Title 4
EXECUTIVE
Chapters:
02 (Reserved)
03 Executive Departments, Boards,
and Agencies
06 Office of Administrative Law Judge
07 Department of Human Resources
09 (Reserved)
12 Archives and Records Management
13 Developmental Disabilities.
Chapter 01
GOVERNOR
AND LIEUTENANT GOVERNOR
Sections:
4.0101 Election of Governor
4.0102 Qualifications of Governor and Lieutenant Governor.
4.0103 Nomination
procedures.
4.0104 Election
procedures.
4.0105 Term
of office.
4.0106 Line
of succession.
4.0107 Right
of succession.
4.0108 Recall
proceduree.
4.0109 Impeachment.
4.0110 Compensation
and perquisites.
4.0111 Powers
of Governor-Appointment and confirmation.
4.0112 Appointive
powers and confirmation procedures.
4.0130 Powers
of Lieutenant Governor.
4.0131 Delegation
of executive authority.
Reviser’s Comment: PL 15-23 § 1 (1977) provided:
This
chapter shall be known and may be cited as the Omnibus Local Governor Act of
1977.
4.0101 Election of
Governor.
The
Governor and the Lieutenant Governor shall be elected at the same time as the
History: 1977, PL 15-23 § 1.
Case Notes:
Territorial election statutes provide no right of appeal to board of registration from chief election officer’s determination that a person is ineligible to run for elective office. A.S.C.A. §§ 4.0101 et seq., 6.0101 et seq. Siofele v. Shimasaki, 9 A.S.R.2d 3 (1988).
4.0102 Qualifications of
Governor and Lieutenant Governor.
(a) Candidates for the office of Governor and
Lieutenant Governor shall be:
(1) either a
(2) a bona fide resident of
(3) at the time of assuming office, 35 years of
age or older.
(b) Persons otherwise qualified for nomination as
candidates for either Governor or Lieutenant Governor are not precluded from
nomination for reasons of not qualifying under paragraph (a) (2) of this
section if by reasons of absence from
(1) service with the armed services of the
(2) service with the United States Government or
any of its agencies or instrumentalities;
(3) service with the government or any of its
agencies or instrumentalities; or
(4) while in the pursuit of his or her education.
(c) Persons who are serving as the incumbent
appointed Governor and Lieutenant Governor at the effective date of this
chapter are not eligible for election to the office of Governor or Lieutenant
Governor at the first gubernatorial election in
(d) Any
person convicted of a felony under the laws of American Samoa, the United
States, or the laws of any state of the United States is not eligible for
election to the Office of the Governor or Lieutenant Governor unless the
convicted person has been pardoned and has had his civil rights restored.
(e) Any person separated from the Armed Forces of
the
(f) Candidates for the offices of Governor and
Lieutenant Governor who are employees of the government in whatever capacity
and for either the executive, or judicial branches, must resign their position
with the government before commencing active campaigning. “Active campaigning”
includes but is not limited to: the acceptance of a petition from the election
official charged with that responsibility; any effort whatsoever that is
designed to influence or obtain votes from qualified electors; and any activity
that would cause a conflict of interest at the candidate’s position of
employment with the government. In any event, candidates must resign no later
than 60 days prior to the election date even if the events above have not
occurred.
History: 1977, PL
15-23 § 1; amd 1977, PL 15-31 § 1.
Amendments: 1977
Subsection (f): added.
4.0103 Nomination procedures.
The
candidates for the offices of Governor and Lieutenant Governor shall be
nominated jointly by filing a petition in the same manner as candidates for
members of the House of Representatives except that the nominating petition for
candidates for Governor and Lieutenant Governor shall be signed by at least
300 qualified electors without regard to their representative districts.
History: 1977, PL 15-23 § 1.
4.0104
Election
procedures.
The
Governor and Lieutenant Governor shall be elected jointly, by a majority of the
votes cast by qualified electors. Each vote shall be applicable to both
candidates. If no candidates receive a majority of the votes cast in any
election, on the fourteenth day thereafter a runoff election shall be held
between the candidates for Governor and Lieutenant Governor receiving the
highest and second highest number of votes cast.
History: 1977, PL 15-23 § 1.
4.0105 Term
of office.
The
first elected Governor and Lieutenant Governor shall serve terms of 3 years
each from
History: 1977, PL 15-23
§ 1.
4.0106 Line of succession.
(a) In case of temporary
disability or temporary absence of the Governor, the Lieutenant Governor has
the powers of the Governor.
(b) In case of permanent vacancy
in the office of Governor, arising by reason of the death, resignation, removal
by recall, removal by impeachment, permanent disability of the Governor or the
death, resignation, or permanent disability of the Governor-elect or for any
other reason, the Lieutenant Governor or Lieutenant Governor-elect shall
become the Governor, to hold office for the unexpired term and until he or his
successor shall have been duly elected and qualified at the next regular
election for Governor.
(c) In case of temporary disability or temporary
absence of the Lieutenant Governor, or during any period when the Lieutenant
Governor is acting as Governor, the powers of the acting Lieutenant Governor
shall be exercised by the Attorney General, then the Treasurer.
(d) In case of temporary disability or temporary
absence of both the Governor and Lieutenant Governor, the powers of the Governor
shall be exercised, as acting Governor, by a person as the law may prescribe.
In case of a permanent vacancy in the offices of both the Governor and
Lieutenant Governor, the office of Governor shall be filled by the Speaker of
the House for the unexpired term.
(e) In case of permanent vacancy in the office of
Lieutenant Governor, arising by reason of the death, resignation, removal by
impeachment, or permanent disability of the Lieutenant Governor, or because
the Lieutenant Governor or Lieutenant Governor-elect has succeeded to the
office of Governor, the Governor shall appoint a new Lieutenant Governor,
subject to confirmation by Legislature, at a special session called immediately
for that purpose, to hold office for the unexpired term and until he or his
successor shall have been duly elected and qualified at the next regular
election for Lieutenant Governor.
History 1977, PL 15-23 § 1.
4.0107 Right of
succession.
No person
who has been elected Governor for 2 full successive terms may be again eligible
to hold that office until one full term has intervened unless otherwise
provided by law.
History: 1977, PL 15-3 § 1.
4.0108 Recall
procedure.
(a) Governors of American Samoa may be removed
from office by a referendum election in which at least 2/3 of the number of
persons voting for Governor in the last preceding general election at which a
Governor was elected, vote in favor of recall and in which those so voting constitute
a majority of all those participating in the referendum election.
(b) The referendum election shall be initiated by
the Legislature following:
(1) a
2/3, or more, vote of the members of each house of the Legislature in favor of
a referendum; or
(2) a petition for the referendum to the
Legislature by qualified electors equal in number to at least 50 percent of the
whole number of votes cast for Governor at the last general election at which
a Governor was elected preceding the filing of the petition.
History: 1977, PL
15-23 § 1.
4.0109 Impeachment.
(a) The Governor and the Lieutenant Governor are
subject to impeachment and, upon conviction, shall be removed from office.
(b) The Legislature shall provide for the manner,
procedure, and causes for impeachment including for conviction of felonies and
for a course of conduct amounting to a gross abuse of power, as defined by law.
(c) The House of Representatives has the sole
power to bring articles of impeachment upon a vote of at least 2/3 of the entire
membership. The Senate has the sole power to try impeachment, with the Chief
Justice presiding, and, may not convict unless at least 2/3 of the entire
membership concur. The members when sitting for that purpose shall be on oath
or affirmation.
(d) Conviction shall extend only to removal from
office and disqualification to hold and enjoy any office of trust, honor, or
profit under the Territory. The party, whether convicted or acquitted, is also
liable to other prosecution under the law.
(e) At the appropriate time and in the appropriate
manner, this section or its substance should be considered as a Constitutional
Amendment to the Revised Constitution of American Samoa.
History: 1977, PL 15-23 § 1.
4.0110 Compensation and
perquisites-Allowances for former Governor and surviving spouses-“Former
Governor” defined.
(a) The Governor is entitled to an annual salary of $85,000 and other
perquisites provided by law including but not limited to: the rent-free use of
Government House (the Governor’s official residence in Fagatogo); the free use
of vehicles for executive, ceremonial duties and family use; and a reasonable
food, beverage and entertainment budget for the official residence specified by
line item in the Governor’s annual fiscal budget.
(b) The
Lieutenant Governor is entitled to an annual salary of $75,000 a year and other
perquisites as provided by law including rent-free government quarters, and
free use of a vehicle for executive, ceremonial duties and family use.
(c) Each
former Governor shall be entitled, for the remainder of his life, to receive
from the American Samoa Government a monetary allowance at the rate per annum
of 60% of his highest salary during his last year in office, payable monthly by
the treasurer of American Samoa Government.
However, such allowance is not payable for any period during which such
former Governor holds an appointive or elective office or position in or under
the American Samoa Government or the Federal Government to which is attached a
rate of pay other than a nominal rate.
(d)
The surviving spouse of each former Governor
shall be entitled to receive from the American Samoa Government a monetary
allowance at the rate per annum of 30% of the former Governor’s highest salary
during his last year in office, payable monthly by the Treasurer of the
American Samoa Government. The monetary
allowance of such surviving spouse;
(e)
commences on the day after the former Governor
dies;
(1)
terminates on the last day of the month before
such widow;
(A)
dies; or
(B)
remarries; and
(2)
is not payable for any period during which such
widow holds an appointive or elective office or position in or under the
American Samoa Government or the Federal Government to which is attached a rate
of pay other than a nominal rate.
(f)
As used in this section, the term “former
Governor” means a person:
(1)
who, on or after January 1, 1978, shall have held
the office of the Governor of the Territory of American Samoa for a full term
of at least 4 years;
(2)
whose service in such office shall have
terminated other than by removal pursuant to A.S.C.A., 4.0109 of this chapter;
and
(3)
who does not then currently hold such office.
(f) Funds shall
be made available from the Office of the Governor’s budget.
History: 1977, PL
15-23 § 1; 1982, PL 17-52 § 1; amd 1985, PL 19-6 § 1; 2001, PL 27-3; 2001, PL
27-6.
Amendments: 1982
Raised compensation.
1985 Subsection (b):
added “including rent-free government quarters”.
4.0111 Powers
of Governor-Appointment and confirmation.
(a) The elective office of the Governor of
American Samoa is created. The Governor is responsible for the faithful
execution of the laws. The Governor has powers and duties and responsibilities
as delegated to him from time to time by the President of the United States or
his designee, those portions of the U.S. Constitution applicable to American
Samoa, the U.S. law applicable to American Samoa, the Revised Constitution of
American Samoa, the American Samoa Code and by the direction of his own
executive rules.
(b)
The Governor has general supervision and control of all departments, offices,
divisions, bureaus, agencies or instrumentalities of the executive branch of
the government.
History: 1977, PL
15-23 § 1.
Case Notes:
Because the Governor has general supervision and
control of all executive departments, agencies and instrumentalities of the
Government, personnel decisions are subject to his direction as long as his
actions are in accordance with applicable territorial and federal laws and
rules. Rev. Const. Am. Samoa. Art. II § 7; A.S.C.A. § 7.0110; A.S.C.A. §§
4.0102, 4.0111(b). Sala v.
4.0112 Appointive powers and confirmation procedures.
(a) Appointive powers of the Governor and the
legislative confirmation procedures are as follows: directors of cabinet
departments (those under 4.0301), and the heads of bureaus or offices who do
not report either to the head of a cabinet department or to the head of a
bureau or office whose appointment is subject to confirmation by the
Legislature, shall be appointed by the Governor, and confirmed by a majority
vote of the entire membership of each house of the Legislature. All other
appointments shall be by the Governor unless by law that particular position is
subject to confirmation by the Senate or by the Legislature.
(b) Nominations of appointments made during an
adjournment of the Legislature or less than 5 legislative days from the end of
a legislative session shall be acted upon at the next regular session
convened.
(c) Appropriated funds shall not be used to pay
employees for service in positions requiring confirmation if their names are
not submitted for confirmation prior to the end of the next regular session
after they begin service in those positions, and no person shall serve as an
acting director of a department, office, or bureau for more than 90 days
whether consecutive or not, without confirmation by the legislature.
(d) If a nomination of appointment is rejected,
the authority to serve in office ceases immediately. Failure to confirm a
nominee at a session at which his confirmation is considered does not preclude
the Governor from resubmitting that name for the same position, at the next
succeeding session.
(e) The head of each executive department, bureau,
or office subject to confirmation may hold office during the continuance in
office of the Governor by whom he is appointed and until his successor is
appointed and qualified unless sooner removed by the Governor.
(f) It is the specific intent of this chapter to
empower the newly elected Governor to select his own team of department,
bureau, and office heads, subject to confirmation.
(g) All department heads incumbent upon the first
day of the administration of the newly elected Governor,
History: 1977, PL 15-23 § 1;
1978, PL 15-80; amd 1986, PL19-36 § 1.
Amendments: 1978 Section
amended generally to add provisions relating to legislative confirmation
procedures.
1986 Subsection (b): deleted “or special”.
Subsection (C): replaced ‘may” with
“shall”; deleted “or special”; and added provisions for length of term.
4.0130 Powers of
Lieutenant Governor.
The
elective office of the Lieutenant Governor of American Samoa is created. The
Lieutenant Governor has executive powers and duties as prescribed by the Revised
Constitution of American Samoa, the American Samoa Code or delegated by the
Governor. The Lieutenant Governor has no legislative duties or functions.
History: 1977, PL 15-23 § 1.
4.0131 Delegation of
executive authority.
Authority
but not the responsibility vested in the Governor or any other persons in the
executive branch of the government may be delegated by that person to other
officers and employees of the executive branch.
