‘No to reinstatement’

Former Marianas Public Lands Authority commissioner Henry Hofschneider does not want to be reinstated to his post even though the Superior Court found his termination by MPLA chairwoman Ana Demapan-Castro a violation of the Open Government Meetings and Records Act.

Because of this, Associate Judge Kenneth Govendo did not rule to reinstate Hofschneider. The judge set a jury trial on the case on Oct. 3.

Govendo narrowed down the issues on trial as to whether or not there was a breach of contract when the MPLA, acting through Demapan-Castro, terminated Hofschneider. The trial will also focus on whether or not the alteration of a document requisition by Hofschneider constituted a breach of his employment contract such that he could be terminated for cause.

Govendo noted Hofschneider’s position on his possible reinstatement in a written order he issued last Friday. “When questioned by the court during the hearing regarding the resumption of his position as commissioner of MPLA, Hofschneider answered the court in the negative,” the judge said.

“Although not made on the record, the court recognizes that the existence of this lawsuit would make resuming the job as MPLA commissioner an uncomfortable situation for all parties involved,” he added.

Govendo ruled that Demapan-Castro’s unilateral decision to terminate Hofschneider constituted an OGA violation. He said that the law makes it clear that termination decisions are those undertaken by an agency’s board of directors, not Demapan-Castro alone.

“The court views that the relief available to Hofschneider for this violation would be limited to reinstatement as commissioner of MPLA. At this juncture of the legal proceedings, this remedy is neither realistic nor is it desirable by the parties,” Govendo said.

Govendo also declared that there was an OGA violation when Demapan-Castro terminated Hofschneider through an internal memorandum rather than a public board meeting.

But Govendo also dismissed with finality Hofschneider’s lawsuit against Demapan-Castro in her individual capacity. Demapan-Castro, in her official capacity, and the MPLA board remain as defendants in the $1.75-million suit.

Hofschneider’s suit seeks a court declaration that Demapan-Castro’s actions to suspend and eventually terminate him were illegal, thus null and void.

The complaint stated that Demapan-Castro issued a notice of suspension to Hofschneider last year for alleged insubordination for causing a document requisition to be altered without the board’s consent and for leaving the MPLA board’s July 2, 2004, meeting without permission. The notice indicated that Hofschneider would receive full salary and benefits during the 15-day suspension.

Former MPLA board member Manuel P. Villagomez and board member Nicolas M. Nekai had separately questioned Hofschneider’s unilateral suspension, besides justifying that the commissioner had asked their permission to leave the July 2 meeting. Commonwealth Development Authority chair Sixto Igisomar had also written to Nekai that the adjustment made by Hofschneider to the requisition document was required by public law.

Hofschneider’s attorney, Sean Frink, also accused Demapan-Castro of retaliation when she indefinitely suspended the commissioner, without pay, effective July 30, 2004, pending the opinion of the Attorney General’s Office and the Department of Finance regarding the document alteration issue. He said the chair’s decision failed to allow Hofschneider to correct an alleged wrongful action.

Despite Demapan-Castro’s July 19, 2004 request to the AGO and the Secretary of Finance to promptly look into the matter, Frink said the chair failed to respond to the AG’s request that she identify Hofschneider’s alleged wrongdoing. Frink said a draft report by the Finance Department allegedly exonerated Hofschneider.

Frink has impleaded the MPLA board as Demapan-Castro’s co-defendant, saying it has been allowing the chair to continue expending MPLA funds for her “personal vendetta” against Hofschneider in the form of legal defense fees and costs despite the alleged illegality of the MPLA chair’s actions toward the commissioner. The judge, however, dismissed Hofschneider’s taxpayer’s action.