Oneida Business Committee (2023)
Tribal code
Ask Donna
What actually matters in this document.
Text
1 of 39
Oneida Nation
Oneida Business Committee
Legislative Operating Committee
PO Box 365 • Oneida, WI 54155-0365
Oneida-nsn.gov
~
ONEIDA
LEGISLATIVE OPERATING COMMITTEE MEETING AGENDA
Business Committee Conference Room - 2nd Floor Norbert Hill Center
December 6, 2023
9:00 a.m.
I.
Call to Order and Approval of the Agenda
II.
Minutes to be Approved
1. November 1, 2023 LOC Meeting Minutes (pg. 2)
III.
Current Business
1. Audit Committee Bylaws Amendments (pg. 5)
IV.
New Submissions
1. Drug and Alcohol Free Workplace Law Amendments (pg. 20)
V.
Additions
VI.
Administrative Updates
VII.
Executive Session
VIII. Recess/Adjourn
A good mind. A good heart. A strong fire.
2 of 39
Oneida Nation
Oneida Business Committee
Legislative Operating Committee
PO Box 365 • Oneida, WI 54155-0365
Oneida-nsn.gov
"'
=ODDDOO
ONEIDA
LEGISLATIVE OPERATING COMMITTEE MEETING MINUTES
Microsoft Teams 1
November 1, 2023
9:00 a.m.
Present: Jameson Wilson, Marlon Skenandore, Jonas Hill. Jennifer Webster, Kirby Metoxen
Others Present: Clorissa N. Leeman, Grace Elliott, Carolyn Salutz, Kristal Hill, Fawn Cottrell,
Maureen Perkins, Fawn Billie, Brooke Doxtator, Janice Decorah, Carrie Lindsey, Joy Salzwedel,
Keith Doxtator, Krystal John, Laura Laitinen-Warren, Lisa Moore, Lori Hill, Katsitsiyo Danforth,
Eric Boulanger, Peggy Helm-Quest, Raquel Hill, Rae Skenandore, Trina Schuyler, Carl Artman,
Eric McLester, Debra Santiago, Matt Denny, Mark W. Powless, Mark A. Powless, Todd Vanden
Heuvel, James Poels, Patricia Garvey, Kaylynn Gresham.
I.
Call to Order and Approval of the Agenda
Jameson Wilson called the November 1, 2023, Legislative Operating Committee meeting
to order at 9:00 a.m.
Motion by Jennifer Webster approve the agenda; seconded by Jonas Hill. Motion carried
unanimously.
II.
Minutes to be Approved
1. October 18, 2023 LOC Meeting Minutes
Motion by Kirby Metoxen to approve the October 18, 2023, LOC meeting minutes and
forward to the Oneida Business Committee; seconded by Jennifer Webster. Motion carried
unanimously.
III.
Current Business
1. Clean Air Policy Amendments
Motion by Jennifer Webster to approve the public meeting packet for the Clean Air Policy
Amendments with noted change to the public meeting notice, and forward the Clean Air
Policy Amendments to a public meeting to be held on December 15, 2023; seconded by
Kirby Metoxen. Motion carried unanimously.
Due to the Norbert Hill Center’s Oneida Business Committee Conference Room being closed as a result of
maintenance issues, this Legislative Operating Committee meeting was held solely on Microsoft Teams.
~
1
d
GOOOOO
A good mind. A good heart. A strong fire.
Legislative Operating Committee Meeting Minutes of November 1, 2023
Page 1 of 3
ONEIDA
3 of 39
IV.
New Submissions
1. Oneida Nation Commission on Aging Bylaws Amendments
Motion by Jennifer Webster to add the Oneida Nation Commission on Aging Bylaws
Amendments to the Active Files List with Jennifer Webster as the sponsor; seconded by
Kirby Metoxen. Motion carried unanimously.
2. Southeastern Wisconsin Oneida Tribal Services Advisory Board Bylaws
Amendments
Motion by Jennifer Webster to deny the request to add the Southeastern Wisconsin Oneida
Tribal Services Advisory Board Bylaws Amendments to the Active Files List, and send it
back to SEOTS with a request to bring forward clarification on what they are looking for;
seconded by Marlon Skenandore. Motion carried unanimously.
3. Oneida General Welfare Law Amendments
Motion by Jennifer Webster to add the Oneida General Welfare law amendments to the
Active Files List with Jonas Hill and Jameson Wilson as the sponsors; seconded by Kirby
Metoxen. Motion carried unanimously.
4. Onʌyoteʔaꞏká niʔi Commission Bylaws
Motion by Jennifer Webster to add the Onʌyoteʔaꞏká niʔi Commission Bylaws to the
Active Files List with Jameson Wilson as the sponsor; seconded by Kirby Metoxen. Motion
carried unanimously.
V.
Additions
VI.
Administrative Items
1. E-Poll Results: Approval of the LOC and LRO Annual Reports for GTC
Motion by Jennifer Webster to enter into the record the results of the October 23, 2023, epoll entitled, Approval of the LOC and LRO Annual Reports for GTC; seconded by Kirby
Metoxen. Motion carried unanimously.
2. Legislative Operating Committee Community Meeting Notice
Motion by Jonas Hill to approve the Legislative Operating Committee community meeting
notice and schedule the community meeting to take place on December 6, 2023; seconded
by Jennifer Webster. Motion carried unanimously.
3. Legislative Operating Committee Fiscal Year 2023 Fourth Quarter Report
Motion by Jennifer Webster to approve the Legislative Operating Committee Fiscal Year
2023 Fourth Quarter Report and forward to the Oneida Business Committee; seconded by
Jonas Hill. Motion carried unanimously.
VII.
Executive Session
Legislative Operating Committee Meeting Minutes of November 1, 2023
Page 2 of 3
4 of 39
VIII. Adjourn
Motion by Jennifer Webster to adjourn at 9:45 a.m.; seconded by Jonas Hill. Motion carried
unanimously.
Legislative Operating Committee Meeting Minutes of November 1, 2023
Page 3 of 3
5 of 39
Oneida Nation
"'
Oneida Business Committee
Legislative Operating Committee
=DODDOO
PO Box 365 • Oneida, WI 54155-0365
ONEIDA
Oneida-nsn.gov
Legislative Operating Committee
December 6, 2023
Audit Committee Bylaws Amendments
Submission Date: 10/4/23
LOC Sponsor: Kirby Metoxen
Public Meeting: N/A
Emergency Enacted: N/A
Expires: N/A
Summary: On September 13, 2023, the Oneida Business Committee adopted a motion to
direct the Legislative Operating Committee to review the Audit Committee bylaws dated
December 14, 2022, specifically Section 1-4.b.1.A. that prohibits the Treasurer from serving on
the Audit Committee and determine if amendments are appropriate. Treasurer Lawrence Barton
also submitted a request to the LOC for this item.
10/4/23 LOC: Motion by Jennifer Webster to add the Audit Committee Bylaws Amendments to the Active
Files List with Kirby Metoxen as the sponsor; seconded by Jonas Hill. Motion carried
unanimously.
10/18/23:
Work Meeting. Present: Jameson Wilson, Kirby Metoxen, Marlon Skenandore, Jonas Hill,
Jennifer Webster, Clorissa Leeman, Grace Elliott, Fawn Cottrell, Kristal Hill, Maureen
Perkins. The purpose of this work meeting was for the LOC to be updated on the initial
research completed for the request to remove the prohibition of the Treasurer from serving on
the Audit Committee from the Audit Committee bylaws, and to discuss next steps.
10/23/23:
Work Meeting. Present: Clorissa Leeman, Jo Anne House, Kelly McAndrews. This work
meeting was held over Microsoft Teams. The purpose of this work meeting was to gather
input from the Oneida Law Office regarding the request to remove the prohibition of the
Treasurer from serving on the Audit Committee from the Audit Committee bylaws.
11/1/23:
Work Meeting. Present: Jameson Wilson, Kirby Metoxen, Jennifer Webster, Marlon
Skenandore, Jonas Hill, Clorissa Leeman, Grace Elliott, Fawn Cottrell, Kristal Hill, Maureen
Perkins. During this work meeting the LOC was updated on the insight provided from the
Oneida Law Office regarding removing the prohibition of the Treasurer from serving on the
Audit Committee. LOC determined that moving forward that prohibition should be removed
from the bylaws.
Next Steps:
Accept the Audit Committee bylaws amendments and legislative analysis.
Forward the Audit Committee bylaws amendments to the Oneida Business Committee for
consideration.
A good mind. A good heart. A strong fire.
6 of 39
Page 2 of 2
A good mind. A good heart. A strong fire.
~
ONEIDA
Draft 1 (Redline to Current)
of 39
2023 127 06
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
AUDIT COMMITTEE BYLAWS
Article I. Authority
1-1. Name. The name of this committee shall be the Audit Committee, hereinafter referred to as
"Committee."
1-2. Authority. By the authority of the Oneida Business Committee, the Committee was created
by adoption of the Audit Law Resolution BC-07-15-98-C which has been updated to
Internal Audit BC 08 09 17 B. Through Internal Audit BC 08 09 17 B, the Committee has
been delegated the authority to ensure the integrity of the Oneida Nation’s financial
reporting and audit systems. Definitions for the words used throughout these bylaws shall
be taken from Internal Audit BC 08 09 17 B. All words not defined in Internal Audit BC
08 09 17 B shall be used in their ordinary and everyday sense.
1-3. Office. The office of the Committee shall be located within the exterior boundaries of the
Oneida Reservation and its mailing address shall be P.O. Box 365, Oneida, WI 54155.
l-4. Membership.
a. Number of members. The Committee shall consist of five (5) members.
b. How elected or appointed.
1. Four (4) Committee members shall be Oneida Business Committee members,
excluding the Treasurer, selected by a majority of the Oneida Business Committee.
A. Any member of the Oneida Business Committee, with the exception of the
Treasurer, may serve as Ad Hoc when needed.
2. One (1) Committee member shall be a member of the community who meets the
qualifications of 1-4(d).
A. The Committee member from the Community shall be selected through the
application and appointment process set forth in those sections of the Boards,
Committees and Commissions law that govern the appointment of persons to
entities of the Nation that are subject to the law.
c. How vacancies are filled. Vacancies on the Committee shall be filled in accordance
with section 1-4(b) for the remainder of the outstanding term.
d. Qualifications of members.
1. The appointed Committee member shall be at least twenty-one (21) years of age and
be an enrolled member of the Oneida Nation.
2. Committee members shall be both independent and financially literate or have
access to financial expertise, whether in the form of the Chief Financial Officer, a
single individual serving on the Committee, or collectively among Committee
members. Components of financial expertise include:
A. The ability to assess the general application of the principles and standards
in connection with the accounting for estimates, accruals, and reserves.
B. An understanding of internal controls.
C. An understanding of the procedures for financial reporting.
D. An understanding of Audit Committee functions and responsibilities.
e. Term of office.
1. The terms of the Audit Committee members shall coincide with the term of the
Oneida Business Committee.
2. The term of the appointed community member shall expire midway through the
term of the Oneida Business Committee.
