Oneida Business Committee (2019)

Tribal code

Ask Donna

What actually matters in this document.

Text

Public Packet

1 of 48

Oneida Business Committee

Special Meeting

8:30 AM Friday, January 18, 2019

BC Conference Room, 2nd floor, Norbert Hill Center

Agenda

Meeting agenda is available here: oneida-nsn.gov/government/business-committee/agendas-packets/.

Materials for the “General Tribal Council” section of the agenda, if any, are available to enrolled members

of the Oneida Nation; to obtain a copy, visit the BC Support Office, 2nd floor, Norbert Hill Center and

present a valid Tribal I.D. or go to https://goo.gl/uLp2jE. Scheduled times are subject to change.

CALL TO ORDER

II.

OPENING

III.

ADOPT THE AGENDA

IV.

STANDING COMMITTEES

LEGISLATIVE OPERATING COMMITTEE

Approve the adoption packet for Sanctions and Penalties law for

consideration at the February 24, 2019, special GTC meeting

Sponsor: David P. Jordan, Councilman

GENERAL TRIBAL COUNCIL

PETITIONER GINA D. POWLESS - RESCINDING THE REMOVAL LAW

Accept the legal review

Sponsor: Jo Anne House, Chief Counsel

Accept the fiscal impact statement

Sponsor: Larry Barton, Chief Financial Officer

Oneida Business Committee

Special Meeting Agenda

Page 1 of 2

January 18, 2019

Public Packet

2 of 48

PETITIONER SCOTT KOSBAB - CREATING A TERM LIMITS LAW

Accept the legal review

Sponsor: Jo Anne House, Chief Counsel

Accept the fiscal impact statement

Sponsor: Larry Barton, Chief Financial Officer

MEETING NOTICE AND MATERIALS

VI.

Approve notice and materials for February 24, 2019, tentatively scheduled

special GTC meeting

Sponsor: Lisa Summers, Secretary

ADJOURN

Posted on the Oneida Nation’s official website, www.oneida-nsn.gov pursuant to the Open Records and

Open Meetings law (§ 107.14.)

The meeting packet of the open session materials for this meeting is available by going to the Oneida

Nation’s official website at: oneida-nsn.gov/government/business-committee/agendas-packets/

For information about this meeting, please call the Business Committee Support Office at (920) 869-4364

or (800) 236-2214

Oneida Business Committee

Special Meeting Agenda

Page 2 of 2

January 18, 2019

Public Packet

3 of 48

Oneida Business Committee Agenda Request

Approve the adoption packet for Sanctions and Penalties law for consideration at the February 24, 201

1. Meeting Date Requested:

01 / 18 / 19

2. General Information:

Session:

Open

Agenda Header:

Executive - See instructions for the applicable laws, then choose one:

Standing Committees

Accept as Information only

Action - please describe:

Include the approved adoption packet for the Sanction and Penalties law in the February 24, 2019 GTC

special meeting materials, for the General Tribal Council's consideration

3. Supporting Materials

Report

Resolution

Contract

Other:

1. Adoption Packet-Sanctions and Penalties law

Business Committee signature required

4. Budget Information

Budgeted - Tribal Contribution

Budgeted - Grant Funded

5. Submission

Authorized Sponsor / Liaison:

David P. Jordan, Councilmember

Primary Requestor/Submitter:

Your Name, Title / Dept. or Tribal Member

Additional Requestor:

Name, Title / Dept.

Additional Requestor:

Name, Title / Dept.

Page 1 of 2

Unbudgeted

Public Packet

4 of 48

Public Packet

5 of 48

Public Packet

6 of 48

Public Packet

7 of 48

Oneida Nation

Post Office Box 365

Phone: (920)869--2214

Oneida, WI 54155

GTC Resolution # _____________

Sanctions and Penalties Law

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 purpose of the Sanctions and Penalties law (“the Law”) is to establish a consistent set

of sanctions and penalties that may be imposed upon elected and appointed officials of the

Nation for misconduct in office for the purpose of providing an opportunity for the official to

take corrective action to address the misconduct and promote accountability and improved

performance of the official; and

WHEREAS,

the Law will require an elected or appointed official of the Nation to behave in a manner

that promotes the highest ethical and moral standard; and

WHEREAS,

the Law will subject an elected or appointed official of the Nation to sanctions and penalties

for behaving in a manner that constitutes misconduct; and

WHEREAS,

the Law will provide a process for filing a complaint alleging misconduct against an elected

or appoint official, including who may file a complaint, when to file a complaint, where a

complaint may be filed, and the necessary contents of a complaint; and

WHEREAS,

the Law will prohibit retaliation against any individual who makes a complaint, is a witness

to a complaint, or offers testimony or evidence; and

WHEREAS,

the Law will require all complaints alleged against an elected or appointed official to be

handled in a confidential manner; and

WHEREAS,

the Law will delegate the responsibility to handle complaints alleged against an appointed

official to the Oneida Business Committee, due to the fact that an appointed official serves

at the discretion of the Oneida Business Committee; and

WHEREAS,

the Law will delegate the responsibility to handle complaints alleged against an elected

official to the Judiciary - Trial Court; and

WHEREAS,

the Law will allow an appeal of a decision of the Oneida Business Committee or Judiciary

- Trial Court to be made to the Nation’s Court of Appeals; and

Public Packet

8 of 48

GTC Resolution # _______

Sanctions and Penalties Law

Page 2 of 2

WHEREAS,

the Law provides the various sanctions and penalties that may be imposed against an

elected or appointed official, and the factors that shall be used when determining the

appropriate sanctions and/or penalties to impose; and

WHEREAS,

the Law will clarify that the imposition of sanctions and/or penalties does not exempt an

official from individual liability for the underlying misconduct, and does not limit any

penalties that may be imposed in accordance with other laws; and

WHEREAS,

the Law will provide for the effect of a resignation by an elected or appointed official; and

WHEREAS,

the Law will require that the Business Committee Support Office maintain a record of

conduct in office for each elected or appointed official; and

WHEREAS,

a public meeting on the proposed Law was held on October 4, 2018, in accordance with

the Legislative Procedures Act, and the public comments were reviewed and accepted by

the Legislative Operating Committee on October 17, 2018 and October 25, 2018; and

NOW THEREFORE BE IT RESOLVED, that the Sanctions and Penalties law is hereby adopted and shall

become effective ten (10) business days after the date of the adoption of this resolution.

Public Packet

9 of 48

Oneida Nation

Oneida Business Committee

Legislative Operating Committee

PO Box 365 • Oneida, WI 54155-0365

Oneida-nsn.gov

Statement of Effect

Sanctions and Penalties Law

Summary

This resolution adopts a Sanctions and Penalties law for the purpose of establishing a consistent

set of sanctions and penalties that may be imposed upon elected and appointed officials of the

Nation for misconduct in office for the purpose of providing an opportunity for the official to take

corrective action to address the misconduct and promote accountability and improved performance

of the official.

Submitted by: Clorissa N. Santiago, Staff Attorney, Legislative Reference Office

Date: January 7, 2019

Analysis by the Legislative Reference Office

The Legislative Procedures Act (“the LPA”) was adopted by the General Tribal Council through

resolution GTC-01-07-13-A for the purpose of providing a process for the adoption of laws of the

Nation. [1 O.C. 109.1-1]. This resolution adopts a Sanctions and Penalties law, which complies

with all processes and procedures required by the LPA, including the development of a legislative

analysis, a fiscal analysis, and the opportunity for public review during a public meeting and public

comment period. [1 O.C. 109.6, 109.7, 109.8].

This resolution adopts the proposed Sanctions and Penalties law which will establish a consistent

set of sanctions and penalties that may be imposed upon elected and appointed officials of the

Nation for misconduct in office for the purpose of providing an opportunity for the official to take

corrective action to address the misconduct and promote accountability and improved performance

of the official. The Sanctions and Penalties law will:

Require an elected or appointed official of the Nation to behave in a manner that promotes

the highest ethical and moral standard [1 O.C. 120.4-1];

Subject an elected or appointed official of the Nation to sanctions and penalties for

behaving in a manner that constitutes misconduct [1 O.C. 120.4-2];

Provide a process for filing a complaint, including:

who may file a complaint [1 O.C. 120.5-1];

when a complaint may be filed, [1 O.C. 120.5-2];

where a complaint may be filed [1 O.C. 120.5-4]; and

the necessary contents of a complaint [1 O.C. 120.5-3];

Prohibit retaliation against any individual who makes a complaint, is a witness to a

complaint, or offers testimony or evidence complying with directives under this law [1

O.C. 120.5-5];

Require all complaints alleged against an elected or appointed official to be handled in a

confidential manner [1 O.C. 120.5-7];

Delegate the responsibility to handle complaints alleged against an appointed official to

the Oneida Business Committee, due to the fact that an appointed official serves at the

Page 1 of 2

Public Packet

10 of 48

discretion of the Oneida Business Committee, through a process which includes:

The opportunity for mediation between the complainant and official whom is the

subject of the complaint [1 O.C. 120.6-3];

The opportunity for the official who is the subject of the complaint to provide an

answer to the complaint [1 O.C. 120.6-4];

The requirement that an Oneida Business Committee member that has a conflict of

interest in a complaint brought before the Oneida Business Committee immediately

recuse himself or herself and shall not participate in any portion of the complaint

process [1 O.C. 120.6-5];

An initial review by the Oneida Business Committee to determine whether or not

the allegation made within the complaint has merit [1 O.C. 120.6-6];

An investigatory hearing held by the Oneida Business Committee to determine if

there is enough evidence to substantiate the allegations of misconduct by clear and

convincing evidence [1 O.C. 120.6-8];

Deliberation and determination by the Oneida Business Committee on whether

there is clear and convincing evidence that the official engaged in misconduct, and

therefore appropriate sanctions and/or penalties shall be imposed [1 O.C. 120.6-9,

120.6-10];

Delegate the responsibility to handle complaints alleged against an elected official to the

Trial Court [1 O.C. 120.7-1];

Allow for an individual to appeal the decision of the Oneida Business Committee or Trial

Court to the Nation’s Court of Appeals [1 O.C. 120.6-11, 120.7-4];

Provide sanctions and penalties that may be imposed against an elected or appointed

official [1 O.C. 120.8-2];

Provide factors to be used when determining the appropriate sanctions and/or penalties to

impose [1 O.C. 120.8-3];

Clarify that the imposition of sanctions and/or penalties does not exempt an official from

individual liability for the underlying misconduct, and does not limit any penalties that may

be imposed in accordance with other laws [1 O.C. 120.8-5];

Discuss the effect of a resignation by an elected or appointed official [1 O.C. 120.9]; and

Require that the Business Committee Support Office maintain a record of conduct in office

for each elected or appointed official [1 O.C. 120.10].

