Senate legal counsel explains why Senate is right on bonus resolution

Senate legal counsel Antonette Villagomez, fourth from left, reads some documents in this file photo. Also in the photo are Senate President Jude U. Hofschneider, right, Sen. Victor B. Hocog, third from left, and two Senate staff. (Ferdie De La Torre)

It is the legal opinion of Senate legal counsel Antonette Villagomez that the Senate has the authority to file Senate Joint Resolution 22-09 that approves Gov. Ralph DLG Torres’ request to create a new program and business unit for the government retirees’ $1,000 bonuses.

At a Senate session on Tinian Thursday, Villagomez cited Senate Joint Resolution 19-04 as precedent to support her opinion that the Senate does have authority to introduce a joint resolution entertaining the governor’s request for reprogramming under 1 CMC Section 7204 (d).

Villagomez discussed her legal opinion at the request of Senate President Jude U. Hofschneider (R-Tinian) shortly before the Senate unanimously voted “yes” for the adoption of Senate Joint Resolution 22-09.

Hofschneider said that in December 2021, there was a question by some members of the Legislature that a joint resolution may be not permissible to originate from the Senate, because it has to be House of Representatives’ joint resolution.

Hofschneider, who is the principal author of Senate Joint Resolution 22-09, said he based his current decisions on the guidance of their legal counsel. He said he asked Villagomez to discuss her legal opinion to allow the senators, and members in the community who watched the session on live stream, to understand what the exercise is all about, and how important it is for the Legislature to finally adopt the joint resolution.

Villagomez said that Hofschneider did ask for a legal opinion to answer the question whether or not the Senate is authorized to introduce a joint resolution to approve the request of the governor.

Villagomez said it is true that the House carries the purse of the CNMI government, that Article 2 Section 5 of the NMI Constitution is clear that appropriation and revenue bills may be introduced only in the House.

“That already happened when the House introduced the current fiscal year budget and passed it and the Senate also passed it and it became a law,” she said.

Villagomez said Article 3, Section 9 of the NMI Constitution provides that if a balanced budget is approved by the Legislature, the governor may not reallocate appropriated funds except as provided by law.

“So the governor, once we have a budget, he cannot reprogram the funds—except as provided by law,” she said.

That is provided in the Planning and Budgeting Act, which authorizes the governor to reprogram funds, she said. Villagomez said 1 CMC Section 7402, which is a section of the Planning and Budgeting Act, authorizes the government to reprogram up to 25% of the budget of the Executive Branch of any fiscal year.

“So once we have a budget, the governor can move around monies without the approval of the Legislature—up to 25% of the Executive Branch budget,” she said.

The counsel said 1 CMC Section 7402 (d) authorizes other reprogramming so if the governor needs reprogramming that is not authorized by the 25% or in excess of the 25%, he can still make a request pursuant to that statute.

“That’s the trigger here. And it says here that the governor may request the Legislature for authority to reprogram funds other than such reprogramming as authorized by Subsections a, b, and c,” she said.

Villagomez said Subsection b is the 25% authorization for the governor, and c is the 10% reprogramming authority of the agencies.

She said if the governor doesn’t fit into Subsections a, b, and c, he can make his request pursuant to Subsection d, which he did in this retirees’ bonus case.

In his letter in mid-December that Torres transmitted to both chambers of the Legislature, he requested approval to create a new business unit for the retirees’ bonuses and to authorize the reprogramming of funds within the Executive Branch to fund that business unit.

Villagomez said that based on Article 2 Section 9 of the NMI Constitution, and the Planning and Budgeting Act, 1 CMC Section 7402, that basically gives the governor that authority.

“Now the vehicle for the governor’s request to reprogram shall be subject to approval by joint resolution. It doesn’t say House joint resolution, it doesn’t say Senate joint resolution,” Villagomez pointed out.

Arguably, she said, the Senate can introduce a joint resolution, or the House can introduce a joint resolution to accommodate the governor’s request.

The counsel noted that although it doesn’t specify which joint resolution in the Planning and Budgeting Act, it does provide for a House concurrent resolution. Villagomez said the Act defines what is a House concurrent resolution and the definition clearly states that a joint resolution has to originate in the House.

“So in that case, it is clear the Senate can never introduce a House joint resolution because in the Planning and Budgeting Act, it clearly defines it as a House concurrent resolution that has to originate from the House,” she said.

But in the case of reprogramming, she said, it just says joint resolution, so arguably, the Senate or the House may introduce it.

She said the introduction of Senate joint resolution was also based on the government’s communication, the attorney general’s advice, and the advice of the Settlement Fund’s administrator.

Villagomez said that, based on the Constitution, the Planning and Budgeting Act, and the AG’s advice to the Finance secretary and Torres, they proceeded to draft the Senate joint resolution and introduced it in the Senate.

She said the Senate had introduced Senate Joint Resolution 19-4 on Sept. 24, 2015, adopted the next day, and then the House went ahead and adopted the resolution.

The counsel said Senate Joint Resolution 19-04 authorized the government to reprogram funds in excess of the limits pursuant to 1 CMC Section 7402.

“So that again, 1 CMC 7402 only authorized 25%. The governor submitted a letter to the presiding officers requesting for approval to reprogram funds within its branch but in excess of 25%,” she said.

Villagomez said it’s not additional appropriation and not reprogramming from the Executive Branch or taking from any branch or any other business unit.

“It was just reprogramming in excess of 25% within the Executive Branch,” she said.