How Do You Get Something So Important So Wrong?










March 14, 2010

The Federal Labor Ombudsman, Pamela Brown, spoke at the forum on Thursday, March 4, 2010 as an ambassador for the federal government to clarify the federal government's position on the status of the foreign nationals, and umbrella permits. No one should have doubted her authority or message, but the logical thing to do if there were any questions would have been to consult with her. But not the CNMI's top officials! Is there any other place on U.S. soil where the highest leaders of a locale publicly attack a federal messenger and message without proper research or facts with the intent to undermine federal law and authority? If there is, I have never heard of it.

For decades CNMI government officials have thrown stones at the U.S., while having the other hand out to grab millions in federal funds. CNMI officials routinely and shamelessly attack federal officials and others who deliver messages that they don't want to hear. There is an established pattern of this presumptuous behavior that goes back as far as I can remember. This latest attack was made without facts, without merit, and without reason.

The CNMI leaders need to accept reality. Governor Fitial, CNMI Attorney General Buckingham, and CNMI Department of Labor Deputy Secretary Cinta Kaipat have all made uninformed, inappropriate and incorrect statements to the press attacking the federal ombudsman and the federal government's statement on foreign national status and employment-related issues. These people should be taking the lead to educate the workers and employers on the new law and policies instead of denouncing the law and the messenger. They are doing a disservice to the foreign nationals, to the business owners, and to everyone who lives and works in the CNMI. They are delaying reform and stifling any economic recovery. Move on!

The governor spent weeks in Washington, DC. over the last month. One has to question why he didn't learn of the federal government's stance on umbrella permits. We know that he spent time meeting with his lobbyist Lynn Knight who is now called his "communications liaison." He may have also stopped by Jenner and Block's offices to check on the status of the anti-federalization lawsuit that costs $50,000 a month. Millions have been wasted on the anti-federalization lawsuit and lobbyists for the purpose of feeding the egos of stubborn and insolent leaders who have made fighting the federal government a priority over economic recovery, quality healthcare, improving public utilities, properly funding schools and addressing other essential needs. The latest attack on the ombudsman demonstrates that they are continuing down the same dead end road.

It is incredibly arrogant of three top CNMI officials to make public attacks against a federal official without having first consulted with her or other officials to get the facts. Look at some of the statement made by these CNMI officials:

CNMI Department of Labor Secretary, Cinta Kaipat (emphasis added):
"Kaipat said U.S. Labor Ombudsman Pamela Brown is not only creating confusion but has also been “acting recklessly.”

“Pam Brown is acting recklessly and irresponsibly in urging people to ignore established laws. People are relying on her and are therefore jeopardizing their status. Her statements are really uncalled for,” Kaipat told lawmakers.

“I want to caution workers not to jeopardize their status because Pam Brown is not DHS and she's not a federal judge,” Kaipat added.
Harsh and defiant words with no factual basis.

Kaipat has shown resistance to federalization since before PL 110-220 passed. She uses local law (think PL 15-108 and H.B. 17-25) as a means of continued oppression and control of the foreign workers; as a way to fill CNMI coffers on the backs of the foreign contract workers; and as a means of keeping the local labor department all powerful. She has manipulated statistics to suit political agendas, has misrepresented facts, and has stated outright untruths in declarations and reports.

Kaipat seems to take particular joy in sticking it to the foreign workers. Kaipat prefaced her attacks on Ms. Brown with the announcement that the DOL would be turning over the names of 300 or so "overstayers" that the DOL has supposedly identified with their faulty tracking system. She also bragged that DOL had "revoked" the permits of 200 foreign workers.

Regardless, of DOL's act in revoking umbrella permits the federal government will not consider them revoked. From the DHS Questions and Answers which were released yesterday (emphasis is added):
Q. Can an umbrella permit be extended or revoked?
A. Umbrella permits are valid through Nov. 27, 2011; the maximum period of time permitted by Federal law, and cannot be extended. An employee will need another work authorization under Federal law to continue to work after that date. Even if CNMI authorities revoke a holder’s umbrella permit, the holder remains authorized to work under Federal law until Nov. 27, 2011.
Anyone who has had their umbrella permit revoked has been instructed by the ombudsman to go to the Federal Ombudsman Office for assistance.