In accordance with the LPA, a public meeting on the proposed Sanctions and Penalties law was

held on October 4, 2018. Six (6) members of the community attended the public meeting with

three (3) people providing oral comments. The public comment period closed on October 11, 2018.

The Legislative Operating Committee received four (4) submissions of written comments during

the public comment period. All sixty-four (64) public comments received were accepted, reviewed,

and considered by the Legislative Operating Committee on October 17, 2018, and October 25,

2018.

The Sanctions and Penalties law will become effective ten (10) business days after the adoption of

the resolution by the General Tribal Council.

Conclusion

Adoption of this resolution would not conflict with any of the Nation’s laws.

Page 2 of 2

Public Packet

11 of 48

AnalysistoDraft4

20190107

SANCTIONS AND PENALTIES

LEGISLATIVE ANALYSIS

SECTION 1. EXECUTIVE SUMMARY

REQUESTER:

Oneida Business

Committee

Intent of the

Amendments

Purpose

Affected Entities

Affected

Legislation

Enforcement/Due

Process

Public Meeting

Fiscal Impact

SPONSOR:

Jennifer Webster

DRAFTER:

Clorissa N. Santiago

ANALYST:

Brandon Wisneski

To increase accountability among elected and appointed officials of the Nation,

including members of the Oneida Business Committee. This new law creates a

formal complaint process and allows for corrective actions against officials who

engage in misconduct.

To establish a consistent set of sanctions and penalties that may be imposed upon

elected and appointed officials of the Nation for misconduct in office for the

purpose of providing an opportunity for the official to take corrective action to

address the misconduct and promote accountability and improved performance of

the official [see Sanctions and Penalties, 1 O.C. 120.1-1].

All elected and appointed officials of the Nation; Any individual 18 years and older

who has knowledge that an official has committed misconduct; Oneida Business

Committee; Judiciary Trial Court; Judiciary Court of Appeals; Business Committee

Support Office. This law does not apply to the judges of the Oneida Judiciary,

whose misconduct process is located within the Judiciary Law. This law does not

apply to members of corporate boards.

Rules of Civil Procedure; Rules of Appellate Procedure; Code of Ethics; Boards,

Committees and Commissions Law; Garnishment Law; Per Capita Law; and any

of the Nation’s laws and bylaws that may be violated by an official.

Sanctions and penalties against appointed officials will be imposed by the Business

Committee. Sanctions and penalties against elected officials will be imposed by the

Trial Court. Officials accused of misconduct have the right to be represented by an

attorney or advocate. Officials also have the right to submit a written response to

the complaint, and an opportunity to appear at the investigatory hearing to answer

the allegations, provide witness testimony, documents and evidence on their behalf.

Complaints against officials must be proven by clear and convincing evidence.

A public meeting was held on October 4, 2018.

See fiscal impact statement prepared by Finance Dept. in accordance with the

Legislative Procedures Act.

SECTION 2. LEGISLATIVE DEVELOPMENT

A. When an official of the Nation commits misconduct while in office, there are few remedies available

for the Nation to discipline that official. Currently, appointed officials may have their appointment

terminated by the Business Committee, and elected officials may be removed in accordance with the

Removal Law. However, there may be instances of misconduct that do not rise to the level of removal.

In these cases, other remedies such as verbal reprimands, fines, or suspensions may be more

appropriate.

Page 1 of 13

Public Packet

12 of 48

AnalysistoDraft4

20190107

B. This law creates a formal complaint process that gives all tribal members an opportunity to file

complaints while ensuring that due process rights for those accused are protected. This law also creates

a range of potential sanctions and penalties for officials who violate the laws of the Nation or commit

other forms of misconduct.

C. During the Special Election held on July 9, 2016, the following referendum question was approved by

a vote of 178 to 59: “Should the BC develop a law which provides for sanctions and due process for

elected officials?” The Election Law requires the Oneida Business Committee to present referendum

questions that receive a majority vote to the General Tribal Council (GTC) for discussion and action

[see Election Law 1 O.C. 102.12-9(c)].

D. This law will apply to elected and appointed officials of the Nation, including members of the following

entities:

ELECTED

APPOINTED

Anna John Resident Centered Care Community

Oneida Business Committee

Board (AJRCCC)

Oneida Election Board

Audit Committee (1 community member seat)

Oneida Gaming Commission

Environmental Resource Board (ERB)

Oneida Land Claims Commission

Finance Committee (1 community member seat)

Oneida Land Commission

Oneida Nation Commission on Oneida Community Library Board

Oneida Nation Arts Board

Aging (ONCOA)

Oneida Personnel Commission

Oneida Nation School Board

Oneida Police Commission

Trust Enrollment Committee

GTC Legal Resource Center Oneida Pow Wow Committee

Oneida Nation Veterans Affairs Committee

Advocates and Attorney

(ONVAC)

Pardon and Screening Forgiveness Committee

Southeastern WI Oneida Tribal Services Advisory

Board (SEOTS)

Oneida Youth Leadership Institute Board of

Directors

*This law does not apply to members of the Judiciary or corporate entities of the Nation.

SECTION 3. CONSULTATION AND OUTREACH

A. The Rules of Civil Procedure, Rules of Appellate Procedure, Judiciary Law, Code of Ethics, Open

Meetings and Open Records Law, and the Boards, Committees and Commissions Law were reviewed

in drafting this analysis. In addition, the following laws were reviewed in drafting this analysis:

Ho Chunk Nation Code of Ethics 2 HCC 1;

Oglala Sioux Tribe Code of Ethics Ordinance No. 08-11;

Pokagon Band of Potawatomi Indians Ethics Code;

Rosebud Sioux Tribal Code of Ethics Ordinance 86-04;

Siletz Tribal Council Ethics Ordinance –Siletz Tribal Code 2.200;

Skokomish Code of Ethics S.T.C. 1.05;

Pit River Tribal Government Code of Conduct Section 80.

B. The Business Committee Support Office, Records Management Department, Human Resources

Department and representatives from the following Boards, Committees and Commissions were

consulted in the development of this law and analysis:

Page 2 of 13

Public Packet

13 of 48

AnalysistoDraft4

20190107

Anna John Resident Centered Care Community Board (AJRCCC);

Election Board;

Environmental Resource Board (ERB);

Gaming Commission;

Land Commission;

Police Commission;

Pow-wow Committee;

Trust Enrollment Committee;

Oneida Nation Veterans Affairs Committee (ONVAC).

C. A community pot-luck meeting was held on May 3, 2018 to gather community input on this law. Sixteen

(16) people attended this meeting.

SECTION 4. PROCESS

A. Thus far, this law has followed the process set forth in the Legislative Procedures Act (LPA).

B. The law was originally added to the Active Files List on October 15, 2014 and was carried over from

the previous term. The law was re-added to the Active Files List on September 6, 2017.

C. At the time this legislative analysis was developed, the following work meetings had been held

regarding the most recent efforts to develop this law and legislative analysis:

September 6, 2017: LOC work meeting.

November 1, 2017: LOC work meeting with representatives from the following boards, committees

and commissions: Police Commission, Trust Enrollment Committee, Election Board, Land

Commission, Oneida Gaming Commission, Pow-wow Committee. All boards, committees and

committees were invited to attend this work meeting.

December 6, 2017: LOC work meeting.

March 9, 2018: LOC work meeting.

May 3, 2018: Community pot-luck meeting with LOC, Oneida community members, BC Support

Office, and representatives from the following boards, committees and commissions: Police

Commission, ONVAC, ERB, AJRCCC, and Gaming Commission. All boards, committees and

commissions were invited to attend this meeting.

May 11, 2018: LOC work meeting.

July 9, 2018: Work meeting with BC Support Office.

August 1, 2018: LOC work meeting.

October 17, 2018: LOC work meeting.

October 25, 2018: LOC work meeting.

December 20, 2018: Work meeting with Cultural Heritage.

SECTION 5. CONTENTS OF THE LEGISLATION .

A. What Qualifies as Misconduct. The Oneida Nation expects elected and appointed officials to uphold

high ethical and moral standards. Officials who engage in misconduct may be subject to sanctions and

penalties. This section describes what behaviors could be considered misconduct [see Sanctions and

Penalties 120.4]. Under this law, the definition of misconduct is very broad and includes any of the

following:

Violating the Oneida Constitution or any law, policy or rule of the Oneida Nation.

Page 3 of 13

Public Packet

14 of 48

AnalysistoDraft4

20190107

100

101

102

103

104

105

106

107

108

109

110

111

112

113

114

115

116

117

118

119

120

121

o Examples include the Code of Ethics and Conflict of Interest Law.

Violating the bylaws or standard operating procedures of the board the official serves on.

Being convicted of a felony under federal or Wisconsin law, or being convicted of a crime

elsewhere that would be considered a felony in the state of Wisconsin or the United States.

Any other activity that does not uphold the moral and ethical standards expected of the Nation’s

officials.

B. Filing a Complaint. Under this law, anyone eighteen (18) years or older who believes that an official

has committed misconduct can file a complaint. The person filing the complaint does not need to be an

enrolled tribal member. Examples of individuals who might file complaints include community

members, employees of the Nation, and fellow officials. The complaint must be filed

within 90 days of when the alleged misconduct occurred or was discovered [see Sanctions and

Penalties 120.5].

Chart 2. Where to File Complaints

Contents of the Complaint. Complaints must include the

following information [see 120.5-3]:

o Information about the official, including the official’s

name and the entity they serve on.

o Information about the alleged misconduct, including

date, time, location and specific details.

o The specific law, policy, rule or bylaw that the

official violated.

o Information about any witnesses or others with

knowledge of the violation.

o Contact information of the individual filing the complaint.

o Supporting documents and any other information required by the Rules of Civil Procedure.

Ͳ The Rules of Civil Procedure must be followed for complaints against elected

officials, which are filed in the Trial Court. More detail on the Rules of Civil

Procedure is included later in this analysis.

Where to File Complaints. Complaints against appointed officials are filed with the Business

Committee (BC) Support Office, which is currently located at the Norbert Hill Center. Complaints

against elected officials are filed with the Trial Court, with is located within the Oneida Judiciary.

Retaliation. Retaliation against someone who files a complaint or cooperates with a misconduct

investigation is not allowed.

