ONEIDA NATION PUBLIC MEETING NOTICE (2020)

ONEIDA NATION PUBLIC MEETING NOTICE

Tuesday, January 7, 2020, 12:15 pm

Find Public MeeƟng Materials at

Oneida‐nsn.gov/government/register/public mee ngs

Norbert Hill Center-Business Committee Conference Room

N7210 Seminary Rd., Oneida, Wisconsin

SANCTIONS AND PENALTIES FOR

ELECTED OFFICIALS LAW

Send Public Comments to

LOC@oneidana on.org

Ask QuesƟons here

LOC@oneidana on.org

920‐869‐4312

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

imposed upon elected 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 Sanctions and Penalties for Elected Officials law will:

1. Set parameters for what behavior constitutes misconduct;

2. Describe how an individual can file a complaint against an elected official;

3. Provide that complaints against an elected official shall be handled by the Judiciary—Trial Court; and

4. Describe the potential sanctions and penalties that can be imposed upon elected officials found to have engaged in misconduct, and the factors that will be utilized to determine an appropriate sanction or penalty.

PUBLIC COMMENTS PERIOD CLOSES TUESDAY, JANUARY 14, 2020

During the Public Comment Period, anyone may submit written comments. Comments may be

submitted to the Oneida Nation Secretary’s Office or the Legislative Reference Office in person, by U.S.

mail, interoffice mail, or e-mail.

PROVIDING EFFECTIVE PUBLIC COMMENTS

Providing public comment is an important way to make your voice heard in

decision making. Public comments can strengthen a decision or provide different perspectives. The Legislative Operating Committee wants to hear from

you!

READ THE PUBLIC MEETING MATERIALS: Before you provide comments familiarize yourself

with the legislation. A public meeting packet is made for every public meeting and it includes 1) a

notice with the date, time, location, 2) a draft of the proposed legislation, and 3) a plain language

review of the legislation and its impact on the Oneida Nation.

PREPARE YOUR COMMENTS: When you are familiar with the legislation, start to prepare comments. The LOC is responsible for reviewing every comment received. To get your message across

effectively, frame your comment clearly and concisely. Here is an example of how to create an effective comment:

Least Effective Comment

More Effective Comment

Most Effective Comment

We need more accountability for We need more strict fines in order The fine amount in section 120.7-2

our officials.

to hold officials accountable.

(f) should be increased from

$2,500 to $3,500.

Analysis to Draft 5

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SANCTIONS AND PENALTIES

FOR ELECTED OFFICIALS

LEGISLATIVE ANALYSIS

SECTION 1. EXECUTIVE SUMMARY

REQUESTER:

Oneida Business

Committee

Intent of the

Amendments

Purpose

Affected Entities

Related Legislation

Enforcement/Due

Process

Public Meeting

Fiscal Impact

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SPONSOR:

Jennifer Webster

DRAFTER:

Clorissa N. Santiago

ANALYST:

Brandon Wisneski

To increase accountability among elected 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 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 [120.1-1].

All elected officials of the Nation; Any enrolled tribal member or employee age 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. This law does not apply

to appointed officials.

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 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 hearing to answer the allegations and provide

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

convincing evidence.

A public meeting for an earlier draft of this law was held on October 4, 2018. A

2nd public meeting for the updated draft is scheduled for January 7, 2020.

A fiscal impact statement for an earlier draft of this law was prepared by the

Finance Department on December 27, 2018. An updated fiscal analysis has not

yet been requested.

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, 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.

B. This law creates a formal complaint process that gives tribal members, employees and entities an

opportunity to file complaints against elected officials while ensuring that due process rights for those

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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

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

D. On March 17, 2019, the Legislative Operating Committee presented an earlier draft of the proposed

Sanctions and Penalties law to GTC for consideration. During this meeting, GTC directed that the

Sanctions and Penalties law be deferred for at least sixty (60) days for GTC to have additional time to

consider it and have input.

