Am. Samoa Senators Express Concerns On Massive Payouts

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Legality of reportedly unbudgeted payments questioned

By Joyetter Feagaimaalii-Luamanu

PAGO PAGO, American Samoa (The Samoa News, March 26, 2013) – American Samoa’s Senate hearing yesterday concerning the issue of payouts to previous directors and contract employees as well as the previous governor and lieutenant governor as they left the administration raised questions concerning the legality of the payouts.

A report, which the Senate received that includes the "gross" and actual amount of the checks to former ASG employees, was the subject of a Senate Government Operations Committee hearing, chaired by Sen. Galeai Tu’ufuli.

Sen. Galeai and Senate Budget and Appropriations Committee chairman Sen. Laolagi F.S. Vaeao had sought the report from the ASG Treasury Department so that a Senate hearing could be carried out on the legality of these payouts and whether they were budgeted in FY 2013.

The Lolo Administration had already made public that of the $1.04 million in payouts, more than $500,000 was not budgeted in fiscal year 2013. The largest payouts were in the governor’s office, with $372,505 worth of checks issued, according to the report, which appears to be dated Jan. 28, 2013.

Fono Legal Counsel Henry Kappel was the only witness to testify due to time constraints. A translator, Raina Savali, accompanied Kappel during the hearing, because he does not speak Samoan.

Senate questions, yesterday, mainly focused on the American Samoa Code Annotated statutes on sick leave, annual leave and compensatory time — the main thrust being the legality of the payouts.

Sen. Galea’i noted at the beginning of the hearing that the payouts were based on sick leave, annual leave and compensatory time, and asked Kappel about legal issues concerning them.

Referring to 4.0110 Compensation and perquisites-Allowances for former Governor and surviving spouses -"Former Governor" defined. Cite as [A.S.C.A. § 4.0110], Kappel said, this "statute does not address sick leave and annual leave for the Governor or Lt Governor. The law is silent on that part… it neither allows it, nor permits it."

The Fono legal counsel noted "the second statute before you — that statute prohibits overtime compensations for gubernatorial appointees, but it allows them to take additional leave with pay, so long as that leave is approved and documented in advance. Kappel was referring to 7.1004.1 Overtime compensation of gubernatorial appointees disallowed.

"The other issue that you will be addressing is whether some of these individuals on the payout are career service. If they are career service then the statute and personnel regulations regarding sick leave and annual leave apply to those individuals. There are limits on the payout of sick leave and annual leave to career service," Kappel told the senators.

According to the statute, sick leave upon termination from the government is paid out at one half of sick leave hours in excess of 239 hours for career service, while annual leave is limited to the accumulation of 480 hours on an annual basis and that is supposed to be cleared from the books each year.

"One of the issues here are the different categories of employees who received payouts. You have elected officials, gubernatorial appointees and I believe a few career service. Each case needs to be looked at individually," Kappel said.

Sen. Laolagi asked the Fono counsel if the gubernatorial appointees were entitled to receive this compensation.

Kappel responded that the statute referring to sick leave and annual leave for gubernatorial appointees, would answer this, however, he said, it is difficult to specifically answer the question "because you do not know if these comp time payments to these gubernatorial appointees were approved in advance as the law requires."

Sen. Galea’i said they are not trying to say the previous administration was not entitled — "we're trying to find out if they were being paid within the framework of the law, but not as to what they want to be paid."

"This is a government of law and not of man," the senator said. "It’s important… what we have here — this is the first time that anybody has ever probed or looked into this — yet this payout happens every four years," he said.

Kappel explained that if we go back to 7.1004.1 —the provision of comp time for gubernatorial appointees — it provides the exception, and it says for appointees the governor can grant additional leave with pay. "So does that indicate that the gubernatorial appointees are entitled to accumulated leave, and so get additional leave approved by the governor in advance?" asked Kappel.

"That’s just not clear; it could suggest that," he said.

Sen. Laolagi noted that the handout lists all the people and their annual sick leave, comp time, and the law states that you can carry over to the next year 480 annual hours, yet there’s annual paid time of 630, 692 and 695 hours (referring to the report).

"It appears as if it’s illegal," he said.

Kappel said that it can potentially be illegal, yet the Senators do not have the detailed records of what this amount of leave accumulation is based on, what information is available for the end of the prior calendar year and how much was accumulated during the succeeding calendar year.

"The other issue is — what is the funding source for each one of these payouts and was it budgeted or not, because it raises the question of the anti deficiency law," he said. "There are multiple issues that you're facing and it can become very complex and complicated."

However", Kappel added — "It's worth further investigation". The Fono legal counsel further urged the Senators to go back to the budget to see if the payouts were budgeted.

Sen. Soliai Tuipine Fuimaono wished to clear the air and said that his name was at the forefront of the newspaper indicating that he received $50,000 from comp-time, yet he only received $30,000 from comp time while the $20,000 was for his unused leave.

(Samoa News, in its Monday edition, reported that Sen. Soliai received 1,096 hours in comp-time, and that his final take home pay came to $50,552, which was a combination of leave hours and comp-time. Samoa News did note that his payout was the largest of the payouts to the previous administration.)

Sen. Soliai noted that statute 1.004.1 states that the governor does have the discretion to allow this, and he noted that for the 20 years he’s worked at the Election Office, he was never compensated for his overtime, until the elections in 2010 and 2012 — that was when he asked the governor to pay for his overtime.

He also noted that this also falls under the Labor Act Standard wherein the government was slapped with a $900,000 bill to be paid to government employees for overtime.

Sen. Galea’i replied that the existing law states that overtime compensation is disallowed and noted that federal labor laws are a different story.

The local statute states that if you have comp time, it must be use it by using your leave with pay. "The governor’s discretion cannot disallow what is in the law, unless we change the law," he pointed out.

Sen. Tuiasina S. Esera noted that during the confirmation hearing of Budget Director Catherine Aigamaua-Saelua, she informed the Senators that the funds allocated for the payouts were close to $600,000 — and yet this was not the case.

At the end of the hearing, Sen. Galea’i said that another hearing will be held on Wednesday regarding this matter, where Human Resources Director Le’i Sonny Thompson and Treasurer Falema’o Phil Pili will appear to testify.

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