PRESENTATION OF ATTORNEY GENERAL DENISE N. GEORGE THIRTY-FOURTH LEGISLATURE OF THE VIRGIN ISLANDS COMMITTEE ON GOVERNMENT OPERATIONS AND CONSUMER PROTECTION BILL NO. 34-0080 AUGUST 6, 2021
Good afternoon, Chairwoman Joseph, senators, legislative staff, and to those listening and viewing today. My name is Denise N. George, and I am the Virgin
Islands Attorney General. I am honored to appear before this Committee today to present testimony on proposed Bill No. 34-0080. The purpose of today’s measure is to allow the Virgin Islands Legislature to hire a special investigator to investigate certain activities of the Virgin Islands Water and Power Authority (“WAPA”); allocate funds for such a purpose; and to, if necessary, refer for criminal prosecution any relevant findings of said investigation.
According to the United States Supreme Court, “there can be no question that the State has power adequately to inform itself – through legislative investigation, if it so desires – in order to act and protect its legitimate and vital interests.”1 In fact, the Revised Organic Act of 1954, as amended (“ROA”), explicitly states that the
“legislature shall be the sole judge of the elections and qualifications of its members, shall have and exercise all the authority and attributes, inherent in legislative
1 Gibson v. Fla. Legislative Investigation Comm., 372 U.S. 539, 544, 83 S. Ct. 889 (1963) Attorney General’s Testimony Committee on Government Operations and Consumer Protection BILL NO. 34-0080 August 6, 2021 assemblies, and shall have the power to institute and conduct investigations, issue subpoena to witnesses and other parties concerned, and administer oaths.”2
However, this power is not unlimited. As the United States Supreme Court has opined regarding the powers of Congress which confers the powers of the V.I.
Legislature through the ROA:
The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste. But, broad as is this power of inquiry, it is not unlimited. There is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress. . . . Nor is the Congress a law enforcement or trial agency. These are functions of the executive and judicial departments of government. No inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of the Congress. Investigations conducted solely for the personal aggrandizement of the investigators or to "punish" those investigated are indefensible.3 The legitimate legislative purpose must be sufficiently and clearly stated.
Rather, the Bill’s language surrounding the scope of investigation is, at best, vague.
These inquiries include, “billing practices;” the “unlawful or unauthorized contracts
2 V.I.C. Rev. Org. Act of 1954 § 6(g)(emphasis added). 3 Watkins v. United States, 354 U.S. 178, 187, 77 S. Ct. 1173 (1957)(emphasis added). Attorney General’s Testimony Committee on Government Operations and Consumer Protection BILL NO. 34-0080 August 6, 2021 and leases;” “credit card usage;” “equipment sales;” “Compliance with procurement laws;” “audit reviews;” “conflicts of interest;” and “nepotism.” Clearly, some of these areas may be the proper subject for legislative concern in general to expose
“corruption, inefficiency or waste”, but others appear to have a criminal investigatory ring to them. This assumption is bolstered by additional language in the Bill which suggests that the true aim of this legislation is to determine whether any criminal violations of the law have been committed by persons associated with or employed by WAPA. For example, proposed Section 4 states: “[n]ot later than
30 days after the investigation report is received by the Legislature, the Legislature shall provide a copy of the report to the Attorney General of the Virgin Islands or the U.S. Attorney to review and determine whether there have been any violations of local or federal law and to prosecute any unlawful actions.” This language clearly contemplates a criminal component to the investigation. Again, investigation of matters that are criminal in nature are within the function of the executive branch of government.4 Further, proposed Section 3(c-d) state:
(c) Upon the request of the special investigator, the head of any government department, agency, autonomous or semi-autonomous instrumentality (“Agency”) may select any of the personnel of the
4 See, e.g., Congressional Research Service, Special Counsel Investigations: History, Authority, Appointment and Removal, https://crsreports.congress.gov, page 1, updated March 13, 2019, (stating, “While Congress enjoys the legislative power under Article I of the Constitution, which includes substantial authority to investigate the executive branch pursuant to its oversight function, criminal investigations and prosecutions are generally considered core executive functions entrusted with the executive branch)(emphasis added). Attorney General’s Testimony Committee on Government Operations and Consumer Protection BILL NO. 34-0080 August 6, 2021
Agency to assist the special investigator in carrying out the investigator’s duties under this section. (d) The special investigator may secure directly from any Agency, information necessary to enable the special investigator to carry out the investigator’s duties. Upon request of the special investigator, the head of the Agency shall furnish the requested information to the special investigator. This language appears to be a thinly-veiled instruction to either, or both, the
Department of Justice and the Inspector General’s Office—each executive branch agencies—to cooperate with and assist the special investigator and to reveal sensitive investigatory information for the purpose of making a criminal referral.
Not to mention, these sections smack of a violation of the separation of powers doctrine by commanding executive branch agencies to comply with the instructions of a legislative investigation in executing its executive functions. Even if these proposed sections were allowable, they would still violate the best practices of confidentiality in law enforcement investigations. Revealing to any outside investigator the information or findings of an ongoing criminal investigation would, likely, violate existing employee confidentiality matters; put a witness or law enforcement personnel in danger; jeopardize the integrity of the whole investigation or prosecution; or prejudice the rights of any possible future criminal defendant. I do not believe any Committee member seated before me today would want that burden on their shoulders. Again, while the legislature has the right to Attorney General’s Testimony Committee on Government Operations and Consumer Protection BILL NO. 34-0080 August 6, 2021 conduct investigations for the furtherance of a purely legislative objective, this body is not a law enforcement agency. Criminal investigations, or those likely to lead to criminal prosecution, are reserved for executive branch agencies such as the
Department of Justice, VIPD, and the Inspector General’s Office.
In short, the breadth and scope of today’s proposed measure appears to exceed legislative authority by violating the doctrine of separation of powers through facilitating legislative investigations into criminal matters, commanding executive agencies to reveal potentially confidential, sensitive and protected information in their possession and, also, by including unmistakable language that infers the true intention of a legislatively sanctioned criminal probe, by referral to the Attorney General or U.S. Attorney for prosecution. I would argue that the
$250,000 proposed for the purpose of today’s measure would be better spent by applying it to those law enforcement agencies that are mandated to conduct these investigations such as the Inspector General’s Office or the Department of Justice.
It is important to note also that the Attorney General’s Office does not prosecute merely based on an investigative report or referral of a non-law enforcement third party. Such a report would be treated as a complaint and an independent criminal investigation would have to be conducted. This is the kind of redundancy that this measure would create. Attorney General’s Testimony Committee on Government Operations and Consumer Protection BILL NO. 34-0080 August 6, 2021
The Supreme Court of the United States made it clear that a legislative investigation itself cannot be an end—it must lead to a legitimate legislative purpose. In other words, it cannot be the goal, purpose, or objective of a legislative investigation to accomplish a criminal investigation or prosecution. We agree with the Legislature’s reviewer’s notations on this measure that states, “An investigation that itself is an end or has as its gravamen the submission of the independent investigator’s report to the U. S. Attorney or the Attorney General for possible prosecution is not in the furtherance of a valid legislative purpose.”
For the above-stated reasons, we do not support this measure. This concludes my formal testimony, and I am available for any questions the members may have.