3. Defining independence of each Committee member is important for the Nation and
no Committee member may:
A. Be employed by any entity of the Nation.
1
Draft 1 (Redline to Current)
of 39
2023 128 06
50
51
52
B. Provide contract services to the Nation.
C. Be a member of any other of the Nation’s boards, committees or
commissions, other than the Oneida Business Committee.
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79
80
81
82
83
84
85
86
87
88
89
90
91
92
93
94
95
96
97
98
99
D. Represent any interests other than the Oneida Nation’s while acting as a
member of the Committee.
4. Committee members shall strictly adhere to the Oneida Nation’s laws and policies,
establishing ethical standards and/or conflicts of interest, and any code of conduct. All
work shall be performed in accordance with the International Professional Practices
Framework. Failure to do so may result in the removal from the Committee or
termination of an appointment.
Article II. Officers
2-1. The Committee shall have two (2) officers: Chairperson and Vice-Chairperson. The terms
of office for the officers shall coincide with the terms of the Oneida Business Committee
members.
a. If selected to serve on the Committee, the Oneida Business Committee Treasurer shall not
serve as Chairperson or Vice-Chairperson of the Committee.
2-2. Chairperson Duties. The Chairperson shall preside over all meetings and may not vote
except in the case of a tie. The Chairperson shall be responsible for calling meetings and
notifying members with the assistance of the Internal Audit Department.
2-3. Vice-Chairperson Duties. The Vice-Chairperson shall assist the Chairperson with his or her
duties, at the request of the Chairperson, and shall preside over all meetings in the
Chairperson's absence.
2-4. How Officers are Chosen. The Chairperson and Vice-Chairperson shall be chosen from the
Oneida Business Committee representatives by all Committee members present at the first
meeting held after the Committee is appointed.
2-5. Personnel. The Committee shall recruit and hire a qualified Internal Audit Manager to lead
the internal audit function and to assure unbiased audit and investigative processes and
reporting.
Article III. Meetings
3-1. All meetings of the Audit Committee are to be closed session as required by the
International Professional Practices Framework with the exceptions below. Notice of
Committee meetings shall be provided to members and to the public in accordance with
these bylaws and the applicable provisions of the Nation’s Open Records and Open
Meetings law.
3-2. The Committee shall meet on a monthly basis within the Reservation boundaries.
a. All Committee members are expected to attend each meeting.
b. The Committee may invite entity representatives, auditors or others to attend meetings
and provide pertinent information.
c. The Committee may hold meetings in executive session with auditors, legal counsel,
and entity representatives as invited.
3-3. Emergency and Special Meetings. Emergency or special meetings of the Committee may
be called by the Chairperson or upon written request of any two (2) members. The
Chairperson shall designate a time and place for holding an emergency or special meeting.
3-4. Virtual Meetings. Virtual meetings are allowed in accordance with Audit Committee
Virtual meetings SOP.
3-5. Notice of Emergency or Special Meeting. Notice of an emergency or special meeting shall
be:
a. Members. The Committee shall provide notice to members at least forty-eight (48)
2
Draft 1 (Redline to Current)
of 39
2023 129 06
100
101
102
103
104
hours prior to the date set for any such meeting, unless, for good cause, such notice is
impossible or impractical. Notice may be communicated in person, or through
electronic communication.
3-6. Quorum. A quorum shall consist of a majority of current members of the Committee and
shall include the Chairperson or Vice-Chairperson.
105
106
107
108
109
110
111
112
113
114
115
116
117
118
119
120
121
122
123
124
125
126
127
128
129
130
131
132
133
134
135
136
137
138
139
140
141
142
143
144
145
146
147
148
3-7. Order of Business. The regular meetings of the Committee shall follow the order of
business as set out herein:
I.
Call to Order.
II.
Approval of Agenda
III.
Approval of Minutes
IV.
Old Business
V.
New Business
VI.
Tabled Business
VII.
Executive Session
VIII.
Adjourn
3-8. Voting. Decisions of the Committee shall be based on a majority of a quorum of members
present at a meeting. The officer presiding at a meeting shall vote only in case of a tie.
a. Electronic e-polls are allowed as long as they are conducted in accordance with
Conducting Electronic Voting (E-Polls) SOP.
3-9. Stipends.
a. Audit Committee Meetings. The appointed Committee member shall be paid a meeting
stipend of seventy-five dollars ($75.00) per any meeting provided that the meeting has
established a quorum.
b. Oneida Business Committee Meetings – Presentation of Annual Audit. The appointed
Committee member shall be paid a stipend of seventy-five dollars ($75.00) for attending
the Oneida Business Committee meeting when the annual audit is presented by the external
auditors.
Article IV. Reporting
4-1. Agenda items shall be in an identified format.
4-2. Minutes shall be typed and in a consistent format designed to generate the most informative
record of the meetings of the Committee.
4-3. Handouts, reports, memoranda and the like may be attached to the minutes and agenda, or
may be kept separately, provided that all materials can be identified to the meeting in which
they were presented.
4-4. The Committee shall report to the Oneida Business Committee and to the General Tribal
Council, when appropriate, relative to audits, financial reports, management reports and
recommended corrective measures.
4-5. The Committee shall report to the Oneida Business Committee, as often as deemed
appropriate, the approved Committee minutes, audit reports and appropriate supporting
information.
a. Minutes and audit reports require Oneida Business Committee acceptance in order to
finalize the audit records.
Article V. Amendments
5-1. The Bylaws of the Committee shall be amended with the approval of a quorum of the
Committee and upon subsequent approval by the Oneida Business Committee.
Article VI. Responsibilities
3
Draft 1 (Redline to Current)
10 06
of 39
2023 12
149
150
151
152
153
154
155
156
157
158
159
160
161
162
163
164
165
166
167
168
169
170
171
172
173
174
175
176
177
178
179
180
181
182
183
184
185
186
187
188
189
190
191
192
193
194
195
196
197
198
6-1. The Committee shall have oversight of the activities of the internal audit function in
independent assignments related to auditing, evaluating, and special investigations related
to detecting fraudulent financial reporting and conducting investigations into fraud and
theft in the Oneida Nation’s entities. The Committee shall perform all work in accordance
with the International Professional Practices Framework.
6-2. Enforcement. The Committee shall have the ability to utilize all existing enforcement
authorities to carry out their responsibilities to achieve their purpose, including:
a. Request the Business Committee to compel entity representatives to attend meetings
in order to represent issues.
b. Request the Business Committee to compel entity representatives to comply with audit
requests and reply to audit reports.
c. Instruct the external auditor and the internal auditor that the Committee expects to be
advised if there are any areas that require its special attention.
d. Request the Business Committee to issue notices of noncompliance to entity employees
in accordance with the disciplinary provisions relating to work performance and
personal actions, as provided for in the Oneida Nation’s Personnel Policies and
Procedures.
e. Request the Business Committee to issue notices of violation of Oath of Office, as
appropriate, to entity members.
f. Seek improvements to assure the Oneida Nation’s laws and policies establishing ethical
standards and/or conflicts of interest, as well as any code of conduct implemented are
current and adequate to ensure fairness for all and equity by protecting the resources.
6-3. Financial Statements. The Committee shall review and discuss annual statements and
Managements Discussion & Analysis (MD&A) with auditors.
6-4. Internal Control. The Committee shall ensure that entities have developed and follow an
adequate system of internal control, including:
a. Compliance with legal and regulatory requirements.
b. Risk assessment and risk management.
c. Adopt a code of ethics which includes monitoring and enforcement.
d. Establish procedures for the receipt, retention, and treatment of complaints; establish a
confidential anonymous submission by individuals for concerns regarding questionable
matters.
e. Ensure open communication and information flow with entities, internal auditors and
external auditors.
6-5. External Audit. The Committee shall be responsible for evaluating and recommending to the
Oneida Business Committee, an independent public accounting firm for the annual or any
special audit, unless there is a prior alternative written agreement in place delegating the
responsibility for a given special audit. When an external auditor is hired, the Committee
shall:
a. Verify the qualifications of the external auditor.
b. Oversee the performance of the external audit.
c. Assure all reports from the external auditor go directly to the Committee.
6-6. Compliance. The Committee shall review the effectiveness of the system for monitoring
compliance with laws and regulations and the results of an entity's investigation and followup of any instances of non-compliance. Special audits and/or investigations may be
recommended by the Audit Committee.
6-7. Other Responsibilities. The Committee shall complete a self-evaluation annually to identify
improvement opportunities. This includes comparing the Committee's performance to its
bylaws, any formal guidelines and rules, and against best practices. Such review is
confidential and may or may not include evaluations of particular members.
4
Draft 1 (Redline to Current)
11 06
of 39
2023 12
199
5
Draft 1
12 06
of 39
2023 12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
AUDIT COMMITTEE BYLAWS
Article I. Authority
1-1. Name. The name of this committee shall be the Audit Committee, hereinafter referred to as
"Committee."
1-2. Authority. By the authority of the Oneida Business Committee, the Committee was created
by adoption of the Audit Law Resolution BC-07-15-98-C which has been updated to
Internal Audit BC 08 09 17 B. Through Internal Audit BC 08 09 17 B, the Committee has
been delegated the authority to ensure the integrity of the Oneida Nation’s financial
reporting and audit systems. Definitions for the words used throughout these bylaws shall
be taken from Internal Audit BC 08 09 17 B. All words not defined in Internal Audit BC
08 09 17 B shall be used in their ordinary and everyday sense.
1-3. Office. The office of the Committee shall be located within the exterior boundaries of the
Oneida Reservation and its mailing address shall be P.O. Box 365, Oneida, WI 54155.
l-4. Membership.
a. Number of members. The Committee shall consist of five (5) members.
b. How elected or appointed.
1. Four (4) Committee members shall be Oneida Business Committee members
selected by a majority of the Oneida Business Committee.
A. Any member of the Oneida Business Committee may serve as Ad Hoc when
needed.
2. One (1) Committee member shall be a member of the community who meets the
qualifications of 1-4(d).
A. The Committee member from the Community shall be selected through the
application and appointment process set forth in those sections of the Boards,
Committees and Commissions law that govern the appointment of persons to
entities of the Nation that are subject to the law.
c. How vacancies are filled. Vacancies on the Committee shall be filled in accordance
with section 1-4(b) for the remainder of the outstanding term.
d. Qualifications of members.
1. The appointed Committee member shall be at least twenty-one (21) years of age and
be an enrolled member of the Oneida Nation.
2. Committee members shall be both independent and financially literate or have
access to financial expertise, whether in the form of the Chief Financial Officer, a
single individual serving on the Committee, or collectively among Committee
members. Components of financial expertise include:
A. The ability to assess the general application of the principles and standards
in connection with the accounting for estimates, accruals, and reserves.
B. An understanding of internal controls.
C. An understanding of the procedures for financial reporting.
D. An understanding of Audit Committee functions and responsibilities.
e. Term of office.
1. The terms of the Audit Committee members shall coincide with the term of the
Oneida Business Committee.
2. The term of the appointed community member shall expire midway through the
term of the Oneida Business Committee.
