STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION (2017)

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STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended through Resolution No. 17-053 (July 17, 2017)

TRIBAL EMPLOYMENT RIGHTS OFFICE

CODE

CONFEDERATED TRIBES

OF THE

UMATILLA INDIAN RESERVATION

STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended through Resolution No. 17-053 (July 17, 2017)

TRIBAL EMPLOYMENT RIGHTS CODE

TABLE OF CONTENTS

CHAPTER 1.

SECTION 1.01.

SECTION 1.02.

SECTION 1.03.

SECTION 1.04.

SECTION 1.05.

GENERAL PROVISIONS ................................................................................. 1

Title ..................................................................................................................... 1

Purpose................................................................................................................ 1

Findings............................................................................................................... 1

Jurisdiction .......................................................................................................... 1

Definitions........................................................................................................... 2

CHAPTER 2.

SECTION 2.01.

SECTION 2.02.

SECTION 2.03.

TRIBAL EMPLOYMENT RIGHTS OFFICE ................................................... 4

TERO Program Manager .................................................................................... 4

TERO Program Manager Authorities ................................................................. 4

Tribal Minimum or Prevailing Wage .................................................................. 5

CHAPTER 3.

SECTION 3.01.

SECTION 3.02.

SECTION 3.03.

TRIBAL EMPLOYMENT RIGHTS OFFICE COMMISSION ........................ 5

Establishment, Composition and Bylaws ........................................................... 5

Rules Governing Membership on the TERO Comission.................................... 6

Duties, Powers and Limitations .......................................................................... 9

CHAPTER 4.

SECTION 4.01.

SECTION 4.02.

SECTION 4.03.

TERO WORKFORCE ...................................................................................... 10

Indian Preference .............................................................................................. 10

Tribal Hiring Hall ............................................................................................. 10

Unions ............................................................................................................... 11

CHAPTER 5.

SECTION 5.01.

SECTION 5.02.

SECTION 5.03.

SECTION 5.04.

SECTION 5.05.

SECTION 5.06.

SECTION 5.07.

CERTIFIED INDIAN OWNED BUSINESSES .............................................. 11

Scope ................................................................................................................. 11

Certified Indian Owned Business Directory ..................................................... 11

Certification of Indian Owned Businesses ........................................................ 11

Recertification ................................................................................................... 12

Decertification................................................................................................... 12

Solicitation Process ........................................................................................... 12

Appeals ............................................................................................................. 13

CHAPTER 6.

SECTION 6.01.

SECTION 6.02.

SECTION 6.03.

SECTION 6.04.

SECTION 6.05.

SECTION 6.06.

EMPLOYER REQUIREMENTS ..................................................................... 13

Scope ................................................................................................................. 13

Compliance Agreement .................................................................................... 14

Compliance Taxes ............................................................................................. 15

Employer as General Contractor ....................................................................... 15

Job Qualifications and Personnel Requirements............................................... 15

Inspections ........................................................................................................ 15

CHAPTER 7.

SECTION 7.01.

SECTION 7.02.

SECTION 7.03.

SECTION 7.04.

SECTION 7.05.

VIOLATION PROCEDURES.......................................................................... 15

Investigation by the Program Manager ............................................................. 15

Issuance of Citation........................................................................................... 16

Program Manager Review ................................................................................ 16

Emergency Citation and Sanctions ................................................................... 17

Individual Complaint Procedure ....................................................................... 17

CHAPTER 8.

SECTION 8.01.

SECTION 8.02.

SECTION 8.03.

PENALTIES ..................................................................................................... 17

Penalties for Violation ...................................................................................... 17

Monetary Fines ................................................................................................. 18

Enforcement ...................................................................................................... 18

CHAPTER 9.

SECTION 9.01.

APPEALS AND HEARINGS .......................................................................... 18

Appeals and Decisions that can be Appealed ................................................... 18

TRIBAL EMPLOYMENT RIGHTS OFFICE CODE

PAGE i

STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended through Resolution No. 17-053 (July 17, 2017)

SECTION 9.02.

SECTION 9.03.

SECTION 9.04.

SECTION 9.05.

SECTION 9.06.

SECTION 9.07.

Content of Appeal ............................................................................................. 18

Scheduling Appeal Hearing .............................................................................. 19

Request to Reschedule Appeal Hearing ............................................................ 19

Appeal Hearing Participants ............................................................................. 19

Hearing Procedure ............................................................................................ 19

TERO Commission Decision............................................................................ 19

CHAPTER 10.

SECTION 10.01.

SECTION 10.02.

TRIBAL COURT ENFORCEMENT AND JUDICIAL REVIEW .................. 19

Judicial Review of TERO Commission Decisions ........................................... 19

Tribal Court Enforcement of TERO Commission and Program

Manager Decisions............................................................................................ 20

Court Rules ....................................................................................................... 21

Remedies ........................................................................................................... 21

SECTION 10.03.

SECTION 10.04.

TRIBAL EMPLOYMENT RIGHTS OFFICE CODE

PAGE ii

STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended through Resolution No. 17-053 (July 17, 2017)

TRIBAL EMPLOYMENT RIGHTS OFFICE CODE

CHAPTER 1.

GENERAL PROVISIONS

SECTION 1.01.

TITLE

This Code shall be known as the Tribal Employment Rights Office Code.

SECTION 1.02.

PURPOSE

The purposes of this Code are:

To prevent employment related discrimination against American Indians;

To ensure compliance with this Code that is intended to give preference in employment,

contracting and sub-contracting, and training to American Indians;

To maximize utilization of Indian workers in all employment opportunities on and near

TERO jurisdiction lands; and

To ensure the Indian workforce on TERO jurisdiction lands are trained and equipped to

enter the workforce and maintain employment of their choosing.

SECTION 1.03.

FINDINGS

The Board of Trustees of the Confederated Tribes of the Umatilla Indian Reservation find that:

Jobs in the private employment sector on and near TERO jurisdiction lands are an

important resource for Indians residing on and near TERO jurisdiction lands.

In order to attract private employers to locate on TERO jurisdiction lands, Indians

residing on or near TERO jurisdiction lands need to have the training and skills those

employers require.

This Code is consistent and supplemental to existing federal and tribal law prohibiting

employment discrimination against Indians and providing employment and contract

preference to individual Indians and Indian-owned enterprises.

Indian employment on TERO jurisdiction lands continues to be a concern of sufficient

magnitude to warrant the enactment and implementation of this Code which is designed

to improve training and employment opportunities for Indians living on and near TERO

jurisdiction lands.

Many unemployed Indians on TERO jurisdiction lands may have social barriers to

employment such as poor education, substance abuse, the lack of vocational training or

the lack of tools and other equipment needed by their preferred vocation that need to be

addressed.

SECTION 1.04.

JURISDICTION

This Code shall apply to all Employers on all TERO jurisdiction lands as set forth in this

Code and as permitted by applicable law.

This Code shall not apply to any direct employment by the Tribe, its enterprises or

tribally owned corporations, or by federal, state or other governments; however,

contractors and subcontractors of these governmental entities shall be subject to the

Code.

