Felix v. Gov't of the Virgin Islands

• Decision Date: 12 November 1958
• Docket Number: Civil No. 158 — 1958
• Citation: 3 V.I. 399
• Parties: OTIS L. FELIX v. GOVERNMENT OF THE VIRGIN ISLANDS, John D. Merwin, Governor; Roy W. Bornn, Government Secretary; George A. Matthias, Commissioner of Public Safety, and Percy De Jongh, Commissioner of Finance
• Court: U.S. District Court — Virgin Islands

3 V.I. 399

OTIS L. FELIX v. GOVERNMENT OF THE VIRGIN ISLANDS,John D. Merwin, Governor;Roy W. Bornn, Government Secretary;George A. Matthias, Commissioner of Public Safety,andPercy De Jongh, Commissioner of Finance

Civil No. 158 — 1958

District Court of the Virgin Islands Div. of St. Thomas and St. John

November 12, 1958

See, also, 167 F. Supp. 702

Motion to dismiss petition against Government of Virgin Islands and certain executive officials for reinstatement of petitioner as Insular Chief of Police and for back salary. The District Court,Maris, Circuit Judge, denied the motion holding that court had jurisdiction and could grant petitioner relief requested.

Order in accordance with opinion.EDITH L. BORNN, ESQ., JAMES A. BOUGH, ESQ. AND DAVID E. MAAS, ESQ., Charlotte Amalie, for the plaintiff

LEON P. MILLER, ESQ., United States Attorney, Charlotte Amalie, Virgin Islands, for the defendants

MARIS, Circuit Judge

[1] The plaintiff, Otis L. Felix, claiming that he was wrongfully dismissed from employment in the service of the Government of the Virgin Islands, brings this action against the defendants, the Government of the Virgin Islands, John D. Merwin, Governor, Roy W. Bornn, Government Secretary, George A. Matthias, Commissioner of Public Safety, and Percy DeJongh, Commissioner of Finance, seeking reinstatement in this position as Insular Chief of Police and salary from the date of his dismissal. The defendants have filed a motion to dismiss the petition. In considering the defendants' motion I must take the facts as stated by the plaintiff as true.

The plaintiff on the morning of February 26, 1958, while in the midst of performing his official duties as Insular Chief of Police, was called into the office of GeorgeA. Matthias, Commissioner of Public Safety, and handed a letter dated the preceding day and reading as follows:

"February 25, 1958

"Otis L. Felix

"Insular Chief of Police

"Department of Public Safety

"St. Thomas, Virgin Islands

"Dear Sir:

"You are hereby notified and advised that I George A. Matthias, Acting Commissioner of Public Safety by appointment and designation by the Governor of the Virgin Islands, and as such, head of the Department of Public Safety, have recommended and do hereby recommend to the appointing authority, the Governor of the Virgin Islands, your dismissal as an employee in and of the Department of Public Safety. The undersigned as head of said department considers that the good of the service will be served by your dismissal therefrom.

"The reasons for your dismissal are as follows:

"You have failed to demonstrate and exercise administrative and executive ability in the conduct of your duties in connection with your position as Chief of Police which has resulted in a lack of general efficiency in the Division; hazardous public safety conditions; poor traffic control and a lack of proper administrative procedures and controls.

"The above action is taken under the provisions of Title 3, Sec. tion 530, of the Virgin Islands Code. A copy of this statement is being filed with the Government Secretary of the Virgin Islands.

"This the 25th day of February, 1958.

"G. A. Matthias

"Acting Commissioner of Public Safety

"by designation of the Governor on

"February 11, 1958"

About five hours later that day the plaintiff was handed a letter from the then Government Secretary, John D. Merwin, now Governor of the Virgin Islands, to the then Governor, Walter A. Gordon, recommending approval of plaintiff's dismissal. Handwritten on the same letter wasthe approval by Governor Gordon of plaintiff's immediate dismissal. The letter reads as follows:

"February 26, 1958

"Honorable Walter A. Gordon

"Governor of the Virgin Islands

"Charlotte Amalie

"St. Thomas, Virgin Islands

"Dear Governor Gordon:

"I transmit herewith three copies of letter of dismissal served upon Insular Chief of Police Otis L. Felix this morning by the Acting Commissioner of Public Safety.

"I recommend approval of this dismissal effective the 26th day of February 1958.

"Respectfully yours,

"John D. Merwin

"Government Secretary

"Attachment:

2-26-58 (Handwritten)

"The Recommendation for the dismissal of Chief of Police Otis L. Felix is hereby approved and he is hereby dismissed immediately from the Department of Public Safety.