Right to an Attorney or Advocate. Any official who has been accused of misconduct has the right

to be represented by an attorney or an advocate, at their own expense.

o Legal Resource Center. The Legal Resource Center Law established an office to provide

legal advice and representation to Tribal members and employees in cases before the

Judiciary.

Confidentiality. All complaints against officials of the nation will be handled confidentially, with

hearings and proceedings regarding the complaint closed to the public. Records of the hearings will

be kept confidential. However, the final decision of the Business Committee or Judiciary and any

sanctions and penalties imposed against an official will be public information [see 120.5-7].

o Judiciary Law. The Judiciary Law states that proceedings of the court are open to the public

except for peacemaking, mediation, proceedings where the judge has safety or

Page 4 of 13

Public Packet

15 of 48

AnalysistoDraft4

20190107

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

149

150

151

152

153

154

155

156

157

158

159

160

161

162

163

164

165

confidentiality concerns, or “if expressly prohibited by law” [see Judiciary Law 8 O.C.

801.4-4].

C. Complaints Against an Appointed Official. Complaints against an appointed official will be filed with

the Business Committee (BC) Support Office. Appointed officials serve at the discretion of the Oneida

Business Committee (BC), who may terminate appointments at any time by 2/3 majority vote [see

Boards, Committees Commissions 1 O.C. 105.7-4]. The LOC has determined that because the BC is

responsible for selecting and appointing officials, the BC should be responsible for holding appointed

officials accountable through sanctions and penalties. The following is a description of the complaint

process for appointed officials [see 120.6].

Receipt of Complaint. When the BC Support Office receives a complaint, it will forward copies of

the complaint to all members of the Oneida Business Committee (BC) for review, and to the official

the complaint has been made against. The BC Support Office will place the complaint on the agenda

of a Business Committee meeting within thirty (30) days.

Mediation. The individual who filed the complaint or the official accused of misconduct may

request mediation within five (5) business days of the complaint being filed. If both parties agree

to mediation, the BC Support Office will schedule a meeting with a trained mediator to attempt to

resolve the complaint. If the complaint is resolved by mediation, the complaint will be formally

dismissed. If the complaint is not resolved, the initial review will proceed [see 120.6-3].

Answer to the Complaint. The official who has been accused of misconduct will have ten (10)

business days to respond in writing to the complaint. The official may admit to the misconduct,

deny the misconduct, or provide an affirmative defense. An affirmative defense means that an

official admits they committed the alleged acts, but that they were justified in doing so.

Conflict of Interest & Recusal. If a member of the Oneida Business Committee (BC) has a conflict

of interest regarding a complaint, they must recuse themselves and not participate in the review or

hearings. If a member of the BC fails to recuse themselves, that member may be subject to sanctions

and penalties under this law.

Initial Review. The Oneida Business Committee (BC) will review the complaint, the official’s

written response, and any documentation. The BC will discuss and decide whether the complaint

has merit by majority vote. If the BC decides the complaint has merit, they will schedule an

investigatory hearing. If BC decides the complaint does not have merit, the complaint will be

dismissed.

o Frivolous Complaints. If the BC decides that an individual filed a complaint that was

frivolous, false, or made with malicious intent, they may fine that individual up to $500 or

ban them from filing another complaint for up to 1 year. In addition, the official the

frivolous complaint was filed against may also file a civil suit in the Trial Court.

Page 5 of 13

Public Packet

16 of 48

AnalysistoDraft4

20190107

Chart 3. Complaint Process Against Appointed Officials: Receipt and Initial Review of

Complaint.

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

Investigatory Hearing. The BC will conduct an investigatory hearing during executive session of a

regular or special BC meeting. During this hearing, the BC will determine whether there is enough

evidence to substantiate the allegations by clear and convincing evidence.

o Burden of Proof. The burden of proof for allegations made under this law is “clear and

convincing evidence.” This is the same standard the Nation uses in misconduct cases

against judges in the Oneida Judiciary [see 8 O.C. Judiciary Law 801.12-6(c)]. This means

that the person filing the complaint must provide evidence “indicating that the [allegation]

to be proved is highly probably or reasonably certain” [see Black’s Law Dictionary]. This

is a greater burden than “preponderance of the evidence,” the standard in most civil trials,

but less than evidence “beyond a reasonable doubt,” which is used for criminal trials.

o Testimony. The BC will have the authority to call witnesses to provide testimony and

physical evidence under oath. The official accused of misconduct will have the opportunity

to answer allegations, provide witness testimony and evidence on their own behalf. The

individual who filed the complaint will also have an opportunity to answer questions,

provide witness testimony and information to support their claim. The hearing will be

informal.

Deliberation. After the investigatory hearing, the BC will remain in executive session to discuss

the evidence and information provided. The BC will also discuss which sanctions and penalties to

impose, if appropriate.

Determination. During an open session of a special or regular Oneida Business Committee

meeting, the BC will vote to decide whether the allegations of misconduct have been proven by

clear and convincing evidence. If the BC finds that the official has engaged in misconduct, then

they will also decide the appropriate sanction or penalty by majority vote. The BC must issue a

Page 6 of 13

Public Packet

17 of 48

AnalysistoDraft4

20190107

192

193

194

195

196

197

198

199

200

201

written decision within 10 days of the investigatory hearing, and provide copies of the decision to

the person who made the complaint, the official accused of misconduct, and the BC Support Office.

Appeal. Both the official accused of misconduct and the individual who filed the complaint have

the right to appeal the decision of the Oneida Business Committee. The appeal must be filed with

the Court of Appeals in accordance with the Rules of Appellate Procedure.

o Timeline for Appeal. The Rules of Appellate Procedure require parties to file an appeal

within thirty (30) days of the original judgment [see Rules of Appellate Procedure, 8 O.C.

805.5-2(a)].

Chart 4. Complaint Process Against Appointed Officials: Investigatory Hearing & Decision

BCconducts

investigatory

hearingduring

executivesession

Afterthehearing,

BCdeliberatesin

executivesession

Inopensession,

OBCvoteson

whethermisconduct

occurred

202

203

204

205

206

207

208

209

210

211

212

213

214

215

216

217

218

219

220

221

OBCissueswritten

decisionwithin

business10days

Complaint

Dismissed.

OBCissueswritten

decisionwithin10

businessdays

Yes,OfficialEngaged

inMisconduct

OBCselects

appropriate

sanctionsor

penaltiesby

majorityvote

No,Officialdidnot

EngageinMisconduct

Officialmayappeal

toCourtofAppeals

within30days

Individualwhofiled

complaintmay

appealtoCourtof

Appealswithin30

days

D. Complaints Against an Elected Official.

Complaints against elected officials, including members of the Oneida Business Committee, will

be heard by the Nation’s Trial Court. Because elected officials are chosen by the tribal membership,

it has been determined that complaints against these officials should go to the Nation’s Trial Court

[see Sanctions and Penalties 120.7].

All complaints must follow the Judiciary Rules of Civil Procedure. The following is a brief

overview of how a civil case is processed by the Trial Court using the Rules of Civil Procedure.

For full and complete information regarding the trial court process, see the Judiciary Rules of Civil

of Civil Procedure.

o Petitioner Files a Complaint with the Trial Court and Pays Filing Fee. The Trial Court has

a standard complaint form with instructions to fill out the complaint.

Ͳ Complaint. At the time this analysis was drafted, the Rules of Civil Procedure

require the complaint to include the full name and address of the plaintiff and

defendant, why the defendant is being sued, facts supporting each claim, why the

trial court has jurisdiction, specifically what relief is sought from the defendant, and

a summons [see Oneida Judiciary Rules of Civil Procedure 803.5-1].

Ͳ Filing Fee. The Oneida Judiciary Trial Court currently charges a $50 filing fee to

file a general civil case. However, individuals may request a fee waiver from the

court for the following reasons: unemployed, health/medical, or below poverty level.

Page 7 of 13

Public Packet

18 of 48

AnalysistoDraft4

20190107

222

223

224

225

226

227

228

229

230

231

232

233

234

235

236

237

238

239

240

241

242

243

244

245

246

247

248

249

250

251

252

253

254

255

256

257

258

259

260

261

262

263

264

265

Note that this fee applies only to cases filed against elected officials. Complaints

against appointed officials will be filed with the BC Support Office, which does not

charge a filing fee.

Ͳ Summons: A summons is a document ordering a defendant to appear before a judge.

The Trial Court has a standard summons form.

Complaint and Summons are served on official. The complaint and summons must be

delivered to the official within 30 days after the complaint is filed. In addition, for

complaints against officials, notice must also be served to the Secretary’s office [see 8 O.C.

Rules of Civil Procedure 803.5].

Petitioner Files Proof of Service. The petitioner must provide proof to the Court that the

complaint and summons were delivered to the defendant within 10 days of delivery. If

proof of service is not completed, then the case will be dismissed. [see Rules of Civil

Procedure 803.5-3].

Official Files an Answer. The official responds to the complaint by filing an answer. The

official can either admit to or deny the allegations made in the complaint and provide

defenses to each claim made in the complaint.

Pre-Trial Meeting. A pre-trial meeting may be scheduled between the judge, petitioner

and defendant. The purpose for this meeting could include preparing for the trial, creating

a plan regarding discovery, or facilitating a settlement, such as peacemaking [see Rules of

Civil Procedure 803.12].

Discovery. The petitioner may make efforts to obtain information relevant to the case, such

as documents and electronic information. The judge may place limitations on the

information.

Hearing. Hearings are conducted in accordance with the Rules of Civil Procedure, which

may include opening statements, presentation of the parties’ cases, rebuttals and closing

statements [see Rules of Civil Procedure 803.38].

Judgment. If the Trial Court determines by clear and convincing evidence that the official

engaged in misconduct, then the Trial Court will impose sanctions and penalties that they

deem appropriate.

Appeals. Both the official accused of misconduct and the individual who filed the

complaint have the right to appeal the decision of the Trial Court. The appeal must be filed

with the Court of Appeals in accordance with the Rules of Appellate Procedure.

Page 8 of 13

Public Packet

19 of 48

AnalysistoDraft4

20190107

266

267

268

269

270

271

272

273

274

275

276

277

278

279

280

281

282

283

Chart 5. Complaint Process Against Elected Officials – Overview of Rules of Civil Procedure.

E. Sanctions and Penalties. This law includes a list of sanctions and penalties that may be imposed on

an official for misconduct in office. The Trial Court is responsible for imposing sanctions on an elected

official. The Oneida Business Committee is responsible for imposing sanctions on an appointed official.