TRIBAL EMPLOYMENT RIGHTS OFFICE CODE

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STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended through Resolution No. 17-053 (July 17, 2017)

This Code shall not apply to or be enforced against Tribal enterprises including, but not

limited to, Wildhorse Resort and Casino, the Tamástslikt Cultural Institute, Arrowhead

Travel Plaza and Mission Market, Cayuse Technologies and other enterprises established

and owned by the Tribe. This Code is not intended to preempt or interfere with the rights

or obligations set forth in the Tribes' Personnel Policies Manual, the Yellowhawk

Personnel Manual, the Umatilla Tribal Police Department Manual, or the personnel

manuals of Tribal enterprises including Wildhorse Resort and Casino, Tamástslikt

Cultural Institute, Cayuse Technologies, Arrowhead Travel Plaza and Mission Market

and other Tribal enterprises now or later established. The employees of the Tribe and

Tribal enterprises shall be limited to the rights and remedies provided in the duly adopted

manuals or procedures enacted by the Tribe for those employees.

Contract disputes between contractors and their subcontractors or their non-Indian

employees are outside the scope or jurisdiction of this Code and are not subject to

enforcement, compliance or the issuance of a citation under this Code. Contract disputes

shall be resolved through specified contract procedures for such disputes or through a

court of competent jurisdiction.

SECTION 1.05.

DEFINITIONS

BOARD OF TRUSTEES – shall mean the governing body of the Confederated Tribes of

the Umatilla Indian Reservation.

COMMISSION – shall mean the Tribal Employment Rights Commission of the

Confederated Tribes of the Umatilla Indian Reservation.

COMMISSIONER – shall mean a member of the Tribal Employment Rights

Commission of the Confederated Tribes of the Umatilla Indian Reservation.

COMPLIANCE AGREEMENT – shall mean an agreement between an Employer and the

Tribal Employment Rights Office (TERO) setting forth how the Employer will meet

Indian preference hiring and subcontracting goals and that they will comply with this

Code. The Compliance Agreement must be executed prior to commencement of any

portion of a project within TERO jurisdiction lands.

CORE CREW – shall mean the essential, permanent employees of an Employer who

have been regular employees of the Employer for at least six months prior to the start of

the project.

COVERED ACTIVITIES – The following activities shall be subject to the provisions of

this Code when the project costs equal $25,000 or more:

Construction, repair, installation or maintenance of buildings, structures,

improvements, bridges, roads, utility service lines, pipelines, electrical

transmission lines, fiber optic and communication systems, railroads, or

machinery and equipment that is affixed or erected upon real property and is not

readily movable or is attached to other machinery and equipment such as

conveyers, pipes or wiring or merely rest in place by virtue of its weight;

Vegetation clearing, digging, soil preparing, logging or tree-thinning,

reforestation and revegetation activities, environmental and habitat restoration,

mitigation activities; or

Excavating or mining.

Excluded Activities. Farming and ranching activities involving planting,

harvesting, weed control and soil preparation are specifically excluded from this

provision of the TERO Code.

TRIBAL EMPLOYMENT RIGHTS OFFICE CODE

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STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended through Resolution No. 17-053 (July 17, 2017)

EMPLOYER – shall mean any person, company, contractor, subcontractor or entity

located or engaged in business activities on TERO jurisdiction lands when conducting

work with non-regular employees. This includes, but is not limited to, contractors, and

subcontractors of federal, state, county and other local governments and governmentowned enterprises, doing work on TERO jurisdiction lands. The term does not include

the Tribe, federal, state or local governments or their entities when they are employers.

Also excluded are owners of single-family residences when is, or will be postconstruction, occupied by the owner as well as owner-operated farm: buildings,

structures, storage facilitates and irrigation systems.

ENGAGED IN WORK ON TERO JURISDICTION LANDS – shall mean any portion of

a business enterprise or project performed on TERO jurisdiction lands.

INDIAN – shall mean any person enrolled in a federally recognized tribe.

INDIAN OWNED BUSINESS – shall mean a business certified by the TERO Program

to be at least 60% owned, operated and controlled by an Indian.

INDIAN PREFERENCE – shall mean a preference for enrolled Indians in all aspects of

employment, including but not limited to, hiring, training, promotions, layoffs,

contracting and subcontracting for work on TERO jurisdiction lands.

MEMORANDUM OF UNDERSTANDING – shall mean the agreement between the

Tribe and other parties outlining the requirements and responsibilities of Employers on

TERO jurisdiction lands.

PROGRAM MANAGER – shall mean the Program Manager of the Umatilla Tribal

Employment Rights Office.

PROJECT COSTS – shall mean all costs that are incurred, including installation, supplies

and materials, labor, repair, installation and maintenance. Tangible personal property is

excluded including all chattels and movables, such as: boats, vessels and forklifts;

merchandise and stock and trade held for resale; computers and computer equipment;

office equipment; sales registers; store fixtures and displays; furniture and personal

effects; goods; livestock; vehicles; farming implements; moveable machinery; movable

equipment; and movable tools. Engineering, design, freight and permitting costs are also

excluded.

TERO – shall mean the Tribal Employment Rights Office of the Confederated Tribes of

the Umatilla Indian Reservation.

TERO JURISDICTION LANDS – shall mean:

All lands within the Confederated Tribes of the Umatilla Indian Reservation;

All Indian Country as defined by 18 U.S.C. 1151 which the Confederated Tribes

of the Umatilla Indian Reservation has an interest in or authority over;

All lands the Confederated Tribes of Umatilla Indian Reservation has an

ownership interest in outside the exterior boundaries of the Umatilla Indian

Reservation; and

All lands covered by a Memorandum of Understanding (MOU).

TERO WORKER – shall mean any Indian referred through the TERO Program.

TRIBE or TRIBAL – shall mean the Confederated Tribes of the Umatilla Indian

Reservation.

TRIBAL EMPLOYMENT RIGHTS OFFICE CODE

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STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended through Resolution No. 17-053 (July 17, 2017)

TRIBAL COURT – shall mean the Umatilla Tribal Court of the Confederated Tribes of

the Umatilla Indian Reservation.

CHAPTER 2.

TRIBAL EMPLOYMENT RIGHTS OFFICE

SECTION 2.01.

TERO PROGRAM MANAGER

The Program Manager of the Tribal Employment Rights Office shall be responsible for

administering the provisions of this Code and provide direction, leadership and oversight to the

TERO Program staff. “TERO Program Manager” shall include his/her designees when used in

this Code.

SECTION 2.02.

TERO PROGRAM MANAGER AUTHORITIES

The Program Manager shall have the authority to maintain daily operations of the TERO

Program, to obtain and expend funds from tribal, federal, state or other sources, to carry

out the purposes of this Code in accordance with the Fiscal Management Policy, to

establish Employer record-keeping requirements, to consult with the TERO Commission

on policy issues related to the implementation of this Code and to take such other actions

as are necessary for the fair and vigorous enforcement of this Code.

The Program Manager shall have the authority to:

Negotiate, monitor and enforce Compliance Agreements with Employers;

Investigate violations and impose penalties on Employers who violate the

provisions of the Code;

Develop and promulgate regulations necessary to implement the provisions of this

Code;

Ensure compliance with all Equal Employment Opportunity Commission grants,

contracts or agreements;

For purposes of Compliance Agreements, develop and impose numerical hiring

goals and contracting goals that reflect the available Indian labor pool and Indian

Owned Businesses;

Establish and maintain a tribal hiring hall that maintains a record of qualified,

employable Indians to be used by employers to fill vacancies;

Prohibit any Employer from imposing employment qualification criteria that

serve as barriers to Indian employment unless it can be demonstrated that such

criteria are required by business necessity;

Revoke, or refuse to enter into, a Compliance Agreement with an Employer that

has operated an unsafe work environment as outlined in Chapter 7;

Negotiate cooperative agreements with federal, state, tribal and local governments

and businesses to minimize employment discrimination against Indians on TERO

jurisdiction lands, to promote Indian Preference in hiring, training, and

contracting and to otherwise ensure compliance with this Code;

10.

