Abolition of DOF unconstitutional

Legislation seeking to abolish the Department of Finance is unconstitutional, according to the Attorney General’s Office.

Transferring the powers and duties of the department to a statutory created Department of Administration as proposed under SB 12-53 must only be carried out through an amendment of the CNMI Constitution.

Commenting on the Senate proposal, Assistant Attorney General Elliot A. Sattler said the abolition of DOF, which was created by the Constitution, must be ratified by the public through a legislative or popular initiative.

“This constitutional office may not be abolished nor its responsibility to control and regulate the expenditure of public funds be diminished through either an executive order or a law,” he said.

Mr. Sattler’s comments were part of the testimony presented by the AGO to the House Committee on Judiciary and Government Operations chaired by Rep. Dino M. Jones.

The House panel is currently reviewing SB 12-53 before drawing up a report for consideration by the full body.

In another legal analysis, government lawyers also thumbed down a measure seeking to prohibit appointees by the governor to hold office pending legislative advice and consent as provided under the Constitution.

According to Mr. Sattler, such proposal could hamper delivery of public services as appointed officials will have to wait for their confirmation before they can perform duties and responsibilities assigned to their position.

“Without an appointee serving during the pendency of the confirmation process, there could exist within numerous executive branch agencies, departments or other entities of government no individual with authority to implement and discharge… responsibilities such as personnel decisions… or exercising expenditure authority in order to undertake or continue vital governmental programs,” he said.

Moreover, a recent court ruling on Gov. Pedro P. Tenorio’s appointment of Maya B. Kara as acting AG upheld separation of powers between the executive branch and the Legislature.

HB 12-156 appears to be inconsistent with the judicial opinion which ruled that the governor’s appointee can hold office and assume powers until such time that the Senate acts to reject the appointment.

Restrictions on when that appointee can perform the functions of his or her office would only abolish the authority of the governor to make effective and meaningful appointments since the appointee would be prohibited from serving without the legislative approval, Mr. Sattler noted.