IN an administrative order issued on May 17, the Department of Finance said it has no authority to declare that the special prosecutor contract executed by the Office of the Attorney General in connection with Commonwealth v. Torres, Criminal Action No. 22-0050 is invalid.
Former Gov. Ralph DLG Torres, through attorney Viola Alepuyo, has petitioned Finance to declare that the special prosecutor contract violated procurement regulations.
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.
Moreover, the requested declaratory ruling is not authorized under 1 CMC 9107, Finance said.
The department’s administrative order was attached as an exhibit to Torres’ opposition to the government’s request for leave to amend information.
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 said.
Her client is contending that “the special prosecutor contract with the AG is void because it fails to comply with the Commonwealth procurement regulations.”
According to Alepuyo, the AG’s special prosecutor contract is for legal services to be performed for the Commonwealth.
“The procurement regulations specifically recognize that contracts for legal services are subject to the procurement process. Since the person hired by the OAG as a ‘special prosecutor’ is not an employee, then the retention of his services, and the contract for doing so, are governed by the Commonwealth’s procurement regulations,” she said.
Although the special prosecutor contract appears to be a sole-source procurement, it must still comply with the procurement process and procedures applicable to sole-source procurements, Alepuyo added.
The Office of the Attorney General has charged the former governor with 12 counts of misconduct in public office and one count of theft relating to the issuance of airline tickets for business class, first class, or other premium class travel for himself and/or Diann T. Torres, his wife.
The AG’s office also alleged one count of contempt for failure to appear in compliance with a legislative subpoena.
The former governor has denied the charges.
A hearing is scheduled before Judge Pro Tem Arthur Barcinas on June 5, 2023, at 9 a.m.
Tracy Norita