Audit certified payroll reports, from Employers, monitor wage scale and salaries

to ensure equitable compensation of Indian workers;

11.

Collect a TERO compliance tax on Employers; and

TRIBAL EMPLOYMENT RIGHTS OFFICE CODE

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STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended through Resolution No. 17-053 (July 17, 2017)

12.

Advertise, collect data, investigate, communicate and process applications or recertifications for entrance onto the Indian Owned Business Directory.

SECTION 2.03.

TRIBAL MINIMUM OR PREVAILING WAGE

With approval of the Board of Trustees, the Program Manager may promulgate a Tribal

Minimum Wage or Prevailing Wage as provided in this Section. Such Tribal Minimum or

Prevailing Wage shall only apply to Employers subject to this Code. A Tribal Minimum

or Prevailing Wage established under this subsection may be included in a Compliance

Agreement pursuant to Section 6.01 of this Code.

Definitions. For purposes of this Section, the terms “Minimum Wage” and “Prevailing

Wage” are defined as follows:

Minimum Wage – shall mean the lowest wage that the Employer can pay any

employee. The Minimum Wage shall not be less than the federal minimum wage.

Prevailing Wage – shall mean the lowest wage that an Employer can pay any

employee by trade or craft. A Prevailing Wage need not limit or put a cap on all

employees in a particular craft or trade.

If the Program Manager elects to promulgate a proposed Minimum Wage or Prevailing

Wage, the following factors may be taken into consideration:

The prevailing wage for each job classification in the Oregon or Washington

wage classifications;

The prevailing wages established by other Northwest Indian tribe;

The number of Indian persons living on or near TERO jurisdiction lands with the

particular craft or trade skills;

The unemployment rate of Indians living on or near TERO jurisdiction lands –

especially the unemployment rate for the particular craft or trade;

Local labor and market conditions;

The potential impact of the Prevailing Wage to attract businesses or Construction

Employers to do business on TERO jurisdiction lands; and

The potential impact of the Prevailing Wage in raising the costs of Tribal projects.

The draft Minimum or Prevailing Wage shall be published in the CUJ with notice of the

comment opportunity and comment deadline date and distributed to all Tribal

governmental departments, enterprises and to persons or entities that may be impacted by

such a proposal for review and comment. The record shall be kept open for at least thirty

days to permit comments to be submitted.

CHAPTER 3.

TRIBAL EMPLOYMENT RIGHTS OFFICE COMMISSION

SECTION 3.01.

ESTABLISHMENT, COMPOSITION AND BYLAWS

There is hereby created the Tribal Employment Rights Office (TERO) Commission.

Membership. The Commission shall be comprised of five members appointed by the

Board of Trustees.

TRIBAL EMPLOYMENT RIGHTS OFFICE CODE

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STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended through Resolution No. 17-053 (July 17, 2017)

Selection of Commission Officers. The Commission shall elect annually a Chair, Vice

Chair and Secretary from its membership.

Duties of the Chairperson. The Chairperson shall preside at all meetings of the

Commission and, along with at least one other Commission member, shall be authorized

to sign required documents in accordance with the powers of the Commission. The

Commission Chair will establish meeting dates and times in coordination with the TERO

program staff.

Duties of the Vice-Chairperson. The Vice-Chairperson shall assist the Chairperson when

called upon to do so. In the absence of the Chairperson, the Vice-Chairperson shall

preside over Commission meetings and when so presiding, shall have all the rights and

duties of the Chairperson.

Duties of the Secretary-Treasurer. The Secretary-Treasurer shall be responsible for

assuring the timely and proper production, distribution and storage of all written records

of the Commission, including administrative and financial documents. The SecretaryTreasurer shall keep informed about the Commission’s expenditures and remaining

budget. The Secretary-Treasurer shall assure that all Commission minutes, executive

summaries and purchase requisitions shall be distributed to appropriate Tribal offices. At

each regularly scheduled Commission meeting, the Secretary-Treasurer shall submit the

official Commission minutes from the prior Commission meeting for the Commission’s

review and approval, and shall also provide a brief report on the state of the

Commission’s budget. With the assistance of TERO staff, the Secretary-Treasurer shall

ensure that new Commission members are provided with orientation materials, if any

exist.

SECTION 3.02.

RULES GOVERNING MEMBERSHIP ON THE TERO COMISSION

Members of the TERO Commission shall possess and demonstrate as minimum

qualifications:

Enrolled member of the Confederated Tribes of the Umatilla Indian Reservation;

Eighteen years of age or older;

Having no Gross Conflicts of Interest, as defined below;

Willingness and ability to comply with the Ethical Duties of Commission

Members, as defined below;

Willingness and ability to perform the Commission’s duties in compliance with

the Confederated Tribes’ Treaty, Constitution and statutes; and

Knowledge and familiarity of the TERO Code.

Terms. Appointments to the Commission shall be for a period of two years. There is no

limitation on the number of terms a Commissioner may serve.

Gross Conflicts of Interest.

No person may be appointed to the TERO Commission who:

Is employed in the TERO program of the Confederated Tribes;

Is engaged in litigation against the Confederated Tribes in a matter related

to the subject matter of the Commission; or

TRIBAL EMPLOYMENT RIGHTS OFFICE CODE

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STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended through Resolution No. 17-053 (July 17, 2017)

Has a similar interest that would necessarily grossly conflict with the

impartial performance of a Commissioner’s duties.

The Board of Trustees’ determination whether an applicant is barred from

appointment by a gross conflict of interest (or must be removed from the

Commission due to a gross conflict of interest) is final.

Oath of Office. Each appointee to the TERO Commission shall take an oath of office

prior to assuming the duties of Commission membership. The oath shall be administered

by an officer of the Umatilla Tribal Court.

Ethical Duties of Commissioners. TERO Commissioners are expected to comply with the

following ethical requirements. Violations of these ethical duties may be considered

neglect of duty or gross misconduct, requiring the removal of a Commissioner, depending

on the severity and/or frequency of the violation.

Commissioners shall comply with their oath of office and shall generally avoid

the appearance of impropriety.

Commissioners shall not attempt to exceed the authority granted to

Commissioners by this Code.

Commissioners shall recognize that the authority delegated by this Code is to the

Commission as a whole, not to individual Commissioners. As a result, the powers

of the Commission may only be exercised by the Commission, acting through the

procedures established by this Code.

Commission members shall not involve the Commission in any controversy

outside the Commission’s duties.

Commissioners shall hold all information revealed during the course of

Commission business in strict confidence, including information about the Tribe,

the Tribe’s partners, appealing parties, records from appeals, employees,

community members and Commission deliberations. Commissioners may only

discuss or disclose such information to persons who are entitled to the

information, and only for the purpose of conducting official Commission

business.

Commission members are expected to behave in a professional manner and treat

each other with courtesy.

Conflict of Interest.

When a matter before the Commission directly and specifically affects a

Commissioner’s own interests, or the interests of his or her immediate

family, that member has a “conflict of interest.” Immediate family

includes parents, children, spouse or domestic partner, siblings,

grandparents, grandchildren, stepparent, stepsibling, stepchildren or any

other person residing in the Commissioner’s household. Except as

described below, a Commissioner shall not act in an official capacity when

he or she has a conflict of interest.

