‘Hofschneider termination violated law’

Superior Court Judge Kenneth Govendo yesterday declared that the termination of former Marianas Public Lands Authority commissioner Henry Hofschneider violated the Open Government Meetings and Records Act.

But Govendo also dismissed with finality Hofschneider’s lawsuit against MPLA board chair Ana Demapan-Castro in her individual capacity. Castro, in her official capacity, and the MPLA board remain as defendants in the $1.75-million suit filed by Hofschneider.

The judge also junked with finality certain causes of action in Hofschneider’s suit, including interference with contractual and economic relations and taxpayer’s action.

Govendo did not elaborate, saying that he would come out with a written order detailing his opinion. The judge said the case would go to trial, denying the MPLA board’s request for dismissal that is anchored partly on Hofschneider’s alleged failure to exhaust administrative remedies when the former commissioner filed the civil action before the Superior Court.

“It’s time for Mr. Hofschneider and the MPLA board to have their day in court,” the judge said during a court hearing yesterday, less than a month after he refused to recuse himself from hearing the case. The MPLA board had asked for Govendo’s recusal.

Hofschneider’s attorney, Sean Emory Frink, indicated that he wanted a bench trial on the case. Govendo instructed MPLA board attorney Matthew Gregory to find out if his client wants a trial by jury.

In an interview, Frink said the court found violations of the Open Government Act when the board conducted a special meeting on Aug. 14, 2003. The board gave Demapan-Castro unilateral authority to carry out the board’s actions in that special meeting. Demapan-Castro asserted that unilateral authority when she fired Hofschneider from the commissioner post, Frink said.

Hofschneider’s lawsuit wants the court to declare that Demapan-Castro’s actions—suspending and eventually terminating him from MPLA—were illegal, and thus, null and void.

The complaint stated that Demapan-Castro issued a notice of suspension to Hofschneider last July 9 for alleged insubordination when he allowed a document requisition to be altered without the board’s consent and when he left an MPLA board meeting on July 2, 2004, without permission. The notice indicated that Hofschneider would receive full salary and benefits during the 15-day suspension.

MPLA board members Manuel P. Villagomez and Nicolas M. Nekai had separately questioned Hofschneider’s unilateral suspension; they had also argued that Hofschneider had asked their permission to leave the July 2 meeting. 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.

“Demapan-Castro evidently had already made up her mind to carry out her will, regardless of the facts and people that clearly indicated that she was wrong, what the other board members thought, and regardless of the commissioner’s rights, because she hand wrote on Villagomez’s July 19, 2004 letter ‘over my dead body,’” Frink stated. He said Villagomez’s letter proposed a meeting among board members and Hofschneider to settle the dispute between the commissioner and the board chair.

Frink also accused Demapan-Castro of retaliating against Hofschneider when she indefinitely suspended him without pay on July 30, 2004, pending the opinion of the Attorney General’s Office and the Department of Finance regarding Hofschneider’s document alteration action. He said the chair’s decision failed to allow Hofschneider to correct an alleged wrongful action.

Despite Demapan-Castro’s July 19, 2004 request to the AGO and the Secretary of Finance to promptly look into the matter, Frink said the chair failed to respond to the AG’s request that she identify Hofschneider’s alleged wrongdoing. Frink said a draft report by the Finance Department allegedly exonerated Hofschneider.

Frink has impleaded the MPLA board as Demapan-Castro’s co-defendant, saying that it has allowed the chair to continue expending MPLA funds for her “personal vendetta” against Hofschneider in the form of legal defense fees and costs, despite the alleged illegality of the MPLA chair’s actions against the commissioner.