DBAS legal counsel asks for career service status

Retaliation over 1602 investigation a compelling concern

Development Bank of American Samoa’s Legal Counsel, Fainu’ulelei L.P.F. Alailima-Utu has submitted an advance notice under his Employment Contract to terminate his employment with DBAS if the bank is unwilling to convert his employment to career service “at the earliest opportunity” — for reasons he cites as “compelling” in a letter sent to DBAS Chairman Nuanuaolefeagaiga Saoluaga Nua, DBAS board members and Acting DBAS President Ruth Matagi Fa’atili.
The letter, which is dated January 30, 2014, was leaked to Samoa News.
According to the DBAS attorney the termination of his employment would be effective on Mar. 14, 2014, but also notes at the end of his letter, “If the Board decides to convert me to career service, I will be more than glad to continue serving DBAS Board and DBAS and especially our people and to continue to work hard to attain the goals DBAS and our Legal/1602 compliance monitoring team have set for 2014.”
Fainu’ulelei’s letter to the board explains the “compelling reasons” for his request for career service employment status.
The DBAS Legal Counsel in his letter states that in 2012, the Board asked him to convert from career service to contract employment like other DBAS officers, i.e President, Vice President and DBAS CFO. “Even though I was not required to agree to such Board request because the DBAS Personnel Manual did not require all DBAS officers to be contract employees, out of respect for the Board’s wishes I agreed with the board’s request.”
Fainu’ulelei then points out that while the DBAS board reviewed and approved his employment contract with benefits and provisions similar to other DBAS officers’ employment contracts, he was recently informed the 5% annual increment he's entitled to since December 28, 2013 was not paid.
He says this is because the new Acting President informed him that DBAS Chairman Nua wanted to discuss his contract before the Board in light of the Board’s policy in mid-2103 to suspend annual increments for DBAS employees unless approved by the DBAS board.
The DBAS legal counsel said he “did not think the reason was related to my job performance because former Acting President Jason Betham gave me high marks for my job performance in my written employment evaluation for the period 12/28/12 until 12/ 28/13.”
“It appears that my employment contract benefits are being targeted even though they were reviewed in two board meetings and unanimously approved by the board according to the minutes of those board meetings,” Fainu’ulelei says.
He said, “If the objective of the Board review of my contract is to cut DBAS personnel costs, I volunteer even if I am not legally obligated to do so— to have the contract employment converted back to career service at my present annual salary, with health insurance coverage and other regular benefits for a career service employee.”
The Legal Counsel for DBAS then points out, “conversion of my employment back to career service is also justified because I am concerned about retaliation against my contract employment because as part of my duties, I signed and sent notices since late 2013 to many 1602 projects owners which include the DBAS Board Chairman and DBAS Facilities Manager and other government and community leaders, asking them to finish construction of their 1602 projects and correct their non-compliance or DBAS will file recapture suits against them. (See article in Monday’s edition on the litigation claims filed in HIgh Court.)
Fainu’ulelei states, “as the DBAS official authorized by the DBAS board to oversee DBAS cooperation with the Federal criminal investigation of the 1602 program, I am concerned that persons of authority will retaliate against my contract employment if they themselves or persons they are close to, become targets of the 1602 federal criminal investigation since I have been encouraging DBAS management and employees to fully cooperate with the federal 1602 criminal investigation.”
“If the Board chooses NOT to convert me to career service employment, I will respect the Board’s decision,” he states and notes he has worked for DBAS, as In-House Legal Counsel for over 11 years — since Jan. 27, 2003. “My ties with DBAS through my father are even longer since my father was Speaker of the House of Representatives when he helped to formulate and the sign the original legislation in 1969 and legislative amendments that established and strengthened by law the Development Bank of American Samoa and the DBAS Board of Directors.”
Fainu’ulelei said in particular he wished to note “my gratitude for the hard work of my Legal/1602 compliance monitoring team, the DBAS management and staff in serving our people and fulfilling the DBAS mission…” and he hopes he has made a positive difference in his work as the legal counsel for DBAS.
In conclusion, Fainu’ulelei stated if the board chooses not to convert his contract to career service he will respect the board’s decision and asked that he work “until March 18, 2014 to file legal collection suits and 1602 recapture suits to protect DBAS from liability to the US Treasury, oversee submission of owner’s annual reports to Spectrum to be forwarded to HUD and to provide certain information already requested by the U.S. Department of Justice for the federal criminal 1602 investigation which will require my travel to Washington DC.”
He writes, “I respectfully request that DBAS pay all the benefits and severance pay that I am entitled to under section VI of my employment contract as is the case with the termination of employment of other DBAS officers in the past.”
The DBAS in-house attorney also asked the bank to deduct the costs of the laptop assigned to him from his severance pay “since I will need important records stored in the laptop for the federal government’s 1602 criminal investigation.” and writes,“I understand that the former DBAS president took his DBAS computer with him when he left DBAS in 2012.”
Fainu’ulelei’s laptop has been the subject of media reports, and Samoa News understands it is currently still in his possession.
DBAS board members who did not wish to be named, told Samoa News they are calling an Emergency meeting this week to discuss many issues, including Fainu’ulelei’s letter and other sensitive issues recently uncovered. The board members did not specify the sensitive issues.


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