Defense seeks court’s’ help in Kingman contract quarrel

After the Department of Finance issued a final ruling declining to address a request to find special prosecutor James Kingman’s contract with the Office of the Attorney General invalid, the defense team for former governor Ralph DLG Torres has filed a petition with the Superior Court to set aside the agency’s decision in the matter.

Torres’ defense team filed last week a petition for judicial review of agency decision and named the CNMI Department of Finance and the Office of the Attorney General as respondents.

The petition comes after Finance Secretary Tract B. Norita declined to rule or address the merits of Torres’ request for a declaratory ruling that finds Kingman’s contract with the OAG invalid.

In addition, the agency ruling dismissed Torres’ request finding that the department lacks the authority to issue a declaratory ruling because Kingman’s contract had already been signed.

As relief, Torres is asking the Superior Court to vacate the DOF’s final agency decision on the grounds that the ruling was arbitrary, capricious, an abuse of discretion, and contrary to law. The defense also wants the court to rule that the special prosecutor’s contract fails to comply with procurement regulations and is therefore void.

Alternatively, Torres asks that the court set aside the DOF’s final agency ruling and remand the matter back to the agency for a decision on the merits of his request for declaratory relief by an independent and unbiased hearing officer.

Ralph DLG Torres

On or about April 8, 2022, the OAG criminally charged the former governor with offenses alleging misconduct in office. On or about Feb. 28, 2023, the OAG hired off-island attorney Kingman, who is not licensed in the CNMI, to serve as special prosecutor in this case, pursuant to a sole-source contractual engagement.

DOF is the governmental entity empowered to oversee governmental contracting and has procurement regulations that govern and regulate governmental contracts, the defense noted.

Torres’ defense team stated that the CNMI procurement regulations apply to sole source contracts, meaning DOF’s procurement regulations apply to the OAG’s contract with the special prosecutor.

On or around March 23, 2023, Torres served an Open Government Act request with DOF seeking a copy of communications and other records associated with the contract between the OAG and the special prosecutor.

DOF produced four pages in response to the request, which consisted of a copy of the contract and documents reflecting payment of an initial $50,000 retainer.

According to the petition, a review of the documents produced by DOF in response to the OAG establishes that the contract fails to comply with CNMI procurement regulations.

The petition also stated that there was no approval by the director of Procurement and Supply of a justification for the sole source procurement as required, and the contract was not prepared by the OAG as required.

“There was no certification that the contract does not constitute a waste or abuse of public funds, the contract was not signed or approved by the director of Procurement and Supply, the contract was not approved by the DOF secretary or her designee who also certifies the availability of funds as required, and the special prosecutor signed the contract prior to all necessary government signatures had been obtained as required by regulations,” the petition stated.

“The contract provided for a lump sum advance payment of the initial contract amount of $50,000 prior to the performance of any services, there was no written justification from the OAG for the lump sum advance payment of the initial contract amount, and the contract does not contain the Ethics clauses mandated by the regulations,” the petition added.

The defense also stated that the contract does not contain a fixed price or maximum amount to which the contractor can charge, as required by procurement laws.

“Instead, the CNMI government contract provides for an initial $50,000 retainer, which is continuously replenished in $10,000 increments without any limitation on the number of replenishments or establishing a maximum amount that will be paid under the contract,” the petition stated.

Ultimately, Torres’ defense team believes that the DOF’s rejection and dismissal of his request violates his constitutional rights to due process and equal protection

“DOF not assigning this matter to an independent hearing officer violates Torres’ constitutional due process rights and DOF not assigning this matter to an independent hearing officer violates the CNMI’s Government Ethics Code, since the request involved and concerned DOF’s legal counsel,” the petition states.

In closing, the defense stated that the former governor has exhausted the mandated administrative remedies available to it under the DOF Procurement Regulations, so it is only proper that the matter be brought before the Superior Court.

“DOF’s final agency ruling is contrary to law, arbitrary, capricious, and/or an abuse of discretion. DOF did not act as an impartial body in that, without any appearance or opposition from the Office of the AG, it advocated a defense on behalf of the OAG; it never notified Torres of its concern regarding the request and offered Torres an opportunity to be heard in connection with its concern prior to ruling; and it did not treat the request as a contested action. DOF rejected and dismissed Torres’ request based solely for political reasons,” the petition stated.