E. Between July and November of 2019, the LOC conducted additional outreach for the community

regarding the proposed Sanctions and Penalties law. This included outreach events in both Oneida and

Milwaukee, articles in the Kaliwihsaks, and opportunities to submit written comments. Based on input

received from community members during the various outreach efforts, as well as the discussion during

the March 17, 2019, GTC Meeting, the LOC determined that the draft should be revised. This revised

draft removes the Oneida Business Committee as a hearing body for complaints against appointed

officials by removing all references to appointed officials from the law. In addition, complaints will

now be filed only by enrolled tribal members or employees of the Nation aged 18 years or older.

F. This law will apply to elected officials of the Nation, including members of the following entities:

ELECTED BOARDS, COMMITTEES AND COMMISSIONS

 Oneida Business Committee

 Oneida Election Board

 Oneida Gaming Commission

 Oneida Land Claims Commission

 Oneida Land Commission

 Oneida Nation Commission on Aging (ONCOA)

 Oneida Nation School Board

 Trust Enrollment Committee

 GTC Legal Resource Center Advocates and Attorney

*This law does not apply to members of appointed boards, 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.

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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:

 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. Community Outreach Events. In addition to the public meeting required by the LPA held on October

4, 2018, the LOC held the following outreach events on this legislation:

 May 3, 2018: A community pot-luck meeting at Norbert Hill Center to gather community input

on this law.

 July 11, 2019: Community outreach event held prior to GTC meeting at Radisson Conference

Center.

 July 17, 2019: Community outreach held at Norbert Hill Center in Oneida.

 August 9, 2019: Community outreach held at Veteran’s Breakfast in Oneida.

 August 15, 2019: Community outreach held at Farmer’s Market in Oneida.

 October 7, 2019: Community outreach held at Elder Congregate Mealsite in Oneida.

 October 16, 2019: Community outreach held at SEOTS Building in Milwaukee.

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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.

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October 17, 2018: LOC work meeting.

October 25, 2018: LOC work meeting.

December 20, 2018: Work meeting with Cultural Heritage.

January 2, 2019: LOC Work meeting.

January 24, 2019: LOC Work meeting.

February 4, 2019: LOC Work meeting.

February 6, 2019: LOC work meeting.

February 8, 2019: LOC work meeting.

February 14, 2019: LOC work meeting.

February 20, 2019: LOC work meeting.

March 1, 2019: LOC work meeting.

March 15, 2019: LOC work meeting.

March 20, 2019: LOC work meeting

March 28, 2019: LOC work meeting.

May 1, 2019: LOC work meeting.

June 13, 2019: LOC work meeting.

August 21, 2019: LOC work meeting.

October 16, 2019: LOC work meeting.

October 31, 2019: LOC work meeting.

November 6, 2019: LOC work meeting.

November 15, 2019: LOC work meeting.

November 20, 2019: LOC work meeting.

November 26, 2019: LOC work meeting.

December 2, 2019: LOC work meeting.

SECTION 5. CONTENTS OF THE LEGISLATION.

A. What Qualifies as Misconduct. The Oneida Nation expects elected 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 [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.

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.

 Who Can File a Complaint? Under this law, any enrolled member of the Nation or employee of the

Nation age 18 years or older can file a complaint, so long as they have knowledge or reason to

believe that an official has committed misconduct. Entities of the Nation, such as a board,

committee or commission, can also file complaints against elected officials.

 When to File Complaint? The complaint must be filed within 90 days of when the alleged

misconduct occurred or was discovered [120.5-1 & 5-2].

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Contents of the Complaint. Complaints must include the following information [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

[8 O.C. 803.5-1].

 Where to File Complaints? Complaints against elected officials are filed with the Trial Court, with

is located within the Oneida Judiciary [120.5-4].

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

investigation is not allowed [120.5-5].

C. Complaint Procedure. Complaints against elected officials, including members of the Oneida Business

Committee, will be heard by the Nation’s Trial Court [120.6-1]. The law outlines the process for how

the Judiciary will hear the complaint:

 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 [120.6-2].

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.

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

evidence” [120.6-3]. This is the same standard the Nation uses in misconduct cases against judges

in the Oneida Judiciary [8 O.C. 801.12-6(c)].

o This means that the person filing the complaint must provide evidence “indicating that the

[allegation] to be proved is highly probably or reasonably certain” [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.

