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Pacific Islands Development Program, East-West Center

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CNMI AG’s Office Defends Buckingham’s Actions
Office seeks to remove former AG from civil complaint

By Andrew O. De Guzman

SAIPAN, CNMI (Marianas Variety, Dec. 5, 2012) – Former Attorney General Edward T. Buckingham acted within the scope of his employment relating to the $190 million power purchase agreement entered into by Gov. Benigno R. Fitial and Saipan Development LLC, and thus he must be removed from the civil complaint, and the commonwealth substituted in his stead, according to the Commonwealth of the Northern Mariana Islands Attorney General’s Office (AGO).

On March 27, 2012, Fitial and Saipan Development LLC president Donald R. Kurz signed the power plant development and management agreement that was "approved as to form and legal capacity" by then-AG Buckingham, based on documents submitted in the Superior Court, and the U.S. District Court for the NMI which is hearing the Commonwealth Utilities Corp.’s compliance with the federal stipulated orders to bring water and waste water services to federal standards.

Superior Court Judge David A. Wiseman has upheld the fugitive disentitlement doctrine that was pursued by Office of Public Auditor legal counsel George Hasselback who filed the criminal complaint against Buckingham.

Buckingham left the island on Aug. 4, 2012, escorted by police officials and officers, including the governor’s bodyguard, at the airport.

In the taxpayers’ civil lawsuit challenging the validity of the no-bid $190 million power deal, the AGO submitted a notice of substitution and motion for order dismissing Buckingham, and to substitute the CNMI government as defendant.

The lawsuit was filed by Reps. Janet Maratita, Ray Yumul, and the CNMI Senate through attorney Ramon K. Quichocho.

The AGO submitted a certification of scope of employment, stating that Buckingham "was acting within the scope of his employment as attorney general…at the time of the alleged incident giving rise to the claims of plaintiffs."

Assistant Attorney General Gilbert Birnbrich, who is the AGO chief of the civil division, signed the certification on behalf of then-acting Attorney General Viola Alepuyo.

In its notice of substitution and motion for order, Assistant Attorney General Charles Brasington told the court that Public Law 15-22 (codified as the Government Liability Act at 7 CMC 2201–2210) "provides for the mandatory substitution of the commonwealth as the defendant in cases in which commonwealth employees are sued in their individual capacities for actions taken within the scope of their employment."

The commonwealth, Brasington added, is asking the court to enter an order dismissing Buckingham from counts 1, 2, 4, and 5 of the case "with prejudice, and substituting the commonwealth as the defendant in his stead."

The causes of action are:

  • Count 1, to stop illegal expenditure of public funds against Fitial, Buckingham, and CUC;
  • Count 2, breach of fiduciary duty against Fitial, Buckingham, and CUC;
  • Count 3, breach of trust against Fitial;
  • Count 4, declaratory relief against all defendants;
  • Count 5, injunction and damages against all defendants.

Judge Wiseman has placed under advisement a motion to dismiss the lawsuit.

Through his local attorney Brien Sers Nicholas, Buckingham has asked the CNMI Supreme Court to issue a writ of mandamus or, in the alternative, to stop Judge Wiseman from hearing the OPA criminal complaint against the former AG.

Sers Nicholas questioned the Superior Court’s jurisdiction over the case and to issue orders that ultimately resulted in Buckingham being declared a fugitive from justice.

Buckingham didn’t appear for his arraignment on Aug. 6, 2012. Citing the former AG’s "open and flagrant violation of a court order," Wiseman issued a bench warrant against Buckingham and bail was set at $50,000.

Hasselback charged Buckingham with one count of use of public supplies, services, time and personnel for campaign activities; one count of use of the name of a government department or agency to campaign and/or express support for a candidate running for public office; two counts of misconduct in public office, one count of failure to produce documents or information; one count of obstructing justice for interference with service of process, and misconduct in public office.

Buckingham has denied any wrongdoing, saying he is ready to face the charges against him.

Marianas Variety:
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