Keniseli Lafaele remains a duly appointed trustee of the American Samoa Government Employees Retirement Fund and he must be permitted to participate fully in board affairs throughout the remainder of his five year term of office or sooner removed by the Governor pursuant to statute.
That’s the ruling of Chief Justice Michael Kruse and Associate Judges Muasau Tofili and Tunupopo Alalafaga in the suit filed by Lafaele against Retirement Fund Board members, Tuaolo Manaia Fruean, Loa Tauapai Laupola, Tony Togiai, Toloai Ho Ching, the American Samoa Government and ASGERF.
Lafaele sought declaratory relief that he remains a trustee and that defendants’ action of excluding him from Board meetings were unlawful. He further asked that all Board actions taken in his absence be declared ultra vires or beyond the Board’s authority.
On April 24, 2025 Lafaele received a letter form the Acting Executive Director of the Board notifying him that “the ASGERF Board has unanimously voted to remove him from his position as a Board member effective immediately”. Lafaele sent a reply letter of April 29, in which he pointed out that only the Governor has authority to remove a Board member. A follow up letter the following day signed by Chairman Tuaolo reaffirmed the Board’s unanimous decision on the issue But instead of removal from the Board the letter said the Board took a “vote of no confidence” in Lafaele, intended for transmission to the Governor for his appropriate action. The court noted that Tuaolo nonetheless assured the plaintiff that he was “essentially persona non grata and that he was not to attend board meetings until the Governor acts on the board’s no confidence resolution.
The plaintiff did not receive any further notices of meetings nor has the Governor acted upon the defendants’ recommendation, said the court. “While attempting on the one hand to walk back its aborted removal effort defendants nonetheless offer the disingenuous acknowledgement that while Plaintiff is still a trustee he is merely “suspended” for the time being.”
According to the ruling, the governing statute is clear. “A trustee can be removed from the board by the Governor only for breach of his fiduciary responsibilities or for just cause. No other body possesses removal authority. The defendants’ communications and conduct effectively what was, in substance, a removal. Plaintiff was told he was terminated, then barred from participation and excluded from meetings. Labels aside, the result was the same: Plaintiff was treated as Trustee in name only and was thwarted by Defendants from performing the duties of his office. That action exceeded Board authority.
Accordingly Plaintiff remains a dully appointed de jure trustee and he must be permitted to participate fully in Board affairs throughout the remainder of his five-year term of office or sooner removed by the Governor pursuant to statute.”
But the judges declined to invalidate all board actions taken during Lafaele’s exclusion.
They said, “Statute provides for a seven-member governing Board of the Fund…The only other fact the court can judicially note is that Plaintiff has one vote on Board decisions. Without further evidence, we cannot find that every Board decision without the plaintiffs singular vote must therefore be invalid. It goes without saying that the Plaintiff bears the onus of proof and we are unable to find that his burden has been discharged on this latter count.
Lafaele was represented by Charles Alailima, Mitzie Jessop-Taase represented the Board of Directors and ASG was represented by Roy JD Hall Jr and Luisa Lafitaga.
