Complaint alleges company grifted Navajo Nation with the ex-controller’s knowledge

During a time of heavy pandemic losses, prosecutor says, official led the government to spend much-needed resources on services not provided

By: - December 20, 2021 6:56 am

Navajo Nation President Jonathan Nez has his temperature checked while helping to distribute food, water, and other supplies to Navajo families on May 27, 2020 in Huerfano. In this time, coronavirus was spreading, and federal aid money was still slow to come to tribes. (Photo by Sharon Chischilly / Getty Images)

New details emerged about allegations against former Navajo Nation Controller Pearline Kirk regarding around $3 million in Navajo Nation pandemic funding paid to Agile Technologies Group LLC to conduct COVID-19 tests.

A fresh round of criminal complaints were filed at Window Rock District Court on Dec. 3, a few days after Navajo Nation voluntarily dismissed other charges against Kirk before her case could get to trial. 

Details from the complaints: 

The Navajo Office of the Chief Prosecutor writes that Agile didn’t exist before March 2020, and just months later, this company was hired to conduct COVID-19 testing on Office of the Controller employees. 

In two installments, the Navajo Nation government, at Kirk’s urging, paid Agile Technologies $3.1 million for the period from Nov. 17, 2020 to Dec. 30, 2020, even though this company would have been less than a year old at the time and lacked proper testing certification for its sites on Navajo, according to the complaints. 

Agile charged the Navajo Nation $378,000 for testing and contact tracing, a service that was never performed, writes Acting Chief Prosecutor Vernon L. Jackson Sr. 

At no point did Agile contact the Navajo Nation to report testing results to public health officials, as required by law, the complaints indicate. 

In Agile’s invoices, the company charged the Navajo government $22 per rapid antibody test for about 2,500 of them, but “this math does not add up,” the prosecutor’s office writes, and somehow the total listed is double what it should have been — over $110,000.

Agile also charged the Nation more than half a million dollars for installing “germicidal” HVAC systems in six buildings, and it never happened, the complaints state. 

At certain events, the company tested Council Delegates, from November 2020 through May 2021, when it was shut down by Navajo Department of Justice.

Dire need

As Navajo Nation grappled with the devastation of the pandemic, the U.S. Congress voted to send $8 billion from the $2 trillion Coronavirus Aid, Relief, and Economic Security Act (CARES) to Native tribes across the country. But it did not come fast enough. In fact, the CARES Act was passed in March 2020 but tribes didn’t funding until June. 

It was only after the U.S. District Court Judge Amit Mehta ordered the U.S treasury to pay up that the funding finally arrived. The Navajo Nation and other tribes had to sue the federal government for weeks in order to get a portion of the money, while states had received funds almost immediately. 

Within that timeline, the Navajo Nation was battling the first waves of the pandemic with little resources. 

But it only took five months, the prosecutor indicates, for $3 million to find its way to Agile Technologies Group LLC and its CEO, as payment for COVID-19 tests and other services that did not happen. “In November 2020, after receiving the Navajo Nation first round of CARES Act funding … Ms. Kirk caused a portion of these funds to be allocated to hire Agile Technologies Group, LLC,” the complaint states. 

How did that contract get signed?

It wasn’t a mere oversight on Kirk’s part that allowed Agile to rip off the Nation, but rather something she helped make happen, the complaints indicate. 

Kirk did not seek approval for the company’s contract with the Health Command Operation Center (HCOC) and Navajo Department of Health, according to the complaints, and that’s required by Navajo law. She also avoided Health Command officials after they informed her Agile was not allowed to conduct testing on Navajo Nation any longer, which happened as early as Dec. 15, 2020, though the company would operate for five more months, the prosecutor’s office writes. 

Kirk allowed Agile to continue conducting testing on Navajo until May 7, 2021 when the company was issued a cease-and-desist order by the Navajo DOJ: “On Dec. 15, 2020, HCOC informed Ms. Kirk that Agile’s actions violated Navajo law, federal law, and applicable public health guidance, and that Agile’s testing must be stopped immediately,” the complaint states. “Ms. Kirk refused to stop the testing.”