CNMI Attorney General Edward Buckingham also challenged the ombudsman's message:
“Specifically, the Department of Labor has both the authority and the duty to monitor compliance with umbrella permit holders. Should one or more conditions of the umbrella permit not be met, the umbrella permit is subject to being revoked

“To take the position that someone could stop complying with requirements of the CNMI Department of Labor could mean that a person would be without employment. Such people would be a drain on the economy and present a risk of involvement in criminal activities or, because of not having employment, risk becoming victims of unscrupulous people taking advantage of their problems,” Buckingham said.

He said ignoring conditions set by the Department of Labor is, in his view, “unwise” and may subject the holder of an umbrella permit to “unfortunate consequences.”

An umbrella permit can be revoked. Legal status can be lost. And, through coordination between the CNMI and Immigration and Customs Enforcement, an individual may be subject to deportation,” he added.
CNMI Attorney General Edward Buckingham is charged with upholding and promoting the law. Why didn't the AG meet with Ms. Brown and/or other federal officials before making such irresponsible statements to public? This AG has demonstrated that he will follow the agenda of the governor rather than considering the law or the people of the CNMI. This was witnessed in his unapologetic response to massage gate, in breaking the law in disregarding OGA requests, and in irresponsible statements to the press.

Governor Fitial:
“She's wrong. Whoever believes in Pamela Brown will get himself into trouble because this is a Homeland Security issue.”
The governor told the press he had met Pam Brown in Washington. Why didn't he talk to her about this? He also met with DHS so it is interesting that he is so far off base.

Willens and the Ominous Omnibus Bills
Legislators should take the time to investigate and understand the provisions that Willens has proposed in his drafts of H. B. 17-25 and unnumbered bill both referred to as the Immigration Conformity Act of 2010. Kaipat who supports the legislation and promoted it to legislators suggested that local laws can be written to magically erase federal authority. From the Marianas Variety (emphasis added):
Deputy Labor Secretary Jacinta M. Kaipat told the Senate Standing Committee on Judiciary and Governmental Operations during a hearing yesterday afternoon that despite the implementation on Nov. 28, 2009 of U.S. Public Law 110-229, or the federalization law, the CNMI government can still enact labor-related laws to protect its interests.

“We need to…prevent any disruption by federal preemption. When we take out the immigration and deportation language, then [CNMI] laws are beyond the reach of federal preemption,” said Kaipat.

“The federal ombudsman and some other lawyers are consistently trying to undermine the umbrella permit program. Careful analysis prior to implementing the umbrella permit program confirmed that it is within the powers already granted to the Department of Labor by the Legislature,” said Kaipat in her written testimony.

“However, to dispel any doubt, Section 2 of [House Bill 17-25] provides: ‘It is the intent of the Legislature that the umbrella permits issued by the Department of Labor in 2009 continue to be governed under the department’s normal processes. All umbrella permits and the bases on which they were granted are ratified and approved…any other provision of current or former law or regulation notwithstanding…. Section 5(Q)(4) confirms the department’s authority to modify or revoke umbrella permits,” she added.
Can the CNMI legislate rules clarifying the intention of the umbrella permits after the permits were issued, after the intention was stated and after the federal government issued a position on the permits that would conflict with the legislation?

Seimer and Kaipat's statements on the intent of umbrella permits were widely publicized. Siemer was quoted in an October 16, 2009 Saipan Tribune article as saying:
She [Siemer] said that the umbrella permit is free of charge and is valid from Nov. 27, 2009 through Nov. 27, 2011. This, she said, will help stabilize the workforce and protect both employers and employees besides preventing undue damage to economy.