"Walter A. Gordon

"Governor"

The plaintiff appealed from his dismissal to the Government Employees Service Commission¹ and was granteda hearing on July 17, 1958. His contention before the Commission was that the procedure employed by the authorities gave him no opportunity to file a written statement regarding his dismissal, a right accorded him under section 530, Title 3, V.I.C. The Commission submitted its report of the hearing and its findings to the Governor, which, in pertinent part were as follows:

"The testimony revealed the following:

"Mr. Otis Felix joined the Police Force in St. Thomas in 1941 as a Substitute Patrolman and was promoted through the years until 1958 — except for six months in the U. S. Armed Forces — to Junior Patrolman, Patrolman Class B, Patrolman Class A, Corporal, Sergeant, Lieutenant and after a competitive examination to Insular Chief of Police on September 1, 1955.

"The last rating report on record for the calendar year ending December 31, 1956, is satisfactory and outstanding in some instances. No rating was sent in for the year 1957.

"In December 1957, Mr. Felix was asked by His Excellency, Governor Gordon, to resign as Insular Chief of Police. In a written reply to the Governor, Mr. Felix refused to comply with this request.

"From early in December 1957, until January 31, 1958, he was on vacation, returning to duty on February 1, 1958.

"On February 26, 1958, at around 9:00 a.m., he was called to the office of the Commissioner of Public Safety, Mr. Matthias, and handed a letter, dated February 25, 1958, informing him of his dismissal from the service and requesting him to turn in the pistol and other equipment belonging to the Department.

"On February 26, 1958, at around 2:00 p.m., he was handed a sealed envelope containing a letter from Government Secretary, John D. Merwin, to his Excellency, Governor Gordon, recommending his dismissal, which was approved by the Governor.

"It was established that Mr. Otis Felix, as Insular Chief of Police, was a classified employee of the Government of the Virgin Islands."

Title 3, section 530 of the Virgin Islands Code reads as follows:

"§ 530. Dismissals; procedure

A department head may recommend the dismissal of any regu-lar employee in his department when he considers that the good of the service will be served thereby. The department head shall give to the employee a written statement of the reasons for the dismissal and file a copy of such statement with the Government Secretary. The employee shall have an opportunity to file with the department head a written statement regarding the dismissal, a copy of which shall be filed with the Government Secretary. The Government Secretary shall recommend to the appointing authority the action he deems desirable, and such dismissal shall become effective if approved by the appointing authority."

Government Secretary Merwin explained that as this employee was asked to resign since December of 1957, he felt that he had sufficient time between December 1957 and February 26, 1958, to make representations to the Governor and, further, as the position was an important and sensitive one, he felt justified in recommending his immediate dismissal.

The Commission after considering the testimony and other information brought out at the hearing and the requirements of Title 3, section 530 of the Code as cited above, concluded as follows:—

"That the dismissal was not in accordance with the procedure specifically outlined in Title 3, section 530, of the Virgin Islands Code, as the appellant was not given the opportunity to file a statement in connection with the charges made against him by the Commissioner of Public Safety.

"This decision is respectfully submitted to Your Excellency for final action as required by existing law."

On July 28, 1958, Ullmont L. James, Director of Personnel, notified David E. Maas, Esquire, one of the plaintiff's attorneys, by letter as follows:

"You are advised that on July 18, 1958, the Government Employees Commission sent its report to Governor Gordon on the hearing and findings in the appeal case of Mr. Otis L. Felix, former Police Chief, against his dismissal from service on February 26, 1958. The Commission concluded that 'the dismissal was not in accordance with the procedure specifically outlined in Title 3,section 530, of the Virgin Islands Code, as the appellant was not given the opportunity to file a statement in connection with the charges made against him by the Commissioner of Public Safety.'

"The Governor has now advised that he is not in agreement with the conclusions reached by the Government Employees Service Commission and that 'the action previously taken by Government Secretary John D. Merwin, recommending the dismissal from government service of Mr. Felix and approved by me is not changed and remains in full force and effect'."

The present action followed. The plaintiff contends that his dismissal being in violation of the mandatory provisions of the Code, was a denial of due process and that he suffered injury thereby by loss of salary from the date of dismissal. He asks this court to declare his dismissal not in accordance with the law, to order the Governor,² as the appointing authority, and the Government Secretary, as the administrator of the Personnel Merit System, to reinstate him in his position as Insular Police Chief, to order the Commissioner of Public Safety to certify plaintiff's salary, and to order the Commissioner of Finance to pay the salary which he contends is due to him.

The defendants urge (1) that the court is without jurisdiction to entertain this suit against the Government of the Virgin Islands, (2) that the court is without jurisdiction to entertain the...