Case vs Mondala dismissed

Superior Court Associate Judge Kenneth L. Govendo dismissed yesterday the case against former Office of Aging director Rose DLG. Mondala, ruling that the appointment of Office of the Public Auditor legal counsel George L. Hasselback as a special assistant attorney general in the case violates the separation of powers doctrine.

The case is dismissed without prejudice, which means a new case can be refiled on the same claim or allegations in the future.

Govendo ordered that any cash bail or property bond be exonerated and returned to the posting party. He relieved the duty of any third party custodian.

The judge ruled that the attorney general violated the separation of powers by delegating general prosecutorial powers to members of an agency that has no such legislatively created authority.

“In the absence of legislative action, the AG has no authority to delegate his prosecutorial powers to personnel in other agencies, particularly when so doing impermissibly expands that agency’s constitutional and statutory authority,” said Govendo in the footnote of his order that granted Mondala’s motion to dismiss.

The judge said the Legislature must clarify the OPA’s prosecutorial authority if it wants the OPA’s legal counsel to be more involved in criminal proceedings against government employees involved in corruption.

“The Joint Task Force’s purpose can be accomplished if the Legislature works closely with the OPA to increase the OPA’s ability to prosecute these types of cases,” he said.

Mondala has been charged with 22 counts of forgery; six counts of misconduct in public office; eight counts of use of public supplies, time, and personnel for campaign activities; two counts of use of public position to obtain benefits for business or social acquaintances; one count of theft services; one count of theft; and one count of use of office, staff or employees of a public office for personal benefit.

All counts relate to a period of time between June 15, 2009, and Dec. 10, 2010, while Mondala was the director of the Office of Aging, a government agency.

OPA accused the 69-year-old Mondala of using the Aging Office’s funds and materials for the needs of the Covenant Party during the 2009 elections and to build a fence at her house in Kagman.

Mondala, through assistant public defender Eden Schwartz, filed a motion to dismiss the charges, claiming that OPA lacks statutory and constitutional authority to prosecute her.

Schwartz argued, among other things, that OPA has limited authority to investigate and prosecute criminal cases.

In the government’s opposition, Hasselback asserted that the motion should be dismissed because it is based on the incorrect belief that OPA is prosecuting this case when, in fact, Mondala is being prosecuted by the Office of the Attorney General.

Hasselback said this case is a result of an OPA investigation presented to a Joint Task Force, composed of the OAG, OPA, and the Department of Public Safety.

Hasselback noted, among other things, that the case was brought before the chief prosecutor and was approved for prosecution. He said the AG appointed him as a special assistant attorney general to prosecute this case.

In dismissing the case, Govendo said the AG has the power to appoint assistant attorneys general as he deems necessary and as his budget allows to effectively represent the government and its interests.

Citing case law, Govendo said the CNMI Supreme Court has found that the Superior Court may appoint a special assistant attorney general even though there is no explicit statutory or constitutional authority to do so.

Govendo said he finds that such power should also be extended to the Commonwealth’s AG, particularly given the wide latitude provided to him in staffing his office.

“It is the AG who is in the best position to understand the needs and abilities of his office, and it is the AG who ultimately understands how best to staff his office in order to fulfill the duties required of him by the Constitution,” he said.

Govendo said that participation in a Joint Task Force that investigates and prosecutes the same crimes for which OPA was created to discover and prevent clearly falls within the Public Auditor’s mandate.

“Consequently, the use of the OPA’s funds toward the Joint Task Force does not violate the Constitution,” the judge said.

Given that OPA is not an Executive Branch agency, Govendo said it does not enjoy the same protections against violations of separation of powers that may be applicable to other agencies that fall within one specific branch of government.

Govendo said to date, OPA has not been granted any general prosecutorial duties and, instead, it has been granted the limited authority to prosecute the governor and the AG.

He said OPA’s mandate does not allow for prosecutions beyond those designated by law.

The judge said the governor’s ability to change or reallocate the functions and duties of government agencies is limited to agencies contained within the Executive Branch of government.

Since OPA falls outside the Executive Branch, an executive order would not suffice to give OPA more authority than that which has been granted to it by the Legislature, Govendo said.