THE Department of Finance violated the Commonwealth Ethics Act, according to the attorneys of former Gov. Ralph DLG Torres in a brief filed regarding their request for a judicial review of the department’s decision regarding the contract of Assistant Attorney General James Robert Kingman.
Torres is challenging Finance’s refusal to issue a declaratory order on the validity of an employment contract between the Office of the Attorney General and Kingman, who is from Texas.
Torres, through his legal team, filed a petition in court requesting a judicial review of a May 17, 2023 final administrative order by the secretary of Finance, who stated that the department had no authority to issue a ruling and declare that Kingman’s contract executed by the Office of the AG in connection with Commonwealth v Torres, Criminal Action No. 22-0050 was invalid.
Background
On Feb. 28, 2023, Kingman was hired through a $50,000 contract by the AG’s office as a special prosecutor in its misconduct-in-office case against the former governor pertaining to first-class travel.
On March 23, 2023, Torres served an Open Government Act request upon the Department of Finance, requesting to inspect an extensive list of documents associated with the solicitation, negotiation, execution, and payment of Kingman’s contract.
On June 20, 2023, Gov. Arnold I. Palacios informed the Legislature that he had certified and approved Kingman’s employment as an assistant attorney general with an annual salary of $85,000.
Five days later, the Office of the AG announced that Kingman would head a task force to investigate and prosecute government corruption, white collar and financial crimes.
Brief
According to Torres’ attorneys, the OGA response “produced only two documents: 1) a copy of the Kingman contract; and 2) a check stub and copy of a $50,000 check to Kingman as full payment for the Kingman contract. The documentation DOF provided indicates that on Feb. 28, 2023, the same date on which the Attorney General signed the Kingman Contract, the AG also requested DOF to issue the Kingman Payment. DOF issued the Fifty Thousand [Dollars] for [the] Kingman Payment by check dated March 20, 2023.”
Torres “sought the declaratory ruling because the OGA response indicates that the solicitation, preparation, and processing, of the Kingman contract as well as the Kingman Payment failed to comply with significant and material provisions of the Commonwealth’s procurement regulations,” the former governor’s lawyers said.
They are asking the Superior Court to set aside DOF’s May 17, 2023 order and address the merits of their client’s request for a declaratory ruling.
“The issues presented for review are whether the final administrative order is contrary to law, arbitrary, capricious, and/or an abuse of discretion,” the defense attorneys said.
They said the May 17, 2023 DOF order is “not in accordance with the law as it creates an exception contrary to the plain language of procurement regulations.”
They said the DOF order is also “contrary to Commonwealth law as the Commonwealth Ethics Act specifically provides that ‘[a]ll Commonwealth contracts shall include a provision requiring compliance’ with the Ethics Act and ‘[a]ny contract negotiated, entered into, or performed in violation of any of the provisions of this part shall be voidable as to the Commonwealth.’
“The Kingman contract does not contain a provision mandating compliance with the Commonwealth Ethics Act as required by § 8573,” the defense lawyers said.
“Given the uniqueness of this particular matter, it would be futile for Torres to have to litigate or pursue his declaratory relief request under the auspices of DOF or any other governmental agency, given the DOF Order and the fact that the OAG is the attorney for DOF and all executive branch agencies. The DOF Order is a prime example of why it would be futile for Torres to expect an executive branch agency to issue a ruling contrary to the interests of its legal counsel even if that is the appropriate result under Commonwealth law,” the defense lawyers said.
Previously, Judge Pro Tem Arthur Barcinas denied DOF’s motion to dismiss the judicial review petition of Torres, saying the NMI Rules of Procedure for Administrative Appeals’ express language states that these rules govern in the event of any conflict with the NMI Rules of Civil Procedure.
The judge said the NMI Rules of Procedure for Administrative Appeals concerning motions to dismiss expressly state that they may be filed “for failure to exhaust administrative remedies or any other alleged jurisdictional defect.”
Judge Barcinas finds that “the circumstances support a sensible inference that any causes for dismissal beyond jurisdictional defect were intentionally excluded.”
Finance, represented by Assistant Attorney General Dustin Rollins, asked the court to dismiss the petition and affirm Finance’s administrative order, which stated that it lacked authority to issue a declaratory order regarding an existing contract.
According to Rollins, the petition must be dismissed for failure to state a claim upon which relief can be granted. He said Finance properly determined that it did not have authority to issue the declaratory ruling requested in the petition.
He added, “If agencies were required to issue declaratory rulings for determinations already made, theoretically, any person, whether an interested party or not, would be entitled to request a ruling with respect to every contract ever entered into by the Commonwealth or any agency decision ever rendered. That, without question, would be an absurd result.”
Torres is represented by attorneys Viola Alepuyo, Anthony Aguon, Matthew Holley, and Victorino Torres.
