Legal Affairs budget hearing gets off topic with “legality” questions
Pago Pago, AMERICAN SAMOA — As the fiscal year 2022 budget hearings continue this week, the question of what action the Fono will take — if any — regarding Executive Branch directors who have not been confirmed by the Legislature still lingers, after lawmakers heard an opinion last week Thursday from Attorney General, Fainu’ulelei Falefatu Alailima-Utu during the Department of Legal Affairs FY 2022 budget review.
Alailima-Utu didn’t appeared during his originally scheduled budget hearing on Wednesday, but was in attendance the following day, where Sen. Magalei Logovi’i pointed out that the Senate and House have voiced concerns regarding directors who have not come before the Legislative process for confirmation. He suggested that this issue be addressed as budget hearings continue.
The Fono leaders have already written to Gov. Lemanu Peleti Palepoi Sialega Mauga on this same issue and have yet to receive a reply or an official explanation. House Vice Speaker, Fetu Fetui Jr. informed the Joint Budget Committee that the Fono has the authority on whether to allow these unconfirmed directors to testify or not on their budgets.
“We don’t need an explanation from the Attorney General. It’s very simple,” said Fetui, but other committee members, pressed on for an opinion.
Alailima-Utu explained and read out provisions of local law, in which there are 17 departments and offices whose directors are subject to the Fono confirmation. And there is also a provision of the law, where directors are appointed by the governor as heads of bureaus and offices, and are not subject to legislative approval. He suggested the Fono look into past years to identify which directors and heads of offices, after being appointed by the governor, are not subject to Fono confirmation.
He said he would share the Fono concerns with the governor and suggested that perhaps Fono leaders should discuss the issue with the governor.
“For the record,” said Tuaolo, he has already written to the governor on this same issue and still has not received any response. He asked that the attorney general check with the governor to see if he has received the letter or if it ended up with the Chief of Staff and went nowhere.
Sen. Malaepule Saite Moliga said that his interpretation of Alailima-Utu’s explanation is that all agencies and offices whose heads or directors are appointed by the governor, but not subject to Fono confirmation — should have their budgets come under the Governor’s Office. Additionally, directors of these offices should not testify before the Fono, but only through the Governor’s Office.
On the issue of executive branch salaries, Tuaolo pointed to the big difference in salaries in the budget. For example, the Governor’s Office has staff with salaries of $70,000 — which is the same pay for directors and more than the salaries in the budget for attorneys in the AG’s Office.
“Look at your attorneys, only making $60,000, but they are professionals. Have you advised the governor on this issue? You are the legal mind for this government,” said Tuaolo, to which Alailima-Utu responded that the governor has authority to set pay for his staff and the attorneys’ salaries are already set in the budget.
However, the Senate President believes the attorney general should still advise the governor on the salary disparity issue.
In a related salary matter, Vice Speaker Fetu Fetui Jr., said he believes the government’s salary “roll-back” earlier this year, per directive of the governor, was “illegal” because it went back to January 2019. He said others in the community have also questioned the legality of the governor’s “roll-back” action and insisted that the attorney general provide an opinion.
Alailima-Utu responded that the government and governor followed the law and this is not the first time in ASG’s history that a sitting governor had taken such action, implementing a “roll-back”.
“Do you have the names of those governors?” Fetui interjected, to which Alailima-Utu responded that he can provide the information as well as previous executive orders at a later time. Fetui then sought a direct answer to his main question and the attorney general responded, that the governor’s roll-back directive was “legal”.
Sen. Malaepule countered Alailima-Utu’s response with a follow-up question, asking if that means the previous Administration’s action to increase salaries “was not legal”. He also questioned if there is evidence presented to Human Resource to show proof that it was not legal.
Alailima-Utu responded that no-one is pointing fingers at any law being violated, but instead the main issue and thinking of the current Administration was that there is “supporting documents to justify the pay increase” and the reason for the “roll-back”.
There were motions from other lawmakers for the committee to focus on the budget and other issues can be addressed by each chamber in their own separate hearings.
The Lemanu Administration in its early days in office issued a directive to “rollback” pay increases and conversion of contracts to career service since Jan. 1, 2019. The governor also ordered a freeze in pay increases and conversions in “order to control spending”.
“In anticipation of reorganizing government functions,” the governor directed Human Resources to prepare a report of all pay increases and transfers of position from contract to career service from Jan. 2019.
The governor had publicly stated that the “roll-back” which was lifted in April was part of the Administration’s full review of ASG salaries. And by June, the governor announced a hike in new ASG minimum wages and other salary reclassifications — which was effective July 1st this year.