Pago Pago, AMERICAN SAMOA — After opening in the High Court last Friday, the case involving Keniseli Lafaele and the American Samoa Government Employees’ Retirement Fund (ASGERF) moved toward its conclusion, with final arguments presented on Monday morning.

The case stems from a complaint filed by Lafaele on November 12, 2025, challenging his removal from the ASGERF Board of Trustees before the expiration of his term. The defendants named in the suit include board members Tuaolo Manaia Fruean, Loa Tauapa‘i Laupola, Tony Togia‘i, and Toloa‘i Ho Ching, along with ASGERF and the American Samoa Government as necessary parties.

The complaint asserted Count One as unlawful termination and Count Two as ultra vires actions (actions beyond one's legal power or authority).

Attorney Charles Alailima, representing the plaintiff, opened his final argument by describing the case as an effort to clearly define the “lanes” that all parties must remain within when dealing with ASGERF.

These lanes, he explained, are defined by statute and by the Constitution of American Samoa.

He argued that the statute that created the Retirement Fund — together with fundamental principles of corporate governance that regulate board actions, decision‑making, and the rights of trustees to fully participate in board deliberations — clearly defines the boundaries within which the Board must operate.

He then outlined the central issues before the court:

1. Whether the ASGERF Board of Trustees has the legal authority to remove, suspend, or exclude a duly appointed trustee in the absence of removal actions by the Governor under ASCA 7.1410(b);

2. whether the defendants' vote to remove or suspend my client and its subsequent exclusion of him from notice of and participation in all ASGERF board meetings, or allowing access to materials were ultra vires acts;

3. whether the defendants were lawfully constituted as a board taking subsequent actions on behalf of ASGERF without my client's participation; and,

4. whether or not legislators are constitutionally or statutorily barred from sitting on the ASGERF.

Addressing the court on Monday, Counsel Alailima stated that his client was appointed to the ASGERF Board by the Governor and confirmed by the Fono, so he became a fully entitled trustee of the Board of Trustees.

"My client's background is in the area of Finance," Alailima pointed out. "His Master's was in Finance and Economics, and a great deal of his career was spent working as an agent for one of the biggest financial institutions, American Express. When he retired from that work, he was naturally appointed Director of Commerce by Governor Lolo, and he served for a period of eight years."

He emphasized the wealth of experience his client had acquired in the area of finance not only in the private sector, but also in government.

"When he did get appointed to the ASGERF Board of Trustees, he began to notice a great deal of discrepancies in the way the Board was operating, in the way it was trying to present the issues relating to financing, and in the hiring decisions that were being made," Alailima revealed.

He added that his client raised these concerns while he was still actively serving on the Board — concerns that were shared by others and that he repeatedly attempted to place on the agenda for discussion. Alailima emphasized that these were precisely the kinds of issues one would expect a responsible trustee to raise.

“Issues involving actuarial decisions, questions about whether greater detail should be provided for expenditures listed in the budget, concerns related to hiring practices — he was doing everything that is expected of a trustee,” Alailima argued.

“Now, the issue became, why did this become so contentious? Trustees are entitled, as board members, to express their opinions — even when those opinions differ from the majority. They are also entitled to voice dissent if they believe the Board’s actions are improper or incorrect in their judgment."

 He explained that after the Board failed to address several of the key issues he had raised, Lafaele began writing Letters to the Editor to publicly share his concerns. Many members of the public responded in writing, engaging with the issues he brought forward.  

“The important thing to note is that the statute creating ASGERF specifically states that board meeting minutes are matters of public record — anyone may review them. That is statutory,” Alailima emphasized.

He was referring to four Letters to the Editor written by Keniseli Lafaele, and published in the Samoa News, in which Lafaele outlined issues of public concern that he had raised before the Board but which had not been addressed. Alailima argued that testimony made it clear the Board’s chairman was particularly upset by these letters because they suggested the Board was operating in a manner that was not conducive to good policy.

“He had every right to do this,” Alailima said. “It was a matter of public record.”

In contrast, Board Chairman Tuaolo, in a letter dated April 15, 2025, sharply criticized the Letters to the Editor written by Lafaele, describing them as promoting “misstatements that sowed mistrust and miscommunication, and blatant disregard for fiduciary responsibilities.”

