Charges against former controller revealed
When Pearline Kirk, a highly educated and experienced attorney, who earned a master’s from Arizona State University’s W.P. Carey School of Business, applied for the controller position in 2017, little did anyone know she would be facing charges in 2021.
The Department of Justice has unsealed two charges against Kirk, the tribe’s former controller. Kirk has been charged with unsworn falsification and abuse of office, violating Title 17 of the Navajo Nation Code relating to the Coronavirus Aid, Relief, and Economic Security, or CARES, Act funds, according to DOJ.
The U.S. Congress set aside $8 billion in emergency aid for tribal governments when it enacted the CARES Act on March 27, 2020.
Court documents show that Kirk falsified and misrepresented facts about a COVID-19 testing company to gain approval to hire them, knowingly used her position to enter into a contract “she knew was unlawful,” jeopardizing the health, safety, and welfare of the Navajo people.
Kirk was responsible for administering the CARES funds, of approximately $715 million allocated to the Navajo Nation.
Court documents contend, in November 2020, Kirk allocated a little over $3.1 million of the first round of the CARES Act funds to hire an outside COVID-19 testing contractor, Agile Technologies Group. The company appeared to have not existed before March 2020, court documents add.
The Navajo Department of Health was already working with another COVID-19 testing company – PAE – or Pacific Architects and Engineers, according to a Dec. 6, press release from the president’s office.
In October, the tribe awarded PAE $50 million to establish alternative care sites. The sites would allow people who test positive to be housed or placed in a hotel to isolate while they recovered. The program was created to help prevent the spread of the virus in a household.
Even as the tribe had a contract with PAE, court documents charge that Kirk “did not seek the approval of the Navajo Nation Command Operations Center, HCOC, or NDOH, as required by Navajo law.
“(Kirk) intentionally avoided HCOC and DOH representatives after they raised concerns about Agile and its testing methods,” court papers say.
The court papers further accuse Kirk of allowing Agile to operate well beyond its contract, which was effective from Nov. 17 to Dec. 30, 2020, conducting COVID-19 testing on the Navajo Nation. The company had already been conducting testing at several tribal offices, including the Navajo Nation Council.
Legislative Communications Director Alray Nelson confirmed that Agile conducted COVID testing on April 19 at the Council Chamber. A photo taken by the Navajo Times that day shows Delegate Eugenia Charles-Newton and Speaker Seth Damon getting a COVID-19 test.
In a January 2021 Securities and Exchange Commission statement about Agile and the services it provided to the tribe, Agile had instituted a COVID-19 double-testing procedure that provided rapid antigen and antibody COVID-19 testing with results in 10 minutes, which court papers state had no public health purposes, or was less reliable than testing conducted by the HCOC.
The company also installed air disinfection devices and disinfecting heating, ventilation, and air conditioning systems in 10 tribal buildings in Window Rock.
The company also made false statements that it obtained a Clinical Laboratory Improvement Amendments, or CLIA, certification as required by state law through its laboratory partner Alpha Checkpoint.
Court documents suggest Alpha Checkpoint is not a laboratory and does not have a CLIA certification.
The objective of the CLIA program is to ensure quality laboratory testing, according to the Centers for Medicare & Medicaid Services website. Although all clinical laboratories must be properly certified to receive Medicare or Medicaid payments, CLIA has no direct Medicare or Medicaid program responsibilities.
It is not known if Agile ensured quality laboratory testing while conducting testing events on the Nation.
Rochester, New York-based Alpha Checkpoint’s website states that it “has significant knowledge and experience in the field of laboratory testing and related forensic services.”
The company, which its president-CEO Claudia Caparco established, also distributes COVID-19 antibody and antigen rapid testing kits globally.
The Nation selected Agile to provide COVID-19 safety services during first lady Jill Biden’s April 22-23 visit to Nation, according to an April 22 press release.
The company conducted antibody and antigen testing, used portable air purifying devices to disinfect the air inside the museum, and provided N-95 masks.
‘New standards’ for safety
Managing partner of Agile, Roderick Martin, who is also a witness against Kirk, said in the April 22 statement, “Our ongoing work with Navajo Nation has set new standards for life safety. Pearline Kirk, controller for the Navajo Nation, has stated that employees reported feeling safer at work than at home.”
Martin said the controller’s office, or the OOC building, “had been a source of undetermined complaints of sickness that were no longer reported after the installation of the HVAC-based air purification systems.”
“We have worked hard to earn the confidence of the Navajo Nation and have been asked to provide a COVID-19 safety plan for the legislative session where AGILE’s medical team administered Rapid COVID-19 tests, set up air purification devices throughout the Council Building, provided N95 masks and distributed individually worn protective devices,” Martin stated.
“We were not initially aware of the visit by first lady Dr. Jill Biden, and it is an honor to know that the team adds to the overall safety plan for her visit,” he said.
“This is an example of the effectiveness of the advanced protocols available today to detect and reduce the threat of COVID-19, variants, and related impacts,” he said.
Court documents suggest Kirk “knew was unlawful, and knew, or should have known, that Agile was not lawfully permitted to conduct COVID-19 testing on the Navajo Nation under federal, tribal, and state law.”
NDOH became concerned, and when it attempted to confront Kirk, she began intentionally avoiding its staff, according to court documents, when they raised concerns about Agile and its testing methods. It was also discovered Kirk did not seek approval from NDOH and NNHCOC.
The Times reached out to Kirk’s attorney, Justin Jones in Farmington, on Monday. Jones’ legal aid said ‘”no comment” when asked to provide a statement regarding the charges their client is facing.
Delegate Pernell Halona on May 19 said he “lost confidence” in Kirk and explained why he sponsored the removal legislation.
“My reason for continuing on with the legislation, the emergency legislation, was because I no longer desire to retain the controller,” Halona said. “And it’s in the Nation’s best interest to remove her, which is stated in the legislation.
“And so that’s why I continued on with a special emergency legislation,” he said. “Those are my main reasons why I went ahead and produced this legislation.”
Accusation: Not returning money
Halona accused Kirk of not returning money to the tribe from the Navajo Division of Social Services’ IV-E Program.
Title IV-E of the Social Security Act provides funds to states and tribes. In Arizona, the tribe entered into an intergovernmental agreement where the state matches funds for foster care and adoption assistance payments in behalf of eligible children residing within the Navajo Nation who are or may become eligible for such foster care and adoption assistance payments.
The IV-E program aims to provide foster care, guardianship assistance, and adoption assistance for children with special needs.
Charles-Newton interjected and asked Halona to produce documents to substantiate his claims that Kirk never returned $8 million to the tribe.
“All of these are documents that proves his rationale for sponsoring this legislation,” Charles-Newton said on May 19.
Halona said he didn’t have the documents and would have to get them from NDSS’s Director Deannah Neswood-Gishey.
The charges and allegations Kirk is facing do not reference any of Halona’s claims.
Delegate Charlaine Tso cited the emergency legislation was not by due process and urged other delegates to vote against Halona’s emergency bill.
After a lengthy debate, the Navajo Nation Council voted to remove Kirk as controller in May.
The tribe is seeking restitution in the amount of $3.1 million.