NMI Fund Trustee Ad Litem ‘No Longer Needed’

admin's picture

Government says Fund board has regained quorum

By Alexie Villegas Zotomayor

SAIPAN, CNMI (Marianas Variety, Jan. 10, 2013) – Now that a quorum of the Commonwealth of the Northern Mariana Islands’ Retirement Fund board has been established, the trustee ad litem is no longer needed.

This is the position of the defendant CNMI government as it asked the court to relieve the trustee ad litem of his duties now that the Fund board has regained its quorum.

In her Jan. 9 motion to relieve the trustee ad litem of duties and memorandum in support thereof, Assistant Attorney General Teresita J. Sablan reasoned that the court should relieve the trustee of his duties because (1) the board has regained its capacity; (2) the Fund’s problems are a local matter and should be handled by the trustees and elected policymakers; and (3) relieving the trustee ad litem of his duties could save the CNMI hundreds of thousands of dollars during the course of the litigation.

In arguing for the termination of the trustee ad litem’s services, Sablan said state courts also follow that the need for an ad litem appointee ceases when the represented party’s disability ceases.

Martin DLG San Nicolas and Jose Limes, who were nominated by the governor on Nov. 14, 2012 to serve as trustees on the Fund board, were confirmed by the Senate on Jan. 8, 2013.

"With new trustees, the board now has a quorum," said Sablan.

The Fund board is now composed of Adelina Roberto, Nacrina Barcinas, Limes and San Nicolas.

Four trustees out of the seven-member, full-functioning board comprise a quorum.

Sablan said, "The court appointed the TAL to represent the interests of the formerly incapacitated board pursuant to Federal Rule of Civil Procedure 17(c). The board now has four trustees and has regained its capacity to defend itself in this suit."

In saying that the removal of the trustee ad litem is supported by both law and public policy, Sablan requested the court to determine the board’s disability has ceased and relieve the trustee of his duties.

"The procedure for terminating the power of an appointee ad litem when capacity is restored varies: some jurisdictions follow the rule that the powers of an appointee ad litem automatically cease as a matter of law when a represented party regains capacity, while others require a formal motion to remove the appointee ad litem," said Sablan.

She also said that the court does not have a local rule governing the procedure for removing an appointee ad litem.

With the court deciding not to include the language of the trustee ad litem’s removal once quorum is restored in the Sept. 14 order and directing the government to file papers in this regard, Sablan said this could be the procedure that the court follows.

She said the appointment of the trustee ad litem was made by the court following Rule 17c because the Fund lacked a quorum and could not defend itself in the Betty Johnson case.

With the Fund board’s quorum restored, Sablan said the need for the trustee ad litem has ended.

She said the court should look at state law to determine whether incapacity of the board has ended.

Under CNMI law, Sablan said the Fund board is vested with the powers to sue and be sued. "The board cannot make a decision to sue or to direct a defense of a suit brought against it unless it has a quorum of four trustees."

When the court lifted the stay on the proceedings in the Betty Johnson case, the Fund was incapable of defending itself, and that prompted the court to appoint a trustee ad litem.

Sablan said, "The board now has a quorum and can direct its defense in this suit."

Arguing that the Fund problems are a local matter, Sablan said state and local governments must be allowed to make their own determination of the best method to protect the pension rights of municipal and state employees.

Sablan also expressed the government’s concern that the trustee ad litem is paid at rates "beyond what is statutorily allowed for duly appointed trustees."

She noted that absent the billing for November and December, the trustee ad litem is asking for $60,949.83.

For Sablan, this is above what an individual trustee gets for an entire year and even more than the annual cap for the Fund board.

She said relieving the trustee ad litem of his duties would save the commonwealth "hundreds of thousands of dollars" during the pendency of the litigation.

Sablan also said that public policy supports the removal of the trustee ad litem so the appointed trustees can assume their duties and so that the trustee ad litem does not continue to deplete public funds.

Rate this article: 
No votes yet

Add new comment