History: 1977, PL 15-23 § 1.
Chapter 02
(RESERVED)
Sections:
4.0301 Required
departments.
4.0302 Appointment-Investigative
proceedings.
4.0320 Public
Defender-Office created.
4.0321 Assistant Public Defender.
4.0325 Territorial Registrar.
4.0330 Registrar
of Vital Statistics.
4.0335 Director of Manpower Resources.
4.0340 Department of Human Resources.
4.0301 Required
departments.
(a) There are, within the Executive branch of the
territorial government, the following departments:
(1) a department of legal affairs;
(2) a department of health;
(3) a department of public works;
(4) a department of education;
(5) a department of agriculture;
(6) a department of administrative services;
(7) a department of port administration;
(8) a department of local government;
(9) a department of public safety;
(10) a department of parks and recreation;
(11) a department of human resources;
(12) a
department of treasury;
(13) a
department of marine and wildlife resources;
(14) a
department of commerce;
(15) a
department of human and social services; and
(16) a department
of youth and women's affairs.
(b) Each department has such responsibilities as
are prescribed by law or assigned by the Governor.
History: 1962,
PL 7-28; 1965, PL 9-25; amd 1976, PL
14-31; amd 1979, PL 16-39; amd 1980, PL 16-55 § 6; 1987, PL 20-14 § 1; PL 20-29
§ 1; 1988 PL 20-62; amd 1997 PL 25-4.
Amendments: 1976 Substituted department of health” for “department of medical services”, and
“department of administrative service” for “department of administration
services”.
1979 Added provision that the departments were within the executive
branch, added department of public safety, and divided section into 2
subsections.
1980 Added paragraph (a) (10).
1987 Public Law 20-14: added paragraph (a) (11). Public Law 20-29:
capitalized the word “executive”; added “the” before “territorial government;” added paragraph (a) (12).
Reviser’s Comment: Section 2 of PL 16-39. provided:
The office of public safety, administratively
created, is abolished and such functions as are assigned by law are transferred
to the department of public safety. Wherever the words “office of public
safety” appear in the Code, the words ‘department of public safety” or
“department”, if appropriate, are substituted.
4.0302 Appointment-Investigative
proceedings.
(a) The Governor may appoint such boards,
commissions, and executive agencies as he deems advisable.
(b) Any board of investigation which may be
appointed shall have full authority to subpoena witnesses, administer oaths,
and report contempt to the High Court, which shall punish as for contempt in
open court. The proceedings and reports of a board of investigation shall be as
designated by the Governor in the order convening any such board.
History: 1962, PL 7-28.
4.0320 Public
Defender-Office created.
(a) The office of Public Defender is created as an
independent agency of the executive branch of the government.
(b) The Public Defender shall be appointed by the
Governor of American Samoa and confirmed by the Legislature, for a term of 4
years and shall serve until his successor is appointed and qualified. He may be
reappointed for 1 or more subsequent 4-year terms. Vacancies in the office
shall be filled by the Governor for the unexpired term. The first Public
Defender appointed pursuant to this section shall be appointed for a term
commencing
(c) The Public Defender shall be a qualified
attorney who is a graduate of an accredited law school with at least 3 years of
experience in criminal trial work, licensed to practice law in this territory,
and shall be removed from office only for good cause by the Governor.
(d) The Public Defender shall devote full time to
the performance of his duties and shall not engage in the private practice of
law. The compensation of the territorial Public Defender shall be at the same
grade as that of the Deputy Attorney General and shall not be reduced during
the term of his appointment.
History: 1977, PL 15-57 §
1.
4.0321 Assistant Public
Defender.
(a) Subject to the approval of the Governor, the
Public Defender shall employ 1 or more Assistant Public Defenders, and at
least 1 investigator, 1 secretary, 1 file clerk, and any other employees
necessary to discharge the function of the office.
(b) The Assistant Public Defender shall serve at
the pleasure of the Public Defender, be employed on a full time basis, and not
engage in the practice of law.
(c) The compensation of an Assistant Public
Defender shall be at the same grade as that of an Assistant Attorney General.
History: 1977, PL 15-57 § 2.
4.0325 Territorial
Registrar.
(a) The Governor of
(b) The Territorial Registrar shall be a part of
the executive branch and shall have his offices where the Governor or his
authorized representative shall designate.
History: 1968, PL 10-53.
4.0330 Registrar of Vital
Statistics.
(a) The Governor of
(b) The Registrar of Vital Statistics shall be a
part of the executive branch and shall have his offices where the Governor or
his authorized representative shall designate.
History: 1968, PL 10-53.
4.0335 Director of
Manpower Resources.
Repealed by PL 25-40 § 2.
4.0340 Department of Human Resources.
Repealed
by PL 25-40 § 2.
Chapter 04
TERRITORIAL
AUDIT OFFICE
Sections:
4.0401 Definitions.
4.0402 Office established.
4.0403 Territorial auditor.
4.0404 Appointment and term of office.
4.0405 Removal.
4.0406 Salary.
4.0407 Employees.
4.0408 Outside specialists may be hired.
4.0409 Annual plan.
4.0410 Clearance of all auditing services required by government
agencies.
4.0411 Audit standards.
4.0412 Audit
procedures and requirements.
4.0413 Audit reports.
4.0414 Investigation reports.
4.0415 Annual report.
4.0416 Funding for the territorial audit office.
4.0417 Budget.
4.0418 Prohibitions.
4.0419 Access to records.
4.0420 Transition.
4.0401 Definitions.
As
used in this chapter unless the context requires otherwise:
(a) “Agencies” or “agency” means any board,
department, office, commission, committee, or agency created by the
Constitution, statutes, or executive orders of the Governor.
(b) “Audit” means an independent examination of
books, performance, documents, records and other evidence relating to the
receipt, possession, obligation, disbursement. Expenditure, or use of public
funds by any agency or any activity of any agency or relating to any contract
or grant to which any agency is a party, including any operations relating to
the transactions. “Audit” includes financial compliance audits, economy and
efficiency audits, and program results audits or any combination thereof as
the territorial auditors may deem appropriate.
(c) “Investigation” means an inquiry into
specified acts or allegations of impropriety, malfeasance, misfeasance, or
nonfeasance in the obligation, expenditure, receipt or use of public funds or
into specified financial transactions or practices which may involve
impropriety, malfeasance, misfeasance, or nonfeasance.
(d) “Public funds” means any money, credit, or
gifts in kind, from whatever source derived, used directly or indirectly for
the support of any agency.
History: 1985, PL 19-21 § 1.
4.0402 Office
established.
There
is established as an independent agency a territorial audit office, which shall
be under the direction of the Territorial Auditor. The office includes the
Territorial Auditor and his staff.
History: 1985, PL 19-21 § 1.
4.0403 Territorial
auditor.
The
Territorial Auditor must be a person experienced and competent in governmental
auditing, financial management, or government operations and budgeting. The
Territorial Auditor shall be a certified public accountant or a certified
internal auditor holding a current certificate from any state of the
History: 1985, PL 19-21 § 1.
4.0404 Appointment and
term of office.
The
Governor appoints the Territorial Auditor, who shall be confirmed by the
Legislature. The Territorial Auditor shall serve a term of 4 years from the
date of his appointment by the Governor. No person shall serve as Territorial
Auditor for more than 8 years, whether consecutive or not. No person shall serve
as Territorial Auditor, or as Acting Territorial Auditor without being
confirmed by the Legislature, for more than 180 days, whether consecutive or
not, in any calendar year.
History: 1985, PL 19-21 §1.
4.0405 Removal.
The
Territorial Auditor can be removed from office only by the Governor and with
the affirmative vote of two-thirds of the members of each House of the
Legislature, and only for one or more of the following causes: conviction of a
misdemeanor or a felony, mental or physical incapacity, malfeasance,
misfeasance, nonfeasance or unethical actions or conduct, or pursuant to
subsection 4.0418 of this chapter.
History: 1985, PL 19-21 § 1.
4.0406 Salary.
The
salary of the Territorial Auditor shall not be reduced during his term of
office.
History: 1985, PL 19-21 § 1.
4.0407 Employees.
Other
than contract employees, such assistants and other staff as may be necessary
shall be career employees within the limits of appropriations.
History: 1985, PL 19-21 § 1.
4.0408 Outside
specialists may be hired.
The Territorial Auditor may obtain the services of independent
certified public accountants, qualified management consultants or other
professional persons, as he deems necessary to assist him in carrying out his
duties. Independent specialists shall be
used for any audit involving the territorial audit office, or with respect to
which the Territorial Auditor or the territorial audit office has a conflict of
interest, including an audit of any agency, contract, or grant for which the
Territorial Auditor has had management responsibility or in which he was
employed during 2 years preceding the time period covered by the audit, or
during the 2 years preceding or subsequent to the audit time period.
History: 1985, PL 19-21 § 1.
4.0409 Annual plan.
The
annual workplan of the territorial audit office may be amended at any time by
the Territorial Auditor within the limits of available appropriations, without
advance notice or permission from any person or agency.
History: 1985, PL 19-21 § 1.
4.0410 Clearance of all
auditing services required by government agencies.
All
audits required for or sought by a government agency shall be cleared through
the territorial audit office.
History: 1985, PL 19-21 § 1.
4.0411 Audit standards.
(a)
The audit standards shall be consistent with the provisions of this act and
with generally accepted auditing standards. The audit standards shall
incorporate the standards for audit of governmental organizations. Programs,
activities, and functions published from time to time by the United States
General Accounting Office, including those standards issued by the American
Institute of Certified Public Accountants referred to therein.
(b)
All audits conducted or caused to be conducted by the Territorial Auditor shall
be performed with the highest degree of professionalism and with strict
avoidance of any degree of partisanship or bias.
History: 1985, PL 19-21 § 1.
4.0412 Audit
procedures and requirements.
(a) At the conclusion of an audit, the Territorial
Auditor or his designee shall discuss the audit with the officials whose
agency, grant, contract, or activity was subjected to the audit and submit to
them a list of his proposed findings which may be included in the audit report.
The preliminary audit and proposed findings shall not be made public prior to
the receipt of comments from the agencies solicited. If the officials are not
available for personal receipt of the list of audit findings, then delivery
shall be deemed made when it is delivered to the agency. The agency shall
submit to the Territorial Auditor within 30 days after the receipt of the list
of findings its written statement of explanation or rebuttal concerning any of
the adverse or critical audit findings, including any corrective action to be
taken to preclude a recurrence of any adverse findings. The Territorial
Auditor shall publish the substance of the agency response in the audit report.
(b) An audit report shall make special mention of:
(1) any
apparent violation of laws within the scope of the audit; and
(2) any improper expenditures, any improper
accounting procedures, all failures to properly record financial transactions,
and all other inaccuracies, irregularities, shortages, and defalcations.
(c) Specific allegations naming a person involved
in improper or illegal acts found in connection with an audit shall be included
in a separate confidential special report which shall be transmitted only to
the attorney general and federal agencies when applicable.
History: 1985, PL
19-21 § 1.
4.0413 Audit reports.
Each report on a financial and compliance
audit or an economy and efficiency performance audit must include a statement
of the scope of the audit, the findings resulting from the audit the underlying
cause and the significance thereof, and an explanation or rebuttal submitted
by the agency audited. A copy of each report must be submitted to the Governor,
the President of the Senate, the Speaker of the House, and the head of the
audited agency. If the audit discloses an apparent violation of a criminal
statute, a copy of the report shall also be submitted to the Attorney General.
Audit reports are public records.
History: 1985, PL 19-21 § 1.
4.0414 Investigation
reports.
Each
report on an investigation must be submitted to the Governor, the President of
the Senate, the Speaker of the House, the head of the agency or agencies
investigated, and the Attorney General.
History: 1985, PL 19-21 § 1.
4.0415 Annual report.
The
Territorial Auditor shall report on his activities and findings to the
Legislature and the Governor at least once every calendar year, and this report
shall be made public.
History: 1985, PL 19-21 § 1.
4.0416 Funding for the
territorial audit office.
Adequate
funds will be provided to allow the territorial auditor to carry out the
responsibilities of the territorial audit office.
History: 1985, PL 19-21 § 1.
4.0417 Budget.
(a) The Territorial Auditor shall prepare a budget
in the same form as other agencies of the
(b) If it should be necessary to obtain funds in excess of the balance in the budget account, a supplemental budget
request shall be submitted to the Governor for presentation to the
Legislature.
History: 1985, PL 19-21 § 1.
4.0418 Prohibitions.
(a) The Territorial Auditor and the managers may
not;
(1) become a candidate for elective public
office;
(2) hold any other public office, by appointment
or otherwise, except for appointments on governmental advisory boards or study
commissions or as otherwise expressly authorized by law;
(3)
be actively involved in the affairs of a political party;
(4)
actively participate in a political campaign for a public office;
(5) hold a legal, equitable, creditor or
debtor interest in a partnership, firm, or other entity which contracts with
the territorial audit office during his term of office;
(6) have a direct or indirect financial or
economical interest in the transaction of an agency audited by the territorial
audit office during his term of office (written disclosure of any such interest
and formal disqualification from participation in a post audit involving that
agency may constitute compliance with this paragraph if the interest is either
insubstantial or results directly from an interest held before assuming the
position in the territorial audit office);
(7) conduct or supervise a post audit of any
agency for which he was responsible or by which he was employed or with which
he contracted during the preceding two years; or
(8)
make or report publicly any charges of nonfeasance, misfeasance or malfeasance
in office of a public official or illegal conduct of a person unless he knows
of reasonable grounds, based on accepted auditing and accounting
standards, for such charges.
