‘AG failed miserably’

The Attorney General has failed to properly defend the government in the Retirement Fund’s lawsuit against the Commonwealth, according to Senate President Pete Reyes, who has authorized legal counsel Mike Ernest to look into the matter for the Legislature’s benefit.

In November, Superior Court Associate Judge Kenneth L. Govendo found the CNMI government and Gov. Benigno R. Fitial liable in the lawsuit filed by the Retirement Fund over the government’s failure to remit the required employer contributions, now reportedly reaching over $119.6 million. The judge granted the Fund’s request for default judgment after the Attorney General’s Office, as counsel for Fitial and the government, waited nearly two years to answer the complaint.

Govendo found no adequate reason for the delay and ordered the defendants’ answer to the complaint be stricken from the record.

Reyes said the attorney general failed to do his duties as the AG.

“The attorney general miserably failed in his responsibility to defend the government, and in doing so, put into jeopardy the power of the Legislature to appropriate money. And I take that very seriously, and I think every member of this body should take this seriously and defend it with everything we have,” Reyes said.

The government failed to file their response to the default judgment within the allotted time, Govendo wrote in his ruling granting a default judgment. Govendo said he was appalled by this inexcusable lapse on the part of the Commonwealth as the government was put on notice in August 2006 that an answer was going to have to be filed.

The judge said OAG Civil Division’s Anthony Welch also stated both in court on Oct. 17, 2008, and in his motion to extend time to answer that he was too preoccupied with the Commonwealth Utilities Corp. and other responsibilities to address the Fund’s complaint.

Legal counsel Ernest said the Constitution is clear that the Attorney General must represent the Commonwealth, but, with Reyes’ authorization, he will go to the Retirement Fund to make more direct inquiries.

“The nuts and bolts of it is the Commonwealth Constitution requires the attorney general to defend us, and that didn’t happen for whatever reason—if the attorney general thinks the case is indefensible, then that’s one thing. And I would really not like to substitute my judgment for his. Its not my place to do that.”

The Office of the Attorney General could have a reason for not acting, Ernest added.

Ernest said he sent an e-mail to Attorney General Greg Baka and Welch on Jan. 14, inquiring into the matter, but as of Tuesday had not heard anything back.

An earlier e-mail sent to Ernest which was later given to Reyes seems to show the AG’s Office is not planning on asking for the judgment to be set aside, Reyes said.

“And to me, of course I’m not a lawyer, but doesn’t that mean they’re not going to appeal?” Reyes asked Ernest.

“That appears to be their present posture,” Ernest said “But the statements are not official. It’s just him chatting with me. It just happens to be in an e-mail. Their posture seems to be ride it out and see what happens in February, when the next hearing is.”

The attorney general could be doing exactly what the governor wants him to do, Ernest said, adding that he wants to know if it was a trial tactic.

“If that’s the case, we’re in for a bumpy ride come time to pay the judgment,” he said.

The legal counsel said there are some arguments that could be made that the government does not owe or does not owe as much.

“There are arguments we can make,” Ernest said. “Will they ultimately prevail? I don’t know. I do think it would be nice to be able to make some arguments and defend the Commonwealth.”

Reyes said if Ernest does not get the necessary information he will sign a subpoena if necessary.

He also said he would use his influence not to get acting Attorney General Baka confirmed in the Senate.