ASG says ASGERF board ‘likely evaded their own duty’ to the fund
“It is irrelevant, that the Governor did not select the same persons the (ASGERF) board recommended. Frankly, plaintiffs likely evaded their own duty to ASGERF (American Samoa Government Employees Retirement Fund) by attempting to circumvent the appointment process and have themselves reappointed without even considering other qualified candidates,” is at the basis of the government’s response to dismiss the lawsuit filed against American Samoa Governor Lolo Matalasi Moliga.
The lawsuit was filed by members of the current Board of trustees against the governor for declaratory and injunctive relief regarding the governor’s recent nominations of the new Retirement Board for confirmation by the Legislature.
The members of the ASGERF board who are named plaintiffs in the lawsuit are Aleki Sene Sr., Faoa Aitofele Sunia, Fanene Morris Scanlan and Magalei Logovi’i, who are represented by Marcellus Talaimalo Uiagalelei.
Representing the government in this matter is Deputy Attorney General Eleasalo Ale who heads the Civil Division with the AG’s office, and he will be assisted by Assistant Attorney General Michael Iosua. The Deputy AG told Samoa News that the government will be ready with a vigorous defense on behalf of the Governor.
According to the dismissal motion, the governor has the authority to appoint new members of the board of trustees for the ASGERF. “The only requirement for the governor, in exercising this authority is to consult with the Board in determining a list of candidates before appointing a new member."
“Here, each of the acting Board members' terms expired several years ago.”
The motion noted that the governor had consulted with the plaintiffs to produce a list of candidates to replace the (current) board members and plaintiffs submitted a list of candidates, which the governor considered.
It goes on to say that the governor selected one person from the plaintiffs' list to join four other candidates he had selected to serve as the new members of the Board and therefore, the governor did fulfill the requirements of the law, therefore, "Plaintiffs claims must be dismissed."
“Additionally, despite Plaintiffs' allegations, the governor has agreed that the Appointees shall not take office until they are confirmed by the Fono" — which is why there’s no reason for a preliminary injunction.
STATEMENTS OF FACTS
According to the dismissal motion, the plaintiffs, despite their terms having expired, claim to have remained as “de facto” trustees of the ASGERF. On February 13, 2013 the plaintiffs submitted their names for Fono confirmation, via a letter sent by Board Chairman Aleki Sene to the Governor, which included Sene, Sunia, Scanlan, Brandt Judy and Logovii’s replacement.
“Notably, plaintiffs requested that their recommendation be submitted directly to the Fono for confirmation, without any input from the Governor, and proposed only one other person besides themselves to fill the vacancies."
“No alternative names were submitted to the governor for consideration," the motion states.
“Despite their haughty submission, the Governor reviewed and considered these recommendations in fulfillment of his duty to consult with the board."
The dismissal motion notes that, after careful deliberation, the governor notified the board of his new appointments to sit on the board and the governor expressly stated that he appreciated the current board’s "engaging in the consultative process”.
The Board did not respond to the governor’s letter nor did it raise any concerns or objections to the governor’s selection of 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 during the second regular session in July, 2013.
Plaintiffs first cause of action fails because the governor may replace the board members as their terms expire under ASCA 7.1410 (b) “As Board members terms expires, new member shall be appointed to fill vacancies and such appointments shall be made for terms of five years.”
The plaintiffs also argued that they are "de facto" or "de jury" officers of the board, so just cause is required to replace them.
The motion says, "However, even assuming Plaintiffs are de facto officers, they are not permitted to retain the positions indefinitely. Instead, they are relieved of their positions when new officers are properly appointed, and the governor has named new board members."
The governor does not need to show just cause in order to replace them, which is why the first cause of action must be dismissed. Second cause of action also fails as a matter of law because the governor’s appointments are valid.
According to the dismissal motion the jurisdiction does not set forth specific acts required by the governor to fulfill the consultation. The plaintiffs argue that the governor failed to comply by not consulting, with plaintiffs prior to making the appointments. “But, this argument is misguided at best because the governor obtained the board’s recommendations for new members and deliberated on his appointments,” states the motion.
Plaintiffs third cause of action must be dismissed because "plaintiffs are not entitled to injunctive relief." According to the dismissal motion, a permanent injunction may be issued by a court after a final trial, and the court’s determination that a judgment for money damages is inadequate. In this matter, the plaintiffs allege that an injunction is needed to prevent the governor’s appointees from taking over management without Fono confirmation resulting in “irreparable” harm to the ASGERF.
“However there is no need for either a permanent or preliminary injunction."
“The governor has stipulated that the appointees shall not begin managing, ASGERF until they are confirmed by the Fono. “Because the harm plaintiffs are seeking to prevent will not occur, there is no basis for either a permanent or preliminary injunction."
“Accordingly plaintiffs third cause of action for injunctive relief should be dismissed.”
According to the motion, the plaintiffs "failed to show any sets of facts which provide a claim for relief." The Governor has authority to replace the board members as their terms expire and has complied with the requirements under the law in selection of Appointees for Fono Confirmation and the governor also agreed the appointees will not take office until after the fono confirmation.
“Accordingly, plaintiffs can show no facts which would entitle them to the relief they are seeking, this case should therefore be dismissed.”