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Government Employees [Title 7]

Title 7

GOVERNMENT EMPLOYEES

Chapters:

01 Board and Administration

02 Career Service

03 (Reserved)

04 Classification

05 (Reserved)

06 Contract Employees

07 (Reserved)

08 Termination of Employment—Disciplinary Measures

09 (Reserved)

10 Compensation

11 (Reserved)

12 Leaves and Holidays

13 (Reserved)

14 Government Employees' Retirement Fund

15 Deferred Compensation Plan

Chapter 01

BOARD AND ADMINISTRATION

Sections:

7.0101 Created—Membership.

7.0102 Powers and duties.

7.0103 Punishment for perjury or contempt.

7.0104 Administrative appeals and grievances.

7.0110 Director of manpower resources—Duties.

7.0101 Created—Membership.

(a) There is created a Personnel Advisory Board consisting of 7 members appointed by the Governor, one of whom is designated by the Governor as chairman.

(b) The members of the Personnel Advisory Board serve without pay for their duties as members of the Board.

History: 1962, PL 7-22; amd 1981, PL 17-18 § 1.

Research Guide: For provisions regarding the Director of Man-power Resources as Executive Secretary of the Personnel Advisory Board, see 7.0110.

7.0102 Powers and duties.

(a) The primary duties and responsibilities of the Personnel Advisory Board shall be:

• (1) to investigate and make recommendations for improvements to the Governor with regards to the manpower resources requirements, needs and development of the American Samoa Government, and in carrying out such investigations, the Board shall have full power to subpoena and compel the testimony of witnesses;
  
• (2) to develop programs designed to improve effectiveness of government employees' performance and discharge of their duties and responsibilities; and
  
• (3) to investigate personnel problems in the government and report to the Governor their findings and recommendations, if any, with respect to such investigation.
  

(b) The Board shall perform such other duties as are from time to time assigned to it by the Governor.

(c) The Board shall have the power to make such rules as are necessary for the orderly hearing of matters before it.

(d) The Board shall from time to time review rules and regulations promulgated in accordance with this chapter and 4.0335, 7.0110 et seq.

History: 1962, PL 7-22; amd 1998, PL 25-37 § 1.

Case Notes:
Board has no authority under this section to order the hiring or firing of any employee: it is only advisory in nature. Banks v. A.S.G., 4 A.S.R.2d 113 (1987).

Where evidence indicated that decision to terminate probationary employee was made by appropriate executive official with Governor's approval rather than by advisory board, court would not question the decision. A.S.C.A. §§ 7.0102, 7.0206, 7.0211. Banks v. American Samoa Government, 4 A.S.R.2d 113 (1987).

7.0103 Punishment for perjury or contempt.

Any person who commits perjury before or is in contempt of the Personnel Advisory Board shall be punished as though the offense were committed before the High Court of American Samoa.

History: 1962, PL 7-22.

Research Guide: For provisions regarding the High Court's contempt power, see 3.0203.

7.0104 Administrative appeals and grievances.

All administrative appeals and grievances of government employees shall be referred to the Administrative Law Judge for hearing and disposition in accordance with the regulations of the American Samoa Government.

History: 1998, PL 25-37 § 6.

7.0110 Director of Human Resources—Duties.

In addition to any duty assigned by the Governor, the Director of Human Resources shall:

(1) apply and carry out the provisions of this chapter and 7.0201 et seq.;

(2) be executive secretary of the Personnel Advisory Board;

(3) establish and maintain a roster and other records of employees of the government;

(4) make recommendations to and assist the Personnel Advisory Board in developing programs designed to improve employee effectiveness, and to enforce such programs as the board, subject to the approval of the Governor, may promulgate;

(5) assist the Personnel Advisory Board in investigating personnel problems in the government.

History: 1962, PL 7-22; amd 1998, PL 25-37 § 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.A.C. §§ 4.0102, 4.0111(b). Sala v. American Samoa Gov't, 21 A.S.R.2d 14.

