Court orders retirement board nominees not to act until confirmed by Fono
Chief Justice Michael Kruse has ordered that the nominees selected by Governor Lolo Matalasi Moliga to the American Samoa Government Employees Retirement Fund (ASGERF) board not be involved in the management of the fund until they are confirmed by the Fono.
The announcement was made during the High Court hearing on the government’s motion to dismiss the lawsuit filed by current members of the ASGERF against the governor for declaratory and injunctive relief, regarding the governor’s recent nominations to the Retirement Board for confirmation by the Legislature.
The members of the ASGERF board who are named plaintiffs in the lawsuit are Aleki Sene Sr., Faoa Aitofele Sunia, Fanene Morris Scanlan and Magalei Logovi’i, who are represented by Marcellus Talaimalo Uiagalelei.
The fifth board member Brandt “BJ” Judy, who’s been re-appointed as one of the new nominees for the board, is not a party to the complaint. The Chief Justice took the dismissal motion under advisement.
During the hearing, Assistant Attorney General Michael Iosua noted it was the governor’s duty to appoint new board members given the current board member’s terms have expired, for at least 30 years.
He further argued that the governor did consult with the current ASGERF board, who submitted their own names to remain on the board; and the governor, after careful and thorough consideration, opted to name his own nominees, while re-nominating Judy. He further noted that the governor met the consultation requirement under the statute when he considered the list of nominees.
However, Uiagalelei pointed out that Lolo’s “consultation” as defined in the local statute requires the governor to do more than just consider a list, for instance he needs to sit down and talk or coordinate with the current ASGERF Board.
Uiagalelei further noted considering a list submitted by current board members defeats the whole purpose of why the statute was created — which was to eliminate political influence of board members. He also pointed out the intent of the statute is for the governor to sit down with the sitting board and go over each nominee in order to select the best possible candidates to sit on the retirement board of trustees.
Uiagalelei stated this board is unlike any other board, because they are entrusted to look after the retirement fund of the American Samoa Government. Kruse asked the plaintiffs’ attorney, “Is the governor compelled to accept the board’s recommendations?” Uiagalelei stated “I believe so.”
Kruse then asked, “Is the Fono compelled to accept what the board wants?” Uiagalelei replied, no.
The Chief Justice then asked why is the legislative branch much more important than the governor, if the Fono is not compelled to accept the board’s decision.
Uiagalelei pointed out the intent of the statute is so board members and the governor “act as one” in regards to the appointment of ASGERF board members.
Kruse asked Uiagalelei, whether it was ever contemplated by the Fono there would be indefinite members on the retirement board, simply with the governor not submitting board names to the Fono for confirmation.
Uiagalelei stated that he believes the Fono encouraged or even preferred that the governor forward names of board nominees for consideration, but they didn’t foresee what happened in the past, when the governor chose not to act on submitted nominees.
Kruse also asked Uiagalelei —what if the Fono confirms the governor’s new appointments, what then?
Uiagalelei replied then the board will move to invalidate the appointments.
According to the lawsuit filed, the plaintiffs are asking the court to declare that they are the proper Trustees for the ASGERF Board and are asking the court to declare the governor’s nominations made to the Legislature invalid, and therefore rescinded. They further ask the court to grant injunctive relief against the governor and that the court grant other relief it may deem equitable and just.
The government’s dismissal motion notes the governor has the authority to appoint new members of the board of trustees for the ASGERF. “The only requirement for the governor, in exercising this authority is to consult with the Board in determining a list of candidates before appointing a new member."
“Here, each of the acting Board members' terms expired several years ago.”
The motion noted that the governor had consulted with the plaintiffs to produce a list of candidates to replace the (current) board members and plaintiffs submitted a list, which the governor considered.
It goes on to say that the governor selected one person from the plaintiffs' list to join four other candidates he had selected to serve as the new members of the Board and therefore, the governor did fulfill the requirements of the law, therefore, "Plaintiffs claims must be dismissed."
“Additionally, despite Plaintiffs' allegations, the governor has agreed that the Appointees shall not take office until they are confirmed by the Fono" — which is why there’s no reason for a preliminary injunction.