Officials may receive one or more of the following penalties. The Trial Court or BC will select

whichever penalty they feel is appropriate. [see Sanctions and Penalties 120.8]

Conditional Penalties. Sanctions and penalties can also be imposed on a conditional basis. For

example, an official could be ordered to make a public apology and attend mandatory training, or

otherwise face suspension [see 120.8-4].

Failure to Comply. If an official fails to comply with a sanction or penalty imposed against them,

that official can face additional sanctions as a result of additional misconduct complaints under this

law, termination of appointment, or removal in accordance with the Removal Law. An example

would be an official failing to pay a fine or violating the terms of their suspension [see 120.8-6].

Chart 5. List of Potential Sanctions and Penalties

x Verbal Reprimand

x Public Apology

x Written Reprimand

x Suspension

x Restitution

x Fines

x Loss of Stipend

x Mandatory Training

x Termination of Appointment

x Removal, in accordance with Removal Law

284

Page 9 of 13

Public Packet

20 of 48

AnalysistoDraft4

20190107

285

286

287

288

289

290

291

292

293

294

295

296

297

298

299

300

301

302

303

304

305

306

307

308

309

310

311

312

313

314

315

316

317

318

319

320

321

322

323

324

325

326

Verbal Reprimand. During a BC or GTC meeting, the Nation’s chairperson will read a statement

describing the official’s misconduct. The chairperson will also state that the official’s behavior was

unacceptable and direct the official not to engage in misconduct again.

Public Apology. An official may be ordered to make a public apology at a BC or GTC meeting.

The apology must include a description of the misconduct, a statement that the actions were wrong,

a description of the harm caused by the misconduct, and a “clear and unambiguous” apology.

Written Reprimand. The Oneida Business Committee or Judiciary Trial Court may publish a

written reprimand in the Nation’s official media outlets. The Nation’s official media outlets are the

Oneida Nation website and the Kalihwisaks newspaper [see BC Resolution #03-22-17-B]. The

written reprimand will include the same information as a verbal reprimand.

Suspension. The BC or Trial Court may suspend part-time officials for up to two (2) meetings.

Full-time officials, such as members of the Business Committee or Gaming Commission, may be

suspended for up to fifteen (15) business days. During a suspension, the official cannot attend

meetings, trainings, or conferences. The official also cannot vote or perform work for the board. In

addition, the official cannot earn any stipends, salary or mileage during the suspension.

o Multiple Suspensions on One Entity. If multiple officials on the same entity are suspended

at the same time, the suspensions must be imposed on a staggered basis to avoid loss of a

quorum. For example, if multiple members of the Business Committee are suspended, each

member will be suspended one at a time on a staggered basis [see 120.8-2(d)(3)].

Restitution. An official can be ordered to pay restitution, which means paying back any improperly

received benefit, such as stolen money or items or replacing damaged property. The point of

restitution is to make someone whole. Examples of restitution include paying back money that was

improperly taken or paying to repair or replace damaged items.

Fines. An official can be ordered to pay a fine for each act of misconduct. Unlike restitution, a

fine is a punishment. The maximum amount of each fine is $2500.

o Fine Process. All fines will be paid to the trial court and deposited into the Nation’s

General Fund. Officials must pay their fine within 90 days after the fine is issued or upheld

on final appeal. If the fine is not paid on time, the Nation may collect the money through

garnishment or the official’s per capita payment.

o Community Service Alternative. An official can complete community service to make up

all or part of their fine. The rate earned for community service will be the Nation’s

minimum wage, which is currently $10.10 per hour. The Nation currently allows

community service for fines issued in the Hunting, Fishing and Trapping Law [see Hunting

Fishing and Trapping 406.10-5(a)].

Loss of Stipend. An official may lose their stipend for up to two (2) meetings. Members of

appointed boards are eligible for only one meeting stipend per month, so this could amount to two

month’s worth of stipends [see Boards, Committees and Commission Law 1 O.C. 105.13-3(a)].

Members of elected boards may receive up to two (2) meeting stipends per month, so this could

amount to one month’s worth of stipends for a board that meets twice monthly [see Boards,

Committees and Commissions Law 1 O.C. 105.13-3(b)].

Mandatory Training. An official can be ordered to complete mandatory training program to

address their behavior. Examples include anger management or sexual harassment training.

Page 10 of 13

Public Packet

21 of 48

AnalysistoDraft4

20190107

327

328

329

330

331

332

333

334

335

336

337

338

339

340

341

342

343

344

345

346

347

348

349

350

351

352

353

354

355

356

357

358

359

360

361

362

363

364

365

366

367

368

369

370

Termination of Appointment. The Oneida Business Committee can terminate the appointment of

any appointed official at any time by 2/3 majority vote. All appointed members serve at the

discretion of the BC [see Boards, Committees and Commissions 1 O.C. 105.7-4].

Removal. The Trial Court can recommend that the removal process be initiated for an official in

accordance with the Removal Law. However, this would only be a recommendation. The Removal

Law provides a strict process that must be followed to remove elected officials:

o Removal Law Process. In order to remove an elected official, an eligible voter must file a

petition with the Secretary signed by at least 30% of the vote cast in the previous general

election. For example, the number of votes cast in the 2017 general election was 1612, so

the number of signatures needed to initiate removal is 484. Then, the Judiciary conducts a

preliminary review to determine whether there is sufficient grounds for removal. If so, the

Judiciary holds a hearing. If the Judiciary determines that sufficient grounds for removal

has been proven, the findings are forwarded to the Nation’s Chair, who schedules a GTC

meeting. At the GTC meeting, an elected official may be removed from office after a 2/3

vote [see Removal Law 1 O.C. 104].

F. Factors in Determining Appropriate Sanction and/or Penalty. The Trial Court and Oneida Business

Committee may consider the following when deciding which sanction or penalty to apply [see

Sanctions and Penalties 120.8-3].

How severe the misconduct was, whether it was intentional, and how likely the official is to repeat

the misconduct.

The damage to the finances or reputation of the Nation, the entity, or any person or organization.

Whether the official has expressed remorse and is willing to take steps to correct the harm done.

Whether any prior complaints have been filed against the official. For example, is this the first

complaint against the official or does it represent a pattern of behavior.

G. Civil Liability and Criminal Prosecution. In addition to the sanctions and penalties in this law, an

official who commits misconduct may also suffer other consequences [see Sanctions and Penalties

120.8-4]. These include:

Removal from office or termination of appointment.

Criminal prosecution, if the official violated a criminal law. For example, criminal charges for theft

or violent acts.

Civil liability, in accordance with any applicable law of any jurisdiction. For example, a lawsuit for

damages.

Any other penalties listed in another law of the Oneida Nation.

o For example, a violation of the Computer Resources Ordinance may result in loss of access

to the Nation’s computer resources [see Computer Resources Ordinance 2 O.C. 215.9-1].

H. Effect of Resignation by an Official. If an official resigns from office after a complaint has been filed,

that complaint will still be investigated and sanctions and penalties may still be pursued. Resigning

from office does not end or prevent an investigation [see Sanctions and Penalties 120.9].

I. Record of Conduct in Office. A record of conduct for each official will be maintained by the BC

Support Office, which will include copies of complaints filed against the official, outcome of the

complaints, and any sanctions and penalties the official received. This record will be maintained for at

least seven (7) years [see Sanctions and Penalties 120.10].

Public Access to Record of Conduct. The record of conduct maintained by the BC Support Office

will only be made available for review to the Oneida Business Committee and the Trial Court. The

Page 11 of 13

Public Packet

22 of 48

AnalysistoDraft4

20190107

371

372

373

374

375

376

377

378

379

380

381

382

383

384

385

386

purpose of the record of conduct is so that the Trial Court or Business Committee can review

previous complaints against the official when determining a potential sanction or penalty [see

Sanctions and Penalties 102.5-7(c)].

Public Access to BC & Trial Court Decisions. However, the decisions of the Trial Court and Oneida

Business Committee regarding a complaint against an elected official and any sanctions and

penalties imposed against an official will be public information [see Sanctions and Penalties 102.57(c).]

SECTION 6. EFFECT ON EXISTING LEGISLATION

A. References to the Other Laws of the Nation: The following laws of the Nation are referenced in this

law. This law does not conflict with any of the referenced laws.

Rules of Civil Procedure.

Rules of Appellate Procedure.

Garnishment Law.

Per Capita Law.

SECTION 7. EFFECTS ON EXISTING RIGHTS, PRIVILEGES, OR OBLIGATIONS

387

388

389

390

391

392

A. Due Process. Officials accused of misconduct have the right to be represented by an attorney or

advocate. Officials also have the right to submit a written response to the complaint, and an opportunity to

appear at the investigatory hearing to answer the allegations, provide witness testimony, documents and

evidence on their behalf. Complaints against officials must be proven by clear and convincing evidence.

393

394

395

396

A. Sanctions and penalties against appointed officials will be imposed by the Business Committee.

Sanctions and penalties against elected officials will be imposed by the Nation’s Trial Court.

397

398

399

400

401

402

403

404

405

406

407

408

409

410

411

412

SECTION 8. ENFORCEMENT AND ACCOUNTABILITY

SECTION 9. OTHER CONSIDERATIONS

A. Code of Ethics. Most other tribal, municipal and state governments place sanctions and penalties within

their Code of Ethics law. This makes sense, as the Code of Ethics and Sanctions and Penalties are

closely related. The Code of Ethics is currently on the LOC’s Active Files List for potential

amendments. Updating the Code of Ethics would provide clear guidance to officials, individuals filing

complaints, the Business Committee and the Judiciary when they begin hearing complaints under this

law.

B. Number of Potential Complaints. Since the Nation currently has no formal sanctions and penalties

process, it is not possible to predict the number of complaints that may be filed against elected and

appointed officials.

Recommendation: Given the uncertainty regarding the number of potential complaints, the

Business Committee, BC Support Office and Judiciary should be prepared to potentially

process a large number of complaints upon passage of this law.

C. Impact of Suspension on Full-Time Officials. Members of the Oneida Business Committee and

Oneida Gaming Commission are full-time elected officials. Therefore, suspension of these officials

would impact salaries, benefits such as health insurance, and access to buildings. The Human Resources

Page 12 of 13

Public Packet

23 of 48

AnalysistoDraft4

20190107

413

414

415

416

417

418

419

420

421

422

Department reports that they have a suspension procedure in place for employees of the Nation, and

that this procedure could be applied or modified for suspension of full-time officials.

Recommendation: Since notifications of suspension go to the BC Support Office, it is suggested

that the BC Support Office work with HRD to develop a process should suspensions of fulltime BC members or Gaming Commissioners occur.

