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INDEPENDENT COUNSEL	GOVERNMENT ABUSE	MARRAIGE LICENSE	TAX
CORPORATIONS	INSURANCE COMPANIES	PATENTS	JOKES
"HOT-BUTTON" ISSUES	SPREEWELL ASSAULT	PUBLIC DUTY	SIGNS
COPYRIGHT/TRADEMARK	AGE DISCRIMINATION	PERJURY	PROBATE
SCAMS	GUARDIANS	MENTAL ILLNESS	CRIMINAL FORFEITURE
RETIREMENT	MISCELLANEOUS	EVEN MORE!!!

E-MAIL ME!!!

Q: I have a couple questions about the "independent counsels" who always seem to be investigating the President and other officials. If it is suppose to be independent, then why does Attorney General Janet Reno (who is appointed by the President) get to decide whether to appoint one to investigate the President--her boss? Do we have an "independent counsel" law in American Samoa?

A: Janet Reno certainly has been unfairly castigated by some for her failure to appoint an independent counsel to investigate the fund raising tactics of President Clinton and VP Gore. The criticisms of these politically-motivated whiners are unfair because they ignore the law General Reno is required to follow.

The Independent Counsel Act (28 U.S.C. §591 et seq.)--which use to be titled "Special Prosecutors"--is not or ... well.. should not be a device to launch a witch hunt against ones political enemies. Rather, realizing the conflict-of-interest (or at least appearance of a conflict) in an appointed Attorney General investigating and prosecuting his or her boss, the Act provides a well-defined scheme by which an independent investigator and prosecutor can be appointed once there is "specific" and "credible" information there has been a violation of the law.

It is not the Attorney General who appoints the Independent Counsel, its the United States Court of Appeals for the District of Columbia. Here's how it works: The Attorney General receives information indicating one of a certain group of people in the Executive Branch (from the President to cabinet secretaries, to an Assistant Attorney General to the Director of the CIA) has violated a serious federal criminal law--a felony. If the information is "specific" and "credible" (not "I think the President is a crook"), then the AG commences a "preliminary investigation". The AG either has 15 days or 30 days to decide whether to undertake this a "preliminary investigation", depending on who makes the request (longer if brought by members of Congress). Upon beginning the investigation, the AG notifies the Court.

Once the AG starts a "preliminary investigation", then he or she has 90 days in which to investigation. At the end of that 90 days, the AG either has to inform the Court there is no basis for further investigation, request an extension of time to complete the investigation, or ask for the appointment of an independent counsel to continue the investigation. If the AG does neither, the Court can appoint the independent counsel.

If appointed, an independent counsel has the same powers as the Attorney General to investigate and prosecute the suspected crime (subpoena power, to bring civil and criminal prosecutions, to apply for grants immunity and warrants). An independent counsel is paid, and their expenses covered, by the Government (two independent counsel investigations have costs $40 million--Iran-Contra, and Whitewater). An independent counsel's investigation continues until the prosecutions are complete, there is nothing left to investigate, or the Court decides enough is enough.

The AG does not have to ask for the appointment of an independent counsel, and that decision cannot be challenged in Court. However, if the AG has a "current or recent personal or financial relationship" with the person to be investigated, then he or she can be recused (removed) from the investigation and the next senior AG without such a relationship takes over.

Currently, General Reno has begun a "preliminary investigation" of VP Gore (its about 25 days in) and is deciding whether to begin one for the President (about 14 days into that).

American Samoa does not have such a law. Of course, nothing prevents the AG from investigating and prosecuting the Governor or one of his Executive Department subordinates (if there is evidence of a crime), nor does anything prevent the Fono from instituting impeachment proceedings (again, if there is evidence of a crime). Practically, however, the old "fox guarding the chicken coup" adage comes to mind and it probably would not be such a bad idea of American Samoa did have such a independent counsel law.

Q: I see a certain Senator whose been driving around in his car without license plates for about a year. Are members of Fono somehow exempt from the law, if there is one?

A: There is one. According to A.S.C.A. §22.1003, vehicles in American Samoa must display license plates on the front and back. There are limited exceptions: government owned vehicles; a grace period for vehicles licensed in the States brought to American Samoa (30 days). There is no "Fono exception" for personal vehicles and you would think these leaders of the community would do everything to uphold the law and serve as good examples rather than flouting the law.

Interestingly, a legislator in an unnamed state who was cited for a traffic infraction once argued the "Freedom from Arrest" provisions of that state's constitution--which like American Samoa's version provides a "privilege" from arrest for legislators during sessions and while traveling to and from--meant he did not have to pay the ticket. The court obviously disagreed, probably after it stopped laughing, noting a stop for a traffic infraction is not an "arrest" and that nevertheless, the authorities could make the arrest (or issue the ticket) after the end of the legislative session anyhow (just not during). I think and hope the legislator who made that argument lost the next election.

Q: If you work for the Government, can your boss require you to make donations to certain causes or events?

A: No. For obvious reasons--the words extortion or at least duress come to mind, a superior cannot usually even solicit such donations. Pursuant to the Administrative Code (§4.0704(3)), however, a superior can make "token solicitations for floral remembrances, retirement gifts, and for similar purposes." Basically, you can be asked to make such a donation, but you cannot be required to do the same on the implicit threat of losing your job. I'm sure your boss in this situation just meant to ask for donations, and was not requiring you to make one.

Q: I read the American Samoa constitution for a class recently and it doesn't seem to say anything about removing a Governor or what to do if the Governor is incapacitated. What is the law?

A: Surprisingly, the answer is not in the Constitution, but is located in the statutes--A.S.C.A. §4.01. I'll summarize the various provisions:

Line of succession (A.S.C.A. §4.0106): If the Governor is temporarily disabled (though not defined by statute, means something like in a coma) or absent (off-island), the Lieutenant Gov (LT) takes over, and the Attorney General or Treasurer, in that order, fills in as LT.

If the Governor is permanently disabled (dies) or unable to serve (impeached, recalled), the LT becomes Governor for the remainder of the term and appoints a new LT, subject to confirmation by the Fono.

If the Offices of Governor and LT are both vacant, the Speaker of the House becomes Governor for the remainder of the term. If all three offices are vacant, I become King of American Samoa--ok, the statute doesn't address what happens if the Governor, LT, and Speaker are all unavailable.

Term limits (A.S.C.A. §4.0107): A Governor can serve 2 consecutive terms and then has to take a break of one full term before serving again.

Recall (A.S.C.A. §4.0108): A Governor can be recalled--kicked out of office--for any reason. However, it is hard to do. In order to hold a recall election, 2/3rds of the Legislature must vote for it, or a petition requesting it signed by 50% of the number of people who voted for the Governor in his or her election must be presented to the Legislature. If this hurdle is cleared, then 2/3rds of the number of persons who voted for the Governor in his or her election must vote to kick him or her out.

