Governor’s legal counsel in ‘hot water’ over remarks made at Senate hearing

Pago Pago, AMERICAN SAMOA — Several Senators voiced strong concern over remarks made by the Governor’s Chief Legal Counsel, Barry Fundt, during last Thursday morning’s hearing on a bill addressing the role of government employees serving on boards and commissions.

The proposed legislation, introduced by Senator Togiola T.A. Tulafono, mandates the automatic resignation of any American Samoa Government (ASG) employee who holds a seat on a board or commission under their official position, effective upon the end of their government employment.

During the hearing, Fundt and Attorney General Gwen Tauiliili-Langkilde both testified in support of the bill.

The Attorney General recommended that the bill’s proposed language be incorporated directly into the statutes governing each board and commission to ensure consistency and enforceability.

Chief Legal Counsel Fundt supported the bill’s intent, emphasizing that American Samoa faces unique challenges in meeting federally mandated responsibilities —challenges that mirror those of larger states and municipalities. He further noted that the Territory must also oversee customs and immigration functions, areas typically handled at the federal level in other jurisdictions.

"So it is a challenge for the island to fill, in essence, all of the necessary expertise to fill these responsibilities, and it must be due to the density of highly qualified and intelligent people here in American Samoa, but it's a challenge," he stated.

Senator Togiola was not at all pleased with the counsel's comments.

"I'm kinda sad that you draw in this thing about not having enough qualified people or competent enough people," Togiola remarked. "It's sad to hear you say that. I don't know if there were meant to be like members of the Legislature who may not be highly qualified people in your view, but as long as they sit as a member of the Senate, they are qualified according to the law."

Senator Togiola shared that he had interpreted the Chief Legal Counsel’s remarks as reflecting concern from the Governor’s Office regarding the legislation. He sought clarification on whether that was indeed the Office’s position.

In response, Fundt apologized, explaining that such an impression was not what he had intended to convey.

However, Togiola maintained that the concern had been stated multiple times during Fundt’s presentation, pointing out that the message had been repeated at least three times. He also took issue with Fundt's comparison of American Samoa to a small municipality.

"If our country here only has 60,000 people because that's all we have, it's still a country," Togiola stated. "The fact that we operate our government in a similar fashion to any other state in its governance, and your reference to saying that perhaps we should consider ourselves a small municipality, is kind of degrading."

The Chief Legal Counsel again offered his apology, clarifying that his remarks were not intended to demean and reaffirming his deep respect for the Fono.

In response, Togiola emphasized that American Samoa is home to many capable and intelligent individuals, asserting that there should be no difficulty in identifying qualified candidates for boards and commissions.

“There's no difficulty unless you don't belong to the governor's gang or party, but this country is full of very competent, well-educated people," he reiterated. "I think you should go back and inform the governor that we don't believe there's a problem in selecting people to fill offices, boards, and commissions, because American Samoa is full of well-educated, competent people.”

Senate President Tuaolo Manaia Fruean questioned AG Tauiliili-Langkilde on her stance on the matter, whether it is appropriate for lawmakers to serve on government boards and commissions.

In response, the Attorney General noted that because the Fono exercises oversight authority, simultaneous service on boards could present potential conflicts of interest. However, she acknowledged that some boards and commissions are required by law to include legislative members.

Senate President Tuaolo expressed discomfort with the suggestion of conflict, saying it didn't sound good to him. He cited historical precedent, referencing President John F. Kennedy’s appointment of his brother as U.S. Attorney General, and asked AG Tauiliili-Langkilde if there had been a conflict.

The AG elaborated on the potential for conflict of interest, citing a hypothetical scenario in which a lawsuit might involve the President and familial ties could compromise the U.S. AG's ability to independently prosecute the matter.

Still dissatisfied with the notion of a potential conflict, the Senate President referenced local precedent from the Tauese/ Togiola administration, where Governor Tauese P.F. Sunia appointed his brother, Faoa Aitofele Sunia, to serve as Treasurer. He argued that despite the familial ties, no ethical conflict arose because Faoa had been appointed by merit, due to his qualifications and experience.

Tuaolo also expressed appreciation to Senator Togiola for addressing the tone and implications of Chief Legal Counsel Fundt’s earlier remarks. He further commended Togiola for challenging language that implied that Fono members lacked the qualifications or competence necessary to serve on boards and commissions, a perception Tuaolo firmly rejected.

Senator Utu Sila Poasa, who was also upset with Counsel Fundt's remarks and the negative implications involving Fono members, pointed out that the Senate has a former governor, two Senate presidents, judges, lawyers, engineers, and veterans who are well qualified and experienced.

With his voice trembling, an emotional Senator Utu addressed the Governor's Chief Legal Counsel and bluntly expressed his displeasure.

"I feel very small when you start talking like that in this chamber," said Utu. "I am a retired U.S. Navy veteran, and the former Senate President is a retired U.S. Army veteran. We held command and responsibility over many individuals during our military service. I served for 20 years, while the former Senate President served for more than 20 years.

"We're all educated people, and by sitting in this chamber, we represent our villages and counties. Don't you ever come here and talk like that in this chamber. I feel very small when you talk like that."

Senator Utu also voiced frustration over the ongoing vacancies across multiple boards and commissions, seven months into the new administration. He attributed the delays to inaction by staff within the Governor’s Office, stating bluntly that they have not fulfilled their responsibilities. Utu emphasized that timely appointments are crucial to ensure the government operates smoothly.

Senator Olo Uluao Letuli asked if there had been any problems in the past with lawmakers serving on government boards and commissions.

AG Tauiliili-Langkilde referred the question to Chief Counsel Fundt, who acknowledged that there has been a lot of discussion in the Governor's Office about whether lawmakers should serve on government boards and commissions.  He confirmed that concerns over potential conflicts of interest have been central to those discussions. However, Fundt clarified that no formal policy has been established on the matter to date.

During last Friday’s regular session, the Senate unanimously passed the bill in its third and final reading. The legislation mandates the automatic resignation of appointed board and commission members upon the termination of their employment with ASG.