D. Comparison to Other Nations. Research of other tribal nations and municipalities indicate that there

are many different processes for sanctions and penalties of public officials. There is not a single

standard used by all tribal governments. Examples of other sanctions and penalties processes are

provided for information:

Chart 6. Sanctions and Penalties Process of other Tribal Nations

Tribe

Where Complaints Are Who Investigates the Who Decides the

Filed

Complaint

Sanction or Penalty

Siletz

Tribal Council*

Ad Hoc Committee or Tribal Council*

Special Advisor

appointed by Tribal

Council*

Ho Chunk

Judiciary

President

Rosebud Sioux

Ethics Commission,

Tribal Council*

appointed by Tribal

Council*

Chairman

Ethics Officer,

Skokomish

Ethics Officer,

appointed by Tribal

Council*

*Note that “Tribal Council” refers to an elected body similar to the Oneida Business Committee.

423

424

425 E. Create a Standard Complaint Form. The BC Support Office and Judiciary may want to consider

426

drafting standard complaint forms to provide to individuals who wish to file a complaint against

427

officials under this law. This form could include the information required under 120.5-3, instructions,

428

and clearly state where complaints against elected officials or appointed officials must be filed. The

429

Nation’ Trial Court has a standard civil complaint packet which could be used as an example.

430 F. Complaints against Judiciary. The Judiciary Law already contains a process for reprimand,

431

suspension and removal of judges [see Judiciary Law 8 O.C. 801.12]. Therefore, the Judiciary is not

432

included in this law.

433 G. Rules of Civil Procedure. Complaints filed in the Judiciary Trial Court must follow the Judiciary Rules

434

of Civil Procedure. At the time this analysis was drafted, the Judiciary Rules of Civil Procedure is on

435

the LOC’s Active Files List and may be amended in the future.

436 H. Fiscal Impact. Please refer to the fiscal impact statement for any fiscal impacts.

437

Under the Legislative Procedures Act, a fiscal impact statement is required for all legislation except

438

emergency legislation [see Legislative Procedures Act 1 O.C. 109.6-1].

439

A fiscal impact statement shall be submitted by agencies as directed by the Legislative Operating

440

Committee and may be prepared by any agency who may receive funding if the legislation is

441

enacted; who may administer a program if the legislation is enacted; who may have financial

442

information concerning the subject matter of the legislation; or by the Finance Office, upon request

443

of the Legislative Operating Committee [see Legislative Procedures Act 1 O.C. 109.6-1(a and b).

444

Page 13 of 13

Public Packet

Draft 4 for GTC Consideration

2019 02 24

Title 1. Government and Finances - Chapter 120

SANCTIONS AND PENALTIES

Kalihwahnila=t&= Okhale> Atatlihwa>thlew@htu Kayanl^sla

Giving strength to the issues

120.1.

120.2.

120.3.

120.4.

120.5.

120.6.

and

Purpose and Policy

Adoption, Amendment, Repeal

Definitions

Misconduct.

Filing of a Complaint

Complaint Alleged Against an Appointed Official

Forgiving oneself for the issue at hand

Laws

120.7. Complaint Alleged Against an Elected Official

120.8. Sanctions and Penalties

120.9. Effect of Resignation by an Official

120.10. Record of Conduct in Office

120.1. Purpose and Policy

120.1-1. Purpose. The purpose of this law is to establish a consistent set of sanctions and penalties

that may be imposed upon elected and appointed officials of the Nation for misconduct in office

for the purpose of providing an opportunity for the official to take corrective action to address the

misconduct and promote accountability and improved performance of the official.

(a) This law applies to members of the Oneida Business Committee.

(b) This law does not apply to judges of the Oneida Nation Judiciary.

120.1-2. Policy. It is the policy of the Nation to ensure that elected and appointed officials who

commit misconduct while in office be subject to appropriate sanctions and penalties; and to ensure

that there is a fair process in place that enables officials to fairly respond to allegations of

misconduct.

120.1-3. It is the intent of the Nation that all elected and appointed officials strive to exhibit and

uphold the Nation’s core values of The Good Mind as expressed by On<yote>a=ka, which includes:

(a) Kahletsyal&sla. The heart felt encouragement of the best in each of us.

(b) Kanolukhw@sla. Compassion, caring, identity, and joy of being.

(d) Ka>tshatst^sla. The strength of belief and vision as a People.

(e) Kalihwi=y%. The use of the good words about ourselves, our Nation, and our future.

(f) Twahwahts$lay<. All of us are family.

(g) Yukwats$stay<. Our fire, our spirit within each one of us.

120.2. Adoption, Amendment, Repeal

120.2-1. This law was adopted by the General Tribal Council by resolution GTC-__-__-__-__.

120.2-2. This law may be amended or repealed by the General Tribal Council pursuant to the

procedures set out in the Legislative Procedures Act.

120.2-3. 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.

120.2-4. 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.

120.2-5. This law is adopted under authority of the Constitution of the Oneida Nation.

1. O.C. 120 – Page 1

24 of 48

Public Packet

Draft 4 for GTC Consideration

2019 02 24

120.3. Definitions

120.3-1. This section shall govern the definitions of words and phrases used within this law. All

words not defined herein shall be used in their ordinary and everyday sense.

(a) “Affirmative defense” means a fact or set of facts other than those alleged by the

complainant which, if proven by the official, defeats or mitigates the consequences of the

official's otherwise unlawful conduct.

(b) “Answer” means a formal written statement addressing the dispute on the merits

and presents any defenses and counterclaims.

support for the Oneida Business Committee and various other governmental operations.

(d) “Business day” means Monday through Friday 8:00 a.m. – 4:30 p.m., excluding

holidays recognized by the Nation.

(e) “Clear and convincing evidence” means that it is substantially more likely than not that

the facts presented are true.

(f) “Complainant” means an individual who has made a complaint.

(g) “Constitution” means the Constitution and By-Laws of the Oneida Nation.

(h) “Court of Appeals” means the Court of Appeals of the Oneida Nation Judiciary.

(i) “Entity” means a board, committee, commission, office, unincorporated agency, or

other group of the Nation an individual may be appointed or elected to serve a position on,

including the Oneida Business Committee.

(j) “Frivolous” means a complaint without any reasonable basis or merit, that cannot be

supported by a good faith argument. Most often frivolous complaints are intended to

merely harass, delay, or embarrass the opposition.

(k) “Misconduct” means wrongful, improper or unlawful conduct or behavior.

(l) “Nation” means the Oneida Nation.

(m) “Official” means any person who is elected or appointed to serve a position for the

Nation, including, but not limited to, a position on a board, committee, commission, or

office of the Nation, including the Oneida Business Committee.

(n) “Restitution” means compensation to an individual or entity for an injury, damage or

loss.

(o) “Stipend” means the amount paid by the Oneida Nation to individuals serving on

boards, committees and commissions of the Nation to offset the expenses of being a

member on the board, committee or commission.

(p) “Substantiate” means to find that the complaint or allegation in the complaint is valid

because there is clear and convincing evidence.

(q) “Trial Court” means the Trial Court of the Oneida Nation Judiciary.

120.4. Misconduct

120.4-1. It shall be the obligation of every official to behave in a manner that promotes the highest

ethical and moral standard. High moral and ethical standards amongst officials of the Nation is

essential to the conduct of government.

120.4-2. An official may be subject to sanctions and penalties for behaving in a manner which

constitutes misconduct. Misconduct includes:

(a) a violation of the Constitution or any of the Nation’s laws, policies, or rules;

(b) a violation of the bylaws, standard operating procedures or other internal operating

documents that govern the entity upon which the official serves;

1. O.C. 120 – Page 2

25 of 48

Public Packet

100

101

102

103

104

105

106

107

108

109

110

111

112

113

114

115

116

117

118

119

120

121

122

123

124

125

126

Draft 4 for GTC Consideration

2019 02 24

felony under federal law or Wisconsin law; and

(d) any other activity that is incompatible with the high moral and ethical standards that

are expected of the Nation’s officials.

120.5. Filing of a Complaint

120.5-1. Who May File. Any individual at least eighteen (18) years of age or older, or entity, who

in good faith, has knowledge or reason to believe that an official has committed misconduct, may

file a written complaint.

120.5-2. When to File. A complaint may be filed as long as the alleged misconduct has occurred,

or was discovered to have occurred, within the previous ninety (90) days.

120.5-3. Contents of the Complaint. The complaint alleging misconduct by an official shall

include the following information:

(a) The name(s) of the official alleged to have committed the misconduct;

(b) The entity or entities upon which the official serves;

(d) The specific details of the official’s misconduct;

(e) The specific provision of law, policy, rule, or bylaw of the Nation allegedly violated

by the official;

(f) Names of any witnesses of the alleged misconduct, or individuals who may have

knowledge pertinent to the alleged misconduct;

(g) The contact information for the person filing the complaint, which at minimum shall

include the person’s name, address, and telephone number;

(h) A notarized sworn statement attesting that the information provided in and with the

complaint is true, accurate, and complete to the best of the complainant’s knowledge;

(i) Any supporting documentation; and

(j) Any other information required by the Nation’s Rules of Civil Procedure if the

complaint is alleging misconduct of an elected official.

120.5-4. Where to File.

(a) Appointed Official. Complaints against an appointed official shall be filed with the

Business Committee Support Office.

(b) Elected Official. Complaints against an elected official shall be filed with the Nation’s

Trial Court.

120.5-5. Retaliation Prohibited. Retaliation against any individual who makes a complaint or party

or witness to a complaint is prohibited. This protection shall also be afforded to any person offering

testimony or evidence or complying with directives authorized under this law. Retaliation shall

include any form of adverse or punitive action by or caused by, any official.

(a) If an individual alleges that retaliatory action has been threatened or taken based on the

individual’s complaint, or cooperation with directives authorized under this law, the

individual may file a complaint for the retaliatory action in accordance with section 120.5

of this law.

120.5-6. Any official who is the subject of a complaint has the right to be represented by an

attorney or advocate, at his or her own expense, for any actions or proceedings related to the

complaint.

120.5-7. Confidentiality. All complaints alleged against an official of the Nation shall be handled

in a confidential manner.

1. O.C. 120 – Page 3

26 of 48

Public Packet

127

128

129

130

131

132

133

134

135

136

137

138

139

140

141

142

143

144

145

146

147

148

149

150

151

152

153

154

155

156

157

158

159

160

161

162

163

164

165

166

167

168

169

170

171

172

Draft 4 for GTC Consideration

2019 02 24

(a) All hearings and/or proceedings related to a complaint shall be closed to the general

public.

