Friday, January 31, 2014

FSM President and Congress held meetings to resolve issues surrounding the process of legislating and implementing public projects

[Note: Provided here in its entirety is the January 27 meeting note taken by Secretary of Justice April Dawn Skilling and shared with the President and Congress on January 28.]


On January 21, 2014, President Mori met with Congress at its temporary chambers in the Central Facility at Palikir.  The purpose of the meeting was to discuss problems identified with the public project appropriation process as it relates to the implementation project and usage of the Project Control Document (PCD).  No staff was present during this initial meeting.  During the meeting, it was agreed that a follow-up meeting would be held, with staff from both Congress and the Executive, so that the problems could be fully discussed with input from the staff.  A joint working group was created including Chairmen Urusemal, Simina, George, and Christian, as well as Vice President Alik and Secretaries Ikosia, A. Skilling, Itimai, and Director Adolph.  While President Mori wanted the follow-up meeting held over the next few days in order to move ahead with implementation of recently approved laws, for various reasons, Congress was unable to meet until the proposed date of January 27, 2014.

The January 27th meeting was scheduled to be held at 1:30 p.m. in the Presidential Conference Room to:  (1) discuss and work out problems with the Project Control Document (PCD) and the appropriation process by Congress as they relate to the ability of the Executive Branch to implement public projects; and, (2) to stop ongoing violations of the Udot case, which case defines the Constitutional powers of Congress to appropriate public funds and the Executive to fully execute and implement all national laws.


The meeting started at 2:05 p.m. after the location for the meeting was changed by Congress to the Congressional chambers in the Central Facility.  Congressional members present included Speaker Halbert, Chairman George, and Chairman Simina.  Missing were Chairman Urusemal and Chairman Christian.  No Congressional staff attended.  Executive members present included President Mori, Secretary Ikosia, Secretary Itimai, Secretary April Skilling, AAG Atanraoi-Reim, Esiri Edward, Molina Seneres, Sohs John, Marcellus Akapito, and Karnim Judah.  Missing were Vice President Alik and Director Adolph.

The President noted that no staff attended on behalf of Congress and expressed his disappointment that without staff, the discussion would only be one-sided and that there would be no one (on the Congressional side) to take notes with staff input into the discussion, and no one on Congress’ side to reduce the outcome of the meeting to a written agreement.

Speaker Halbert responded that he did not believe this meeting was for mid-level staff and that not having so many people would make it easier to get things done.  Chairman George stated that they (Congress) believed the President had analyzed the problems and was present to share with Congress ideas to improve; therefore no Congressional staff was present.  “I thought this would be time to dialogue and share information to improve.”

The President emphasized that while the PCD is within the jurisdiction of the Executive, it cannot work well without the Congressional part improving, too.  And, that he did not just want to “talk, talk, talk” but to come to an agreement with Congress about needed improvements.  Speaker Halbert responded that talking is very important and that “talking is the Micronesian way.”  President Mori agreed stating but added that “beyond talking, there must be action to follow up.”  President Mori additionally pointed out that if there were continued violations of law, there would really be a problem.

Chairman Simina asked what problems the President had with P.L. 18-35?

President Mori outlined one of the problems in Chairman Christian’s portion of the bill noting that there was no breakdown and that it must be specific enough so that Congress does not get involved in it after the appropriation was completed.  An example the President gave was in the line item “leadership travel.”  How does that help us on the Executive side, President Mori asked.  Once the money for the projects is appropriated, there should be no coaching by or deciding by Congress on how the money should be spent.  But the appropriation example given does not say who is travelling, where, for what purpose, etc.  Therefore, in the absence of public hearings or Committee Reports, the Executive must go back to Congress to get clarification.  This slows down the process when pre-appropriation discussions, public hearings, and Committee Reports on the part of Congress could resolve the problem.

Chairman Simina asked if it was just specificity that President Mori was seeking, and President Mori responded that there should be “at least guidelines.”  Chairman George asked why not use the PCD to disapprove projects on the basis of no guidelines, purpose, etc.?  President Mori stated that the Executive is trying to improve the PCD, but that the appropriation process for public funds, according to Chairman Christian, was “just the nature of the beast.”  Chairman George followed up stating that (1) the Executive could first line item veto any public project that did not contain enough specificity, and (2) that when the PCD was submitted, if the Executive (as allottee) was not satisfied, it could stop there.

President Mori responded that he had already been accused, as the Allottee, of failing to comply with the requirements of the PCD (involving the thickness of a public project road).  (Note:  this is the complaint that brought the entire process of public project appropriations, the implementation process, the deficiencies of the PCD, and the Udot case, to the forefront).  President Mori then stated “we are ready to correct our side; what are you (Congress) ready to correct?”

Speaker Halbert stated that he had worked with Secretary Itimai to assist him.  “We agreed to help him.  He asked us to complete the PCD and then he (TC&I) would check them.”  This process had been ongoing since 2010.  “I know we are not supposed to be involved.  But every year I ask (Secretary Itimai), are you ready to take over?”