A Commissioner must inform the Commission of any conflict of interest

immediately upon becoming aware of the conflict.

In all other cases, immediately after disclosing the conflict, a Commission

member shall recuse himself or herself from discussion of, and voting on,

any matter concerning the conflict. Commissioners shall not discuss or

TRIBAL EMPLOYMENT RIGHTS OFFICE CODE

Page 7

STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended through Resolution No. 17-053 (July 17, 2017)

vote on the matter in the presence of a Commissioner who has a conflict of

interest.

It is not a violation of this provision for a Commissioner to disclose a

conflict about an issue, suggest that the Commission take action on the

issue, and then recuse himself or herself from the Commission discussion

and voting on the issue.

If an apparent conflict of interest exists, but the Commissioner with the

conflict refuses to comply with these procedures, then the Commission

shall table the matter until such time as the Commissioner leaves or the

dispute is otherwise resolved. A Commissioner’s refusal to comply with

these procedures shall constitute neglect of duty and/or gross misconduct,

justifying removal from the Commission.

Revocation of Appointment. TERO Commission members serve at the pleasure of the

Board of Trustees. Appointment to the TERO Commission confers no liberty or property

rights upon the appointee. The Board of Trustees may revoke a person’s appointment to

the TERO Commission at any time, regardless of the length of time remaining in the

person’s appointment. It is not required that the Board state a reason for revoking the

appointment or provide the person an opportunity to appear before the Board. A majority

vote by the Board is sufficient to revoke any appointment. Revocation decisions by the

Board are not subject to review or appeal to any administrative or judicial forum.

Removal by Commission Motion. Whenever it comes to the attention of the TERO

Commission that one of its members may: (1) fail to meet the minimum qualifications for

membership, (2) have a gross conflict of interest, or (3) have committed neglect of duty

or gross misconduct, the Commission by motion, may decide to hold a hearing inquiring

into the matter.

At least five business days before the hearing is scheduled, the Chairperson shall

provide notice of the hearing to the Commission member whose conduct is the

subject of the hearing. The notice of the hearing shall include a written statement

of the charges against the Commission member.

At the hearing, the Commission member shall have an opportunity to appear

before the Commission and answer all charges against him or her before the

Commission votes. The Commission member shall represent his or her self, and

shall not be represented by an attorney. If the Commission concludes by majority

vote that the Commission member fails to meet minimum qualifications for

membership, has a gross conflict of interest, or has committed neglect of duty or

gross misconduct, the Chairperson shall promptly notify the Commission member

and the Secretary of the Board of Trustees that the Commission member has been

removed from the Commission.

The decision of the Commission shall be final, except the Board of Trustees may

review the decision on the Board's own motion, and may impose a different

decision than the one ordered by the Commission. If the Board does this, it will

immediately convey its decision in writing to the Chairperson of the Commission.

Resignation by Letter. Any Commission member who wishes to resign from the TERO

Commission shall submit his or her written resignation to the Chairperson.

Resignation by Default. If any Commission member is absent from three consecutive

meetings of the committee without excuse or misses more than 50% of the regular

meetings during a year, that Commission member shall be considered to have resigned

without providing notice to the Chairperson.

TRIBAL EMPLOYMENT RIGHTS OFFICE CODE

Page 8

STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended through Resolution No. 17-053 (July 17, 2017)

SECTION 3.03.

DUTIES, POWERS AND LIMITATIONS

Duties. The TERO Commission shall carry out its duties under this Code consistent with

the Confederated Tribes Constitution and Bylaws. In exercise of its duties, the

Commission shall:

Review on-the-job training hours as recorded by TERO staff for Tribal

Apprenticeship Programs;

Review recommendations for Code amendments;

Review regulations developed by the TERO Program Manager; and

Hear appeals under Chapter 9.

Limitations.

The Commission is prohibited from inquiring into, participating in, or attempting

to influence managerial decisions concerning the Human Resources Department,

the TERO Program or TERO staff.

Except when authorized by the Commission, no individual Commissioner may

take action or make any commitment on behalf of the Commission or TERO

Program. The TERO Commission does not represent the TERO Program or staff.

The TERO Commission has no authority to waive the sovereign immunity of the

Tribe, its agents or entities.

Meetings.

Meetings of the TERO Commission shall be held at regularly scheduled times

each month.

Special meetings shall be called only upon the written authorization of the

Commission Chairperson and, except when of an emergency nature, shall be

posted at least five days in advance.

Regular meetings shall be open to the public. Whenever necessary, in the judgment

of the committee Chairperson, to protect the confidentiality of sensitive information,

the committee shall hold private deliberations. A committee Chairperson may

temporarily recess a regular or special meeting in order to conduct private

deliberations. Members of the public, including members of the General Council, are

prohibited from attending private deliberations. Staff may only attend private

deliberations if as a consequence of their job duties they have specialized information

or responsibilities concerning the matter being discussed, and the committee

Chairperson allows them to attend. Board of Trustees members and senior staff (or

the senior staffs' designees) are entitled to attend any private deliberations of a

committee so long as the person attending does not have a conflict of interest

concerning the matter being discussed. Because private deliberations take place while

the committee is in recess, no taking of minutes or recording of the deliberations shall

take place. No notice of private deliberations is required. If a closed session occurs in

the absence of a committee member who does not have a conflict of interest

concerning the subject matter being discussed, the absent committee member may

request an oral report on the subject matter discussed by the committee members who

were present for the closed session.

Quorum. Commission business may only take place when two or more voting members

are present in addition to the presiding Chairperson. Voting by proxy shall not be

TRIBAL EMPLOYMENT RIGHTS OFFICE CODE

Page 9

STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended through Resolution No. 17-053 (July 17, 2017)

allowed. A Commission meeting shall not be cancelled if a quorum is present, except by

consensus of the Commission’s members.

Meeting Business. The Commission shall attempt whenever possible to execute its

powers by consensus. If a consensus cannot be achieved, the affirmative vote of a

majority of the Commissioners shall be required to take Commission action. The

Chairperson shall vote only in the event of a tie. All documents requiring Commission

signature, shall bear the signature of the Chairperson and at least one other

Commissioner.

SECTION 3.04

COMMISSION TRAINING

The Commission will be afforded annual training on hearing procedures and decision-making

techniques.

CHAPTER 4.

TERO WORKFORCE

SECTION 4.01.

INDIAN PREFERENCE

Scope. Indian Preference shall be applied in all aspects of employment on employment

projects under this Code.

Layoffs. In all layoffs and reductions in force, no Indian worker shall be terminated if a

non-Indian worker in the same job classification is still employed. The non-Indian shall

be terminated first if the Indian possesses threshold qualifications for the job

classification. If an Employer lays off workers by crews, all qualified Indian workers

shall be transferred to crews to be retained so long as non-Indians in the same job

classification are employed elsewhere on the job site, except for non-Indians hired as

Core Crew pursuant to negotiated Compliance Agreements.

Promotions. Each Employer shall give Indians preferential consideration for all

promotion opportunities and shall encourage Indians to seek such opportunities. For each

promotion or supervisory position filled by a non-Indian, the Employer shall file a report

with the TERO Program Manager stating what efforts were made to inform Indian

workers about the position, what Indians, if any, applied for the position and if an Indian

was not chosen, the reasons an Indian was not selected.