Chapter 02

CAREER SERVICE

Sections:

7.0201 Purpose.

7.0202 Definitions.

7.0203 Persons included in career service.

7.0204 Employment standards policy.

7.0205 Qualifications.

7.0206 Procedure for filling vacancies—Examinations—Appointments.

7.0207 Categories of appointments.

7.0208 Restoration of preference eligibles previously in career service.

7.0209 Preference eligibles separated or furloughed from career service.

7.0210 False statements in employment application.

7.0211 Probationary period.

7.0212 Residency requirement

7.0213 Annual physical examinations.

7.0214 Bonding of employees.

7.0201 Purpose.

The general purpose of this chapter is to establish for the government a system of personnel administration which will assure equitable treatment of employees of the government and a merit system based on recognized principles of appointment, promotion, termination, and other aspects of government employment.

History: 1962, PL 7-22; 1963, PL 8-10; 1967, PL 10-30.

7.0202 Definitions.

For the purposes of this chapter:

(a) "Disabled veteran" means an individual who has served on active duty in the armed forces of the United States, has been separated therefrom under honorable conditions, and has established the present existence of a service-connected disability or is receiving compensation, disability retirement benefits, or pension because of a public statute administered by the Veterans' Administration or a military department of the United States.

(b) "Preference eligible" means a U.S. national of American Samoan ancestry who is:

(1) a veteran as defined in subsection (c):

(2) a disabled veteran as defined in subsection (a); or

(3) the unmarried widow of a veteran.

(c) "Veteran" means an individual who has served on active duty in the armed forces of the United States for a period of not less than 180 consecutive days (other than for training), and who has been separated from the armed forces under honorable conditions.

History: 1971, PL 12-27 § 1.

7.0203 Persons included in career service.

The career service includes all employees of the government except contract employees, federal employees, district, county, and village officials, members and employees of the Legislature and judges. Notwithstanding the above, the employees of the Legislative Reference Bureau, except contract employees, are members of the career service.

History: 1962, PL 7-22; amd 1975, PL 14-15 § 1.

Amendments: 1975 Added second sentence.

7.0204 Employment standards policy.

(a) It is the declared policy of the government that all appointments and promotions to positions in the career service of the government shall be made solely on the basis of merit, fitness, and length and quality of previous ser-vice.

(b) Merit and fitness shall, whenever practicable, be ascertained by competitive examinations. In preparing such examinations, or selecting incumbents in the absence of examinations, administrators shall take cognizance of the trend in American Samoa toward a greater degree of self-determination, and the need for training opportunities for citizens of American Samoa in furthering that transition. Whenever possible, therefore, standards for employment will give all due recognition to practical experience in the function and probable aptitude for learning while on the job, rather than relying in the main on formalized education and training.

History: 1962, PL 7-22; 1963, PL 8-10; 1967, PL 10-30.

Case Notes:
ASG regulations which set out those situations in which non-competitive procedures are applicable do not supersede the mandatory statutory requirement relating to the utilization of an applicant supply-file system for the hiring and promotion of government employees. A.S.C.A. §§ 7.0204(b), 7.0205(b), 7.0206; A.S.A.C. § 4.0303(b). Leiato v. Personnel Advisory Board, 21 A.S.R.2d 25 (1992).

7.0205 Qualifications.

(a) Applicants to the career service shall be required to take preemployment physical examinations.

(b) Any person entering the career service shall be a resident of American Samoa and either an American Samoan or an American national at the time he enters the service. If no resident can be found who meets the minimum qualifications for employment established for a particular class of work, nonresidents may be employed.

(c) Except as provided in subsection (d) or elsewhere in this chapter, all persons entering the career service shall meet the minimum requirements for employment established for the class of work for which they apply.

(d) In determining the qualifications of a preference eligible, as defined in section 7.0202, for examination for, appointment in or reinstatement in the career service, the Director of Man-power Resources shall waive:

(1) requirements as to age, height and weight unless the requirement is essential to the performance of the duties of the position; and

(2) physical requirements if, in the opinion of the Director of Manpower Resources, after considering the recommendation of an accredited physician, the preference eligible is physically able to perform efficiently the duties of the position.

(e) The government shall not hire nor continue to employ anyone convicted of a crime involving stealing, embezzlement, or misappropriation of property, which is classified as a felony in American Samoa and or any other country.

History: 1962, PL 7-22; 1967, PL 10-30; 1970, PL 11-98; 1971, PL 12-27 § 2; amd 1976, PL 14-26; amd 1998, PL 25-38 § 1.

Amendments: 1976 Subsection (e): added.

