‘Abolish MPLA’

To Rep. Aldan and Sen. Pangelinan:

As a concerned citizen of the Commonwealth, I am writing to express my full, personal support of House Bill No. 15-57, a measure intended to abolish the Marianas Public Lands Authority and to establish a new Department of Public Lands to manage and to administer Commonwealth public lands. The proposed bill would transfer the authority to administer and manage public lands from a board of directors composed of several public representatives to the new Department of Public Lands. In your consideration of this measure, it is very important for the legislature to examine the underlying reasons for the proposed legislation. If established, such reasons would provide the factual basis, together with the relevant public policy considerations, that would justify the enactment of the measure.

The administration of Gov. Benigno R. Fitial is proposing the enactment of this measure because it has determined that MPLA has acted or committed acts that are either questionable, unethical, in violation of Commonwealth law or of the MPLA board’s fiduciary duties and responsibilities under the NMI constitution, MPLA’s enabling statute or under the common law. For example, it is said that the members of the MPLA board and its present chairwoman have failed to carry out their statutory and common law duties as trustees of Commonwealth public lands. It is said that the board has failed to transfer excess funds derived from MPLA leases of public lands to the Marianas Public Lands Trust to be invested for the benefit people of the Commonwealth. If this is true, then clearly they have violated their statutory and constitutional obligations that require the MPLA board to do so.

It is also said that the MPLA board and its present chairwoman have violated their obligations under Commonwealth law that prohibits nepotism in government personnel hiring. Examples mentioned are the hiring of the chairwoman’s own brother to be the chief financial officer of MPLA; the hiring of the chairwoman’s own daughter to be the chief of the MPLA real estate division; and the hiring of the chairwoman’s son-in-law to a position with MPLA. If this is true, then she has personally violated the law against nepotism in government hiring. And if the MPLA board is aware of these personnel actions by the chairwoman and they condone such actions, then they also are privy to such misconduct.

It is also said that all hiring of personnel at MPLA and all firing of personnel at MPLA have to go through and be approved first by the chairwoman. Further, it is said that in approving the contracts of employees who are hired under contracts, the friends and relatives of the chairwoman are given long-term contracts, while those who are not close to her are given only three-to-six months contracts. These personnel actions—if true—are unfair and are good examples of the MPLA board micromanaging the agency, which has a public land commissioner as MPLA chief executive to do the hiring of MPLA personnel. Board members should know that they are policymaking officials; they are not management officials. Such practice by the board constitutes micromanaging and is poor agency practice. Further, if the MPLA board treats contract employees differently and without any reason or basis, such actions would constitute discrimination by a government agency and exposes MPLA to potential civil liability and money damages, which the government cannot afford.

It is also said that MPLA has wasted hundreds of thousands of dollars in board compensation, travel cost, per diem, legal counsel fees, and so forth. This is an extremely serious allegation and must be investigated and verified by the public auditor and the attorney general, because if the allegations are true, then the MPLA board has violated the laws of the Commonwealth and have acted as if the agency is their own personal golden egg. All monies generated by the agency are public funds and should never be treated or wasted by any MPLA official or board member as if they can do whatever they want to do with such public funds, with impunity. The fact that MPLA is a semi-autonomous entity, and handles its budget separately and independently from the general CNMI treasury does not give the board a blank check to do whatever it wants to do and to pay its personnel whatever salary it decides to pay. What if they decide, for example, to pay their chief executive and its chief financial officer an annual salary of $250,000? What would stop the board from doing so? How is that any different from their alleged plan to pay the two officials a salary of $120,000? Where does the MPLA board draw the line? Clearly, the line was drawn by the legislature by law many years ago with the salary cap legislation, but certain agencies like MPLA have just ignored it, and nobody has yet to be prosecuted for it. The previous attorney general refused to do so. Without enforcement, the salary cap law is not worth the paper it is written on.

It is also said that contracts for certain public land projects have been awarded by MPLA without following procurement regulations and awarding such contracts only after public notice to the most responsive and responsible bidder. If this is true, then such would constitute violations of CNMI law (statutory and regulatory). These actions must immediately be stopped and those responsible should be investigated and be brought to justice. Such acts by members of the MPLA board, if true, would also constitute violations of their fiduciary duty and obligations under the NMI constitution, the enabling legislation of MPLA, and the common law.

It is also said that MPLA officials and board members perceive themselves as being untouchable because the agency is semi-autonomous and operates independently of the executive branch whey it comes to personnel and budgetary matters. It is said that the MPLA board views the agency as a personal fiefdom. It is said that this is the reason why they have been acting arrogantly toward anyone that comes in their way, including the legislature and the governor. The name-calling and personal accusations made yesterday by the MPLA chairwoman at the public hearing on this measure was truly unbecoming of a public official. It should not go unanswered by this Committee. It is a very sad reflection on the arrogance that MPLA officials have been exhibiting for some time now. And the irony of it all is that they try to cover themselves under the cloak that all of their actions are for the sole benefit of the indigenous people of the Commonwealth. The whole thing is so embarrassing for the people of the Commonwealth.

It is true, as one witness said at the public hearing on Friday, that power corrupts and that absolute power corrupts absolutely. If the allegations against MPLA are true, then it would be the board members and top management officials of MPLA to whom this adage would appear to apply. It is not the chief executive who has just started his new term and wants to set things right. The people of the Commonwealth have just voted for him and he should be accorded the opportunity to carry out his work. If he does something similar to what the MPLA officials appear to have been doing, the voters should kick him out of office when his term ends. But the focus now is on MPLA, and not the governor or the legislature. For MPLA to try and turn the table on the executive branch or the legislature is indeed a very clever strategy on the part of MPLA. This Committee, however, should not be distracted by such obvious strategy: to try and throw off the Committee from focusing on MPLA.

