Pohnpei files two sets of criminal charges against Genesis Corporation and its sole stock holder

By Bill Jaynes

The Kaselehlie Press

 February 27, 2019

Pohnpei—On February 12, 2019, the Pohnpei government filed criminal charges against Dr. Merlynn Abello-Alfonso, sole stockholder of the Genesis Corporation and all of its businesses, on charges related to alleged labor law violations.  Charges included a misdemeanor criminal charge of violation of Pohnpei Wage and Hour laws, three counts of Pohnpei State Human Trafficking and Criminal Exploitation laws, and one count of Forgery and Possession of Forged Writing on employment contracts. On February 18, the Pohnpei State Attorney General filed a second set of criminal charges against Dr. Abello-Alfonso alleging Obstruction of Justice for tampering with witnesses. 

The charges contained in both sets of criminal information are allegations and Dr. Abello-Alfonso is presumed innocent until proven guilty beyond a reasonable doubt in a court of law.

According to documents filed at the Pohnpei State Supreme Court, the charges were the culmination of an eight month long investigation by the White Collar Crime Investigation Unit of the Office of the Attorney General in cooperation with the Division of Personnel, Labor and Manpower Development of the Department of Treasury and Administration.

On the first set of charges, the Office of the Attorney General asked the Court to issue a summons requiring Dr. Abello-Alfonso to appear for a hearing. On the second set of charges, the AG asked the Court to issue an arrest warrant.  After two days of deliberation, Associate Justice Ekiek issued the warrant for arrest based on a finding of probable cause.  Police officers arrested Dr. Abello-Alfonso on the same day.  Dr. Abello-Alfonso wrote in a social media post that she spent 22 hours in jail before she was released after a hearing for pre-trial release.

Dr. Abello-Alfonso broke the news of the initial criminal charges against her in a social media post on February 16. She called the criminal charges “dirty politics at its best”. 

“One would think that such a high government unit that is tasked with protecting its citizens and ensuring justice for all would conduct itself in an ethical and moral manner and follow due process of law to allow me the courtesy to respond before hastily filing such ill-prepared, crappy charges!”, her February 16 post continued.  She called the charges a “well-orchestrated plot” to ruin her chances in the March 5 election for the District One seat in the FSM Congress.

“I was never given an opportunity to respond and due process was not followed at all,” she wrote.

Last year, Pohnpei’s Chief of the Division of Personnel sent subpoenas to the four largest employers of expatriate employees, including Genesis. The subpoenas required the companies to submit employment contracts and other documents.  Genesis complied.

On January 29, 2019, the White Collar Crime Investigation Unit sent a letter to Dr. Abello-Alfonso and the Genesis companies outlining alleged violations of law.  The letter gave 10 days for Dr. Abello-Alfonso and Genesis companies to agree to pay any back wages they might owe and to commit to future compliance or face legal action. 

Through their attorney the Genesis companies and Dr. Abello-Alfonso sent a letter on February 7 denying any violation of the law. 

The Office of the Attorney General then prepared and filed charges at the Supreme Court on February 12.

In addition to charges surrounding the alleged nonpayment of overtime hours, the State also accused the defendants of having brought in employees from the Philippines using master employment contracts that “had forged stamps, seals and signatures of the Philippine Consulate General, Agana, Guam, and forged stamps, seals and signatures of the POEA (Philippine Overseas Employment Administration).”

The prosecutor has accused the defendants of criminal violation of the Pohnpei State Wage and Hour Law, a misdemeanor offense punishable by a fine of not less than $500, and/or by imprisonment of not more than one year along with a liability to employees for any unpaid minimum wages or unpaid overtime compensation.  The charging document says that the defendants violated 19 PC 3-105 of the Pohnpei code by requiring employees to work in excess of 40 hours without the payment of overtime compensation at time and a half.  The code also says that the law cannot be “in any way contravened, waived or set aside by private agreement.”