(b) A violation of this section is cause for
removal from office.
History: 1985, PL 19-21 § 1.
4.0419 Access to records.
The
Territorial Auditor, or an employee or contractor of the Territorial Audit
Office so designated in writing by the Territorial Auditor, shall have the
power to inspect and make copies of books, records or files of all territorial
agencies, and any and all instruments and documents pertaining to the functions
of the Territorial Audit Office. This includes computerized records. If such
records are classified as confidential by any laws of the territory, the
territorial audit office shall be required to maintain their confidentiality
and to use such records only for the purpose of developing general statistics
and evaluations or other necessary findings.
History: 1985, PL 19-21 § 1.
4.0420 Transition.
The
existing Territorial Audit Office is terminated 10 days after the effective
date of this act, and all office space, appropriations, equipment and records
of the existing territorial audit office are then transferred to the newly
created Territorial Audit Office. Within 10 days of the effective date of this
act, the Governor shall designate a person as Territorial Auditor or acting
Territorial Auditor to take office upon the termination of the existing
Territorial Audit Office. Within 30 days after the new Territorial Auditor or
acting Territorial Auditor takes office, persons to serve as section managers
and other employees must be appointed, and a workplan for the remainder of the
current fiscal year must be prepared.
History: 1985, PL 19-21 § 1.
Chapter 05
DEPARTMENT OF TREASURY
Sections:
4.0501 Department of treasury.
4.0502 Treasurer of American Samoa.
4.0503 Treasurer-Powers and duties.
4.0504 Uniform accounting.
4.0505 Annual report.
4.0506 Rules.
4.0507 Unpaid workers
compensation awards.
4.0501 Department of
treasury.
There
is established within the Executive branch of the government a Department of
Treasury, headed by the Treasurer of American Samoa.
History: 1987, PL 20-29 § 19.
4.0502 Treasurer of
The
Treasurer of American Samoa shall possess sufficient professional
qualifications and experience in governmental finance and accounting or
equivalent private sector experience, to carry out the purposes of this
chapter.
History: 1987, PL 20-29 § 19.
4.0503 Treasurer—Powers
and duties.
(a) Unless otherwise provided by law, the
Treasurer has the powers and duties to:
(1) collect and deposit all locally raised
revenues from any source, including income taxes, excise taxes, other taxes,
license fees and payments for services;
(2) receive and deposit all funds from the federal
government and any other sources;
(3) disburse funds pursuant to authority of law;
(4) establish and maintain the books of account of
the government;
(5) provide and administer the financial management
system of the government;
(6)
manage trust funds and related receipts of the government;
(7) establish and maintain special revenue and
disbursement accounts on behalf of public corporations of the government;
(8) provide financial data to the Governor,
Legislature, departments, offices, and other agencies of the government;
(9) supervise and manage the government financial
management information system;
(10) conduct customs and baggage inspections and
other related matters; and
(11)
engage in all other activities which may be reasonably necessary or incidental
to carrying out the provisions of this chapter.
(b) Nothing in this section prevents departments,
offices or other agencies of the government from collecting revenues with the
approval of the Treasurer. Unless otherwise provided by law, all receipts so
collected shall be transmitted to the Department of Treasury.
History: 1987, PL 20-29 § 19.
4.0504 Uniform accounting.
The
Treasurer, with the concurrence of the Territorial Auditor, shall establish a
uniform system of accounting. An accrual method of accounting that meets
generally accepted principles of governmental accounting must be maintained.
History: 1987, PL
20-29 § 19.
4.0505 Annual report.
Promptly
after the close of each fiscal year, the Treasurer shall publish and issue a
detailed report on the financial affairs of the government for such fiscal year
and submit copies to the Governor, Legislature, and Territorial Auditor.
History: 1987, PL 20-29 § 19.
4.0506 Rules.
The
Treasurer shall adopt rules pursuant to section 4.1001 A.S.C.A., et seq. to
accomplish the purposes of this chapter.
History: 1987, PL
20-29 § 19.
4.0507 Unpaid workers compensation awards.
Workers compensation awards
approved by the commission for government employees that remain unpaid because
the government did not have insurance coverage shall be transferred to the
government treasury as accounts payable.
The Treasurer shall pay these awards out of funds earmarked to pay prior
debts of the government.
History:
1997, PL 25-14.
Chapter 06
Sections:
4.0601 Short title.
4.0602 Administrative Law Judge-Office created-Qualifications.
4.0603 Authority of Administrative
Law Judge.
4.0604 Jurisdiction of the
Administrative Law Judge.
4.0605 Record keeping.
4.0606 Cost and fees.
4.0607 Rules and procedures and
evidence.
4.0608 Budget.
4.0601 Short title.
This act shall be known as the
Administrative Law Judge Act of 1998.
History: 1998, PL
25-37.
4.0602 Administrative Law Judge-Office created-Qualifications.
(a)
The Office of Administrative Law Judge is created
as an independent agency of the Executive branch of government. The head of this office shall be known as the
Administrative Law Judge. In a contested
case, as defined in 4.1001, or other grievance or controversy before any
agency, as defined in 4.1001, the Administrative Law Judge shall conduct and
either make or recommend decisions in original proceedings, in accordance with
the Administrative Procedures Act 4.1025 - 4.1037. Any agency may utilize the administrative law
judge to conduct or otherwise assist its authorized rule making under 4.1001 -
4.1020.
(b)
The Administrative Law Judge shall be appointed
by the Governor and confirmed by the Senate for a term of six (6) years and
shall serve until his successor is appointed and qualified or until reappointed
for one or more terms, provided that the first Administrative Law Judge
appointed pursuant to this section shall serve for a limited term commencing
upon passage and approval of this act and ending on September 30, 2000. The first six-year term of office shall
commence
(c)
The Administrative Law Judge shall be a qualified
attorney at law, licensed to practice in the Territory with at least 6 years
experience in the practice of law within the Territory and may be removed from
office by the Governor only for good cause.
(d)
The Administrative Law Judge shall devote full
time to the performance of his duties and shall not otherwise engage in the
private or public practice of law during the term of his appointment. The annual compensation of the Administrative
Law Judge shall be at a rate equal to the compensation of the district court
judge and shall not be reduced during the term of his appointment.
(e)
The Office of Administrative Law Judge shall be
staffed by career service employees including, but not limited to, hearing
clerks, a hearing reporter, a translator, a secretary and marshal.
(f)
The Administrative Law Judge shall adopt uniform
rules governing the procedures for the operation of his office in accordance
with the provisions of the Administrative Procedures Act.
(g)
One or more attorneys at law may be designated
and appointed pursuant to this section to serve as Administrative Law Judge pro
tempore when so appointed by the Governor when the Administrative Law Judge is
unavailable, incapacitated, or ethically unable to conduct a particular
contested case or other grievance or controversy. An Administrative Law Judge pro tempore has
all the powers and duties of a full-time Administrative Law Judge while sitting
as assigned by the Governor.
History: 1998, PL
25-37.
4.0603 Authority of
Administrative Law Judge.
(a)
The Administrative Law Judge and judges pro
tempore shall have the power to preserve and enforce order during any
proceedings, issue subpoenas, administer oaths, compel the attendance of
witnesses and the production of books, papers, documents and other evidence,
compel the taking of depositions before any designated individual competent to
administer oaths, examine witnesses, and to all things conformable to law which
may be necessary to enable him effectively to discharge the duties of his
office.
(b)
The Administrative Law Judge shall have the power
and authority to issue process and necessary writs to enforce its own
decisions, orders, judgments and decree.
History: 1998, PL
25-37.
4.0604 Jurisdiction of the Administrative Law Judge.
The Office of Administrative
Law Judge shall have jurisdiction to conduct hearings and issue judgements,
decisions, orders or decrees with regards to the following matters:
(a)
claims for workmen's compensation in accordance
with the procedures set forth in sections 32.0635 to and including
32.0646. All other authorities of the
workmen's compensation commission under chapter 06 of Title 32 A.S.C.A., shall remain
with the commission.
(b)
Controversies, grievances and administrative
appeals by government employees on matters pertaining to employment, including
matters pertaining to hiring, termination, suspension and discipline. The responsibilities formerly held by the
personnel advisory board pursuant to section 7.0102, with regards to the said
matters are now transferred to the office of administrative law judge. All other functions of the personnel advisory
board not otherwise affected herein shall remain with the board.
(c)
Appeals from the decisions of the immigration
board in all matters except decisions with respect to deportation of aliens as
provided in section 41.0208 - 41.0212.
Appeal of deportation decisions of the board shall be made to the
appellate division of the High Court as provided by law. All other decisions of the board may be
appealed to the administrative law judge.
(d)
All disputes and controversies pertaining to
claims for unpaid or improperly paid wages and hours pursuant to chapter 03 of
Title 32 A.S.C.A., except in matters relating to the rulemaking authority of
the wage and hour board.
(e)
To take appeals of procurement officer's final
decision in a procurement bidding dispute as described in section 10.0282
A.S.A.C. The Governor's authority to
appoint a three member board to hear disputes of matters pertaining to
procurement disputes is hereby repealed.
(f)
Any other contested case, grievance or
controversy that agencies, offices and departments of the government may be
referred to the Office of Administrative Law Judge for disposition providing
that the Office of Administrative Law Judge has jurisdiction over such matter.
(g)
All appeals from administrative rulings or
decisions of any administrative agency, except those matters specifically
exempted herein or by statute, of a department, office, agency, commission,
board or committee of the Executive branch or the American Samoa Government,
shall first be made to the Office of Administrative Law Judge. Decisions of the Administrative Law Judge may
be appealed to the appellate division of the High Court of American Samoa.
History: 1998, PL
25-37.
4.0605 Record keeping.
The Office of Administrative
Law Judge shall be a court of record and shall keep and maintain complete
records of its proceedings and shall transmit the record to the High Court of
American Samoa upon the filing of an appeal of said matter to the High Court.
History: 1998 PL
25-37.
4.0606 Cost and fees.
(a)
The Administrative Law Judge shall fix all fees
for services, filing fees and other costs assessed by the Office of
Administrative Law Judge in connection with services rendered and not otherwise
provided for in this code, provided, however, that such fees shall be set in an
amount which is reasonable, fair and just compensation for the service
rendered, at least in part to defray the cost of such service, and does not
exceed the actual cost of providing the service.
(b)
The cost of transcript of proceedings in any
hearings or trial shall be fixed at no more than the rate charged for
transcript with the District Court of American Samoa.
History: 1998, PL
25-37.
4.0607 Rules of procedures and evidence.
(a)
Proceedings before the Administrative Law Judge
shall be a trial de novo notwithstanding the nature of the controversy or
dispute, and it shall be the obligation of the judge to preserve as good a
record as possible for purposes of appeal.
(b)
In proceedings before the Administrative Law
Judge, the Rules of Civil Procedure and Rules of Evidence applicable in the
High Court of American Samoa shall be followed as closely as practicable. In that event, whenever the word High Court
shall appear in said rules, the word administrative law judge shall be
submitted therefor. These rules may be
supplemented by the Administrative Law Judge with any additional rules
promulgated in accordance with provisions of the Administrative Procedures Act.
History: 1998, PL
25-37.
4.0608 Budget.
The Office of the
Administrative Law Judge shall be included in the Governor's annual budget
submission to the Legislature.
History: 1998, PL
25-37.
DEPARTMENT
OF HUMAN RESOURCES
Sections:
4.0701
Establishment.
4.0702 Director.
4.0703
School-to-work program established—Program director.
4.0704 Program
manager--Supportive service.
4.0705 School-to-work
council.
4.0706 Council
membership--President--Meetings.
4.0707 Functions
of school-to-work program.
4.0701 Establishment.
There is established within the Executive
branch of the government a Department of Human Resources.
History: 1998, PL 25-40.
4.0702 Director.
The head of the department is
a Director who shall be responsible for the development and management of the
human resources of the government. He
shall be thoroughly familiar with the principles and practices of public
personnel administration on a merit basis.
History: 1998, PL 25-40.
4.0703 School work program established--Program director.
(a) There is established in the employee
development and training division of the Department of Human Resources a
school-to-work program for the Territory.
The school-to-work program is charged with the responsibility of
developing and implementing a transition program for public school students
grades K-postsecondary levels to prepare such students first in career
awareness, career choice, and eventual gainful employment. Students bound for college abroad and for
advanced technical skills are also encouraged to participate in the
program. The Deputy Director for
employee development and training division shall appoint a staff person to serve
as director of the school-to-work program.
History: 1998, PL 25-40.
4.0704 Program manager--Supportive services.
(a)
A program manager shall be recruited and hired
pursuant to government procedure to manage the school-to-work program for the
Territory. It is the primary duty of the
program manager to facilitate the implementation and operation of the
school-to-work program pursuant to policies, plans, and actions of the council
and program director. The program
manager or his designee must attend council meetings and is responsible for
providing council members with pertinent information concerning matters scheduled
for the council's review.
(b)
Basic support services for the school-to-work
program shall be provided by the employees of development and training division
of the Department of Human Resources and supplemented by the Department of
Education and
History: 1998, PL 25-40.
4.0705 School-to-work council.
There is created the
History: 1998, PL 25-40.
4.0706 Membership--President--Meetings.
(a)
The school-to-work partnership council consists
of thirteen members who are appointed by the Governor to serve terms of three
years each. To maintain perspective of
the council's mission, selection to the council membership should include
individuals familiar with education to employment transition and committed to
the achievement of the program objectives.
For example, dedicated individuals from the following segments of the
Territory should serve in the council:
Legislature, women and youth office, community college, Department of
Education-counseling and special projects divisions, private business sector, churches
and the community at large, chamber of commerce, Department of Commerce,
Department of Human Resources, Department of Public Works and parents and
teachers associations.
