Oneida Business Committee (2019)
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Oneida Nation
Oneida Business Committee
Legislative Operating Committee
PO Box 365 • Oneida, WI 54155-0365
Oneida-nsn.gov
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ONEIDA
LEGISLATIVE OPERATING COMMITTEE SPECIAL MEETING AGENDA
Business Committee Conference Room-2nd Floor Norbert Hill Center
January 7, 2019 1:00 p.m.
I.
Call to Order and Approval of the Agenda
II.
Minutes to be Approved
III.
Current Business
1. Sanctions and Penalties Law (pg. 2)
IV.
New Submissions
V.
Additions
VI.
Administrative Updates
VII.
Executive Session
VIII. Recess/Adjourn
A good mind. A good heart. A strong fire.
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Oneida Nation
Oneida Business Committee
Legislative Operating Committee
PO Box 365 • Oneida, WI 54155-0365
Oneida-nsn.gov
Legislative Operating Committee
January 7, 2019
Sanctions and Penalties Law
Submission Date: 9/6/17
LOC Sponsor: Jennifer Webster
Public Meeting: 10/4/18
Emergency Enacted: n/a
Summary:
This item was carried over from the previous term. The original proposal was to
develop a consistent process that would provide for members of the Oneida Business Committee and
other Boards, Committees and Commissions to face sanctions for misconduct. Currently, the only
penalty that OBC members may be subject to, is removal from office – meaning that less serious
misconduct would either go unpunished or would result in a penalty that might be considered too
extreme for a particular violation.
9/6/17 LOC:
Motion by Ernest Stevens III to add Sanctions and Penalties Law to the active files list with
Jennifer Webster as the sponsor; seconded by Daniel Guzman King. Motion carried
unanimously.
9/6/17:
Work Meeting. Present: David P. Jordan, Jenny Webster Ernest Stevens III, Jennifer Falck,
Clorissa Santiago, Candice Skenandore, Maureen Perkins, Tani Thurner. Drafting attorney
provided an update on the status of the Sanctions and Penalties law. Next steps will be: 1)
pull the current draft back, 2) hold community meetings to understand what
sanctions/penalties the community is interested in, 3) meeting with the
boards/committees/commissions for input, and 4) holding work meeting with LOC to make
policy decisions and choose next steps.
11/1/17 LOC: Motion by Kirby Metoxen to approve the 60 day active files list update and continue
development of all the items on the active files list; seconded by Ernie Stevens III. Motion
carried unanimously.
11/1/17:
Work Meeting. Present: Carol Silva, Bonnie Pigman, Ed Delgado, Rachel Hill, Matthew
Denny, Reynold Danforth, Kirby Metoxen, Rosa Laster, Clorissa Santiago, Candice
Skenandore, Maureen Perkins, Jennifer Falck. Representatives from all the B/C/C’s were
invited to this meeting to provide input on what a Sanctions & Penalties Law might look like.
12/6/17:
Work Meeting. Present: David P. Jordan, Kirby Metoxen, Jennifer Webster, Ernest Stevens
III, Daniel Guzman King, Clorissa Santiago, Jennifer Falck. The LOC reviewed and
considered comments from the November 1, 2017, work meeting with boards, committees,
and commissions. LOC began making policy decisions. Drafter will work on draft, and policy
options, and bring materials back to LOC when ready.
3/9/18:
Work Meeting. Present: David P. Jordan, Kirby Metoxen, Jennifer Webster, Clorissa
Santiago, Brandon Wisneski, Rosa Laster, Laura Laitinen-Warren. LOC reviewed the first
draft of the law, and directed that the LRO schedule a community meeting, with a special
invitation to members of boards, committees, and commissions, to discuss the proposed law.
