Chapter 01 - Power Authority
This Ethics Policy and Regulations of the American Samoa Power Authority, hereinafter referred to as “ASPA Ethics Policy”, shall apply to all employees, directors, officers and agents of ASPA. This policy includes full-time, part-time and contract employees, hereinafter referred to as “ASPA Employees”. The ASPA Ethics Policy establishes the responsibilities of all ASPA Employees, directors, officers and agents to exhibit ethical behavior and creates an ASPA Ethics Board to review requests for opinions and complaints.
This ASPA Ethics Policy incorporates by reference and includes all statutory and regulatory protections provided to employees under American Samoa law. This ASPA Ethics Policy shall not deprive any career service employee of the employee’s rights under the law; nor shall this ASPA Ethics Policy deprive any contractual employee of the employee’s rights under contract; nor shall this ASPA Ethics Policy deprive any at-will employee of the employee’s rights under the law.
Additionally, this ASPA Ethics Policy shall not be interpreted or construed to extend the rights specified to career service employees to contractual or at-will employees. This ASPA Ethics Policy shall not be interpreted or construed to extend the rights specified to contractual employees to career service or at-will employees.
All ASPA employees, directors, officers and agents are obligated to ethical behavior, to report possible breaches of ethics to ASPA authorities, and to provide accurate and complete information when requested by the ASPA Ethics Board.
I. FAIR AND EQUAL TREATMENT
ASPA herein declares its adoption of a Fair and Equal Treatment Policy. The ASPA Fair and Equal Treatment Policy prohibits an ASPA employee, director, officer or agent from using his or her position with ASPA to gain favor, advantage, or other preferential treatment for himself or herself.
ASPA Employees, directors, officer or agents may not:
- Seek contracts or employment through his/her ASPA position;
- Use ASPA time, equipment, facilities, titles, personnel resources, or other public resources to promote personal non-ASPA activity;
- Encourage, assist or participate in any activity to provide an advantage to or other preferential treatment to any business or person;
- Engage, assist or participate in any activity to provide an advantage to or other preferential treatment to any business owned a Close Relative or to any person who is a close relative. Close relative is defined under Personal Relationships;
- Engage or participate in a financial or business transaction with a subordinate;
- Engage or participate in a business if such business is directly served by the employee, director, officer or agent in his or her capacity with ASPA;
- Hire, promote, supervise, or otherwise participate in the employment of a close relative, unless the close relative is on a list of eligible ASPA employees.
II. CAMPAIGN ASSISTANCE AND POLITICAL ACTIVITIES
ASPA employees are prohibited from using or allowing others to use ASPA resources, such as time, positions or title, equipment, material, ASPA seal or facilities, for political campaign assistance or political activities. To do so is to give an unwarranted advantage to the candidate or political party benefiting from the activities at ASPA expense.
The prohibitions in this section of the ASPA Ethics Policy apply only to actions or activities: (1) on any ASPA premises; (2) during working hours or anytime the employees, director, officer, or agent is representing ASPA; or (3) the use of any ASPA property, equipment, supplies, or assets.
“Campaign Assistance” means any service or donation of time or anything of value to a candidate for any elected office or for a question, issue or referendum on a ballot, the recall of any elected officer or official or the activities of a political party or a campaign committee. Campaign Assistance includes, but is not limited to: (1) selling, purchasing or distributing campaign fundraiser tickets; (2) conducting political meetings; (3) distributing campaign literature or materials; (4) soliciting campaign contributions, support or assistance; or (5) producing campaign literature or materials.
“Political Activities” include, but are not limited to: (1) being a party or campaign committee member; (2) soliciting members; (3) performing duties; and (4) fund raising and campaigning.
