‘Amend contracts or be terminated’

Acting Attorney General Gregory Baka has notified the assistant attorneys general and special assistant attorneys general they could be terminated without cause if they do not agree to amended contracts.

The contracts of all OAG lawyers are being amended in anticipation of the possible enactment of Senate Bill 16-51, SDI, titled the “Attorney General Confirmation Act of 2009.”

The Senate passed the measure to clarify the law requiring Senate confirmation for an individual to hold the position of AG, acting AG, or interim AG.

“In anticipation of the possible enactment of the enclosed ‘Attorney General Confirmation Act of 2009,’ the contracts of all OAG lawyers’ contracts are being amended to require Assistant Attorneys General or Special Assistant Attorneys General to ‘serve up to a maximum of 30 days per contract period as Acting Attorney General, if so appointed,” he said in an e-mail to the lawyers. “If anyone is unwilling to undertake this important mutual service to the OAG, kindly advise me so we can determine whether or when to begin the process of terminating your contract ‘without cause’ upon 60 days notice, ‘for the convenience of the government.’ The OAG literally cannot function without all of us doing our part.”

There are 16 or 17 people that were sent the notice, according to Baka, and so far all have agreed to amended contracts.

Baka succeeded to the position of acting attorney general on Sept. 28 in the absence of an appointed AG, after Matthew Gregory stepped down from the position. Under the Commonwealth Code, the governor or designee is required to submit the nomination to the Senate, or when applicable, the House, within 30 days of the person being temporarily appointed. If the Senate, and when applicable, the House, does not confirm the appointment of the person holding the temporary appointed position, the position will terminate.

Gov. Benigno R. Fitial has not submitted Baka’s name to the Senate because, as deputy AG, Baka succeeded to the position of acting AG, Baka earlier said. He noted that his salary remains that of deputy attorney general, his contractual position.

Senate President Pete Reyes, who authored the measure, said the CNMI can’t continue to operate with an acting attorney general.

“We cannot continue to operate on an acting AG, using a loophole in the law, because this makes a mockery out of the office, and this is an important office,” he said. “It’s necessary to fill that position. The Constitution calls for it, and the fact that Mr. Gregory Baka continues to occupy that, hiding behind a law that provides for the loophole, is just unnecessary. And I think for the highest law enforcement in the land to search for a loophole in the law in order to perpetuate the acting capacity and retain his deputy position, it is just not right.”

All eight senators present voted in favor of the bill. Sen. Paul Manglona was absent. The House of Representatives must still vote on the measure.

Baka, in a letter to Reyes and House Speaker Arnold Palacios, outlined his concerns with the bill. He cited the federal law related to vacancies and appointments.

“In the case of an officer whose appointment is required to be made by and with the advice and consent of the Senate, upon death, resignation, or other inability to perform the functions and duties of the office, an acting officer undertakes the functions and duties of the vacant office temporarily in an acting capacity,” he wrote, adding that the federal time limit for any one acting officer is generally 210 days or almost seven months. It could be longer due to sickness, a pending Senate confirmation or transitions between administrations. Baka has held the position of acting AG for almost six months.

If successive acting officers are not appointed, an office is expressly permitted to be vacant, Baka wrote about the federal government code.

This example, he said, is the best way to improve sections within the Commonwealth Code. It applies to all departments, is clear and unambiguous, and promotes service of the highest caliber available personnel by allowing adequate time to fill the position.

“In contrast, the subject bill is convoluted and literally promotes or invites litigation, thus doing a grave disservice to our Commonwealth and the administration of our laws,” he added.

However, the biggest flaw in the bill is an “unspoken premise” that no acting AG has been nominated because the governor has failed to nominate a qualified candidate, he said, “as if there were some intention by the Executive Branch to circumvent the confirmation requirement.”

“To the contrary, the reason we have an Acting AG is that no qualified individual has been identified who is willing to serve under the current circumstances. The government cannot force an unwilling individual to be nominated to serve as attorney general,” he said, emphasizing the phrase “no qualified individual has been identified who is willing to serve” by placing it in bold and italicizing it.

Baka recommended to the legislators that they change the wording of the bill by adding “or succeeded to office” after “temporarily appointed,” if they want acting officials to be subject to the same temporal limitations as temporary appointees.

“However, unless we want an Acting-Attorney-General-of-the-Month Club, or the same for other acting department heads, the 30-day limit in that section should be changed to something more reasonable, such as the 210 days used by the federal government,” he wrote.

He has called on the community to help identify qualified and willing candidates for the position of attorney general.

Rep. Tina Sablan said Baka’s notice of termination to the OAG lawyers raises several concerns.

“First, if there are assistant attorneys who believe that Mr. Baka’s ambiguous and indefinite occupation of the acting attorney general position amounts to a circumvention of CNMI law and a violation of Demapan v. Kara, those assistant attorneys are also likely to believe that Mr. Baka’s new policy which paves the way for rotating acting AGs is also illegitimate and a circumvention of law,” she said. “And Mr. Baka is essentially demanding that those attorneys consent to terms that they might believe to be professionally unethical, not to mention illegal.”

Second, Sablan said, it makes no sense that Baka is threatening to fire the few assistant attorneys general left when he has repeatedly said the OAG is understaffed and overworked.

Moreover, one of the provisions of that bill is to bar for two years anyone who has served in an acting capacity as attorney general without ever being confirmed by the Senate, the representative said.

“In attempting to force his assistant attorneys to serve as acting AG, Mr. Baka would also, if this bill is signed into law, be forcing them to rule themselves out as potential candidates for attorney general nominations in the future for at least two years.”

The real problem, however, is that as long as Baka occupies the position indefinitely, the governor will continue not to nominate anyone to the position, and the credibility of the Office of the Attorney General will continue to be in doubt, she said.