Without confirmation, acting AG position unlawful—bill

After months of contention between the Legislature and the administration over Gregory Baka holding the position of acting Attorney General, the Senate has passed a measure clarifying the law that requires Senate confirmation for an individual to hold the position.

Baka succeeded to the position of acting Attorney General on Sept. 28 in the absence of an appointed AG, after Matthew Gregory stepped down from the position. Under the Commonwealth Code, the governor or designee is required to submit the nomination to the Senate, or when applicable, the House, within 30 days of the person being temporarily appointed. If the Senate, and when applicable, the House, does not confirm the appointment of the person holding the temporary appointed position, the position will terminate.

Gov. Benigno R. Fitial has not submitted Baka’s name to the Senate because, as deputy AG, Baka succeeded to the position of acting AG, Baka earlier said. He noted earlier that his salary remains that of deputy Attorney General, his contractual position.

Senate President Pete Reyes, who authored SB 16-51 SD1, or the “Attorney General Confirmation Act of 2009,” said the CNMI can’t continue to operate with an acting Attorney General.

“We cannot continue to operate on an acting capacity AG, using a loophole in the law, because this makes a mockery out of the office, and this is an important office,” he said. “It’s necessary to fill that position. The constitution calls for it, and the fact that Mr. Gregory Baka continues to occupy that, hiding behind a law that provides for the loophole, is just unnecessary. And I think for the highest law enforcement in the land to search for a loophole in the law in order to perpetuate the acting capacity and retain his deputy position, it is just not right.”

All eight Senators present voted in favor of the bill. Sen. Paul Manglona was absent. The House of Representatives must still vote on the measure.

Under the bill, if the governor or his designee does not submit the individual who has been appointed or is otherwise serving in an acting capacity or who has assumed the title of AG, acting AG, or interim AG within 30 days, the individual cannot serve in those positions for two years. If an individual is nominated, but the Senate does not confirm the person within 90 days from the temporary appointed or assumed position date, the position will become vacant and the person nominated can’t be re-nominated during the tenure of the appointing administration. If an individual holds the position of AG, acting AG or interim AG after 90 days without confirmation, they will be breaking the law. Any contracts, purchase orders or timesheets signed after the 90-day period will be null and void.

“At the specific time if no one gets nominated, he would have to take personal liability of all the action that is taken with respect to expenditure funds,” Reyes said of the person holding the position of AG, acting AG or interim AG. “That is the only way to force the nomination to the office of the Attorney General.”

Members of the Legislature, including Senate president Reyes, have been vocal about their opposition of Baka as acting AG.

“The majority of the members, including myself, believe he is not right for the position,” he said. “He is not aggressively pursing many of the cases that involve the recovery of revenues. He’s working at a snail’s pace, and he’s hiding behind budget constraints. Let’s find someone that is more aggressive. Somebody that is willing to take the bull by the horns and begin working, roll up your sleeves and work. Baka is not one of them. We need someone that is willing to work. Not someone that is willing to fill the position and not work.”

There are plenty of lawyers the Senate would confirm, Reyes said, referring to the administration’s stance that there are few people who can fill the position and be confirmed.

“There are people who can be confirmed,” Reyes said. “It’s just not one of them. Send a name. Send a name over and let’s see.”

Baka did not respond to a request for comment for this story, but Charles Reyes, press secretary for the Governor’s Office, said the issue is not just about who the Senate would confirm, but who has a good working relationship with the governor.

“The governor should be given the opportunity to select his own key staff, his own key personnel…. the governor needs to be comfortable with the Attorney General,” the press secretary said.

He added that Fitial would have liked to nominate Baka, but the Senate has let it be known that they would not confirm him.

Last month members of the House of Representatives questioned whether the CNMI is legally able to bring the federalization lawsuit against the U.S. government. Although the OAG is required to represent the CNMI in any such lawsuit, the Jenner & Block law firm has been working on behalf of the CNMI. Responding to arguments made by lawyers for the federal government, Baka in February wrote a letter to United States District Judge Paul L. Friedman saying Jenner & Block is authorized to represent the CNMI.

Questions about Baka’s position should not affect the lawsuit, the Senate president said.

“The AG’s Office is not taking an active role in bringing the case against the federal government anyway. It has no effect at all,” he said.

Although there may be some questions, he added.

“We wonder if the federal lawsuit is a legitimate thing because it requires the approval of the Attorney General and did Baka give that approval as an acting AG? If that is the case, then certainly the move by the executive branch to hire an attorney is legitimate. If not, there is that possibility of whether it is legitimate or not.”