Impeachment (A.S.C.A. §4.0109): A Governor can be impeached--kicked out of office--only for having been convicted of a felony or for "a course of conduct amounting to a gross abuse of power" (whatever that means). If such grounds exist, the House brings Articles of Impeachment by 2/3rds vote, and the case is tried in the Senate with the Chief Justice presiding which can "convict" (impeach) on a 2/3rds vote.

I won't bore you with the legal argument, but the fact this section is only a statute instead of a part of the constitution makes it of questionable validity, and it should be added as an amendment to the American Samoa Constitution (something the statute itself actually suggests should happen but what has of yet not occurred).

Q: Can the police really throw a whole family in jail until one of them confesses to making bomb threats, as the police have been quoted as saying in the newspaper twice?

A: Sure. In fact, why don't we just start beating these people with rubber hoses, or pulling out their fingernails, or even better yet electric-shock treatments--these methods would probably be faster than waiting for them to confess. If someone from the American Civil Liberties Union (ACLU) comes down, we'll just throw them in jail too until they confess to something and then we'll deport them. If Amnesty International wants to investigate, we'll just tell them they aren't welcome in our country (hey, Libya, North Korea and other popular vacation spots do that, why can't we?). In fact, while they're in there confessing to prank phone calls, why don't we see if we can't get them to confess to something else. Maybe they're really witches, lets see if we can find that instruction manual for the Salem Witch Trials to find out what method of "interrogation" is best.

Oh, that's right, American Samoa has not decided to throw away the constitution and trample on individual's rights with impunity. Guess that means the police still need a warrant or probable cause to believe a person has committed a crime in order to arrest them and throw them in jail. Sure, the police can investigate, they can question anyone they like, but as soon as they step over the line and actual "arrest" someone, these people have rights which we all know from watching Dragnet or Law & Order (remain silent, lawyer).

Frankly, I think everyone agrees these prank bomb threats are a serious matter which needs to properly investigated and the person or person(s) responsible punished. However, violating individual's rights along the way is not the way to do it. It is bad policy, and more importantly it is bad legally as we lawyers like to have things like involuntary confessions and ill-gotten evidence suppressed and thrown out of court. OK, enough preaching.

Q: What do all those initials on the government vehicles mean? One of them almost ran me off the road yesterday and I want to report it!

A: Good question (not that there are bad ones). After some unnecessary effort, I was able to locate a list with the most appreciated assistance of the Governor's Office staff:

I also understand the number following (such as TGC 145) does not mean that there are 145 vehicles for that agency, though it probably seems like that. Oh, I just threw TGC and UU in there to see if you are awake, they aren't official government agencies.

Q: Believe it or not, I have a complaint not about you attorneys, but about a worker for the government who is hurting my business by failing to do his job, apparently for personal reasons. What is my legal recourse, does the Government have a disciplinary committee? They should!

A: Ouch. I'm shocked one of our hard-working, courteous civil servants is causing you problems. I only know joy and pleasure when dealing with these fine individuals--especially next week when I'll be at the EOB on a personal errand in need of their wonderful and punctual assistance (that's a form of pandering in case you didn't notice).

However, if there are one or two bad bananas in the bunch, your recourse is somewhat limited. Legally, if the government person is not doing what they are suppose to be doing, and they have no justification for not doing it, you could file a complaint in the High Court seeking what is known as a "writ of mandamus"--one of the "extraordinary writs". Once you file for such a writ, you get expedited consideration of your case. Upon you proving the person is not doing what they are suppose to be doing without justification, the Court will issue an order require the person to do what they are suppose to be doing. Good examples would be if the Territorial Registrar refuses to file a deed, or Revenue refuses to issue you a business license, or the Legislative Reference Bureau fails to publish the laws.

If the government person is doing something they shouldn't be, then you could file a "taxpayers suit" seeking to have the action enjoined (stopped by order of the High Court)--assuming you've actually paid taxes. If Lewis is right (and he probably is, which is not pandering this time), you might start seeing these types of actions brought against the Governor in the procurement, student loan and other areas where he seems to have expanded his control.

Of course, there is still the old-fashioned, going-over-their-head route. If the person is a subordinate, send a complaint to his supervisor. If the person is a supervisor, send a complaint to the Department head. If the person is a Department head, send a complaint to the Governor's Office. If the person is the Governor, well, that's what elections are all about.

Q: How do you get a marriage license in American Samoa?

A: Find the Office of Vital Statistics (its at the hospital), swear and sign a form stating you are of age (over 18), not related to the person you want to marry, and there are not other impediments to the proposed marriage (like one of you is married to someone else), and then of course pay the fee--$10. Then you wait 30 days--the "cooling-off period"--and then find someone to perform the ceremony (authorized minister, justice of the High Court). A.S.C.A. §42.01. Simple.

I'd say something nasty about the desire to marry, but my wife might actually read my column this week. Actually, she is so wonderful I cannot think of any reason why anyone would not want to get married if they found someone as special as she (no, I'm not just sucking up, but read on regarding my veracity).

Q: I've heard there is something called a Limited Liability Corporation which is better than being a sole proprietor but not as complicated as incorporating. True?

A: True, these things (LLCs) exist, but not in American Samoa. Unfortunately, our corporate code has not kept up with the developing trends in law in this and, as I've mentioned, many other areas.

An LLC is a middle ground between a sole proprietorship or partnership and a full corporation. You retain the flexibility in management such as in a sole proprietorship or partnership because there is no board of directors or shareholders, a management team (or just the business owner) runs all aspects of the business. However, you retain the limited liability of the corporate form (i.e. you are not personally liable for the business debts unless you agree to be personally liable).

Additionally, with an LLC, you are only taxed once on the business profit such as in a sole proprietorship or partnership. The profit and losses of the business "pass through" the business tax-free and you use them on your personal tax return. This can be good or bad depending on your individual situation and a good accountant would be able to tell you which it is. Some of you may realize this result is similar to a subchapter S corporation designation, but becoming a subchapter S corporation requires lots of paperwork and dealing with the IRS (yuck).

Forming a LLC is similar to a corporation; you file Articles and an Operating Agreement and, of course, pay a fee. Usually annual meetings and the other paperwork associated with corporations are not required. There can be drawbacks to LLCs, depending on the particular authorizing statutes (in some states the fees are high, or there must be more than one owner of the business).

In the off chance someone in the Fono wants to become very popular with small business owners, they should submit legislation to allow LLCs (hint, hint).

Q: How do you go about forming a non-profit company and why would you want to?

A: The forming part is easy, the getting it approved as a tax-exempt entity is harder. First, incorporate the company as a non-profit. American Samoa's corporate code has a special section devoted just to these type of "eleemosynary" corporations (I have no idea how to pronounce it). These are corporations are "organizations of a benevolent, charitable, scientific, political, athletic, military, or religious character." Basically, any organization which does not seek pecuniary profit--not looking to make money.

The process of creating these "eleemosynary" corporations is basically the same as creating a "normal" corporation (articles of incorporation, submit to Treasurer, file with Territorial Registrar's Office), but the filing fee is only $5.

