Court orders Fund to disclose contents of executive session

The Superior Court yesterday ordered the NMI Retirement Fund to comply with the request of Saipan Mayor Juan Borja Tudela’s consultant Michael C. Malone to disclose the contents of the Fund Board’s executive session held on Oct. 26, 2005.

Associate judge David A. Wiseman, however, ruled that in the event that defendant Fund and its board of trustees claim that all or part of that meeting is protected by an applicable privilege, they must do so in writing filed with the court on or before Nov. 22, 2006.

Wiseman said the notice of claim of privilege must state the specific basis for the claim.

Wiseman said that in the event that Fund files a notice of a claim of privilege, all parties will be ordered to appear in court on Nov. 30, 2006 for a status conference.

He said Malone may file a written reply on or before Nov. 30.

The judge concluded that the Fund’s Board was not acting in a quasi-judicial capacity as it “deliberated” under the cloak of an executive session and is consequently not protected from disclosure under the CNMI’s Open Government Act.

Malone sued the Fund and its then administrator Karl T. Reyes over the Fund’s order to recover alleged overpayments made to him for “double dipping.”

In a petition for judicial review, Malone asked the court to set aside and vacate the Fund’s Dec. 27, 2005 order that sought to recover benefits paid to him as a retirement annuity during the period of his employment with the Office of the Saipan Mayor.

Malone requested the court to overrule such order that determined he had no right to be compensated as Mayoral employee and receive retirement benefits concurrently.

The plaintiff sought court’s order finding that his status as a retiree receiving benefits was properly exempted by the statute from the proscription against reemployment/double dipping.

Court records show that on Jan. 5, 2006, counsel for Malone requested copies of the taped proceedings, including the oral arguments of the Oct. 26, 2005 executive session, the minutes of the executive session deliberation, proceedings of the board meeting deliberation, and decision of Nov. 25, 2005.

On Feb. 27, 2006, counsel for Malone lodged a request under the OPA to review transcripts and public records concerning the oral arguments, deliberation, and decision on Malone’s case.

Although the Fund provided general minutes of both meetings, it refused to supply minutes and other documents and records of the executive session.

The Board also has not furnished any documents or tapes explaining, referencing, or referring to its rejection of the proposed decision of the hearing officer and its adoption of proposed findings and conclusions of the Fund administrators.

In his order, Wiseman said it is obvious from the minutes that available to the court that the Board’s main concern appeared to rest with limiting the Fund’s liability to Malone.

“This motive is irreconcilably distinct from the duty of an independent tribunal which is expected, in fact relied upon, to issue independent determinations based on nothing other than law and equity as applied to the facts before it,” he said.