Core Crew. Core Crew requests must be submitted to the TERO staff in writing, showing

that each Core Crew member meets these criteria before the start of any project work.

Approval of Core Crew members does not exempt any Employer from TERO hiring

goals or other compliance agreement terms.

Indian Core Crew members may count toward the hiring goal.

The Indian Core Crew members must be registered with the TERO Program.

The Indian Core Crew members must be identified prior to signing the

Compliance Agreement.

SECTION 4.02.

TRIBAL HIRING HALL

The Program Manager shall establish and maintain a hiring hall to assist Employers

doing business on TERO jurisdiction lands in placing qualified Indians in job positions.

An Employer shall not hire a non-Indian in violation of the Compliance Agreement until

the Program Manager has certified within a reasonable time that no qualified Indian is

available to fill the vacancy. For purposes of this section, "reasonable time" for

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STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

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construction jobs shall mean that the Program Manager shall have 48 hours from time of

notice of manpower needs to locate and refer a qualified Indian.

The Program Manager may waive the 48-hour time period upon a showing by the

Employer that such time period imposes an undue burden upon the Employer, the

business or the construction project in question.

SECTION 4.03.

UNIONS

Employers with collective bargaining agreements with a union are responsible for informing

such unions of this Code, its rules and regulations, applicable Memorandums of Understanding

and their Compliance Agreement. Unions will give absolute preference to Indians in job referrals

regardless of which referral list they are on. Temporary work permits will be granted to Indians

who do not wish to join a union. Nothing herein shall constitute official tribal recognition of any

union or tribal endorsement of any union activities on TERO jurisdiction lands.

Any existing or prospective labor organizations on the CTUIR are required to comply with the

registration and operation procedures outlined in the CTUIR Right to Work Code.

CHAPTER 5.

CERTIFIED INDIAN OWNED BUSINESSES

SECTION 5.01.

SCOPE

Employers shall give preference to Indian Owned Businesses in the award of contracts or

subcontracts to the extent permitted by applicable law. Indian Owned Businesses must be

certified by the TERO Program Manager to be included on TERO’s Indian Owned Business

Directory and to obtain Indian Preference under this Code in contract bids on TERO jurisdiction

lands.

SECTION 5.02.

CERTIFIED INDIAN OWNED BUSINESS DIRECTORY

The Program Manager shall maintain an updated list of certified Indian Owned Businesses.

SECTION 5.03.

CERTIFICATION OF INDIAN OWNED BUSINESSES

All applicants seeking to be certified as a TERO certified Indian Owned Business, at a

minimum, along with a complete certification application, shall provide the following

documentation to the TERO office to prove the business is at least 60% owned, operated

and controlled by an Indian:

Proof of enrollment/membership with a federally recognized tribe, nation or band,

including Alaskan Native villages, communities and corporations;

Proof of ownership of the business with at least 60% Indian ownership and proof

that the Indian owner exercises majority control of the business and is

substantially involved in the day-to-day management and operations;

The Indian owner(s) must establish that they provide real value for their stated

ownership interests by providing legal documents such as stock ownership,

capital, assets, structure, management, control, financing and salary

commensurate with the value of their ownership share;

The Indian owner(s) will receive a percentage of all profits equal to their

ownership interest. Any provision that give a non-Indian owner a greater share of

the profits, such as but not limited to: management fees, equipment rental fees or

bonuses will result in decertification;

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Business license certifications, business structure documents (sole proprietor,

partnerships, incorporations, LLC), insurance and bonding capabilities;

Business Plan that includes proof of the experience and staff expertise in the

specific field, projected financials and references;

Portfolio that includes proof of the experience and staff expertise in the specific

field listed, resume of jobs completed and references;

Any additional licensing documentation specific for the service provided;

When applicable, proof of certification as an Indian Owned Business by another

entity or organization along with a signed release of information to access records

and the review process; and

10.

Any other documentation or pertinent information required by TERO. Applicants

missing documents from this subsection shall submit written justification for

those missing items.

TERO shall have sole discretion in determining the legitimacy of submitted

documentation. TERO reserves the right to exempt any documentation requirement if

deemed not necessary for the type of service provided.

The TERO staff, along with the Office of Legal Counsel and the Tax Administrator, as

appropriate, shall review completed applications and all supporting documentation.

SECTION 5.04.

RECERTIFICATION

Certified Indian Owned Business must be recertified every two years. Businesses wishing to

maintain their status as a Certified Indian Owned Business will need to submit all the

documentation as required in Section 5.03 at least ninety days prior to their two-year anniversary

to allow adequate time for the recertification review and prevent a lapse in status.

SECTION 5.05.

Certified Indian Owned Business may be de-certified at any time for any one or more of

the following:

Failure to meet the requirements of Section 5.03 of this Code;

Failure to notify TERO in writing of changes in ownership, operation and/or

control status within thirty days after the change(s) have occurred;

Participation in illegal or prohibited activities; or

Subject to disciplinary action in another jurisdiction.

A business de-certified by TERO is banned from reapplying for Indian Owned Business

certification for two years if it was banned for any reason except failure to recertify in

time.

SECTION 5.06.

DECERTIFICATION

SOLICITATION PROCESS

Indian Owned Businesses shall be given preference as provided in this Section 5.06 in

any procurement process permitted under Fiscal Management Policies applicable to an

Employer adopted by the Board of Trustees and, for all other Employers, by any other

competitive solicitation or bid process that the Employer may use. An Employer shall be

authorized to use standard evaluation tools to determine if an IOB has the experience,

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STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended through Resolution No. 17-053 (July 17, 2017)

expertise, personnel and resources to provide the goods or services on the schedule

needed by that Employer. If an IOB is qualified and timely submits a responsive bid, that

IOB shall receive the preference set forth in Section 5.06.B.

Any responsive and qualified Indian Owned Business that timely bids on a project and is

not the lowest responsive and qualified bid will be awarded the contract if their bid is

within the applicable percentages of the lowest non-Indian bidder. In the event of

multiple responsive and qualified Indian Owned Business bids, the lowest and most

qualified will be awarded the contract. Applicable percentages are as follows:

Contract Price

Less than $100,000

Added Bidding Value

10% of the lowest bid or a maximum of

$9,000

At least $100,000 but less than $250,000

8% of the lowest bid or a maximum of

$20,000

At least $250,000 but less than $500,000

6% of the lowest bid or a maximum of

$30,000

At least $500,000 but less than $1 million

5% of the lowest bid or a maximum of

$45,000

At least $1 million but less than $5 million 3% of the lowest bid or a maximum of

$150,000

At least $5 million but less than $10 2% of the lowest bid or a maximum of

million

$200,000

$10 million or more

1% of the lowest bid, with no dollar limit

The Indian Owned Businesses preference does not prevent an Employer from rejecting a

sole responsive bidder or rejecting all bids.

Employers are responsible for enforcing the solicitation process.

SECTION 5.07.

APPEALS

Businesses denied certification, recertification, solicitation preference or who are decertified may

appeal within ten business days of denial per the Appeal process in Chapter 9.

CHAPTER 6.

EMPLOYER REQUIREMENTS

SECTION 6.01.

SCOPE

All Employers performing work on TERO jurisdiction lands, at a minimum, shall:

Give preference to Indians in hiring, promotion, training and all other aspects of

employment.

