THE House Committee on Judiciary and Governmental Operations on Tuesday found Frances “Kai” Dela Cruz, the executive assistant of Gov. Ralph DLG Torres, in contempt of a legislative subpoena after she refused to answer the lawmakers’ questions.
It was Rep. Richard Lizama who moved to hold Dela Cruz in contempt and report the committee’s decision to Speaker Edmund S. Villagomez for certification to the Attorney General’s Office.
All the committee members present in the chamber voted yes. They were Lizama, the committee chair, Rep. Celina Babauta, the vice chairman, Vice Speaker Blas Jonathan Attao, Reps. Edwin Propst and Donald Manglona who was on Rota but participated through videoconference.
Rep. Tina Sablan also attended the hearing via videoconference but could not vote because she was not in the CNMI. Rep. Vicente Camacho was absent.
Dela Cruz, whose name appears in many of the documents obtained by the committee pertaining to the governor’s reimbursement requests for utility costs and other expenses, was scheduled to appear before the committee at 10:30 a.m.
She did not show up, which prompted the panel to issue an “expanded subpoena with amended scope” ordering Dela Cruz to be in the House chamber at 1:30 p.m.
The committee also stated that the issuance of an amended subpoena did not mean it was rescinding the initial subpoena issued weeks ago.
The governor’s executive secretary appeared before the committee at 1:30 p.m. accompanied by her legal counsel, Viola Alepuyo, and the governor’s lawyers, Gil Birnbrich, and Washington, D.C.-based Ross Garber who attended via video call.
Birnbrich told the committee that he and Garber are attending the hearing because Dela Cruz is an employee of the Office of the Governor, which he represents.
Alepuyo, for her part, told the committee that issues raised by the governor’s lawyers regarding executive privilege and testimonial immunity have yet to be resolved.
The hearing then proceeded with the committee vice chair, Vice Speaker Blas Jonathan Attao, asking Dela Cruz a preliminary question.
In response, Dela Cruz read a prepared statement explaining her objection to the subpoena due to the following reasons:
• “The subpoena must comply with 1 CMC Section 1302 which says: ‘(a) Service of a subpoena requiring the attendance of a person at a hearing of an investigating committee shall be made at least five days prior to the date of the hearing unless a shorter period of time is authorized by majority vote of all the members of the committee in a particular instance when, in their opinion, the giving of five days notice is not practicable; but if a shorter period of time is authorized, the person subpoenaed shall be given reasonable notice of the hearing, consistent with the particular circumstances involved.’
• “My employer and I have raised testimonial immunity and executive privilege provided under the constitutional separation of powers doctrine.
• “The subpoena is overbroad and it seeks information unrelated to any official duties of myself and/or the governor.
• “The subpoena exceeds the scope of the legislative authority and power.”
When Vice Speaker Attao asked Dela Cruz to state her full name and current position in the governor’s office, the executive assistant again read her prepared statement.
Her “answer” to the subsequent questions of Attao and the other committee members was to re-read her prepared statement.
Contempt
Committee Chair Babauta then reminded Dela Cruz about 1 CMC Section 1306, which states:
“(a) A person shall be in contempt if the person: (1) Fails or refuses to appear in compliance with a subpoena or, having appeared, fails or refuses to testify under oath or affirmation; (2) Fails or refuses to answer any relevant question or fails or refuses to furnish any relevant book, paper, or other document subpoenaed by or on behalf of an investigating committee.”
Representative Propst said it was unfortunate that Dela Cruz refused to answer questions even though her employer, the governor, had stated that he, the governor, has nothing to hide.
He assured Dela Cruz that the committee did not intend to prosecute. However, “your reluctance to testify today [or] to [answer] any of our questions is disrespectful to the chair and to this committee.”
Propst then asked her if the governor instructed her not to answer questions.
Dela Cruz replied by re-reading her prepared statement.
Propst told Dela Cruz: “I sympathize with you, I sympathize for you. You are being used as a pawn by Governor Torres who is willing to sacrifice [you]. We’ve [heard] time and time again that the governor…wants this to move expeditiously, but he is the one making this a complete mockery.”
He said he hopes Dela Cruz would reconsider because “the penalties of contempt are severe. And if you have done nothing wrong, I don’t see why you wouldn’t even be willing to state your name and position. What has the governor said to you to make you so reluctant to answer any of our questions today? Did the governor threaten to fire you?”
Dela Cruz replied by re-reading her prepared statement.
Babauta then read 1 CMC Section 1307: “(a) A person guilty of contempt under this chapter shall upon conviction be fined not more than $1,000 or imprisoned not more than one year, or both.”
She also told Dela Cruz that immunity does not apply to her as the governor’s executive assistant.
Rep. Tina Sablan asked Birnbrich, why he was there if all that Dela Cruz would do was repeat the same objection over and over again.
“I am here to represent the interest of the Office of the Governor,” Birnbrich reiterated. “If any issues come up regarding immunity and anything like that, I can be here to assist or argue.”
Sablan asked him if his role was also to make sure that all Dela Cruz would do was to read her statement of objection and invoke her immunity and privilege.
“I am not here to be her minder,” the lawyer replied. “I am here to represent the interest of the Office of the Governor.”
Sablan told Dela Cruz that she sympathizes with her, as she, Dela Cruz, must be under a lot of pressure.
She is under subpoena and works for a governor who is under investigation “and sitting right next to you is his counsel.”
But Sablan reminded Dela Cruz that she has a legal obligation to comply with the legislative subpoena and cooperate in an ongoing legislative investigation.
Babauta then excused Dela Cruz until further notice but added: “This in no way releases you from the subpoena that was served upon you today. We will notify you of your next appearance date.”
Out of “respect” for the executive branch, Babauta said, the committee “generously accommodated” Dela Cruz with the option to give information in writing, but the governor’s attorneys “have again and again tried to stonewall and object to these hearings.”
Babauta added, “They have claimed privileges and immunities with no legal basis and even threatened to sue the members of this committee if we enforced our lawful subpoena.”
Propst said if the governor has nothing to hide, “Why does he have to spend about $200,000 in taxpayers’ money for legal counsels? Who hires $200,000 worth of lawyers when he has nothing to hide? Only somebody who has plenty to hide.”
Frances “Kai” Dela Cruz, center, is sworn in during a House committee hearing in the House chamber on Tuesday. Also in photo are the governor’s legal counsel, Gil Birnbrich, left, and her legal counsel, Viola Alepuyo.