 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 Judiciary and any sanctions and penalties

imposed against an official will be public information [120.6-4].

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

confidentiality concerns, or “if expressly prohibited by law” [8 O.C. 801.4-4].

D. Hearings Under Rules of Civil Procedure. All hearings under this law 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 more detailed information regarding the trial court process, see

the Judiciary Rules of Civil of Civil Procedure in the Nation’s Code of Laws.

 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.

o 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

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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 [Oneida Judiciary

Rules of Civil Procedure 803.5-1].

o 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.

o 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 elected 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. 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 [Rules of Civil

Procedure 8 O.C. 803.5].

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 [Rules of Civil Procedure 8 O.C. 803.7].

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 [Rules of Civil Procedure

803.12].

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

[Rules of Civil Procedure 8 O.C. 803.38].

Judgment. If the Trial Court determines, by clear and convincing evidence, that there is enough

evidence to substantiate the allegations of misconduct by the official, then the Trial Court will

impose any sanctions and penalties that they deem appropriate. If the Trial Court does not find

there is clear and convincing evidence to support the allegations, the complaint will be dismissed

[120.6-5].

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 to the Court of Appeals. The appeal must be filed

with the Court of Appeals in accordance with the Rules of Appellate Procedure [120.6-6].

o Timeline for Appeal. Appeals of judgments of the Trial Court must be filed with the Court

of Appeals within 30 days after the judgment was rendered [8 O.C 805.5-2(a)].

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Chart 2. Complaint Process Against Elected Officials – Overview of Rules of Civil Procedure.

Petitioner files

complaint with Trial

Court and pays filing

fee

Hearing

Court issues a

summons

Court issues

judgment

Petitioner arranges

for service of

complaint and

summons on official

No, official did not

engage in Misconduct

Official files answer

to the complaint

Court may order

pre‐trial meeting

Complaint is

dismissed

Individual who filed

complaint may

appeal to Court of

Appeals

Yes, official engaged

in misconduct

Trial Court selects

appropriate

sanction(s) or

penalty

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Official may appeal

to Court of Appeals

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

whichever penalty it deems appropriate [120.7].

 Conditional Penalties. Sanctions and penalties may 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 [120.7-4].

 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. An example would be an official failing to pay a fine, failing to attend mandatory training or

violating the terms of their suspension [120.7-6].

Chart 3. List of Potential Sanctions and Penalties

 Verbal Reprimand

 Public Apology

 Written Reprimand

 Suspension

 Restitution

 Fines

 Loss of Stipend

 Mandatory Training

 Removal, in accordance with Removal Law

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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 [120.7-2(a)].

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

[120.7-2(b)].

Written Reprimand. The 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 [BC Resolution #03-22-17-B]. The written reprimand will include the same

information as a verbal reprimand [120.7-2(c)].

Suspension. The 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 entity. In addition,

the official cannot earn any stipends, salary or mileage during the suspension [120.7-2(d)].

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 so that the business

of the Nation is not interrupted. For example, if multiple members of the Business

Committee are suspended, each member will be suspended one at a time on a staggered

basis [120.7-2(d)(3)].

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

received benefit, such as returning funds or paying to replace damaged property. The point of

restitution is to make someone whole. [120.7-2(e)].

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 [120.7-2(f)].

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 [Hunting

Fishing and Trapping 4 O.C. 406.10-5(a)].

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

boards may receive up to two (2) meeting stipends per month, so this could amount to the loss of

one month’s stipends for a member of a board that meets twice monthly [Boards, Committees and

Commissions law 1 O.C. 105.13-3(b)].

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

address their behavior. Examples include anger management or sexual harassment training [120.72(h)].

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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 [120.7-2(i)].

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 approximately 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

Chairperson, who schedules a GTC meeting. At the GTC meeting, an elected official may

be removed from office after a 2/3 vote [Removal Law 1 O.C. 104].

F. Factors in Determining Appropriate Sanction and/or Penalty. The Trial Court may consider the

following when deciding which sanction or penalty to apply [120.7-3].