3. Defining independence of each Committee member is important for the Nation and
no Committee member may:
A. Be employed by any entity of the Nation.
1
Draft 1
13 06
of 39
2023 12
50
51
52
B. Provide contract services to the Nation.
C. Be a member of any other of the Nation’s boards, committees or
commissions, other than the Oneida Business Committee.
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79
80
81
82
83
84
85
86
87
88
89
90
91
92
93
94
95
96
97
98
99
D. Represent any interests other than the Oneida Nation’s while acting as a
member of the Committee.
4. Committee members shall strictly adhere to the Oneida Nation’s laws and policies,
establishing ethical standards and/or conflicts of interest, and any code of conduct. All
work shall be performed in accordance with the International Professional Practices
Framework. Failure to do so may result in the removal from the Committee or
termination of an appointment.
Article II. Officers
2-1. The Committee shall have two (2) officers: Chairperson and Vice-Chairperson. The terms
of office for the officers shall coincide with the terms of the Oneida Business Committee
members.
a. If selected to serve on the Committee, the Oneida Business Committee Treasurer shall not
serve as Chairperson or Vice-Chairperson of the Committee.
2-2. Chairperson Duties. The Chairperson shall preside over all meetings and may not vote
except in the case of a tie. The Chairperson shall be responsible for calling meetings and
notifying members with the assistance of the Internal Audit Department.
2-3. Vice-Chairperson Duties. The Vice-Chairperson shall assist the Chairperson with his or her
duties, at the request of the Chairperson, and shall preside over all meetings in the
Chairperson's absence.
2-4. How Officers are Chosen. The Chairperson and Vice-Chairperson shall be chosen from the
Oneida Business Committee representatives by all Committee members present at the first
meeting held after the Committee is appointed.
2-5. Personnel. The Committee shall recruit and hire a qualified Internal Audit Manager to lead
the internal audit function and to assure unbiased audit and investigative processes and
reporting.
Article III. Meetings
3-1. All meetings of the Audit Committee are to be closed session as required by the
International Professional Practices Framework with the exceptions below. Notice of
Committee meetings shall be provided to members and to the public in accordance with
these bylaws and the applicable provisions of the Nation’s Open Records and Open
Meetings law.
3-2. The Committee shall meet on a monthly basis within the Reservation boundaries.
a. All Committee members are expected to attend each meeting.
b. The Committee may invite entity representatives, auditors or others to attend meetings
and provide pertinent information.
c. The Committee may hold meetings in executive session with auditors, legal counsel,
and entity representatives as invited.
3-3. Emergency and Special Meetings. Emergency or special meetings of the Committee may
be called by the Chairperson or upon written request of any two (2) members. The
Chairperson shall designate a time and place for holding an emergency or special meeting.
3-4. Virtual Meetings. Virtual meetings are allowed in accordance with Audit Committee
Virtual meetings SOP.
3-5. Notice of Emergency or Special Meeting. Notice of an emergency or special meeting shall
be:
a. Members. The Committee shall provide notice to members at least forty-eight (48)
2
Draft 1
14 06
of 39
2023 12
100
101
102
103
104
hours prior to the date set for any such meeting, unless, for good cause, such notice is
impossible or impractical. Notice may be communicated in person, or through
electronic communication.
3-6. Quorum. A quorum shall consist of a majority of current members of the Committee and
shall include the Chairperson or Vice-Chairperson.
105
106
107
108
109
110
111
112
113
114
115
116
117
118
119
120
121
122
123
124
125
126
127
128
129
130
131
132
133
134
135
136
137
138
139
140
141
142
143
144
145
146
147
148
3-7. Order of Business. The regular meetings of the Committee shall follow the order of
business as set out herein:
I.
Call to Order.
II.
Approval of Agenda
III.
Approval of Minutes
IV.
Old Business
V.
New Business
VI.
Tabled Business
VII.
Executive Session
VIII.
Adjourn
3-8. Voting. Decisions of the Committee shall be based on a majority of a quorum of members
present at a meeting. The officer presiding at a meeting shall vote only in case of a tie.
a. Electronic e-polls are allowed as long as they are conducted in accordance with
Conducting Electronic Voting (E-Polls) SOP.
3-9. Stipends.
a. Audit Committee Meetings. The appointed Committee member shall be paid a meeting
stipend of seventy-five dollars ($75.00) per any meeting provided that the meeting has
established a quorum.
b. Oneida Business Committee Meetings – Presentation of Annual Audit. The appointed
Committee member shall be paid a stipend of seventy-five dollars ($75.00) for attending
the Oneida Business Committee meeting when the annual audit is presented by the external
auditors.
Article IV. Reporting
4-1. Agenda items shall be in an identified format.
4-2. Minutes shall be typed and in a consistent format designed to generate the most informative
record of the meetings of the Committee.
4-3. Handouts, reports, memoranda and the like may be attached to the minutes and agenda, or
may be kept separately, provided that all materials can be identified to the meeting in which
they were presented.
4-4. The Committee shall report to the Oneida Business Committee and to the General Tribal
Council, when appropriate, relative to audits, financial reports, management reports and
recommended corrective measures.
4-5. The Committee shall report to the Oneida Business Committee, as often as deemed
appropriate, the approved Committee minutes, audit reports and appropriate supporting
information.
a. Minutes and audit reports require Oneida Business Committee acceptance in order to
finalize the audit records.
Article V. Amendments
5-1. The Bylaws of the Committee shall be amended with the approval of a quorum of the
Committee and upon subsequent approval by the Oneida Business Committee.
Article VI. Responsibilities
3
Draft 1
15 06
of 39
2023 12
149
150
151
152
153
154
155
156
157
158
159
160
161
162
163
164
165
166
167
168
169
170
171
172
173
174
175
176
177
178
179
180
181
182
183
184
185
186
187
188
189
190
191
192
193
194
195
196
197
198
6-1. The Committee shall have oversight of the activities of the internal audit function in
independent assignments related to auditing, evaluating, and special investigations related
to detecting fraudulent financial reporting and conducting investigations into fraud and
theft in the Oneida Nation’s entities. The Committee shall perform all work in accordance
with the International Professional Practices Framework.
6-2. Enforcement. The Committee shall have the ability to utilize all existing enforcement
authorities to carry out their responsibilities to achieve their purpose, including:
a. Request the Business Committee to compel entity representatives to attend meetings
in order to represent issues.
b. Request the Business Committee to compel entity representatives to comply with audit
requests and reply to audit reports.
c. Instruct the external auditor and the internal auditor that the Committee expects to be
advised if there are any areas that require its special attention.
d. Request the Business Committee to issue notices of noncompliance to entity employees
in accordance with the disciplinary provisions relating to work performance and
personal actions, as provided for in the Oneida Nation’s Personnel Policies and
Procedures.
e. Request the Business Committee to issue notices of violation of Oath of Office, as
appropriate, to entity members.
f. Seek improvements to assure the Oneida Nation’s laws and policies establishing ethical
standards and/or conflicts of interest, as well as any code of conduct implemented are
current and adequate to ensure fairness for all and equity by protecting the resources.
6-3. Financial Statements. The Committee shall review and discuss annual statements and
Managements Discussion & Analysis (MD&A) with auditors.
6-4. Internal Control. The Committee shall ensure that entities have developed and follow an
adequate system of internal control, including:
a. Compliance with legal and regulatory requirements.
b. Risk assessment and risk management.
c. Adopt a code of ethics which includes monitoring and enforcement.
d. Establish procedures for the receipt, retention, and treatment of complaints; establish a
confidential anonymous submission by individuals for concerns regarding questionable
matters.
e. Ensure open communication and information flow with entities, internal auditors and
external auditors.
6-5. External Audit. The Committee shall be responsible for evaluating and recommending to the
Oneida Business Committee, an independent public accounting firm for the annual or any
special audit, unless there is a prior alternative written agreement in place delegating the
responsibility for a given special audit. When an external auditor is hired, the Committee
shall:
a. Verify the qualifications of the external auditor.
b. Oversee the performance of the external audit.
c. Assure all reports from the external auditor go directly to the Committee.
6-6. Compliance. The Committee shall review the effectiveness of the system for monitoring
compliance with laws and regulations and the results of an entity's investigation and followup of any instances of non-compliance. Special audits and/or investigations may be
recommended by the Audit Committee.
6-7. Other Responsibilities. The Committee shall complete a self-evaluation annually to identify
improvement opportunities. This includes comparing the Committee's performance to its
bylaws, any formal guidelines and rules, and against best practices. Such review is
confidential and may or may not include evaluations of particular members.
4
Draft 1
16 06
of 39
2023 12
199
5
17 of 39
Analysis to Draft 1
2023 12 06
Audit Committee Bylaws Amendments
Legislative Analysis
SECTION 1. EXECUTIVE SUMMARY
Analysis by the Legislative Reference Office
Intent of the
Amendments
Purpose
Related
Legislation
Enforcement/Due
Process
Public Meeting
Fiscal Impact
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
Eliminate the prohibition of the Oneida Business Committee Treasurer from
serving on the Audit Committee. [Bylaws Section 1-4.b.1]; and
Clarify that if serving on the Audit Committee, the Oneida Business Committee
Treasurer shall not serve as Chairperson or Vice-Chairperson of the Audit
Committee. [Bylaws Section 2-1.a].
The Audit Committee is as a standing committee of the Oneida Business
Committee (“OBC”) that was established pursuant to the Nation’s Internal Audit
law, which was adopted and subsequently amended through resolutions BC-07-1598-C and BC-08-09-17-B, to oversee the internal audit process, including, but not
limited to, any and all violations of the Nation’s policies, laws, rules and directives.
[1 O.C. 108.1-1].
Oneida Nation Constitution, Internal Audit law, Social Media Policy, Travel and
Expense Policy, Conflict of Interest law, Open Records and Open Meetings law;
Vehicle Driver Certification and Fleet Management law; Computer Resources
Ordinance.
Committee members are required to strictly adhere to the laws, as well as policies,
of the Nation regarding ethics and/or conflicts of interest and any code of conduct,
including the International Professional Practices Framework. A failure to adhere
to the above could result in a member’s removal from the Committee or a
termination of his/her appointment. [Committee Bylaws 1-4(e)(4)]. The Internal
Audit law grants the Committee the authority to utilize all existing enforcement
mechanisms to carry out its responsibilities as set forth therein. [1 O.C. 108.4-2].
Public meetings are not required for bylaws.
A fiscal impact statement is not required for bylaws.
SECTION 2. BACKGROUND
A. Bylaws provide a framework for the operation and management of a board, committee or commission
of the Nation; the government of its members; and the regulation of its affairs.
B. The Audit Committee was established pursuant to the Internal Audit law, which was adopted and
subsequently amended by resolutions BC-07-15-98-C and BC-08-09-17-B, respectively. [1 O.C.
108.2-1]. The Committee is a standing committee of the Oneida Business Committee that oversees
the internal audit process, including, but not limited to, any investigations into complaints alleging or
suspecting improprieties and/or violations of the Nation’s policies, laws, rules and directives. [1 O.C.
108.4-1].
