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Retirement board sues Lolo over new nominations

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) have filed a lawsuit against Governor Lolo Matalasi Moliga, for declaratory and injunctive relief regarding the governor’s recent nominations of the new Retirement Board for confirmation by the Legislature.


The lawsuit was filed earlier this week, by members of the ASGERF board members through their attorney, Marcellus Talaimalo Uiagalelei. According to a statement released yesterday by the plaintiff’s Counsel, Chairman of the Board Aleki Sene Sr said the lawsuit is not an attempt to derail the governor’s efforts to staff government boards and commissions, but part of the board’s fiduciary duty to make sure the appointment process as prescribed by law is complied with.


The statement notes that “according to the Chairman, section 7.1410, ASCA requires the governor to consult with the current Board of trustees when making his nomination to the Legislature for confirmation. This legal requirement was put in place to make sure that those who are in charge of the Government employees’ pension fund are well qualified and not merely appointed by political motivation.”


It goes on to state that despite efforts by the board to obtain a meeting with the governor for purposes of consultation, the Chief Executive remained firm with his nominations now pending with the Fono.


“On February 25, 2013 the governor submitted the names of five individuals for confirmation as the next group of trustees. Since then, the Board has requested the Governor to rescind his nominations until the law has been satisfied. The Governor has not responded.”


The statement points out that before the Fono’s current recess, both chambers passed House Bill 33-3 which, among other things, increased the number of Board trustees from five to seven, and that piece of legislation was signed by the governor into law on April 12, 2013. However, it says that “according to its Effective Date Provision it will not become law until 60 days from the end of the session in which it was passed.”


“The ASGERF Board is also concerned with Governor Moliga’s recent history of making board appointments," the statement notes.


"Learning from the manner by which the boards for the American Samoa Power Authority, Immigration and Medical Center were appointed, where nominees took over before they were confirmed by the Fono, the ASGERF board has urged the Court for injunctive relief to make sure that the same does not happen for the ASGERF Board,” says the statement.


According to Chairman Sene, the pension fund for ASG employees is worth over $200 million and “should not be left to individuals whose qualifications have not been consulted upon by the Board and thoroughly examined by the House and Senate.”


Sene says, “There is just too much at risk when you consider the fact that this fund represents the life savings for most of our current and retired employees and their beneficiaries.”


"As trustees of the ASGERF board, we have a fiduciary duty to advocate for the best interest of the fund and its members even if it means going to court” Sene continued in the statement.


The governor’s new appointments to the ASGERF Board are Brant Judy, John Marsh, Talalemotu Mauga, Vince Haleck, and Su’a Schuster. The nominations are currently held up in the Fono but will be taken up by lawmakers in July during the second regular session.


In a Feb. 13 letter to the governor, the current Board of Trustee’s chairman Aleki Sene Sr. also noted that local statute (Section 7.1410 ASCA) does require all new board members to be appointed by the governor in “consultation with the board, and confirmed by the Legislature.”


A trustee can be removed from the board by the Governor only for breach of fiduciary responsibilities or for just cause.


“These nominations are made with the understanding that their terms are in a staggered arrangement as also required by law. It is by that statutory mandate, and in furtherance of our fiduciary duties as trustees that we make the following recommendations,” Sene wrote in his letter to the governor.


Re-nominated by the board themselves were: “Magalei Logovii’s replacement” for a term of five years; Sene for four years; former lieutenant governor Faoa Aitofele Sunia for three-years; former executive of GHC Reid Co., Brant Judy for two-years; and veteran local businessman Fanene Morris Scanlan for one-year.


A notation in the letter states that the “replacement” for Magalei “was nominated in a letter to you on January 8, 2013” — but provided no other information. 


According to Sene, each member brings with him years of leadership and experience, which are key to the Fund’s growth and stability and each of these trustees possess a distinct knowledge from their respective professions and backgrounds that when combined have culminated in success.


Samoa News will report on the full lawsuit in tomorrow's edition, along with a response from the American Samoa Government on this matter.