 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, whether this is the

first complaint against the official or represents 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 experience other consequences. These include [120.7-5]:

 Removal from office in accordance with the Removal law.

 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 [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 [120.8].

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 [120.9].

 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 Trial Court. The purpose of the record of conduct is

so that the Trial Court can review previous complaints against the official when determining a

potential sanction or penalty [120.6-4(b)].

 Public Access to BC & Trial Court Decisions. However, the decisions of the Trial Court regarding

a complaint against an elected official and any sanctions and penalties imposed against an official

will be public information [120.6-4(c)].

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SECTION 6. EFFECT ON EXISTING LEGISLATION

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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. Complaints against an official shall be filed in accordance with the

Nation’s Trial Court in accordance with the Rules of Civil Procedure [120.5-4].

 Rules of Appellate Procedure. Appeals of the Trial Court’s decision shall be filed pursuant to the

Nation’s Rules of Appellate Procedure.

 Garnishment Law. If an official is ordered to pay a fine in accordance with this law and does not

pay according to the deadline, the Trial Court may seek to collect that fine through the Nation’s

garnishment process [120.7-2(f)(2)].

 Per Capita Law. If an official is ordered to pay a fine in accordance with this law and does not pay

according to the deadline, the Trial Court may seek to collect that fine through the Nation’s per

capita attachment process [120.7-2(f)(2)].

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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.

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

SECTION 8. OTHER CONSIDERATIONS

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

suspension and removal of judges for willful misconduct in office. The complaint and hearing

procedure for complaints against judges can be found in the Judiciary law [Judiciary law 8 O.C.

801.12]. Therefore, the Judiciary is not included in this law.

B. Judiciary Conflicts of Interest. The Oneida Tribal Judiciary Canons of Judicial Conduct requires a

Judge to withdraw from any matter where the Judge has or could be perceived to have a conflict of

interest. Violating the Oneida Tribal Judiciary Canons of Judicial Conduct would be grounds for

reprimand under the Nation’s Judiciary law [Judiciary Canons of Judicial Conduct 8 O.C. 802.2-2].

C. Complaints Against Appointed Officials. This law applies to elected officials only. Appointed officials

are appointed by the Oneida Business Committee in accordance with the Boards, Committees and

Commissions law and serve at BC’s discretion. If an appointed official commits misconduct, the that

official’s board, committee or commission or a member of the BC may recommend termination of

appointment. A member of an appointed entity may have their appointment terminated by a 2/3 majority

vote of the Oneida Business Committee [Boards, Committees and Commissions 1 O.C. 105.7-4].

D. 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 additional guidance to elected officials,

individuals filing complaints, and the Judiciary when they begin hearing complaints under this law.

E. 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 no uniform standard

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

information:

Chart 4. Sanctions and Penalties Process of other Tribal Nations

Tribe

Where Complaints Are Who Investigates or

Filed

Hears the Complaint

Siletz

Tribal Council*

Ad Hoc Committee or

Special Advisor

appointed by Tribal

Council*

Ho Chunk

Judiciary

Judiciary

Who Decides the

Sanction or Penalty

Tribal Council*

President

Rosebud Sioux

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Ethics Commission,

Ethics Commission,

Tribal Council*

appointed by Tribal

appointed by Tribal

Council*

Council*

Skokomish

Ethics Officer,

Ethics Officer,

Chairman

appointed by Tribal

appointed by Tribal

Council*

Council*

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

F. 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 officials.

 Conclusion: Given the uncertainty regarding the number of potential complaints, the Judiciary

should be prepared to potentially process a large number of complaints upon passage of this

law.

G. 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 workplaces. The Human

Resources 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.

 Conclusion: 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 full-time

BC members or Gaming Commissioners occur.