C. On September 13, 2023, the Oneida Business Committee adopted a motion to direct the Legislative
Operating Committee to review the Audit Committee bylaws dated December 14, 2022, specifically
Section 1-4.b.1.A. that prohibits the Treasurer from serving on the Audit Committee and determine if
amendments are appropriate. Treasurer Lawrence Barton also submitted a request to the Legislative
Operating Committee for this item. On October 4, 2023, the Legislative Operating Committee added
the Audit Committee Bylaws Amendments to the Active Files List.
Page 1 of 3
18 of 39
Analysis to Draft 1
2023 12 06
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
D. The Committee’s current bylaws were adopted in December of 2022. As a standing committee of the
OBC, the Audit Committee is not subject to the Boards, Committees and Commissions law, and thus,
amendments to its bylaws do not have to conform to the provisions therein that govern the bylaws of
other boards, committees and commissions of the Nation not exempted therefrom. [1 O.C. 105.11(a)].
SECTION 3. AMENDMENTS
This section details the proposed amendments to the Audit Committee bylaws.
A. Article I. Authority.
Section 1-4 – Membership. Section 1-4 of the Committee’s bylaws currently provides that
“Four (4) Committee members shall be Oneida Business Committee members, excluding the
Treasurer, selected by a majority of the Oneida Business Committee.” [Bylaws 1-4.b.1]. The
bylaws then go on to state that “Any member of the Oneida Business Committee, with the
exception of the Treasurer, may serve as Ad Hoc when needed.” [Bylaws 1-4.b.1.A]. Under
the proposed amendments to the bylaws, the prohibition of the Treasurer from serving on the
Audit Committee was removed and this section, will now also read that “Four (4) Committee
members shall be Oneida Business Committee members selected by a majority of the Oneida
Business Committee Any member of the Oneida Business Committee may serve as Ad Hoc
when needed.” [Proposed Bylaws 1-4.b.1].
Impact: This amendment allows the Oneida Business Committee Treasurer to serve on the
Audit Committee.
B. Article II. Officers.
Section 2-1 – Officers. Section 2-1 of the Committee’s bylaws currently provides that the
Committee shall have two (2) officers: Chairperson and Vice-Chairperson. [Bylaws 2-1].
Under the proposed amendments to the bylaws, a new provision was added which would
provide that if selected to serve on the Committee, the Oneida Business Committee Treasurer
shall not serve as Chairperson or Vice-Chairperson of the Committee. [Proposed Bylaws 21.a].
Impact: This amendment prohibits the Treasurer from serving as the Audit Committee
Chairperson or Vice-Chairperson. The Treasurer already serves as the Chairperson of the
Finance Committee.
SECTION 4. LEGISLATION RELATED TO BOARDS, COMMITTEES AND COMMISSIONS
Below is a summary of laws referenced in and related to the proposed amendments to the Audit
Committee bylaws.
A. Oneida Nation Constitution. The Constitution of the Oneida Nation contains a provision that allows
for the creation of committees for the proper conduct of tribal business of the Nation. [Oneida Nation
Constitution, Article IV, Section 1(g)].
a. There are no conflicts between the proposed bylaws amendments and the Oneida Nation
Constitution.
B. Internal Audit Law [1 O.C. Chapter 108]. The Internal Audit law creates a process by which
internal audits are conducted upon the Nation’s entities and delegates responsibilities for the purpose
of conducting such audits. [1 O.C. 108.1-1]. The Audit Committee, established by the Internal Audit
law, is a standing committee of the Oneida Business Committee with the responsibility for overseeing
the internal audit process, including, but not limited to, any and all investigations into complaints
Page 2 of 3
19 of 39
Analysis to Draft 1
2023 12 06
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79
80
81
82
83
84
85
86
87
88
89
received alleging or suspecting improprieties and/or violations of the Nation’s policies, laws, rules
and directives. [1 O.C. 108-4-1].
a. There are no conflicts between the proposed bylaws amendments and the Nation’s
Internal Audit law.
C. Conflict of Interest Law [2 O.C. Chapter 217]. The Conflict of Interests law ensures that all
employees, contractors, elected officials, officers, political appointees, appointed and elected
members and all others who may have access to information or materials that are confidential or may
be used by competitors of the Nation’s enterprises or interests be subject to specific limitations to
which such information and materials may be used in order to protect the interests of the Nation. [2
O.C. 217.1-1]. A conflict of interest means any interest, real or apparent, whether it be personal,
financial, political, or otherwise, in which an elected official, officer, political appointee, employee,
contractor, or appointed or elected member, or their immediate family members, friends or associates,
or any other person with whom they have contact, have that conflicts with any right of the Nation to
property, information, or any other right to own and operate activities free from undisclosed
competition or other violation of such rights of the Nation. [2 O.C. 217.3-1(b)]. In addition, conflict
of interest also means any financial or familial interest an elected official, officer, political appointee,
employee, contractor, or appointed or elected member or their immediate family members may have
in any transaction between the Nation and an outside party. Id. All elected officials, officers, political
appointees, and elected or appointed members of the Nation are required to disclose any conflicts of
interest. [2 O.C. 217.4-2(c)]. A member of the Oneida Business Committee who fails to disclose a
conflict of interest may be subject to removal pursuant to the Removal Law or penalties pursuant to
laws of the Nation regarding penalties. [2 O.C. 217.6-2].
a. There are no conflicts between the proposed bylaws amendments and the Nation’s
Internal Audit law.
Page 3 of 3
Submit
Save
20 of 39
LOC AGENDA REQUEST FORM
PLEASE COMPLETE THE FOLLOWING INFORMATION:
1) Date: November 16, 2023
Person submitting request: Larry Barton, Treasurer
--------------------------
2) Council Member, Entity, or other person requesting this draft: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
3) Phone Number: Day 920-869-4394
E-mail: lbarton2@oneidanation.org
Evenings
--------
4) Persons to contact for questions about this draft (names and phone numbers) _ _ _ _ _ _ _ _ _ _ _ _ _ __
Larry Barton 920-869-4394
5) Describe the issue, including any helpful examples.
Requiring all incumbent Business Committee members to submit to pre-employment and random
drug screening during the 3(three) year term
6) Describe how you would like to resolve the issue:
Change all existing policies and procedures, Laws and guidelines be formally amended that exempts
the Oneida Business Committee from pre-employment and random drug screening.
7) Please list other departments or persons you have brought your concern to:
8) Do you consider this request urgent? No
If yes, please indicate why: _ _ _ _ _ _ _ _ _ _ _ _ _ __
9) Should we give this request priority over any pending request of this Council Member, entity or person? No
Please attach a copy of any correspondence or other material that may help us, including an electronic version if available.
If you know of any laws, ordinances or resolutions that might be affected list them or provide a marked-up copy.
12-11-13 Drug and Alcohol Free Workplace Law Legal Analysis: Applicants and Employees lines 61-66; BC Resolution 4-12-17-C Drug and Alcohol Free Workplace Law Amendments, amended
Title 2. Employment - Chapter 202 Drug and Alcohol Free Workplace Law
I, the undersigned, have reviewed the attached materials, and understand that they are subject to action by the Legislative
Operating Committee.
Signature ofRequester:
~
,,_/2'
="7/ ~
Date: November 16, 2023
(Signature re uired)
Legislative Operating Committee {LOC)
P.O. Box 365
Oneida, WI 54155
Phone: 920-869-4240
21 of 39
Oneida Nation
Oneida Business Committee
PO Box 365 • Oneida, WI 54155-0365
onelda-mn.gov
ONEIDA
Memorandum
To:
Legislative Operating Committee
From:
Larry Barton, T r e a s u ~ ~
Date:
November 16, 2023
Re:
Requiring All Incumbent Business Committee Members to Submit to
Pre-Employmentand Random Drug Screening during the 3(three)
year term
1. Request the Legislative Operating Committee change all existing policies and
procedures, Laws and guidelines be formally amended and adopted to require
the Oneida Business Committee submit a pre-employment drug screening prior
to Inauguration and formal Oath of Office. This requirement is applicable to all
elected Business Committee members both Incumbent and newly elected and
returning Business Committee members at conclusion of elections and prior to
taking office.
2. Require all incumbent Business Committee members to submit to random drug
testing during the 3 (three) year term.
This request attempts to close a visible double-standard which requires prospective
employees to submit to a drug screen test, while elected leadership is exempt from the
existing pre-employment work standard. Response from leadership and the Legislative
Operating Committee to combat the scourge of addiction requires setting the example
consistent with existing policies.
Page 1 of 1
A good rnind. A good hearL A strong fire.
22 of 39
Page 209 of 587
I :J I/
52
53
54
55
56
57
58
59
60
13
(It 1>1 (<
d
Analysis
Application and Scope
Prohibited Drugs
A new definition is added for "prohibited drugs," and it includes all of the controlled substances
identified in schedules 1-V under federal law, including marijuana, cocaine, opiates, amphetamines, PCP,
Quaaludes, hallucinogens, barbiturates, and narcotics. The definition also adds prescription and over-thecounter (OTC) medications used in an unauthorized or unlawful manner. This means that improper use of
prescription/OTC medications is treated as a positive drug test result and the employee would be subject to the
same consequences as ifs/he failed a drug test. See 3-1 (i).
61
Applicants and Employees
62
63
64
65
66
The amended Policy not only sets out provisions for employees, but also for internal and external job
applicants. A definition for "employee" is added, which includes individuals employed under an employment
contract as a limited term employee. The definition clarifies that elected officials, appointed officials,
employees of a Tribally-chartered corporation, and consultants, are not considered employees and thus not
subjecttothisLaw.See3-l(c).
67
Types ofTesting
68
69
70
Currently, the Policy only specifically provides for what amounts to "reasonable suspicion"
drug/alcohol testing. By comparison, the amended Policy provides for five other types of testing in addition to
reasonable suspicion testing, as shown on the following chart:
71
Type of testin2
Reasonable
suspicion
Preemployment
Work-related
accidents
Follow-up
Return-to-Duty
Re-hire after
termination
Who can be tested?
Any employee
Internal and external applicants
(transfers and new hires)
Any employee involved in a workrelated accident
Any employee, following a
violation of this Policy
Employees who have committed a
second violation of this Policy
Former employees, who were
terminated for a third violation of
this Policy, seeking to be re-hired.
When is
this testin2 required?
When reasonable suspicion is
established.
Before the applicant can be hired
or transfer positions.
Immediately following the
accident
Whenever it is required by a
Return-to-Work Agreement
Before a suspended employee can
return to work.
Before the employee is eligible
for re-hire.
Who pays
for testin2?
Tribe
Tribe
Employee or
Tribe
Employee
Employee
Employee
72
73
Reasonable Suspicion Testing
74
75
76
77
78
79
80
An employee can still be directed to submit to drug and/or alcohol testing if his or her supervisor
establishes sufficient reason to believe that the employee is under the influence. Howeve1~ the supervisor is no
longer required to first get authorization from his or her own supervisor before sending the employee for
testing. See 7-2 and the current Policy, 7-4.
The Policy no longer identifies 14 signs that an employee could be under the influence. Instead, the
supervisor establishes reasonable suspicion through "specific, contemporaneous and articulable observations"
about the employee that are consistent with possible drug/alcohol use. See 7-1 and the current Policy, 7-3.