An ASPA employee, director, officer or agent may not perform, undertake or participate in any Political Activities while at work. An ASPA employee, director, officer or agent many not ask, order, command, or force any other ASPA employee, director, officer, agent or any other person to perform, undertake or participate in any Political Activity while at work. An ASPA employee, director, officer or agent may not:
- Coerce, demand, or threaten any ASPA employee, director, officer or agent to make contributions, give assistance to or participate in any Political Activity or to provide any Campaign Assistance;
- Deny employment to or discharge, demote or punish any ASPA employee, director, officer or agent who refuses to make contributions, to give assistance or to participate in any Political Activity or to provide any Campaign Assistance;
- Promise employment benefits to any ASPA employee, director, officer or agent who makes contributions, gives assistance to or participates in any Political Activity or to provide any Campaign Assistance;
- Solicit or receive any political contribution from any ASPA employee, director, officer or agent any ASPA facility at any time;
- Promise employment at ASPA to any individual or company if the individual or company makes contributions, gives assistance to or participates in any Political Activity or provides any Campaign Assistance;
- Threaten, discharge, demote, punish, suspend, or make any negative personnel report concerning an ASPA employee, director, officer, or agent who reports a violation of any of the above prohibited activities or any other violation of ASPA Ethics Policy.
This ASPA Ethics Policy also incorporates by reference and shall include A.S.C.A § 7.0807 and any violation of section 7.0807 shall also be a violation of this ASPA Ethics Policy.
Any violation of section 7.0807 by any ASPA employee, director, officer, or agent who is a government employee or officer shall be reported by ASPA officials to the appropriate government official. Section 7.0807, Prohibited political acts-Penalty, provides:
(a) It is unlawful for any employee of the government to:
(1) Use his official authority or influence as an officer or employee of the government for the purpose of interfering with or affecting the result of an election or a nomination for office;
(2) Directly or indirectly suggest, advise, command, coerce, or attempt to coerce an officer or employee of the government to pay, lend, or contribute anything of value to any person, committee, organization, agency or party for political purposes;
(3) Use property belonging to the government to directly or indirectly benefit or support any political candidate or political campaign.
(b) Any officer or employee of the government who violates this section is subject to suspension or dismissal from his position with the government, and shall be fined as for a class A misdemeanor.
(c) Employees of the government, including contract and career service employees, may actively participate in the management of political campaigns, their own included, if the participation is after the employees’ normal working hours and off the premises of his place of employment, while on annual leave, or while on leave without pay, 7.1201, etc.
III. CONFLICTS OF INTEREST
A conflict of interest occurs when a reasonable person could conclude that the ASPA employee, director, officer or agent’s personal business, or financial interests may interfere with the ASPA employee, director, officer or agent carrying out his/her work, employment, and duty of the public. This ASPA Ethics Policy is designed to prevent ASPA employees, directors, officers or agents who influence or make decisions for ASPA from being involved if the ASPA employee, director, officer or agent’s personal business or financial interests are also involved.
Conflicts of interest occur now and then, especially for ASPA employees, directors, officers and agents who have discretionary authority. When there is a potential conflict of interest, the ASPA employee, director, officer or agent shall provide a full written disclosure of the conflict and remove himself or herself from participating in the matter that raised the conflict.
A. MANDATORY REPORTING OF AND REMOVAL FROM CONFLICT
An ASPA employee, director, officer or agent must immediately disclose any potential conflict of interest to the Management, to the Chairman of the ASPA Ethics Board, or to ASPA’s legal counsel. The Chairman of the ASPA Ethics Board and the Executive Director will discuss methods to resolve the conflict such as removal of the ASPA employee, director, officer or agent from participating in any way in the decision making process and delegation of the issue to another qualified ASPA employee, director, officer or agent.
B. MANDATORY DISCLOSURE OF INTEREST
Financial disclosures are required from each ASPA employee, director or officer who is paid in excess of $30,000.00 a year. These disclosures shall be completed and filed by any qualifying individual entering ASPA service and shall be updated each year no later than June 30.
Only the following disclosure forms are open to the public: (1) the disclosure of a fact of outside employment; and (2) the disclosure of potential conflicts of interest statements. All other disclosure forms are confidential.
ASG and ASPA rules define direct or indirect participation as a situation where an individual is “involved through decision, approval, disapproval, recommendation, preparation of any part of a purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, auditing, or in any other advisory capacity.”
A.S.C.A. §10.0292(e), ASPA Rules Article §8-107.