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

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

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

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

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

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

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

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

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

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

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

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Title 1. Government and Finances - Chapter 120

SANCTIONS AND PENALTIES

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

Giving strength to the issues

and

Forgiving oneself for the issue at hand

Laws

SANCTIONS AND PENALTIES FOR ELECTED OFFICIALS

120.1. Purpose and Policy

120.2. Adoption, Amendment, Repeal

120.3. Definitions

120.4. Misconduct.120.1. Purpose and Policy

120.2. Adoption, Amendment, Repeal

120.3. Definitions

120.4. Misconduct

120.5. Filing of a Complaint

120.9. Record of Conduct in Office

120.5. Filing of a Complaint

120.6. Complaint Alleged Against an Appointed Official

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

120.6. Complaint Procedure

120.7. Sanctions and Penalties

120.8. Effect of Resignation by an Official

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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.

(c) This law does not apply to members of corporate entities of the Nation.

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.

(c) Ka>nikuhli=y%. The openness of the good spirit and mind.

(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.

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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.

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.

(c(a) “Business Committee Support Office” means the office that provides administrative

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

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

holidays recognized by the Nation.

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

that the facts presented are true.

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

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

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

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

(li) “Nation” means the Oneida Nation.

(mj) “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.

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

loss.

(ol) “Stipend” means the amount paid by the Oneida Nation to elected individuals serving

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

member on the board, committee or commission.

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

because there is clear and convincing evidence.

(qn) “Trial Court” means the Trial Court of the Oneida Nation Judiciary, which is the

judicial system that was established by Oneida General Tribal Council resolution GTC-0107-13-B, and then later authorized to administer the judicial authorities and responsibilities

of the Nation by Oneida General Tribal Council resolution GTC-03-19-17-A.

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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;

(c) a conviction of a felony, or any crime in any jurisdiction that would be classified as a

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 who is an

enrolled member of the Nation or an employee of the Nation, or an 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;

(c) The specific date(s), time(s), and location(s) of the alleged misconduct;

(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 pursuant to the Nation’s Rules of Civil Procedure.

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.

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(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. Complaint Procedure

120.6-1. Jurisdiction of the Trial Court. The Trial Court shall have jurisdiction to hear complaints

of alleged misconduct of officials.

120.6-2. 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.

120.5-76-3. Burden of Proof. In a civil action against an official for misconduct, the complainant

has the burden of proving by clear and convincing evidence that the official engaged in

misconduct.

120.6-4. Confidentiality. All complaints alleged against an official of the Nation shall be handled

in a confidential manner.

(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 andby the Trial Court.

(c) Exception. A decision of the Trial Court or the Oneida Business Committee regarding

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

-5. Determination 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.

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(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.

(c) The mediation shall occur before the investigatory hearing is scheduled to take place.

(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.

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.

(c) The Oneida Business Committee shall determine, by majority vote, whether the

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);

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(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.

(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.

(c) The Oneida Business Committee shall also provide the complainant the opportunity to

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.

(c) Within ten (10) business days after the investigatory hearing, the Oneida Business

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

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(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;

or

(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.

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.

120.7-46-6. 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;

or

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

120.6-7-5. 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.

120.8.7. Sanctions and Penalties

120.87-1. 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.

120.87-2. 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.

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(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;

(C) A statement identifying that the misconduct violates the high standards

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 orThe 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) 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.

(c) Written Reprimand. A written reprimand may be imposed on the official by publication

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

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

which includes the information required for the verbal reprimand as stated in section

120.87-2(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;

(C) vote or participate in any activities 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.

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(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) 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(i) 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.

120.87-3. 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;

(c) the likelihood of repetition;

(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.

120.87-4. 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.

120.87-5. 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:

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(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;

(c) criminal prosecution, for misconduct that also violates applicable criminal law;

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

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

120.87-6. 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 orthe 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

(c(b) removal in accordance with the Nation’s laws and policies governing removal, if the

official was elected to his or her position.

120.98. Effect of Resignation by an Official

120.98-1. 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

orthe Trial Court.

120.98-2. An official who resigns may still be subject to sanctions and/or penalties at the discretion

of the Oneida Business Committee or Trial Court.

120.10.9. Record of Conduct in Office

120.109-1. The Business Committee Support Office shall maintain a record of conduct in office

for each official.

