West's Law & Commercial

Dictionary defines “test” as “to bring one to a trial and examination, or to ascertain the

truth or the quality or fitness of a thing.” 644 (1985).



The Government has not argued that it administered a “test;” instead, it asserts

the General Orders give the Police Department the authority to promote as it planned,

based on letters of recommendation from supervisors. Considering these varying

definitions, the Police Department's planned promotions to corporal appear to have been

based on procedures and qualifications that cannot be construed as a “test.” The current

promotion system, as created under General Order 80-3, as amended, appears logical

and fair, and Defendants demonstrated that the corporal promotions were based on

merit.’® Nevertheless, that system does not comport with the legislative judgment set forth



in Section 522. Bryan at 895.



'S PBA did not prove and the Court makes no finding that nepotism, favoritism, or other similar nefarious activity or

intentions was the basis of the planned corporal promotions.

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Accordingly, the Court finds that PBA has a reasonable probability of success on

the merits on its claim that the Virgin Islands Police Department's promotion procedure



for police officers being promoted to corporal violates Virgin Islands law.



B. Irreparable Injury



The next factor the PBA must satisfy for a preliminary injunction is irreparable

harm. PBA must demonstrate the existence of a “certain and imminent harm for which a

monetary award does not adequately compensate.” Yusuf, 2013 WL 5429498, at *6.

Accordingly, if “a plaintiff's loss is a matter of simple mathematic calculation,” [the] plaintiff

fails to establish irreparable injury for preliminary injunction purposes.” /d.



In its Motion for Temporary Restraining Order and/or Preliminary Injunction, PBA

alleges that the VIPD planned to promote a secret list of police officers to the rank of

corporal in violation of Virgin Islands law. PBA claims the promotions would harm the

rights and morale of police officers, violate Virgin Islands law, and promote a nepotistic

promotion policy. PBA argues the unlawful promotions would lead officers to conclude

that personal connections carry more weight than experience, dedication, and hard

work.'® Additionally, Plaskett-Samuel testified that morale is low and “chaos” would

ensue if the promotions were awarded and the newly-promoted corporals were



subsequently demoted based on the Court's finding that the promotions were unlawful.



'6 As noted in fn 3, PBA tempered its argument at the hearing and conceded that the officers scheduled for

promotion may well be qualified, but were scheduled for promotion via an unlawful process.

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The Government counters that PBA will not suffer irreparable harm if injunctive

relief is not granted, and argue the Government, not the PBA, will suffer irreparable harm

as corporal supervisors are badly needed, particularly in light of the Consent Agreement

to which VIPD is subject. Commissioner Querrard testified that vacancies affect

performance and VIPD, particularly the St. Thomas-St. John District, is suffering from an

insufficient structure.



The harm PBA alleges it will suffer - a decrease in morale, “chaos,” and the

appearance of favoritism — is not compensable by monetary damages. The Court agrees

the harm that will result if unlawful promotions are allowed is not compensable by money

damages. The Court also specifically finds that allowing potentially unlawful promotions

to take place will result in irreparable harm if the promotions are later rescinded. PBA

has therefore satisfied the irreparable harm factor.



C. Harm to Defendants



The third factor a preliminary injunction requires balancing the harm to the

Government resulting from the imposition of a preliminary injunction against the harm

PBA would suffer if the injunction is not granted.



PBA alleges that the proposed promotions are unlawful and will reduce morale

among police officers and potentially discourage hard work and dedication because those



factors are not considered in promotion decisions.'? Further, PBA adds that demoting



'? The Court is not persuaded that dedication and hard work were not factors taken into account by the Defendants

when the promotion list was created.

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recently-promoted officers would further reduce morale and cause strife in the ranks.'®

For those reasons, PBA asserts the balancing of the harms favors issuing a preliminary

injunction.



The Government, on the other hand, contends that granting the preliminary

injunction will force the VIPD to operate with an insufficient number of supervisors.

Corporal is a supervisory rank, and the Police Department is in critical need of supervisors

to direct its officers and ensure efficiency of its operations. Virgin Islands law imposes

many duties upon the VIPD, including the duty to protect “persons and property within the

jurisdiction of the Virgin Islands.” 3 V.I.C. § 257. Further, VIPD is operating under a

“Consent Decree,” an agreement between the Police Department, the V.I. Department of

Justice and the United States Department of Justice, that imposes additional

requirements on VIPD, including the need for supervisors. See Commissioner Querrard’s

Letter to DeWood, Defendants’ Ex. 10, December 3, 2014 Hearing (“it is important to point

out the critical needs of the department as we move forward while under a Consent

Decree’).