(b) All records of hearings and/or proceedings shall not be subject to public review or

inspection. An official’s record of conduct shall only be made available for review to the

Oneida Business Committee and the Trial Court.

a complaint alleged against an official, and any sanctions and/or penalties that are imposed

against an official, shall be public information.

120.6. Complaints Alleged Against an Appointed Official

120.6-1. Due to the fact that an appointed official serves at the discretion of the Oneida Business

Committee, all complaints alleged against an appointed official shall be handled by the Oneida

Business Committee.

120.6-2. Receipt of Complaint. Upon receiving a complaint, the Business Committee Support

Office shall:

(a) immediately forward copies of the complaint, including any supporting documentation,

to:

(1) all members of the Oneida Business Committee for review; and

(2) the individual who is the subject of the complaint.

(b) place the complaint on the executive session portion of the agenda of a regular or

special meeting of the Oneida Business Committee for an initial review which shall occur

within thirty (30) business days after the initial receipt of a complaint.

120.6-3. Mediation. The complainant or the official who is the subject of the complaint shall have

up to five (5) business days after the initial receipt of the complaint to contact the Business

Committee Support Office and request mediation.

(a) If both the complainant and the official who is the subject of the complaint agree to

mediation, then the Business Committee Support Office shall schedule a mediation

between the parties. The intent of this mediation meeting is to resolve the complaint prior

to commencing an initial review.

(b) The Business Committee Support Office shall utilize a trained mediator to facilitate

the mediation meeting. Every mediator shall have at least twenty-five (25) hours of

mediation training or at least three (3) years of experience in dispute resolution.

(d) If a resolution is reached during mediation, the Oneida Business Committee shall be

informed of the resolution before the initial review and the complaint shall be formally

dismissed during the initial review.

(e) If the matter is not resolved through mediation, the initial review shall occur as

prescribed by this law.

120.6-4. Answer to the Complaint. The individual who is the subject of the complaint shall have

ten (10) business days after receiving his or her copy of the complaint, to submit to the Business

Committee Support Office a written answer setting forth any admission, denial, affirmative

defense, or other relevant information upon which the official intends to rely during proceedings

related to the complaint.

(a) The Business Committee Support Office shall immediately forward the answer and

any supporting documentation to all members of the Oneida Business Committee upon

receipt from the individual who is the subject of the complaint.

1. O.C. 120 – Page 4

27 of 48

Public Packet

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

199

200

201

202

203

204

205

206

207

208

209

210

211

212

213

214

215

216

217

218

Draft 4 for GTC Consideration

2019 02 24

120.6-5. Conflict of Interest. An Oneida Business Committee member that has a conflict of

interest in a complaint brought before the Oneida Business Committee, shall immediately recuse

himself or herself and shall not participate in any portion of the complaint process.

(a) Failure of an Oneida Business Committee member to recuse themselves due to a

conflict of interest shall constitute grounds for sanctions and/or penalties.

120.6-6. Initial Review. The Oneida Business Committee shall perform an initial review of an

allegation of misconduct on the part of an official. The purpose of the initial review shall be to

determine whether the allegation made within the complaint has merit.

(a) During the initial review the Oneida Business Committee shall review the complaint

and the written answer; as well as any supporting documentation.

(b) In order to determine if a complaint has merit, the Oneida Business Committee will

discuss if whether assuming the facts alleged are true, said facts would support a

determination of misconduct.

complaint has merit.

(1) Upon a finding that the complaint has merit, the Oneida Business Committee

shall schedule an investigatory hearing to consider the specific allegations

identified in the complaint.

(A) The investigatory hearing shall occur within thirty (30) business days

after the initial review has concluded and shall take place during the

executive session portion of the agenda of a regular or special meeting of

the Oneida Business Committee.

(2) Upon finding that a complaint has no merit, the Oneida Business Committee

shall dismiss the complaint. The Oneida Business Committee shall send notice that

the complaint was dismissed to the complainant and the official who is the subject

of the complaint within five (5) business days.

(A) If the Oneida Business Committee dismisses the complaint based on a

determination that the complaint was frivolous, false, or made with a

malicious intent, the complainant may be subject to:

(i) a fine not to exceed five hundred dollars ($500);

(ii) prohibition from filing another complaint for a period of time

not to exceed one (1) year; and/or

(iii) a civil suit in the Nation’s Trial Court brought by the official

accused by the frivolous, false or malicious allegation.

120.6-7. Notice of the Investigatory Hearing. The Business Committee Support Office shall

provide the complainant, the official who is the subject of the complaint, and any other individual

compelled to attend the hearing with written notice of the date and the time of the investigatory

hearing at least ten (10) business days before the investigatory hearing.

120.6-8. Investigatory Hearing. The purpose of the investigatory hearing is for the Oneida

Business Committee to determine if there is enough evidence to substantiate the allegations of

misconduct by clear and convincing evidence.

(a) When conducting an investigatory hearing, the Oneida Business Committee shall have

the broadest grant of authority to compel any person or organization within the Nation to:

(1) appear at the hearing to provide testimony under oath and/or information

relevant to the allegations against the official; and/or

(2) produce physical evidence that is relevant to the allegations.

1. O.C. 120 – Page 5

28 of 48

Public Packet

219

220

221

222

223

224

225

226

227

228

229

230

231

232

233

234

235

236

237

238

239

240

241

242

243

244

245

246

247

248

249

250

251

252

253

254

255

256

257

258

259

260

261

262

263

264

Draft 4 for GTC Consideration

2019 02 24

(b) The Oneida Business Committee shall provide an opportunity for the official who is

the subject of the complaint to answer all allegations and to provide witness testimony,

documents, and other evidence on his or her own behalf.

answer questions, provide witness testimony or additional information, and/or to otherwise

speak on his or her own behalf.

(d) The hearing shall be informal and conducted as the interests of justice so require, and

shall be recorded by the Business Committee Support Office.

120.6-9. Deliberation of the Oneida Business Committee. At the conclusion of the investigatory

hearing, the Oneida Business Committee shall excuse everyone from executive session for the

deliberation of the Oneida Business Committee. Prior to making a final determination as to

whether to substantiate the complaint, the Oneida Business Committee shall:

(a) consider all evidence and information provided, and shall have a full and complete

discussion of all aspects of the complaint and answer; and

(b) have a full and complete discussion of all potential sanctions and penalties that may be

imposed, if appropriate.

120.6-10. Determination by the Oneida Business Committee. After the investigatory hearing has

concluded and the Oneida Business Committee has deliberated, the Oneida Business Committee

shall in open session of a regular or special Oneida Business Committee meeting, by majority vote,

declare whether the Oneida Business Committee has determined there is enough evidence to

substantiate the allegations of misconduct by clear and convincing evidence.

(a) If the Oneida Business Committee finds that there is clear and convincing evidence that

the official engaged in misconduct, the Oneida Business Committee shall, by majority vote,

determine and impose appropriate sanctions and/or penalties.

(b) If the Oneida Business Committee does not find that there is clear and convincing

evidence to support the allegations that the official engaged in misconduct, the complaint

shall be dismissed.

Committee shall issue a written decision and provide copies of the decision to:

(1) the complainant,

(2) the official who is the subject of the complaint, and

(3) the Business Committee Support Office, for recordkeeping.

120.6-11. Appeal. The complainant and the official who is the subject of the complaint shall both

have the right to appeal the Oneida Business Committee’s decision to the Court of Appeals

pursuant to the Nation’s Rules of Appellate Procedure. The appeal shall be limited to review of

the record, and the Oneida Business Committee’s decision may only be overturned if the Court of

Appeals determines that:

(a) The findings or penalties imposed were clearly erroneous, unsupported by the record,

or made on unreasonable grounds or without any proper consideration of circumstances;

(b) Procedural irregularities occurred which prevented a fair and impartial hearing.

120.7. Complaints Alleged Against an Elected Official

120.7-1. The Trial Court shall have jurisdiction to hear complaints of alleged misconduct of

elected officials. Complaints of alleged misconduct shall be filed with the Trial Court pursuant to

the Nation’s Rules of Civil Procedure.

1. O.C. 120 – Page 6

29 of 48

Public Packet

265

266

267

268

269

270

271

272

273

274

275

276

277

278

279

280

281

282

283

284

285

286

287

288

289

290

291

292

293

294

295

296

297

298

299

300

301

302

303

304

305

306

307

308

309

310

311

Draft 4 for GTC Consideration

2019 02 24

120.7-2. In a civil action against an elected official for misconduct, the complainant has the burden

of proving by clear and convincing evidence that the official engaged in misconduct.

120.7-3. In making a final determination, the Trial Court shall determine if there is enough

evidence to substantiate the allegations of misconduct by the official by clear and convincing

evidence.

(a) If the Trial Court finds that there is clear and convincing evidence that the official

engaged in misconduct, the Trial Court shall determine and impose any sanctions and/or

penalties deemed appropriate in accordance with this law.

(b) If the Trial Court does not find that there is clear and convincing evidence to support

the allegations that the official engaged in misconduct, the complaint shall be dismissed.

120.7-4. Appeal. The complainant and the official who is the subject of the complaint shall both

have the right to appeal the Trial Court’s decision to the Court of Appeals pursuant to the Nation’s

Rules of Appellate Procedure. The appeal shall be limited to review of the record, and the Trial

Court’s decision may only be overturned if the Court of Appeals determines that:

(a) The findings or penalties imposed were clearly erroneous, unsupported by the record,

or made on unreasonable grounds or without any proper consideration of circumstances;

(b) Procedural irregularities occurred which prevented a fair and impartial hearing.

120.7-5. The Trial Court shall provide the Business Committee Support Office a copy of the

complaint and the determination of the Trial Court for the official’s record of conduct in office.

120.8. Sanctions and Penalties

120.8-1. A sanction or penalty, or any combination of sanctions and/or penalties, may be imposed

upon the Nation’s officials for misconduct in office, in accordance with this law.

120.8-2. Sanctions and penalties may include:

(a) Verbal Reprimand. A verbal reprimand may be imposed on the official.

(1) The Oneida Business Committee or Trial Court shall submit written notices to

both the official and to the Business Committee Support Office of the specific date,

time and location of the verbal reprimand. The verbal reprimand shall occur at an

Oneida Business Committee meeting and/or a General Tribal Council meeting.

(2) To impose the verbal reprimand, the presiding Oneida Business Committee

Chairperson, or another Oneida Business Committee member if the verbal

reprimand is imposed against the presiding Oneida Business Committee

Chairperson, shall read a statement that identifies:

(A) The Oneida Business Committee or Trial Court’s findings regarding the

specific actions or inaction taken by the official that were found to be

misconduct;

(B) The reasons why the official’s actions or inactions amounted to

misconduct;

of behavior expected of the Nation’s officials and is not acceptable; and

(D) A direction to the official to refrain from engaging in future misconduct.

