“A person previously nominated and confirmed by the Senate need not be reconfirmed by the Senate so long as the person remains in the same position,” Buckingham said in his three-page legal opinion published in the February edition of the Commonwealth Register.
His legal opinion was released in the wake of public concerns over certain political appointees holding cabinet positions.
The AG explained the CNMI Constitution is silent as to the term of the department heads, saying only: “The governor may remove the heads of the executive departments.”
He said both the Constitution and the Commonwealth Code are also silent regarding political appointments following the re-election of governor.
Besides Fitial, only one other CNMI governor won re-election, Pedro P. Tenorio in 1985. Tenorio also won a third term in 1997.
Except for the public auditor who serves a term of six years upon confirmation by both houses of the Legislature, all other political appointees, including the AG, serve at the pleasure of the governor after their Senate confirmation.
Hence, Buckingham said: “It would be inappropriate to conclude that the framers [of the Constitution] contemplated terms of both limited and indefinite duration. Accordingly, it would be inappropriate to conclude that the framers meant to explicitly limit the duration of the heads of the executive branch departments when they pointedly chose not to.”
He cited, as an example, New Mexico to back his legal conclusion.
“Current law requires that cabinet secretaries be confirmed by the state Senate, but, once confirmed, a secretary serves at the pleasure of the governor. Constitutional Amendment No. 3 proposes to add a new section to Article 5 of the Constitution of New Mexico that would require that the heads of all cabinet-level departments or agencies whose appointment is subject to confirmation by the state Senate be reconfirmed at the beginning of each term of a governor,” he said.
“This opinion seems in line with the treatment of U.S. cabinet members. For example, the current secretary of defense, Robert M. Gates, was appointed by President George W. Bush and confirmed by the United States Senate in December 2006.
Secretary Gates remains in the position after the election of President Obama and did not require re-nomination by the president or reconfirmation by the U.S. Senate,” he added.
