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Editorial | What’s it all about

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THE PSS funding controversy was triggered by the not-so specific language in the constitutional provision that guarantees PSS 25% of the “general revenues of the Commonwealth.” The Board of Education says this means that PSS is entitled to 25% of all of the government’s revenues. But according to the administration — and the attorney general — general revenues do not include the special revenues earmarked for specific purposes (retirees’ pension, bond payments, etc.).


To resolve the dispute, the governor and the then-BOE chairwoman submitted a certified question to the local Supreme Court in Oct. 2018. In Jan. 2020, the high court unanimously found that “PSS is entitled to general revenue, not special revenue.” But two of three justices also ruled that some of the government’s “special revenues” are actually part of the “general revenues,” and that therefore PSS is also entitled to 25% of those funds which include allotments for the retirees.
To determine if revenue is “general” or “special,” Chief Justice Alex Castro and Justice John Manglona said there must be “a required nexus between the revenue’s source and purpose….”
(This “requirement,” according to Justice Perry Inos’s more compelling dissent, has “no constitutional or statutory support.” He added, “I would not…interpose a relationship requirement between the revenue’s source and purpose…. A relationship element, if any, is a policy matter for the legislature to decide, not the courts. The general revenues, of which PSS is entitled to 25%, are what remains after deducting the special revenues.” Justice Inos is right. But he was outvoted, 1 to 2.)
The lawsuit authorized by three of the BOE’s five members in a board meeting on Feb. 26, 2020 identified eight earmarks that “do not comport” with the two justices’ definition of “special revenue.” The governor said these include $14 million set aside for the retirees.
The lawsuit is asking the trial court to uphold the high court’s 2-1 ruling that applies to the funding allotments for the retirees. The lawsuit is likely to be successful. (Can the lower court contradict the higher court’s ruling?) Soon, this cash strapped-government will have $14 million less for the retirees. Hence, the governor’s open letter to them, stating that because of the lawsuit, he can no longer guarantee the retirees’ 25% benefit payments, and that starting on April 15, 2020, the CNMI government can only pay the 75% mandated by the settlement agreement. (From the Sept. 2017 “Report of the Trustee” filed in federal court: “The 25% benefit payment and bonus payment are voluntary payments from the Government, and are not required under the Settlement Agreement.”)
The governor identified the problem and proposed a solution. He asked BOE members Phillip Mendiola-Long, Marylou Ada and Andrew Orsini to withdraw the lawsuit while the CNMI leadership find ways to meet the central government’s obligations to PSS.
At the BOE meeting on Feb. 26, 2020, Mr. Mendiola-Long acknowledged that the two other BOE members who opposed the filing of the lawsuit — Janice Tenorio and Herman Atalig — “have valid points,” and that “we must understand that if PSS [files the lawsuit] it is going to cripple the general fund.” So why did he support it? Mr. Mendiola-Long said he chose to “take care of the families” that he was “asked to take care of…. [Those] who need me the most.” Apparently, no one among the school system’s personnel are related to retirees.
During the same BOE meeting, Mr. Orsini thundered: “I want to throw this burden back to these people up there [Capital Hill] [so they can] figure…out what they’re going to do…. If we cannot operate this institution then we gotta shut it down!”
But, of course, these are not “divisive” statements. A lawsuit that pits PSS personnel against the retirees amid an unprecedented economic meltdown caused by a pandemic — that is not “divisive.” The governor alone is “divisive,” according to his political opponents whose pronouncements are, to be sure, not “divisive.” Only those who disagree with them are “divisive” if not morally defective. And never mind that politics is about never-ending divisions and differences through which elected officials — including the supposedly non-partisan BOE members — are supposed to navigate.
Now we can quibble over the governor’s choice of words in his open letter to the retirees, but that is of interest only to his political opponents who will criticize him no matter what he says anyway. They’re all politicians — including and especially those who claim they are above politics — and that’s how politics is.
But here before us is a pressing problem: the retirees’ 25%. The governor says it can be solved if BOE members Phillip Mendiola-Long, Marylou Ada and Andrew Orsini withdraw the lawsuit.
There may be other options, of course. Lawmakers, for example, can appropriate $14 million for the retirees’ 25%. But that could mean $14 million less for other government employees and/or programs/services.
So who will introduce the bill?

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