(b) Public Apology. The official may be ordered to make a public apology. The Oneida

Business Committee or Trial Court shall submit written notices to both the official and to

the Business Committee Support Office of the specific date, time and location of the public

apology. The public apology shall occur at an Oneida Business Committee meeting and/or

a General Tribal Council meeting. The public apology shall:

1. O.C. 120 – Page 7

30 of 48

Public Packet

312

313

314

315

316

317

318

319

320

321

322

323

324

325

326

327

328

329

330

331

332

333

334

335

336

337

338

339

340

341

342

343

344

345

346

347

348

349

350

351

352

353

354

355

356

Draft 4 for GTC Consideration

2019 02 24

(1) identify the specific misconduct committed by the official;

(2) recognize that the official’s actions or inactions were wrong;

(3) identify the effects of the official’s misconduct; and

(4) include a clear and unambiguous apology from the official.

on the Nation’s official media outlets, as determined by the Oneida Business Committee.

The Oneida Business Committee or the Trial Court may publish a written reprimand which

includes the information required for the verbal reprimand as stated in section 120.82(a)(2)(A)-(D).

(d) Suspension. An official may be suspended from performing his or her duties as an

official for a period of time not to exceed two (2) meetings, or fifteen (15) business days if

the official serves in a full-time capacity.

(1) During a suspension, the official shall not:

(A) attend meetings, trainings or any other event as part of the entity;

(B) attend conferences or other events on behalf of, or as a representative

of, the entity;

(D) perform work on behalf of the entity; or

(E) be eligible for any compensation, including regular pay, stipends, or

mileage reimbursement.

(2) When an official is suspended, the Oneida Business Committee or Trial Court

shall submit written notices to both the official and to the Business Committee

Support Office of the specific start and end date of the suspension.

(3) If a suspension is imposed on multiple officials of the same entity at one time,

the Oneida Business Committee or the Trial Court shall impose the suspensions of

the officials on a staggered basis to avoid an interruption of the official business

and function of the entity.

(e) Restitution. An official may be ordered to pay restitution, which may include the

repayment of any improperly received benefit, or any other payment which is intended to

make another whole after suffering losses as a result of the official’s misconduct.

(f) Fines. An official may be ordered to pay a fine not to exceed two thousand and five

hundred dollars ($2,500).

(1) Fines shall be paid to the Trial Court.

(2) Fines shall be paid within ninety (90) days after the order is issued or upheld

on final appeal, whichever is later. Cash shall not be accepted for payment of fines.

If the fine is not paid by this deadline, the Trial Court may seek to collect the money

owed through the Nation’s garnishment and/or per capita attachment process.

(3) Money received from fines shall be deposited into the General Fund.

(4) Community service may be substituted for part or all of any fine at the minimum

wage rate of the Nation for each hour of community service.

(g) Loss of Stipend. An official may be ordered to forfeit a stipend for his or her service

on an entity not to exceed two (2) meetings.

(h) Mandatory Participation in Training. An official may be ordered to participate in and

complete a training class or program that will assist the official in addressing and

improving his or her behaviors and/or actions.

1. O.C. 120 – Page 8

31 of 48

Public Packet

357

358

359

360

361

362

363

364

365

366

367

368

369

370

371

372

373

374

375

376

377

378

379

380

381

382

383

384

385

386

387

388

389

390

391

392

393

394

395

396

397

398

399

400

401

402

403

Draft 4 for GTC Consideration

2019 02 24

(1) The mandated training class or program may address a variety of topics

including, but not limited to, anger management, sexual harassment, or other

sensitivity training.

(i) Termination of Appointment. An appointed official may have his or her appointment

terminated by the Oneida Business Committee in accordance with the Nation’s laws and/or

policies governing boards, committees, and commissions.

(j) Removal. The Trial Court may recommend that the process for removing an elected

official as contained in the Nation’s laws and/or policies governing removal be initiated.

120.8-3. Factors in Determining an Appropriate Sanction and/or Penalty. When determining the

appropriate sanction or sanctions to impose, the Oneida Business Committee or the Trial Court

may consider all factors it deems relevant, including but not limited to:

(a) the seriousness or severity of the misconduct;

(b) whether the conduct was intentional or not;

(d) the extent of probable damage to the finances or reputation of the Nation, the

complainant, the entity, or to any other person or organization;

(e) whether the official or his or her family personally profited, financially or otherwise,

from the prohibited conduct;

(f) the official’s remorse, or

(g) the official’s willingness and ability to take steps to mitigate the harm caused by the

violation, and

(h) any prior complaints filed, including any previous sanctions and penalties imposed

upon the official while serving on an entity.

120.8-4. The Oneida Business Committee and/or the Trial Court may impose a sanction and/or

penalty on a conditional basis, whereas compliance with a specific sanction and/or penalty shall

prevent the imposition of a more stringent or burdensome sanction and/or penalty.

120.8-5. The imposition of sanctions and/or penalties in accordance with this law does not exempt

an official from individual liability for the underlying misconduct, and does not limit any penalties

that may be imposed in accordance with other applicable laws. In addition to any sanctions and

penalties that may be imposed in accordance with this law, officials who commit misconduct in

office may be subject to other consequences; including but not limited to:

(a) removal in accordance with the Nation’s laws and/or policies governing removal, if an

elected official;

(b) termination of appointment by the Oneida Business Committee, if an appointed official;

(d) civil liability, in accordance with the applicable law of any jurisdiction; and/or

(e) penalties for specific misconduct as authorized by any other law of the Nation.

120.8-6. An official who does not comply with a sanction and/or penalty that has been imposed

against him or her by either the Oneida Business Committee or Trial Court may be subject to the

following:

(a) additional sanctions and/or penalties that result from a complaint of misconduct filed

in accordance with this Law based on the non-compliance;

(b) termination of appointment by the Oneida Business Committee in accordance with the

Nation’s laws and policies governing boards, committees, and commissions, if the official

was appointed to his or her position; and/or

official was elected to his or her position.

1. O.C. 120 – Page 9

32 of 48

Public Packet

404

405

406

407

408

409

410

411

412

413

414

415

416

417

418

419

420

421

422

423

424

425

426

Draft 4 for GTC Consideration

2019 02 24

120.9. Effect of Resignation by an Official

120.9-1. The resignation of an official after a complaint has been filed against the official shall

not affect the status of the hearing and determination by either the Oneida Business Committee or

Trial Court.

120.9-2. An official who resigns may still be subject to sanctions and/or penalties at the discretion

of the Oneida Business Committee or Trial Court.

120.10. Record of Conduct in Office

120.10-1. The Business Committee Support Office shall maintain a record of conduct in office

for each official.

120.10-2. The record of conduct in office maintained for each official shall include, at a minimum:

(a) a copy of each complaint filed against the official;

(b) recording and/or transcript from any hearings and/or proceedings;

(d) any sanctions or penalties imposed upon an official.

120.10-3. The record of conduct in office for each official shall be maintained for a period of no

less than seven (7) years.

End.

Adopted – GTC-__-__-__-__

1. O.C. 120 – Page 10

33 of 48

Public Packet

34 of 48

FINANCE ADMINISTRATION

Fiscal Impact Statement

MEMORANDUM

TO:

Larry Barton, Chief Financial Officer

Ralinda Ninham-Lamberies, Assistant Chief Financial Officer

FROM:

Rae Skenandore, Financial Management Analyst

DATE:

December 27, 2018

RE:

Fiscal Impact of the Sanctions and Penalties Law

Estimated Fiscal Impact Summary

Law: Sanctions and Penalties Law

Implementing Agency

Estimated time to comply

Estimated Impact

Total Estimated Fiscal Impact

II.

Draft 4

Oneida Business Committee

Business Committee Support Office

Oneida Judiciary

In compliance with the Legislative Procedure Act

Current Fiscal Year

Ten Year Estimate

None

Background

Legislative History

This is a new Law that was originally placed on the Legislative Operating Committee

active files list on October 15, 2014. A public meeting was held on October 4, 2018.

Summary of Content

A summary of the Law is as follows;

The purpose of this law is to establish a consistent set of sanctions and penalties

that may be imposed upon elected and appointed officials of the Nation, including

members of the Oneida Business Committee, for misconduct in office; and to establish an

orderly and fair process for imposing such sanctions and penalties.

The Law applies to all elected or appointed Boards, Committees, and

Commissions.

Public Packet

35 of 48

This law does not apply to members of the Judiciary or corporate entities of the

Nation.

The definition of misconduct contained in the Law includes but it not limited to

the following violations of Oneida Laws, policies, rules, by-laws, SOP’s, other operating

documents, Federal and State Criminal or Civil law and expected moral and ethical

standards.

Complaint Process and Requirements

Individuals must be over 18 years old to file a complaint.

Allegations must have occurred within the last 90 days.

The Law outlines the requirement for the content of the complaint

and where to file

Prohibits retaliation

Allows for an attorney or advocate

Is held confidential until/unless a final determination and sanctions and/or

penalties are imposed.

The process differentiates complaints against appointed official’s vs

elected officials.

Complaints against appointed officials

The complaint process is conducted through the Oneida Business

Committee and includes the following:

Filing with the Business Committee Support Office.

(1)

Notification requirements;

(2)

Allowance for mediation;

(3)

Timelines to respond;

(4)

Recusal requirements for a conflict of interest.

An Initial review to determine a finding of merit

(1)

An investigatory hearing shall be held within 30 days for a

complaint determined to have merit.

(2)

Where there are findings of no merit, the Business

Committee shall review the complaint for a determination of

frivolous, false, or malicious complaint. If found, the complainant

may be subject to the following:

Public Packet

36 of 48

(3)

be fined up to five hundred dollars ($500);

(4)

be banned from filing a complaint for up to one year;

(5)

be subject to a civil suit.

Investigatory hearing.

(1)

The Oneida Business Committee shall have the broadest

grant of authority to compel any person or organization within the

Nation to

(a)

appear at the hearing to provide testimony under

oath and/or information relevant to the allegations against

the official; and/or

(b)

produce physical evidence that is relevant to the

allegations

(2)

Within the investigatory hearing section, the law contains

criteria for deliberations, determination, and appeals.

(a)

The standard for the complaint is “clear and

convincing evidence”.

(b)

The Oneida Business Committee determines and

imposes appropriate sanctions and/or penalties.

Complaints against elected officials

Complaints are filed with the Trial Court pursuant to the Nations Rules of

Civil Procedures.

