OPA: Fitial’s interpretation of statute absurd, incorrect

Former governor Benigno R. Fitial’s assertion that the Public Auditor has no authority to bring the charges against him is based on incorrect interpretation of a statute that would result in absurdities, according to OPA legal counsel George L. Hasselback.

In the CNMI government’s opposition to Fitial’s motion to dismiss the charges, Hasselback asked the Superior Court to reject Fitial’s interpretation of the statute (Section 7847) as this “would result in absurdities.”

Fitial, through counsel Stephen N. Nutting, argued that the Legislature had no authority to grant to the Public Auditor the power to prosecute a criminal complaint, especially when that power was afforded to the Attorney General under the CNMI Constitution.

Even if the statute were constitutional, it did not give the Public Auditor the authority to bring criminal charges against a former governor, and now, private citizen, said Nutting in a motion to dismiss.

Associate Judge David A. Wiseman will hold a hearing on the motion to dismiss tomorrow, Wednesday, at 1:30pm.

In the government’s opposition filed Friday, Hasselback cited the absurdities as a result of the incorrect interpretation of the statute.

For instance, Hasselback said, consider the situation that could arise if an investigation of allegations of criminal activity on the part of a sitting attorney general or governor were undertaken by OPA pursuant to Section 7847.

“Like any other criminal investigation, evidence would be gathered, documents secured and copied and witnesses interviewed,” Hasselback said.

He said depending upon the complexity of the legal issues involved, dozens, if not hundreds of man-hours would be spent conducting the investigation.

Hasselback said that, according to Fitial’s interpretation of the statute, the authority to continue that investigation and/or bring a criminal case based upon that investigation would disappear entirely if the target of the investigation left their position as AG or governor for any reason whatsoever.

Hasselback said the entire investigation would grind to a halt, because there would be no statutory authority to continue it.

“The Public Auditor would lack the ability to put to use all of the information gathered in the investigation, as he or she would lack the authority to prosecute the case,” he pointed out.

Hasselback said such a potential waste of time, money, and resources cannot be what was intended by the CNMI Legislature and cannot be the result of a reasonable reading of the statute.

The OPA counsel said not only does this interpretation disregard the basic sentence structure of the statute, but such an interpretation would also result in absurd applications that would waste time, money and resources of the government, as to render the entire statute useless.

Hasselback said the entirety of Fitial’s argument rests upon a flawed interpretation of the CNMI Constitution that concludes that the Office of the Attorney General is vested with exclusive jurisdiction over the prosecution of violations of the CNMI Criminal Code.

Hasselback said the CNMI Supreme Court will likely rule that, contrary to Fitial’s argument, the “power to prosecute” granted to the OAG “is not absolute” and “OPA’s duty to investigate and prosecute the AG” is part of a “system of checks and balances, which included the creation of the OPA to serve as a sentinel against government malfeasance.”

Hasselback said Fitial misapplies a nonexistent standard for dismissal in a criminal case.

He said the defendant’s arguments disregard the Commonwealth Rules of Criminal Procedure and attempt to inappropriately lure the court into a pretrial fact-finding venture prior to the establishment of any factual record.

Hasselback also asserted, among other things, that the Public Auditor may bring charges under the statute at any time he believes there to be “reasonable grounds” notwithstanding any previous action or inaction by his office so long as he is not barred by any statute of limitation.

On May 1, 2014, OPA filed a complaint charging Fitial with 10 various criminal charges. OPA later amended the information to include three more charges.

The charges are related to the unauthorized release of a federal inmate, award of a sole-source American Recovery and Reinvestment Act contract, shielding of former attorney general Edward T. Buckingham from being served with penal summons, and the execution of a power purchase agreement contract related to the Commonwealth Utilities Corp.

Fitial, 68, pleaded not guilty to all charges.