Chapter 21 - American Samoa College Research Foundation

Chapter 21 - American Samoa College Research Foundation

16.2101 American Samoa College Research Foundation established.

There is established the American Samoa College Research Foundation. The Foundation shall be a non-profit, tax exempt public corporation having the purpose of supporting the American Samoa Community College in accordance with this chapter. The Foundation shall have neither members nor stock. This chapter is the charter of the Foundation.

16.2102 Research Foundation—Objective and functions.

The functions of the Foundation are to:

(a) Promote all educational, scientific, literary, Samoan cultural and humanitarian pursuits by encouraging, initiating, aiding, supplementing, developing and implementing educational programs which contribute to the attainment of the goals and objectives of the College.

(b) Enter into and administer grant contracts or agreements with federal, territorial and international governmental agencies, and other relevant agencies, which will enable the research foundation to perform the functions stated in subsection (a).

(c) Receive and administer funds from grants, contracts, endowments, individuals, gifts or bequests of property and to prudently invest such in a manner that will promote maximum financial growth.

(d) Serve as trustee or beneficiary under terms of gifts, endowments, indentures or wills.

(e) Apply for, and obtain, receive, hold, and dispose of copyrights, patent rights, licenses, assignments of inventions, discoveries, processes and other property.

(f) Conduct research, studies, investigations, experiments and tests in all fields of study.

(g) Coordinate and correlate all other activities of the college, both administrative and fiscal, as are delegated to the Foundation from the Board of Higher Education.

(h) Establish, maintain, or assist in the establishment and maintenance of scholarships, professorships, sabbatical leaves and staff positions at the college.

(i) Prepare, print and publish manuscripts, research articles, reports, and documents of similar nature.

16.2103 Foundation--Corporate powers.

The corporate powers of the Foundation shall be as follows:

(a) The Foundation shall begin its corporate existence upon the issuance of a certificate of incorporation by the Treasurer after approval by the Governor.

(b) The principal office of the Foundation shall be located on the island of Tutuila, American Samoa.

(c) The Foundation is authorized to engage in and carry out the functions set forth in section 16.2102.

(d) In performing the functions authorized in subsection (c), the Foundation shall have and exercise all lawful powers normally exercised by eleemosynary corporations under the laws of American Samoa not inconsistent with the provisions of this chapter, including but not limited to the following:

(1) adopt, alter and use a corporate seal;

(2) adopt, amend and repeal bylaws governing the conduct of its business and exercise of its powers;

(3) sue and be sued in its corporate name;

(4) acquire in any lawful manner, real, personal, or mixed property, either tangible or intangible, to hold, maintain, use and operate such property, and to sell, lease, or otherwise dispose of such property.

(e) The bylaws shall provide for the management of the business of the Foundation, the organization, meetings, and procedures of the Board, the duties of the officers of the Foundation the officers required to furnish bonds and the amounts thereof, the form of the seal of the Foundation and the preparation and submission of required reports. Bylaws may not be adopted, amended or repealed except after one week’s written notice to each trustee.

16.2104 Board of Trustees.

(a) The affairs and corporate powers of the Foundation shall be managed and exercised by a Board of Trustees.

(b) There shall be 11 members of the Board, nine whom shall be voting members and two of whom shall be non-voting ex-officio members. The voting members shall be comprised of 1 paramount chief or other traditional community leader, 1 member of the Board of Higher Education other than the chairperson, 1 member of the college administrative staff other than the President, 2 members of the college faculty, 3 members of the general public, and 1 member of the college student government association. The non-voting ex-officio members shall be the President of the college, who shall be the Chairperson of the Board, and Chairperson of the Board of Higher Eucation.

(c) The first Board shall be chosen by the 2 ex-officio members in compliance with representative capacities set forth in subsection (b) and serve terms of 18 months from the issuance of the certificate of incorporation of the Foundation.

(d) Other than the student, college administrative staff and college faculty members, succeeding Boards shall be elected by the incumbent members from nominations by the general public and serve terms of 1 year. Nominations shall be solicited from the general public no later than 90 days and the election shall be held no later than 30 days before the end of the term of office of the current Board. Elections shall be by secret ballot requiring two-thirds majority to win.

(e) The student member shall be elected by the members of the student government association. The college faculty members shall be elected by the college faculty. The college administrative staff member shall be appointed by the college president.

(f) Vacancies in the Board by reason of resignation, death or other cause shall be filled for the remainder of the term of office by appointment of the Chairperson; provided that the appointment fulfills the membership category requirement of the vacancy.

(g) The initial meeting of the Board shall be convened by the Chairperson at which time they shall elect a vice-chairperson, secretary, and treasurer.