The language of the master employment contract and an addendum regarding definition of hourly compensation that Genesis uses for its expatriate workers was listed in the criminal information.  The prosecution has interpreted the language to mean that under the contract, an employee would need to work 124 hours in one week before reaching the threshold of eligibility to receive overtime pay. 

The criminal information also says that the provisions of an addendum to the work contract that some employees additionally signed are inconsistent with the master employment contract regarding working hours and overtime pay. The prosecutor will have to prove beyond a reasonable doubt that the language of the contract and the actual practice resulted in no overtime having been paid to employees.

Counts two through four of the charges are for alleged criminal violations of Pohnpei State’s Human Trafficking and Criminal Exploitation laws for separate but related reasons.

A person convicted of human trafficking would face a penalty of 10 years imprisonment, and/or a fine of $10,000.  A business convicted of the crime would face a fine or $50,000, loss of permits to conduct business, and asset forfeiture.  A convicted business could also be liable, subject to orders of the Court, to provide restitution to employees.

Count five of the criminal information is for alleged “Forgery and Possession of Forged Writing”.  Prosecutors allege that after the April 2018 “hold” on further employment contracts implemented by the Philippine Department of Foreign Affairs, but before the POEA ban of Filipino labor coming to the FSM was implemented in September of 2018, Filipino employees were allowed to leave the Philippines in order to work for Genesis based on fraudulent stamps that purported to authorize the emigration.

An affidavit by Attorney General Dana Smith that accompanied the Application for Warrant of Arrest on obstruction of justice charges claimed that during a mandatory meeting with Genesis employees on February 16, Dr. Abello-Alfonso told employees that she would take action against their professional licensures in the Philippines if they testified or supported the State in its case against her.

Smith’s testimony on the meeting was based on a digital recording.

Smith wrote that “the chilling effect was immediately evident” when one employee witness informed him that the employee no longer wanted their signed affidavit to be used in support of probable cause.

The State’s memorandum in support of an order for special conditions for pretrial release alleges that Dr. Abello-Alfonso communicated with Alex O. Vallespin, Vice Consul for the Republic of the Philippines that allegedly caused him to change his allegations regarding forged stamps and signatures on employment contracts.

The memorandum also alleges that Mercy Syne Martin, a Genesis employee and one of Dr. Abello-Alfonso’s campaign managers assaulted and threatened a fellow employee who had sworn an affidavit in support of the State’s case.  The memorandum claims that the witness was so frightened by the confrontation that she moved out of the residential quarters and won’t return to work. 

Pohnpei prosecutors have charged Martin with assault, disorderly conduct, and Obstruction of Justice.

Before recusing himself from the case because he is related to one of Dr. Abello-Alfonso’s attorneys, Associate Justice Eneriko M. Ekiek ordered pretrial release conditions for the defendant. The order required her to post a $50,000 surety bond within seven days and to obey all laws of government entities.  It did not confiscate her passport as the prosecutor had asked but ordered her not to leave Pohnpei without giving the Court notice in writing of her destination, accommodations while traveling, date of departure and return.  It also ordered that she not extend the itinerary for any travel without providing written notice to the Court 24 hours in advance of any change.  It ordered her not to “harass, threaten, or intimidate any potential employee or witness with reprisal or other repercussion for testifying in the matter or any other criminal matter, nor direct any agent or other persons under her control to do so.”  It also ordered her appearance at all Court proceedings.

Dr. Abello-Alfonso’s initial Court appearance was scheduled for February 26.  The presiding justice nearly threw out the entire set of charges after the AG’s staff prosecutor failed to show up for the hearing, apparently due to an internal communication error within the AG’s office.  After another State prosecutor who was in court for a previous hearing said that he represented the State but was not familiar with the content of the case, the Justice continued the hearing for another day.

Again, the charges contained in both sets of criminal information are merely allegations and Dr. Abello-Alfonso is presumed innocent unless proven guilty beyond a reasonable doubt in a court of law.