Once you have the corporation put together and have your Certificate of Incorporation, the next step is to convince the Tax Authorities you are entitled to operate tax free. To do this, you must fill out a somewhat complicated form (Form 1023) and submit it to an IRS office in the States (don't ask me why the local Tax Office can't review the applications themselves). There is a fee which can be as high as a couple hundred dollars. There are lots of detailed tax rules in this regard so it might be advisable to visit an lawyer with some experience in this regard.

Assuming the IRS approves of your tax-exempt status, you receive a number of tax benefits (the answer to the why question). First, people who give money to your organization can claim the money as charitable deductions--an incentive for them to give. Additionally, if your organization makes money, it is not taxed (though you do have to file reports with the IRS every year). Additionally, if your organization wants to apply for public and private grants, often the group giving away the grant money will require your organization to be recognized by the IRS as tax-exempt.

Apart from the tax benefits, incorporating will shield the directors of your organization from personal legal liability. This can come in handy if your organization could be subject to malpractice lawsuits (such as legal non-profit groups) or to being sued (such as non-profits which butt heads with big business--the anti-smoking groups come to mind). By incorporating, the non-profit corporation can provide for indemnification of their directors if these directors are sued and incur expenses in defending themselves.

Q: What are the dissolution laws that apply to non-profit organizations? More specifically, how does one leave/resign from a non-profit organization of which he/she is an incorporator?

A: Actually, these are separate issues. As to dissolution, for-profit corps and non-profit corps follow the same rules. The when and how of dissolution is either provided by the Articles of Incorporation, or takes place upon the 2/3rds vote for it by the shareholders/members of the corp. A.S.C.A. §30.0121 (usually the Articles require the same 2/3rds vote, but it can be more or less).

Upon dissolution of a non-profit corp, it must be liquidated pursuant to the dictates of A.S.C.A. §30.0205. Assuming the non-profit is holding assets in trust for a particular purpose, that section requires the paying of debts, and then disposal of the trust assets as the High Court decrees upon application of either the Attorney General, or a party involved in the dissolution. Typically, the Court would find a way to ensure the assets continue to be used for the non-profit corporation's original purposes (such as turning them over to the type of charity intended to benefit, or to another non-profit with similar purposes).

As to resignation from a non-profit corp, you need only do that if you are on the Board of Directors. The only thing an incorporator does is help form the corporation by signing and filing documents. Often, incorporators do go on to serve on the board or as members or shareholders of the corporation, but not necessarily. If you were merely an incorporator, and if the non-profit is now run by a Board of Directors (as it should be), you are no longer part of the corporation. However, for incorporators of either for-profit or non-profit corps, make sure there is a Board of Directors in place, they have held an organizational meeting, and have ratified all of the actions of the incorporators and this fact is documented in the minutes of their meeting.

Q: Are there any laws governing the discrimination by an insurance company against a possible applicant/consumer?

A: Gee, wonder who were talking about here? Without more information, this is a tough question to answer. Unfortunately, the answer in American Samoa is probably no. Many states have statutes prohibiting discrimination as to rates, premiums, dividends, benefits, and the like. If this is the type of discrimination about which you are concerned, you should file a complaint with the Insurance Commissioner who has authority to investigate these types of violations.

If the discrimination is of another variety (such as race or age), I would advise you to file complaints with both the Insurance Commissioner and the Consumer Affairs Department of the Attorney General's Office, and/or visit a lawyer of your choice.

JOKES

Man walks into a bar carrying an alligator and asks the bartender, "Do you serve lawyers in here?". The bartender says "yes, sure do." The man says, "Great, give me a beer and a lawyer for my 'gator."

Man goes to a lawyer for help. Man: What is your least expensive fee? Lawyer: $50 for three questions. Man: That's pretty expensive isn't it? Lawyer: Yes. So what is your third question?

A lawyer walked into a bar and sat down. The bartender looked up and noticed what looked like a frog growing out of the side of the lawyer's head. The bartender looked at the lawyer and said "Oh, my goodness-how did such an awful thing happen?" Before the lawyer could say anything, the frog spoke up and said "Well, it started off as a small wart on my fanny and it grew into this awful thing."

After my recent absence from the island (I was investigating golf courses in Maui or away on business, depends on who asks), some have told me they missed my column--not the substance, of course, just the jokes. OK, here are some real life Q&A from court transcripts:

Another allegedly true old courtroom story of a defense attorney questioning an accident victim:

In the middle of the night, in the middle of nowhere, two cars both slightly cross over the white line in the center of the road. They collide and a fair amount of damage is done, although neither is hurt. It is impossible to assess blame for the accident on either however.

They both get out. One is a doctor, one is a lawyer. The lawyer calls the police on his car phone; they'll be there in 20 minutes.

It's cold and damp, and both men are shaken up. The lawyer offers the doctor a drink of brandy from his hip flask, the doctor accepts, drinks it and offers it back to the lawyer, who puts it away.

"Aren't you going to have a drink?" the doctor asks.

"After the police get here," replies the lawyer.

P.S. For all of you who have asked about my favorite lawyer or law firm for the Samoa News poll, besides myself and mine, I would have to vote for the law firm of "Dewey, Chetum & Howe".

Q: How can I find out if something I think I have invented has already been invented and, if not, how to protect my idea?

A: This is a highly specialized area--patent law. A "patent" is merely a right conferred by the U.S. Patent & Trademark Office (Washington D.C.) which one possesses in a novel and non-obvious invention, which right lasts for a period of years (from 14-21 depending on the type of invention).

Like a copyright or trademark, the patent is an exclusive right which the owner can license (rent) to others to use. In the case of patents, the inventor usually licenses the patent to a manufacturer or manufacturers who produce the actual product.

If a manufacturer uses a patented invention without permission, it is liable for damages. Recently, the person who invented and patented the intermittent wiper for cars won a ton of money from a couple of auto makers (I think Ford or Chrysler, but I'm not sure so I'd better not mention any names ... oops, already did).

Obtaining a patent is a complicated process so I'd advise contacting a lawyer who can handle patent matters (these lawyers have to take a special examination and frankly I'm tired of taking tests). Your patent application is examined by, you guessed it, a "patent examiner", and if approved (the process of examining often is long and tedious and involves much consultation between examiner and examiner), the patent issues. To keep the patent alive during its effective time period (14-20 years), the inventor has to pay fees of about $3,000 or forfeit the patent. After the patent come to an end, the invention falls into the public domain for anyone's use.

Your patent lawyer can help you determine whether your idea is capable of being patented, but the best advise is probably to file a "Preliminary Patent Application" to protect the idea and then go through the examination process to determine whether a patent already exists or whether some else has applied for one. This is entertaining background (sort of), hire a patent lawyer if you are serious.

Q: I want to know the laws in American Samoa on some of the "hot-button" issues such as homosexual marriage, abortion, prayer in schools and corporeal punishment, stuff like that.

A: Ouch, you want me to talk about every controversial topic, all of which fail the polite dinner party conversation test? OK, I will, but I won't address the most controversial topic of them all--the rules of cricket.