23 of 39
Page 210 of 587
81
82
83
84
85
86
87
88
89
90
91
92
93
94
95
96
97
98
99
100
101
102
103
104
105
106
107
108
109
110
111
112
113
114
115
116
117
118
119
Two new requirements are added: Employees must immediately and confidentially repmi another
employee's suspicious behavior to that employee's supervisor; and supervisors must maintain the
confidentiality of anyone who rep01is suspicious behavior. See 5-2(d) and 5-3(b).
The amendments also clarify that employees are removed from duty until negative test results for
both alcohol and drugs are received. This appears to mean that in all reasonable suspicion testing, the
employee will be tested for both drugs and alcohol. See 10-1.
Pre-employment drug screening
Although the Tribe akeady requires pre-employment drug screening, it is not mentioned in the current
Policy. The amended Policy adds provisions for both internal applicants (current employees seeking to
transfer positions) and external applicants (not currently employed by the Tribe). If any applicant does not
pass the pre-employment drug screening or has engaged in prohibited behavior, the employment offer is
withdrawn. Internal applicants would also be removed from their current duty and subject to the consequences
of this Policy. See 3-1 (d) and (l), 11-2 and 11-3.
Work-related accident testing
New provisions require drug and alcohol testing when an employee is involved in a work-related
accident. "Work related accident" is defined as an unexpected event involving an employee that occurs
in the employee's working environment or during an activity related to work, that:
• results in an injury to the employee and requires medical intervention by a police officer or
emergency medical technician, or treatment at a medical facility,
• results in death of the employee or another person, or
• involves any property damage. See 3-l(m).
An employee involved in a work-related accident is required to immediately inform his/her supervisor of the
accident, and, upon arriving at a medical facility, is required to inform the medical care provider that the
accident was work-related. Testing must be conducted by certified drug and alcohol technicians or police
personnel immediately following an accident, and if it is not, then the employee's supervisor is required to
direct the employee to Employee Health Nursing (EHN) or its designee to be tested. Employees must be
tested within one hour of being directed to do so by their supervisor, or within an hour of being treated and
released from a medical facility. Refusal to submit to any post-accident testing requested by medical
personnel, police or EHN is treated as a refusal to test under this Policy. See 8-3 and 9-1 (g) and (i).
Additional Changes to the Policy
Alcohol and Drug Use On Official Tribal Business or During Other Traveling
A new rule prohibits employees from using intoxicants and prohibited drugs while on official
business travel, but only while the conference or meeting is in session2 . See 4-2.
A new provision states that an employee is not exempt from this Policy if they travel to another
jurisdiction and consume drugs that are legal in that jurisdiction. For example, if an employee travels to a
country where marijuana use is legal, and consumes marijuana, and later returns to work and tests positive for
drugs, thens/he would be subject to the consequences of this Policy for failing a drug test. See 4-3.
Off-Duty Use of Prohibited Drugs or Alcohol
2 The Tribe's Travel and Expense Policy also prohibits the "use of intoxicants, which would impair a traveler's ability
to represent, or which would discredit, and or embarrass the Oneida Tribe and its members" and provides that "Illegal
drugs or barbiturates shall not be used while representing the Oneida Tribe and its members." See the Travel &
Expense Policy, 14-4 and 14-5.
24 of 39
Page 211 of 587
120
121
122
123
124
125
126
127
128
129
130
131
132
13 3
134
13 5
136
137
13 8
139
140
141
142
143
144
145
146
14 7
148
149
150
151
152
15 3
154
15 5
156
157
15 8
15 9
160
161
162
163
New provisions are added to address off-duty employees who are not on call: If an employee is called
in for emergency/unplanned work, but was using prohibited drugs or alcohol before the call; the employee
should decline to report to work until the effects have left his or her system. Such refusal to report to work
shall not be viewed as improper, and no disciplinary action will rise specifically from such refusal. See 5-5.
Consent Form Requirement
New provisions require employees to sign consent forms for drug and alcohol testing upon
the request of a supervisor, a certified drug and alcohol technician, EHN or police personnel in
accordance with this Policy; and require supervisors to send a copy of "the consent to submit to
drug and alcohol testing form signed by the employee to EHN." This appears to refer to any form
the supervisor requires the employee to sign, not consent forms provided by technicians or police
personnel. See 5-2(/), 5-3(h) and 9-1 (f).
Prescription Medications
A new provision is added which states that employees may not sell or share their prescription
medications, or take medications prescribed to another person. See 5-6(c).
The amended Policy still requires employees to notify their supervisors of certain medication use
before reporting to work, but the requirements are slightly different. Under the amendments, employees are
required to report any controlled substances - not only prescriptions but also illegal drugs and OTC
medications. See 5-6 and the Current Policy, 6-2.
The amendments add requirements for prescription/OTC drug use:
• An employee may be required to get a written statement from their doctor or pharmacist, explaining
any work restrictions or potential impact on performance or safety. See 5-6(b).
• If necessary, the employee's doctor or a Medical Review Officer (MRO) may be consulted to
determine if the medication might impact the employee's performance or pose a hazard. See 5-6(d).
• Supervisors must monitor employees who are under the influence of medications that could
compromise the safety of the employee or others. See 5-3(d).
• Currently, employees may be reassigned while taking prescription drugs. Under the amended Policy,
an employee's duties can instead be temporarily modified, but only for up to 180 days. The
amendments add that the modification of duties will result in the appropriate modification of pay, as
established by the Human Resources Department. See 5-6(e).
Suspension Pending Results of a Drug or Alcohol Test
Employees must still be suspended pending the results of a drug/alcohol test. The Policy no longer
states the employee will receive "full back pay," if the results are negative; instead it states an employee will
receive back pay in accordance with the Back Pay Policy. See 10-2 and the current Policy, 9-5.
Limiting Back Pay
A new requirement is added to ensure that employees do not draw out a suspension while knowing
that they will receive full pay for all of the time missed from work: when a supervisor is providing notice of
negative test results to a suspended employee, the supervisor must also provide a reinstatement date. If the
employee does not return to work on the reinstatement date, the supervisor is required to discipline the
employee, unless the supervisor had granted an extension in writing. See 10-2.
Role of the MRO, Employee Responsibility to Respond to Requests
New provisions identify and designate responsibilities to the Medical Review Officer (MRO). Once
confirmed drug test results come back from the lab, the MRO is the doctor who receives and verifies those
results and evaluates medical explanations for certain test results (for example, whether a person has a valid
prescription that would account for a positive result.) See 3-1 (g) and 8-2(a).
25 of 39
Page 212 of 587
164
165
166
167
168
169
170
171
172
173
174
17 5
176
177
178
179
180
181
182
183
184
185
186
187
188
189
190
191
192
193
194
195
196
197
198
199
200
201
202
203
204
205
206
207
The MRO can direct that additional testing be conducted. Employees are required to cooperate with
any requests made by the MRO and to return the MRO's calls within 24 hours, or else the employee will not
receive back pay for any time between the MRO's call and the employee's return call. If an employee does not
respond to contact from the MRO within ten business days, the test shall be treated as if there were positive
test results, and the employee will be subject to the respective consequences of this policy. See 5-2(e) and 114.
Refusal to submit to drug/alcohol testing
The current Policy says employees "may" refuse to submit to requests for alcohol/drug testing, but it
also identifies penalties for refusal. The amendments clarify that testing is not optional - it is a condition of
employment and refusal is prohibited behavior. See 5-2(c), 6-l(d), 8-4 and 9-1; and the current Policy, 8-1.
The amendments also broaden the scope of "refusal to test" to include failure to cooperate with any
part of the testing process, as well as several other behaviors - such as tampering with the specimen, providing
an insufficient sample, behaving discourteously and disrupting the collection process, or if the employee fails
to inform a medical facility that s/he needs to undergo drug and alcohol testing following a work-related
accident. See 9-1.
Consequences for prohibited behavior
ONEAP Referrals and Return-To-WorkAgreements
Most violations will still result in the employee being referred to the Oneida Nation Employee
Assistance Program (ONEAP), for assessment by a counsel01~ who will create a Return to Work Agreement
(RTWA) that outlines the conditions an employee must follow in order to return to work and remain
employed. Employees must still sign and submit the agreement to their supervisor within ten days, or will be
terminated. The amendments add that Supervisors must also sign the RTWA. See 11-5, 5-3(g) and the current
Policy, 9-6(d).
Progressive Penalties for Refusal to Test and Positive Test Results
The amendments add that regardless of the progressive penalties for violations, any employee who is
caught using, possessing or selling prohibited drugs will immediately be terminated from employment with
the Tribe. See 6-1 (a).
The amendments also add that the progressive penalties, as discussed below, apply to a lifetime of
employment with the Tribe, instead of to the current employment. This means that if an employee is penalized
for a first offense under this Policy, but then leaves the Tribe and works elsewhere for several years, but then
returns to work for the Tribe, then the next offense would be treated as a second offense instead of as a first
offense again. See ll-5(b)(l), and (c)(l).
• First Offense - Refusal to test. The supervisor no longer has discretion - referring the employee to
ONEAP is mandatory. The employee must submit a RTWA within ten days, instead of "appropriate
documentation" within five days. The employee is suspended until s/he submits the RTWA to his/her
supervisor, instead of for "up to five days".
• First Offense- Positive Test Results. The penalties remain the same.
• Second Offense - Refusal to Test or Positive Test Result. Instead of automatically suspending
employees for five days, the employee is suspended until three things have occurred:
1. Sufficient progress in a treatment program (within 30 days)
2. The employee pays for and passes drug/alcohol test at a SAMHSA facility, and
3. ONEAP notifies the supervisor that the employee may return to work.
• Third Offense - Refusal to Test or Positive Test Result. The employee is still terminated and ineligible
for re-hire for one year. The amendments add:
.,.
26 of 39
Page 213 of 587
208
209
210
211
212
213
214
215
216
217
218
219
220
221
222
223
224
225
226
227
228
229
23 0
231
23 2
233
234
235
236
o
If the employee later seeks to be re-hired by the Tribe, thens/he must submit two things with any
job application: 1) proof of completing a certified AODA program, and 2) proof of a negative
drug screening and alcohol test conducted at a SAMSHA facility.
o An employee terminated for a third offense will not be eligible for re-hire until s/he has received
forgiveness from the Tribe pursuant to the Pardon and Forgiveness Law. See 12-1 and ll-5(c)(l).
Return-to-duty, follow-up and re-hire testing
Return-to-duty, follow-up and re-hire testing are all paid for by the employee instead of by the Tribe.
After a first violation of this Policy, an employee may be subject to return-to-duty testing or follow-up testing
- this is up to the ONEAP counselor. After a second violation, an employee must complete a return-to-duty
drug and alcohol screening at a SAMHSA-certified facility within 30 days, and participate in follow-up testing
as directed by the ONEAP counselor-all of which is done at the employee's own expense. See ll-5(a) and
ll-5(b)(3).