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3/16/18:
Work Meeting: Present: David P. Jordan, Jennifer Webster, Daniel Guzman, Ernest Stevens
III, Clorissa Santiago, Brandon Wisneski, Cathy Bachhuber, Rosa Laster. The LOC reviewed
the potential date for the community meeting, and directed the drafting attorney to schedule
the community meeting for May 3, 2018, and to ensure the notice is published in the
Kalihwisaks twice, an appointment is sent to all members of the LOC and boards,
committees, and commissions, and that the Communications Department is included in the
appointment so they can make efforts to communicate notice of the event.
4/2/18 LOC:
Motion by Jennifer Webster to accept the draft of the Sanctions and Penalties law and direct
that a community meeting/potluck be held on May 3, 2018; seconded by Daniel Guzman
King. Motion carried unanimously.
4/26/18:
Work Meeting: Present: Clorissa Santiago, Brandon Wisneski, Jennifer Falck. This was an
LRO prep meeting to prepare a plan for the upcoming community meeting.
4/27/18:
Work Meeting. Present: David P. Jordan, Kirby Metoxen, Ernest Stevens III, Daniel Guzman
King, Jennifer Falck, Clorissa Santiago, Brandon Wisneski, Rosa Laster, Cathy Bachhuber,
Tani Thurner. The purpose of this work meeting was to prepare for the upcoming community
meeting.
5/2/18:
Work Meeting. Present: Clorissa Santiago, Brandon Wisneski, Jennifer Falck, David P.
Jordan, Jennifer Webster. The LOC continued to prepare and discuss the upcoming
community meeting.
5/3/18:
Community Meeting. Present: David P. Jordan, Jennifer Webster, Kirby Metoxen, Ernest
Stevens III, Jennifer Falck, Clorissa Santiago, Brandon Wisneski, Maureen Perkins, Carol
Silva, Chad Wilson, Janice McLester, Gina Buenrostro, Winnifred Thomas, Brooke Doxtator,
Ed Delgado, Oyanolu Adams, Michelle Braaten, Mark Powless, Cathy L. Metoxen, Carole
Liggins, Madelyn Genskow. The purpose of this community meeting was to gain input on the
proposed Sanctions and Penalties law.
5/11/18:
Work Meeting. Present: David P. Jordan, Jennifer Webster, Kirby Metoxen, Ernest Stevens
III, Daniel Guzman, Clorissa Santiago, Brandon Wisneski, Jennifer Falck. The purpose of
this work meeting was to review the comments received during the community meeting, and
to determine if any revisions should be made to the law. The drafting attorney will update the
draft of the law based on this discussion.
5/16/18:
Work Meeting. Present: David P. Jordan, Jennifer Webster, Daniel Guzman King, Kirby
Metoxen, Ernest Stevens III, Jennifer Falck, Clorissa Santiago, Brandon Wisneski, Laura
Laitinen-Warren. The purpose of this work meeting was to review and discuss the revisions
to the draft made based on comments collected from the community meeting. Drafting
attorney will update the draft.
6/6/18/ LOC: Motion by Jennifer Webster to accept the draft of the Sanctions and Penalties law and direct
that a legislative analysis be completed; seconded by Ernest Stevens III. Motion carried
unanimously.
7/9/18:
Work Meeting. Present: Clorissa Santiago, Brandon Wisneski, Brooke Doxtator. The purpose
of this work meeting was to review the BCSO’s involvement in the Sanctions and Penalties
law to ensure their role can be implemented as required by law.
7/18/18 LOC: Motion by Kirby Metoxen to accept the legislative analysis for the Sanctions and Penalties
Law and defer to a work meeting; seconded by Daniel Guzman King. Motion carried
unanimously.
8/1/18:
Work Meeting. Present: David P. Jordan, Jennifer Webster, Kirby Metoxen, Ernest Stevens
III, Jennifer Falck, Clorissa Santiago, Brandon Wisneski, Kristen Hooker. The purpose of this
work meeting was to review and consider the legislative analysis.
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8/15/18 LOC: Motion by Jennifer Webster to approve the public meeting packet and forward the Sanctions
and Penalties Law to a public meeting to be held on September 20, 2018; seconded by Kirby
Metoxen. Motion carried unanimously.
