FORMER Gov. Ralph DLG Torres is challenging the CNMI Department of Finance’s final agency ruling that refuses to issue a declaratory order on the validity of a government employment contract between the Office of the Attorney General and an off-island lawyer.
Torres, through his defense attorneys Viola Alepuyo, Anthony Aguon, Matthew Holley and Victorino Torres, filed a petition in Superior Court requesting a judicial review of a May 17, 2023, final administrative order by the secretary of Finance who stated that the department has no authority to issue a ruling and declare that the special prosecutor contract executed by the OAG in connection with Commonwealth v. Torres, Criminal Action No. 22-0050, is invalid.
Signed by Secretary of Finance Tracy B. Norita, the department’s administrative order stated that “the declaratory rulings procedure under the Administrative Procedures Act is used to determine how a statutory provision, rule, or order of an agency applies to the particular facts or case raised by the petitioner.”
“It is not a means by which a person may challenge agency decisions that have already been made,” Finance stated.
“Given that the contract is an existing one, it’s ‘applicability’ to a law, rule or order of DOF cannot be in question,” it added.
The former governor named the Department of Finance and the AG’s office as respondents in his judicial review petition filed on June 15, 2023.
The nine-page petition asked the court to vacate or set aside the final agency decision denying the request for declaratory relief, saying “that it is arbitrary, capricious, and abuse of discretion and/or contrary to law.”
The petition wanted the court to issue an order ruling that:
a) NMIAC § 70-30.3-030 applies to the Special Prosecutor contract, and that the contract fails to comply with the procurement regulations; and
b) The Special Prosecutor contract is void pursuant to NMIAC § 70-30.3-030 as it does not comply with the Commonwealth procurement regulations.
Alternatively, the judicial review petition requested that the court vacate or otherwise set aside the DOF final agency ruling and remand the matter back to the agency for a decision on the merits of the request for declaratory relief by an independent and unbiased hearing officer.
Statement of facts
On or about April 8, 2022, the OAG filed Commonwealth v, Torres, Criminal Case No. 22- 0050, which criminally charged Mr. Torres with offenses alleging misconduct in office.
The alleged offenses currently before the court all arise out of the CNMI’s approval and issuance of certain airline tickets.
On or about Feb. 28, 2023, the OAG purportedly hired an off-island attorney, not licensed in the CNMI, to prosecute the Criminal Case.
The OAG hired the special prosecutor pursuant to a sole source contractual engagement.
DOF is the governmental entity empowered to oversee governmental contracting.
DOF has promulgated procurement regulations that govern and regulate governmental contracts which are codified at NMIAC § 70-30-3.
CNMI procurement regulations apply to sole source contracts.
DOF’s procurement regulations apply to the OAG’s contract with the special prosecutor.
NMIAC § 70-30.3-30 is a procurement regulation promulgated by DOF which expressly and without any qualification provides that “[n]o contract shall be valid unless” it complies with the procurement regulations.
Procurement regulation NMIAC §70-30.3-040(h) defines the term “contract” to mean “all types of agreements, including purchase orders, regardless of what they may be called for the procurement of goods, services, or construction.”
Pursuant to NMIAC § 70-30.3-050, procurement records and information are “matter[s] of public record and shall be available for public inspection” in accordance with the Open Government Act or OGA codified at 1 CMC § 9109 et seq.
On or around March 23, 2023, former Gov. Torres served an OGA request with DOF seeking a copy of communications and other records associated with the contract between the OAG and the special prosecutor.
DOF responded to the OGA by letter dated April 10, 2023.
DOF also produced four pages in response to the request which consisted of a copy of the contract and documents reflecting payment of an initial $50,000 retainer.
According to the petition, A review of the documents produced by DOF in response to the OAG establish that the contract at issue fails to comply with CNMI procurement regulations.
Giving an example, it stated that there was not a written justification by the OAG for the sole source procurement as required by regulations.
The petition also stated that there was no approval by the director of Procurement and Supply of a justification for the sole source procurement as required, and the contract was not prepared by the OAG as required.
Moreover, according to the petition, there was no certification that the contract does not constitute a waste or abuse of public funds, the contract was not signed or approved by the director of Procurement and Supply, the contract was not approved by the DOF secretary or her designee who also certifies the availability of funds as required, and the special prosecutor signed the contract prior to “all necessary Government signatures” had been obtained as required by regulations.
