Marianas Variety

Thursday, December 18, 2014-6:21:39A.M.

Last updateThu, 18 Dec 2014 12am

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‘Fitial is not a 10-year-old kid’

 GOVERNOR Benigno R. Fitial is not a 10-year-old child who cannot figure out that a broke government doesn’t need a new power plant, according to Rep. Francisco S. Dela Cruz.

Francisco S. Dela Cruz
He and attorney Ramon Quichocho expressed separate reactions yesterday to the legal opinion of Attorney General Joey Patrick San Nicolas that Fitial is not to blame for the controversial $190 million power purchase agreement.

In his media statement yesterday, San Nicolas said Fitial “is not liable” for any cause of action related to his signing of the no-bid power deal with Saipan Development LLC.

Then-Attorney General Edward T. Buckingham also signed the contract a day before he hastily left the islands in the wee hours of Aug. 4 despite the two counts of misconduct in public office and two counts of CNMI Ethics Act and election law violations filed against him by the Office of the Public Auditor in Superior Court. The complaint was later amended to include one count of obstructing justice for interference with service of process, and misconduct in public office.

Sources told Variety on Thursday last week that San Nicolas was poised “to do the right thing” on the issue of Buckingham’s extradition.

The new AG and the governor had agreed on a “compromise,” Variety was told. The AG will recommend the extradition of Buckingham, but without giving the Senate legal grounds to convict the governor once the 18th House impeaches him.

In short, Fitial is sacrificing Buckingham to save himself from impeachment.

“Fitial is like that. He will sacrifice people around him just to save himself,” said an administration official who declined to be identified.

San Nicolas, in his legal opinion, said, “Although the governor lacked the authority to enter the PPA, the governor is not liable for any cause of action arising out of the PPA because the governor reasonably relied on the attorney general’s certification that the PPA was proper as to form and capacity.”

He added, “The governor should be able to rely on the advice of the commonwealth’s highest legal officer, and cannot be faulted when the attorney general is mistaken.”

In an interview, Dela Cruz said the bottom line is whether the CNMI needs a new power plant that will saddle with a large debt.

He said “the governor knew the answer to that question,” so he did not need the advice of the AG or of any legal counsel.

Dela Cruz said he understands why San Nicolas came out with such an opinion — the AG is the governor’s appointee.

“But the governor is not a 10-year-old boy. He did not need to consult the AG. He should have consulted with power plan experts and the only experts we have here are the people working at the Commonwealth Utilities Corp. These are the people the governor should have consulted with. And CUC says the power plant deal is bad for the CNMI. The then-AG had no idea about power plants,” Dela Cruz said.

In a separate interview, Quichocho, who presents Rep. Janet U. Maratita, Rep. Ray N. Yumul and the CNMI Senate in a lawsuit challenging the validity of the power deal, said Buckingham simply signed the no-bid contract on behalf of the Attorney General’s Office.

Quichocho said there is nothing in the power deal document that indicates Buckingham certified it as to form an legal capacity. This means that the governor knew it was a bad deal for the NMI but he went ahead and signed it anyway. Quichocho said.

He said the governor’s decision to enter into the questionable agreement “is not shielded by the AG’s approval.”

He added, “The governor’s supposed ignorance of the law is not a defense.”

San Nicolas said the then-attorney general “did not indeed certify that the PPA was proper as to form and capacity,” but he said the governor signed the PPA relaying on the former AG’s certification.

“Simply stated, the [former] Attorney General was mistaken,” San Nicolas added.

In his five-page legal opinion, San Nicolas said Executive Order 2012-07 and commonwealth law did not authorize the governor to enter into the PPA because the sources and circumstances of the imminent disaster did not justify suspending CUC’s procurement regulations for the purpose of entering into the PPA.

“The power to suspend laws or regulations to address a disaster is extremely narrow. Stated in the concise form relevant here, 3 CMC Section 5121 provides that the governor may, during a state of disaster emergency ‘Suspend the..regulations of any commonwealth..agency, if strict compliance with the provision of any such ..regulation would in any way prevent, hinder, or delay necessary action in coping with the emergency.’

“Therefore, to enter into the PPA in the manner it was so entered, the governor would need to show that (1) entering into the PPA was necessary to cope with the imminent disaster and (2) that complying with CUC’s procurement regulations would ‘prevent, hinder, or delay’ his necessary action.”

According to San Nicolas, “There is a strong argument that the PPA was not necessary to cope with the disaster. As exhibited above, Executive Order No. 2012-07 identified ‘imminent threat of the inability of the Commonwealth Utilities Corp. to provide critical power generation, water and wastewater services to the CNMI’ and the harm that would cause the public. Executive Order No. 2012-07 further identified four sources of the disaster: (1) the cash crisis, (2) the need for renewable energy projects, (3) the need to employ non-citizen technical workers and (4) the lack of a board of directors.”

However, “the PPA…is not necessary to remedy the cash crisis. The cash crisis is very immediate. Courts outside the commonwealth have established that an ‘emergency’ is not necessarily of short duration, but rather that ‘there is an emergency so long as the situation that gave rise to the remedial legislation remains unabated.’ Nevertheless, the cash crisis is rather short term, and will last only as long as CUC is in dire financial straits. Furthermore, even if the PPA is in the commonwealth’s best interest (which is not at issue here) the PPA has not been shown to generate the kind of income needed to address the cash crisis. Furthermore, the PPA will not show results until a few years’ time.

“Second, the PPA will not provide renewable energy, as the PPA is for a diesel plant, and diesel is not a renewable resource.

“Third, the PPA will not provide technical workers.

“Fourth, and finally, the PPA will not solve the lack of board of directors. Executiv Oorder No, 2012-07 empowers the governor to exercise board functions or designate an agent to exercise those functions. However, the governor or his agents are still bound by the laws and regulations applicable to CUC and its board of directors. In other words, the governor or his agent are still bound by CUC’s procurement regulations.

“There is also a strong argument that CUCs’ procurement regulations would not ‘prevent, hinder, or delay’ necessary action in coping with the emergency in the sense intended by the Disaster Relief Act. Following CUC’s procurement regulations would take time, but as illustrated above, the PPA will not solve any of the sources of the emergency. Furthermore, since the PPA will not take effect and bear fruit for a number of years, it is not a pressing need requiring the suspension of CUC’s procurement regulations. There is ample time to follow the procurement process.”