Clock runs out on legislation to fire Kirk
The Navajo Nation Council did not vote on legislation seeking the removal of Controller Pearline Kirk last Friday, even after the Navajo Department of Justice stated two criminal charges have been filed against her.
In a lengthy debate during a special session last Friday, delegates ran the clock out, preventing voting on the main motion of the legislation to remove Kirk. But enough signatures were collected in order to hold another special session Wednesday and today.
At issue was Kirk’s approval of a contract for COVID-19 testing with Agile Technology Group.
On May 7, Navajo Nation Attorney General Doreen McPaul’s office served a cease-and-desist order to Agile. The order accused Agile of unlawfully conducting COVID-19 tests on the Navajo Nation.
The company allegedly was not approved as a testing provider, operating under an expired contract, operating beyond the scope of its contract, and not registered as a foreign business under the laws of the Navajo Nation.
“The Department of Justice has been undergoing an investigation of contracts the Nation has entered using CARES funds and whether those contracts and contractors are complying with Navajo Nation and federal law,” said Dana Bobroff, chief legislative counsel, to Council.
McPaul explained Agile’s tests weren’t approved by the Navajo Department of Health, or the Health Command Operation Center.
According to the cease-and-desist order, the contract was an emergency sole-source contract between the Navajo Nation and Agile executed Nov. 20, 2020, with an expiration date of Dec. 30, 2020, but the company continued to give COVID-19 tests until it came to the attention of the AG’s office nearly five months after the expiration date.
“In looking out for the health and well-being of the Nation we issued this notice to immediately stop the testing that was occurring,” explained McPaul.
Agile devised a COVID-19 testing and mitigation plan for the controller’s office and its employees, including rapid testing, antibody testing, PPE, air filtration system installation, and other mitigation technology.
The unapproved testing happened outside of Administration Building 1, and in time the testing went from the controller’s employees and their immediate family to other Navajo Nation employees and Council delegates, exceeding the scope of Agile’s contract.
During the spring session, Speaker Seth Damon — who was excused from last Friday’s meeting — thanked the controller’s office for providing the COVID-19 testing. Through that statement, DOJ figured out that Agile was still operating. These unapproved tests were used on delegates as they met with first lady Jill Biden last month.
“In looking at the contract and the company’s ability to be on the Nation to provide the scope of work that they were engaged to do specific to the Office of the Controller,” said McPaul. “We learned the testing was being offered more broadly to other Navajo Nation employees and public. It was beyond Admin 1 building.”
Upon further scrutiny, DOJ was concerned with the way the contract was procured, the way it was paid, and the way it was allowed to continue beyond its terms despite expressed disapproval from Navajo Department of Health and HCOC.
Other concerns lie with what Agile is doing with the personal health information of the people tested, how Agile is handling blood and other samples and disposing of medical waste, and the fact that Agile was not reporting test results to the HCOC or to the state health departments in Arizona, New Mexico, and Utah.
Agile also lacks a clear plan for case management and contact tracing through the public health system, the order charges.
The company’s failure to cooperate with the HCOC was putting Navajo people at risk and jeopardizes the health, safety, and welfare of the Navajo Nation, stated the order.
Dr. Laura Hammitt, a member of the Navajo Nation COVID-19 Testing Coordination Team, informed Agile and OOC that no further testing should take place until Agile established a clear plan for case management and contact tracing through the public health system.
“We have learned that Agile has failed to discontinue testing as directed,” stated the order.
“Those are the concerns my office had to deal with even before issuing that cease-and-desist order,” said McPaul. “Looking at the contract and knowing our internal process for procurement and knowing our practices from our finance office in knowing how things are paid … this particular contract has some serious concerns.”
Pernell Halona, a member of the Council’s Health, Education and Human Resources Committee, co-sponsored the legislation to remove Kirk along with Edison Wauneka.
Halona said “recent events that have come to light,” including DOJ’s special investigation, demand the Navajo Nation replace Kirk immediately. Through law, the controller is appointed by the president but works at the pleasure of Council.
“It’s no big secret that our controller is in control of all the financial activities for the Navajo Nation, including investment, spending and purchasing,” said Halona.
