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Senators debate course of action to take if AG does not do his job

Senate President Tuaolo Manaia Fruean
At heart of the matter is misuse of unbudgeted and unobligated revenue

Pago Pago, AMERICAN SAMOA — There was heated discussion among Senate members yesterday before their regular session, as they debated what course of action to take regarding Senate Resolution 38-35, which they passed in third reading earlier this month and has been transmitted to the office of the Attorney General.

The resolution “seeks to investigate the misuse of the unbudgeted and unobligated revenue of Fiscal Year 2023 in the amount of $26 million and calls for the Attorney General to petition the court for an Independent Prosecutor to conduct a fair and impartial investigation into the unlawful use of these funds that are in direct violation of Public Law 37-12.”

Senate President Tuaolo Manaia Fruean opened the discussion by stating that he wants to know what course of action should the Senate pursue if the 30 days stipulated in the resolution for the AG to respond to the legislature expires, and they still have not heard from him.

He pointed out that by that time, the Fono would have gone on its mid session recess and he sought clarification from Senate Counsel Mitzie Jessop-Ta’ase.

According to Counsel Jessop-Ta’ase, the Senate may still hold hearings and meetings during its recess and when the Fono is back in session, a resolution must be introduced so that whatever decisions made during that time are officially adopted.

She stated that if the 30 days stipulated in the resolution expires without any action by the AG, the Senate has the right mandated by law to subpoena the AG to appear and explain why he has not acted on the resolution. She explained that the law requires the AG to submit a written report.

Senator Magalei revealed that he had talked to the AG about the matter and he had stated that he cannot refer the matter to the court unless the Senate makes known the names of the individual(s) they suspect are behind the unlawful use of the government funds in question.

“In the course of our hearings concerning this matter, we have ascertained that certain government officials have knowingly broken the law while performing their duties, namely the Treasurer and the Chief of Staff,” Magalei declared.

“My question is, can we submit their names to the AG and request that an investigation be carried out as stipulated in the resolution?”

The Senate Counsel answered that it could be done and pointed out that the names of the Governor and Lieutenant Governor are mentioned in the resolution as having met the Senate President and House Speaker on September 21, 2023, where the latter were informed that “they had collected approximately $36 million over their projections.

“The Governor reported that they, the executive branch had already spent the $36 million, despite acknowledging they knew the law requires them to report any new revenue to the Legislature for appropriation.”

She explained that the resolution also requests the investigation of the Governor’s Office and if in the course of these investigations additional staff members are implicated, they should also be investigated by the independent prosecutor.

Senate President Tuaolo commented that it was his understanding that the Senate was not required to submit names of government officials they suspect have broken the law.

He argued that it should be the job of the independent prosecutor.

Senator Utu Sila Poasa voiced his support and echoed Tuaolo’s sentiments saying that was why it is called an independent prosecutor — because his or her investigations should be independent from executive or legislative influence.

Senator Satele Aliitai Lili’o asked if the Senate could submit a direct request to the Chief Justice to appoint an independent prosecutor, pointing out that time was of the essence since this was their final year in office, and he is concerned that the matter would not be heard of again if some sort of action is not done before their term was over.

Senate Counsel Jessop-Ta’ase spelled out the situation saying that the Legislature’s function was to create laws, while the executive branch enforces these laws and the actions of both branches of government are guided by these laws.

She explained that under the law, if the governor or lieutenant governor breaks the law, the Legislature can impeach them.

However, impeachment proceedings can only progress if the allegations against them are proven in court and declared valid grounds for impeachment.

On the other hand, if senior government officials like directors, CEO’s, staff of the Governor’s Office or AG’s Office are suspected of having broken the law, an independent prosecutor is appointed to investigate the allegations against them.

The matter was further clarified by Senator Togiola T.A. Tulafono, a lawyer by profession.

According to Togiola, government officials that can be investigated by an independent prosecutor ranges from the governor to government career service employees, including members and staff of the Legislature.

The first step required by this section of the law, the AG must carry out initial investigation on allegations against anyone suspected of having broken the law.

He specified that the allegations of criminal actions must be felonies which are determined by the AG from his initial investigations, after which he declares that an independent prosecutor is needed to investigate the allegations and file charges in court.

He then petitions the Chief Justice to appoint an independent prosecutor to investigate the case because it involves government employees.

Togiola assured senators not to worry because they have done their part which was to hold hearings to ascertain if the actions of the officials subpoenaed had been within the law.

“Obviously, we have found out that this is not the case,” Togiola said. “Hence the resolution. But keep in mind that the actions we discern were done unlawfully, are allegations because proving that they are unlawful is not our jurisdiction.

“So the burden of proving these allegations shifts to the AG who will begin the investigation process by carrying out the preliminary examination.

“If he finds that our allegations are valid, he will then refer the matter to the court for the appointment of an independent prosecutor.”

Togiola reiterated that the Senate had done its part and that it was now up to the AG to do his part.

He also supported Senate President Tuaolo’s intention of sending a letter to the AG to remind him of the seriousness of the matter.

Senator Fonoti Tafa’ifa Aufata was not happy with the matter and did not mince words expressing her frustration.

She stated that the only solution was to request the federal authorities to investigate the matter.

“We’re talking about millions of dollars of government money,” a frustrated Senator Fonoti said. “We need to request assistance from the federal authorities to investigate this matter.

“We need palagi investigators who don’t have any family ties here to ensure a thorough investigation is done.”

Senator Togiola again took the floor and expressed his disagreement saying that this would paint a bad picture for the young generation of American Samoa, because it would look like they are not trusted.

He urged the Senate President to pursue the matter with the AG and if he does not act, then appoint someone else to do what the AG was told to do.

He also clarified the question if the Fono can submit a direct request to the court to appoint an independent prosecutor.

He explained that it does not specifically state in the law that this can be done if the AG does not act on the resolution.

However, he stated that it is the Senate’s right that if it unanimously agrees the AG has not fulfilled his duty mandated by law, the Senate has the authority to request the court to subpoena the AG to provide an explanation why he has not fulfilled his duty as stipulated in our resolution.

The Senate also has the authority to request the court to order him to do his job.