AMERICAN SAMOA COURT UPHOLDS SENATE SUBPOENAS

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By Fili Sagapolutele

PAGO PAGO, American Samoa, (Samoa News, Jan. 3) - The American Samoa High Court has denied the American Samoa Employees Retirement Fund's (ASGERF) request for a temporary restraining order against subpoenas issued by the Senate Retirement Investigative Committee, according to the fund’s attorney, Charles V. Alailima.

Alailima told Samoa News via e-mail that the subpoenas issued by the committee are now a "moot point since the committee hearing has already concluded."

The hearing, which was to gather the documents subpoenaed by the committee from ASGERF and the two local banks, was held last Friday. The court's decision came out late Friday, according to Alailima.

Samoa News has not received a copy of the decision, as Monday and yesterday were government holidays.

Alailima said the ASGERF board has requested the appropriate legislative committee to take up the issues relating to the expenditures of funds (information being sought by the Senate Retirement Investigative Committee) after the completion of the yearly independent audit.

He said the audit is due by the end of January (this year) according to the law.

"This audit will allow the Fund directors, the governor and the Legislature to deal with the issues now being raised in an orderly and professional manner," he explained. "This time will also allow the directors and the retirement fund staff to carefully review all documents relevant to the inquiries and subpoenas to ensure that private and confidential membership and employee data are not inadvertently disclosed as a result of rushed attempts to comply with hastily issued subpoenas," he added.

The board, through Alailima, petitioned the court last Thursday to issue a temporary restraining order and preliminary injunction suspending or quashing subpoenas the committee issued to its board members and executive director.

During last Friday's Senate committee hearing, ASGERF board chairman Aleki Sene Sr., told senators that the board was not trying to hide anything and have in "good faith" provided all the necessary information requested of them.

However, he said the board has opted to take the matter of subpoenaed documents to court for a clearer ruling on legislative authority over the Fund.

He said the board has always cooperated with the Fono when information is sought by lawmakers but this is the first time, it has decided to take this route seeking court's assistance in clarifying jurisdiction matters.

According to the board chairman, the Fund is a very important part of the government and the economy and it's here to provide security for retired employees who have faithfully served the government. (This is a different view from Lieutenant Governor Ipulasi who at the last hearing stated that in the board's view the fund was private.)

Like any financial institution, Sene said the fund depends on the continuing support of its members, who expect that issues rising from the Fund's operation are handled professionally and with confidence.

He points out that lawmakers who created the Fund recognized the importance of maintaining this confidence so they created the process by which issues that rise relating to the finances and management of the fund can be professionally addressed.

For example, the board must have the Fund audited by a CPA and then submit an annual report within 120 days to the governor and the Fono. At present, the Fund is undergoing its audit for the annual report for the past year and should be available for board review at the end of January.

Sene said as soon as this report is completed, it is then submitted to the Fono, but otherwise everything else requested by the Senate has been submitted to them.

The ASGERF board chairman said the manner in which the committee has chosen to proceed, by issuing subpoenas, has caused great concern to the board. He said the board cannot comment on the financial status of the past year because the audit review is not completed.

Furthermore, specific details of certain documents submitted by the board, cannot be submitted due to privacy issues, as the board has the responsibility of protecting the Fund.

"For documents subpoenaed from previous fiscal years the board believes that its duty is to have all items reviewed carefully to ensure member and employee confidences are maintained," he said. "It also believes that it has the duty to ensure that compelled disclosure of financial data outside of the official audit does not create unnecessary confusion and panic and trigger a demand for withdrawals of contributions."

Sene said the subpoenas are too broad and Fund documents should not be submitted "in a piece meal fashion," as it will only lead to confusion and misinterpretation.

While the board acknowledges that there is a legitimate role for the Senate committee to play in the oversight of the Retirement Fund, Sene said the board believes that oversight is limited to review of any pending legislation affecting the Fund.

"But there is no legislation pending to initiate this investigation," said Sene, who reiterated that everything that the Senate requested has been submitted except for the specific details that the board has withheld due to confidentiality issues.

ASGERF board member, Lieutenant Governor Ipulasi A. Sunia, said the board wants to assist the Senate but it's also their duty to protect records of the Fund, and that's why some of the requested information hasn't been handed over.

Senate President Lolo M. Moliga said the Senate has tried all avenues to try and get the information that was originally requested back in mid October 2006 but they were unsuccessful. Therefore, the Senate resorted to issuing subpoenas.

Lolo said it's the Senate's goal to review the Fund and introduce appropriate legislation to address any current loopholes in the Retirement Fund law and also to further strengthen and improve the Fund.

The Senate President recalled that when the Senate first asked for specific documents, the first action the board did was hire an outside attorney (Fiti Sunia), who told the Senate that certain information cannot be released.

Lolo agreed with Sene's statement that all the necessary financial reports have been submitted but the Senate President pointed out that "additional details was needed". He also dismissed the board's claim that the Fund is not public, but a private pension plan.

Senator Tuiagamoa Tavai said the committee is very saddened that the board has taken this matter to court, which indicates that the board does not want to release the subpoenaed information.

The Senate plans to pursue the Retirement Fund issues when the new Legislature convenes Monday.

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