The contract provided for a lump sum advance payment of the initial contract amount of $50,000 prior to the performance of any services, there was no written justification from the OAG for the lump sum advance payment of the initial contract amount, and the contract does not contain the Ethics clauses mandated by the regulations, the petition stated.
It said the contract does not contain a fixed price or maximum amount to which the contractor can charge as required.
“Instead, the CNMI government contract provides for an initial $50,000 retainer which is continuously replenished in $10,000 increments without any limitation on the number of replenishments or establishing a maximum amount that will be paid under the contract,” the petition for judicial review stated.
“Mr. Torres did not receive any communication or notice of any kind from DOF concerning or relating to his request prior to his receipt of DOF’s adverse final agency ruling. Mr. Torres is aggrieved by the final agency ruling because, among other reasons, he has the constitutional right to only be prosecuted by a person who lawfully possesses and wields the CNMI’s prosecutorial power and authority, and he is being deprived of that right as he is being prosecuted by a person whose contract is invalid as it utterly fails to comply with or follow DOF’s procurement regulations in its formation, execution, and payment. Mr. Torres is further aggrieved by the final agency ruling because it constitutes DOF’s willingness to allow a person to possess and wield CNMI prosecutorial power and authority without a lawful contract,” his petition stated.
The former governor “has exhausted the mandated administrative remedies available to it under the DOF Procurement Regulations and venue in this court is therefore proper under 1 CMC § 9112.”
The petition stated that DOF’s final agency ruling “is contrary to law, arbitrary, capricious, and/or an abuse of discretion.”
Among other things the petition stated that: (1) DOF did not act as an impartial body in that, without any appearance or opposition from the Office of the AG, it advocated a defense on behalf of the OAG; (2) it never notified Torres of its concern regarding the request and offered Torres an opportunity to be heard in connection with its concern prior to ruling; and (3) it did not treat the request as a contested action.
DOF rejected and dismissed Torres’ request based solely for political reasons, the petition stated.
“DOF’s rejection and dismissal of Torres’ request violates his constitutional rights to due process and equal protection; DOF not assigning this matter to an independent hearing officer violates Torres’ constitutional due process rights; and DOF not assigning this matter to an independent hearing officer violates the CNMI’s Government Ethics Code, since the request involved and concerned DOF’s legal counsel,” the petition stated.
Procurement regulations
Former Gov. Torres, through attorney Viola Alepuyo, petitioned Finance to declare that the special prosecutor’s contract violated procurement regulations.
In a four-page letter to Norita dated April 18, 2023, Alepuyo said: “Since this protest involves a procurement and contract to which the OAG is a party, then you should not consult with the OAG, the Attorney General, and or any assistant AG for legal advice, representation, or guidance in connection with addressing or deciding this petition. Engaging in any consultation with or receiving legal advice, representation, or guidance from the OAG and or the AG, or an AAG in relation to this petition would not be in compliance with the Ethics in Public Contracting or the Government Ethics Code.”
“Mr. Torres requests a declaratory ruling regarding the validity of the special prosecutor contract as he is adversely affected or aggrieved by the contract by denying him his constitutional and statutory rights to be prosecuted by a lawfully appointed or procured prosecutor,” Alepuyo added.
Pro hac admission
Recently, the CNMI Supreme Court denied the former governor’s motion to reconsider the pro hac vice admission of Special Prosecutor James Robert Kingman.
The Office of the AG hired Kingman, a private attorney from Texas, to assist in the prosecution of the misconduct in public office case against former Gov. Torres relating to first-class travel.
On March 6, 2023, the CNMI Supreme Court granted the application for pro hac vice of Kingman to act as a special prosecutor in Superior Court Case No. 22-0050, Commonwealth v. Ralph Anthony DLG Torres.
The high court also waived the $5,000 pro hac vice admission fee.
Kingman, whose pro hac vice admission will expire after a year, is the lead prosecutor in the criminal case. Chief Solicitor J. Robert Glass Jr. is Kingman’s pro hac vice admission sponsor.
According to the defense team’s seven-page motion, admission to the CNMI Bar is a serious matter and not a perfunctory or ritualistic process.
They said Kingman’s application for admission to the CNMI Bar without examination is deficient and does not comply with the applicable admission rules.
Pro hac vice refers to a temporary admission granted to an attorney who is not licensed to practice law in a particular jurisdiction but is allowed to appear in a specific case or proceeding within that jurisdiction.
