The Attorney General’s office has sought for the Administrative Law Judge to dismiss the appeal by former American Samoa Government Employees Retirement Fund Executive Director Luatua Filisouaiga Ta’afua of his termination by the ASGERF Board on January 13, 2016, citing lack of jurisdiction of the ALJ.

 Luatua appealed his termination to the ALJ seeking an unspecified amount of money and sought reinstatement, back wages and attorney’s fees; and the ASGERF through the Office of the ASG Attorney General challenged the jurisdiction of the ALJ.

Samoa News understands Administrative Law Judge Marie Alailima dismissed the matter, on Monday, November 14, 2016, following a hearing on the issue. The ALJ is to release a formal written decision on the matter some time this month.

BACKGROUND

In July last year former Retirement Fund Board Chairman Fanene Morris Scanlan indicated in a letter to Luatua that there were questions on the use of the Chairman’s signature rubber stamp on checks, which had been issued out of the Administrative Account without the proper authorization. He alleged at the time that checks had been made out to Luatua personally for his travel advances, and in more recent findings, payments had been made to unregistered businesses for services rendered to the Centennial Building.

Fanene at the time stated that it was also discovered that these payments to these ‘unregistered businesses’ were allegedly deposited into the Director’s personal checking account. “This situation raises concern for conflict of interest, ethical questions and abuse of Fund,” Fanene wrote in his letter.

The board early this year moved to terminate Luatua and in March 2016, the Attorney General’s office charged Luatua with 20 criminal charges, which include embezzlement, stealing, criminal fraud, forgery and passing bad checks.

In a seven-page motion filed by Assistant AG Douglas Juergens with the ALJ, it noted the ALJ lacks jurisdiction as ALJ hears grievances of career service employees and Luatua is not a career employee.

“As a matter of fact none of the employees of ASGERF are career service employees,” the motion said.

The motion goes on to say that ASCA 7.1415 was amended “and changed the status of the Fund’s staff to non-career service employees of ASG, under the direction of the fund’s board of trustees.”

The AG’s office motion quoted Faumuina versus ASG Employee Retirement Fund HCCA 126.96 (1997). According to the motion, ASGERF is the department and employee is the head hired by the board of trustees.

The motion points out to the ALJ that their jurisdiction is set under the American Samoa Code Anotated to provide a forum for administrative appeals by government employees on matters pertaining to employment.

“ASGEF submits that the jurisdiction of the ALJ in employment matters is limited to appeals by employees in the career service and not employees in excepted service such as … employees of ASGERF.”

The motion further says that the termination of the employee was not a decision of the government but rather of the ASGERF board of trustees, which is empowered by the Fono to regulate its personnel needs outside of the regulatory scheme of the government.

“Employee is without remedy redress and is an action in the High Court of American Samoa and not the Administrative Law Judge.” The motion further states that employee lacks standing to involve the jurisdiction of the ALJ to review actions of the board of trustee of ASGERF. “It is therefore axiomatic that the ALJ lacks jurisdiction to hear the case at bar.” 

In the meantime, Samoa News has been unable to confirm the status of the criminal case against Luatua, which is pending before the High Court.