(h) Five voting members of the Board shall constitute a quorum and the concurrence of a majority of the members present shall be necessary for the validity of its official actions.

(i) The Chairperson shall be the agent of the Foundations upon whom any process, notice or demand required or permitted by law to be served upon the Foundation may be served. In the absence of the Chairperson, any other member of the Board shall be the agent for receiving service of process, notice or demand.

16.2105 Board--Powers and duties.

(a) The Board shall have the following powers and duties:

(1) serve as Trustees of the Foundation;

(2) enter into and be responsible for the performance of local, territorial, federal and international contracts and grants;

(3) sell, lease, rent, hold, maintain, use and operate any property held by the Foundation in accordance with applicable law;

(4) coordinate programs with the Community College, government and any other relevant agency;

(5) stimulate and promote cooperative educational projects and activities;

(6) establish, maintain, or assist in the establishment and maintenance of scholarships, professorships and sabbatical leaves;

(7) be available for monthly Board meetings:

(8) refrain from political activities or pressures when dealing with Foundation business; and

(9) do all acts reasonably necessary to carry out the functions of the foundation.

(b) The Board may establish standing or ad hoc committees to assist in carrying out its powers and duties.

16.2106 Personnel—Duties.

(a) The Board shall appoint an Executive Director of the Foundation. The Executive Director shall be in charge of the administration of the detailed affairs of the Foundation. He shall keep all books, records, files, and accounts of the Foundation. He shall prepare periodic reports relative to the operations of the Foundation and an annual report at the close of each fiscal year reflecting the results of the financial operations of the Foundation and embodying all important financial and statistical data pertinent to its operation.

(b) Subject to the approval of the Board, the Executive Director may employ an assistant director and such clerical and other staff as shall be necessary for the proper administration of the Foundation. Subject to the approval of the Board, the Executive Director may also engage legal, accounting or other professional services to assist in the affairs of the Foundation.

(c) The Executive Director, assistant director and full-time clerical and other staff are employees of the government, under the direction of the Board, not career service employees. Their paychecks are to be issued by the government, and the Board will promptly reimburse the government for all such direct expenses.

(d) Subject to Board approval, the Chairperson will appoint the research and development administrator of the college to serve as the liaison between the college and the Foundation. The research and development administrator will have the primary responsibility of establishing regional, national and international linkages, securing funding sources and grants or contracts and will report directly to the Board Chairperson. This person will not be a member of the Board but will serve as the educational grants consultant to the Board. This position is a college administrative position but will be located in the Foundation office and serve as part of the Foundation administrative team.

16.2107 Investment of funds.

(a) The Board has full power and authority to direct the investment and reinvestment of the fund of the Foundation without distinction between principal and income, in property (defined in (b) below) it considers advisable. The Board may invest and reinvest the fund in property in which a prudent man familiar with those matters and using care, skill, prudence, and diligence would invest in the conduct of an enterprise of like character and with like aims, insuring that the investments of the fund are diversified so as to minimize the risk of large losses unless to do so would clearly not be prudent. The power to manage investments includes, but is not limited to, the power to hold, purchase, sell, convey, assign, transfer, dispose of, lease, subdivide, or partition any assets held or proceeds thereof, to execute or cause to be executed relevant documents: to enter into protective agreements, execute proxies, and grant consent, and to do all other things necessary or appropriate to its position as an owner or creditor.

(b) “Property” means and includes real, personal, and mixed property of any and every kind and nature, including but not limited to, bonds, preferred or common stocks, mortgages, interests in any kind of investment trust or common trust fund, notes, leases, oil or gas royalties, or other evidence of rights, interests or obligations, secured or unsecured, and whether or not they are of a wasting asset nature.

(c) All proceeds and income from investments, of whatever nature, must be credited to the account of the Foundation. Transactions in marketable securities are carried out at prevailing market prices.

(d) Investments may be held in bearer form, or may be registered either in the name of the Fund or the nominee of the custodian.

(e) Due bills may be accepted from brokers against payment for securities purchased, pending delivery within a reasonable period of time of certificates representing the investments.

(f) Investments may not be made if, after the investment, the Foundation would own:

(1) any combination of obligations of any one political subdivision, corporation or other single issuing entity in excess of five percent of Foundation assets at cost. This paragraph does not apply to general obligations of the United States or the Dominion of Canada, or of the government; or

(2) obligations of the Dominion of Canada, together with its political subdivisions and corporations organized under its law or the law of its provinces in excess of 10 percent of Foundation assets at cost: or

(3) obligations or other investments issued or guaranteed by the government in excess of 10 percent of Foundation assets at cost; provided, however, that this limitation does not apply to the obligations or other investments that are unconditionally guaranteed as to principal and interest by, or supported by lease assignment from, another entity whose principal business is outside of American Samoa.