(b)
The officers of the council are elected pursuant
to the council's by-laws as approved.
(c)
The council shall hold monthly meetings at a
place and date designated by the program director. Special meetings of the council may be called
as often as may deem necessary by the president or board.
History: 1998, PL 25-40.
4.0707 Functions of the school-to-work program.
(1)
Education reform.
The school-to-work program shall assist the department of education to
carry out periodic assessments of the status of our education system, reviewing
the core academic and vocational curriculum across grades K-14 but especially
at high schools and community college to determine if the level of knowledge
attained by the students can lead to effective job skills and successful
employment or further education and training.
If the program director finds that the standard of knowledge and skills
received by the students received by the students does not provide them with
the type of skills demanded by the job market, the program director shall
promptly advise the school-to-work council of such finding. Accordingly, the program director shall
prepare forthwith and present to the council a comprehensive education reform
plan that will more effectively integrate career planning and employability
skills into curriculum and work-based learning.
The reform plan must assure that all
(2)
Workforce development. The school-to-work program shall develop and
implement a workforce development program that coordinates all the Territory's
education and training. Basically, the
program should serve to link students moving from all levels of education
including the community college to pursue and acquire gainful employment. The program should have a database that can
provide youths who need information and training to improve their skills in
order to find and secure jobs.
(3)
Youth apprenticeship. A youth apprenticeship program shall be
established and administered by the school-to-work program. The program director shall coordinate and
consult with the department of education when developing policies and procedures
for the youth apprenticeship program.
The policies must establish standards that employers desiring to
participate in the youth apprenticeship program must meet.
(4)
Tax credit.
There is allowed a credit against income tax in an amount equal to ten
percent of the qualified investment made by an employer who employs a youth
apprentice in a qualified school-to-work program.
(A)
A "qualified investment" is defined as
money directly spent for wages, workers' compensation insurance, and training
expenses.
(B)
A "youth apprentice" is defined as
someone between the ages of 16 and 21 who is enrolled in a public or private
secondary or postsecondary school.
(5)
Workers compensation. An employer who employs a youth apprentice in
a qualified school-to-work program must provide workers' compensation insurance
coverage for the youth. A youth in a
school related work experience performing services without pay or who is
otherwise not covered by workers' compensation insurance shall be deemed an
employee of the government for purposes of workers' compensation.
(6)
Occupational safety. It shall be the responsibility of the
employer to provide a safe work site and to furnish equipment and gear required
to undertake the functions of the work to be performed by the student. The school-to-work program shall adopt safety
guidelines and safety inspection procedures of facilities where students are
placed. A thorough safety inspection of
each facility must be conducted prior to placing a student with such facility.
(7)
Budget.
The program director shall prepare the annual budget for the
school-to-work program with input from the school-to-work council as part of
the budget submission of the Department of Human Resources. The council shall review the budget proposed
by the program director and make recommendations where appropriate. The school-to-work program shall apply to all
federal grants and aids from which
History: 1998, PL 25-40.
INDEPENDENT PROSECUTOR
4.0802 Preliminary investigation and application for appointment of an
independent prosecutor.
4.0803 Duties of
the division of the court.
(a) Preliminary investigation
with respect to certain covered persons.
The Attorney General shall conduct a preliminary investigation in
accordance with section 4.0802 whenever the Attorney General receives
information sufficient to constitute grounds to investigate whether any person
described in subsection (b) may have violated any Territorial criminal law
other than a violation classified as a Class B or C misdemeanor or an
infraction.
(b) Persons
to whom subsection (a) applies.
The persons referred to in subsection (a) are:
(1) the
Governor and Lieutenant Governor;
(2) any
appointed contract, or career service director, office/agency head, or other
public official;
(3) any
member of the Legislature;
(4) any
Justice Associate Judge or Judge;
(5) any
Assistant Attorney General and any individual working in the Office of the Attorney
General;
(6) any individual who held an office or position described in
paragraphs (1)-(5) for 1 year after leaving the office or position.
(c)
Preliminary investigation with respect to other persons.
When the Attorney General determines that an
investigation or prosecution of a person by the Office of the Attorney General
may result in a personal financial, or political conflict of interest, the
Attorney General may conduct a preliminary investigation of such person in
accordance with section 4.0802 if the Attorney General receives information
sufficient to constitute grounds to investigate whether that person may have
violated Territorial criminal law other than a violation classified as a Class
B or C misdemeanor or an infraction.
(d) Examination
of information to determine need for preliminary investigation.
(1)Factors to be considered. In determining under subsection (a) or (c) or
section 4.0802(c)(2), whether grounds
to investigate exist, the Attorney General shall consider only:
(A) the specificity of the information received; and
(B) the credibility of the source of the information.
(2) Time
period for making determination. The
Attorney General shall determine whether grounds to investigate exist not later
than 30 days after the information is first received. If within that 30-day period the Attorney
General determines that the information is not specific or is not from a
credible source, the Attorney General shall, upon making that determination,
commence a preliminary investigation with respect to that information. If the Attorney General is unable to
determine, within that 30-day period, whether the information is specific and
from a credible source, the Attorney General shall, at the end of that 30-day
period, commence a preliminary investigation with respect to that 30-day
period, commence a preliminary investigation with respect to that information.
(e) Recusal
of Attorney General
(1) When
recusal is required.
(A) If
information received under this chapter involves the Attorney General, the most
senior Assistant Attorney General in the Office of the Attorney General,
assigned as a prosecutor, who is not also recused shall perform the duties
assigned under this chapter to the Attorney General.
(B) If
information received under this chapter involves a person with whom the
Attorney General has a personal or financial relationship, the Attorney General
shall recuse himself or herself by designating the most senior Assistant
Attorney General in the Office of the Attorney General assigned as a
prosecutor, who is not also recused to perform the duties assigned under this
chapter to the Attorney General.
(2)
Requirements for recusal determination.
Before personally making any other determination under this chapter with
respect to information received under this chapter, the Attorney General shall
determine under paragraph (1)(B) whether recusal is necessary. The Attorney General shall set forth this
determination in writing, identify the facts considered by the Attorney General,
and set forth the reasons for the recusal.
The Attorney General shall file this determination with any notification
or application submitted to the division of the court under this chapter with
respect to such information.
History: 2000, PL 26-30.
4.0802 Preliminary
investigation and application for appointment of an independent prosecutor.
(a) Conduct
of Preliminary Investigation.
(1) In
general. A preliminary investigation
conducted under this chapter shall be of such matters as the Attorney General
considers appropriate in order to make a determination, under subsection (b) or
section 4.0807, on whether further investigation is warranted, with respect to
each potential violation, or allegation of a violation, of criminal law. The Attorney General shall make such
determination not later than 90 days after the preliminary investigation is
commenced, except that, in the case of a preliminary investigation commenced
after a legislative request under section 4.0810, the Attorney General shall make
such determination not later than 90 days after the request is received. The Attorney General shall promptly notify
the division of the court specified in section 4.0811(a) of the commencement of
such preliminary investigation and the date of such commencement.
(2) Limited
authority of Attorney General. (A) In
conducting preliminary investigations under this chapter, the Attorney General
shall have no authority to convene plea bargain, grant immunity or issue
subpoenas.
(B)(i) The
Attorney General shall not base a determination under this chapter that
information with respect to a violation of criminal law by a person is not
specific and from a credible source upon a determination that such person
lacked the state of mind required for the violation of criminal law.
(ii) The Attorney General shall
not base a determination under this chapter that there are no reasonable
grounds to believe that further investigation is warranted, upon a
determination that such person lacked the state of mind required for the violation
of criminal law involved, unless there is clear and convincing evidence that
the person lacked such state of mind.
(3) Extension
of time for preliminary investigation.
The Attorney General may apply to the division of the court for a single
extension, for a period of not more than 60 days of the 90-day period referred
to in paragraph (1). The division of the
court may, upon a showing of good cause, grant such extension.
(b)
Determination that further investigation not warranted.
(1) Notification
of division of the court. If the
Attorney General upon completion of a preliminary investigation under this
chapter, determines that there are no reasonable grounds to believe that
further investigation is warranted, the Attorney General shall promptly so
notify the division of the court, and the division of the court shall have no
power to appoint an independent prosecutor with respect to the matters
involved.
(2) Form of
notification. Such notification shall
contain a summary of the information received and a summary of the results of
the preliminary investigation.
(c)
Determination That Further Investigation is Warranted.
(1)
Application for appointment of independent prosecutor. The Attorney General shall apply to the
division of the court for the appointment of an independent prosecutor if:
(A) the
Attorney General upon completion of a preliminary investigation under this
chapter, determines that there are reasonable grounds to believe that further
investigation is warranted; or
(B) the
90-day period referred to in section 4.0805(a)(1), and any extension granted
under subsections (a)(e), have elapsed and the Attorney General has not filed a
notification with the division of the
court under section 4.0807(a). In
determining under this chapter whether reasonable grounds exist to warrant
further investigation, the Attorney General shall comply with the written or
other established policies of the Office of the Attorney General with respect
to the conduct of criminal investigations.
(2) Receipt
of additional information. If, after
submitting a notification under section 4.0807(a), the Attorney General
receives additional information sufficient to constitute grounds to investigate
the matters to which such notification related, the Attorney General shall:
(A) conduct
such additional preliminary investigation as the Attorney General considers
appropriate for a period of not more than 90 days after the date on which such
additional information is received; and
(B) otherwise comply with the provisions of this section with respect
to such additional preliminary investigation to the same extent as any other
preliminary investigation under this section.
(d) Contents of
Application.
Any application for the appointment of an
independent prosecutor under this chapter shall contain sufficient information
to assist the division of the court in selecting an independent prosecutor and
in defining that independent prosecutor’s prosecutorial jurisdiction so that
the independent prosecutor has adequate authority to fully investigate and
prosecute the subject matter and all matters related to that subject matter.
(e) Disclosure of
information.
Except as otherwise provided in this chapter or as
is deemed necessary for law enforcement purposes, no officer or employee of the
Office of the Attorney General or an office of independent prosecutor may,
without leave or the division of the court, disclose to any individual outside
the Office of the Attorney General, or such office of independent prosecutor,
any notification, application, or any other document, materials, or memorandum
supplied to the division of the court under this chapter.
(f)
Limitation on Judicial Review.
The Attorney General’s determination under this
chapter to apply to the division of the court for the appointment of an
independent prosecutor shall not be reviewable in any court.
(g) Legislative request.
(1) By
judiciary committee or members thereof.
The committee on the judiciary of either chamber of the Legislature or
members of either such committee, may request in writing that the Attorney
General apply for the appointment of an independent prosecutor.
(2) Report
by Attorney General pursuant to request.
Not later than 30 days after the receipt of a request under paragraph
(1), the Attorney General shall submit, to the committee making the request, a
report on whether the Attorney General has begun or will begin a preliminary
investigation under this chapter of the matters with respect to which the
request is made, in accordance with subsection (a) or (c) of section 4.0801, as
the case may be. The report shall set
forth the reasons for the Attorney General’s decision regarding such
preliminary investigation as if relates to each of the matters with respect to
which thee legislative request is made.
If there is such a preliminary investigation, the report shall include
the date on which the preliminary investigation began or will begin.
(3) Submission
of information in response to legislative request. At the same time as any notification
application, or any other document, material, or memorandum is supplied to the
division of the court pursuant to this section with respect to a preliminary
investigation of any matter with respect to which a request is made under
paragraph (1), such notification, application, or other document, material or
memorandum shall be supplied to the committee making the request. If no application for the appointment of an
independent prosecutor is made to the division of the court under this section
pursuant to such a preliminary investigation, the Attorney General shall submit
a report to that committee stating the reasons why such application was not
made, addressing each matter with respect to which the legislative request was
made.
(4)
Disclosure of information. Any
report, notification, application, or other document, material, or memorandum
supplied to a committee under this subsection shall not be revealed to any
third party, except that the committee may, either on its own initiative or
upon the request of the Attorney General, make public such portion or portions
of such report, notification, application, document, material, or memorandum as
will not in the committee’s judgment prejudice the rights of any individual.
History: 2000, PL 26-29; 2000, PL 26-30.
4.0803 Duties of the
division of the court.
(a) Reference to division of the
court.
The division of the court to which this chapter
refers is the division established under section 4.0809 of this chapter.
(b) Appointment
and jurisdiction of Independent Prosecutor.
(1)
Authority. Upon receipt of an
application under section 4.0802(c), the division of the court shall appoint an
appropriate independent prosecutor and shall define that independent
prosecutor’s prosecutorial jurisdiction.
(2)
Qualifications of independent prosecutor. The division of the court shall appoint as
independent prosecutor an individual who has appropriate experience and who
will conduct the investigation and any prosecution in a prompt, responsible,
and cost-effective manner. The division
of the court shall seek to appoint as independent prosecutor an individual who
will serve to the extent necessary to complete the investigation and any
prosecution without undue delay.
(3) Scope of
prosecutorial jurisdiction. In defining
the independent prosecutor’s prosecutorial jurisdiction, the division of the
court shall assure that the independent prosecutor has adequate authority to
fully investigate and prosecute the subject matter with respect to which the
Attorney General has requested the appointment of the independent prosecutor,
and all matters related to that subject matter.
Such jurisdiction shall also include the authority to investigate and
prosecute Territorial crimes other than those classified as Class B or C
misdemeanors or infractions, that may arise out of the investigation or
prosecution of the matter with respect to which the Attorney General’s request
was made, including perjury obstruction of justice, destruction of evidence,
and intimidation of witnesses.