An ASPA employee, director, officer or agent may not ask for nor accept a gift directly or indirectly from any individual, company or entity if: a reasonable person would think that the gift was made to: (1) influence the ASPA employee, director, officer or agent’s work at ASPA to the benefit of the individual, company or entity giving the gift; or (2) serve as a reward for any discretionary action taken by the ASPA employee, director, officer or agent to benefit the individual, company or entity giving the gift. Generally, small gifts or tokens of appreciation are not considered to violate this ASPA Ethics Policy. Family fa’alavelave gifts are acceptable unless the gift violates any of the above conditions.
V. CONFIDENTIAL INFORMATION
An ASPA employee, director, officer or agent may not use any confidential information for any purpose outside the needs of their employment or duties at ASPA.
ASPA rules define confidential information as “any information which is available to an employee only because of the employee’s status as an employee of ASPA and is not a matter of public knowledge or available to the public or request.” ASPA Rules, Article §8-107(7).
It is a violation of this ASPA Ethics Policy for any ASPA employee, director, officer or agent to disclose or use confidential information for anyone’s benefit.
This rule also applies to disclosure or use of confidential information any time after an individual leaves ASPA employment.
VI. BUSINESS ACTIVITIES AND FINANCIAL INTEREST
- An ASPA employee, director, officer or agent may not engage in any business activity or have any financial interest that is incompatible with the ASPA employee, director, officer or agent performing his or her duties or that may tend to impair or influence the judgment or work activities of the ASPA employee, director, officer or agent.
- Any ASPA employee, director, officer or agent shall not participate in or take any discretionary action directly affecting a business or any other matter, if the ASPA employee, director, officer or agent; (1) has a substantial financial interest in the matter; or (2) is a member of or associated with a firm that renders service directly related to the matter.
- An ASPA employee, director, officer or agent may not acquire a financial interest in a business directly involved in any discretionary action the ASPA employee, director, officer or agent will likely take in the future.
- An ASPA employee, director, officer or agent may not have “an appearance of a conflict of interest”. An appearance of a conflict of interest occurs when the ASPA employee, director, officer or agent has a personal business or financial interest that, under certain circumstances, could result in a conflict of interest.
VII. PERSONAL RELATIONSHIPS
An ASPA employee, director, officer or agent may not participate in any decision making process if it would directly affect someone with whom the ASPA employee, director, officer or agent has a close personal relationship, such as a relative or close friend. “Close Relative” means an individual who: (1) is, either by blood, law or marriage, including half, step, foster and adoptive relations, a spouse, child, cousin, grandchild, grandparent, or sibling of an ASPA employee, director, officer or agent or their spouse; or (2) an individual who principally resides in the same residence as the ASPA employee, director, officer or agent.
VIII. NON-ASPA EMPLOYMENT
An ASPA employee, director, officer or agent, except contract employees, are not prohibited from undertaking outside employment as long as such employment does not create any real or appearance of a conflict of interest, does not adversely affect their work and responsibilities to ASPA, and so long as the employee does not act for on the behalf of anyone against the interest of ASPA.
IX. EMPLOYMENT FOLLOWING TERMINATION OF EMPLOYMENT WITH ASPA
An ASPA employee, director, officer or agent may not disclose confidential information obtained while working for ASPA under circumstances or for any purpose unless compelled to do so by law.
An ASPA employee, director, officer or agent may not receive payment from a private interest for one year after the termination of employment with ASPA where (1) such employment by a private interest involves ASPA projects in which the employee participated or was given access to Confidential Information while at ASPA; or where (2) such employment by a private interest includes appearing on behalf of or assisting the private interest before any ASPA agency on a matter in which the employee was directly involved or which was under consideration by the ASPA employee, director, officer or agent during the course and scope of employment at ASPA. The ASPA employee, director, officer or agent may receive payment only if the employee was not involved in the matter.
“Confidential Information” is defined above in this ASPA Ethics Policy. “Appear” means to have any oral or written communication with the ASPA agency. “Assist” means aiding another to produce the work product that goes before the ASPA agency; however, to assist does not require the individual to personally “Appear” before the ASPA agency.
The purpose of the restrictions is to prevent the disclosure of confidential information and limit the influence of former ASPA employees, directors, officer or agents when such individual takes any action that may result in a personal benefit to the former ASPA employee, director, officer or agent following termination of employment with ASPA.