Law and Order Committee Chair Eugenia Charles-Newton said through the CARES funding process Kirk did a lot of hard work and stood her ground. Throughout the entirety of the session Newton expressed her unwavering support for Kirk, and questioned McPaul’s and DOJ’s assertions.
Delegates such as Vince James, Nathaniel Brown, and Charlaine Tso also continued to show their support throughout the entire session for Kirk.
“People need to have a full understanding of why this particular emergency legislation was brought forward for us to consider,” said Newton, who asked to add a report from Kirk on the matter because they were hearing “one side of the story.”
The amendment to add Kirk’s report failed 9-12.
Health, Education and Human Services Committee Vice Chair Carl Slater has been an ardent supporter of Kirk, but the information Council had received during executive session from DOJ, and other information being given publicly, was enough to make him change his mind, he said.
“I received this testing from Agile Technologies,” said Slater, who also said the testing was pushed on Council and recommended by Newton.
“My personal data including my Social Security number, my date of birth, my personal DNA, is now unaccounted for because of the actions of the controller,” Slater said. “We have citizens today whose Social Security and DNA has now been lost to this unaccountability.”
Newton said she is “guilty for making that recommendation,” and was tested four times by the company, but continued to turn it around and say the executive branch and DOJ did not tell the delegates the company was under investigation and that had they done this it would’ve turned out differently.
McPaul said once they received information testing was continuing they brought it to the attention of leadership.
Kirk, however, was not forthcoming with the information when they asked her to continue this testing for the legislative branch.
“We didn’t know that was occurring,” said McPaul. “She did. She also knew the testing was supposed to discontinue, that the health command did not approve it. She was in that meeting with that company directly.
“If anyone is to blame for not bringing it to your attention and continuing the services beyond the scope, it is not my office,: she said. “We brought it to you as soon as we learned about it.”
Newton also stated that the contract was approved through the standard 164 process, and asked where the DOJ’s due diligence was when the contract was sent to DOJ and signed by two DOJ attorneys.
“If we are going to talk about an investigation we should put everyone who signed that contract under investigation,” said Newton. “I see six signatures on this contract.”
McPaul said there is nothing deficient with the contract, other than it was expired and there was testing going beyond the scope of the contract. But the terms and process were standard.
“Here is where the issues are … we know how this contract came to the Nation,” answered McPaul. “We know who this contract went to within the Office of the Controller.
“We know from the proposal that was directed to the Office of Controller that the representations that were made within the proposals are false,” she said. “The representation to advance this as a sole source contract is false. We know those representations made to my office, to business regulatory office, to the president’s office were inaccurate at best.
“That’s what the problem was with the contract,” she said.
DOJ had provided the cease and desist, the confidential records hold, contract, supplementary documents which were the sole source justification, and the 213 paper work that Kirk had signed and submitted to the HCOC. McPaul said because of the charges that have been filed DOJ is cooperating with the state and federal counterparts in its investigation.
Charlaine Tso had attempted to get the legislation tabled a few times, telling Council to take a slower pace and give it a fair process.
Also debated was putting Kirk on pay with leave rather than firing her. Kirk earns $225,000 a year, according to McPaul.
“I don’t believe prolonging this will help us,” said Halona, who also noted Kirk hasn’t been working for the past couple of weeks. “The government is watching us now and watching what decision we are going to make. We keep talking in circles. We all know what needs to happen.”
In the end, Budget and Finance Committee member Elmer Begay asked for an amendment to add that a special prosecutor be hired in order to not show bias.
McPaul explained that DOJ already has in place special investigators that are contracted out separate from the DOJ. She also stated they have conflict prosecutors to assist with cases where the prosecutor’s office may have a conflict, but even with that the Begay persisted.
Newton, speaking in favor of this amendment, said she was concerned about a conflict because the controller hasn’t paid the DOJ’s hazard pay, and DOJ is putting pressure on the controller because of this.
“All of those statements are fabricated and false,” said McPaul about Newton’s claims. “The Department of Justice hasn’t even submitted packets for hazard pay. Controller cannot pay something that has not been submitted. I ask the delegates exercise their responsibility to speak to the facts.”
Begay’s amendment passed, but the debate, request for clarifications, and more questions caused the delegates to run out of time and they had to stop discussion on the removal legislation without voting.