(4)
Disclosure of identity and prosecutorial jurisdiction. An independent prosecutor’s identity and
prosecutorial jurisdiction (including any expansion under subsection (c) may
not be made public except upon the request of the Attorney General or upon a
determination of the division of the court that disclosure of the identity and
prosecutorial jurisdiction of such independent prosecutor would be in the best
interests of justice. In any event, the
identity and prosecutorial jurisdiction of such independent prosecutor shall be
made public when any criminal complaint or information is filed pursuant to the
independent prosecutor’s investigation.
(c) Expansion
of jurisdiction.
(1) In
general. The division of the court, upon
the request of the Attorney General, may expand the prosecutorial jurisdiction
of an independent prosecutor, and such expansion, may be in lieu of the
appointment of another independent prosecutor.
(2) Procedure for request by
independent prosecutor.
(A) If the
independent prosecutor discovers or receives information about possible
violation of criminal law by persons as provided in section 4.0801 who are not
covered by the prosecutorial jurisdiction of the independent prosecutor, the
independent prosecutor may submit such information to the Attorney General. The Attorney General shall then conduct a
preliminary investigation of the information in accordance with the provisions
of section 4.0802, except that such preliminary investigation shall not exceed
30 days from the date such information is received. In making the determinations required by
section 4.0802 the Attorney General shall give great weight to any
recommendations of the independent prosecutor.
(B) If the
Attorney General determines, after according great weight to the
recommendations of the independent prosecutor, that there are no reasonable
grounds to believe that further investigation is warranted, the Attorney
General shall promptly so notify the division of the court and the division of
the court shall have no power to expand the jurisdiction of the independent
prosecutor or to appoint another independent prosecutor with respect to the
matters involved.
(C) If:
(i) the
Attorney General determines that there are reasonable grounds to believe that
further investigation is warranted; or
(ii) the
30-day period referred to in subparagraph (A) elapses without a notification to
the division of the court that no further investigation is warranted, the
division of the court shall expand the jurisdiction of the appropriate
independent prosecutor to include the matters involved or shall appoint another
independent prosecutor to investigate such matters.
(d) Return
for further explanation. Upon receipt of
a notification under section 4.0807 or section (b)(d)(2) of this section from
the Attorney General that there are no reasonable grounds to believe that
further investigation is warranted with respect to information received under
this chapter, the division of the court shall have no authority to overrule
this determination but may return the matter to the Attorney General for
further explanation of the reasons for such determination.
(e) Vacancies. If a vacancy in office arises by reason of
the resignation, death, or removal of an independent prosecutor, the division
of the court shall appoint an independent prosecutor to complete the work of
the independent prosecutor whose resignation, death, or removal caused the
vacancy, except that in the case of a vacancy arising by reason of the removal
of an independent prosecutor, the division of the court may appoint an acting
independent prosecutor to serve until any judicial review of such removal is
completed.
(f) Attorneys’
fees.
(1) Award of
fees. Upon the request of an individual
who is the subject of an investigation conducted by an independent prosecutor
pursuant to this chapter, the division of the court may if no criminal
complaint or information is brought against such individual pursuant to that
investigation, award reimbursement for those reasonable attorneys’ fees
incurred by that individual during that investigation which would not have been
incurred but for the requirements of this chapter. The division of the court shall notify the
independent prosecutor who conducted the investigation and the Attorney General
of any request for attorneys’ fees under this subsection.
(2) Evaluation
of fees. The division of the court shall
direct such independent prosecutor and the Attorney General to file a written
evaluation of any request for attorneys’ fees under this subsection,
addressing:
(A) the
sufficiency of the documentation;
(B) the need
or justification for the underlying item;
(C) whether
the underlying item would have been incurred but for the requirements of this
chapter; and
(D) the
reasonableness of the amount of money requested.
(g) Disclosure of information. The division of the court may, subject to
section 4.0804(h)(2), allow the disclosure of any notification, application, or
any other document, material, or memorandum supplied to the division of the
court under this chapter.
(h) Amicus
Curiae Briefs. When presented with
significant legal issues, the division of the court may disclose sufficient
information about the issues to permit the filing of timely amicus curiae
briefs.
History: 2000, PL 26-30.
4.0804 Authority and
duties of an independent prosecutor.
(a) Authorities.
Notwithstanding any other provision of law, an
independent prosecutor appointed under this chapter shall have, with respect to
all matters in such independent prosecutor’s prosecutorial jurisdiction
established under this chapter, full power and independent authority, to
exercise all investigative and prosecutorial functions and powers of the Office
of the Attorney General, the Attorney General, and any other officer or
employee of the Office of the Attorney General except that the Attorney General
shall exercise direction or control as to those matters that specifically
require the Attorney General’s personal action at common law or by
statute. Such investigative and
prosecutorial functions and powers shall include:
(1) conducting
investigations;
(2) participating
in court proceedings and engaging in any litigation, including civil and
criminal matters, that such independent prosecutor considers necessary;
(3) appealing
any decision of a court in any case or proceeding in which such independent
prosecutor participates in an official capacity;
(4) reviewing
all documentary evidence available from any source;
(5) determining
whether to contest the assertion of any testimonial privilege;
(6) making
applications to the court for warrants, subpoenas, or other court orders;
(7) granting
immunity to any witness;
(8) inspecting,
obtaining, or using the original or a copy of any tax return, in accordance
with applicable statutes and regulation, and, for purposes of section 6103 of
the Internal Revenue Code of 1986 and the regulations issued thereunder and the
American Samoa Income Tax Act, exercising the powers vested in the Attorney
General;
(9) initiating
and conducting prosecutions in the High Court of American Samoa in accordance
with the procedures contained in Title 46 A.S.C.A., framing and signing
criminal complaints and indictments, and handling all aspects of any case, in
the name of the American Samoa Government.
(b) Compensation.
(1) In
general. An independent prosecutor appointed
under this chapter shall receive compensation at the level of the Attorney
General.
(2) Travel
expenses. Except as provided in
paragraph (3), an independent prosecutor and persons appointed under subsection
(c) shall be entitled to the payment of travel expenses, per diem and
subsistence expenses in accordance with the regulations and policies of the
government and Treasurer.
(3) Travel to
primary office.
(A) In
general. Should the independent
prosecutor not reside in American Samoa, after 1 year of service under this
chapter, an independent prosecutor and persons appointed under subsection (c)
shall not be entitled to the payment of travel, per diem, or subsistence
expenses for the purpose of commuting to or from the city in which the primary
office of the independent prosecutor or person is located. The 1-year period may be extended for
successive 6-month periods if the independent prosecutor and the division of
the court certify that the payment is in the public interest to carry out the
purposes of this chapter.
(B) Relevant
factors. In making any certification
under this paragraph with respect to travel and subsistence expenses of an
independent prosecutor or person appointed under subsection (c), the
independent prosecutor and the division of the court shall consider, among
other relevant factors:
(i) the cost
to the government of reimbursing such travel and subsistence expenses;
(ii) the
period of time for which the independent prosecutor anticipates that the
activities of the independent prosecutor or person, as the case may be will
continue;
(iii) the
personal and financial burdens on the independent prosecutor or person, as the
case may be, of relocating (should the independent prosecutor or appointed
person not reside in American Samoa) so that travel and subsistence expenses
would not be incurred, and
(iv) the
burdens associated with appointing a new independent prosecutor, or appointing
another person under subsection ©, to replace the individual involved who is
unable or unwilling to so relocate should the independent prosecutor or person
not reside in American Samoa.
(c) Additional
personnel.
(1) For the
purposes of carrying out the duties of an office of independent prosecutor,
such independent prosecutor may appoint, fix the compensation, and assign the
duties of such employees, in accordance and commensurate with government
personnel classification and compensation laws and regulations, as such
independent counsel considers necessary (including investigators, attorneys,
and part-time consultants). Such
employees shall be exempt from competitive service.
(2) Prior to
such appointment, the independent prosecutor shall make a written determination
that such personnel are not available for assignment from the Office of the
Attorney General, the Department of Public Safety or other departments within
the government due to specialized need or conflict of interest .
(d) Assistance
of the Office of the Attorney General.
(1) In
carrying out functions. An independent
prosecutor may request assistance from the Office of the Attorney General in
carrying out the functions of the independent prosecutor, and the Office of the
Attorney General shall provide that assistance, which may include access to any
records, files, or other materials relevant to matters within such independent
prosecutor’s prosecutorial jurisdiction, and the use of the resources and
personnel necessary to perform such independent prosecutor’s duties. At the request of an independent prosecutor,
prosecutors administrative personnel, and other employees of the Office of the
Attorney General may be detailed to the staff of the independent prosecutor.
(2) Payment
of and reports on expenditures of independent prosecutor. The Office of the Attorney General shall pay
all costs relating to the establishment and operation of any office of
independent prosecutor. The Attorney
General shall include within the budge of the Department of Legal Affairs such
sums reasonable estimated to be necessary to support the office of independent
prosecutor. The Attorney General shall
submit to the Legislature, not later than 30 days after the end of each fiscal
year a report on amounts paid during that fiscal year for expenses of
investigations and prosecutions by any independent prosecutor. Each such report shall include a statement of
all payments made for activities of independent prosecutor but may not reveal
the identity or prosecutorial jurisdiction of any independent prosecutor which
has not been disclosed under section 4.0803(b)(4).
(e) Referred
of other matters to an independent prosecutor.
An independent prosecutor may ask the Attorney General or the division
of the court to refer to the independent prosecutor matters related to the
independent prosecutor’s prosecutorial jurisdiction, and the Attorney General
or the division of the court, as the case may be, may refer such matters. If the Attorney General’s own initiative, the
independent prosecutor may accept such referral if the matter relates to the
independent prosecutor’s prosecutorial jurisdiction. If the Attorney General refers any matter to
the independent prosecutor pursuant to the independent prosecutor’s request, or
if the independent prosecutor accepts a referral made by the Attorney General
on the Attorney General’s own initiative, the independent prosecutor shall so
notify the division of the court.
(f) Compliance
with policies of the Office of the Attorney General. An independent prosecutor shall, except to
the extent that to do so would be inconsistent with the purposes of this chapter,
comply with the written or other established policies of the Office of the
Attorney General respecting enforcement of the criminal laws. To determine these policies and policies
under 4.0802 (c)(1)(B), the independent prosecutor shall, except to the extent
that doing so would be inconsistent with the purposes of this chapter, consult
with the Attorney General.
(g) Dismissal
of matters.
The independent prosecutor shall have full authority
to dismiss matters within the independent prosecutor’s prosecutorial
jurisdiction without conducting an investigation or on any subsequent time
before prosecution, if to do so would be consistent with the written or other
established policies of the Office of the Attorney General or the laws of the
Territory with respect to the enforcement of criminal laws.
(h) Reports
by Independent Prosecutor.
(1) Required
reports. An independent prosecutor
shall:
(A) file with
the division of the court, with respect to the 6-month period beginning on the
date of his or her appointment and with respect to each 6-month period
thereafter until the office of that independent prosecutor terminates, a report
which identifies and explains major expenses, and summarizes all other
expenses, incurred by that office during the 6-month period with respect to
which the report is filed, and estimates future expenses of that office; and
(B) before
the termination of the independent prosecutor’s office under section 4.0806(b),
file a final report with the division of the court, setting forth fully and
completely a description of the work of the independent prosecutor, including
the disposition of all cases brought.
(2) Disclosure
of information in reports. The division
of the court may release to the Legislature, the public, or any appropriate person,
such portions of a report made under this subsection as the division of the
court considers appropriate. The
division of the court shall make such orders as re appropriate to protect the
rights of any individual named in such report and to prevent undue interference
with any pending prosecution. The
division of the court may make any portion of a final report filed under
paragraph (1)(B) available to any individual named in such report for the
purposes of receiving within a time limit set by the division of the court any
comments or factual information that such individual may submit. Such comments and factual information, in
whole or in part, may, in the discretion of the division of the court, be
included as an appendix to such final report.
(3) Publication
of reports. At the request of an
independent prosecutor, the Department of Administrative Services shall cause
to be printed any report previously released to the public under paragraph (2). The independent prosecutor shall certify the
number of copies necessary for the public, and the Department of Administrative
Services shall place the cost of the required number to the debit of such
independent prosecutor.
Additional copies shall be made available to the
public through the deposit in the Feleti Barstow Public Library and the
Territorial Office of Archives.
(i)
Each
independent prosecutor appointed under this chapter, and the persons appointed
by that independent prosecutor under subsection, (c) are separate from and
independent of the Office of the Attorney General.
(j) Standards
of conduct applicable to Independent Prosecutor, persons serving in the Office
of an Independent Prosecutor, and their law firms.
(1) Restriction on employment while
independent prosecutor and appointees are serving.
(A) During the
period in which an independent prosecutor is serving under this chapter:
(i) such
independent prosecutor, and
(ii) any
person associated with a firm with which such independent prosecutor is
associated, may not represent in any matter any person involved in any
investigation or prosecution under this chapter.
(B) During
the period in which any person appointed by an independent prosecutor under
subsection (c) is serving in the office of independent prosecutor, such person
may not represent in any matter any person involved in any investigation or
prosecution under this chapter.
(2) Past
employment restrictions on independent prosecutor and appointees.
(A) Each
independent prosecutor and each person appointed by that independent prosecutor
under subsection (c) may not for 3 years following the termination of the
service under this chapter of that independent prosecutor or appointed person,
as the case may be, represent any person in any matter if that individual was
the subject of an investigation or prosecution under this chapter that was
conducted by that independent prosecutor.