Subsequent Motion by Jennifer Webster to forward the Sanctions & Penalties Law to the
Finance Office for a fiscal analysis to be completed; seconded by Kirby Metoxen. Motion
carried unanimously.
9/10/18:
Work Meeting. Present: David P. Jordan, Ernest Stevens III, Jennifer Falck, Clorissa
Santiago, Brandon Wisneski, Kristen Hooker, Cathy Bachhuber, Maureen Perkins. The
purpose of this work meeting was to discuss the fact that the September 20, 2018 public
meeting on the proposed law will have to be canceled due to the Kalihwisaks failing to
publish the public meeting notice in the September 6, 2018, edition. The LOC determined the
next steps for moving the public meeting forward – an e-poll of an updated public meeting
notice will be completed and the appointment that was sent out changed to reflect the new
date.
E-poll conducted.
9/19/18 LOC: Motion by Daniel Guzman King to enter the e-poll results into the record; seconded by
Jennifer Webster. Motion carried unanimously.
10/4/18:
Public Meeting Held.
10/17/18 LOC: Motion by Jennifer Webster to accept the public meeting memo comments and public
meeting comment review memorandum and defer to a work meeting; seconded by Daniel
Guzman King. Motion carried unanimously.
10/17/18:
Work Meeting. Present: David P. Jordan, Jennifer Webster, Daniel Guzman, Ernest Stevens
III, Jennifer Falck, Clorissa N. Santiago, Brandon Wisneski, Kristen Hooker, Rosa Laster.
The purpose of this work meeting was for the LOC to begin reviewing and considering the
public comments that were received, and to make determinations on what revisions to the
Law are necessary.
10/25/18:
Work Meeting. Present: David P. Jordan, Jennifer Webster, Kirby Metoxen, Ernest Stevens
III, Jennifer Falck, Clorissa N. Santiago, Brandon Wisneski, Kristen Hooker. The purpose of
this work meeting was for the LOC to continue reviewing and considering the public
comments that were received, and to make determinations on what revisions to the Law are
necessary. LRO will update the draft for the next LOC packet so a fiscal analysis can be
requested.
11/7/18 LOC: Motion by Jennifer Webster to accept the public comment review memorandum and the
updated draft; seconded by Daniel Guzman King. Motion carried unanimously.
11/30/18:
Work Meeting. Present: David P. Jordan, Jennifer Webster, Kirby Metoxen, Daniel Guzman,
Clorissa N. Santiago, Brandon Wisneski. The purpose of this work meeting was to review
and approve the fiscal impact statement request memorandum to the Finance Department,
and begin discussing a plan for the completion of this item.
12/5/18 LOC: Motion by Jennifer Webster to accept the updated legislative analysis, including the
replacement of page 159 in the packet; seconded by Kirby Metoxen. Motion carried
unanimously.
Motion by Kirby Metoxen to approve the fiscal impact statement memorandum and forward
to the Finance Department directing that a fiscal impact statement of the proposed Sanctions
and Penalties law be prepared for inclusion on the January 2, 2019 Legislative Operating
Committee meeting agenda; seconded by Daniel Guzman King. Motion carried
unanimously.
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12/20/18:
Work Meeting. Present: Clorissa N. Santiago, Brandon Wisneski, Randall Cornelius. The
purpose of this work meeting was to discuss traditional ways Oneida has sanctioned its
leaders.
1/2/19:
Work Meeting. Present: Kirby Metoxen, Jennifer Webster, Ernest Stevens III, Daniel
Guzman, Jennifer Falck, Clorissa N. Santiago, Brandon Wisneski. The purpose of this work
meeting was to review the adoption packet and discuss any changes that should be made.
LRO will update all adoption materials.
Next Steps:
▪ Approve the adoption packet for the proposed Sanctions and Penalties law and forward to the
Oneida Business Committee for inclusion on the tentatively scheduled February 24, 2019,
General Tribal Council meeting agenda for General Tribal Council’s consideration of adoption.