Ineligibility for re-hire or transfer, for things other than a third offense
An employee who is terminated for failing to sign and submit an RTWA to their supervisor within ten
days is still ineligible for re-hire for one year. The amendments add that an employee who is terminated for
failure to return to work on his or her assigned reinstatement date, or for failing to abide by the terms of a
RTWA, is also ineligible forre-hire for one year. See 11-5, 12-1 and 10-2.
The amendments also add that if an external applicant fails the pre-employment drug test, then s/he
would be ineligible for hiring for 180 days after the failed drug test, and if an internal applicant fails the preemployment drug test, thens/he would be ineligible to transfer from his or her current position for 180 days
after the failed drug test. See 11-2 and 11-3.
Drug and Alcohol Testing
The amended Policy no longer specifically requires that the least intrusive, most specific tests be used,
whenever testing is necessary. The amended Policy adds that to ensure the fairness of this Policy, all forensic
testing shall be conducted according to the Department of Health and Human Services, Substance Abuse and
Mental Health Services Administration (SAMSHA) guidelines for Federal Workplace Drug testing Programs.
See 8-1 and the cwrent Policy, 9-1 and 9-2.
Authorized Under the Polic
Test
e
Urine
Testin
AlcoholBreath
Testin
Saliva
testin
237
23 8
239
240
241
242
243
244
Urine drug testing administered by EHN or
a facili a roved b HRD.
Preliminary Breathalyzer test or alcosensor intoxometer administered by EHN
or a facilit a roved b HRD.
Not mentioned
Section 8-2
FDA-approved urine tests.
National Highway Transportation Safety
Administration (NHTSA) certified evidential
breath testin devices.
NHTSA certified saliva-screening devices
The amended Policy also adds that urine tests, breath testing devices, and saliva screening devices
must be operated by ''technicians" whose training terminology, procedures, methods, equipment, forms, and
quality assurance comply with best practices. EHN does not actually have specific technicians for operating
drug and alcohol tests/devices, but the nurses at EHN are "technically trained" to conduct such testing. See 8-
2.
The amendments add that urine must be retested if a test result is diluted or the test was cancelled. If
the re-test results in a negative-dilute, the applicant will be given a negative test result. If the re-test results in a
27 of 39
Page 214 of 587
245
246
24 7
248
249
250
251
252
253
254
25 5
25 6
257
25 8
259
260
261
262
263
264
265
266
267
268
269
270
2 71
272
2 73
274
275
276
277
278
279
280
281
282
283
284
285
286
287
288
positive-dilute, it is treated as a positive test result. Other testing may also be required at the direction of the
MRO. See 8-5.
Employee Records, Confidentiality
The cmrnnt Policy only states that employee drug/alcohol testing records may be placed in the
employee's health file and used in any grievance matter. The amendments add that all testing information is
maintained in confidential records, separate from the employee's clinical and personnel files. Access to that
information is limited to those with a legitimate "need to know" in compliance with "relevant laws and
personnel policies and procedures." See 14-1, 14-2, and the current Policy, 9-7.
Other Potential Liabilities
Currently, the Policy states that these drug/alcohol tests may never be used by the Tribe to prosecute
an employee in a criminal venue. The amended Policy instead provides that employees whose conduct
violates state or federal criminal laws may be referred to appropriate authorities for prosecution. See 13-1 and
the current Policy, 9-7.
The amended Policy also identifies other consequences an employee might face for violating this
Policy: ineligibility for unemployment benefits; reduced workers compensation benefits; and personal liability
for losses related to a work-related accident. See 13-1.
Other
The Tribe has two other drug/alcohol substance abuse policies that apply to employees, specifically
those who are required to hold a Commercial Driver's License or who pe1form certain safety-specific
functions governed by federal law. The Oneida Nation DOT - Highway FMCSA Substance Abuse Policy,
and the Oneida Nation DOT-Transit FTA Substance Abuse Policy, are not referenced here, but employees
to whom those Policies apply would be advised of those separate requirements at orientation and it appears
they would have to sign separate documents agreeing they would abide by the applicable policy or policies.
Sections 2-2 and 2-4 are revised to ensure the Adoption, Amendment, Repeal provisions are
consistent with the Legislative Procedures Act, as adopted by GTC on January 7, 2013.
A public meeting was held on September 19, 2013, and the public comments received at that meeting
and during the following Public Comment Period have been reviewed and considered for this draft.
•Submitted by: Taniquelle J. Thurner, Legislative Analyst
Legislative Reference Office
Drug and Alcohol Free Workplace Policy
Article I. Purpose and Policy
1-1. The Tribe is committed to protecting the safety, health and well-being of all employees, and
other individuals in the workplace. The Tribe recognizes that alcohol abuse and drug use pose a
significant health and safety threat to customers and other employees. The Tribe also recognizes
that alcohol/drug abuse and addiction are treatable illnesses. The Tribe realizes that early
intervention and support may improve the success of rehabilitation.
1-2. It is the policy of the Tribe to establish a drug and alcohol-free workplace program that
balances respect for individuals with the need to maintain an alcohol and drug-free environment.
The Tribe encourages employees to voluntarily seek help for their personal drug and alcoholrelated problems.
28 of 39
Oneida Nation
Post Office Box 365
Phone: (920)869-2214
Oneida, WI 541 55
BC Resolution# 04-12-17-C
Drug and Alcohol Free Workplace Law Amendments
WHEREAS,
the Oneida Nation is a federally recognized Indian government and a treaty tribe
recognized by the laws of the United States of America; and
WHEREAS,
the Oneida General Tribal Council is the governing body of the Oneida Nation; and
WHEREAS,
the Oneida Business Committee has been delegated the authority of Article IV, Section 1,
of the Oneida Tribal Constitution by the Oneida General Tribal Council; and
WHEREAS,
the Drug and Alcohol Free Workplace Policy (the "Policy") was adopted by the Oneida
Business Committee by resolution BC-10-25-95-A and amended by BC-12-11-13-F; and
WHEREAS,
the federal Occupational Safety and Health Administration (OSHA) adopted amendments
to 29 CFR 1904, a final rule which became effective on November 1, 2016, and which
prohibited employers from retaliating against workers who report work-related injuries and
illnesses; and
WHEREAS,
the prohibition of retaliation against workers who report work-related injuries and illnesses
includes limiting post-incident drug and alcohol testing to situations in which employee drug
use is likely to have contributed to the incident, and for which the drug test can accurately
identify impairment caused by drug use; and
WHEREAS,
the Oneida Business Committee adopted emergency amendments to the Policy pursuant
to Resolution BC-10-26-16-D in accordance with the emergency adoption process set forth
in the Legislative Procedures Act (LPA); and
WHEREAS,
the emergency amendments brought the Policy into compliance with OSHA requirements
by removing the requirement that all employees must immediately undergo mandatory drug
and alcohol testing following a workplace accident; and
WHEREAS,
the emergency amendments to the Policy expire April 26, 2017; and
WHEREAS,
the adoption of the emergency amendments to the Policy on a permanent basis are
necessary to remain compliant with OSHA requirements; and
WHEREAS,
although the permanent amendments contain the removal of mandatory drug and alcohol
testing requirements following a workplace accident, employees are still required to
immediately report all workplace accidents to their supervisor and can undergo drug and
alcohol testing at any time if there is reasonable suspicion that the employee is under the
influence of alcohol or drugs; and
WHEREAS,
additional permanent amendments include changing the Policy to a law to align with the
Legislative Operating Committee's directive that all legislation is to be classified as laws
moving forward; and
29 of 39
BC Resolution# 04-12-17-C
Drug and Alcohol Free Workplace Law Amendments
Page 2 of 2
WHEREAS,
amendments clarify that the Law applies to all employees when operating a vehicle owned
by the Nation or a vehicle rented by the Nation in addition to during working hours and
when on-call; and
WHEREAS,
amendments add the responsibility of providing the appropriate information to EHN in the
event a medical condition prevents the employee from properly completing drug and
alcohol testing so alternative drug and alcohol testing measures can be taken by EHN; and
WHEREAS,
amendments clarify that a supervisor's decision made in regard to reasonable suspicion
drug and alcohol testing of an employee is final and non-appealable; and
WHEREAS,
amendments clarify how diluted drug test results will be handled; and
WHEREAS,
in accordance with the LPA, a public meeting was held regarding the Drug and Alcohol
Free Workplace law amendments on March 2, 2017, with a comment period closing on
March 9, 2017. Those comments were accepted and considered by the Legislative
Operating Committee at the April 5, 2017, Legislative Operating Committee meeting; and
NOW THEREFORE BE IT RESOLVED, that the amendments to the Drug and Alcohol Free Workplace law
are hereby adopted and are effective immediately.
CERTIFICATION
I, the undersigned, as Secretary of the Oneida Business Committee, hereby certify that the Oneida
Business Committee is composed of 9 members of whom 5 members constitute a quorum; 6 members
were present at a meeting duly called, noticed and held on the 12 th day of April, 2017; that the forgoing
resolution was duly adopted at such meeting by a vote of 5 members for, 0 members against, and 0
members not voting; and that said resolution has not been rescinded or amended in any way.
Oneida Business Committee
*According to the By-Laws, Article I, Section 1, the Chair votes "only in the case of a tie."
30 of 39
Title 2. Employment - Chapter 202
DRUG AND ALCOHOL FREE WORKPLACE
202.1. Purpose and Policy
202.2. Adoption, Amendment, Repeal
202.3. Definitions
202.4. Application
202.5. Shared Responsibility
202.6. Prohibited Behavior
202.7. Reasonable Suspicion
202.8. Drug and Alcohol Testing
202.9. Refusal to Test
202.10. Reasonable Suspicion Testing Waiting Period
202.11. Consequences for Prohibited Behavior
202.12. Re-hire
202.13. Other Potential Consequences
202.14. Confidentiality
202.15. Communication
202.1. Purpose and Policy
202.1-1. Purpose. The Nation is committed to protecting the safety, health and well-being of all
employees, and other individuals in the workplace. The Nation recognizes that alcohol abuse and
drug use pose a significant health and safety threat to our customers and other employees. The
Nation also recognizes that alcohol and drug abuse and addiction are treatable illnesses. The
Nation realizes that early intervention and support may improve the success ofrehabilitation.
202.1-2. Policy. It is the policy of the Nation to establish a drug and alcohol-free workplace
program that balances respect for individuals with the need to maintain an alcohol and drug-free
environment. The Nation encourages employees to voluntarily seek help for their personal drug
and alcohol-related problems.
202.2. Adoption, Amendment, Repeal
202.2-1. This law was adopted by the Oneida Business Committee by resolution BC-10-25-95-A
and amended by BC-10-20-99-A, BC-12-05-07-B, BC-12-11-13-F and BC-04-12-17-C.
202.2-2. This law may be amended or repealed by the Oneida Business Committee and/or the
Oneida General Tribal Council pursuant to the procedures set out in the Legislative Procedures
Act.
202.2-3. Should a provision of this law or the application thereof to any person or circumstances
be held as invalid, such invalidity shall not affect other provisions of this law which are considered
to have legal force without the invalid portions.
202.2-4. In the event of a conflict between a provision of this law and a provision of another law,
the provisions of this law shall control.
