Fitial Still A Defendant In NMI Power Deal

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Pacific Islands Development Program, East-West Center With Support From Center for Pacific Islands Studies, University of Hawai‘i

Attempt to substitute government for ex-governor fails

By Andrew O. De Guzman

SAIPAN, CNMI (Marianas Variety, May 29, 2013) – Superior Court Judge David A. Wiseman yesterday denied the commonwealth’s motion to substitute for former Northern Marianas Gov. Benigno R. Fitial as defendant in the taxpayer lawsuit challenging the validity of Fitial’s controversial no-bid $190 million power purchase agreement with Saipan Development LLC.

Fitial has been charged with illegal expenditure of public funds, breach of fiduciary duty, breach of trust, and declaratory relief and an injunction. He was later impeached by the House of Representatives and resigned before the start of his trial in the Senate.

Benigno Fitial

The commonwealth asked the court to substitute the CNMI government for Fitial as to count three which alleges breach of fiduciary duty.

The Attorney General’s Office submitted a certification of scope of employment signed by AG Joey San Nicolas, certifying that Fitial was acting within the scope of his employment as CNMI governor at the time of the alleged incidents giving rise to the claims of the plaintiffs.

The movants argued that a plaintiff may be able to recover against the individual employee for actions brought for a violation of the CNMI Constitution.

The plaintiffs pointed out that according to the Commonwealth Employees Liability and Tort Compensation Act of 2006, or CELRTCA, exclusive remedy rule does not apply because count three arises out of a violation of the CNMI Constitution under Article X, Section 9.

The commonwealth argued that "count three reads like a count in common law breach of trust, which is not a constitutional claim."

The commonwealth said that "if count three is indeed a constitutional claim, then defendant Fitial would be entitled to qualified immunity under the reasoning employed in the pending motion to dismiss of defendant Fitial."

In his three-page order signed yesterday, Wiseman said: "The court finds count three does not sound in common law breach of trust but rather sounds in a constitutional claim. The claim is brought as a taxpayer action and asserts defendant Fitial, as the former governor of the CNMI, breached his duty of trust by allegedly misapplying public funds. Because count three arises out of a violation of the CNMI Constitution, the exclusive remedy rule does not apply and the CNMI government is not a proper substitution for defendant Fitial."

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