120.109-2. 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;

(c) the outcome of the complaint, and

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

120.109-3. 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-__-__-__-__

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Title 1. Government and Finances - Chapter 120

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

Giving strength to the issues

and

Forgiving oneself for the issue at hand

Laws

SANCTIONS AND PENALTIES FOR ELECTED OFFICIALS

120.1. Purpose and Policy

120.2. Adoption, Amendment, Repeal

120.3. Definitions

120.4. Misconduct

120.5. Filing of a Complaint

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120.6. Complaint Procedure

120.7. Sanctions and Penalties

120.8. Effect of Resignation by an Official

120.9. 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 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.

(c) This law does not apply to members of corporate entities of the Nation.

120.1-2. Policy. It is the policy of the Nation to ensure that elected 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 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.

(c) Ka>nikuhli=y%. The openness of the good spirit and mind.

(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.

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.

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(a) “Business Committee Support Office” means the office that provides administrative

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

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

holidays recognized by the Nation.

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

the facts presented are true.

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

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

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

(g) “Entity” means a board, committee, commission, office, or other group of the Nation

an individual may be elected to serve a position on, including the Oneida Business

Committee.

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

(i) “Nation” means the Oneida Nation.

(j) “Official” means any person who is elected 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.

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

loss.

(l) “Stipend” means the amount paid by the Oneida Nation to elected individuals serving

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

member on the board, committee or commission.

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

because there is clear and convincing evidence.

(n) “Trial Court” means the Trial Court of the Oneida Nation Judiciary, which is the

judicial system that was established by Oneida General Tribal Council resolution GTC-0107-13-B, and then later authorized to administer the judicial authorities and responsibilities

of the Nation by Oneida General Tribal Council resolution GTC-03-19-17-A.

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;

(c) a conviction of a felony, or any crime in any jurisdiction that would be classified as a

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 who is an

enrolled member of the Nation or an employee of the Nation, or an entity, who in good faith, has

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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;

(c) The specific date(s), time(s), and location(s) of the alleged misconduct;

(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.

120.5-4. Where to File. Complaints against an official shall be filed with the Nation’s Trial Court

pursuant to the Nation’s Rules of Civil Procedure.

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.

120.6. Complaint Procedure

120.6-1. Jurisdiction of the Trial Court. The Trial Court shall have jurisdiction to hear complaints

of alleged misconduct of officials.

120.6-2. 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.

120.6-3. Burden of Proof. In a civil action against an official for misconduct, the complainant has

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

120.6-4. Confidentiality. All complaints alleged against an official of the Nation shall be handled

in a confidential manner.

(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 by the

Trial Court.

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(c) Exception. A decision of the Trial Court regarding a complaint alleged against an

official, and any sanctions and/or penalties that are imposed against an official, shall be

public information.

120.6-5. Determination of the Trial Court. 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.

120.6-6. 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;

or

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

120.6-7. 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.

120.7. Sanctions and Penalties

120.7-1. 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.

120.7-2. Sanctions and penalties may include:

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

(1) The 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 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;

(C) A statement identifying that the misconduct violates the high standards

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 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:

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(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.

(c) Written Reprimand. A written reprimand may be imposed on the official by publication

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

The Trial Court may publish a written reprimand which includes the information required

for the verbal reprimand as stated in section 120.7-2(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;

(C) vote or participate in any activities 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 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 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. 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) 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.

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(i) 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.

120.7-3. Factors in Determining an Appropriate Sanction and/or Penalty. When determining the

appropriate sanction or sanctions to impose, 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;

(c) the likelihood of repetition;

(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.

120.7-4. 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.

120.7-5. 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;

(b) criminal prosecution, for misconduct that also violates applicable criminal law;

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

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

120.7-6. An official who does not comply with a sanction and/or penalty that has been imposed

against him or her by the 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) removal in accordance with the Nation’s laws and policies governing removal.

120.8. Effect of Resignation by an Official

120.8-1. 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 the Trial Court.

120.8-2. An official who resigns may still be subject to sanctions and/or penalties at the discretion

of the Trial Court.

120.9. Record of Conduct in Office

120.9-1. The Business Committee Support Office shall maintain a record of conduct in office for

each official.

120.9-2. 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;

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(c) the outcome of the complaint, and

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

120.9-3. 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 7