Cabinet obtains legal opinion over N.U.S. investigation

Attorney General, Lemalu Hermann Retzlaff, has advised Prime Minister, Tuilaepa Dr. Sa'ilele Malielegaoi, that the final decision on the future of the suspended Vice Chancellor of the National University of Samoa (N.U.S.), Professor Fui Asofou So’o, is subject to approval from Cabinet.

The legal opinion is contained in a letter signed by the Attorney General dated 5th June 2019 and addressed to the Prime Minister. 

It is in response to a request from Cabinet’s Secretariat seeking legal advice from the Attorney General on the matter.

In April this year, Cabinet suspended Professor Fui, pending the outcome of an internal investigation at the University conducted by the Office of the Ombudsman.

He was among senior officials implicated in the investigation including Deputy Vice Chancellor (Academic and Research), Peseta Desmond Lee Hang, and Deputy Vice Chancellor (Corporate Services), Maugaoali’i Fa’amanu Mualia, who were placed on special leave.

The Ombudsman’s investigation was completed last month and a copy has been presented to Cabinet for their consideration. 

Prime Minister Tuilaepa declined to discuss the findings and the investigation’s recommendations.

Attempts to get a comment from Professor Fui have been unsuccessful.

But in his letter to Prime Minister Tuilaepa, Attorney General Lemalu acknowledged the Ombudsman’s Report and its findings.

“We refer to the matter and the Ombudsman Report dated 24 May 2019 (the ‘Ombudsman’s Report) as well as the letter dated 29 May 2019 from the Cabinet Secretariat seeking legal advice for this matter,” Lemalu writes.

“We understand from the FK (19)14 of the 10 April 2019 and FK (19)15 of 10 May 2019 that the Council seeks to determine whether to terminate the services of the Vice Chancellor of the National University of Samoa (the ‘NUS’, Fui Le’apai Tu’ua Ilalio Asofou So’o.”

The Attorney General also advised Cabinet about the legal steps to be taken.

The Attorney General's letter to the Prime Minister is below.

05 June 2019

Honourable Prime Minister

Office of the Honorable Prime Minster

Afioga e,

LIPOTI SUESUEGA ILE FEESEESEAIGA ILE PULEGA OLE UNIVESITE AOAO SAMOA LE PAPAIGALAGALA

  1. We refer to the above matter and the Ombudsman Report dated 24 May 2019 (the ‘Ombudsman’s Report) as well as the letter dated 29 May 2019 from the Cabinet Secretariat seeking legal advice for this matter.
  2. We understand from the FK (19)14 of the 10 April 2019 and FK (19)15 of 10 May 2019 that the Council seeks to determine whether to terminate the services of the Vice Chancellor of the National University of Samoa (the ‘NUS’, Fui Le’apai Tu’ua Ilalio Asofou So’o.
  3. We advise that the legal steps for a dismissal with a consideration of the report by the Council as per section 10 (3)of the National University Act 2004 (the ‘NUS Act’ where any recommendation then made by the Council is to be submitted to Cabinet as any fiscal decision to dismiss is ultimately subject to the final consideration and approval of the Cabinet. This is pursuant to clause 14.12 of the Vice Chancellor’s contract of May 2018 (the ‘VC’s Contract’)
  4. Section 10(3) of the NUS Act and clause 14.6 of the VC’s Contract sets out the ground for the termination of the contract. While the Ombudsman’s Report set outs various findings in this matter, what remains to be determine is whether any of those finding amounts to a ground for determination under the section 10 (3) of the NUS Act or clause 14.6 of the VC’s Contract.
  5. For ease, section 10(3) of the Nus Act and clause 14.6 of the VC’s Contract are set out in Annexure A to the advice.
  6. Given therefore that the final decision to dismiss lies with the Cabinet after the due process and right of reply by the Vice chancellor is actioned through Council, who are charged with understanding and reviewing the day to day performance of the VC’s duties, it is respectfully recommended that the Cabinet as Executive possession of the Ombudsman Report on hand, to direct as follows:  (a)acknowledge receipt of a copy of the Ombudsman’s Report (as now tabled before the Cabinet): (b) direct the Council to meet under urgency and consider the Ombudsman’s Report under section 10 (3) of the NUS Act and the serious matters in it regarding the current management and operations of NUS; (c) that the Council be directed to report back on a deadline date with recommendations to the Cabinet regarding the VC; (d)andthat the Council be reminded that the final decision lies with and will therefore then be directed by Cabinet.
  7. Where the Cabinet did direct the Council to action the process in paragraph 6 above, this Office would then remind the Council of the procedures to follow as set out below for the information of Cabinet: (a) If the Council finds that the finding of the Ombudsman’s investigation amount to the breach section 10(3) of the NUS Act or clause 14.6 of the VC’s Contract then engage in the following process: (i) The Council to give notice to Mr So’o to inform him that the Council is considering termination of his services and set out in the notice the resons for the termination (e.g. based on the findings in the investigation). Disclose the Ombudsman report to Mr So’o; (ii) In addition, provide in the same letter a timeframe for Mr So’o to respond to the issue of termination and the reasons provided. In addition, include in the said notice a timeframe for him to provide a response. If no response is provided within or by the said timeframe the Council to consider whether to continue with his termination. (iii) If Mr So’o responds, then the Council to consider his response and then make a determination regarding whether to proceed with termination or not. (iv) If the Council still decides to process with termination, provide a Cabinet Paper to Cabinet seeking approval for termination as per clause 14.12 of the VC’s Contract; (v) If Cabinet approved termination, the Council to then then inform the Vice Chancellor regarding the termination. (vi) The Warrants of Dismissal would also be processed via MPMC as per usual.

We trust this assists.

Yours faithfully,

______________

                (Lemalu Hermann P. Retzlaff)

                ATTORNEY GENERAL

                Attch:                    annexure A

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