Judge Arthur Barcinas
JUDGE Pro Tempore Arthur Barcinas has ordered the Department of Finance to issue a declaratory order on the validity of an employment contract between the Office of the Attorney General and Assistant Attorney General James Kingman.
Citing previous rulings, Judge Barcinas, in an eight-page order on Tuesday, Nov. 5, said, “Even if the court did not find that Petitioner [former Gov. Ralph DLG Torres] was entitled to a declaratory ruling…it would still find that Petitioner is entitled to a declaratory ruling on the grounds that if the DOF made no determination, there would be no other means of review available outside of the Court itself. Thus, the Court does not accept that the DOF’s powers of review are applicable only to hypotheticals, as that would essentially leave it to the Court to take on the work of an executive agency.”
The judge likewise finds that the plain language of 1 CMC § 9107 does not allow for the DOF’s interpretation.
“The Court finds the language of the statute to be clear and unambiguous, and thus will give it its plain meaning. The statute does not state that declaratory rulings must be only in the context of hypothetical circumstances, and the court will not read such limitations into the statute barring NMI Supreme Court interpretation to that effect or revision by the Commonwealth Legislature,” Judge Barcinas said.
He remanded the case to Finance and ordered the department to issue a declaratory ruling on the validity of Kingman’s government employment contract.
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 former Gov. Ralph DLG Torres 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.
Judicial review
Torres has challenged Finance’s refusal to issue a declaratory order on the validity of an employment contract between the OAG and Kingman.
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 was executed by the Office of the AG in connection with Commonwealth v Torres, Criminal Action No. 22-0050, was invalid.
According to Torres’ attorneys, the OAG 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 that 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 OAG 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,” Torres’ lawyers said.
They asked 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 lawyers 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 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 lawyers said.
Torres is represented by attorneys Viola Alepuyo, Anthony Aguon, Matthew Holley, and Victorino Torres.
Previously, 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.
But Judge Barcinas denied the motion to dismiss, saying that “the circumstances support a sensible inference that any causes for dismissal beyond jurisdictional defect were intentionally excluded.”