(B) Each
independent prosecutor and each person appointed by that independent prosecutor
under subsection (c) may not, for 1 year following the termination of the
service under this chapter of that independent prosecutor or appointed person
as the case may be, represent any person in any matter involving any
investigation or prosecution under this chapter.
(3) One-year
ban on representation by members of firms of independent prosecutor. Any person who is associated with a firm with
which an independent prosecutor is associated or becomes associated after
termination of the service of that independent prosecutor under this chapter
may not, for 1 year following such termination, represent any person in any
matter involving any investigation or prosecution under this chapter.
(4) Definitions.
For purposes of this subsection:
(A) the term
“firm” means a law firm whether organized as a partnership or corporation; and
(B) a person
is “associated” with a firm if that person is an officer, director, partner, or
other member or employee of that firm.
(5) Enforcement. The High Court of American Samoa shall have
authority to enforce compliance with this subsection.
(k) Custody
of Records of an Independent Prosecutor.
(1) Transfer
of records. Upon termination of the
office of an independent prosecutor, that independent prosecutor shall transfer
to the Office of Archives all records which have been created or received by
that office.
(2) Maintenance,
use, and disposal of records. Records
transferred to the Archivist under this chapter shall be maintained, used, and
disposed of in accordance with rules and regulations of the Office of Archives,
but in any event shall be retained for a minimum of five years following their
delivery.
(3) Access to
records.
(A) In
general. Subject to paragraph (4),
access to the records transferred to the Archivist under this chapter shall be
governed by rules and regulations of the Archivist and the Attorney
General. In the event of conflict
between the rules of the Archivist and the Attorney General the rules of the
Attorney General shall prevail.
(B) Access by
Office of the Attorney General. The
Archivist shall, upon written application by the Attorney General, disclose any
such records to the Office of the Attorney General for purposes of an ongoing
law enforcement investigation or court proceeding.
(C) Exception. Notwithstanding any restriction on access
imposed by law, the Archivist and persons employed by the Office of Archives
who are engaged in the performance of normal archival work shall be permitted
access to the records transferred to the Archivist under this chapter.
(4) Records
provided by the Legislature. Records of
an investigation conducted by a committee of the House of Representatives or
the Senate which are provided to an independent prosecutor to assist in an
investigation or prosecution conducted by that independent prosecutor:
(A) shall be
maintained as a separate body of records within the records of the independent
prosecutor; and
(B) shall,
after the records have been transferred to the Archivist under this chapter, be
made available, except as provided in paragraph (3)(B) and (C), in accordance
with the rules governing release of the records of the Chamber of the
Legislature which provided the records to the independent prosecutor. Subparagraph (B) shall not apply to those
records which have been surrendered pursuant to court proceedings.
(l) Cost and
Administrative Support.
(2) Cost
controls.
(A) In
general. An independent prosecutor
shall:
(i) conduct
all activities with due regard for expense;
(ii) authorize
only reasonable and lawful expenditures; and
(iii) promptly
upon taking office, assign to a specific employee the duty of certifying that
expenditures of the independent prosecutor are reasonable and made in
accordance with law.
(B) Liability
for invalid certification. An employee
making a certification under subparagraph (A)(iii) shall be personally liable
for an invalid certification.
(C) Expenditure
of funds. An independent prosecutor
shall comply with the laws and regulations of the government respecting
expenditures of funds, except to the extent that compliance would be
inconsistent with the purposes of this chapter.
(2) Administrative
support. The Treasurer and the Director
of the Office of Planning and Budget shall provide administrative support and
guidance to each independent prosecutor regarding expenditures and cost
controls. No officer or employee of the
Department of Treasury or Office of Planning and Budget shall disclose
information related to an independent prosecutor’s expenditures, personnel, or
administrative acts or arrangements without the authorization of the
independent prosecutor.
(3) Office
space. The Director of the Department of
Administrative Services shall promptly provide appropriate office space for
each independent prosecutor. Such office
space shall be within a government building unless the Director of the
Department of Administrative Services determines that other arrangements would
cost less or that adequate government office space is not available.
History: 2000, PL 26-30.
(1) Legislative
oversight. The appropriate committees of
the Legislature shall have oversight jurisdiction with respect to the official
conduct of any independent prosecutor appointed under this chapter, and such
independent prosecutor shall have the duty to cooperate with the exercise of
such oversight jurisdiction.
(2) Reports
to Legislature. An independent
prosecutor appointed under this chapter shall submit to the Legislature
annually a report on the activities of the independent prosecutor, including a
description of the progress of any investigation or prosecution conducted by
the independent prosecutor. Such report
may omit any matter that in the judgment of the independent prosecutor should
be kept confidential, but shall provide information adequate to justify the
expenditures that the office of the independent prosecutor has made.
(b) Oversight
of Conduct of Attorney General. Within
15 days after receiving an inquiry about a particular case under this chapter,
which is a matter of public knowledge, from a committee of the Legislature with
jurisdiction over this chapter, the Attorney General shall provide the
following information to that committee with respect to that case.
(1) When the
information about the case was received.
(2) Whether a
preliminary investigation is being conducted, and if so, the date it began.
(3) Whether
an application for the appointment of an independent prosecutor or a
notification that further investigation is not warranted has been filed with
the division of the court, and if so, the date of such filing.
(c) Information
Relating to Impeachment. An independent
prosecutor shall advise the House of Representatives of any substantial and
credible information which such independent prosecutor receives, in carrying
out the independent prosecutor’s responsibilities under this chapter, that may
constitute grounds for an impeachment.
Nothing in this chapter or section 4.0810 of this title shall prevent
the Legislature or either Chamber thereof from obtaining information in the
course of an impeachment proceeding.
History: 2000, PL 26-30.
4.0806 Removal of an
independent prosecutor-Termination of office.
(a) Removal,
report on removal.
(1) Grounds
for removal. An independent prosecutor
appointed under this chapter may be removed from office only by the personal
action of the Attorney General and only for good cause, physical or mental
disability (if not prohibited by law protecting persons from discrimination on
the basis of such a disability), or any other condition that substantially
impairs the performance of such independent prosecutor’s duties.
(2) Report to
division of the court and Legislature.
If an independent prosecutor is removed from office, the Attorney
General shall promptly submit to the division of the court and the Committees
on the Judiciary of the Senate and the House of Representatives a report
specifying the facts found and the ultimate grounds for such removal. The committees shall make available to the
public such report, except that each committee may, if necessary to protect the
rights of any individual named in the report or to prevent undue interference
with any pending prosecution postpone or refrain from publishing any or all of
the report. The division of the court
may release any or all of such report in accordance with section 4.0804(h)(2).
(3) Judicial
review of removal. An independent
prosecutor removed from office may obtain judicial review of the removal in a
civil action commenced in the High Court of American Samoa. A member of the division of the court may not
hear or determine any such civil action or any appeal of a decision in any such
civil action. The independent prosecutor
may be reinstated or granted other appropriate relief by order of the court.
(b) Termination
of Office.
(1) Termination
by action of independent prosecutor. An
office of independent prosecutor shall terminate when:
(A) the
independent prosecutor notifies the Attorney General that the investigation of
all matters within the prosecutorial jurisdiction of such independent
prosecutor or accepted by such independent prosecutor under section 4.0804(e),
and any resulting prosecutions, have been completed or so substantially
completed that it would be appropriate for the Office of the Attorney General
to complete such investigations and prosecutions; and
(B) the
independent prosecutor files a final report in compliance with section
4.0804(h)(1)(B).
(2) Termination
by division of the court. The division
of the court, either on its own motion or upon the request of the Attorney
General, may terminate an office of independent prosecutor at any time, on the
ground that the investigation of all matters within the prosecutorial
jurisdiction of such independent prosecutor or accepted by such independent
prosecutor under section 4.0804(c), and any resulting prosecutions, have been
completed or so substantially completed that it would be appropriate for the
Office of the Attorney General to complete such investigations and
prosecutions. At the time of such
termination the independent prosecutor shall file the final report required by
section 4.0804(h)(1)(B). If the Attorney
General has not made a request under this paragraph, the division of the court
shall determine on its own motion whether termination is appropriate under this
paragraph no later than 2 years after the appointment of an independent
prosecutor, at the end of the succeeding 2-year period, and thereafter at the
end of each succeeding 1-year period.
(c) Audits.
(1) On or
before June 30 of each year, an independent prosecutor shall prepare a
statement of expenditures for the 6 months that ended on the immediately
preceding March 31. On or before
December 31 of each year, an independent prosecutor shall prepare a statement
of expenditures for the fiscal year that ended on the immediately preceding
September 30. An independent prosecutor
whose office is terminated prior to the end of the fiscal year shall prepare a
statement of expenditures on or before the date that 90 days after the date on
which the office is terminated.
(2) The
Territorial Auditor shall:
(A) conduct a
financial review of a mid-year statement and a financial audit of a year-end
statement and statement on termination, and
(B) report
the results to the Committees on the Judiciary of the Senate and House of
Representatives not later than 90 days following the submission of each such
statement.
History: 2000, PL 26-30.
4.0807 Relationship with
Office of the Attorney General.
(a) Suspension
of other investigations and proceedings.
Whenever a matter is in the prosecutorial jurisdiction of an independent
prosecutor or has been accepted by an independent prosecutor under section
4.0804(e), the Attorney General, and all other officers and employees of the
Office of the Attorney General shall suspend all investigations and proceedings
regarding such matter, except to the extent required by section 4.0804(d)(1),
and except insofar as such independent prosecutor agrees in writing that such
investigation or proceedings may be continued by the Office of the Attorney
General.
(b) Presentation
as Amicus Curiae Permitted. Nothing in
this chapter shall prevent the Attorney General from making a presentation as
amicus curiae to the court as to issues of law raised by any case or proceeding
in which an independent prosecutor participates in an official capacity or any
appeal of such a case or proceeding, except in the event the Attorney General
is the subject of the case or proceeding.
History: 2000, PL 26-30.
4.0808 Severability.
If any provision of this chapter or the application
thereof to any person or circumstance is held invalid, the remainder of this
chapter and the application of such provision to other persons not similarly
situated or to other circumstances shall not be affected by such invalidation.
History: 2000, PL 26-30.
4.0809 Assignment of
judges to division to appoint independent prosecutor.
(a) Appointing
division. Beginning with the two-year
period commencing on the effective date of this section, three justices,
associate judges or district court judges shall be assigned for each successive
two-year period to a division of the High Court of American Samoa to be the
division of the court for the purpose of appointing independent prosecutors. The Clerk of the High Court shall serve as
the clerk of such division of the court and shall provide such services as are
needed by such division of the court.
(b) Other
judicial assignments. Except as provided
under subsection (e) of this section, assignment to such division of the court
shall not be a bar to other judicial assignments during the term of such
division.
(c) Assignment. The Chief Justice shall designate and assign
three justices, associate judges or District Court judges to such division of
the court. The Chief Justice may assign
himself and/or retired justices and judges to the division.
(d) Vacancies. Any vacancy in such division of the court
shall be filled only for the remainder of the two-year period in which such
vacancy occurs and in the same manner as initial assignments to such division
were made.
(e) Recusal. Except as otherwise provided in this chapter,
no member of such division of the court who participated in a function
conferred on the division under this chapter involving an independent prosecutor
shall be eligible to participate in any judicial proceeding concerning a matter
which involves such independent counsel while such independent prosecutor is
serving in that office of which involves the exercise of such independent
prosecutor’s official duties regardless of whether such independent prosecutor
is still serving in that office.
History: 2000, PL 26-30.
(RESERVED)
Chapter 10
ADMINISTRATIVE
PROCEDURES
Sections:
4.1001 Definitions.
4.1002 Duty
to make rules.
4.1003 Publication
of rules.
4.1004 Notice
of intended action.
4.1005 Hearing.
4.1006 Petitions
for issuance, amendment, or repeal of rules.
4.1007 Statute
of limitations.
4.1008 Filing
requirements.
4.1009 Validity
and effect of rules— Recommendations of Legislature.
4.1010 Emergency
rules.
4.1011 Administrative
manual.
4.1020 Public
inspection rights and requirements.
4.1025 Contested case—Hearing—Notice.
4.1026 Right
to hearing.
4.1027 Rules
of evidence.
4.1028 Effect
to rules of privilege.
4.1029 Official
notice of facts.
4.1030 Findings,
decisions, and orders.
4.1031 Notice of decision or order to parties.
4.1032 Contents
of record.
4.1033 Communications
prohibited and allowed.
4.1034 Separation of functions.
4.1035 Expiration of license sought to be renewed.
4.1036 Prerequisites to revocation, suspension, annulment, or withdrawal
of License.
4.1037 Emergency suspensions of license.
4.1040 Right to judicial review-Other means of
review not limited.
4.1041 Petition-Stay of agency decision.
4.1042 Transmission of record.
4.1043 Review.
4.1044 Reversal or
modification of decision.
4.1001 Definitions.
As
used in this chapter:
(a) “Agency” means each board, commission,
department or officer of the government, other than the legislature or the
courts, authorized by law to make rules or to determine contested cases.
(b) “Contested case” means a proceeding including
but not limited to ratemaking, price fixing and licensing, in which the legal
rights, duties, or privileges of a party are determined.
(c) “License” includes the whole or part of any
agency permit, certificate, approval, registration, charter, or similar form of
permission required by law, but does not include a license required solely for
revenue purposes.
(d) “Licensing” includes the agency process
respecting the grant, denial, renewal, revocation, suspension, annulment,
withdrawal, or amendment of a license.
(e) “Party” means each person or agency named or
admitted as a party, or person seeking and entitled as of right to be admitted
as a party.
