OPA: House rule change unconstitutional

The rule allowing House members to draw an allowance from their office allotments is unconstitutional, according to an opinion yesterday by the Office of the Public Auditor.

Public Auditor Michael Pai gave this opinion in response to eight questions raised by the House minority members bloc last Wednesday, who had sought OPA’s guidance in the matter.

Minority leader Rep. Edwin Propst (Ind-Saipan), along with Reps. Christina Sablan (Ind-Saipan), Edmund Villagomez (Ind-Saipan), Sheila Babauta (Ind-Saipan), Richard Lizama (Ind-Saipan), and Donald Manglona (Ind-Rota) asked OPA last February to ask its opinion on House Rule XIII Section 10 (a) on allowances.

Section 10(a) states that “a member of the House may use a portion of the funds under the member’s individual office account as an allowance of $2,500 but not more than $5,000 per month to defray the costs of food, lodging, and other incidental expenses related to community events and activities, and other expenses incurred by reason of attending legislative business in any Senatorial District and outside the Commonwealth.”

The House, with the support of the minority, had already adopted its rules during a session last month.

Sablan said the minority would release a joint statement once they finish reviewing Pai’s answers.

“This opinion was provided based on a request for guidance by the minority members. We received the opinion [Thursday] morning. We are still reviewing OPA’s analysis and would be happy to provide a statement once that review is complete.

“We will also be providing copies for all the members of the House as well. We have not yet received the opinion we requested from the Attorney [General’s Office], but we understand that opinion is forthcoming,” she added.

Pai said the OPA had addressed a similar issue in 2003 on whether legislators’ allowances could be provided through legislative rule change instead of by legislation. “Though the specifics in 2003 and present rule changes differ, the mechanics of their creation suffer the same constitutional flaws.”

“Article II, Section 10 of the CNMI Constitution discusses the Legislature’s compensation, and additionally permits ‘reasonable allowances for expenses provided by law.’ The specifics [are] that allowances must be reasonable and they must be created by law.

“By law,” Pai said, “means the ordinary legislative process governed by Article II, Sections 5 and 7 of the Constitution requiring a majority of each legislative body and action or non-action by the Executive [Branch].”

Creating an allowance through legislative rule instead of by law violates the principle of the separation of powers, Pai said, and bypasses the governor’s veto power and evading review by the Judiciary.

Pai said the rule change violates the spirit of the CNMI Constitution. “Even if lawful, [it] would create ideal conditions for poor accountability of public funds. Assuming the motivation for the rule change was to simplify access to funds for legislative expenses, OPA has several suggestions that might streamline access, while maintaining at least some level of accounting.”

He said that OPA recognizes the requirement of having each House member keep records of all the expenses and transactions made using the allowance—to maintain accountability and transparency.