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ASG employees vying in guv’s race must resign

Sitting governors, lt governors, local legislators not included
fili@samoanews.com

Except for the current lieutenant governor and a sitting senator, all American Samoa Government employees, who are candidates in this year’s gubernatorial race must resign from their government jobs before the end of the week, says Attorney General Fepuleai A. Ripley, in a legal opinion last week before the close of candidate registration on Sept. 1.

The four-page opinion to Chief Election Officer Soliai Tuipine Fuimaono followed concerns raised two months ago by candidate for governor Save Liuato Tuitele and his running mate candidate for lieutenant governor Tofoitaufa Sandra King Young about government employees, who have not resigned from their jobs in accordance with local law, before they start campaigning.

No specific candidate for office was cited in team Save and Sandra’s concern, which was first sent to Soliai, who responded that the Attorney General is the enforcement officer of the government in matters pertaining to ASG workers.

In his Aug. 30 legal opinion, Fepuleai addressed the main issue, which is whether ASG employees in the gubernatorial race must “resign” from their employment or face disqualification as candidates in the election pursuant to local statute. A.S.C.A. section 4.0102(f).

The short answer is, “Yes, the statute mandates that ASG employees for the post of governor and lieutenant governor “must resign from their ASG employment prior to active campaigning or, at the very least, resign no later than 60 days prior to the election date or face disqualification as candidates,” he wrote.

DISCUSSION

The opinion went on to discuss who is considered an ASG employee under local statute, when referring to gubernatorial candidates who are "employees of the government in whatever capacity” in the executive and judicial branches.

It also covers laws dealing with career service employees, contract employees, “excepted service” workers (i.e. elective positions). It cites specific provisions of the statute to further clarify this issue.

And based on the statute on ASG employment classifications, “directors and employees of ASG departments within the executive and judicial branches, regardless of whether their positions are designated as career service or excepted service, are ‘included’ in the statute and ‘must resign’ in order to be eligible as gubernatorial candidates,” said Fepuleai.

He also discusses the issue about employees and officers (not including board members) of semi-autonomous government agencies citing provisions of the American Samoa Administrative Code (ASAC) and local law

“When read together with the definition of ‘agency’ in ASAC 4.0209, the statute is broad enough to include employees of semi-autonomous agencies and therefore these employees ‘must resign’ in order to be eligible as gubernatorial candidates,” he wrote.

As for lawmakers, the opinion states, “The statute is silent as to the resignation of officials elected into the Legislature” - i.e. Senate and House, he said.

He cited a provision of the local constitution, which states in part that, “No employee or public officer of the Government shall be eligible to serve in the Legislature while holding such position."

When read together, these provisions “indicate that senators and faipules are not considered employees of ASG as contemplated by the statute, and therefore, are ‘not’ required to resign to be eligible as gubernatorial candidates,” he said.

As for an incumbent governor and lieutenant governor running for office, Fepuleai said, the “statute does not apply to an incumbent Governor and/or incumbent Lieutenant Governor” He cites a provision of the statute governing the gubernatorial term of office - which is four years - and that they serve until their successors are elected and qualified.

But the statute does not provide for the resignation of the incumbent governor or for an incumbent lieutenant governor, he said.

Requiring the incumbent gubernatorial team; to resign prior to the end of an administration “would have a detrimental effect upon Territorial government operations during the course of an election,” said Fepuleai.  “Historically, incumbents in these positions have not been required to resign both in this jurisdiction and elsewhere.”

CONCLUSION

In conclusion, Fepuleai said that under ASCA 4.0102(f), employees of ASG's executive and judicial branches must resign before commencing "active campaigning" (as defined by the statute), or at the very least, they “must resign no later than 60 days prior to the election date to be eligible as candidates.”

The opinion states that Nov. 6 is the general election; therefore the resignation must be effective by Friday, Sept. 7.

Additionally, the opinion cites local statute, which states that the Chief Election Officer determines whether a nominated candidate is eligible for election. (An election petition signed by registered voters nominates Candidates).

Copies of the opinion were sent to the “Save and Sandra” gubernatorial team, the governor and lieutenant governor as well as the Human Resources Department director.

BACKGROUND

The opinion is clear that the incumbent Lt. Gov. Faoa A. Sunia and sitting Sen. Lemanu Peleti Sialega Mauga are not required to resign from their government posts.

Candidate for governor Lolo Matalasi Moliga resigned about two months ago from his post as president of the Development Bank of American Samoa; and candidate for governor Save Liuato Tuitele retired early this year from the Judicial Branch.

Soliai confirmed to Samoa News yesterday that candidates for lieutenant governor Taufete’e John Faumuina and Le’i Sonny Thompson recently resigned from their government jobs.

Le’i, in an email to Samoa News, confirmed he sent his resignation letter to Gov. Togiola Tulafono on or about Aug. 1st and it was effective as of August 31st.

Samoa News wasn’t able to immediately confirmed yesterday if ASG employee Tuika Tuika Jr., a candidate for lieutenant governor, has resigned from his post.

Based on the legal opinion, Soliai said any candidate in the gubernatorial race must resign effective this Friday.

Click on attachment to download AG Fepuleai's legal opinion.

AttachmentSize
LEGAL OP_ ASG EMP RUN FOR OFFICE.pdf2.18 MB


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