Prayer in school. The American Samoa and United States constitutions have the same first amendment guarantees about religion upon which many of the laws severely restricting religious activities in schools are based--"There shall be separation of church and government and no law shall be enacted respecting an establishment of religion or prohibiting the free exercise thereof." Rev. Const. of American Samoa, Art. V, §1.

In this regard, American Samoa has a statute forbidding "sectarian religious instruction" in public schools, but allowing what I assume they meant to be voluntary "prayers, scripture reading, or the singing of religious songs." A.S.C.A. §16.0511(a). Private schools are not prevented from religious instruction--that's why their private schools, to keep the government out of their business. A.S.C.A. §16.0705. There probably are a few programs in the public schools here in American Samoa which would not withstand constitutional scrutiny, but I do not believe anyone has made it an issue.

Of course, nothing prevents a student from praying he or she did not fail that algebra test they forgot to study for. Of course, from experience I can tell you divine intervention in response to such pleas is rarely provided.

Abortion. It is only legal when continuation of the pregnancy would endanger the life, or substantially impair the physical or mental health, of the mother; in all other cases, abortion is a felony (A.S.C.A. §46.3902, .3903). However, if a local physician does not want to perform a legal abortion (i.e. has a conscientious objection), he or she has the right to refuse without any legal consequences (A.S.C.A. §46.3904). This is very strict as abortion laws go (similar to the one in Guam),and of questionable or of at least arguable constitutionality.

Marriage. Marriage is a contract between a man and a woman (A.S.C.A. §42.0101(b)). No "same-sex" marriages here. The Hawaii constitution, upon which a successful challenge to their "same-sex" marriage prohibition was based, is different than the American Samoa Constitution and thus the prohibition of "same-sex" marriage here is probably constitutional.

However, homosexuality and consensual homosexual relations are not illegal. Unlike a few southern states in the United States (Georgia as of a few years ago), consensual "sodomy" is not illegal here in American Samoa. A.S.C.A. §46.3611. No problems with constitutionality and frankly an enlightened view for those who wrote the laws in this regard.

Corporeal punishment. This is physical discipline of children. When Sister Margaret rapped my knuckles in school as a kid, even then I wondered if I could sue her--yes, some people are born to be lawyers. In American Samoa, I probably wouldn't win, but I would sue anyhow.

A teacher can use force against a child when (1) it is necessary to promote the welfare of the child, and (2) the force will not cause death, serious physical injury, disfigurement, extreme pain or extreme emotional distress (A.S.C.A. §46.3311). If a teacher goes over the line, then the force is an assault and the teacher is subject to criminal and civil penalties. Plus, what kind of example does such a teacher set; that force and violence is the only way to solve problems? If a teacher has to use force to control or teach their students, then they are terrible at their job and should be fired, and maybe sued (sounds like a good pro bono--free--case to me). OK, that sound you hear is me stepping off my soapbox.

Q: Is there a death penalty in American Samoa and for what is it imposed?

A: Yes, for murder in the first degree (premeditated mostly). If a person is so convicted, the judge, or jury if there was one, considers whether to impose either the death penalty.

In making this determination, the judge or jury considers whether the aggravating factors outweigh the mitigating factors.

The aggravating factors are if (1) the defendant has previously been convicted of murder in the first or second degree; (2) it was a multiple murder; (3) if the defendant committed a grave risk of death to many persons (i.e. mad bomber); (4) the murder was especially heinous, atrocious, or cruel, involving torture or other depravity; or (5) the murder was for pecuniary gain.

The possible mitigating factors are too lengthy to list. If they outweigh the aggravating factors, then rather than death the defendant is sentenced to life imprisonment without parole or probation until 40 years of the sentence has been served.

My information is that the last execution in American Samoa took place in the 1920s and the method was hanging. There are passionate arguments for and against the existence of a death penalty, though the U.S. Supreme Court has routinely held it not to be cruel and unusual punishment under the Eighth Amendment to the U.S. Constitution.

Q: That pro basketball player [Latrell Spreewell] who attacked his coach the other day, didn't he violate the law?

A: Thank you, finally someone has mentioned this. Of course he committed a crime--assault, probably in the first degree, which is a serious felony and upon conviction would probably send even a first offender to the Big House.

Now, you're probably asking yourself: "wait a minute, aren't professional athletes always getting into fights? Jeez, that's the best part about hockey." There is a "sports" exception: believe it or not a person can "consent" to being assaulted. Using our statutes as an example, if the conduct and harm are a reasonably foreseeable hazard of "joint participation in a lawful athletic contest or competitive sport", then the participants have "consented" to the assault and there is no crime. A.S.C.A. §46.3523.

When emotions and testosterone boil over on the playing field and pushing and shoving, or punching and kicking, takes place--reasonably foreseeable. When a baseball player walks up behind another and smashes him in the head with a bat--not reasonably foreseeable. As you can imagine, there is lots of wiggle room in between these extremes. There have been instances when athletes have been prosecuted criminally for assaults which take place on the field; the most recent in Boston involving (again believe it or not) hockey players.

Attacking your coach during practice is nonconsentual assault. Even if the sports exception applied (and it wouldn't as this wasn't part of a game), this attack is not a reasonably foreseeable part of the game of basketball. If it were, I don't think Spreewell would have been suspended from the league for a year.

Q: What about some of these ugly signs I see popping up, either for some business or in the past some candidate, is there some law?

A: Yes, American Samoa has "Sign Regulations" which do not allow ugly signs, unless they are otherwise permitted (that's called "legalspeak"). A.S.C.A. §26.05. Ugly signs are allowed, and no permit for them is required, if they fall into the following 7 categories:

All other signs require permits, and to get a permit the proposed signs cannot be ugly or, in the words of the statute, "the sign would [not] in any way interfere or detract from the natural beauty and attractiveness of American Samoa." The sign also cannot interfere with traffic or pose a safety hazard.

It would be unconstitutional to prevent campaign signs, there's that First Amendment thing. However, the Government could regulate the "time, place and manner" of this speech, as long as it is reasonable and does not interfere with the content of he message. A good example would be a law that campaign signs can say what they want, but they cannot go up more than 90 days before the election, and must be taken down within 10 days after.

There is also the Federal Highway Beautification Act of 1965, but let's just say it does not apply and ignore it (it is a bit complicated).

Q: What circuit would Samoa be in if we do get a federal court?

A: Probably the Ninth. The United States federal court system currently divides itself into 11 groups (called circuits) each comprising a varying number of states. Each state has at least one federal district court (a trial court) but has only one Court of Appeals.

The Ninth Circuit--which comprises the states of Alaska, Washington, Oregon, Montana, Idaho, California, Nevada, Arizona, Hawaii, Guam and the Northern Mariana Islands--is huge in size, and number of district courts. There is a move afoot in the United States Congress to split the Ninth Circuit in two and create a new Twelfth Circuit. I understand the proposal to be that at least California and Nevada would stay in the Ninth Circuit, Alaska, Washington, Oregon, Montana, Idaho would become the Twelfth, and Hawaii, Guam and the Marianas would have their choice. As the federal court bill for American Samoa (WHICH NO ONE SUPPORTS) makes American Samoa a part of the Hawaii district, it would seem we would follow Hawaii wherever it goes.