The entire focus of this public hearing should be only on the MPLA board and its top officials. The hearing should focus on how the agency has performed and carried out its duties and responsibilities under the NMI constitution, laws, and regulations. If it has performed in accordance with law and in accordance with its fiduciary duties and obligations, then House Bill 15-57 should not be passed. The measure should be tabled. If, however, MPLA has not fulfilled its fiduciary duties and obligations under our constitution and laws, including their common law fiduciary obligations, then the board should either be dismissed or MPLA should be abolished.

The question for the Committee to ask is what course of action is appropriate to take, based on the Committee’s findings. Is the system of having a board of trustee administer public lands a bad system in light of the findings of the Committee, or is the system of having a board of trustees okay and could be fixed, by simply removing the present board members and top officials?

Another question to ask is whether there is really any difference between the executive branch administering CNMI public lands and having an independent board do so. The federal government, as we know, administers all federal public lands without a board and is doing just fine. It appears then that the real public concern with the administration of public lands is whether the person or persons administering CNMI public lands would not abuse its authority and squander away our public lands to cronies and friends or for personal gain or advantage. Corruption of public office occurs whether you have a board administering public lands or the executive branch. The critical question to ask instead is whether there is a public advantage, one way or the other, by having the executive branch administer CNMI public lands. As they say, the proof of the pudding is in the eating.

Would, for example, the administration of public lands by the executive branch save the CNMI government money, and would its expenditures for such administration be much less than under administration by an independent agency? Would there be better coordination of public land matters if the administration of public lands is placed within the executive branch? Would there be consistency in the application of the public policies of the CNMI government if the administration of public land is placed within the executive branch? Could statutory checks be placed on the executive branch for its administration of public lands, so that any potential abuse could be eliminated or minimized as much as possible? For example, if there are abuses in the administration of public lands by the executive branch, what checks are there now, aside from an audit of the administration of public lands by the CNMI Public Auditor that would put some teeth in the law? For example, should the CNMI legislature enact a law that would provide for a special prosecutor to be appointed by the Attorney General to investigate any wrongdoing committed by the executive branch in the administration of public lands and any other matters where the Attorney General has a conflict because he is an appointee of the governor? And if the Attorney General refuses to appoint a special prosecutor when requested by the legislature, then the Supreme Court should do so. This would be a good example of checks and balance between our three branches of government.

The points I have just mentioned go into the realm of CNMI public policy. Once the underlying facts are established by the Committee as alleged in the proposed findings of House Bill 15-57, it is necessary for the Committee to then decide whether, notwithstanding those facts, the present system of having a board of trustees administer CNMI public lands should continue. If it finds that the present system is so tainted by the MPLA board actions, and that as a matter of public policy, it is best to abolish MPLA and its board and put back its function within the executive branch, it should do so. I personally believe that the administration of CNMI public lands by an autonomous board that is answerable to no one invites abuse and should be stopped. Further, it is my personal view that the administration of public lands should go back to the executive branch as intended by the NMI constitution. The chief executive would then be answerable to the voters of the Commonwealth and be held accountable to them. We have seen this happen on many occasions in the past with respect to gubernatorial elections, where the voters make known their disappointment during the general election. This is the major check the electorate has on our elected officials.

If the legislature decides to enact House Bill 15-57, it still has an obligation to put into the proposed legislation sufficient checks on the executive branch so that the Department of Public Lands would not just give away and squander public lands. For example, the legislature should provide sufficient restrictions on the management and disposition of public lands. It must examine the fundamental policies set forth in the legislation to determine whether such policies need to be further strengthened to prevent abuse by public officials. It must provide for a special prosecutor as mentioned earlier, so that any abuse or violation of law with respect to the administration and disposition of public lands will be prosecuted by an independent prosecutor appointed by the Attorney General or the Supreme Court. There must be sufficient guidelines in place to be followed by the new Department of Public Lands.

Finally, the main reason why I believe that MPLA should be abolished is the fact that its constitutionality is highly questionable. When the NMI constitution provided that the Marianas Public Lands Corporation is to be dissolved after 12-years of existence and its function shall be placed within the executive branch, it did not envision, intend or provide that a successor entity similar to MPLC would subsequently be created by legislation. If that were constitutionally permissible, why would the NMI constitution require the dissolution of MPLC if the legislature were to turn around and establish by legislation an almost identical entity? It does not make any sense. Attorney Howard Willens appears correct in his assessment that the MPLA statute violates the NMI constitution. Both the executive branch and the legislative branch should seriously look into this constitutional issue, without any political consideration and notwithstanding any alleged violation of law by the MPLA board and management officials. The fact that CNMI leaders have wrongly assumed for several years now that such legislation is permissible does not make it constitutional. This issue is of paramount importance and must be resolved.

Thank you for the opportunity to provide the foregoing comments. I sincerely apologize for the length of my comments, but I believe that the issue before the Committee is of extreme importance for all the people of the Commonwealth. The Committee’s deliberation and consideration of the proposed legislation should be objective, fair and impartial to all of the parties concerned, including the members of the MPLA board and management.

Jose S. Dela Cruz
Retired Chief Justice
NMI Supreme Court
Navy Hill, Saipan