President Mori stated that the Constitution is very clear.  Congress cannot get involved after the law is passed, and added that there must be consultations with constituents ahead of time, public hearings, and Committee Reports.  President Mori emphasized that “we want to stop the abuse.”  Furthermore, President Mori stated that we must start linking projects to the issue of economic growth in order to prepare for 2023.  President Mori admitted that when he was in Congress, he did the same thing as what is currently happening, unaware of the dictates of the Udot case.  But now that he read and understands the Udot case and has raised his hand to uphold the law as President, he understands that things must change.

President Mori went on to say that there must be attachments provided to the Executive regarding public projects such as documentation of meeting with constituents ahead of time.  “Rather than clarify the PCD after the fact, there should be meetings with constituents, public hearings, and Committee Reports,” which documentation could then be in the bill itself or attached to the PCD for clarification and inclusion of technical requirements/aspects without having to return to Congress.

Chairman Simina said that after legislation is passed and money appropriated, then the allottee must enforce it through the PCD.  “I thought generic details allowed more flexibility to implement the project,” he stated.  Chairman George also agreed that general terms allowed for more flexibility.  President Mori responded that the Executive should be guided by public hearings and Committee Reports, and that the PCD should reflect it.  “Without that part, it is just guesswork,” President Mori remarked.  An example of one of the problems with the language being too general included an appropriation for repatriation of remains.  President Mori pointed out that this appropriation provided no guidance but left the implementer to wonder whose remains? From where?  From Guam, the US, Korea?  Are we even allowed to repatriate remains from another country? 

President Mori asked why there was a double standard – one for the Operational Budget of the Executive where public hearings were held and one for Congress’ public projects where no public hearings are held.  Speaker Halbert asked why they should be the same stating that whereas the operational budget is something Congress must pass, there is no such requirement for public projects because public projects are not required by law.  President Mori explained that both appropriations expend public funds and that the public had a right to be informed ahead of the passage of the public project appropriations so that the public could be heard on what they want, noting that the public may view the project needs differently than Congress.

President Mori asked again what Congress is willing to offer?  Consultations before the bill passage; public hearings; Committee Reports?  There was no response or counteroffer from the Congress members present to President Mori.

Chairman George stated that they do speak with constituents in order to determine the public projects.  President Mori suggested that if public hearings were held, then the results of these meetings with constituents could be presented, which would help with the implementation process and PCD after the law was passed.

President Mori asked that both sides come to a voluntary agreement concerning the need to have pre-passage consultations with constituents, public hearings, and Committee Reports, and that the results would then be attached to the PCD for clarification, eliminating the need to return to Congress or have Congress violate the Udot case by having to become involved and decide how funds were to be spent or who would be the recipients.

Chairman George and Chairman Simina both inquired about the implementation of the $4.9 million.  President Mori responded that more guidance was needed (to implement the law).  Chairman Simina asked if (in the future) it would be helpful if each state was in a separate appropriation, not lumped together.  President Mori agreed it would help, especially since the state appropriations have little commonality as between states.

Speaker Halbert asked if, the way President Mori was looking at the Udot case, amendments violated Udot?  President Mori explained that no, amendments did not violate the Udot case if the implementation process on a particular project had not yet begun.

Chairman George questioned how the Udot case applied to Congress as it did not involve the prosecution of Congressional members.  President Mori explained that the Udot case was referenced in cases where allottees were prosecuted and that the Udot case referred to the appropriation and implementation process including Congress’ role and the Executive’s role as defined in the Udot­ case.  (Note:  a copy of the Udot case was provided to Congress during the first [closed door] meeting with them on January 21st).  

President Mori asked for an agreement to be reached between Congress and the Executive on improving the appropriation and implementation process.

Chairman Simina asked for a legal opinion from the FSM DOJ asking “Can this agreement between us force Congress to act in accordance with the agreement?”  Chairman Simina then rephrased the question as “Can a broad understanding between Congress (those present at this meeting) and the President create a requirement on Congress to hold public hearings and produce Committee Reports on all appropriations?”

President Mori responded, “No,” further stating that the Executive could not “force” anything on Congress.   There should be a voluntary agreement between us to do the right thing.  Congress should have meetings with constituents, hold public hearings, and produce Committee Reports” that would assist the Executive in the implementation process through the PCD with attachments.  And, it would provide equal treatment whether it was for the Executive’s operational budget or Congress’ public projects (all involving public funds).

Chairman Simina stated that public hearings are not always necessary because they do speak to constituents, but admitted that guidelines would go a long way.  Chairman George stated that from this point forward, he would hold public hearings but wasn’t sure if they would translate into Committee Reports.  Chairman George also stated that the location of the public hearings might be Kosrae as opposed to Pohnpei.  President Mori acknowledged Chairman George’s willingness to hold public hearings.

When asked again about the implementation of the $4.9 million, President Mori said to be fair, he would move forward with implementation this time, but would hold on implementation of subsequent public projects in the future if they failed to have enough specificity, failed to state the purpose, etc., in order for the public projects to be implemented correctly by the Executive, or if the Udot case was violated.

President Mori also stated that the violations of the Udot case where Congress is hiring personnel out of its budget, but placing them under a contract signed by TC&I to implement projects, must immediately stop.

[As of print time, Congress has not come forward on what they are ready to offer in response to the President's call for improvement in legislating and implementing public project.]

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