Senate taking to court executive order separating DPS divisions

Pago Pago, AMERICAN SAMOA — The Senate is challenging in court the legitimacy of the Governor’s executive order separating the corrections and fire division from Department of Public Safety.

This is according Budget Chairman, Senator Magalei Logovii in an interview with Samoa News.

The comments by the chairman follows its third hearing on Friday with Attorney General Fainuulelei Alailima-Utu for an explanation about how the Governor issued an Executive Order separating the TCF and Fire when DPS was created under Public Law and therefore the move it not legal.

However the Attorney General is adamant the Executive Order is valid.

Magalei says the Senate has no choice but to seek the Court’s indulgence to determine and interpret the law to ensure the transfer is valid.

 “We will not allow the transfer unless we are beyond certainty the move is legitimate,” said the Senator.

After the hearing on Friday the Senate’s Legal Counsel, Mitzie Jessop-Ta’ase explained to the Senators that the DPS was created under Executive Order signed by then Governor John Morse Hayden in 1971, but it was legislated into law in 1979.

 “We have discovered the DPS was created under Executive Order, but when the Department was legislated in 1979, the Fire and Corrections was transferred under the DPS. Since 1979 the Fire and Corrections were under the umbrella of the Public Safety and is overseen by the Commissioner of Police.

 “It’s apparent the argument by the AG is that the law is unclear whether Fire and Corrections is assigned under the DPS, but it is clear from [Public Law 16-39] these divisions are under the Public Safety,” explained Jessop-Ta’ase.

The chair of the committee said it’s evident from the AG’s testimony the Public Law in question “does not clearly” stipulate that the Corrections and Fire divisions are subject to law under DPS and that the executive order is also a law.

 “And that Public Law was established based on the Executive Order which was signed by then Governor Hayden. “However the AG says that despite the Public Law, it is not clear the Corrections and the Fire Divisions were included.

 “Now the question is — over 44 years [the Corrections and the Fire Divisions] have been operating under DPS in this manner?” asked Senator Faaivae.

During the hearing on Friday, Fainuulelei explained the Public Law in question does not “clearly state” that the Corrections and Fire divisions were under the DPS when the Executive Order was made into law.

According to the Executive Regulation Order 2-71 signed by Governor Hayden, pursuant to governmental structure, it contemplates a Department of Legal Affairs and Public Safety with the Commissioner of Public Safety reporting to the Governor through the Attorney General.

 “Whereas the present Police, Fire and Corrections requirements necessities direct communication between the Commissioner of Public Safety.

“There has been recommendation that the function of Public Safety be separated from the functions of the Attorney General, and further the AG became a staff position with the Governor’s office.

 “And whereas the Legislature has repeatedly expressed its desire to separate the function of the Office of the Attorney General and the Commissioner of Public Safety. And the creation of a separate Department of Public Safety is not contemplated until the total governmental reorganization is completed, which may or may not be until December 1971 and it is in the best interest of the people of American Samoa that the functions be separated prior to the contemplated reorganization.”

“It is hereby ordered by the power vested in me by Title 2 Chapter 2.01 Section 2.0103, that the Commissioner of Public Safety shall be solely and directly responsible to the Governor of American Samoa for the policy and operational procedure of the Police, Fire and Corrections functions of the Government of American Samoa,” said Governor Hayden.

Eight years later under the sixteenth Legislature of American Samoa, DPS was one of the nine Departments that was legislated by law, under Public Law 16-39.

 “Each Department has such responsibilities as are prescribed by law or assigned by the Governor. The Office of Public Safety abolished, functions transferred, name changes.

 “The office of Public Safety, administratively created is abolished and such functions as are assigned by law transferred to the Department of Public Safety. Where these words office of public safety appears in the code, the words department of public or department if appropriate are substituted.”

After the hearing on Friday, the Senators met and discussed their next move.

Former Governor Togiola T. A. Tulafono pointed out if the powers given to the Commissioner of DPS to run and operate the corrections and fire divisions has been incorrectly done for over 40 years, this is what the AG is trying to cover up.

 “It is wrong that the AG is trying to protect the actions by the Governor, when he is the mandated lawyer that should be protecting the Government of American Samoa, not the Governor.

 “If this matter is taken to court, he should be the one standing in for the Government, and yet came here and appears to be taking the Governor’s side, which is disheartening,” said Togiola.