Though the stated reasons for the proposed break up is the unwieldy size of the Ninth Circuit, the real reason is that some states in the Ninth Circuit just don't like California and its "liberal" judges (the conservative U.S. Supreme Court routinely overturns decisions of the California-dominated Ninth Circuit). Given Hawaii's more "liberal" leanings, I imagine they would choose to remain with California in the Ninth Circuit.

Of course, it may just be (and hopefully is) a hypothetical question. I checked and the proposed bill creating a federal district court for American Samoa (WHICH NO ONE SUPPORTS), has not be introduced in the U.S. Congress--thank goodness.

I'm back from a legal seminar in Seattle I attended with a group of 50 young attorneys from around the country and I noted some big differences between practicing law in the States and here in Samoa: (1) the attorneys here for the most part are much more cooperative (read not as mean), for the good of everyone's clients; (2) mainland attorneys charged substantially higher fees for the same work, both in terms of quantity and quality; (3) cases can get to trial here much faster; and (4) the men have to wear suits and ties to court, which put me at quite a disadvantage (luckily my brother wears the same size clothes).

Remember when I explained what was involved in taking the Hawaii Bar examination? Well, that actually wasn't all one has to do to become licensed to practice law in Hawaii. In what is hilarious to my non-lawyer friends, I still have to take and pass an Ethics exam before I can obtain a Hawaii legal license (the usual comment: "what, a test to make sure you don't have any?"). The exam is a 3 hour, 50 multiple-choice questions test which inquires into a potential lawyer's knowledge of the Rules of Professional Conduct--a lawyer's ethical commandments (such as don't steal from clients, don't lie to the court, don't cheat at golf--I only violate the last one). It is a national examination, given 3 times a year, but inconveniently not near enough in time to the bar examination itself--that's why I'm in Hawaii for a couple days this week rather than enjoying the Mini-Games. I'll let you know if I have any ethics once the test results are back.

FYI -- I received the results of my Ethics Exam, and though I cannot say "I don't have an unethical bone in my body" (I missed 4 out of 50, actually 6 but did you expect me to tell the truth), I still passed and now officially bear the stamp of "Ethical Lawyer" and, no, that's not an oxymoron. Thanks to all of you who thought it hilarious that lawyers actually have to take ethics exams.

As another year in paradise comes to an end, here is a look at what has become of my hopes for American Samoa (1997 edition) and my law-related hopes for American Samoa (1998 edition):

What do I dream about for 1998. Well, that's private but here are some thoughts for the law and American Samoa:

That's enough for this year ... HAPPY NEW YEAR.

Q: I understand that the copyright and trademark laws do not apply to American Samoa and that is why some businesses use popular media (such as music) in their advertisements, apparently without the performer's permission. True?

A: What, you don't think the Spice Girls or the Rolling Stones gave permission for "Joe Schmo's Samoan Business" to use their songs in his advertisements?!?!? All right, they probably did not.

Unfortunately, the answer is true, the U.S. copyright and trademark laws do not apply here in American Samoa, sort of. Because of the way the U.S. copyright statutes are written (17 U.S.C. 101), they only apply to U.S. Territories which have been specifically and expressly included--currently only the Virgin Islands, Guam and Northern Marianas. American Samoa, as well as the Trust Territories, have not been included and I am unaware of any effort to have U.S. copyright protection extended to American Samoa--though I wish it was.

Another problem is that even if the U.S. statutes were amended to extend copyright protection to American Samoa, only federal courts have copyright infringement jurisdiction and American Samoa does not have a federal court--this is the same problem with a number of laws which apply to American Samoa but which cannot be enforced here because of a lack of a federal court (such as the Americans with Disabilities Act).

However, don't think you can willy-nilly violate another person's copyright just because you live in American Samoa. First, nothing prevents American Samoa from adopting its own copyright laws (though I doubt that'll happen). Second, the owner of a copyright which has been violated has other actions they can bring against the violator (such as tort actions) and these could be brought in the High Court. I doubt the Spice Girls will be visiting American Samoa to start suing, but theoretically they could (just as they theoretically have musical talent). However, steal the literary genius of this © column and see how fast you'd get a field trip to the courthouse (OK, you're right, who'd want to steal this!).

The problem with U.S. trademark laws is similar--no court to enforce. However, American Samoa has its own trademark laws--A.S.C.A. §27.03. This statute allows you to file an application with the Territorial Register for a trademark (only $10, compared with the $250 for a federal trademark), which is good for 10 years and is renewable.

Q: When are you old enough to be discriminated against based upon your age? I'm 45 and being replaced by a 25-year-old I think mostly so to pay him less.

A: I don't know--"old" always seems to be 15 years older than whatever age I currently am (30). I would use the presence of gray hair or the loss of a substantial portion of hair as a criteria, but I'm guilty of the former so that's out. I would use uttering the phrase "oh, my aching back", or owning Bengay, but well guilty again. Right now my benchmark is Bermuda shorts and black kneesocks.

As for the law, however, 40 seems to be the number. Couple laws if you think you've been discriminated against based upon you age. The big one is the federal Age Discrimination in Employment Act (ADEA--29 U.S.C. §621--not to be mistaken with the American Dancers of Erotica Art Act).

The ADEA applies to employers who employee more than 20 employees and prohibits arbitrary discrimination in employment decisions (e.g. hiring, promotion, transfer) against employees over the age of 40. An employer must have a valid reason for all employment decisions, like you eloped with the bosses 22-year-old daughter, stole some paperclips, or something in between.

The ADEA does not apply to certain employees: high mucky-mucks in the company who have nice pension benefits waiting, police, fire personnel, air traffic controllers, or when age is a BFOQ (Bona Fide Occupational Qualification), such as pilot, bus driver, mouseketeer (you know, Anita Bryant). The ADEA also does not apply to most seniority-based systems as those are usually for the benefit for loyal, long-term employee who usually happen to be older employees.

There also is the Older Workers Benefit Protection Act of 1990. It prohibitions employers to use an employee's age as the basis for discrimination in benefits (hiring you the day before you are vested in the pension plan), or to target older workers for staff reductions.

It also applies in those early-retirement programs, requiring employers to bend over backwards to ensure the older worker signing a waiver of their rights to sue (say, for age discrimination) as part of an early-retirement bonus are fully informed of their rights, given an opportunity to consult legal counsel, and given a "cooling-off" period prior to having to sign.

Your rights in the face of discrimination of any kind can be complex and confusing, too complex and confusing to adequately address here. Consult a lawyer of your own choice. Or, though I blame them for hindering the reform of the social security system, which will probably go broke the day I retire, and thus they are second only to Microsoft on my "evil empire" list, the American Association of Retired Persons (AARP), 601 W Street, NW, Washington DC 20049, [www.aarp.org], is a wealth of information on age discrimination topics.

