AG warns Saipan mayor against appointment

Attorney General Herb Soll has warned Saipan Mayor Jose C. Sablan against appointing an acting mayor who will carry out official functions while he is off-island because it is unlawful to do so.

The AGO’s legal opinion was requested by Mayor Sablan who expressed concern on the earlier legal analysis made by lawyer David Wiseman that he had no constitutional authority to take such action. Mr. Wiseman advised that any acts performed by such a delegated person would be “highly questionable.”

In an effort to resolve the problem, Mr. Soll recommended to the Mayor’s Office to draft and seek the passage of a local law for the appointment of an acting-Mayor.

The island-municipality of Tinian has addressed a similar situation by passing a local law in 1992 which was signed by then Gov. Lorenzo De Leon Guerrero that gave the island leader the power to designate an acting mayor during his abasence.

The powers and responsibilities of the Mayor’s Office are derived from both the CNMI Constitution and by statutory authority.
Neither Article VI of the Constitution or the statutes in the Commonwealth provide any authority for any acting mayor to be appointed when the mayor is simply physically not present.

“We believe that it is necessary to have an express grant of authority to do something as important as a temporary transfer of “mayoral power.” Absent this authority, any attempt to appoint an acting mayor would be unlawful,” Mr. Soll said.

While the AGO has concluded that the appointment of an acting mayor does not comform with the law of the Commonwealth, it does not mean then that the acts performed by such an improperly delegated individual are not valid, including civil marriage ceremonies and other important functions that were authorized by the acting mayor.

Mr. Soll said the acts performed by the acting mayor are valid under the doctrines of ratification and de facto officer.

“Ratification holds that acts performed by another become valid after the principal approves of said acts. Such approval can either be silent acceptance, or in other words failure to take action to overturn any such acts,” he said.

Mr. Soll cited several cases involving alleged improper appointment of government officials but their acts were still considered valid even if the agent who performed such acts might not have legal claim to the authority.
“The de factor officer doctrine confers validity upon “acts performed by the person acting under the color of official title, even though it is later discovered that the legality of that person’s appointment is deficient,” he said.

According to Mr. Soll, the de facto officer doctrine is especially strong when it concerns public officials because innocent persons who depended on the validity of a public official’s acts could be harmed.