Comply with the terms of this Code and its implementing regulations.

Ensure a safe working environment as defined by applicable law and industry standards.

Comply with all Compliance Agreements executed under this Code.

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STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended through Resolution No. 17-053 (July 17, 2017)

SECTION 6.02.

COMPLIANCE AGREEMENT

Each Employer shall be required to coordinate with the TERO Program to negotiate and

execute a Compliance Agreement which sets forth:

Hiring Goals. The minimum number of Indians that shall be hired for any

particular project while the Employer is located or engaged in work on TERO

jurisdiction lands. This includes numerical goals and timetables for each craft,

skill area, job classification, etc., as a percentage of total hours worked on the

project, used by the Employer including, but not limited to: general labor, skilled,

administrative, supervisory, and professional categories;

Wage Rates. Applicable wage scale provisions, prevailing wage standards and

salary compensation terms that may be applicable to a project or contract under

applicable federal or state law, or tribal law, if a Tribal minimum or prevailing

wage has been promulgated as provided in Section 2.03 of this Code;

Reporting Requirements. Periodic reporting requirements to the TERO Program

on the number of Indians employed; a record of persons hired, fired or promoted

during the reporting period; and a statement regarding compliance with the hiring

goals set forth in the Compliance Agreement;

Compliance Tax Rate. See Section 6.03 for additional information; and

Business Directory. All Employers are required to work with TERO and the

Indian Owned Business Directory to solicit Indian Owned Businesses on projects

within TERO jurisdiction lands. Due diligence to provide economic opportunities

must be a goal of each project.

Indian sub-contracting hiring goals.

On-the-job training hours, if applicable.

The numerical goals set forth in the Compliance Agreement shall be based upon the

available and qualified Indian work force, contractor availability and projected

employment opportunities on TERO jurisdiction lands.

Compliance Agreements shall be reviewed periodically and revised as necessary to

reflect changes in the number of Indians available or changes in Employer hiring needs.

No Employer shall commence work or site mobilization until a Compliance Agreement

has been negotiated and executed.

Employers must make every reasonable effort to achieve the hiring goals outlined in the

Compliance Agreement.

Any violation of an executed Compliance Agreement shall be subject to citation and

penalty per Chapters 7 and 8 of this Code.

Employers shall inform the TERO Program before any TERO worker is terminated to

allow for counseling, when possible.

When a TERO worker is terminated or unable to continue working, the Employer shall

immediately notify the TERO office which may provide a substitute referral within three

business days or notify the Employer that it has no referrals for the position, after which

time the Employer will be authorized to hire a permanent replacement. The Employer

may submit a written request and justification for a shorter rehire period.

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STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended through Resolution No. 17-053 (July 17, 2017)

SECTION 6.03.

COMPLIANCE TAXES

The Program Manager shall assess and collect a compliance tax after a review of the entire

eligible project costs.

The tax rates for projects costs are as follows:

$0 – $24,999

$25,000 – $99,999

$100,000 – $999,999

$1,000,000 – $9,999,999

$10,000,000 +

n/a

The maximum tax amount shall be capped at $500,000.

Compliance taxes must be paid by the Employer prior to commencing work on TERO

jurisdiction lands.

The Program Manager has the authority to negotiate alternative compliance taxes for

projects that partially overlap TERO jurisdiction lands per a memorandum of

understanding. All MOU’s are subject to Board approval.

Compliance taxes shall be used by the TERO Program per the TERO Tax Guidelines.

SECTION 6.04.

EMPLOYER AS GENERAL CONTRACTOR

Where the Employer is a general contractor on a project under this Code, that general contractor

shall ensure that it and all its subcontractors, also employers, comply with this Code. The general

contractor may be held liable for violations of this Code by its subcontractors.

SECTION 6.05.

JOB QUALIFICATIONS AND PERSONNEL REQUIREMENTS

An Employer shall not use qualification criteria or other personnel requirements that serve as

barriers to Indian employment unless the Employer is able to demonstrate that such criteria or

requirements are required by business necessity.

SECTION 6.06.

INSPECTIONS

The Program Manager and any authorized TERO staff shall have the authority to make

on-site inspections during regular working hours in order to monitor compliance with this

Code and the applicable Compliance Agreement by an Employer.

The Program Manager and any authorized TERO staff shall have the right to inspect and

copy all relevant records of an Employer, of any signatory union or subcontractor of an

Employer, and shall have the right to speak to workers and to conduct an investigation on

the job site.

All information collected by the Program Manager and/or TERO staff during inspection

shall be kept confidential unless disclosure is necessary or ordered as part of any federal

or tribal judicial or administrative proceeding.

CHAPTER 7.

VIOLATION PROCEDURES

SECTION 7.01.

INVESTIGATION BY THE PROGRAM MANAGER

Whenever a violation of this Code or a Compliance Agreement has been alleged and is brought

to the attention of the Program Manager, the Program Manager shall ensure a prompt and

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STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended through Resolution No. 17-053 (July 17, 2017)

thorough investigation of the alleged violation. The Program Manager shall seek to achieve an

informal settlement of the alleged violation, with a written report of findings provided to the

Commission.

SECTION 7.02.

ISSUANCE OF CITATION

If the Program Manager determines that a violation of the Code or a Compliance

Agreement occurred, and an informal settlement cannot be achieved, the Program

Manager shall issue a warning to the Employer. This warning shall specify the nature of

the violation and direct that the violation be corrected within three business days or

sooner where warranted.

If the violation is not corrected within the time specified, the Program Manager shall

issue a citation to the Employer which shall:

Be in writing and in the name of the Confederated Tribes;

State the name of the violator;

Bear the signature of the Program Manager or the authorized representative;

State the name and section number of the Code provision or Compliance

Agreement violated;

State a brief summary of the facts constituting the violation; and

State a time and place the Employer must appear to answer to the violation at a

Program Manager review.

SECTION 7.03.

PROGRAM MANAGER REVIEW

An Employer who receives a citation, or has revoked or is refused a Compliance Agreement,

shall be entitled to a review with the Program Manager no later than ten business days after

receipt of a citation or Compliance Agreement revocation or refusal.

Program Manager Review. Program Manager review meeting procedures shall comply

with the requirements of due process, but will not be bound by the formal rules of

evidence. The evidence against the Employer will be shared by the Program Manager.

The Employer shall be entitled to present evidence and to call witnesses to demonstrate

that it has complied with the requirements of this Code or Compliance Agreement or that

it made its best effort to do so, or did not operate an unsafe work environment as defined

by applicable law and industry standards, and therefore should not be subject to

sanctions, or revocation or refusal of a Compliance Agreement.

Program Manager Decision and Sanctions. On the basis of evidence presented at the

review, and the information collected by the Office, the Program Manager shall

determine whether or not the Employer complied with this Code or Compliance

Agreement. If the Program Manager determines that the Employer, by clear and

convincing evidence, is out of compliance and has not made a best effort to comply, the

Program Manager shall impose one or more of the sanctions provided for in this Code, as

appropriate, and shall order the Employer to take such corrective action as is necessary to

remedy any harm done to the Tribe or individual Indians caused by the non-compliance.

If the Program Manager determines that an Employer has, by clear and convincing

evidence, operated an unsafe work environment, he or she shall continue the revocation

or refusal of a Compliance Agreement. The Program Manager shall send written notice to

all parties within ten business days after the review meeting is completed.

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STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended through Resolution No. 17-053 (July 17, 2017)

SECTION 7.04.