Q: So what if Clinton lied about his "relationship" with that intern. Its not like a President has never lied to the media. Where's the "federal case" in all of this?

A: You're right, newspapers (except this one) should be sold with little packets of salt as there is no legal consequence if a governmental leaders lies to a reporter. Lie to a reporter, get caught, and you're embarrassed.

Lie in a legal proceeding, get caught, and off to the Big House you go--its perjury. Using our statute as an example [A.S.C.A. §46.4605], a person commits perjury if "with the purpose to deceive, he knowingly testifies falsely or procures another to testify falsely to any material fact upon oath or affirmation legally administered, in any official proceeding before any court, the Legislature or either House or committee thereof, public body, notary public, or other officer authorized to administer oath." Whew, take a breath.

Lying in an affidavit is perjury (we have a special statute--A.S.C.A. §46.4606--which makes it so), lying at a deposition is perjury, lying to a reporter is politics as usual. Encouraging someone to perjure themselves (to lie) is also a crime; sometimes "perjury" itself as in our statute, or suborning perjury in others (fancy word for encouraging someone).

As we like to ensure the reliability and trustworthiness of our legal proceedings, perjury is the most serious of crimes and it is a felony. It does not necessarily matter what the lie was about, be it an affair with someone young enough to be your daughter or the illegal diversion of government money to Nicaraguan "freedom fighters". No, it's not the substance of the lie that is important, it is the fact that the lie was told and thus the liar disrespected the legal proceeding which makes it such a serious event.

As to the allegations against the President, there is one interesting twist. The intern's alleged lie took place during a deposition in the Paula Jones case. The court in the Paula Jones case recently held that particular evidence (an affair between the President and the intern) was inadmissible and not subject to discovery. In order for a lie to become perjury it must be "material". How can a lie about a subject the court has ruled out of the case be material? Maybe we'll find out.

Q: I want to ensure my spouse is able to continue paying bills and the like after I die without having my whole estate tied up in probate for months. What can I do?

A. This brings us to the area of estate planning, something everyone is smart to think about sooner rather than later. Probate is merely the legal process of collecting and distributing the estate of the deceased either according to their wishes (by will) or by statute. Though not a difficult process, it does tie up one's assets up during the 3-6 months it often takes to complete.

There are all kinds of ways probate can be avoided and they are called, appropriately, probate-avoidance mechanisms. The easiest is for you and your spouse to have joint bank accounts with rights of survivorship. That way, once you die, your spouse automatically "owns" the entire account and can do what he or she wants or needs to do with it (i.e. pay bills, buy necessities). I have seen way too many terribly sad cases where one spouse had control of all the money and the other spouse's name was not on any of the accounts, leaving the unnamed spouse with no access to the family accounts upon the death of the named spouse.

You can also designate a beneficiary on insurance policies and pension plans and proceeds of these pass automatically upon death without resort to probate. Generally it is the same for land held as joint tenants with survivorship rights.

Another favorite of estate planners is the living trust. Under this arrangement, a person puts all of their assets in a trust, names beneficiaries (including themselves), appoints themselves trustee, and then continues to live off the trust assets until their death. As the law considers ownership of the trust assets to have passed to the beneficiaries when the trust was set up, the assets passed automatically at that time and do not have to be probated. The living trust is often used to defray potentially high estate taxes. As technically you lose ownership of your assets once you put them in a trust (even if you name yourself as one of the beneficiaries) you should consider the benefits and ramifications carefully before setting one up.

Estate planning can be a simple process done now which can save heartache in the future. Do it. Contact a lawyer of your choice for advice on the various probate-avoidance mechanisms.

Last week I mentioned living trusts, which also are popularly known as "living wills". However, as they are the opposite of wills, and as "directives to physicians" and "power of attorney for health care" (documents which details your wishes for your medical care should you become incapacitated) are also sometimes referred to as "living wills", I like the term "living trusts" better. So (you should be confused by now), as a probate-avoidance mechanism, living trusts and living wills are the same thing.

Q: I received a letter from this group from Nigeria which needs someone to provide them with a place to store some money, in return for which I will get a portion to the funds. Doesn't sound like a bad idea. What's the harm???

A: THIS IS A SCAM!!! A fraud, a rip-off, a gyp, a swindle, a double-cross, a cheat (yes, I pulled out my thesaurus). It is the manifestation of the old adage about a fool and his money. You have nothing to gain and everything to lose by becoming involved in this. There is no money. In other words, DON'T.

Here's what would happen if you did respond. Once hooked, this group will send you official looking documents--stamped, signed and sealed by apparently high government officials--asking only for the numbers of your accounts in order to deposit the funds and promising quick deposit. You'll also be asked to sign an innocuous document which really is a power of attorney. Suddenly, there will be a problem which will require you to send some money to clear up. Then more problems, needing more money. You'll eventually stop sending money and after having plunked down a few hundred to yes, I've seen it, a few thousand dollars, you'll stop hearing from your Nigerian friends. One day, you'll go to the ATM and find out someone has emptied out all your accounts, or bogus checks with your account numbers on them will start showing up.

Look, I know it's not original, but if it sounds too good to be true, it probably is. If you offered such a "can't miss" deal, contact the Consumer Protection Bureau at the Attorney General's Office or a lawyer of your choice. While lawyers can be suckers too, they should at least be able to check out the reputation of some of these groups and help pick out the clear scams like this one.

Q: With summer (winter) coming up, we are sending our children off-island ahead of us to stay with relatives before joining them for a vacation. Do these relatives need any legal documents in order to care for them medically and the like?

A. Yes, you want to prepare a document entitled "Appointment Of Temporary Guardians And Limited Power Of Attorney" or something similar. This document will appoint someone as temporary legal guardian for your children--someone who is not the parent of the child, but who has legal right and authority to act as a parent to those children. This document will also detail the extent of authority you wish the temporary legal guardian to have (type of medical care, ability to enter into contracts on their behalf).

Why would you want such a document? Well, medical care is the most obvious reason. Though hospitals usually have statutory authority to treat children for emergencies in the absence of parental consent, they are typically forbidden from doing the same in less than life-threatening situations. If those watching your children have legal authority as temporary guardians, there will be no delay in necessary treatment.

For this reason, summer camps to which you send your children will often ask for your signature on documents allowing them to provide different types of medical care. If they do not, ask them about it.

Q: What is the process of determining the competency of the mentally ill in American Samoa?

A. The legal answer is given in A.S.C.A. §13.15 "Judicial Commitment of Mentally Ill or Deficient". Under these sections, a person suffering a "mental illness or deficiency" may be committed "to insure an on-going program of medical and psychiatric treatment as required for the patient's disability." The process for involuntarily committing such a person is through the High Court.

