4.0804 Authority and duties of an independent prosecutor.

Cite as [A.S.C.A. § 4.0804 ]

(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 (c), 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) Independence from Office of the Attorney General.

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.