Pago Pago, AMERICAN SAMOA — The Fono's frustration over the executive branch's expenditure of government funds without legislative approval is not new. 

The dispute dates back to the previous administration's controversial spending of approximately $36 million without Fono authorization, an issue that sparked concerns among lawmakers about the erosion of the Legislature's constitutional power of appropriation. 

Now, those concerns have culminated in a lawsuit against Governor Pulaalii Nikolao Pula, whom the Fono accuses of authorizing millions of dollars in expenditures and financial obligations without the approval required by law.

The lawsuit, filed Wednesday in the Trial Division of the High Court of American Samoa by Chief Legislative Counsel Nathaniel Savali, names Senate President Tuaolo Manaia Fruean, House Speaker Savali Talavou Ale, the Senate, and the House of Representatives as plaintiffs. Governor Pulaalii Nikolao Pula, in his official capacity as Governor of American Samoa, is listed as the sole defendant.

At the center of the dispute is the administration's use of millions of dollars in government funds that the Legislature argues could not legally be spent without a legislative appropriation.

According to the complaint, the Governor violated both the Revised Constitution of American Samoa and territorial budget laws when he authorized the transfer and expenditure of $10.1 million in interest earnings generated from American Rescue Plan Act (ARPA) funds for an investment arrangement involving private entities.

The Fono argues that no law was ever enacted appropriating the ARPA interest earnings for investment purposes and that neither the Governor nor his Executive Advisor for Finance, Brett Butler, was authorized by law to invest public funds through a private investment company.

Lawmakers are asking the court to declare that interest earned on ARPA funds constitutes public revenue and, like all public funds, may be spent or obligated only through legislative appropriation.

The lawsuit further seeks a declaration that the Governor's authorization of the McKinley investment agreement and the transfer of $10.1 million violated territorial budget statutes, including ASCA 10.0601.

The statute states that no government officer or employee may authorize expenditures or create financial obligations beyond available appropriations, nor involve the government in contracts requiring the payment of money without prior appropriations unless specifically authorized by law.

The complaint also cites testimony presented during hearings conducted by the Senate Government Operations Committee.[

According to the filing, Chief Procurement Officer Frederick Ledoux testified that the investment agreement was never submitted to his office for review and approval as required under government procurement procedures.

The lawsuit also references testimony from Attorney General Gwen Tauiliili-Langkilde, who reportedly told lawmakers that she advised against entering into a contract with McKinley. The complaint further states that the Attorney General did not approve the agreement for legal sufficiency, did not sign the contract, and was not involved in the transfer of ARPA interest funds for the investment.

The Fono argues that these factors raise serious concerns about whether legal and procurement requirements were followed before public funds were committed.

A major component of the lawsuit centers on what lawmakers describe as an encroachment on the Legislature's constitutional authority.

The complaint argues that the Governor exceeded his constitutional powers by authorizing expenditures without legislative approval, thereby infringing upon the Fono's exclusive authority to appropriate public funds.

According to the plaintiffs, such actions violate the constitutional principle of separation of powers by allowing the executive branch to exercise authority reserved for the Legislature.

The lawsuit is not limited to the $10.1 million investment.

Lawmakers also challenge the administration's expenditure of more than $5 million in ARPA interest earnings for government payroll expenses, arguing that those funds likewise were spent without legislative authorization.

In addition, the complaint challenges approximately $519,000 used to pay salaries for department directors who had not been confirmed by the Fono.

According to the filing, territorial law prohibits the use of appropriated funds to pay individuals serving in positions requiring legislative confirmation if their nominations are not submitted to the Legislature before the conclusion of the next regular session following their appointment.

The complaint also cites another provision of law stating that no individual may serve as an acting director for more than 90 days without legislative confirmation.

The Fono contends that the expenditure of funds for the salaries of unconfirmed directors violated those statutory requirements.

The Legislature is asking the High Court to issue several declarations, including findings that:

- The Governor's authorization of the $10.1 million investment violated the Revised Constitution of American Samoa and territorial budget laws.
- The expenditure of millions of dollars from the ARPA interest account for payroll purposes was unlawful.
- The use of $519,000 for the salaries of unconfirmed directors violated territorial statutes.
- The investment agreement was not executed in compliance with the American Samoa Procurement Act because it was entered into without the required competitive bidding process.
- The agreement between the American Samoa Government and McKinley Investment LLC should be declared void.
- The Governor exceeded his constitutional authority and improperly infringed upon the Legislature's power of appropriation.
- Interest earnings generated from ARPA funds constitute public revenue and may be spent or obligated only through legislative appropriation.

The lawsuit sets the stage for what could become one of the most significant constitutional disputes in recent years, with the High Court now being asked to determine the limits of executive authority over public funds and to clarify the respective powers of the executive and legislative branches under American Samoa law.

The case also comes amid ongoing investigations by the Senate into the administration's handling of ARPA interest earnings, the $10.1 million investment agreement, and other questioned expenditures that have fueled months of debate between the Fono and the executive branch.