Of course, the fact a person is suffering a "mental illness or deficiency" is not enough to commit them against their will (thank goodness or my wife would have me committed every week). Commitment of a person suffering a "mental illness or deficiency" can only occur if they are

To initiate the process, the person seeking commitment of another must complete a "certificate of need for emergency commitment" and a physician authorized to practice in Samoa must complete a "certificate of medical need for commitment". With these, and after a hearing, the High Court can commit a person on an "emergency" basis for 72 hours.

To continue the commitment beyond 72 hours, a second "certificate of medical need for commitment" must be completed by a physician "whom shall be of Samoan heritage and who speaks the Samoan language" (if the earlier physician was not). Assuming the physicians agree, another hearing will be held in the High Court. If the Court finds by "clear and convincing" evidence cause exists for the commitment, it will make an order detailing the length and the place (either on or off-island) of commitment.

Once committed, the Court will hold a review hearing every 90 days to determine the continued need, if any, for commitment (based upon more physician reports). Nevertheless, if the physician in charge of the commitment facility finds the reasons for commitment no longer exist, he or she may release the person without need for further Court hearings.

If you are the person being committed, you will have someone fighting for you. The Court is required to appoint you an attorney, and you have many due process rights--right to subpoena witnesses on your behalf, cross examine witnesses against you, review all the medical reports, hire your own physicians. It is a very difficult process to commit someone against their will, and thus it is done infrequently.

Q: I saw a story about a person in the United States having their home they rented out taken away because their tenants, unknown to them, got caught growing marijuana in it. Is that the law and is that the law here?

A. Sort of and sort of. An aspect of the "War on Drugs" in the 1980's were harsh new forfeiture laws in the United States--laws which allowed courts to issue orders giving ownership of certain property to the Government. As a result, houses, cars, boats and airplanes in which the Government had probable cause to believe illicit narcotics activity occurred were taken. In order to recover them, the owner was required to post a bond equal to 10% of the value of the property within a short period time, and then prove through a contested court hearing that the property was not connected to illicit activity.

These harsh rules have been tempered a bit, most importantly with an "innocent owner" exception which allows owners to show they knew nothing about the illicit activity, and had no reason to know about it.

American Samoa's forfeiture law is located at A.S.C.A. §13.1032-.1036. It allows forfeiture of all controlled substances (drugs), equipment and materials used to prepare it, and conveyances used to transport it (cars, planes, or boats). There are "innocent owner" exceptions to the seizure of conveyances in cases of common carriers (aiga buses) or when person using the conveyance possessed drugs "without [the owners] knowledge or consent." However, the burden of proving the owner was innocent is on the owner.

Our boys in blue don't need a court order to seize such items, they only need probable cause to believe it is property which is subject to forfeiture. Once seized, the property can only be forfeited (ownership given to the Government) by order of the High Court. Apparent owners of the property sought to be forfeited must be given notice of the intended forfeiture and they have a right to contest the forfeiture. There is no bond requirement as in the United States, and it does not appear a house could be forfeited under Samoa's forfeiture statutes.

Q: How does Social Security work? What is the difference between a 401(k) and an IRA?

A: Sounds like someone is thinking about retirement. Let me take the first question this week, the second next. If you are someone my age, who might retire the year the Social Security trust fund is forecast to run out of money (2032), then Social Security does not work. If you are about to retire, with statistics showing you'll receive all the money you've contributed to the system in 3 years and will continue to receive checks for the rest of your life, then it works great. Generation X whining aside, all the mechanisms you mention are pension plans which have the same goal--providing retirement income. Social Security first:

Old Age, Survivors and Disability Insurance (aka Social Security) is a government program, funded from payroll taxes paid by employees and employers, which pays money to retirees, survivors of deceased workers, and people who have become disabled. I'll talk just about the retirement aspect.

While working, you are taxed on your income up to a set amount each year (about $60,000), after which you don't pay the tax. You may begin receiving benefits between the ages of 62 and 70. If you begin before 70, there is a limit on the amount of income you may earn from a job (around $15,000) and after reaching that limit your benefits are reduced by 1/2 or 1/3 (depending on your age). After 70, there is no reduction and you may work and receive benefits. There is no similar limitation on receiving both social security benefits and drawing on a private pension. However, an ever-changing portion (from 50-85%) of social security benefits are taxable depending on your combined retirement income.

Your benefit is based on how much you have paid into the program and for how long. It is a bit complex, but anyone who has worked 40 "quarters" is entitled to benefits and a person is considered to have worked a quarter if they earned a certain, small amount of money in a quarter. For example, in 1992, a person was required to earn $570 a quarter to earn credit and thus as long as a person earned $2,280 in one year, they were given credit for 4 quarters (if you've worked less than 40 quarters you still receive benefits, though they are reduced). For this reason, it is a good idea to review your earning record every few years to make sure it is accurate. You can do this by filing Form SSA-7004 at a Social Security office (there's one at the Pago Plaza).

A non-working spouse is also entitled to benefits. Typically, if husband and wife are over 65, the spouse who never worked or didn't work enough, can receive an additional amount equal to 50% of the other spouse's benefit. For example, if my wife was receiving $500 a month in benefits and I never worked (which my boss might say is true), I would receive $250 a month. Upon a recipient's death (or even a worker's death before they retired), others are entitled to their social security benefits (spouses over 60, dependent children under age 18, even parents if the deceased was supporting them). Additionally, though benefits are taxable, that income is shielded from creditors. Next week, private pensions.

Q: What is the difference between a 401(k) and an IRA?

A: Last week we discussed Social Security. As a survey recently showed that more people under 30 believe in extra-terrestrial life than the existence of Social Security at the time of their retirement, self-help when it comes to retirement planning is the way to go. Here are some of the more popular, non-governmental plans:

401(k) -- This is a private pension which employers are not required to provide. If they do, they must meet the legal requirements laid out in the Employee Retirement Income Security Act of 1974 (ERISA). One of the ERISA requirements is that you must be provided with a summary of the substantive provisions of your plan, including who's eligible to participate, how benefits are determined, the age you may start receiving benefits, who administers the plan, and the claims procedure.

Basically, a 401(k) plan is a "defined contribution" plan which allows eligible employees to have a portion of their income deposited into the plan instead of given to them in paychecks. The employer may match all or part of the employees' contribution. The amount deposited is not taxed until it is withdrawn from the plan (the theory being your effective tax rate will be lower when you retire and begin withdrawals than it is now). Though the rules differ, if you make a withdrawal before the age of 60, you face a stiff tax penalty (10%). There are exceptions ("hardship withdrawals") in situations such as medical emergencies and home purchases. Additionally, you often may take a loan from the plan based upon your estimated retirement benefit.

Often, you are not entitled to a pension until you are "vested". This simply means that you have worked for your employer for a long enough period (5-7 years usually), before you acquire a nonforfeitable right to all the money in the plan (though you are always entitled to the money you've put in, you are not entitled to the rest--the money your employer has contributed--until you are vested).