Case Notes:
Section is essentially a preference for permanent residents rather than for ethnic Samoans and does not breach any constitutionally applicable standards of equal protection. Banks v .A.S.G., 4 A.S.R.2d 113(1987).

ASG regulations which set out those situations in which non-competitive procedures are applicable do not supersede the mandatory statutory requirement relating to the utilization of an applicant supply-file system for the hiring and promotion of government employees. A.S.C.A. §§ 7.0204(b), 7.0205(b), 7.0206; A.S.A.C. § 4.0303(b). Leiato v. Personnel Advisory Board, 21 A.S.R.2d 25 (1992).

7.0206 Procedure for filling vacancies— Examinations—Appointments.

(a) The Director of Manpower Resources shall establish the procedure for filling vacancies in the career service on a permanent basis from among eligible candidates for employment.

(b) When practicable, competitive examinations shall be held, resulting in establishment of registers comprising the names of those competitors who have attained eligible ratings arranged according to their numerical rating scores in descending order; provided, that a preference eligible as defined in subsection (a) of 7.0202, who receives a passing grade in a competitive examination given pursuant to this section shall receive 10 additional points above his earned rating; and provided, further, that the names of such preference eligibles shall be entered upon the appropriate registers ahead of others having the same rating; and further provided that a preference eligible as defined in subsection (b) of 7.0202 shall receive 5 additional points.

(c) If no examination is given, applicants for employment shall be subject to an applicant supply file system established and administered by the Director of Manpower Resources.

(d) Upon receipt of an approved request from a department head or other authorized operating official to fill a vacancy in the career service on a permanent basis, the Director of Manpower Resources shall certify to the former for consideration and selection the names of the 5 candidates from the appropriate examination register who have the highest numerical rating scores, which scores, in the case of preference eligibles as that term is defined in section 7.0202, shall include the additional points added pursuant to subsection (b), or, in the absence of such a register, the names of the 5 candidates from an applicant supply file whom the Director of Manpower Resources considers to be best qualified by virtue of experience and/or training. Only those candidates certified in the manner described above are eligible for employment unless an exception is permitted under regulations of the Governor.

(e) In no instance will a government official allow an employee to enter on duty unless he has been assured by the Director of Manpower Resources or a designated member of his staff that the appointment action has been approved.

(f) In selecting a candidate for appointment, any appointing authority who passes over a preference eligible whose name appears on the register or list of candidates from the applicant supply file transmitted to such appointing authority by the Director of Manpower Resources pursuant to subsection (d) and who selects an individual who is not a preference eligible, shall file written reasons therefor with the director of manpower resources. The Director of Manpower Resources shall make such reasons a part of the records of the preference eligibles so passed over. The Director of Manpower Resources may require the submission of more detailed information in support of passing over a preference eligible, shall determine the sufficiency or in-sufficiency of the reasons submitted, and shall send his findings to the appointing authority. The appointing authority shall comply with the findings of the Director of Manpower Resources. The preference eligible or his representative, on request, shall be entitled to a copy of the reasons submitted by the appointing authority and the findings of the Director of Manpower Re-sources.

(g) When 3 or more names of preference eligibles appear on the register or list of candidates from the applicant supply file transmitted to any appointing authority by the Director of Manpower Resources pursuant to subsection (d), the appointing authority may select and appoint only a preference eligible to fill the vacancy under consideration.

History: 1962, PL 7-22; 1967, PL 10-30; amd 1971, PL 12-27 § 4.

Case Notes:
Section apparently violated by "order" of personnel advisory board to hire or fire an employee. Only director of manpower resources and head of agency where vacancy exists are authorized to make such decisions. Banks v. A.S.G., 4 A.S.R.2d 113 (1987).

Where evidence indicated that decision to terminate probationary employee was made by appropriate executive official with Governor's approval rather than by advisory board, court would not question the decision. A.S.C.A. §§ 7.0102, 7.0206, 7.0211. Banks v. American Samoa Government, 4 A.S.R.2d 113 (1987).

ASG regulations which set out those situations in which non-competitive procedures are applicable do not supersede the mandatory statutory requirement relating to the utilization of an applicant supply-file system for the hiring and promotion of government employees. A.S.C.A. §§ 7.0204(b), 7.0205(b), 7.0206; A.S.A.C. § 4.0303(b). Leiato v. Personnel Advisory Board, 21 A.S.R.2d 25 (1992).