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Oneida Nation
Oneida Business Committee
Legislative Operating Committee
ONEIDA
PO Box 365 • Oneida, WI 54155-0365
Oneida-nsn.gov
TO:
FROM:
DATE:
RE:
General Tribal Council
David P. Jordan, Legislative Operating Committee Chairperson
February 24, 2019
Sanctions and Penalties Law
Please find the following attached backup documentation for your consideration of the Sanctions
and Penalties law:
1.
2.
3.
4.
5.
6.
Resolution: Sanctions and Penalties Law
Statement of Effect: Sanctions and Penalties Law
Sanctions and Penalties Law Legislative Analysis
Sanctions and Penalties Law
Sanctions and Penalties Law Fiscal Impact Statement
Sanctions and Penalties Law PowerPoint Presentation Slides
Overview
If an elected or appointed official of the Nation engages in misconduct while in office the only
remedy available to hold the official accountable is to remove that official from his or her position.
The removal of an elected official is required to follow the process contained in the Nation's
Removal law, which includes a petition, a preliminary review and hearing by the Nation's
Judiciary, and ultimately a determination by General Tribal Council. [I 0. C. I 04]. The removal
of an appointed official is governed by the Boards, Committees, and Commissions law which
provides that the Oneida Business Committee can terminate the appointment of an official with a
two-thirds (2/3) majority vote. [I O.C. 105. 7-4].
Other than removal or termination of appointment, the Nation does not currently have a formal
process to issue warnings, reprimands, or corrective actions against elected and appointed officials.
The Legislative Operating Committee recognizes that not all instances of misconduct by an elected
or appointed official may rise to the level of removal or termination of appointment. The
Legislative Operating Committee also determined that a more effective government can be
obtained if officials are provided the opp01tunity to take accountability for their actions and correct
the behavior that resulted in misconduct, which may result in the individual becoming a better
official.
Providing an elected or appointed official the opp01tunity to correct misconduct and improve
behavior aligns with traditional Oneida ways. The Legislative Operating Committee learned
through discussions with the Cultural Heritage Department that in the past a chief would be
provided three (3) warnings in hope of improving the chiefs behavior before the chief was
dehorned or removed from his position of prominence. The focus of .the warnings before the
removal of the official was to provide an opp01tunity for corrective action to be taken that had the
potential to result in a better official before removal of that official was sought. The Legislative
Operating Committee is seeking the adoption of this Sanctions and Penalties law in an effo1t to
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provide a mechanism for utilizing con-ective actions to address the misconduct of officials and
allow an opportunity for growth and improvement before removal or termination of appointment.
Additionally, during the special election held on July 9, 2016, a referendum question which asked,
"Should the BC develop a law which provides for sanctions and due process for elected officials?"
was included on the ballot. This referendum question was approved by a vote of one hundred and
seventy-eight (178) to fifty-nine (59). This positive referendum further demonstrates the Nation's
desire to develop a process to address misconduct of officials prior to seeking removal or
termination of appointment.
This resolution adopts the proposed Sanctions and Penalties law which 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 oppmtunity 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, which is defined as:
• a violation of the Constitution or any of the Nation's laws, policies, or rules;
• a violation of the bylaws, standard operating procedures or other internal operating
documents that govern the entity upon which the official serves;
• 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
• any other activity that is incompatible with the high moral and ethical standards
that are expected of the Nation's officials [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 0. C. 120.5-3];
• Prohibit retaliation against any individual who makes a complaint, is a witness to a
complaint, or offers testimony or evidence [1 O.C. 120.5-5];
• Require all complaints alleged against an elected or appointed official to be handled in a
confidential manner [1 0. 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
discretion of the Oneida Business Committee, through a process which includes:
• The oppo1tunity for mediation between the complainant and the official [1 0. C.
