‘Public officials not immune if they willfully violate the law’

Public officials are not entitled to qualified immunity if there is a finding that they have willfully and knowingly violated the law, according to Rep. Tina Sablan.

Sablan said public officials are not covered by such immunity if they demonstrate plain incompetence in the conduct of their duties.

The lawmaker expressed her position on the immunity issue in her response to the motion to dismiss the lawsuit filed by Gov. Benigno R. Fitial, acting Attorney General Gregory Baka, and Finance Secretary Eloy S. Inos.

Sablan appeared in the Superior Court yesterday afternoon for the hearing in the defendants’ motion to dismiss her Open Government Act lawsuit.

Assistant Attorney General Braddock Huesman appeared for Fitial, Baka, and Inos.

Order

After listening to the arguments, associate judge David A. Wiseman said he will issue a ruling on whether Baka was improperly named a co-defendant in the case. Wiseman said he will also issue an order about guidelines.

The judge ordered the parties to appear on April 9 to address the main issue whether Sablan is entitled to the documents that she requested.

Sablan told the media after the hearing that the court heard preliminary issues in the case that were raised by the government’s motion to dismiss.

Sablan said one issue was whether or not Baka should be included as a defendant and whether or not the defendants should be held personally liable or whether or not they are entitled to qualified immunity.

Sablan said the April 9 hearing will tackle the actual merits of her petition—whether or not the records that she is seeking should be subject to an exemption of the Open Government Act.

Properly named

The lawmaker said her position is that Baka is properly named as a defendant under the rules of court and considering he is the custodian of the records she is seeking.

As acting AG, Baka is supposed to represent the Commonwealth in all legal matters, Sablan said, including the lawsuit against federalization.

In her pleadings, Sablan said that, as the court has not yet reviewed the evidence and the merits of her petition, as well as the merits, if any, of the defendants’ claimed exemption from disclosure, “it is premature to determine whether or not willful and knowing violations of the law, or plain demonstrations of incompetence, have been committed by defendants in their refusal to disclose records.”

She said the OGA should be liberally construed to mean that Baka may be held responsible for violations of the Act in refusing to disclose records subject to disclosure, even if an OGA request was not made in a form specifically and directly addressed to him.

“Significantly, the Open Government Act does not explicitly require that a public officer have a request for information specifically and directly addressed to him in order for that public officer to be held responsible for violations of the Act,” Sablan said.

Improper request

Huesman argued that some of the relief requested by Sablan’s petition are not available under the statute and is, therefore, improper.

Huesman asserted that Baka never received any OGA request. In the defendants’ motion to dismiss, Huesman said Baka could not have violated the OGA as no request was made of him.

Huesman branded as an “improper request” Sablan’s prayer to hold Fitial, Baka, and Inos personally liable for all costs awarded to her in connection with her lawsuit, in addition to any civil penalties deemed reasonable by the court.

Huesman also asserted that to the extent required, defendants are entitled to qualified immunity from the lawsuit.

He said qualified immunity is available to officials “who err in their duties so long as the mistake is one that a ‘reasonable’ officer could have made.”

Sablan filed the lawsuit to compel the administration to disclose where it is getting the money to fund the lawsuit against federalization.

She asked the court to issue an order mandating Fitial, Inos, and Baka to fulfill their obligations under CNMI law by making available the requested materials within 48 hours of the court’s decision. Sablan asserted that the refusal of the defendants to disclose records identifying funding sources and contracts connected to the lawsuit that has been filed on behalf of the CNMI people is a violation of the OGA.