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Soliai denies Save-Sandra gubernatorial challenges

Says his job is to administer, not enforce
fili@samoanews.com

Although Chief Election Officer, Soliai Tuipine Fuimaono has denied the challenge by the gubernatorial team of “Save and Sandra,” certifying candidates for the top political posts in the American Samoa and printing ballots for this race will have to wait until a grace period expires allowing the team to appeal the matter to High Court.

“I have already denied the challenge and a response was sent to the challengers’ attorney,” before 4:30 p.m. Sept. 6, Soliai told Samoa News late Friday. “There is now a waiting period, in accordance with the law, before candidates for the offices of governor and lieutenant governor are certified and the ballots printed.”

Local law, ASCA 6.0303 — Appeal to High Court — states:

•            The challenger or the challenged may, not later 4:30 p.m. on the 5th day after the decision of the Chief Election Officer, appeal directly to the Appellate Division of the High Court in the manner provided by law for civil appeals to the High Court.

•            When the appeal is perfected, the High Court shall hear the matter as soon thereafter as may be reasonable. The determination by the court is final.

SOLIAI’S DENIAL LETTER

Candidate for governor, Save Liuato Tuitele and running mate, candidate for lieutenant governor Sandra King Young filed the morning of Sept. 6 a letter challenging the eligibility of four candidates for governor or lieutenant governor.  Gist of the challenge is that these candidates didn’t resign from their government jobs before active campaigning began.

Those being challenged are candidates for governor Lolo Matalasi Moliga (president of the Development Bank of American Samoa) and Dr. Salu Hunkin-Finau (co-director, ASDOE Research & Development Project); and candidates for lieutenant governor, Taufete’e John Faumuina (director of Criminal Justice and Planning Agency) and Le’i Sonny Thompson (director of Department of Administrative Services).

In his letter to the Save and Sandra team’s attorney Charles Alailima, the chief election officer noted the Aug. 30 opinion by Attorney General’s Fepuleai A. Ripley Jr., dealing with ASCA 4.0102(f):

•            Candidates for the offices of Governor and Lieutenant Governor who are employees of the government in whatever capacity and for either the executive, or judicial branches must resign their position with the government before commencing active campaigning. “Active campaigning” includes but is not limited to: the acceptance of a petition from the election official charged with that responsibility; any effort whatsoever that is designed to influence or obtain votes from qualified electors; and any activity that would cause a conflict of interest at the candidate’s position of employment with the government. In any event, candidates must resign no later than 60 days prior to the election date even if the events above have not occurred.

Soliai said that “nowhere in the law nor the Attorney General’s Legal opinion does it provide that the Chief Election Officer has the power to ‘enforce’ subsection (f). In fact, my office does not have the authority nor the ability to prosecute alleged violations of this subsection.”

He also pointed out that it is the chief election officer’s duty to “administer” the American Samoa Election Reform Act and as part of that administrative function is to determine whether nominated candidates are eligible for election and shall cause ballots to be printed for each office bearing the names of all qualified candidates.

 Soliai also provided a provision of the status pertaining to qualification of a candidate for governor and lieutenant governor. He said his review of candidates’ qualification is limited to checking whether such candidates meet the statute and does not include enforcement.

Not only is the chief election officer’s authority limited to reviewing gubernatorial qualifications set forth in the statue, “but the timing of the challenge window is such that I cannot determine whether a subsection (f) violation has occurred,” he wrote.

“Since it is not within my authority nor ability to make a decision regarding your complaint, your complaint is denied,” he wrote. Copies of Soliai’s letter were sent to the challenged candidates as well as the Attorney General’s Office.

Lolo resigned from his post around June, while Save’s resignation was made in late 2011 (not early this year as previously reported). Soliai told Samoa News earlier that both Le’i and Taufete’e had also resigned from their directorship posts.

 

HUNKIN-FINAU RESPONSE

Samoa News asked Hunkin-Finau last Thursday about this issue — after learning from the “Save and Sandra” challenge that she is an employee of the local Department of Education.

Yesterday morning, Samoa News received a reply from Hunkin-Finau — a notice dated Sept. 7 addressed to the “Save and Sandra” team as well as their attorney; also to Fepuleai; Samoa News; and Soliai.

The notice, which was mostly in Samoan, states in part that the challengers should fully research who is considered an ASG employee. Hunkin-Finau pointed out among those who work for the government are those on “Independent Service Contracts” who are not ASG employees.

She said she works for the government on an Independent Service Contract for ASDOE and her contract, which is funded by an ARRA grant project, expires Sept. 30.

“After conversation with the ASDOE Chief Financial Officer, and an electronic opinion from the ASDOE attorney... 06 September 2012, and in light of the Attorney General’s legal opinion (30 August 2012) regarding candidates Save and Sandra’s challenge regarding the possible ineligibility of my running for Governor, I want to set the record straight and wish to express my views publicly to all our supporters, families and friends,” she wrote.

“It is my understanding after reviewing my contract status from these legal documents, I have not violated A.S.C.A #4.0102 (f) as you clearly misinformed the public and our supporters in your radio program Thursday 6 September,” she said. “Further, I was surprised and am gravely disappointed that your characterization of future ‘leaders’ violating the noted law actually stemmed from your lack of properly researching candidates’ work documents/information for your challenge, putting you on a thin line from personal, professional and public defamation of character.”

Hunkin-Finau didn’t elaborate on what local radio station a program was aired, and whether it was Save or Young, who made the characterization of future leaders violating local law.

OBJECTIONS TO FEPULEAI’S LEGAL OPINON

Local attorney and candidate for the Tualauta county House race, Roy J.D. Hall Jr., last Friday wrote to Soliai, objecting to Fepuleai’s legal opinion in the interpretation of ASCA 4.0102 (f), especially when it comes to ASG employees.

The four page letter, states in part that the statute clearly applies only to those candidates who are government “employees... in whatever capacity,” he wrote and noted that the term “employees” is not defined by the statute.

The American Samoa Code, however provides that “[w]ords are to be understood in their ordinary sense,” except where such words are defined or explained otherwise, he wrote and cited ASCA 01.0106.

The letter cites several legal arguments, local statutes, local court cases, and other matters that Hall says clearly do not apply to the interpretation of an “employee” of the government, as per the legal opinion of the Attorney General.

Hall said there may also be constitutional issues as to the candidates’ constitutional rights under the Revised Constitution of American Samoa.

Hall requested that the legal opinion “be reviewed by separate and independent counsel, by reason that the Attorney General’s Office has, in my opinion, a conflict of interest, because it is an agency of the Executive Branch and its interests may not be perceived to be aligned to the candidates who are presently employees or in appointed positions that are clearly ‘excepted’ under ‘local statute’ and who are running for elective office.”

AttachmentSize
HALL-TO ELECTION OFFICER TL 9.7.12.pdf1.39 MB


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