AG: Section 3 of HB 20-43 is unconstitutional

Attorney General Edward Manibusan has raised concerns with Rep. Ivan Blanco about a bill introduced in the House of Representatives, House Bill 20-43, which attempts to clarify and define the authority of the Office of the Attorney General.

In a letter dated March 17, 2017, sent to Blanco, Manibusan pointed out that Section 3 of HB 20-43 interferes with the attorney general’s constitutional duties, and Section 2 prevents the attorney general from the effective risk management of the Commonwealth’s obligations.

Manibusan stated that H.B. 20-43, Section 3, violates the attorney general’s constitutional duty to advise the governor and heads of executive departments on legal matters. In support of that position, the attorney general referred to the Analysis of the Constitution of the Commonwealth of the Northern Mariana Islands. The Analysis states that executive departments may not “engag[e] outside counsel to represent the department in any legal matter without a grant of authority from the attorney general.”

Because H.B. 20-43, Section 3, authorizes executive departments to contract and obtain non-governmental private counsel without the consent or approval of the attorney general, Section 3 is unconstitutional, he said.

The attorney general also stated that “Section 2 of the bill prevents the attorney general from effective risk management of the Commonwealth’s obligations.” Specifically, the restrictions in Section 2 prevent the OAG from providing adequate legal representation.

Further, the elimination of the attorney general’s required review and approval of rules, regulations, and contractual obligations removes statutory safeguards that protect Commonwealth executive officials who err in their duties.

“Allowing executive agencies to obtain private legal counsel without a grant of authority will harm the attorney general’s ability to maintain consistent policy on legal issues and to effectively use Commonwealth resources. As a result, enactment of HB 20-43 will likely lead to an increase in legal conflicts between Commonwealth agencies and the duplication of legal and technical work,” he said.

Manibusan stated that he has taken substantial steps in improving the procurement process. Since taking office, disputes in regard to the procurement process and contracts have been substantially reduced; forms for the Division of Procurement & Supply have been modernized and streamlined; procurement training workshops have been provided to agency staff members; and a draft of a complete overhaul of the existing procurement rules and regulations, which will eliminate outdated procedures, simplify the procurement process, and relieve the attorney general of having to apply irrelevant provisions, has been presented to the Secretary of Finance.