During a mediation session between Kirk and HCOC on Dec. 20, 2020, Kirk indicated Agile’s testing would cease at the end of that year, the prosecutor writes. But Kirk still paid a second chunk of the Navajo Nation CARES funding of $1.9 million to Agile on Dec. 29. 

Had HCOC been permitted to review Agile’s testing proposal, as required by Navajo law, the government would have likely spent that money elsewhere, according to the complaint: “If Ms. Kirk had consulted with HCOC as required, Agile would never have received a contract from the Navajo Nation.”. This, the prosecutor outlines, is the “deceptive action” that led the contract to be signed by Navajo Nation President Jonathan Nez on Nov. 20, 2020.

Navajo Nation department heads, including Kirk, were provided training about the requirement that the Health Command Operation Center must approve all testing on Navajo, and also about available testing, workplace safety and precautionary measures. 

Kirk’s defense

Kirk’s attorney David Jordan pointed out in their Dec. 3 press conference that contracts between Agile and the Navajo Nation were not signed by Kirk but rather by Nez. Jordan also said several processes and reviews happened before the contract was signed, including one by the Office of the Attorney General.

“It’s not the controller’s job to sign contracts on behalf of the Navajo Nation,” Jordan said. “It’s the controller’s job to ensure there is fiscal accountability, that when monies are being encumbered by the Navajo Nation, that they follow tribal and federal laws.”

Emergency response

The complaint shows that on Nov. 10, 2020, the Office of the Controller relayed to Navajo DOJ that the non-competitive proposal for Agile was in the best interest of the Nation because of emergency need. This was a “deceptive misrepresentation,” the prosecutor writes. Kirk, the complaint explains, used this excuse to dodge having to get the appropriate approvals from agencies that would know this wasn’t the case. 

The Navajo Nation already had contracts with Pacific Architects and Engineers and AMI Expeditionary Healthcare, both reputable and established United States government contractors with decades of experience that were reviewed by the Health Command Operation Center. 

“Likewise, hospitals were providing testing services, and Arizona State University was providing testing through the Navajo Housing Authority,” the prosecutor writes. “Ms. Kirk knew that the Navajo Nation had existing available COVID-19 testing and related services, yet she chose to submit a materially deceptive review packet for a contra​​ct she knew would be approved based on her statements and her position as controller.”

In a timeline given to Navajo Council in May as delegates debated whether or not to remove Kirk, a history is outlined  of questionable business tactics by her mentor Drew Ryce and Kirk going all the way back to 2007. The complaints also point to Ryce, saying Ryce and Agile informed Kirk that services they’d been paid for were not being provided.

Kirk knew of this and knew Agile would be shut down by HCOC if officials there were aware of the violations, according to the complaint. So she chose not to report the violations to HCOC or any other office and allowed Agile to continue its services and expand its unauthorized work on the Navajo Nation.

Luxurious living

When it comes to the CEO, who wasn’t specifically named in the complaint, it stated a day after Agile received $1.8 million for the second payment from Navajo Nation, that person used the same bank account to purchase a $145,000 Aston Martin sports car paid in a cashier’s check. He then moved into a luxury high-rise and penthouse apartment in Chicago with a listed rental fee of over $8,000 a month, according to the complaint, and he used the same bank account at a luxury resort in Mexico and for tens of thousands of dollars in luxury goods from lavish designers including Gucci and Louis Vuitton. 

In the seven months when Agile was testing on Navajo Nation until they were shut down, there were 16,949 people who were infected with coronavirus, and 686 people had died from the virus. 

“As the Navajo Nation’s Controller, the highest paid position within the Navajo Nation Government, Ms. Kirk was a Naat’anii with responsibilities to the People,” the prosecutors’ office writes. “She was obligated to carry out these responsibilities in a moral and legal manner while representing the People and the government. Ms. Kirk betrayed the trust of the People and failed in her responsibilities as a Naat’anii.”

Source NM reached out to Agile, and after some information was given off the record, someone with the company said they would call back. Another call was made, but no response yet. We’ll update this story if we hear back.

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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.