Chief Justice Lealaialoa Michael Kruse has asked for a written briefing from the government on whether there’s a separation of powers problem with having legislators on executive boards and commissions.
The Chief Justice asked for the briefing during verbal arguments Thursday on a motion by the Board of Directors of the American Samoa Government Employees Retirement Fund and ASG to dismiss the petition by Fuiavailili Keniseli Lafaele challenging his removal as a member of the Retirement Fund’s Board of Trustees.
Mitzie Jessop Taase appeared on behalf of the Board while ASG was represented by Assistant Attorney General Luisa Lafitaga. Lafaele, who is representing himself was not present at the hearing before Chief Justice Kruse and Associate Judges Tunupopo Alalafaga and Muasau Tofili.
Among arguments that the attorneys presented in support of their motion to dismiss was that Lafaele remains a trustee of the Retirement Fund Board, that the resolution which the board had passed not to allow him to attend board meetings was because he was “disruptive” and discussing internal agreements made by the board. Jessop Taase said that the board was only advising the Governor but the Governor makes the final decision on board members. And at this stage the Governor has not made a decision on removing Lafaele. Therefore the complaint by Lafaele is not ripe for a decision from the court.
In addition she said that an intervention by the court would intrude on the Governor’s prerogative to control executive boards and departments under the separation of powers.
The Chief Justice pointed to letters from the Chairman of the Board and Acting Director that were sent to Lafaele advising him that he was excluded from board meetings. Kruse said “it sounds like a removal of some sort.”
Jessop Taase said this was a measure that the board took to protect the board and integrity of the office.
The Chief Justice asked, “So you’re conceding he’s a board member but he’s not welcomed to function as a board member?”
Assistant Attorney General Lafitaga said in addition to the arguments put forth by the Board of Directors attorney, the government contends that a final decision has not been made by the Governor on Lafaele’s tenure. Because the Governor has not acted, it is appropriate at this time to dismiss the complaint and allow time for the Governor to make a decision,” she said.
The Chief Justice asked, “So if the Governor doesn’t make a decision, the people Keniseli represents are effectively censured from participating?”
Assistant AG Lafitaga replied “not necessarily. The complainant has asserted that he has been removed but that hasn’t happened. The CJ commented that the two attorneys were arguing a fluid concept of justice.
Kruse asked the government attorney Lafitaga to present a written briefing on the issue of having legislators as members on executive boards and commissions. He said there’s an underlying fundamental issue …all executive boards and commissions are appointed by the Governor, but with this and other boards legislators have become members. “Is there a separation of powers problem,” he asked.
The CJ continued that a legislator on an executive board or commission has oversight as a legislator. He asked, “Does the legislator get to oversight membership?”
He said the statute calls for a court representative to sit on the Criminal Justice Planning Board. “I cannot sit on that board because when an issue comes up it would come before me as a judge…I can’t judge myself.. so I have my administrator sit on that board. ”
The CJ has taken the matter under advisement and set a trial date on Lafaele’s complaint for February 27th.