120.6-3];
• The opportunity for the official to provide an answer to the complaint [1 0. 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 pa1ticipate in any po1tion of the complaint
process [1 0. C. 120. 6-5];
• An initial review by the Oneida Business Committee to determine whether or not
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the allegation made within the complaint has merit [1 0. 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 [I 0. 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[] 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 0. C. 120. 6-11, 120. 7-4];
Provide various sanctions and penalties that may be imposed against an elected or
appointed official [I 0. C. 120.8-2};
Provide factors to be used by the Oneida Business Committee and the Trial Court when
determining the appropriate sanctions and/or penalties to impose [1 O.C. 120.8-3] ;
Clarify that the imposition of sanctions 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 0. C. 120.8-5};
Discuss the effect of a resignation by an elected or appointed official [1 0. C. 120.9}; and
Require that the Business Committee Supp01i Office maintain a record of conduct in office
for each elected or appointed official [1 0. C. 120.1OJ.
The Legislative Operating Committee developed the proposed Sanctions and Penalties law through
the review of various laws of the Nation, in addition to the laws of seven (7) other tribal nations.
The Business Committee Supp01i Office, Records Management Depaiiment, Human Resources
Depa1iment, Cultural Heritage Depaiiment, and various boards, committees, and commissions of
the Nation were consulted in the development of this law. Additionally, the Legislative Operating
Committee held a community meeting on May 3, 2018, to gather input, ideas, and concerns from
members of the community. Sixteen (16) people attended this community meeting and participated
in the development of this law.
In accordance with the Legislative Procedures Act, 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. Any changes made based on those comments have been incorporated
into this draft. Additional information regarding the comments received during the public comment
period and the Legislative Operating Committee' s consideration of those comments can be found
at https ://oneida-nsn. gov/ government/register/public-meetings/.
Requested Action
Adopt the Resolution: Sanctions and Penalties Law.
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ONEIDA
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Oneida Nation
Post Office Box 365
Phone: (920)869-2214
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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
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GTC Resolution # _______
Sanctions and Penalties Law
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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.
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Oneida Nation
Oneida Business Committee
Legislative Operating Committee
PO Box 365 • Oneida, WI 54155-0365
Oneida-nsn.gov
~
ONEIDA
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
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▪
▪
▪
▪
▪
▪
▪
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.
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Analysis to Draft 4
2019 01 07
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
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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.
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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
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*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:
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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.
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SECTION 4. PROCESS
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SECTION 5. CONTENTS OF THE LEGISLATION .
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.
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.
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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.
‐ 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
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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.
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Chart 3. Complaint Process Against Appointed Officials: Receipt and Initial Review of
Complaint.
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
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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
BC conducts
investigatory
hearing during
executive session
After the hearing,
BC deliberates in
executive session
In open session,
OBC votes on
whether misconduct
occurred
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OBC issues written
decision within
business 10 days
Complaint
Dismissed.
OBC issues written
decision within 10
business days
Yes, Official Engaged
in Misconduct
OBC selects
appropriate
sanctions or
penalties by
majority vote
No, Official did not
Engage in Misconduct
Official may appeal
to Court of Appeals
within 30 days
Individual who filed
complaint may
appeal to Court of
Appeals within 30
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.
‐ 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].
‐ 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.
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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.
‐ 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.
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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
Verbal Reprimand
Public Apology
Written Reprimand
Suspension
Restitution
Fines
Loss of Stipend
Mandatory Training
Termination of Appointment
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.
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.
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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
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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).]
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SECTION 6. EFFECT ON EXISTING LEGISLATION
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SECTION 7. EFFECTS ON EXISTING RIGHTS, PRIVILEGES, OR OBLIGATIONS
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SECTION 8. ENFORCEMENT AND ACCOUNTABILITY
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SECTION 9. OTHER CONSIDERATIONS
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.
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.
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.
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
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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
Judiciary
President
Rosebud Sioux
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Ethics Commission,
Ethics Commission,
Tribal Council*
appointed by Tribal
appointed by Tribal
Council*
Council*
Chairman
Ethics Officer,
Skokomish
Ethics Officer,
appointed by Tribal
appointed by Tribal
Council*
Council*
*Note that “Tribal Council” refers to an elected body similar to the Oneida Business Committee.