“It will bring stability,” Siemer said, adding that the new system is part of the “protocols” presented by the Fitial administration to the U.S. government.

According to Public Law 110-229, any Commonwealth-issued permit that is in existence on Nov. 27, 2009 will be honored for two years after the transition date, which is set for Nov. 28.
An October 24, 2009 Saipan Tribune quoted Siemer:
Siemer explained how they and Gov. Benigno R. Fitial established the “umbrella permit” policy and its importance to stabilizing the CNMI workforce.

Siemer said that, while facing uncertainty due to the upcoming federalization, Fitial wants alien workers to feel comfortable and welcome in the Commonwealth.

“This is just protection,” she said.
Now that they realize they will lose the ability to bleed the workers dry with their labor fees they want to change the rules by passing some legislation that is in conflict with federal law?

(updated) Jane Mack, from Mironesian Legal Services wrote an excellent post, The Local Preference in Hiring. From her MLSC A Day in Court blog:
When the CNMI controlled its own immigration, it could set terms and conditions for employment of foreign workers; and by extension, it could set terms and conditions for quotas of local/resident work force before employers could utilize alien labor. But the CNMI no longer has that authority. U.S. law governs not only entry and exit of aliens, but also their employment.

Judge Friedman, in the case brought by the CNMI to challenge federalization of immigration, CNMI v. U.S., #08-1572 (U.S. Dist. Court, D.C., 11/25/2009)said:
“[P]laintiff (CNMI) is just plain wrong when it asserts that nothing in federal immigration and naturalization law permits an “employer-by-employer, worker-by-worker local labor permitting scheme.” ... As defendants point out with ample support... precisely such schemes are at the heart of federal immigration law. ... Finally, and for similar reasons, the fact that the application of federal immigration laws to the CNMI through the CNRA (P.L. 110-229) may have a dramatic impact upon the CNMI’s labor force does not convert an immigration law into a labor law. It has long been recognized that the immigration laws necessarily have a significant impact on labor markets and practices.... There is thus no question that the relevant portions of the CNRA are immigration laws explicitly authorized by the Covenant.”
It is clear that the CNMI lost control of immigration, and with that, control of alien labor to the extent it is any different than local labor. The CNMI cannot now set conditions on hiring foreign workers or establish preferences for hiring local labor, with the exception of bona fide requirements. The present CNMI quota law embodies preferences that now create unlawful discrimination.
It was welcoming to see the Department of Interior's Assistant Secretary, Tony Babauta's statement and the statement issued by DHS that were released March 12, 2010. Both statements echo the entire message of the labor ombudsman, and affirm the ombudsman as the chosen federal spokesperson on this issue.

Now the CNMI officials should apologize to Federal Labor Ombudsman Pamela Brown for their negligent comments. They need to follow the law and focus on encouraging all the guest workers and employers to understand and follow the law. That is what a responsible and ethical governor, AG and leader of a local DOL would do.

12 comments:

Anonymous said...

They just keep embarrassing us all. Open mouth, insert foot.

They don't have the class to apologize. Fitial never even made a statement about massage gate. Classless! Clueless!

Anonymous said...

If the omnibus package repeals the anti-trafficking law, get ready for ads in major Asian tourist markets warning tourists not to spend their tourism dollars in the CNMI until it stops condoning, decriminalizing, and facilitating human trafficking.

Wendy said...

Anonymous 10:04

I can't afford ads, but I'll write some letters to the editor if that is the case.

Don't the legal counsels at the House and Senate analyze proposed bills and offer advice?

The Saipan Blogger said...

Can I post a link to my blog where I comment on the House legal counsel? Why not!

http://jetapplicant.blogspot.com/2010/02/house-legal-counsel-on-suicide-watch.html

It was never a question.

:)

All three of the legal councils have been on the job less than a mont.

Captain said...

