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Gov Togiola vetoes ASPA supplemental budget

Gov. Togiola Tulafono has vetoed the $60.37 million bill to fund the American Samoa Power Authority operation from Feb.1 to July 31, 2012 citing among other things, his concern over the revenue source to fund the supplemental appropriation.

The governor also addressed in his letter the much debated issue between the Fono and ASPA over ASPA’s claim that its board of directors has the authority to approve the annual budget and not the Fono.


In his Feb. 9 letter disapproving the measure, the governor pointed to Section 3 of the supplemental bill, saying that revenue received by ASPA from “any source not included in the sources of projected revenue identified... or which exceeds  projection of any revenue source” identified in this bill as “unbudgeted revenue” to be made available “for immediate appropriation by the Legislature...” contravenes an existing grant of authority to ASPA by ASCA 13.0102(11).

This provision of the law provides that ASPA “may borrow money and incur indebtedness of capital improvements and may... hypothecate and give security interests in... earned revenue to secure such indebtedness,” he wrote.

“Existing law allows ASPA to secure debt with earned revenue, while the proposed bill requires any revenue collected by ASPA in excess of that which is projected by the bill — including earned revenue — be subject to appropriation,” the governor wrote.

Without modification to ASCA 13.0102(11), approval of this bill would “create an irresolvable conflict”, he said.

Additionally, ASPA would retain the authority to pledge earned revenue to secure debt, but simultaneously be required to remit for appropriation all revenue in excess of that projected in the bill. “This conflict alone provides sufficient justification to veto this bill,” he points out.


“However, what must be acknowledged is that there are conflicts in the existing laws which make determining whether the ASPA board of directors or the Legislature has ultimate authority over ASPA’s budget a difficult question to answer definitively,” he said.

“The bill as presented ignores these conflicts and presumes that Legislature has plenary authority over ASPA’s budget. This does not comport with the law and so I object to it as well,” he points out.

The governor also explained that ASPA is established within the executive branch as a semi autonomous agency and it is required by law to prepare an annual budget as part of the governor’s budget process.

However, another provision of the law — ASCA 15.0104(5) — mandates that the ASPA board approve the annual budget of the authority, while other provisions of the law ASCA 15.0106(a)(b) grants the Legislature the ability to provide “supplemental funding by appropriation,” — which may be in the form of interesting bearing loans — for ASPA’s operation and capital improvements, the governor points out.

“The law explicitly grants the ASPA board authority to approve the ASPA’s annual budget and allows the Legislature only to provide supplemental funding,” he said. “To correctly assert that the Legislature has authority to approve ASPA’s annual budget one must reconcile the general grant of authority that the Legislature has over the budgets of other ASG departments and agencies... with specific grant authority designated to the ASPA board by ASCA 15.0104(5),” the governor notes.

Moreover, in delineating the Legislature’s authority, the governor points to Article II, Section 1, subparagraph (c) of the Revised Constitution of American Samoa, which limits legislative appropriations to “revenues raised pursuant to tax laws and other revenue laws of American Samoa.”

“Revenue collected by ASPA cannot rightfully be characterized as ‘raised pursuant to tax laws’ nor are they raised pursuant to enactments of the Legislature,” he explained. “Whether ASPA’s rates and charges are encompassed as part of the ‘revenue laws of American Samoa’ is debatable.”

“What should be well settled and therefore less debatable and what should be respected, is the high degree of autonomy granted to ASPA by law,” the governor said. “ASPA, while moored to the American Samoa Government, is financially self-sustaining via the revenue it generates through the rates and fees it charges for utility services.”

“Both the governor and the Legislature have duties and authority over appointments of the ASPA board,” he said, adding that once appointed the ASPA board’s duty is to “exercise all... powers... reasonably necessary to the administration, management and operation of the authority” in accordance with ASCA 15.0104(8).

If the Executive or the Legislature acts to administer or manage ASPA, it “usurps the authority” of the ASPA board, violating both the letter and the intent of ASCA Title 15 — which deals with ASPA, the governor concluded.

At this point, ASPA continues its operations under its own budget of $118.47 million for FY 2012 — which is the information ASPA provided to lawmakers last month, saying that this budget was approved by the board.