E. Create a Standard Complaint Form. The BC Support Office and Judiciary may want to consider
drafting standard complaint forms to provide to individuals who wish to file a complaint against
officials under this law. This form could include the information required under 120.5-3, instructions,
and clearly state where complaints against elected officials or appointed officials must be filed. The
Nation’ Trial Court has a standard civil complaint packet which could be used as an example.
F. Complaints against Judiciary. The Judiciary Law already contains a process for reprimand,
suspension and removal of judges [see Judiciary Law 8 O.C. 801.12]. Therefore, the Judiciary is not
included in this law.
G. 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.
H. 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 [see 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 [see 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
120.1.
120.2.
120.3.
120.4.
120.5.
120.6.
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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.
(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.
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.
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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) “Business Committee Support Office” means the office that provides administrative
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;
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(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 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.
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.
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(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.
(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
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.
(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.
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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);
(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.
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(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
(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.
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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;
or
(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;
(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 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
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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 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;
(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.
(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
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(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;
(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.
120.8-4. 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;
(c) criminal prosecution, for misconduct that also violates applicable criminal law;
(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
(c) removal in accordance with the Nation’s laws and policies governing removal, if the
official was elected to his or her position.
1. O.C. 120 – Page 9
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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;
(c) the outcome of the complaint, and
(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
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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
I.
Estimated Fiscal Impact Summary
Law: Sanctions and Penalties Law
Implementing Agency
Estimated time to comply
Estimated Impact
Total Estimated Fiscal Impact
II.
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Oneida Business Committee
Business Committee Support Office
Oneida Judiciary
In compliance with the Legislative Procedure Act
Current Fiscal Year
Ten Year Estimate
None
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;
A.
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.
B.
The Law applies to all elected or appointed Boards, Committees, and
Commissions.
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C.
This law does not apply to members of the Judiciary or corporate entities of the
Nation.
D.
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.
E.
Complaint Process and Requirements
1.
Individuals must be over 18 years old to file a complaint.
2.
Allegations must have occurred within the last 90 days.
a)
The Law outlines the requirement for the content of the complaint
and where to file
3.
Prohibits retaliation
4.
Allows for an attorney or advocate
5.
Is held confidential until/unless a final determination and sanctions and/or
penalties are imposed.
6.
The process differentiates complaints against appointed official’s vs
elected officials.
F.
Complaints against appointed officials
The complaint process is conducted through the Oneida Business
1.
Committee and includes the following:
a)
b)
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:
2
A good mind. A good heart. A strong fire.
~
ONEIDA
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c)
(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.
G.
Complaints against elected officials
Complaints are filed with the Trial Court pursuant to the Nations Rules of
1.
Civil Procedures.
2.
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
3.
Support Office.
H.
Sanctions and Penalties may include the following:
1.
Verbal reprimand.
2.
Public apology.
3.
Written reprimand.
4.
Suspension.
5.
Restitution.
3
A good mind. A good heart. A strong fire.
~
ONEIDA
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6.
Fines not to exceed two thousand five hundred dollars ($2,500) per act of
misconduct.
7.
Loss of stipend.
8.
Mandatory participation in training.
9.
Termination of appointment.
10.
Removal.
I.
The Law contains the factors to be used in determining appropriate Sanctions
and/or Penalty as the following:
1.
the seriousness or severity of the misconduct;
2.
whether the conduct was intentional or not;
3.
the likelihood of repetition;
4.
the extent of probable damage to the finances or reputation of the Nation,
the complainant, the entity, or to any other person or organization;
5.
whether the official or his or her family personally profited, financially or
otherwise, from the prohibited conduct;
6.
the official’s remorse, or
the official’s willingness and ability to take steps to mitigate the harm
7.
caused by the violation, and
8.
any prior complaints filed, including any previous sanctions and penalties
imposed upon the official while serving on an entity.