Wendy,
It seems like all of the Govt employed "legal counsels" are just "puppets" for Fitial. If they give an honest and legal opinion, and it is not what Fitial and/or the concerned agencies want to hear they will be replaced. It sure looks like this is following the workers trends as they are also scared to speak out. (as many have stated)

It will be interested to see what they come up with to try and circumvent the Feds.
It would be good though if the Feds could publish something "fast" to set the rules and regs "in stone" so to speak.
DOL will still try to "extort money from the people, employers and workers alike until everyone stops going to DOL. For the "revoked" or lost "permits" I am wondering if the Ombudsman's office is able to zget these replaced without the worker going to DOL.(or at least accompany the worker)

Saipan Writer said...

Since we're posting links, please check out the MLSC blog, DAY IN COURT. I've put up a post on the local hiring preference issue (Marianas Variety article of 3/10 quoted Jacinta Kaipat promoting "benchmarks" for US citizen hiring).

And off-topic--a post on victims' rights.

http://mlsc-marianas.blogspot.com

Wendy said...

Hello Jane

Thank you. What a great post, The "Local Preference" in Hiring Goals. I urge everyone to read it and will add a link above in my post.

What I really do not understand is:

1.Why Howard Willens submitted his revisions to DHS (ominbus bill draft), which is in conflict with the federal law;
2. Why Cinta Kaipat supported H.B. 17-25 taken from Willens draft, which are in conflict with federal law;
3. Why Kaipat is suggesting local preference quotas also in conflict with federal law;
4. Why the AG, CNMI Bar and other attorneys (aside from you) are not speaking up!

Willens and Kaipat are both attorneys so shouldn't they understand the law? There are attorneys working for the CNMI legislature. Shouldn't they speak up and inform them that their proposed bills are in conflict with federal law? What about the AG? Why do lay people like myself with no legal training see that these proposed laws can't be legal or constitutional, and yet attorneys introduce and support these bills? What is going on? Will the U.S. have to strike down such laws? Should DHS step in and inform them before they make a move?

Wendy said...

Hi Captain:

If I were a guest worker I would seek assistance from the ombudsman before going to DOL to get my umbrella permit replaced or for any other reason.

deckchair lawyer on the titanic said...

There are different legal opinions about where the line is that separates local immigration laws (which the federalization law purports to pre-empt) from local labor laws (which it does not). Most of our current laws date from a time when nobody gave much thought to the difference between the two. Now, because of the federalization law, it has become an important distinction, but it is often not a clear one.

It was entirely predictable that the US lawyers would interpret the law as giving the US as much of a reach into labor issues as possible, and that the CNMI lawyers would interpret it to the contrary. I don't know who is right. I also don't know who will prevail in court, which is not necessarily the same thing as who is right, but in the end it is the thing that matters. It will take a while for the courts to straighten this out. They might uphold one interpretation or the other, or they might come up with something different of their own. And then, by the time litigation is concluded (including appeals), and we get an answer, the question will have changed, because the 2-year period of CNMI permit validity (which is the basis of the whole umbrella permit concept)will be over.

So all I can say is that it is unwise for anybody to put all their eggs in one basket at this point, unless circumstances force them into it. Try to stay within everybody's version of what is legal for as long as you can.

Anonymous said...

Who will prevail? read Freidman's take in the opinion. The U.S. will prevail.

Anonymous said...

Willens is an ideologue whose views are completely twisted by his own interest in the outcome of the issues in dispute. He sees federal intervention as spoiling his legacy as the great white father who bestowed constitutional government on the people of the Marianas.

Cinta is not an attorney. She has never passed a Bar exam, or practiced as an attorney. Without Siemer or someone else to ghostwrite for her, it would soon be clear she is in over her head.

Anonymous said...

how do you get something so important so wrong?

how? easy! i can't think clearly because i'm hallucinating from the pain medication that i'm taking. easy because i interpret things the other around, and my hatred with aliens overtake my brains. it is easy because when things are wrong, i will be needed by this government, consequently i will get paid more, i will be of importance to the community. easy, let me teach you how.

i can be dumb and smart if i want to. i am paid to make the water murky.