EMERGENCY CITATION AND SANCTIONS

When the Program Manager determines that a violation has occurred that is of a critical nature

requiring immediate action, the Program Manager may issue a citation without delay, stating

sanctions to be placed on the offending Employer. The Employer shall have the right to appeal

the citation and any imposition of emergency sanctions to the TERO Commission. The TERO

Commission shall schedule a hearing on any appeal of a decision by the Program Manager

granting emergency action pursuant to this subsection to be held within seven business days.

SECTION 7.05.

INDIVIDUAL COMPLAINT PROCEDURE

Any Indian employee who believes that an Employer has failed to comply with this Code

or applicable Compliance Agreement, or who believes that he/she has been discriminated

against in violation of tribal law because they are Indian, may file a complaint with the

TERO Program. The complainant shall be responsible for providing the TERO Program

with evidence of the discriminatory practices.

Upon receipt of a complaint supported by sufficient evidence of discrimination against an

Indian employee, the TERO Program Manager or designated staff shall conduct an

investigation of the allegation(s), which shall include interviews of the project manager

for the Employer and any person(s) allegedly responsible for the discriminatory conduct,

and shall attempt to achieve an informal settlement of the matter. If voluntary conciliation

cannot be achieved, the Program Manager shall hold a review on the matter, shall make a

determination on the validity of the allegation, and shall order such relief as is necessary

to make whole any Indian who is harmed by the Employer's non-compliance or

discriminatory behavior. The decision shall be in writing and shall be sent to all parties

within seven business days after the review meeting is completed.

In conducting the review, the Program Manager shall have the same powers, and shall be

bound by the same review requirements as provided in Sections 7.03 and 7.04 of this

Chapter.

CHAPTER 8.

PENALTIES

SECTION 8.01.

PENALTIES FOR VIOLATION

An Employer who violates this Code or a Compliance Agreement shall be subject to penalties

including, but not limited to:

Denial of the right to commence or continue business on TERO jurisdiction lands;

Suspension of operations on TERO jurisdiction lands;

Payment of back pay and/or damages to compensate any injured party;

An order to summarily remove employees hired in violation of this Code or a

Compliance Agreement;

Imposition of monetary civil penalties pursuant to applicable sections of this Code.

Consideration will be given to the severity of the violation, whether any other penalty

pursuant to this section was imposed and whether the person or entity that is subject to

the fine has any prior history of violating this Code; or

An order specifying requirements for employment, promotion, and training Indians

injured by the violation.

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STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended through Resolution No. 17-053 (July 17, 2017)

SECTION 8.02.

MONETARY FINES

The maximum monetary penalty that may be imposed for a violation is one thousand dollars

($1,000) per violation per day. For purposes of the imposition of penalties determined by the

Court or sanction by the Program Manager, each day during which a violation exists shall

constitute a separate violation.

SECTION 8.03.

ENFORCEMENT

The Program Manager shall be entitled to pursue the enforcement of any order of the

TERO Commission or the Umatilla Tribal Court when necessary to ensure compliance

with the terms and conditions of the order.

Any cost associated with the enforcement of such order issued pursuant to this Code shall

be assessed against the Employer who is out of compliance. These may include, but not

be limited to: document reproduction costs, filing fees, attorney fees and costs incurred

by the Tribe or the Office related to securing enforcement of the order.

Employers who do not comply with the provisions of this Code, and leave TERO

jurisdiction lands before enforcement penalties are imposed and collected or an

enforcement order is issued by the TERO Commission or the Umatilla Tribal Court, shall

be denied the privilege of contracting or doing further business on TERO jurisdiction

lands.

CHAPTER 9.

APPEALS AND HEARINGS

SECTION 9.01.

APPEALS AND DECISIONS THAT CAN BE APPEALED

The following may be appealed:

Appeal of decision on citation issued to Employer by Program Manager;

Appeal of Program Manager’s written decision on an individual’s complaint under

Section 7.05;

Appeal of Program Manager’s written decision to grant emergency action against an

Employer;

Appeal of a Program Manager’s written revocation or refusal of a Compliance

Agreement; and

Appeal of Program Manager’s written decision regarding certification, recertification or

decertification of Indian Owned Business status.

Appeal of the use of Indian Preference for an Indian Owned Business in the solicitation

process.

SECTION 9.02.

CONTENT OF APPEAL

To initiate an appeal, the appealing employee or Employer shall file a written statement of appeal

with the TERO Commission Chairperson, with a copy to the Program Manager, within seven

business days of the receipt of the Program Manager’s decision. The appeal shall describe the

nature of the Program Manager’s action or decision being appealed, a summary of the factual

and legal basis for the appeal and the relief requested. Incomplete appeal statements will not be

accepted.

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STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended through Resolution No. 17-053 (July 17, 2017)

SECTION 9.03.

SCHEDULING APPEAL HEARING

Upon receipt of an appeal that has been timely filed, the TERO Commission has three business

days to issue a written notice to the appealing party and the Program Manager designating a

schedule hearing date, time and place. The hearing shall occur within ten business days of the

filing of the appeal. A hearing on an appeal of a grant of emergency action pursuant to Section

7.04 of this Code shall be scheduled within seven business days of the filing of the appeal.

SECTION 9.04.

REQUEST TO RESCHEDULE APPEAL HEARING

The Program Manager or the appealing party may make written requests to reschedule appeal

hearings. The TERO Commission shall promptly rule on such requests and immediately notify

the parties of its decision. Reasonable requests to reschedule will be granted.

SECTION 9.05.

APPEAL HEARING PARTICIPANTS

Appeal hearings are not open to the public. Only the party filing the appeal, TERO staff, legal

advisors and each party’s witnesses may attend the hearing. Both the appealing party and the

Program Manager may be represented by counsel at the hearing.

SECTION 9.06.

HEARING PROCEDURE

All appeal hearings will be recorded.

Each party shall be responsible for ensuring that their witnesses attend the hearing.

Both parties will be afforded the opportunity to present opening statements with respect

to what they intend to present to the TERO Commission. Following opening statements,

first the appellant and then the Program Manager may present witnesses and evidence in

support of their position on the issues being appealed.

The TERO Commission Chairperson will preside over the hearing and will take whatever

action is necessary to ensure an equitable and expeditious hearing. Parties will abide by

the TERO Commission Chairperson’s rulings. The TERO Commission Chairperson may

limit the number of witnesses when testimony would be unduly repetitious, and exclude

any person from the hearing for contemptuous or inappropriate misbehavior that

obstructs the hearing. TERO Commission hearings are not subject to the Rules of

Evidence.

SECTION 9.07.

TERO COMMISSION DECISION

The TERO Commission shall use a clear and convincing evidence standard of review. The

TERO Commission will render a decision within ten business days from the date of the hearing.

The parties will be notified in writing of the TERO Commission’s decision.

CHAPTER 10.