X. PENALTIES AND DISCIPLINARY ACTIONS FOR VIOLATIONS
Any ASPA employee, director, officer or agent violating this ASPA Ethics Policy may be subject to reprimand, probation, demotion, suspension, or discharge, depending on the seriousness of the violation. Any such action against a career service employee shall comply with the requirements of American Samoa laws and regulations governing career service employees. Any such action against a contract employee shall comply with the provisions of the contract and American Samoa laws and regulations governing contract employees. Any such action against an at-will employee shall comply with the provisions of American Samoa laws and regulations governing at-will employees.
In addition, any contract that was entered into as a result of any violation of this ASPA Ethics Policy may be voided by ASPA. Any benefit provided by the ASPA employee, director, officer or agent may be recovered from the ASPA employee, director, officer or agent that violated this ASPA Ethics Policy. Any compensation, gift, or benefit received in violation of this ASPA Ethics Policy may be recovered from the violator.
XI. WHISTLE-BLOWER POLICY
Any ASPA employee, director, officer or agent or member of the public who submits an ethics or improper activity complaint shall not be retaliated against. Any ASPA employee, director, officer or agent who is found retaliating against any individual or company that has made a complaint shall be subject to reprimand, suspension, demotion, or termination. No ASPA employee, director, officer or agent shall restrict or censure another individual or company for speaking to a member of the ASPA Ethics Board, an ASPA Member of the Board of Directors or ASPA Management regarding potential ethics or improper activities issues or complaints. Any action against an ASPA employee, director, officer or agent for a violation of this provision shall be governed by the Penalties and Disciplinary Actions for Violations provision of this ASPA Ethics Policy.
XII. THE ASPA ETHICS BOARD
The ASPA Ethics Board shall be constituted to hear and to make decision on any potential ethics violations. The Ethics Board shall consist of a minimum of five members consisting of the Chairman of the ASPA Board of Directors and two other members of the Board of Directors appointed by the Chairman to hear a request for an ethics determination or case; the Executive Director; and a member from the Community appointed by the Chairman of the Board. If there is a conflict of interest with any member of the ASPA Ethics Board, the Chairman of the ASPA Board of Directors shall appoint replacement members.
The ASG desires that the business of generation, transmission, and distribution and sale of electric power within the territory of American Samoa be conducted in accordance with sound business and utility practices, that the rates and charges for that service be just reasonable and equitable to consumers and not unduly discriminatory, that service be reliable, that energy be conserved and facilities and resources efficiently used, and that the needs of the people of American Samoa for electric power be provided for in a timely fashion.
The executive order embodied in Rule 12-81 and codified in this chapter is issued under the authority of Section 6 of Article IV of the Revised Constitution of American Samoa and 4.0303(a) A.S.C.A.
There is established a governmental agency within the executive branch of the ASG known as the American Samoa power authority.
The American Samoa power authority:
(1) may make contracts, as authorized in this chapter;
(2) may adopt, amend, and repeal bylaws;
(3) may purchase or lease and hold personal property it considers necessary or convenient in the transaction of its business, and may dispose of personal property held by it;
(4) has the power in the name of the ASG to purchase, lease, or sell real estate, and to accept title to that real estate in the name of the government, to accomplish the purposes of this chapter;
(5) shall make all arrangements for the generation, purchase, transmission, distribution, and sale or other disposition of electric energy generated by facilities of the authority or purchased by the authority within the territory of American Samoa;
(6) is delegated the Governor’s authority to develop and publish tariffs and schedules of rates, charges, and services and other rules for providing electric energy in accordance with the Administrative Procedures Act, 4.1001 A.S.C.A., et seq.; these rates and charges carry into effect, as near as may be, the standards prescribed for ratemaking in PL 95-617, the Public Utility Regulatory Policies Act, effective 9 Nov 78, 16 USC 2611 et seq.;
(7) may contract for the procurement of supplies, equipment, materials, personal services other than by employees, and construction with any public or private entity upon such terms and conditions as it finds necessary to the full and convenient exercise of its purposes and powers, subject to all applicable laws and rules; the authority shall receive and account for its inventory of materials, supplies and equipment; and
(8) may do other things needful and necessary to the full and convenient exercise of the above powers, including but not limited to the construction of facilities on property owned by the government.