Non-working spouses are also protected. Under ERISA, 401(k) benefits are automatically paid jointly to you and your spouse, unless your spouse signs a statement electing not to. If you were to die, your spouse would continue receiving checks equal to 1/2 the benefit for the rest of his or her life. If you and your spouse both have pensions, you share each others. If you leave a job after becoming vested in its plan, the money stays and you receive benefits once you reach the appropriate age. If you leave before you are vested, you are entitled to receive your contributions. However, if you do not transfer them to another qualifying pension device, you are subject to the tax penalty.

IRA -- One such device is an Individual Retirement Account. An IRA is merely a type of account that earns investment income and allows you to defer paying taxes on that income until you start receiving benefits. With certain exceptions, you can deduct your contribution to an IRA on your taxes and you can make a contribution up until April 15 of the year after you want to take the deduction. Again, if you make a withdrawal from an IRA before the age of 60, you face a stiff tax penalty. Interestingly, you must start taking money out of your IRA by the age of 70 or you face a penalty tax equal to 50% of your minimum withdrawal amount. Ouch!

Anyone can set up an IRA, and you can even do it if your employer provides you with a pension (in that case, you do not get a deduction for the contribution, but the income earned is not taxed). You can contribute $2500 a year to an IRA, and the rules have just been changed to allow a spouse to contribute just as much (the spouses contribution use to be limited to $250).

One of the best things about an IRA is you have control over where your money is invested. Don't like the stock market, buy T-Bills (under 401(k) plans, your choices are often more limited). You can set up an IRA through any investment company and most banks. Most people invest their IRA money in mutual funds: pools of money invested in a spectrum of investment devices, usually stocks.

Others -- There are other plans which work in similar ways. The "Keogh" plan (sometimes called a "H.R.10" plan) is a retirement plan that covers one or more self-employed individuals. There is a SEP (a "simplified employee pension" plan) which works almost exactly like an IRA, but you can contribute much more pre-tax income into it every year ($30,000 or 15% of your earnings, whichever is lower).

Lots of options for those with the foresight to PLAN AHEAD for the eventuality of retirement. The better the planning, the earlier one can retire!

Q: I understand a number of larger employers on island are not counting housing provided to certain employees, and other such benefits, as income to them for tax purposes. Is there some exception for employee housing in American Samoa?

A: No, except in limited circumstances, employer-provided housing is income to the employee. To be excluded from income, the housing must meet three requirements: (1) it must be on the business premises of the employer; (2) it must be provided for the convenience of the employer; and (3) employee is required to accept such lodging as a condition of performing his job--employee must have to use employer-provided housing, and no other, to properly perform their job. 26 U.S.C. §119.

The local tax office sent out a memorandum a few years ago in which it said it had decided to strictly interpret this section. A few examples might demonstrate the effect of this strict interpretation. Live across the street from your job, not close enough and the housing is income to you. Live on the business premises (inside the fence), close enough but if other housing is available in the area (which it always is here in Samoa) and you could live there and still do your job, the housing is income to you. A live-in nurse or full-time caretaker seem to be about the only occupations which would be excludable from income.

Not including the reasonable value of this employer-provided housing in your tax returns is, as we say in the legal profession, very bad. The employee will be subject to back taxes, penalties and interest on the unpaid amounts which would easily run over $50,000 for a 3-year period. The employer will be forced to pay 100% of the employers FICA (social security) taxes--they only pay 50% usually--per employee to whom they provide this housing (plus penalties and interest).

The tax office would probably also broadly construe the term "income" in the tax code to include other employee benefits such as airline tickets for vacations, company car used partially for private purposes and its fuel, household expenses such as utilities, school fees--anything you would normally pay for yourself in your day-to-day life which the employer takes care of for you. The effect of not declaring the reasonable value of these benefits as income can be very costly to both employer and employee. If you question whether you should be paying tax on non-cash benefits, consult an attorney or accountant (the accountant is probably cheaper) of your choice.

In the spirit of vigilante justice and the code of the Wild West, the tax authorities offer a bounty/reward for information about persons not paying their fair share of taxes. I think its called the "Rat Out Your Neighbor/Competitors" Act (26 U.S.C. §7623) and goes a little something like this: provide "specific and responsible information" which causes an investigation and results in recovery of taxes from the evader and you--the informer or, well, corruption finder sounds better--are entitled to 10% of the first $75,000 recovered, 5% of the next $25,000 and 1% of the rest, limited to $100,000. You are even entitled to a smaller take (5%, 2.5%, .5%) if you just provide information which leads to an investigation and "was of value" in determining the tax due, and an even smaller take (1% of first $75,000 and .5% of anything more) if your information led to the investigation but was of no other value.

Unfortunately, the reward is discretionary unless there is some agreement with the tax authority. To recover after the tax authority has completed and investigation and collected some money, the corruption finder must fill out Form 211 to claim the reward. If you are going to do it, I'd suggest documenting your conversations with the tax authority and have them agree in writing to pay an award if they collect--then give them the information on the tax cheat. Employers beware, this is a favorite of employees who have fired. Happy hunting!

Q: I understand the paparazzi who contributed to Princess Di's accident are in trouble for not coming to her aid--violating the "Good Samaritan" law in France? What do you legally have to do when you come upon an accident or someone in difficulty?

A: You know, I wish the legal answer and the "right" answer were the same--HELP THEM--but they are not. Under general American law, there is no duty to come to the aid of a person in peril, even if you can prevent futher harm. Some states have adopted laws requiring a person without a duty to render such aid if they can do so without danger or peril to themselves, but these states are in the distinct minority.

As one legal commentator has noted, "The law does not undertake to make people render active service to their neighbor at all times because a good or brave person would do so." See a blind man walking towards a cliff, legally you can let him fall without a word of warning! See your worst enemy or best friend drowning and you are a champion swimmer, legally you can let them both sink!

This rule does not apply when there is a special relationship between the parties, such as someone under your custody and care, an innkeeper to his or her guest, and employer to employee. Most importantly, the rule does not apply if your actions played a part in placing the person in danger or peril, such as causing an automobile accident or knocking a non-swimmer into the ocean. In such a case, you are under duty to render aid and your failure to do so is actionable.

As I understand it, France's law (which they call their "Good Samaritan" law) is similar to the minority states noted above: everyone owes a duty to aid endangered persons if the aid can be rendered without danger or peril to the rescuer. The paparazzi snapping pictures of Princess Di immediately after the accident, instead of trying to help the dying passengers, seem to have violated this French law.

Of course, these paparazzi (which I think translates as "picture-taking lowlife stalkers") also seem to have contributed to the accident and thus, if they had done it in the United States, would have owed a duty to render aid immediately after the accident. Their failure to do so renders them liable civilly--for money--and criminally--for reckless or negligent homicide, usually called manslaughter.

Additionally, don't confuse France's "Good Samaritan" law and what are known as "Good Samaritan" laws in the United States. Under "Good Samaritan" laws in the United States, good people who owe no duty yet voluntarily give aid to those in peril are shielded from most legal liability for injuries they inflict during the rescue. The purpose is to encourage people to give aid without them having to fear they will be sued if they are unsuccessful or cause additional injuries during their attempted rescue.

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