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Op-Ed: Did ASPA violate the laws prohibiting political acts by ASG employees?”

It is quite apparent that the process by which elections held in American Samoa are overseen is broken and dysfunctional, as there is currently no election board or commission in place to enforce the laws governing campaign spending or reporting requirements. This is a serious problem that requires immediate attention, for without such an oversight process in place it is difficult, if not impossible, to guarantee that elections are held in a manner that is ultimately free and fair.

The Election Office, however, is not to blame for this problem; apparently it is the fault of the outgoing governor who, despite repeated requests for him to reappoint an election board in time for the last election, either failed or refused to do so.

Despite this problem, under the provisions of the American Samoa Code Annotated (ASCA) individuals still have the right to file a complaint regarding what they believe to be a violation of the election laws of the territory, and should be able to expect their complaint to be acted upon in a timely and satisfactory manner.

I recently filed just such a complaint with the Election Office regarding the failure of the American Samoa Power Authority (ASPA) and its board of directors to file election reports. I believe they should have been required to file these reports as a result of their campaign to defeat the referendum on a proposed amendment to the Revised Constitution of American Samoathat appeared on the November 6, 2012 ballot. (This amendment would have given the Fono, rather than the Secretary of the U.S. Department of Interior, the power to override the governor’s veto.)

But getting ASPA and its board of directors to file their required election reports is only the first step in ensuring that the election process is as free and fair as is humanly possible.

I believe a far more serious problem is that they violated Chapter 8 of Title 7 of ASCA, the provisions of which clearly and expressly forbid government employees from engaging in political activities while on government time or to use government resources for political purposes. Subsection 7.0807 of ASCA (“Prohibited political acts-Penalty”) states that:

“(a) It is unlawful for an employee of the government to:

(1) use his official authority or influence as an officer or employee of the government for the purpose of interfering with or affecting the result of an election or a nomination for office;

(2) directly or indirectly suggest, advise, command, coerce, or attempt to coerce an officer or employee of the government to pay, lend, or contribute anything of value to any person, committee, organization, agency, or party for political purposes;

(3) use property belonging to the government to directly or indirectly benefit or support any political candidate or political campaign.”

As a sign that these laws should be taken seriously, the penalties for violating them can be quite consequential as they include not only a large fine but also suspension or even outright dismissal of the employees involved.

So if ASPA, including not just its CEO and board of directors but upper management as well, violated these provisions of ASCA, the question then becomes what (if anything) will be done about it?

If they are not now held accountable, what’s to prevent this from happening again? What if in a future election those in charge of ASPA (or some other government agency, department, or authority) decide that one particular candidate for governor would better look after their interests than another? Would they then be free to use government resources to support that candidate?

After all, if they get away with it this time, and in such an open and defiant manner, then the precedent will have been set.

An argument could even be made that as a result all government employees would feel free to engage in similar political activities and/or should not be penalized for doing so. Obviously this would be a highly undesirable state of affairs that would more or less mean the end of free and fair elections in the territory.  

In my opinion, the time to put a stop to this nonsense is here and now.

I believe the new, incoming administration should thoroughly investigate what ASPA did (in opposing the Constitutional amendment) and hold those individuals found responsible to full account, thereby sending a very clear and strong message that illegal interference in the democratic processes of the territory by those in charge of a public agency will not be tolerated, and that a very steep price will be paid for doing so.

Although the new administration will obviously have a lot of serious issues and problems to contend with from the day they take office, I believe this to be one that deserves their utmost attention.

To be perfectly clear about this, please note that it is not my intention to get anyone fired from his or her job, especially not some lower-level employee who was just acting on orders from his or her superior(s). But in order to safeguard the integrity of future elections held in American Samoa, I strongly believe that those in charge of ASPA must be held responsible for their outrageous and egregious actions of interfering in the last general election (actions which were in clear violation of the laws of the territory) and punished accordingly.

And in case anyone should question whether officers and employees of a semi-autonomous government authority are subject to the provisions of ASCA, the answer to that question can be found in the statute that established ASPA in the first place: Title 15.

Title 15 states that all “officers and employees of the Authority other than Executive Director, business and finance manager, operations manager and plant managers are appointed and compensated in accordance with the requirements of the government employee laws (of Title 7)”. Although Title 15 also allows the Board (of ASPA) to “adopt administrative rules... to supplant government employee laws and rules in the specific categories of… termination of employee services [and] disciplinary actions”, it is highly doubtful that this includes, or was meant to include, abolishment of the prohibition on political activities pursued by government employees while on government time, or the use of government resources in doing so.



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