(f) “Person” means any individual, partnership,
corporation, association, governmental subdivision, or public or private
organization of any character, other than an agency.
(g) “Rule” means each agency statement of general
applicability that implements, interprets or prescribes law or policy, or
describes the procedure or practical requirements of any agency. The term
includes the amendment or repeal of a prior rule, but does not include
statements concerning only the internal management of an agency and not
affecting private rights or procedures available to the public, or intraagency
memoranda.
History: 1969, PL 11-55.
Case Notes:
An administrative rule adopted pursuant to the rulemaking process in the Administrative Procedure Act has the force and effect of law. A.S.C.A. §§ 1.0201(3), 4.1001-4.1010. Bryant v. Southwest Marine of Samoa, Inc., 23 A.S.R.2d 55 (1992).
4.1002 Duty to make rules.
Each
agency of the government shall:
(1) adopt rules of practice setting forth the
nature and requirements of all formal and informal procedures available,
including a description of all forms and instructions used by the agency;
(2)
adopt rules stating the general course and method of its operations and the
methods whereby the public may obtain information or make submissions or
requests.
Case Notes:
An administrative rule adopted pusuant to the
rulemaking process in the Administrative Procedure Act has the force and effect
of law. A.S.C.A. §§ 1.0201(3),
4.1001-4.1010. Bryant v. Southwest
Marine of Samoa, Inc., 23 A.S.R.2d 55
(1992).
4.1003 Publication
of rules.
The
Secretary of American Samoa shall compile, index, and publish all effective
rules adopted by each agency. Revised or supplemented compilations shall be
published at least once every 2 years. Compilations shall be made available
upon request to agencies and officials of the government free of charge and to
other persons at prices fixed by the Secretary to cover mailing and publication
costs.
History: 1969, PL 11-55.
Case Notes:
An administrative rule adopted pursuant to the rulemaking process in the Administrative Procedure Act has the force and effect of law. A.S.C.A. §§ 1.0201(3), 4.1001-4.1010. Bryant v. Southwest Marine of Samoa, Inc., 23 A.S.R.2d 55 (1992).
4.1004 Notice of intended action.
Prior to the adoption,
amendment, or repeal of any rule, the agency shall give at least 20 days notice
of its intended action. The notice shall include a statement of either the
terms or substance of the intended action or a description of the subjects and
issues involved, and the time when, the place where, and the manner in which
interested persons may present their views thereon. The notice shall be mailed
to all persons who have made timely requests of the agency for advance notice
of its rule-making proceedings and shall be publicized in all news or
broadcasting media operated by the government.
History: 1969, PL 11-55.
Case Notes:
An administrative rule adopted pursuant to the rulemaking process in the Administrative Procedure Act has the force and effect of law. A.S.C.A. §§ 1.0201(3), 4.1001-4.1010. Bryant v. Southwest Marine of Samoa, Inc., 23 A.S.R.2d 55 (1992).
4.1005
Hearing.
Prior
to the adoption, amendment, or repeal of any rule, the agency shall afford all
interested persons reasonable opportunity to submit data, views, and arguments,
orally or in writing. In case of substantive rules, opportunity for oral
hearings shall be granted if requested by 25 persons, by a governmental
subdivision or agency or by an association having not less than 25 members. The
agency shall consider fully all written and oral submissions respecting the proposed
rule.
History: 1969, PL 11-55.
Case Notes:
An administrative rule adopted pursuant to the rulemaking process in the Administrative Procedure Act has the force and effect of law. A.S.C.A. §§ 1.0201(3), 4.1001-4.1010. Bryant v. Southwest Marine of Samoa, Inc., 23 A.S.R.2d 55 (1992).
4.1006
Petitions
for issuance, amendment, or repeal of rules.
Each
agency shall afford any interested person the opportunity to petition for the
issuance, amendment, or repeal of a rule.
History: 1969, PL 11-55.
Case Notes:
An administrative rule adopted pursuant to the rulemaking process in the Administrative Procedure Act has the force and effect of law. A.S.C.A. §§ 1.0201(3), 4.1001-4.1010. Bryant v. Southwest Marine of Samoa, Inc., 23 A.S.R.2d 55 (1992).
4.1007 Statute of limitations.
A
contest of any rule on the ground of noncompliance with the procedural
requirements of 4.1002 and 4.1004 through 4.1010 and 4.1020 must be commenced
within 2 years from the effective date of the rule.
History: 1969, PL 11-55.
Case Notes:
An administrative rule adopted pursuant to the rulemaking process in the Administrative Procedure Act has the force and effect of law. A.S.C.A. §§ 1.0201(3), 4.1001-4.1010. Bryant v. Southwest Marine of Samoa, Inc., 23 A.S.R.2d 55 (1992).
4.1008
Filing
requirements.
Each
agency shall file with the Secretary of American Samoa, the clerk of the House
of. Representatives, and the secretary of the Senate a certified copy of each
rule adopted by it, and of all rules in effect on the effective date of this
chapter.
History: 1969, PL 11-55; 1972, PL 12-38 § 1.
Case Notes:
An administrative rule adopted pursuant to the rulemaking process in the Administrative Procedure Act has the force and effect of law. A.S.C.A. §§ 1.0201(3), 4.1001-4.1010. Bryant v. Southwest Marine of Samoa, Inc., 23 A.S.R.2d 55 (1992).
4.1009 Validity and effect of rules—Recommendations of Legislature.
(a) No rule adopted after the
effective date of
this chapter is valid unless adopted in substantial compliance with 4.1002 and
4.1004 through 41010, and 4.1020.
(b) No agency rule, order or decision is valid or
effective against any person or party, nor may it be invoked by the agency for
any purpose, until it has been made available for public inspection as required
in 4.1020. This provision is not applicable in favor of any person or party who
has actual knowledge of the rule, order or decision.
(c) Each rule adopted after the effective date of
this chapter shall be effective 20 days after filing, except that:
(1) If a later date is required by statute or
specified in the rule, the later date shall be the effective date.
(2) Subject to applicable
constitutional or statutory provisions, an emergency rule adopted pursuant to
4.1010 shall be effective immediately upon filing with the Secretary of
American Samoa, the Clerk of the House of Representatives and the Secretary of
the Senate, or at a stated date less than 20 days thereafter, if the agency
finds that this effective date is necessary because of imminent peril to the
public health, safety, or welfare. The agency’s finding and a brief statement
of the reasons therefor shall be filed with the rule.
(d) The Legislature may by letter or resolution
make appropriate suggestions for changes, amendments, repeals, or additions to
the rules.
History: 1969, PL 11-55; 1972,
PL 12-38 § 1.
4.1010 Emergency rules.
(a) If an agency finds that an imminent peril to
the public health, safety, or welfare requires adoption of a rule upon fewer
than 20 days notice and states in writing its reasons for that finding, it may
proceed without prior notice or hearing, pursuant to subparagraph (2) of 4.1009
(c), or upon any abbreviated notice and hearing that it finds practicable, to
adopt an emergency rule. The rule may be effective for a period not longer than
120 days, and an identical rule may be adopted under sections 4.1004 and
4.1005.
(b) The agency shall take appropriate measures to
make emergency rules known to persons who may be affected by them.
History: 1969, PL 11-55; 1972,
PL 12-38 § 1.
4.1011 Administrative manual.
The
Governor shall cause to be prepared and maintained an administrative manual,
which sets forth the duties, responsibilities, objectives, purposes and
internal operations of each of the executive departments, boards, commissions,
and agencies and instrumentalities. It shall also contain the rules adopted by
the Governor under any law. The Governor shall provide for the distribution of
the manual to the officials who need it.
History: 1977, PL 15-23 § 1.
4.1020 Public inspection
rights and requirements.
(a) Each agency shall make available for public
inspection all rules and all written statements of policy or interpretations
formulated, adopted, or used by the agency in the discharge of its functions,
and all final orders, decisions, and opinions.
(b) The Secretary of
History: 1969, PL 11-55; 1972,
PL 12-38 § 1.
4.1025 Contested
case—Hearing—Notice.
(a) In a contested case, all parties shall be
afforded an opportunity for hearing after reasonable notice.
(b) The notice shall include a statement of the
time, place and nature of the hearing and a short and plain statement of the
matters asserted.
History: 1969, PL 11-55.
Case Notes:
Both the territorial
Administrative Procedure Act and the Department of Public Safety's Standard
Operating Procedure, a statement of internal management not defined as an
administrative rule under the APA, afford a person under investigation the
basic due-process rights of notice of the hearing, including a concise
statement of allegations, and a right to a hearing at which there is an
opportunity to respond and present evidence and argument on all issues involved
and conduct cross-examination. A.S.C.A
§§ 4.1025, 4.1026; SOP §§ 4.1.3, 4.1.4.
Sala v.
4.1026
Right to
hearing.
All
parties shall be afforded the opportunity to respond and present evidence and
argument on all issues involved, and to conduct such cross-examination as is
necessary for a full and true disclosure of the facts.
History: 1969, PL 11-55.
Case Notes:
Both the territorial
Administrative Procedure Act and the Department of Public Safety's Standard
Operating Procedure, a statement of internal management not defined as an
administrative rule under the APA, afford a person under investigation the
basic due-process rights of notice of the hearing, including a concise
statement of allegations, and a right to a hearing at which there is an
opportunity to respond and present evidence and argument on all issues involved
and conduct cross-examination. A.S.C.A
§§ 4.1025, 4.1026; SOP §§ 4.1.3, 4.1.4.
Sala v.
4.1027 Rules of evidence.
Strict
rules of evidence need not be followed, but the receipt of evidence shall be
guided by the rules of evidence applicable in the trial division of the High
Court of American Samoa.
History: 1969, PL 11-55.
4.1028 Effect to rules
of privilege.
Agencies
shall give effect to the rules of privilege recognized by law.
History: 1969, PL 11-55.
4.1029 Official notice
of facts.
Official
notice may be taken of judicially cognizable facts.
History: 1969, PL
11-55.
4.1030 Findings, decisions, and orders.
(a) A final decision or order adverse to a party
in a contested case shall be in writing and stated in the record.
(b) A
final decision shall include findings of fact and conclusions of law.
(c) If
findings of fact are set forth in statutory language, they shall be
accompanied by a concise and explicit statement of the underlying facts
supporting the findings.
(f)
Findings of fact shall be based exclusively on
the evidence and on matters officially noticed. An agency’s experience,
technical competence, and specialized knowledge may be used in the evaluation
and interpretation of the evidence.
History: 1969, PL 11-55.
4.1031 Notice of
decision or order to parties.
All
parties shall be notified, either personally or by mail, of any decision or
order and shall, upon request, be furnished with a copy of the same.
History: 1969, PL 11-55.
4.1032 Contents of
record.
In a
contested case, the record shall include:
(1)
all pleadings, motions, proposed findings, exceptions, objections, briefs, and
memoranda filed by the parties;
(2) a
summary of the evidence received or considered and of matters officially
noticed at any stage of the proceedings;
(3) any intermediate rulings and any decision,
opinion or report by the officer presiding at the hearing;
(4) the final decision or order; and
(5) any other relevant material ordered into the
record by the agency or its hearing officer.
History:
1969, PL 11-55.
4.1033
Communications
prohibited and allowed.
(a)
Unless required for the disposition of ex parte matters authorized by law,
members or employees of an agency, who are assigned to render a decision or to
make findings of fact or conclusions of law in a contested case, may not
communicate, directly or indirectly, with any person or party in connection
with any issue of fact, or with any party or representative of a party in
connection with any issue of law, except upon notice and opportunity for all
parties to participate.
(b)
Except as provided in 4.1034 and subsection (a), an agency member may
communicate with other members of the agency and may have the aid and advice of
any disinterested employee of the agency.
History: 1969, PL
11-55.
4.1034 Separation of
functions.
No
officer, employee, or agent engaged in the performance of any investigative or
prosecuting function for an agency in a contested case may, in that or any
factually related case, participate or advise in any final or recommended
agency decision, except as witness or counsel in proceedings where all parties
have notice and the opportunity to participate.
History: 1969, PL 11-55.
Case Notes:
The Attorney General's
Office may not simultaneously act as both counsel and legal advisor to a
government agency. A.S.C.A. §
4.1034. Leiato v. Personnel Advisory
Board, 21 A.S.R.2d 25.
4.1035 Expiration of license sought to be renewed.
When a
licensee has made timely application for the renewal of a license, the existing
license shall not expire until the application has been finally determined by
the agency, or, in case the application is denied or the terms of the new
license limited, until the last day for seeking review of the agency order.
History: 1969, PL 11-55.
4.1036 Prerequisites to
revocation, suspension, annulment, or withdrawal of license.
No revocation, suspension,
annulment, or withdrawal of any license shall be lawful unless the agency gave
the licensee reasonable notice of facts or conduct which warrant the intended
action and an opportunity to show compliance with all lawful requirements for
the retention of the license.
History: 1969, PL 11-55.
4.1037 Emergency
suspensions of license.
If an
agency finds that the public health safety, or welfare requires emergency
action, and incorporates such a finding in its order, the agency may order a
summary suspension of a license for a period not to exceed 120 days, pending
revocation proceedings or other action.
History: 1969, PL 11-55.
4.1040
Right to
judicial review—Other means of review not limited.
(a) A
person who has exhausted all administrative remedies available within an
agency and who is aggrieved by a final decision in a contested case shall be
entitled to judicial review under this section and 4.1041 through 4.1044.
(b)
This section does not limit the utilization of, or the scope of, judicial
review available under other means of review, redress, relief or trial de novo
provided by law, and judicial review may not be sought under this section and
4.1041 through 4.1044 of any proceeding for which, or by any person for whom,
the law specifically provides other adequate means of judicial review.