TRIBAL COURT ENFORCEMENT AND JUDICIAL REVIEW

SECTION 10.01. JUDICIAL REVIEW OF TERO COMMISSION DECISIONS

Filing for Judicial Review. Any party to an appeal to the TERO Commission pursuant to

Section 9.01 of this Code who is dissatisfied with the TERO Commission’s decision or if

the TERO Commission fails to timely schedule, hold or decide an appeal may appeal to

the Umatilla Tribal Court. Such appeal shall be in writing and shall be filed with the

Tribal Court within thirty days of the date of the TERO Commission’s decision and shall

set forth the factual and legal issues on appeal and a brief statement of the factual and

legal arguments supporting the appealing party’s position. The appeal shall also state the

relief requested from the Tribal Court. The appeal shall include a copy of the TERO

Commission’s final decision. Failure to timely file an appeal containing the required

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STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended through Resolution No. 17-053 (July 17, 2017)

information constitutes a waiver of the right to do so and acceptance of the TERO

Commission’s decision. The party filing the appeal shall pay any court or filing fees

imposed by the Tribal Court.

The TERO Commission shall be responsible for providing the hearing recording and

exhibits to the Tribal Court once an appeal has been filed.

Court Process. The Tribal Court shall promptly schedule a conference call between the

parties to develop a briefing schedule and dates for oral argument or trial, if applicable.

Oral arguments shall only be scheduled at the request of either part and if approved by

the Tribal Court.

Scope of the Appeal. Tribal Court appeals shall be limited to the factual record and legal

arguments presented in the TERO Commission appeal hearing.

Burden of Proof. The Petitioner shall carry the burden of proof that the TERO

Commission decision was based on findings of fact that were not supported by the record

or on legal conclusions that are in error.

Standard of Review. The Tribal Court shall defer to the factual findings made by the

TERO Commission provided that such findings are supported by clear and convincing

evidence in the record developed by the TERO Commission. The Tribal Court shall

conduct a de novo review of the application of applicable law by the TERO Commission.

Decision of Tribal Court. The Tribal Court shall issue its decision in writing following

the submission of briefs and oral argument, if oral argument is scheduled. The decision of

the Tribal Court is final.

Stay Pending Appeal. The TERO Commission’s decision shall be stayed during the

appeal unless the Tribal Court orders it remain in effect.

SECTION 10.02. TRIBAL COURT ENFORCEMENT OF TERO COMMISSION AND

PROGRAM MANAGER DECISIONS

The Tribal Court shall have the authority to issue any order or take any action necessary

to enforce any Program Manager or TERO Commission decision following an appeal to

the TERO Commission, provided that such order or decision is final and has not been

appealed as permitted by this Code. To request such a Tribal Court order, the Program

Manager shall file a petition with the Tribal Court containing the following information:

a copy of the decision sought to be enforced, a brief summary of the proceedings leading

to the decision and a statement about the finality of that decision (i.e. the appeal deadline

has lapsed), the identity of the person or entity subject to the decision and facts to show

how the decision is not being complied with.

The Program Manager shall ensure service to all named parties.

Upon receipt of the petition, the Tribal Court shall schedule a hearing and subpoena all

necessary parties. The hearing shall be held within ten business days from the date the

petition is filed.

The Program Manager shall have the burden of proving to the Tribal Court that either the

Program Manager or TERO Commission decision has not been complied with. The

parties to the hearing on the petition may produce oral testimony or written

documentation to support their case.

The Tribal Court shall render a decision on the petition filed by the Program Manager

within fourteen business days and enter whatever order is necessary or appropriate. The

decision of the Tribal Court shall be final and binding.

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STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended through Resolution No. 17-053 (July 17, 2017)

SECTION 10.03. COURT RULES

The Court shall be responsible for establishing rules and procedures necessary to hear and

adjudicate actions brought hereunder.

SECTION 10.04. REMEDIES

Ruling on matters arising under this Code, the Tribal Court shall have the authority to assess and

collect civil penalties, to enjoin or mandate actions to enforce the provisions of this Code, and to

provide any other relief the Tribal Court deems lawful and equitable; provided that nothing in

this Code shall be construed as a waiver of the sovereign immunity of the Confederated Tribes.

Accordingly, nothing in this Code shall be construed as any authority for a claim for money

damages against the Tribe, the Office or Tribal officials and employees acting pursuant to their

authority under this Code.

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STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended through Resolution No. 17-053 (July 17, 2017)

APPENDIX A

TRIBAL EMPLOYMENT RIGHTS OFFICE CODE

LEGISLATIVE HISTORY AND EDITORIAL CHANGES

The Board of Trustees of the Confederated Tribes of the Umatilla Indian Reservation enacted the

Tribal Employment Rights Office Ordinance in Resolution 78-53 (August 7, 1978).

The Board enacted a revised Tribal Employment Rights Office (TERO) Ordinance in Resolution 8264 (September 20, 1982). The revised ordinance included a new, 14 page TERO Guidelines

document. The revised Tribal Employment Rights Ordinance was amended three times, as follows:

Resolution 84-21 (February 15, 1984), Resolution 88-07 (November 5, 1987), and Resolution 89-32

(April 5, 1989).

The Board enacted the second revised Tribal Employment Rights Office Ordinance in Resolution 9051 (September 19, 1990). In enacting the second revised Tribal Employment Rights Office

Ordinance, the Board explicitly repealed all prior resolutions concerning the TERO, with the sole

exception of Resolution 89-17. As the second revised Tribal Employment Rights Office Ordinance

did not contain the TERO Guidelines, these were repealed by Resolution 90-51.

The Board enacted the third revised Tribal Employment Rights Office Ordinance in Resolution 96-67

(July 31, 1996). It has not been amended.

In Resolution 83-78 (September 7, 1983), the Board approved an agreement between the

Confederated Tribes and the Four Basic Trade Unions on compliance with the Tribal Employment

Rights Ordinance and Guidelines. This agreement reportedly terminated at the end of five years and

was not renewed.

In Resolution 89-17 (January 25, 1989), the Board approved a Memorandum of Understanding with

the State of Oregon Department of Transportation that ensured compliance with the Tribal

Employment Rights Ordinance whenever the Department of Transportation contracted to perform

highway construction activities on the Umatilla Indian Reservation. In Resolution 94-13 (February

22, 1994), the Board approved a new Memorandum of Understanding with the State of Oregon

Department of Transportation which superseded the 1989 Memorandum of Understanding. This

Memorandum of Understanding ensures compliance with the Tribal Employment Rights Ordinance

whenever the Department of Transportation contracts to perform highway construction activities on

the Umatilla Indian Reservation or within 60 miles of the Reservation.

A fourth revision of this code has been proposed but has not yet been enacted by the Board of

Trustees. If it is enacted, it will be included in the next edition of Statutes of the Confederated Tribes

of the Umatilla Indian Reservation.

During preparation of this compilation, the following editorial changes were made to this code:

The name was changed from “Tribal Employment Rights Office Ordinance” to “Tribal

Employment Rights Office Code;” and

The Code was put into the uniform code format used in the Statutes of the Confederated

Tribes of the Umatilla Indian Reservation.

The Approval of Public Law 102-477 was adopted by the Board of Trustees through Resolution 08063 on June 30, 2008.

On July 17, 2017, the Board of Trustees adopted the revised TERO Code via Resolution No 17-053.

The amendments expand the types of work and costs subject TERO, expand TERO jurisdiction lands,

transfer TERO fees into TERO taxes, institute new tax brackets, impose a preference system for

TRIBAL EMPLOYMENT RIGHTS OFFICE CODE

APPENDIX A

STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended through Resolution No. 17-053 (July 17, 2017)

contractor selection, outline the Indian Owned Business certification process, transfer appeal hearings

to a Hearings Officer and create the TERO Committee as an advisory body.

TRIBAL EMPLOYMENT RIGHTS OFFICE CODE

APPENDIX A

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.