7.0207 Categories of appointments.

(a) Appointments shall be in one of the following categories:

(1) Appointment. Appointment without time limitations, to a position in the career service, of any eligible candidate selected from an appropriate examination or applicant supply file certificate as described in section 7.0206:

(2) Excepted Appointment. Appointment without time limitation to a position in the career service as permitted by regulations of the Governor;

(3) Reinstatement. Appointment without time limitation to a position in the career ser-vice of a former career service employee who satisfactorily completed the probationary period described in section 7.0211, and whose re-employment is not prohibited by regulations or laws relating to the reemployment of employees separated for cause or who have abandoned their position;

(4) Temporary Appointment. Appointment not to exceed a specific date within a period not to exceed one calendar year.

(b) Any of the appointment actions described in subsection (a) may be made subject to a when-actually-employed (WAE) provision, restricting payment of compensation to time actually worked. Employees appointed under such a provision, otherwise eligible for leave or other service-credit benefits, shall be accorded such benefits on the basis of time actually worked, provided they are subject to a regular (prearranged) tour of duty when they do work.

(c) Any of the appointment actions described in subsection (a) may be made subject to a part-time (PT) provision restricting employment to a regular (prearranged) tour of duty of less than full time. Employees appointed under such pro-vision, who are otherwise eligible for leave and other service-credit benefits, shall be accorded such benefits on the basis of time actually worked.

(d) Any person convicted of a crime involving stealing, embezzlement, or misappropriation of property, which is classified as a felony in American Samoa, shall not be eligible for any appointment provided for in subsection (a).

History: 1962, PL 7-22; 1967, PL 10-30; 1971, PL 12-27 § 4; amd 1998, PL 25-38 § 2.

7.0208 Restoration of preference eligibles previously in career service.

An individual employed in the career ser-vice, who is ordered to active or reserve duty in the armed forces of the United States, is en-titled within 120 days after his release from duty under honorable conditions, to be restored to the position in the career service held by him when ordered to duty.

History: 1971, PL 12-27 § 5.

7.0209 Preference eligibles separated or furloughed from career service.

A preference eligible who has been separated or furloughed from the career service without delinquency or misconduct, on request, is entitled to have his name placed in the appropriate register or applicant supply file for every position for which his qualifications have been established in the manner specified in section 7.0206.
History: 1971, PL 12-27 § 6.

7.0210 False statements in employment application.

Any person who willfully makes false statements concerning a material matter on any application for employment with the government shall be fined in an amount not to exceed $100, or imprisoned for not more than 6 months, or both.

History: 1962, PL 7-22.

7.0211 Probationary period.

(a) Employees appointed without time limitation in the career service shall serve a probationary period of 1 calendar year from the effective date of such appointment during which period their service may be terminated at any time without a hearing as provided under section 7.0803.

(b) The purpose of the probationary period is to provide an opportunity for the employee to demonstrate whether or not his retention as part of the permanent work force is in the best interests of the government.

(c) When considered appropriate, separation during the probationary period shall be recommended in writing to the Director of Manpower Resources by department heads or other authorized operating officials, giving the reason or reasons for such recommendation.

(d) If the recommendation is followed, the Director of Manpower Resources shall furnish the employee concerned with a written notice advising him that he will be separated on a particular date, and stating the reason or reasons therefor and that he has no hearing rights.

(e) In the case of all probationers, the Director of Manpower Resources shall, 2 months prior to the expiration of the probationary period, request from the appropriate department head or other operating official, a recommendation as to whether the employee should be retained beyond the expiration of his probationary period. Such recommendations shall be in writing. In the event retention is not recommended, the separation notification procedure described in subsection (d) shall be followed.

History: 1962, PL 7-22; 1967, PL 10-30; 1971, PL 12-27 § 7; amd 1973, PL 13-6.

Amendments: 1973 Subsection (f): deleted.

Case Notes:
Subsection (b) gives executive broadest possible discretion in terminating probationary employees. Government worker with no contractual or statutory right to continued employment may be fired for any reason or no reason at all, except where reason itself constitutes a violation of applicable constitutional rights. Banks v. A.S.G., 4 A.S.R.2d 113(1987).