Tuaolo’s letter was issued in response to Lafaele’s request to attend the National Conference on Public Employee Retirement Systems (NCPERS) on behalf of the Fund.

The ASGERF chairman did not hold back in denying the request.

“It is astonishing that you would even have the audacity to ask for this privilege,” he wrote, adding that Lafaele’s conduct “has repeatedly undermined this Board’s integrity and the trust the Fund and its members placed in us.”

“Let me be clear: as long as I am Chairman of the Board, I will not allow you to continue abusing this institution for personal gain or undermining confidence in our governance. Your participation in this conference does not align with the Fund’s priorities, and considering your behavioral pattern, we will not entertain further opportunities.

Tuaolo concluded by stating that “the Board will proceed with the necessary steps to remove you from the board in accordance with governance procedures. Have a good day.”

On April 24, 2025, the Board formally notified Plaintiff in a letter signed by Caroline Wendt, the Acting Director, that it had unanimously voted to remove him as a Trustee. That conforms to a letter also dated April 24, 2025, addressed to Governor Pulaali’i Nikolau Pula regarding a formal notification resolution to remove Lafaele from the ASGERF Board. Alailima clarified that it was not a suspension; it was a removal.

"The question before the court is, was this a proper constituted Board meeting?" he asked. "No notice, no minutes of that Board meeting, and no dates, just this resolution that came out."

He said he has an issue with respect to the resolution itself, where at least one of the Board members did not sign on April 24, 2025, but signed on the 25th.

Alailima continued that after his client received the notice of removal from the Acting Director, he responded to Chairman Tuaolo and the Board in a letter dated April 29, 2025, in which he addressed the issue and told them that they have no right to remove him.

A second letter dated April 30, 2025, attempted to re-characterize the action as a 'suspension from the Board pending the Governor's final determination' but still reflected no action by the Governor and no conformance with a statutory process for such action.

"The Governor hasn't acted or moved forward with any removal process for a cause as required by the statute," he argued. "So the question now is, what is the status? Our request to the court is he is a fully authorized trustee who needs to be notified of any Board meetings and should not be denied the right in participation and intent to these Board meetings."

"Since April 24, 2025, Plaintiff has been excluded from all Board meetings, denied notice of agendas, minutes, and materials, and prevented from voting on matters affecting the Fund and its members, including officer elections and major requests for proposals (RFP) and contract decisions."

Summing up his presentation in court on Monday, Counsel Alailima turned to the issue of legislators serving as trustees, arguing that the American Samoa Government’s response on this point was vague and at times even contradictory.

"A member in legislation who enforces law as an appointed member in an executive board, one could reasonably find legislation encroachment of Executive power based on the theory of distinct powers of branches. Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoint the agents charged with the duty of such enforcement. The latter are executive functions.

"Where statutes outline the purpose and duties of an executive board that directly impacts government employees and their functions, one could find an imbalance in board members who have both the power to make and enforce those statutes.

"In further review of the statute ASCA 7.1420(d) and 7.1421(6) provide 'members of the fund' to include 'members of the legislature and judges. Thus, one could reason that members of legislation or judges could therefore be appointed by the Governor as Trustees to the ASGERF Board because they are expressed in the statute as 'members of the fund.'

"Additionally, given the authority vested in its functions of the executive branch, one could argue that the Governor determines whether a conflict of interest exists because the Governor holds the sole authority to appoint and terminate a member of the executive board under this statute."

Counsel Alailima then addressed the court and offered his interpretation of ASG’s position.

“ASG’s response, in essence, is saying, ‘No, we shouldn’t be doing this,’ but then at the end they add, ‘Maybe you could, if you clear up the conflicts of interest,’” he said. “You cannot have the President of the Senate sitting on a board whose actions will ultimately be reviewed by the standing committee of the Senate — of which he is the president.”

“That is simply not appropriate, and I believe, Your Honor, that the court should make that ruling so that everyone stays in their lane. They need to know where the boundaries are, and that is especially important in this case because if the court does not make a ruling, no one else seems willing to take that step to ensure that the law governing this agency is enforced. Thank you.”