(c) A
preliminary, procedural or intermediate agency action or ruling shall be
immediately reviewable only if review of the final agency decision would not
provide an adequate remedy.
History: 1969, PL 11-55.
Case
Notes:
Appeal
under provisions of 4.1040 et seq. From the final decision of the personnel
advisory board permitted. Reed v.
Personnel Advisory Board, ASR (1977)
Employer’s appeal
from decision of Workmen’s Compensation Board awarding benefits to claimant
could not be had under this subchapter where 32.0652 specifically provided for
review of a decision of the board if the decision was not in accordance with
the law. In re Westerlund v. Scanlan, 4
ASR 998 (1975).
Insofar as
territorial statute prescribing final decision by administrative agency as
prerequisite to judicial review simply gave the agency the right to insist on
exhaustion of its internal review procedures, it was waivable by the agency,
but insofar as it incorporated the rule that courts should decide real
controversies it could not be waived.
A.S.C.A. § 4.1040(a). Pago Petroleum Products, Inc, v.
Administrative
agency decision is final, for the limited purpose of giving rise to a
justifiable controversy, even if there were procedural defects in the process
by which it was made, provided that it is meant to reflect the settled position
of the agency and leaves the parties genuinely adverse. A.S.C.A. § 4.1040(a). Pago Petroleum
Products, Inc., v.
Decision by
board of directors of administrative agency to reject bidder's claim of
entitlement to fuel supply contract was final and gave rise to a justifiable
controversy, notwithstanding the absence of a quorum at the board meeting,
where (1) agency's chief executive officer implemented the decision by
canceling the original award and issuing an invitation for new bids, and (2) in
subsequent litigation, agency did not assert its continuing discretion to review
the decision but instead sought a judicial order that the new bidding process
go forward. A.S.C.A. § 4.1040(a). Pago
Petroleum Products, Inc., v.
Administrative
agency decision to issue a new invitation for bids for fuel supply contract was
a final decision rejecting bidder's contention that it had a right to the
contract as a result of being the low bidder in the original bidding
procedure. A.S.C.A. § 4.1040(a). Pago
Petroleum Products, Inc., v.
Whether an
administrative agency decision was lawfully and whether it was final are
separate questions; a decision may be substantively illegal and yet be the real
and settled position of the agency. A.S.C.A. § 4.1040(a). Pago Petroleum Products, Inc., v.
An
interlocutory appeal of an agency action or ruling is available only if review
of the final agency decision would not provide an adequate remedy. A.S.C.A. § 4.1040(c) . Sala v.
Being an extraordinary remedy, a
preliminary injunction is granted only when clearly warranted and may be denied
when administrative remedies have not been exhausted. A.S.C.A. § 4.1040. Le Vaomatua v.
A
preliminary injunction is unwarranted when an environmental organization fails
to plead specific harm to itself or its members and when it did not seek a stop
order from the territorial Development Planning office. A.S.C.A. §§ 4.1040, 24.0505(c). Le Vaomatua v.
4.1041 Petition-Stay of agency decision.
(a) Proceedings for review may be instituted by filing a petition in
the appellate division of the High Court of American Samoa within 30 days after
the issuance of the decision to be reviewed, or if rehearing or reconsideration
is requested, within 30 days after the decision thereon. Copies of the petition
shall be served upon the agency and all parties of record.
(b)
The filing of a petition under this section shall not stay enforcement of the
agency’s decision. The agency may grant, or the court may order, a stay on
appropriate terms.
History: 1969, PL
11-55.
4.1042 Transmission of
record.
Within
30 days after service of the petition, or within further time allowed by the
court, the agency shall transmit to the court the original or a certified copy
of the record of the proceeding under review.
History: 1969, PL
11-55.
4.1043 Review.
(a)
The review shall be confined to the record. Upon request by any party, the
court shall receive briefs and hear oral argument. On motion of any party, the
court may, in its discretion, receive any evidence necessary to supplement
the record.
(b)
The court may not substitute its judgment for that of the agency as to the
weight of the evidence on questions of fact. In reviewing the agency’s
interpretation of the evidence, its factual inferences, and its conclusions of
law, the court shall give appropriate weight to the agencies experience,
technical competence, and specialized knowledge.
History: 1969, PL
11-55.
4.1044 Reversal or
modification of decision.
The
court may reverse or modify the decision of the agency, or remand the case for
further proceedings, if substantial rights of the petitioner have been
prejudiced because the decision of the agency is;
(1) in
violation of applicable constitutional or statutory provisions;
(2) in excess of the statutory authority of the
agency;
(3) made upon unlawful procedure;
(4) affected by other error of law;
(5) clearly erroneous in view of the reliable,
probative, and substantial evidence in the whole record; or
(6) arbitrary, capricious or characterized by
abuse of discretion.
History: 1969, PL 11-55.
Case
Notes:
Court will examine administrative decision to
determine if it is “arbitrary, capricious,
or characterized by abuse of discretion”. Pan Am v. Barnett, ASR (1977).
An agency's head may only
reassign an employee involuntarily with the concurrence of the Director of
Human Resources and with a finding that the reassignment be in the best
interests of the government; failure to follow the regulatory standard is
arbitrary and an error of law. A.S.C.A.
§ 4.1044(6); A.S.A.C. § 4.0804(b).
Leiato v. Personnel Advisory Board, 21 A.S.R.2d 25 (1992).
Sections:
4.1101 Duties.
4.1102 Definitions.
4.1103 Oaths and
acknowledgments.
4.1104 Rejection of offered
instruments.
4.1105 Records to be
public-Inspection.
4.1106 Appeal to High Court.
4.1110 Duties.
4.1111 Records to be provided
by clerk of High Court.
4.1112 Oaths
and acknowledgments.
4.1101 Duties.
(a)
The Territorial Registrar shall have the following duties:
(1) He
shall keep full and true records of all instruments authorized to be
registered, recorded, or filed in his office, provided that the person
offering any instrument for registration, recording or filing shall pay in
advance the fee required by law.
(2) When any instrument is
delivered to him for registration, filing, or recording, he shall endorse
thereon the date and hour of such delivery and shall, as soon as possible,
register, file, or record the same in full, including the endorsement, in the
proper manner in a book kept for that purpose, with an alphabetical index.
(3) He
shall keep a seal of office with which he shall stamp all instruments
registered and all copies of records certified by him.
(4) He
shall be the custodian of the archives of, and register volumes of, the
government, including but not limited to, the registers of native land titles,
land transfers, court grants, miscellaneous, matai titles, native leases, corporations,
and all other related documents and registers of the government.
(5) He
shall be the secretary and a member of the land commission.
(6) He
shall have all of the duties formerly attached to the registrar of titles and
all the duties of the clerk of the High Court and or the registrar of titles as
described in 1.0401 et seq., 4.0325, 4.1101 et seq., 27.1510, 27.1511, Title
30, 37.0101 — 37.0113, 37.0120, and 37.0210.
(b) In
addition to the duties described in subsection (a), the Territorial Registrar
shall have such other duties as the Governor or his authorized representative
may from time to time designate.
History: 1962,
PL7-31, 1968, PL 10-53; 1968, PL 10-48.
Research Guide: For provisions regarding articles of incorporation
being filed with the registrar, see 30.0111 — 30.0115, 30.0202, 30.0301 and
30.0306.
For provisions regarding matai title, powers and
duties, see 1.0401 et seq.
4.1102 Definitions.
“Instrument,”
when used in this chapter, unless the context clearly indicates a different
meaning, includes any grant, certificate of title, conveyance, transfer, assignment,
mortgage, lease, power of attorney, will, exemplification of will, letters
testamentary or of administration, judgment, execution, sequestration,
attachment, or a certified copy of any of the enumerated writings.
History: 1962, PL 7-31.
4.1103 Oaths and
acknowledgments.
The
Territorial Registrar and his authorized deputies may give oaths and take
acknowledgments.
History: 1968, PL
10-53.
4.1104 Rejection of
offered instruments.
The
Territorial Registrar may reject any instrument appearing to be illegal or not
entitled under the law to be registered, filed, or recorded.
History: 1962,
PL7-31; 1968, PL 10-8.
Case Notes:
Under territorial statutes
providing that the registrar should not record any instrument appearing to be
illegal, but that any person aggrieved by any official action of the register
could apply to the court "at any time" for direction or redress, a
lessor would not prevail in an action for eviction based on non-recordation of
a lease where (1) the lease was initially recorded by the registrar's office;
(2) an acting registrar later attempted retroactively to reject the lease,
citing certain alleged illegalities; (3) upon trial of the eviction action,
defendant invoked its right to judicial review of the registrar's action and
the court found that the lease was not illegal and was therefore properly
accepted for recordation. A.S.C.A. §§
4.1104, 4.1106.
4.1105 Records to be
public—Inspection.
All books
of registry, the records contained in them and the indexes of their contents
shall be public records and open to the inspection of the public at the
registration office, in the presence of the territorial registrar or one of
his assistants during office hours.
4.1106 Appeal to High
Court.
The
Territorial Registrar or any person aggrieved by any official action of his
may, at any time, apply to the High Court for direction or redress.
History: 1962, PL
7-31.
Case Notes:
Under territorial statutes providing
that the registrar should not record any instrument appearing to be illegal,
but that any person aggrieved by any official action of the register could
apply to the court "at any time" for direction or redress, a lessor
would not prevail in an action for eviction based on non-recordation of a lease
where (1) the lease was initially recorded by the registrar's office; (2) an
acting registrar later attempted retroactively to reject the lease, citing
certain alleged illegalities; (3) upon trial of the eviction action, defendant
invoked its right to judicial review of the registrar's action and the court
found that the lease was not illegal and was therefore properly accepted for
recordation. A.S.C.A. §§ 4.1104,
4.1106.
Assuming that
deputy territorial registrar had the power to cancel the prior recordation of a
lease had there been something genuinely wrong with it, an aggrieved party
would have the right at any time to apply to the court for direction or
redress, and the aggrieved party could exercise such right by alleging and
proving in an action for eviction that the substantive bases for the
cancellation were without merit.
A.S.C.A. § 4.1106.
4.1110 Duties.
The
Registrar of Vital Statistics shall:
(1) be the custodian of and accurately maintain
registers of all marriages, divorces, births, deaths, and adoptions, and such
other registers as the Governor or his authorized representative may from time
to time designate;
(2) upon request and payment of proper fees,
furnish certified copies of such documents as he may have in his custody; and
(3) issue marriage licenses.
History: 1968, PL 10-53.
4.1111 Records to be
provided by clerk of High Court.
The
Clerk of the High Court shall forward to the Registrar of Vital Statistics
certified copies of all decrees of the court related to divorce, adoption, or
any other matter which directly relates to vital statistics, for the use of the
Registrar of Vital Statistics in the maintenance of accurate records.
History: 1968, PL
10-53.
4.1112 Oaths and
acknowledgments.
The
Registrar of Vital Statistics and his authorized deputies may give oaths and
take acknowledgments.
History: 1968, PL
10-53.
Chapter 12
ARCHIVES
AND RECORDS MANAGEMENT
Sections:
4.1201 Definitions.
4.1202 Office of archives and
records management-Position of archivist created.
4.1203 Archivist-Appointment.
4.1204 Archives identified.
4.1205 Archivist-Duties and responsibilities.
4.1206 Heads of agencies—
Responsibilities.
4.1207
Governor to accept gifts.
4.1208 Penalty.
Reviser’s Comment: Section 1
of PL 17-32 created chapter 12 in Title 4.
4.1201 Definitions.
As
used in this chapter, unless the context otherwise requires, the following
meanings apply:
(1) “Agency” means a department, office, agency,
board, commission, institution, instrumentality, or other organization, in the
executive, legislative, or judicial branch of the government.
(2) “Archives” means those official records or
other items that have been determined in accordance with this chapter to have
sufficient historical or other value to warrant their continued preservation
by the government, and have been deposited or offered for deposit with the
national archives and records service, pending establishment of a government
archives.
(3)
“Archivist” means the archivist of
(4) “National Archives and Records Service” means
the national archives and records service of the General Services
Administration of the government of the
(5) “Public records” as defined by subsection
46.4601(g) includes the definition of archives and records of this chapter.
(6) “Records” means a document, written or printed
book, drawing, map or plan, photograph, microfilm, sound recording, magnetic
media or other documentary materials, regardless of physical form or
characteristic, made or received by an agency of the government in pursuance of
law or in connection with the transaction of public business and preserved or
appropriated to be preserved by that agency or its legitimate successor as
evidence of the organization functions, policies, decisions, procedures,
operations, or other activities of the government or because of the
informational value of data in them. Excluded from this definition are library
and museum materials made or acquired and preserved solely for reference or
exhibit, extra copies of documents preserved only for convenience of reference,
and stocks of publications and of processed documents.
(7) “Records management” means all phases of
management from the creation of records to final disposition, including
transfer to the national archives and records service.
History: 1982, PL 17-32 § 2.
4.1202 Office of Archives and Records
Management—Position of archivist created.
There is established within
the office of the Governor the position of the archivist of American Samoa, who
exercises program responsibility for records management These program
responsibilities include maintenance and disposition of records;
identification of the government; vital records management; management of
records equipment and supplies; and commmunications management under subparagraph
4.1205(1) (G) of this chapter.
History: 1982, PL 17-32 § 3.
4.1203 Archivist—Appointment.
The archivist possesses sufficient technical
knowledge, skill, experience and other managerial qualifications required to
carry out purposes of this chapter. The archivist functions under the program
direction of the Governor.
History: 1982, PL 17-32 § 4.
4.1204 Archives identified.