ALJ refers Aileen Solaita case back to DHR, citing lack of jurisdiction

Due to Personnel Advisory Board lacking rules for ALJ to hear such cases
joyetter@samoanews.com

The Administrative Law Judge (ALJ) Pro Tempore, Marie Alailima has referred the case between the American Samoa Government (Department of Human Resources) and Aileen Solaita, back to the Personnel Advisory Board (PAB) and the DHR with the recommendation that Mrs. Solaita, a Department of Health Manager who was terminated back in January 2016, be reinstated with all benefits.

The ALJ cites lack of jurisdiction to hear the case due to the PAB lacking rules that govern the practice and procedure of the ALJ in contested case hearings.

According to the 12-page decision issued late last month, Alailima pointed out that Mrs. Solaita filed a motion to dismiss the decision by the DHR to terminate her career service employment with DOH.

Sharron Rancourt represented Mrs. Solaita, while Assistant Attorney General Douglas Jargens was in court on behalf of ASG.

BACKGROUND & FINDINGS

Following her termination, Mrs. Solaita filed an appeal with the ALJ ten days after her termination and the contested case hearing was held on February 5, 2016; however the case was continued as both counsels needed more time.

The decision says that the case was continued several times due to the counsels needing more time to prepare or due to scheduling conflicts of counsels or due to the unavailability of ASG’s several witnesses.

And through her counsel, Mrs. Solaita “waived the 30-day deadline within which the ALJ would have been required by law to determine her matter continuance of the hearing.”

At a final status hearing on this case held on October 21, 2016, it was uncovered that ASG had failed to provide Mrs. Solaita’s counsel access to files and complete records of the appeal file and thereafter her attorney filed a motion to dismiss the case on those grounds.

CONCLUSIONS

Alailima cites in her decision an important case, she says interpreting the ALJ Act to date so far as jurisdiction and defining the ALJ role as conducting a review of an agency’s decision and serving as a hearings officer for an agency (such as the PAB) that conducts contested case hearings for the agency.

The case is of government employee, Segi a career service employee with the Department of Education, who filed an appeal of the DHR Director’s decision with the ALJ. “The ALJ subsequently rendered a decision denying Segi’s appeal and affirming the termination of his employment. On appeal by Segi (to the High Court), the court determined that the ALJ decision had been unauthorized as it had been issued outside of the 30 day decision deadline required” under the local statute. The court held not only that the ALJ had lost jurisdiction for failing to render its final decision within the 30 day deadline, but that this deadline was jurisdictional.

 The basis for the ALJ lacking jurisdiction and grounds for the ALJ’s recommendations — returning the case to the PAB and DHR — is that the prerequisite condition in the current PAB’s adopted rule requires the director of DHR to schedule the contested case hearing and vesting in his discretionary authority to determine if its is impractical to have a bearing “.... by reasons of unusual location or other extraordinary circumstances” has not been satisfied.

She said, “A review of the current state of the law shows that there has been no PAB rule adopted nor stated otherwise transferring from the director of DHR to the ALJ his scheduling role or discretionary authority to determine whether an appealing employee should be denied a hearing where impractical.

Nor does their exist statuary or PAB adopted rule that extinguishes such authority vested in the director of DHR. The ALJ may not enlarge the scope of her authority by assuming powers vested in others and not expressly given to her by law,” Alailima said.

The decision further says that under ASAC 4.0902(b), “the ALJ’s scheduling of the contested cases hearing and proceedings in this matter were therefore an unlawful enlargement of scope of her authority. It follows also that the minute orders approved stipulated agreements, and petitioner’s waiver accepted by the ALJ are also void as a matter of law.

“The ALJ also lacks jurisdiction to determine petitioner’s motion to dismiss,” she concluded.

Alailima then refers the matter back to the PAB and to the director of DHR with the following recommendations:

1.   The PAB and Director of DHR — the director within a period of 20 days, determine and issued a written decision/ notice to Solaita with copies to all parties to void the termination of Solaita’s career employment;

2.   Solaita be fully reinstated and restored all employee rights, including back pay, sick leave, annual leave accrual, and retirement, to which she may be entitled;

3.   The PAB with assistance of the director of DHR start or complete, as the case may be, all investigatory work as it deems necessary and properly consistent with Segi court’s recommendations as supplemented by consideration of this recommended decision, such that the PAB is prepared, promulgated and adopted rules governing the practice and procedure of the ALJ in contested case hearings with a period of 90 days.

BACKGROUND

According to the local statute, the PAB’s primary duties and responsibilities shall be:

(1)  To investigate and make recommendations for improvements to the Governor with regards to the manpower resources requirements, needs and development of the American Samoa Government, and in carrying out such investigations, the Board shall have full power to subpoena and compel the testimony of witnesses;

(2)  To develop programs designed to improve effectiveness of government employees' performance and discharge of their duties and responsibilities; and

(3)  To investigate personnel problems in the government and report to the Governor their findings and recommendations, if any, with respect to such investigation.

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