Superior Court Judge Denise M. Francois has rejected a motion to vacate a temporary restraining order in the V.I. government’s complaint against cybersecurity company Mon Ethos Pro Support until an evidentiary hearing is held on Aug. 29.
Francois is newly assigned to the case after Judge Carol Thomas-Jacobs recused herself on Thursday after Mon Ethos owner David Whitaker sought her disqualification because she directed the company’s work on a murder investigation in 2022 when she was attorney general and could be called as a witness.
The DOJ filed a complaint against Mon Ethos and Whitaker on Aug. 2 in V.I. Superior Court, along with a motion for a temporary restraining order and preliminary and permanent injunction, alleging the company breached its contract for cybersecurity services with the V.I. Police Department and was threatening to delete data critical to ongoing investigations and court cases.
The government alleges Mon Ethos demanded payment of $479,795 in June for work done over the previous three months “and threatened that data would be ‘lost’ if payment was not immediately remitted.” It was around the same time that the FBI announced that Police Commissioner Ray Martinez and Office of Management and Budget Director Jenifer O’Neal were the targets of a federal investigation regarding the government’s contract with Mon Ethos. Within days, both officials had resigned.
According to the verified complaint, equipment in Mon Ethos’ custody includes a GrayKey — an item that lets police hack into mobile devices and retrieve encrypted information — iPads, Facebook portals, iPhones, Max West Nitro tablets, Qlink Wireless tablets, laptops, Motorola cellphones, and Android Moto G phones with cases.
Mon Ethos has denied wrongdoing and in its motion to vacate the TRO said that just as Thomas-Jacobs should have recused herself without being asked, given her previous ties to the company, “it stands to reason that the TRO was not granted on a fair and impartial basis” and that “her conflict was extant from inception of the case.”
Francois rejected that argument in her order, writing that Thomas-Jacobs already recused herself, and the “Court does not see how [her] alleged knowledge of the services provided by Mon Ethos would infect all her decisions with such bias or impartiality as to render them per se void.”
Francois extended the TRO until her calendar can accommodate the evidentiary hearing that had been scheduled for Thursday and will now be held at 9:30 a.m. on Aug. 29 at the Farrelly Justice Center on St. Thomas.
“Such a hearing is precisely the opportunity for Mon Ethos to be heard in a meaningful manner, and as TROs are necessarily limited (because they are temporary), Mon Ethos will be heard at a meaningful time. Thus, the Court does not find that Mon Ethos’s due process rights were or are fundamentally violated,” Francois wrote in her order.
Public spending records reveal that the V.I. government has paid $3.31 million to Mon Ethos since August 2022, including $1.7 million from the Office of Management and Budget and $1.5 million from the V.I. Police Department. The company also signed a contract with the V.I. Education Department for $1.9 million on Feb. 28 for security systems and surveillance at 11 campuses in the St. Croix district, paid for with federal COVID-19 funds.
According to the Property and Procurement Department, the one-year VIPD contract was awarded in October under an exemption to the formal bidding process, specifically 31 V.I. Code section 239(a)(8). Reasons for circumventing bids can include emergencies, expenditures under $10,000, under $50,000, single and sole source providers, technical expertise, and standardization of equipment, it said.
