Senate showdown over executive order separating TCF from DPS

Pago Pago, AMERICAN SAMOA — Attorney General Fainuulelei Alailima Utu said he did not play a role in drafting or the implementation of the Governor’s June 15 executive order, which separates the Territorial Correctional Facility from the Department of Public Safety (DPS).

He made the comments before the Senate this week on the separation of divisions from under the DPS.

Chairman of the Committee, Faaivae Iuli Godinet says its appears the Governor’s executive order clashes with Public Law PL 16-39, an Act creating the Department of Public Safety in 1978, which includes the Fire department and the Territorial Correctional Facility — questioning whether the separation is legal.

According to Fainuulelei, the executive order is to remain in effect until the newly proposed departments are established by legislation. He said the vision behind separating the agencies is for the betterment of their services to the people of American Samoa.

“Under the American Samoa Constitution Article 4, Section 6, under executive regulations, the government shall have the power to issue executive regulations not in conflict with the laws of the United States applicable to American Samoa; laws of American Samoa or with this constitution, and under Article 4 section 7 the governor shall have general supervision of all executive departments the agencies and instrumentalities of the government of American Samoa,” said the AG.

Senator Magalei Logovii asked whether the DPS could be “dismantled or repealed” via the governor’s executive order, or whether the government should submit legislation to establish the new agencies, since DPS was created under public law.

“This is where the law clashes and it is causing confusion amongst the Senators.”

Senator Togiola Tulafono asked the AG whether he had reviewed public law, 16-39;  and he said no.

“That means you have not done proper research, nor the governor’s office.

“Under public law, 16-39 passed into law in 1979, the DPS was created under executive order but it was legislated in 1979 and the divisions [TCF; Marine Patrol & the Fire Division] fall under the DPS, but it’s evident you have not reviewed that Public law before you came to the hearing or before the governor’s executive order was issued,” said Togiola.

The former governor inquired if the governor’s executive order can supersede the public laws of the territory.

Fainuulelei said he will have to review the public law in question. However, Togiola intervened saying that he’s not asking about the public law, but in general whether the governor’s executive order trumps the laws of the land.

Fainuulelei replied, “With the issue at hand, I cannot reply to hypothetical questions.”

Togiola fired back, “You gave your legal opinion that the governor’s executive order does not present a conflict with the public law — but it’s evident, from your responses there is a need for more research into this matter.

“How can you issue a legal opinion, yet you’re now saying you cannot reply unless you review the law in question?” Togiola asked.

The Senator again asked the AG, whether the governor can remove divisions from departments already created by law, via an executive order.

Fainuulelei said under the Constitution if the governor’s executive order is in conflict (fete’ena’i) with the laws of the land, the law trumps the executive order.

The AG placed emphasis on ‘conflict of law’ versus an ‘executive order’.

Togiola rephrased his question — “Are laws conflicted with governor’s executive orders?” — and Fainuulelei replied there was no conflict present on the issue at hand.

That did not sit well with Togiola.

He questioned how the AG can say there is no conflict when the DPS has been legislated which includes the divisions (Corrections, and Marine Patrol & Fire), yet the current governor removed the divisions via executive order.

Fainuulelei again stated he was not part of drafting of the executive order in question.

Togiola fired back, “We already know that, but this is a direct question and you should respond in accordance with the law.”

The AG replied, its unclear whether the Public Law 16-39 was amended or repealed and any lawyer like yourself (referring to Togiola) can look at the American Samoa Code Annotated which outlines the current laws.”

Senator Togiola said on the issue at hand, the AG is “rambling” (fealoalofa’i) in his response, yet the question is clear.

He advised the committee to postpone the hearing to allow them (the witnesses) time to better prepare themselves for questions, given it is not under ASCA.

“I will not accept the testimony presented that there is no conflict when we know the law clashes with the governor’s executive order,” the senator pointed out.

The hearing is scheduled for today before the Senate.