202.2-5. This law is adopted under authority of the Constitution of the Oneida Nation.
202.3. Definitions
202.3-1. This section shall govern the definitions of words or phrases as used within this law. All
words not defined herein shall be used in their ordinary and everyday sense.
(a) "Appropriate authority" means the Human Resources Department hiring representative,
immediate supervisor, EHN, MRO, and/or ONEAP who requests the drug and/or alcohol
testing for reasons of pre-employment, reasonable suspicion, and/or follow-up testing.
(b) "Business day" means Monday through Friday from 8:00am-4:30pm, excluding
holidays recognized by the Nation.
(c) "Confirmed positive test result" means a lab-confirmed drug test that is verified by the
MRO that exceeds the cut-off levels established by this law (levels established by the
United States Department of Health and Human Services), confirmed saliva testing,
confirmed evidential breath alcohol test results of 0.02 or greater; and/or refusal to test.
(d) "EHN" means the Oneida Employee Health Nursing Department.
2 O.C. 202 - Page 1
31 of 39
(e) "Employee" means any individual who is employed by the Nation and is subject to the
direction and control of the Nation with respect to the material details of the work
performed, or who has the status of an employee under the usual common law rnles
applicable to determining the employer-employee relationship. "Employee" includes, but
is not limited to; an individual employed by any program or enterprise of the Nation, but
does not include elected or appointed officials, or individuals employed by a Tribally
Chartered Corporation. For purposes of this law, individuals employed under an
employment contract as a limited term employee are employees of the Nation, not
consultants.
(f) "External applicant" means a person who is applying for a position and not currently
employed by the Nation.
(g) "HRD" means the Human Resources Department and/or representatives performing
Human Resources functions applicable to this law.
(h) "Internal applicant" means a person who is applying for a position who is currently
employed by the Nation, this includes those employed under a temporary status.
(i) "MRO" means Medical Review Officer who is a licensed physician who is responsible
for receiving and reviewing laboratory test results generated by an employer's drug testing
program and evaluating medical explanations for certain drug test results.
(j) ''Nation" means the Oneida Nation.
(k) ''NHTSA" means the National Highway Traffic Safety Administration.
(1) "ONEAP" means the Oneida Nation Employee Assistance Program which is a
professional counseling program staffed by clinical social workers licensed by the State of
Wisconsin which offers services to the Nation's employees and family members.
(m) "Prohibited drug(s)" means marijuana, cocaine, opiates, amphetamines, phencyclidine
(PCP), hallucinogens, methaqualone, barbiturates, narcotics, and any other substance
included in Schedules I through V, as defmed by Section 812 of Title 21 of the United
States Code. This also includes prescription medication or over-the-counter medicine used
in an unauthorized or unlawful manner.
(n) "Return-to-Work.Agreement" means an agreement, developed by an ONEAP counselor
and signed by the employee and the ONEAP counselor, and the referring supervisor, which
sets out the actions the employee needs to complete in order to return to work and remain
employed.
(o) "SAMHSA" means the United States Department of Health and Human Services,
Substance Abuse and Mental Health Services Administration.
(p) "Supervisor" means the immediate supervisor, or person who has taken on the role of
supervisor due to an absence that is responsible for performance review, corrective action,
and day-to-day assignments of duties.
(q) "Work-related accident" means an unexpected event involving an employee that occurs
in the employee's working environment or during an activity related to work, that:
(1) results in an injury to the employee or another person that may require medical
intervention by a police officer or emergency medical technician, or treatment at a
medical facility,
(2) results in death of the employee or another person, or
(3) involves any property damage.
2 O.C. 202-Page 2
32 of 39
202.4. Application
202.4-1. This law applies to all applicants for employment, whether external or internal, and all
employees during working hours, when on-call, and when operating a vehicle owned by the Nation
or a vehicle rented by the Nation.
202.4-2. An employee is prohibited from the use of prohibited drugs and alcohol during working
hours, when on-call, and when operating a vehicle owned by the Nation or a vehicle rented by the
Nation.
202.4-3. An employee is prohibited from the use of intoxicants while on official business travel
while the conference or meeting is in session.
202.4-4. An employee is not exempted from this law if they travel to another state, territory or
country where the use of certain drugs is legal.
202.5. Shared Responsibility
202.5-1. A safe and productive drug and alcohol free workplace is achieved through cooperation
and shared responsibility between the employer and an employee.
202.5-2. Employee. It is the employee's responsibility to:
(a) Be free from the effects of prohibited drugs, and/or alcohol during working hours,
and/or when scheduled to be on-call.
(b) Refrain from the unlawful manufacture, distribution, dispensation or possession of any
prohibited drugs while working.
(c) Comply with drug and alcohol testing if directed to do so upon the request of an
appropriate authority.
(d) Confidentially report suspicious behavior of an employee immediately to the
supervisor of the employee in question.
(e) Cooperate with the requests made by EHN and the MRO. The employee shall return
the call of the MRO within twenty-four (24) hours of the call being made to the employee.
An employee who fails to cooperate and does not contact the MRO within twenty-four (24)
hours of receiving contact shall not receive back pay for any time between the date the
MRO placed the call until the time the employee does return the call of the MRO.
(f) Sign a consent form to be tested for alcohol and drugs when requested by an
appropriate authority.
(g) Provide the appropriate information to EHN in the event a medical condition prevents
the employee from properly completing drug and alcohol testing so alternative drug and
alcohol testing measures can be taken by EHN.
202.5-3. Supervisor. It is the supervisor's responsibility to:
(a) Be familiar with this law and any related policies and procedures.
(b) Investigate reported suspicious behaviors while maintaining the confidentiality of the
person who reported the suspicious behavior.
(c) Promptly intervene with an employee who is believed to be under the influence of
prohibited drugs and/or alcohol.
(d) Monitor the employee under the influence of prescription and/or over-the-counter
medications that could compromise the safety of the employee, fellow employees, or the
public.
(e) Send the employee through the contracted transportation service for reasonable
suspicion drug and alcohol testing.
2 O.C. 202 - Page 3
33 of 39
(f) Take appropriate action as outlined by this law.
(g) Sign the Return-to-Work Agreement along with the employee and ONEAP counselor
that was developed by ONEAP.
(h) Send a copy of the consent to submit to drug and alcohol testing form signed by the
employee to EHN.
202.5-4. Supervisor and Employee. A supervisor or an employee that fails to adhere to the
responsibilities of the supervisor or employee under this law may be subject to disciplinary action
or other consequences as explained in section 202.13.
202.5-5. Off-duty Use of Prohibited Drugs or Alcohol. Off-duty use of prohibited mugs or
alcohol may result in continued impairment during on-duty hours, which shall then constitute a
violation of this law. It is the employee's responsibility to understand the consequences of offduty use, and take steps to avoid the possibility of on-duty impairment. An employee who is called
in for emergency or unplanned work, excluding those on-call, and has been using prohibited drugs
or drinking alcoholic beverages prior to such a call, shall inform the employee's supervisor they
cannot report, and shall continue to decline to report until the effects of the prohibited drugs or
alcohol have left the employee's system. Such refusal to report shall not be viewed as improper,
and disciplinary action shall not arise from such refusal.
202.5-6. Use of Controlled Substances That May Affect Safety or Pe,formance. An employee
who is taking or is under the influence of any controlled substances during working hours,
including prescription medication or over the counter medication, which may affect the
employee's job performance or safety of the employee, fellow employees, public, or assets of the
Nation have the following obligations:
(a) The employee shall notify the employee's immediate supervisor about the use of the
substance and possible work-related effects prior to commencing work.
(b) Upon request, the employee may be required to obtain a written statement of any work
restrictions or impact on performance or safety relating to the legal substances from the
employee's physician or pharmacist.
(c) An employee shall not sell or share his or her prescribed medications with any other
person, and shall not take medications that are prescribed to another person.
(d) It may be necessary for the employee's supervisor, area manager or EHN to consult
with the employee's personal physician, pharmacist or an MRO, with the employee's
approval or written authorization, to determine if the medication might impact the
employee's ability to perform the employee's job, or pose a hazard to other employees
or to the general public.
(e) The employee's duties may be temporarily modified for up to one hundred eighty (180)
days. Any modification of duties shall result in the appropriate modification of pay as
established by the Human Resources Department.
202.6. Prohibited Behavior
202.6-1. An applicant or employee of the Nation is in violation of this law ifhe or she:
(a) Uses, possesses, and/or sells prohibited drugs, or is under the influence of prohibited
mugs or alcohol while on duty. Notwithstanding section 202.11, any employee who is caught
using, possessing or selling prohibited drugs shall be immediately terminated from employment
with the Nation.
2 O.C. 202 - Page 4
34 of 39
(b) Fails to inform his or her supervisor of being under the influence of prescription
medication and/or over-the-counter medication(s) which may affect the employee's job
performance or safety of the employee, fellow employees, public, or assets of the Nation.
(c) Uses unauthorized prescription drugs or intentionally misuses and/or abuses
prescription medications.
(d) Refuses to test.
(e) Has a confirmed positive test result after completing a drug and/or alcohol test through
EHN or a medical facility, or has a confirmatory test come back as positive.
202. 7. Reasonable Suspicion
202. 7-1. Establishing reasonable suspicion begins when the supervisor becomes aware either by
personal observation and/or secondary reported observation that an employee may be under the
influence of drugs and/or alcohol: this may include seeing or receiving a report that the employee
has taken or possess prohibited drugs or prescription medication that is not specifically prescribed
to that employee. In order to make a reasonable suspicion determination, the supervisor shall
evaluate the following:
(a) Specific observations concerning appearance, behavior, speech, or body odors of the
employee consistent with possible drug use or alcohol misuse.
(b) The observations may include indications of the chronic and withdrawal effects of
prohibited drugs or alcohol.
202.7-2. The supervisor shall document his or her observations and discuss the matter with the
employee. During this discussion, the supervisor may ask the employee for proof of a prescription.
The employee shall comply with this request. If after a discussion with the employee, the
supervisor continues to suspect the employee may currently still be under the influence or
reasonable suspicion is otherwise established, the supervisor shall refer the employee for
reasonable suspicion drug and alcohol testing.
202.7-3. A supervisor's decision made in regard to the reasonable suspicion drug and alcohol
testing of an employee is final. An employee shall not appeal or challenge a supervisor's
determination for reasonable suspicion drug and alcohol testing.
202.8. Drug and Alcohol Testing
202.8-1. Drug and alcohol tests are forensic in nature, meaning they are performed to formalize
conditions of employment as described in this law. To ensure the accuracy and fairness of this
law, all drug and alcohol testing shall be conducted according to SAMHSA guidelines for Federal
Workplace Drug Testing Programs.
202.8-2. EHN or its designee shall use Federal Drug Administration approved urine tests and
NHTSA certified evidential breath testing devices or NHTSA certified saliva-screening devices,
operated by technicians whose training terminology, procedures, methods, equipment, forms, and
quality assurance comply with best practices.
(a) Confirmation drug testing done on urine specimens shall be conducted by a laboratory
which is certified by the U.S. Department of Health and Human Services using its
confirmation methods and established cut-off levels. Laboratory-confirmed results shall
undergo the verification process by a MRO.