Decisions on filed complaints against elected officials may be appealed to

the Court of Appeals pursuant to the Nation’s Rules of Appellate Procedure.

Official court records must be submitted to the Business Committee

Support Office.

Sanctions and Penalties may include the following:

Verbal reprimand.

Public apology.

Written reprimand.

Suspension.

Restitution.

Public Packet

37 of 48

Fines not to exceed two thousand five hundred dollars ($2,500) per act of

misconduct.

Loss of stipend.

Mandatory participation in training.

Termination of appointment.

10.

Removal.

The Law contains the factors to be used in determining appropriate Sanctions

and/or Penalty as the following:

the seriousness or severity of the misconduct;

whether the conduct was intentional or not;

the likelihood of repetition;

the extent of probable damage to the finances or reputation of the Nation,

the complainant, the entity, or to any other person or organization;

whether the official or his or her family personally profited, financially or

otherwise, from the prohibited conduct;

the official’s remorse, or

the official’s willingness and ability to take steps to mitigate the harm

caused by the violation, and

any prior complaints filed, including any previous sanctions and penalties

imposed upon the official while serving on an entity.

The Law states that the imposition of sanctions and penalties does not exempt

officials from individual liability which may include but is not limited to:

removal in accordance with the Nation’s laws and/or policies governing

removal;

termination of appointment by the Oneida Business Committee;

law;

criminal prosecution, for misconduct that also violates applicable criminal

civil liability, in accordance with the applicable law of any jurisdiction;

and/or penalties for specific misconduct as authorized by any other law of the

Nation.

Non-compliance may result in the following;

Additional sanctions and/or penalties.

Public Packet

38 of 48

Termination of appointment.

Removal in accordance with the Nation’s laws.

Resignation does not impact the process or exempt individuals from sanctions and

penalties.

Records of conduct shall be maintained by the Oneida Business Committee

Support Office for no less than seven years.

III.

Methodology and Assumptions

A “Fiscal Impact Statement” means an estimate of the total identifiable fiscal year

financial effects associated with legislation and includes startup costs, personnel, office,

documentation costs, as well as an estimate of the amount of time necessary for an

agency to comply with the Law after implementation.

Finance does NOT identify the source of funding for the estimated cost or allocate any

funds to the legislation.

The analysis was completed based on the information provided as of the date of this

memo.

III.

Executive Summary of Findings

The separation of the complaint process duplicates this function within two areas of the

Nation. However, aside from the additional duties, there are no other apparent startup,

personnel, office, or documentation costs associated with duplicating this function with

the approval of this legislation.

III.

Financial Impact

No fiscal impact.

IV.

Recommendation

Finance Department does not make a recommendation in regards to course of action in

this matter. Rather, it is the purpose of this report to disclose potential financial impact of

an action, so that the Oneida Business Committee and General Tribal Council has the

information with which to render a decision.

Public Packet

39 of 48

Sanctionsand

PenaltiesLaw

PresentationtoGTCby

LegislativeOperatingCommittee

February24,2019

WhySanctions&Penalties?

• IfanofficialoftheNationengagesinmisconductin

office,therearefewremediestoholdthatofficial

accountable.

• RemovalLaw(ifelected)

• TerminationofAppointment(ifappointed)

• Notallviolationsrisetolevelofremovalor

termination.

• TheNationcurrentlyhasnoformalprocesstoissue

warnings,reprimands,orcorrectiveactionsagainst

electedandappointedofficials.

• Increasedaccountabilityandopportunitytocorrect

behaviorandbecomeabetterofficial.

Public Packet

40 of 48

CulturalBackground

• GreatLawofPeace.

• Chiefreceivesuptothreewarningsfrom

ClanMother.

• Trytosteerleaderontherightpath.

• Opportunitytocorrectactions.

• Afterthreewarnings,thechiefis

dehorned,orremoved.

• Goalisnottoshamebuttomove

forwardinagoodway.

CurrentLandscape

• Mostgovernments(tribal,local,stateand

federal)havesomesortofsanctions

process.

• SanctionsforofficialsdiscussedbyGTC,

previousBusinessCommittees,and

communityasfarbackas1998.

• DuringtheSpecialElectionheldonJuly9,

2016,thefollowingreferendumquestion

wasapprovedbyavoteof178to59:

“ShouldtheBCdevelopalawwhich

providesforsanctionsanddueprocessfor

electedofficials?”

Public Packet

41 of 48

Development

• Research

• WorkMeetings

• Meetingsw/Boards,Committeesand

Commissions

• PublicOutreach

• CommunityPotluckMeeting

• PublicMeeting

WhatisMisconduct?

• ViolatingtheOneidaConstitutionoranylaw,policy

orruleoftheNation;

• Forexample,theCodeofEthicsorConflictof

InterestLaw

• Violatingthebylawsorstandardoperating

proceduresoftheentitytheofficialserveson;

• Beingconvictedofafelonyunderfederalor

Wisconsinlaw;

• Anyotheractivitythatdoesnotupholdthemoral

andethicalstandardsexpectedoftheNation’s

officials.

Public Packet

42 of 48

WhoCanbeSanctioned?

• ElectedOfficialsoftheNation.

• IncludingmembersoftheOneidaBusiness

Committee.

• AppointedOfficialsoftheNation.

• Thislawdoesnotapplyto:

• CorporateentitiesoftheNation.

• JudgesoftheOneidaNationJudiciary.

• ComplaintProcessforJudgeslocatedin

JudiciaryLaw.

ElectedOfficials

• OneidaBusinessCommittee

• OneidaElectionBoard

• OneidaGamingCommission

• OneidaLandCommission

• OneidaLandClaimsCommission

• OneidaNationCommissiononAging(ONCOA)

• OneidaNationSchoolBoard

• OneidaTrustEnrollmentCommittee

• GTCLegalResourceCenterAttorneyand

Advocates

Public Packet

43 of 48

AppointedOfficials

• AnnaJohnResidentCenteredCareCommunityBoard

• AuditCommittee(1communitymemberseat)

• EnvironmentalResourceBoard(ERB)

• FinanceCommittee(1communitymemberseat)

• OneidaCommunityLibraryBoard

• OneidaNationArtsBoard

• OneidaPersonnelCommission

• OneidaPoliceCommission

• OneidaPowWowCommittee

• OneidaNationVeteransAffairsCommittee(ONVAC)

• PardonandScreeningForgivenessCommittee

• SoutheasternWIOneidaTribalServicesAdvisoryBoards(SEOTS)

• OneidaYouthLeadershipInstituteBoardofDirectors

FilingaComplaint

• WhoCanFile:Anyone18yearsandolderwho,

ingoodfaith,hasknowledgeorreasontobelieve

thatanofficialhascommittedmisconductmay

fileawrittencomplaint.

• WhenToFile:Within90daysofwhenthe

allegedmisconductoccurredorwasdiscovered

tohaveoccurred.

• WheretoFile:

• ElectedOfficials– JudiciaryTrialCourt.

• AppointedOfficials– BCSupportOffice.

Public Packet

44 of 48

FilingaComplaint

ComplaintsAgainst

APPOINTEDOfficials

Complaintsagainst

ELECTEDOfficials

FileComplaintwith

BCSupportOffice

FileComplaintwith

Judiciary

BusinessCommittee

reviewscomplaint

JudiciaryTrialCourt

reviewscomplaint

ComplaintProcess:

ElectedOfficials

• ComplaintfiledwiththeNation’sJudiciaryTrialCourt.

• CaseproceedsaccordingtoJudiciaryRulesofCivil

Procedure:

• Officialfilesanswertothecomplaint.

• CourtmayorderpreͲtrialmeetingand/ordiscovery.

• Courtholdsahearing.

• Courtissuesjudgment.

• IfTrialCourtfindsofficialcommittedmisconduct,the

TrialCourtselectsappropriatesanctionorpenalty.

• EitherpartymayappealdecisiontoJudiciaryCourtof

Appeals.

Public Packet

45 of 48

ComplaintProcess:

AppointedOfficials

• ComplaintfiledwithBCSupportOffice.

• ComplaintforwardedtoBCMembersandtheOfficial.

• Officialsubmitswrittenresponsetocomplaint.

• BCperformsinitialreviewtodetermineifcomplainthas

merit.Ifcomplainthasmerit,BCschedulesahearing.

• BCholdsinvestigatoryhearingduringexecutivesession.

Afterthehearing,BCdeliberates.

• Inopensession,BCvotesonwhethermisconductoccurred

andselectsappropriatesanctionorpenaltybymajority

vote.

• EitherpartymayappealdecisiontoJudiciaryCourtof

Appeals

ListofSanctions&Penalties

• VerbalReprimand

• PublicApology

• WrittenReprimand

• Suspension

• Restitution

• Fines

• LossofStipend

• MandatoryTraining

• TerminationofAppointment

• Removal,inAccordancewithRemovalLaw

Public Packet

46 of 48

AdditionalConsequences

• Nothinginthislawexemptsanofficialfrom

individualliabilityorpenaltiesimposedin

accordancewithotherlaws.

• Forexample,officialswhocommitmisconductmay

besubjecttootherconsequences,includingbutnot

limitedto:

• CriminalProsecution,formisconductthatviolates

applicablecriminallaw.

• CivilLiability,inaccordancewithapplicablelaw.

• Penaltiesforspecificmisconductasauthorizedby

anyotherlawoftheNation.

HowisPenaltySelected?

• Whenimposingasanctionorpenalty,theOBCor

Judiciarymayconsiderthefollowing:

• Howseverethemisconductwas,whetheritwas

intentional,andhowlikelytheofficialistorepeat

themisconduct.

• Thedamagetothefinancesorreputationofthe

Nation,entity,oranypersonororganization.

• Whethertheofficialhasexpressedremorseandis

willingtotakestepstocorrecttheharmdone.

• Whetheranypriorcomplaintshavebeenfiled

againsttheofficial.

Public Packet

47 of 48

ProtectingDueProcess

• Officialsaccusedofmisconducthavetherightto

berepresentedbyanattorneyoradvocate.

• Officialshavetherighttosubmitawritten

responsetocomplaintsagainstthem,appearat

theinvestigatoryhearingtoanswerthe

allegations,providewitnesstestimony,

documentsandevidenceontheirbehalf.

• Complaintsagainstofficialsmustbeprovenby

clearandconvincingevidence.

• AppealstoJudiciaryCourtofAppeals

RequestedAction

MotiontoadopttheSanctionand

PenaltiesLawResolution

Yaw^ko

Public Packet

48 of 48

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.