Balancing the harm to PBA in denying injunctive relief and the harm to the

Government in granting the same, the balance of harm tips in PBA’s favor. Lisa Plaskett-

Samuel testified to the low collective morale of Virgin Islands police officers and opined



that allowing the promotion to proceed would further reduce officers’ morale. Officers’



'§ Due to the issuance of the Temporary Restraining Order, no police officers were promoted to corporal in November

2014. However, if the Court denies the request for a preliminary injunction, the Government would then have the right

to promote the selected officers to corporal. Should the Court, after considering the matter on the merits, rule in PBA’s

favor and grant a permanent injunction, the promoted corporals may suffer demotion back to the rank of police officer.

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trust in their managers and supervisors may be impacted, and the possibility of demoting

the new corporals back to police officer is a grim one.9



In concluding that the relative harms favor imposing a preliminary injunction, the

Court is mindful of the important role of the Virgin Islands Police Department in the

Territory. Certainly, VIPD needs a sufficient number of supervisors to carry out its

statutory imposed duties and to properly serve the community. However, the imposition

of a preliminary injunction may limit the number of supervisors, but will have no impact on

the number of police officers that serve the VIPD.



D. Public Interest



The final factor inquires whether a preliminary injunction is in the public interest.

“In considering the public interest, courts should seek to prevent the parties from halting

“specific acts presumptively benefiting the public . . . until the merits can be reached and

a determination made as to what justice requires.” Yusuf, 2013 WL 5429498, at *8 (citing

Cont'l Grp., Inc. v. Amoco Chemicals Corp., 614 F.2d 351, 358 (3d Cir. 1980)).



PBA argues that VIPD’s policy of promoting police officers to corporals using a

procedure other than those outlined in the Virgin Islands Code does not advance a

legitimate or significant public interest. The Government counters that a preliminary



injunction would jeopardize the safety of the community.



'° The Court notes that those intended for promotion will likely suffer from low morale as a result of the preliminary

injunction. However, in balancing the harm the Court finds that the low morale that the eleven officers scheduled for

promotion will suffer will likely be less than the low morale of several hundred police officers in the injunction is

not granted.

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The public has an interest in investigating potential unlawful actions of the Virgin

Islands Police Department, which itself is charged with enforcing the Territory's laws. See

Reilly v. City of Atl. City, 532 F.3d 216, 232 (3d Cir. 2008) (in free speech context “public's

interest in hearing testimony about police corruption outweighed [city and Chief of

Police's] interest in maintaining order by disciplining Reilly for that speech”). On the other

hand, the public also has a significant interest in ensuring that the VIPD is able to keep

the community safe and carry out its public safety functions. An adequate staff, including

a sufficient number of supervisors, is a key component of a functioning police department.

However, a preliminary injunction would not impact the number of police officers in the

Virgin Islands Police Department; it would only temporarily limit the number of

supervisors. A preliminary injunction would not prohibit any police officer from carrying

out his/her duties, it would merely stop or delay the Government from awarding

promotions to corporal. See Yusuf, 2013 WL 5429498, at *7 (citing Opticians Ass’n of

America v. Independent Opticians of America, 920 F.2d 187, 197 (3d Cir. 1990)) (“[O]ne

of the goals of the preliminary injunction analysis is to maintain the status quo, defined as

‘the last, peaceable, noncontested status of the parties”). Therefore, while the Court

acknowledges the needs of the VIPD and the challenges it faces, the balance of harms

analysis favors the PBA. The Court finds that all four factors of a preliminary injunction

have been satisfied. Therefore, the Court need not determine whether the sequential test



or sliding scale test should be applied.

Police Benevolent Associations v. Government of the Virgin Islands et al



Case No. ST-14-CV-490



Memorandum Opinion



|19



V. Conclusion



PBA has shown that it has a reasonable probability of success on the merits, the



harm to PBA outweighs the harm to the Government, and PBA will suffer irreparable harm



if the preliminary injunction is not granted. Therefore, PBA has demonstrated that it is



entitled to a preliminary injunction. Accordingly, PBA’s Motion for a Preliminary Injunction



will be granted. An Order consistent herewith will be entered



DATED: December fe) / 2014



LOL (ae, yy Clee



Kathleen Mackay



Judge of the Superior Court



of the Virgin Islands



ATTEST



ESTRELLA H. GEORGE



Acting



k of the Gourt



BY



iTKZS



Daven



DONNA D. DONOVAN



Court Clerk Supervisor



1-120 Or