(a) The authority is governed by a board of 5 directors appointed by the Governor. At least 2 of the directors shall be experienced in the management of electric utilities, at least 1 shall have a financial background, and at least 1 shall have a legal background. No fewer than 2 directors shall be from outside American Samoa.
(b) The first director appointed is appointed to a term expiring on 30 Jun 82. The second director is appointed to a term expiring on 30 Jun 83. The third director is appointed to a term expiring on 30 Jun 84. The fourth and fifth directors are appointed to terms expiring on 30 Jun
85. All subsequent appointments are for 4-year terms, or for the unexpired portion of any term. Incumbents may continue to serve after the expiration of a term until a successor is appointed. The Governor designates the chairman annually from among the membership of the board of directors, and the board selects its vice chairman.
(c) The board of directors shall meet at least 4 times per year. Three directors, at least 1 of whom must have experience in the management of electric utilities and 1 of whom must be from outside of American Samoa, constitute a quorum.
(d) Compensation is at a rate of $5,000 per year for directors and $6,000 per year for the chairman. Travel, lodging, and meal expenses will be provided for outside directors.
All powers vested in the authority are exercised by the board of directors. In carrying out this function, the board shall also:
(1) elect at its first meeting a vice chairman, who shall preside at all meetings in the absence of the chairman, and other officers as it deems desirable from among its members, and elect such officers annually thereafter at its first meeting in October;
(2) appoint and prescribe the compensation for the executive director, who is the chief executive officer of the authority and exercises all executive functions, and the business and finance manager, operations manager, and plant managers, who perform duties assigned by the executive director, subject to all applicable laws and rules, this chapter, the bylaws of the authority, and directions of the board;
(3) develop policies and programs for the administration, management and operation of the authority;
(4) approve the annual budget of the authority;
(5) review monthly the operating statement of the authority for the previous month, and such other financial reports as it deems necessary;
(6) submit monthly operating statements to the governor not later than the twentieth working day after the end of the previous month, and such other financial statements as he directs from time to time; and
(7) exercise all other powers not inconsistent with applicable laws and rules and this chapter which are reasonably necessary to the administration, management, and operation of the authority and the board.
All officers and employees of the authority other than the executive director, business and finance manager, operations manager, and plant managers are appointed and compensated in accordance with the requirements of the government employee laws of the ASG, 7.0101 A.S.C.A., et seq.
(a) At a date fixed by the board of directors, the ASG shall transfer to the authority the right to operate all items of property, including construction in progress, equi6rnent and machinery used in connection with the then existing electric utility operation of the government. Property jointly, used for electric utility and governmental nonutility functions shall be equitably allocated between the government and the authority, provided that the allocation assures the continuing efficient functioning of the electrical generation, transmission, and distribution functions of the government. In the event of dispute, the allocation is determined by the Governor.
(b) The property accounts for the authority are valued for ratemaking purposes at thc depreciated acquisition cost of the property as of the date of transfer, and shall bc included in the rate base of thc authority. Future capital contributions to the authority from the government shall be by separate authorization and appropriation.
(c) Advances made for the operations of the authority from the general fund of the government shall be treated as loans and riot as part of the permanent capital. Such loans shall be repaid to the government at rates of interest specified at the time the loans are made.
The authority shall assume responsibility for thc accounting and financial management of the electric utility, and shall administer or contract with the government for the administration of all accounting systems, including general ledger, fixed assets, accounts receivable, accounts payable, payroll, and cash. It shall establish proper internal accounting controls and procedures, and it shall prepare an annual budget as a part of the Governor’s budget process.
(a) The authority shall employ a firm of independent certified public accountants with electric utility experience to examine and report upon the, status of financial records and accounts, and may renew that employment annually. Copies of those reports shall be furnished to the Governor and the Legislature.
(b) The authority may make intergovernmental or contractual arrangements for expert consultants to advise and consult with it on all matters related to the operations of the authority including ratemaking, system design, planning, budgeting, and legal matters.
(c) The authority shall provide an annual report for each fiscal year to the Governor, the Legislature, and the people of American Samoa, not later than 31 Dec.
All rates, charges, and classifications of the authority in effect during the transfer of property and facilities, and management thereof, to its control and jurisdiction arc considered to properly adopted and continue in effect until duly changed.