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Government asks Admin Law Judge to dismiss claim filed by former LBJ employees

fili@samoanews.com

The Attorney General's Office, representing the LBJ Medical Center, has denied allegations made against the hospital by four former employees who claim they were forced to resign from their jobs. The government is also asking that the claim, filed with the Administrative Law Judge, be dismissed with prejudice.

The four employees, or petitioners - identified in the court filing as Gretchen Fano, Ella Leala, Felise Toilolo Jr. and Clara V. Tufele - had claimed that among other things they were forced to resign last month as the hospital was conducting an investigation into alleged missing cash in the Business Office.

The petitioners' attorney Fiti Sunia argued that if LBJ was considering termination it should have complied with ASAC 4.0802 which mandates that petitioners be given written notice supporting termination and an opportunity to respond to the charges.

Prior to filing this petition, Sunia advised the hospital on Aug. 16 that this clients "were rescinding their supposed resignations, but LBJ rejected petitioners' notice," the petition states.

Assistant Attorney General Lisa Johns in a Sept. 2 response denies the allegations made directly towards the hospital, including petitioners' claim that their resignation was "involuntary because they were coerced."

In its defense, Johns contends that petitioners failed to state a claim upon which relief can be granted; and actions taken by the hospital "were legally and fully complied" with, in accordance with local statutes, regulations and administrative code.

Furthermore, the employees' claims "are barred by their own contributory and comparative negligence." Additionally, the claims are barred by waiver.

In a separate response, also filed Sept. 2, Johns contends that the hospital is a "sub division of the government under the responsibility of the executive government and hence can not be sued in its own capacity", and asked the court to dismiss the claim.

Johns argued that in the Aga v. ASG case, the High Court decided that a subdivision of the government cannot sue or be sued, since it is under the responsibility of the executive. She also cited two other local cases which provided the same finding.

She argued that the hospital was not given a statutory or constitutional power to sue or be sued because provision of local statute (under Title 13) did not specify that the hospital can sue or be sued.

She points out that the High Court has held that "it is common knowledge that the Medical Center is operated and administered by ASG." The court further stated that the public policy ramifications of allowing a government subdivision to be sued were unwise and it would open the floodgates of litigation.

She asked the ALJ to dismiss this case "with prejudice" (which means it would be final and the case cannot be re-filed.)