(g) The Board may engage one or more financial institutions as custodians to assume responsibility for the physical possession of Foundation investment assets or evidences of investment assets. The custodian submits reports, accounting, and other information in a form and at such time as requested by the Board. All costs incurred for custodial services are paid by the Foundation. The custodian holds all investment assets for the account of the Foundation and acts only upon instructions of the Board. Custodians may not be engaged unless they:

(1) have been continuously engaged in rendering trust investment services for a period of 10 or more years;

(2) are organized under the laws of the United States, a State, or a Territory; and

(3) are custodians for not less than 20 corporate, municipal or governmental trust funds with total assets of not less than $30,000,000.

(h) In order to secure expert advice and counsel, the Board may engage an investment agent or a firm or corporation which is an investment counselor as qualified by this subsection. The custodian may be engaged as the investment agent. All costs incurred in this connection are paid by the Foundation. Firms or corporations may not be eligible for employment as investment agent which acts as principal for its own account or as broker for a client other than the Foundation in connection with the sale of any security to or the purchase of any security from the Foundation. Investment agents may not be engaged unless:

(1) the principal business of the firm or corporation selected by the Board consists of rendering investment supervisory services: i.e., the giving of continuing advice concerning investment of funds on the basis of the individual needs of each client; and

(2) the principal control of the firm or corporation rests with individuals who are actively engaged in the business; and

(3) the person, firm, or corporation is registered as an investment advisor under the United States law;

(4) the contract between the board and the investment agent is of no specific duration and is voidable at any time by either party; and

(5) the person, firm, or corporation certifies, in writing, to the Board, that the assets under its direct investment supervision are in excess of $30,000,000. The Board establishes and may from time to time change operating arrangements with the investment agent in order to facilitate efficient management and timely investment action. Investment may not be made unless in the opinion of the investment agent it is an appropriate investment for the Foundation and is an authorized investment, or in the absence of that opinion, unless preceded by a resolution of the Board directing the investment.

16.2108 Conflicts of interests—Prohibited acts.

A member or an employee of the Board may not have any direct or indirect interest in the income, gains or profits on any investment made by the Board, or receive any pay or emolument for services in connection with any investment made by the Board. A member or an employee of the Board or an agent engaged by the Board may not become an endorser or surety or in any manner an obligor of investment made by the Foundation or for money loaned by or borrowed from the Foundation nor may the members, employees, or agents be held liable for actions taken in good faith and in performance of their duties.

16.2109 Existence for public education benefit--Tax exempt status--Liability for obligations.

The Foundation exists and operates solely for the benefit of public education and is exempt from any taxes or assessments on any of its property, operations, or activities. The Foundation is liable for its debts and obligations. The government is not responsible for any such debts or obligations except in such cases where federal program regulations require provisional support by a government agency or the government itself.

16.2110 Accounting and budget.

The Foundation shall have full responsibility for the accounting and financial management of the Foundation, 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 for American Samoa Government allocated funds as a part of the Governor’s budget process.

16.2111 Independent audit reports—Annual reports.

(a) The Foundation shall employ a firm of independent certified public accounts, subject to the approval of the Chairperson, to examine and report upon the status of financial records and accounts. This examination shall culminate in an annual audit of all grants, investments, operational funds, and any other necessary standards. The full Board shall serve as the Foundation’s audit review committee and shall meet with the auditors. Copies of the audit reports shall be furnished to the Governor, the Legislature, the Board, the College President, and made available to the public. The employment of the independent certified public accounting firm may be renewed annually.

(b) The government shall have the right through the Territorial Audit Office to examine the affairs of the foundation at reasonable intervals to insure that the Foundation is operating its affairs on a sound businesslike basis.

(c) The Foundation shall provide an annual report for each fiscal year to the President of the Community College, Governor, the Legislature, and the people of American Samoa, not later than December 31.

16.2112 Malfeasance of Director.

Any director who, under color of his office, violates any law or knowingly or negligently permits any officer, agent, or employee of the Foundation to violate any law, or any provision of the Foundation’s charter or bylaws, shall be subject to removal from the Board by petition to the High Court of American Samoa. If the court finds that the respondent director is subject to removal under this section, the court shall order his removal and provide for such other relief as the court deems just and appropriate.

16.2113 Larceny and fraud—Penalty.

Any director, officer, employee, or agent of the Foundation who, with the intent to injure or defraud the Foundation or any other person, embezzles, steals, or misapplies any moneys, funds, credits, or securities; makes any false entry in a book, report, or record; or performs any other fraudulent act; and any person who, with like intent, aids or abets any director, officer, employee or agent in any of the acts described in this section is guilty of a class C felony.