(b) Confirmation breath alcohol testing shall be performed using an NHTSA certified
evidential breath testing device.
2 O.C. 202 - Page 5
35 of 39
(c) Confirmation drug testing done by saliva testing shall be performed using an NHTSA
certified saliva test.
202.8-3. If an employee is involved in a work-related accident, he or she shall immediately inform
his or her supervisor of the accident.
202.8-4. Each employee, as a condition of employment, shall participate in pre-employment,
reasonable suspicion, and follow-up testing upon the request of an appropriate authority.
202.8-5. A negative test result is required for employment eligibility.
202.8-6. Dilution of Test Results. In cases where a drug test result is diluted, a positive dilute of
the test result requires that the applicant or employee shall be given a confirmed positive test
result, while a negative dilute of the test result requires retesting. EHN shall notify the applicant or
employee of the required retesting.
(a) If the re-test results in a negative-dilute, the applicant or employee shall be given a
negative test result.
(b) If the re-test results in a positive-dilute, then the applicant or employee shall be given a
positive test result.
202.9. Refusal to Test
202.9-1. Refusal to test is prohibited behavior as defined in section 202.6. Refusal to test carries
the same consequences as a confirmed positive test result. Examples ofrefusal to test include, but
are not limited to:
(a) Substituting, adulterating (falsifying), or diluting the specimen.
(b) Refusal to sign the required forms.
(c) Refusal to cooperate in the testing process in such a way that prevents completion of
accurate testing and as directed by the collector.
(d) Failing to remain at the testing site until the testing process is complete.
(e) Providing an insufficient sample of urine or breath.
(f) Failing to test or to re-test.
(g) Failing to appear within two (2) hours after an order or request is made for testing or
re-testing.
(h) Behaving in a confrontational or discourteous manner that disrupts the collection
process.
202.10. Reasonable Suspicion Testing Waiting Period
202.10-1. This section applies only to cmrent employees who meet the reasonable suspicion
standard. It does not apply to applicants of the Nation.
202.10-2 During drug and alcohol testing for reasonable suspicion, an employee shall be
immediately removed from duty without pay at the time of initiation of the reasonable suspicion
drug and alcohol testing and specimen collection until the employer is notified by EHN of negative
results on both the drug and alcohol tests, or MRO-verified negative test results.
202.10-3. When confirmation of test results are made available to the employer, the supervisor
shall notify the employee by telephone and by certified mail using the contact information
provided by the employee. The notice to the employee shall identify a reinstatement date if the
test was confirmed negative, or applicable consequences if the test was confirmed positive. If the
employee is reinstated, back pay shall be provided in accordance with the Back Pay law.
However, if the employee fails to return to work on the assigned reinstatement date as instructed in
2 O.C. 202 Page 6
36 of 39
the notice from the supervisor, the supervisor shall discipline the employee in accordance with the
Nation's laws, rules and policies governing employment, unless an extension is granted in writing
by the supervisor along with the reason for the extension. An employee who is ultimately
terminated for failure to return to work on his or her assigned reinstatement date shall not be
eligible for employment for one (1) year after the date of termination.
202.11. Consequences for Prohibited Behavior
202.11-1. Either an internal applicant or an external applicant may decline the position at any time
before being directed to EHN or other designated testing site for the applicant's drug and alcohol
testing.
202.11-2. External Applicant. If an external applicant fails to show at the testing site within the
time allotted, or on the date of the scheduled test, or has engaged in prohibited behavior as listed at
section 202.6 that has been documented, the employment offer shall be withdrawn. An external
applicant shall not be eligible for hiring consideration for one hundred eighty (180) days from the
date of the urine chug screening test.
202.11-3. Internal Applicant. If an internal applicant fails to show at the testing site within the
time allotted, or on the date of the scheduled test, or has engaged in prohibited behavior as listed at
section 202.6, the employment offer shall be withdrawn. The applicant shall be removed from
duty and subject to respective consequences of this law. The applicant shall not be eligible for
hiring consideration in a different position for one hundred eighty (180) days from the date of the
urine chug screening test.
202.11-4. Employee. If an employee has engaged in prohibited behavior as listed in section
202.6-1, and/or fails to cooperate by not responding to contact from the MRO within ten (10)
business days (which shall be deemed thereafter as a definite positive test), the employee shall be
removed from duty and subject to the respective consequences of this law.
202.11-5. Consequences.
(a) First Violation.
(1) Any employee who engages in prohibited behavior as defmed in section 202.6
for the first time shall be removed from duty without pay and shall receive a
mandatory referral to ONEAP for an assessment. The ONEAP shall also determine
if the employee shall be subject to return-to-duty/follow-up testing. If follow-up
testing is required, the testing shall be at the employee's expense.
(2) The employee shall sign a Return-to-Work Agreement and submit the
agreement to his or her supervisor within ten (10) days or the employee shall be
terminated and ineligible for re-hire for one (1) year.
(A) When the supervisor signs the Return-to-Work Agreement the
employee shall be placed back on the work schedule by the next regularly
scheduled workday.
(3) Failure to comply with the signed Return-to-Work Agreement shall result in the
employee being terminated and ineligible for re-hire for one (1) year.
(b) Second Violation.
(1) Any employee who engages in prohibited behavior as defined in section 202.6 a
second time within his or her lifetime of employment with the Nation shall be
removed from duty without pay and shall receive a mandatory referral to ONEAP
for an assessment.
2 O.C. 202 - Page 7
37 of 39
(2) The employee shall sign a Return-to-Work Agreement and submit it to the
employee's supervisor for signature within ten (10) days or the employee shall be
terminated and ineligible for re-hire for one (1) year. After a second violation the
employee shall not be placed back on the work schedule until:
(A) The employee receives approval from the ONEAP that they have
demonstrated sufficient progress in a treatment program that would indicate
the employee is drng and alcohol free within thirty (30) days of the
employee being removed from duty; and
(B) The employee completes a return-to-duty drng screening and alcohol
test at a SAMHSA-certified facility at their own expense, which shall be
negative within thirty (30) days of the employee being removed from duty;
(C) The ONEAP notifies the supervisor of the employee's eligibility to
return to work.
(3) As a condition of continuing employment, the employee shall participate in
follow-up testing with continued negative results as directed by the ONEAP and
listed in the Return-to-Work Agreement. All follow-up testing shall be at the
employee's expense.
(4) Failure to comply with the Return-to-Work agreement or follow up testing shall
result in the employee being terminated and ineligible for re-hire for one (1) year.
(c) Third Violation.
(1) Any employee who engages in prohibited behavior as defined in section 202.6 a
third time in his or her lifetime of employment with the Nation shall be terminated.
The employee shall not be eligible for employment unless he or she receives a
forgiveness pursuant to the Pardon and Forgiveness law. An employee that receives
forgiveness shall not be eligible for re-hire for one (1) year after the date of
termination.
202.12. Re-hire
202.12-1. A former employee that was terminated due to violations of this law shall provide,
along with the former employee's application for employment, the following:
(a) Proof of completion of a certified Alcohol and Other Drng Abuse program; and
(b) A negative drng screening and alcohol test at a SAMHSA-certified facility completed
within the last thirty (30) days. This drng screening and alcohol test shall be done at the
former employee's own expense.
202.13. Other Potential Consequences
202.13-1. The violation of this law may result in consequences to the employee beyond any
discipline or corrective action that may be taken. Other potential consequences include the
following:
(a) Disqualification of Unemployment Benefits. An employee who is terminated as a result
of a violation of this law may be ineligible for unemployment benefits.
(b) Reduction of Workers Compensation Benefits. An employee who incurs an injury in a
work-related accident that occurred while engaged in a violation of this law may have any
workers compensation benefits reduced.
2 O.C. 202 - Page 8
38 of 39
(c) Criminal Penalties. An employee whose conduct violates state or federal criminal laws
may be refe1Ted to appropriate law enforcement for criminal prosecution.
(d) Liability for Accidents. An employee whose conduct in violation of this law causes an
accident may be held personally responsible for losses associated with the accident, and the
employee may be required to pay for those losses.
202.14. Confidentiality
202.14-1. Information related to the application of this law is confidential. Access to this
information is limited to those who have a legitimate "need to know" in compliance with relevant
laws and personnel policies and procedures.
202.14-2. All dmg and alcohol testing information shall be maintained at EHN in confidential
records which are separate from the employee's clinical and personnel files. The employee may
request a copy of the employee's records. The records may be requested by a third party in
accordance with the Oneida Nation's laws, mles and policies governing employment.
202.15. Communication
202.15-1. HRD shall communicate this law to all employees to ensure all employees are aware of
their role in supporting this law:
(a) All employees shall be given information on how to access this law.
(b) This law shall be reviewed in new employee orientation and other means, as deemed
appropriate by HRD.
(c) All employees shall sign an acknowledgment form stating they have received a copy of
this law, have read and understand it, and agree to follow this law.
End.
See GTC-01-31-94-B
Adopted-BC-08-17-94
Emergency Amended - BC-04-20-95-C
Adopted - BC-10-25-95-A (repealed previous versions)
Amended - BC-10-20-99-A
Amended - BC-12-05-07-B
Amended - BC-12-11-13-F
Emergency Amended- BC-10-26-16-D
Amended - BC-04-12-17-C
2 O.C. 202-Page 9
39 of 39
December 2023
December 2023
January 2024
SuMo TuWe Th Fr Sa
SuMo TuWe Th Fr Sa
1 2
3 4 5 6 7 8 9
10 11 12 13 14 15 16
17 18 19 20 21 22 23
24 25 26 27 28 29 30
31
1 2 3 4 5 6
7 8 9 10 11 12 13
14 15 16 17 18 19 20
21 22 23 24 25 26 27
28 29 30 31
MONDAY
TUESDAY
WEDNESDAY
THURSDAY
FRIDAY
Nov 27
28
29
30
Dec 1
4
5
6
7
8
2:00pm Intro to: Oneida
Higher Education
Scholarship Code
(Microsoft Teams
Meeting) - Grace L.
Elliott
11
8:30am LOC Prep Meeting
(Microsoft Teams
9:00am Legislative
Operating Committee
1:30pm LOC Work
Session (Microsoft
5:30pm Legislative
Operating Committee
12
13
9:00am Real Property Law
Amendments
(Microsoft Teams
Meeting) - Grace L.
Elliott
14
1:30pm LOC Work
Session (Microsoft
Teams Meeting;
BC_Exec_Conf_Room) Clorissa N. Leeman
18
19
12:15pm PUBLIC
MEETING: Clean Air
Policy Amendments
(BC_Conf_Room) - LOC
20
21
8:30am LOC Prep Meeting
(Microsoft Teams
Meeting;
9:00am Legislative
Operating Committee
Meeting (Microsoft
1:30pm LOC Work
Session (Microsoft
25
26
27
22
12:00pm Christmas Eve
28
8:00am Christmas
LOC
15
29
1:00pm LOC Work
Session (Microsoft
Teams Meeting;
BC_Exec_Conf_Room) Clorissa N. Leeman
1
12/1/2023 2:26 PM
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.