MPLA wants Govendo barred from handling suit

Marianas Public Lands Authority board chair Ana Demapan-Castro and the agency’s directors yesterday sought the disqualification of Superior Court judge Kenneth Govendo from handling the lawsuit filed by Henry Hofschneider, the MPLA commissioner who is questioning the legality of his termination.

Hofschneider’s attorney, Sean Frink, said the move to disqualify Govendo is suspicious due to its timing, when the judge was scheduled to hear the arguments related to the former MPLA commissioner’s claims. He said the MPLA’s move was a “desperate” measure, which may delay the proceeding.

MPLA attorney Matthew Smith said that Govendo had written published letters in 2002 that allegedly show his bias against the MPLA and its predecessor, the Marianas Public Lands Corp., and against boards of public corporations that terminate employees and executive directors.

Gregory also said that Govendo had represented a party as lawyer in a 1992 lawsuit against the MPLC. Govendo has sat on the Superior Court’s bench since June 2003.

Citing a statutory provision and precedent court rulings, Gregory said that a magistrate should disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

“The judge’s letters to the editor show that a reasonable man would have doubts about the judge’s impartiality,” Gregory said.

One of those letters purportedly by Govendo had assailed the MPLA for cheaply leasing out public land to hotels and golf courses and for putting the proceeds in a non-insured bank.

In another published letter in 2002, Govendo allegedly tackled the termination of employees at the Northern Marianas College, wherein he cautioned those who are in positions to terminate jobs to have a “thought process…so as to make the trauma and transition as painless as possible for the employee.”

Another letter purportedly written by Govendo before he became judge focused on the issue of employment termination of executive directors. “Even if policy permits otherwise, a smart lawyer would argue strongly that you don’t terminate high profile executive directors without reasons, and those reasons should be made public.”

Gregory said that Govendo’s letters show the judge’s sympathy for people who have lost their jobs.

“These are precisely the issues we have before the court today, how an executive director should have been treated by a board. The judge clearly believes that such a matter should be handled in a public hearing, one of the ultimate issues in question,” Gregory said.

Frink said that he only received a copy of Gregory’s request to disqualify the judge “seconds” before the scheduled summary judgment hearing on the case yesterday.

“The timing of the motion to me is very suspicious. The defendants have known since last November that judge Govendo was hearing this case, yet they waited right before the hearing on commissioner Hofschneider’s motion for summary judgment in which we would prove that his termination was illegal,” Frink said.

Hofschneider’s lawsuit against Demapan-Castro and the MPLA board seeks monetary compensation and punitive damages of at least $1.75 million.

Hofschneider is asking the court to declare Demapan-Castro’s actions that suspended and eventually terminated him from the MPLA’s top executive post as illegal and thus, null and void.

Hofschneider impleaded the MPLA board as co-defendant in the Superior Court action, saying it has allowed Demapan-Castro to continue using MPLA funds in her personal vendetta against him in the form of legal defense fees and costs, despite the alleged illegality of the MPLA chair’s actions.

Demapan-Castro issued a notice of suspension to Hofschneider last July 9 for alleged insubordination for causing a document requisition to be altered without the board’s consent and for leaving the MPLA board’s July 2, 2004, meeting without permission.

MPLA board members Manuel P. Villagomez and Nicolas M. Nekai had separately questioned Hofschneider’s unilateral suspension. Commonwealth Development Authority chairman Sixto Igisomar had also written to Nekai that the adjustment made by Hofschneider to the requisition document was required by public law.

Frink assailed Demapan-Castro’s unilateral authority to act on behalf of the board, saying it violates the CNMI’s Open Government Meetings and Records Act, which states that: “The board shall act only by the affirmative vote of the majority of the five.”

He also impugned the validity of the Aug. 14, 2003 special board meeting that Demapan-Castro claims gave her unilateral authority to carry out the board’s actions.

“Any action taken at meetings failing to comply with the provisions of the OGA shall be null and void,” Frink said, citing a statutory provision.