Old ASGERF board seeks to invalidate new board
The High Court has yet to schedule a status hearing in the lawsuit filed by Aleki Sene Sr, Faoa Aitofele Sunia, Fanene Morris Scanlan and Magalei Logovi’i, the current Board of trustees of the American Samoa Government Employees Retirement Fund (ASGERF) against Governor Lolo Matalasi Moliga regarding the governor’s recent nominations of the new Retirement Board for confirmation by the Legislature.
The 11-page complaint was filed through Marcellus Talaimalo Uiagalelei, attorney for the plaintiffs. According to the complaint, the plaintiffs note they are trustees of the Board who were duly appointed and confirmed by the Legislature and their appointments as Trustees did expire, but they have remained as de facto Trustees for many years since their replacements were never nominated or confirmed by the Legislature.
Also, since their appointments, plaintiffs have been acting as a fully functioning Board of Trustees for the ASGERF, and according to the complaint, Governor has recognized plaintiffs as legitimate members of the Board who have and are still engaged in all manner of business that the Board is entitled to carry out under Title 7, Chapter 14, A.S.C.A.
The complaint further states that in 2006, the Trustees approved a $10 million loan from the ASGERF to the American Samoa Government and in 2007, they approved a $20 million loan from the ASGERF to the American Samoa Government.
The plaintiffs further state that in their capacities as Trustees, they have recommended Cost of Living Adjustments (COLA) for the Governor’s recommendation and the Legislature’s approval for the years 2004, 2006, 2008, 2010 and 2012.
And as Trustees, have also been approving applications for new retirees from the year 2000 to date, and they have a statutory duty to protect the ASGERF and its members.
According to the complaint, the plaintiffs recently received information the governor wished to appoint new members to the Board without consultation with them and the Governor has already submitted his list of nominations to the Legislature for confirmation on February 25, 2013.
The plaintiffs quoted ASCA 7.1410, which says the Governor is obligated to consult with the Board when choosing his nominations and they have requested the governor to rescind his nominations to the Legislature until he has consulted with the Board. They allege, however, that the governor has refused to rescind his nominations.
The complaint further states the plaintiffs believe the governor’s nominations will be considered by the Legislature during its second session, which will begin on the second Monday of July, 2013.
It's alleged that on April 29, 2013, the governor summoned to his office the Executive Director of the ASGERF, (Filisouaina Ta’afua) for the purpose of meeting with his nominees as the new Board.
“During said meeting, defendant (governor) did express to the Director his wish for his nominees to immediately begin work for the ASGERF, stating that it was legal for them to begin.
“Defendant’s nominees have expressed to the director their intention to enter ASGERF premises and offices to begin their work immediately."
The complaint goes on to say, “Defendant’s nominees, although submitted to the Fono, have not been confirmed by either the Senate or the House of Representatives."
The complaint also says the governor's history regarding his appointments to American Samoa Government boards and commissions indicates his preference for his nominees taking over before confirmation by the Legislature.
“Defendant made appointments to the board of the American Samoa Power Authority (ASPA), who immediately took control of the ASPA before they were confirmed by the Legislature," it alleges.
“Defendant made appointments to the Immigration Board of American Samoa who immediately took control of the Immigration Office before they were confirmed by the Legislature" and "Defendant made appointments to the Medical Center Board of Directors who immediately took control of the LBJ Tropical Medical Center before they were confirmed by the Senate"
“Plaintiffs believe that if Defendant is not enjoined from taking over the ASGERF, the trust fund for Government employees will be put in jeopardy.
“The ASGERF trust fund is worth over $200 million, consisting of diversified investment portfolios requiring management by individuals whose qualifications and experience have been scrutinized and approved by the Legislature.
“The responsibility for the proper administration of the ASGERF and the direction of its policies is vested in its Board of Trustees, pursuant to § 7.1410, A.S.C.A.
“Defendant has no just cause to remove Plaintiffs as members of the Board.
“Plaintiffs have not breached their fiduciary duties as Trustees of the ASGERF,” says the complaint.
FIRST CAUSE OF ACTION: DEFENDANT HAS NO JUST CAUSE TO REPLACE PLAINTIFFS AS TRUSTEES
According to the plaintiffs, a trustee of the ASGERF Board is a de jure officer and they are trustees of the ASGERF Board. “Despite their appointments having expired for many years, plaintiffs have remained Trustees of the Board as their replacements were never nominated by the Governor and confirmed by the Legislature, pursuant to Section 7.1410.”
According to the plaintiff they have not breached any fiduciary duties as Trustees and the governor has no just cause to remove them as Trustees.
SECOND CAUSE OF ACTION: DEFENDANT’S NOMINEES TO THE LEGISLATURE ARE INVALID.
The governor is obligated by law to consult with plaintiffs, as the Board, before his nominations for the Board are made to the Legislature and the government failed to do that prior to his nominations made to the Fono on Feb. 25, 2013.
The governor’s nominations were made without Board consultation, and he did not comply with the requirements of § 7.1410, A.S.C.A. therefore his nominations are therefore invalid pursuant to applicable law.
THIRD CAUSE OF ACTION: INJUNCTIVE RELIEF
The plaintiff claims, the governor’s nominations have not been confirmed by the Legislature and the government has expressed his wish for his nominees to immediately begin work as the new Board. Also his nominees have expressed their desire to enter ASGERF facilities and offices to carry out their duties as Trustees.
The governor’s recent history with board appointments indicates a pattern of taking over prior to Fono approval and he will most likely repeat said practice with the ASGERF Board.
“Taking over management without Fono confirmation will result in irreparable harm to the ASGERF.”
They are asking the court to declare that they are the proper Trustees for the ASGERF Board and the court to declare the governor’s nominations made to the Legislature on Feb. 25, 2013 as invalid and should therefore be 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.
Samoa News sought comments from the government on the lawsuit, but they have indicated their response will be filed at a later date.