Navajo Nation controller accused of fraud in COVID-testing contract

Criminal complaints allege abuse of office and money waste in pandemic payments to an unqualified private company

By: - October 4, 2021 6:48 am

Navajo Nation Council Chamber (Photo by William Nakai through Wikimedia Commons)

Two criminal complaints against ousted Navajo Nation Controller Pearline Kirk were unsealed Thursday, Sept. 30, alleging that she illegally paid an unaccredited private company to conduct COVID tests early in the pandemic.

The complaints allege that an inexperienced company known as Agile Technologies Group LLC was paid over $3 million of Navajo Nation funds to conduct COVID-19 testing and provide other related services as a contractor, jeopardizing the health, safety, and privacy of the Navajo people and wasting needed resources in the early days of the public health emergency. The chief managing partner of the company used the Nation’s payments to fund an “extravagant and luxurious lifestyle,” according to the Navajo Department of Justice.

Pearline Kirk, former Navajo Nation controller who oversaw $714 million in CARES Act funding.

Navajo Nation accuses Kirk of committing Unsworn Falsification and Abuse of Office in violation of Title 17. Kirk has entered a plea of not guilty. An individual is presumed innocent until evidence is presented to a jury and guilt is established beyond reasonable doubt, according to the Navajo Nation DOJ.

The unsealed documents were dated May 13, 2021, and signed by Brandon Bitsuie, former acting chief prosecutor. The complaints were filed in the Window Rock District Court and listed 12 individuals as having knowledge or evidence in support of the allegations.

When COVID-19 hit the Navajo Nation in March 2020, it would be a few months before the tribe would receive about $714 million in CARES Act funding from the federal government to mitigate and combat COVID-19. This money was managed by the Office of the Controller.

During that time, Kirk working as controller of the Navajo Nation, entered into a contract with Agile that she knew was unlawful, according to the unsealed documents. Kirk knowingly authorized payments to Agile, including for contract tracing and lab work that was never conducted, using the Navajo Nation CARES Act funding, the criminal complaints state.

Agile didn’t have any experience in health care or laboratory testing, and was led by people who also didn’t have that experience, the Office of the Prosecutor writes — and the company didn’t even exist before March 2020. 

Kirk skipped approvals from the Navajo Nation’s Health Command Operations Center and the Department of Health, according to the complaints, and avoided those agencies’ representatives afterward when they raised concerns about Agile’s testing methods.

“By using her position to enter into a contract with Agile that defendant knew was unlawful, the defendant dispossessed and infringed upon the personal and property right of the Navajo Nation and the people,” according to the documents. “By using the Nation’s CARES Act funds to pay Agile’s invoices that defendant knew, or should have known, were fraudulent, the defendant disposed and infringed upon the personal and property right of the Navajo Nation and the people.”

An emergency sole-source contract between the Navajo Nation and Agile was executed Nov. 20, 2020 with an expiration date of Dec. 30, 2020, according to the order, but the company continued to give COVID-19 tests until it came to the attention of the Attorney General’s Office that they were operating five months after the expiration date.

“Agile devised a COVID-19 testing and mitigation plan for the Office of the Controller and its employees, including rapid testing, antibody testing, PPE, air filtration system installation, and other mitigation technology,” stated the order. “The Navajo Nation Health Command Operations Center and the Navajo Department of Health were not consulted about this COVID-19 testing contract nor was there any coordination of the testing activity with the (Health Command Operations Center) before testing began.”

Agile at one point was administering COVID-19 tests to Navajo Nation employees in front of Administration Building 1, where the Controller’s Office is located. During the Spring Session, and when First Lady Jill Biden visited the Navajo Nation, Council delegates used Agile’s unapproved testing.

In May, the Navajo Department of Justice sent a cease-and-desist order to Agile, which was administering COVID-19 tests throughout Window Rock.

Kirk falsified and concealed information relating to Agile and the consideration, execution and performance of its contract, the complaint states. 

Documents indicate she falsely represented to the Navajo Nation DOJ that Agile was the only company that could provide testing services to the Office of the Controller. She also knew the invoices were false and contained fraudulent billing, according to the complaints, but concealed the information from Navajo Nation authorities and authorized payments anyway. 

“The defendant knew and assisted in Agile’s fraudulent scheme against the Navajo Nation,” writes the Prosecutor’s Office. 

These complaints become public four months after Kirk was unseated by a split Council that eventually voted 13-10 in favor of her removal. Delegate Nathaniel Brown said her dismissal was hasty.

“What if we are not happy with the investigation?” asked Brown during the May Council session. “The blame is going to go to attorney general. Are we going to be removing her? Will we move others? We are making this important decision prematurely.”

Health, Education and Human Services Committee Vice Chair Carl Slater was an ardent supporter of Kirk, but during the debate on whether to keep Kirk as controller, he said the information received about the situation was enough to make him change his mind.

“I received this testing from Agile Technologies,” Slater said, adding that the testing was pushed on Council delegates and recommended by Law and Order Committee Chair Eugenia Charles-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 Kirk did a lot of hard work and stood her ground through the CARES funding process. Newton expressed her unwavering support for Kirk throughout the entirety of the session, and questioned the assertions from Attorney General Doreen McPaul and the DOJ.

Newton acknowledged she was “guilty for making that recommendation” for Council delegates to be tested by Agile in April 2021. She said she was tested four times by the company. She also said the executive branch and DOJ did not tell the delegates the company was under investigation, and if they had, everything would’ve turned out differently.

Attorney General McPaul responded. “We didn’t know that was occurring,” she said during the May session. “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.”

McPaul said once they received information that testing was continuing, they brought it to the attention of leadership.

“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.”

A few days after Kirk was removed, Navajo Nation President Jonathan Nez appointed former Auditor General Elizabeth Begay to serve as acting controller.

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Arlyssa Becenti
Arlyssa Becenti

Arlyssa Becenti is a Diné journalist with 10 years experience reporting on Navajo Nation. She recently placed first for Arizona Press Club’s community investigating reporting for her series on the illegal hemp and marijuana farms in Shiprock, N.M. She was also awarded Arizona Press Club’s 2020 Nina Mason Pulliam Environmental Journalism Award for community reporting. She has reported for the daily Gallup Independent and weekly Navajo Times. She is pursuing her masters in investigative journalism at Arizona State University’s Walter Cronkite School of Journalism.