J.
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:
1.
removal in accordance with the Nation’s laws and/or policies governing
removal;
2.
termination of appointment by the Oneida Business Committee;
3.
law;
criminal prosecution, for misconduct that also violates applicable criminal
4.
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.
K.
Non-compliance may result in the following;
1.
Additional sanctions and/or penalties.
4
A good mind. A good heart. A strong fire.
~
ONEIDA
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2.
Termination of appointment.
3.
Removal in accordance with the Nation’s laws.
L.
Resignation does not impact the process or exempt individuals from sanctions and
penalties.
M.
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.
5
A good mind. A good heart. A strong fire.
~
ONEIDA
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Sanctions and
Penalties Law
Presentation to GTC by
Legislative Operating Committee
February 24, 2019
Why Sanctions & Penalties?
• If an official of the Nation engages in misconduct in
office, there are few remedies to hold that official
accountable.
• Removal Law (if elected)
• Termination of Appointment (if appointed)
• Not all violations rise to level of removal or
termination.
• The Nation currently has no formal process to issue
warnings, reprimands, or corrective actions against
elected and appointed officials.
• Increased accountability and opportunity to correct
behavior and become a better official.
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Cultural Background
• Great Law of Peace.
• Chief receives up to three warnings from
Clan Mother.
• Try to steer leader on the right path.
• Opportunity to correct actions.
• After three warnings, the chief is
dehorned, or removed.
• Goal is not to shame but to move
forward in a good way.
Current Landscape
• Most governments (tribal, local, state and
federal) have some sort of sanctions
process.
• Sanctions for officials discussed by GTC,
previous Business Committees, and
community as far back as 1998.
• 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?”
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Development
• Research
• Work Meetings
• Meetings w/Boards, Committees and
Commissions
• Public Outreach
• Community Potluck Meeting
• Public Meeting
What is Misconduct?
• Violating the Oneida Constitution or any law, policy
or rule of the Nation;
• For example, the Code of Ethics or Conflict of
Interest Law
• Violating the bylaws or standard operating
procedures of the entity the official serves on;
• Being convicted of a felony under federal or
Wisconsin law;
• Any other activity that does not uphold the moral
and ethical standards expected of the Nation’s
officials.
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Who Can be Sanctioned?
• Elected Officials of the Nation.
• Including members of the Oneida Business
Committee.
• Appointed Officials of the Nation.
• This law does not apply to:
• Corporate entities of the Nation.
• Judges of the Oneida Nation Judiciary.
• Complaint Process for Judges located in
Judiciary Law.
Elected Officials
• Oneida Business Committee
• Oneida Election Board
• Oneida Gaming Commission
• Oneida Land Commission
• Oneida Land Claims Commission
• Oneida Nation Commission on Aging (ONCOA)
• Oneida Nation School Board
• Oneida Trust Enrollment Committee
• GTC Legal Resource Center Attorney and
Advocates
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Appointed Officials
• Anna John Resident Centered Care Community Board
• Audit Committee (1 community member seat)
• Environmental Resource Board (ERB)
• Finance Committee (1 community member seat)
• Oneida Community Library Board
• Oneida Nation Arts Board
• Oneida Personnel Commission
• Oneida Police Commission
• Oneida Pow Wow Committee
• Oneida Nation Veterans Affairs Committee (ONVAC)
• Pardon and Screening Forgiveness Committee
• Southeastern WI Oneida Tribal Services Advisory Boards (SEOTS)
• Oneida Youth Leadership Institute Board of Directors
Filing a Complaint
• Who Can File: Anyone 18 years and older who,
in good faith, has knowledge or reason to believe
that an official has committed misconduct may
file a written complaint.
• When To File: Within 90 days of when the
alleged misconduct occurred or was discovered
to have occurred.
• Where to File:
• Elected Officials – Judiciary Trial Court.
• Appointed Officials – BC Support Office.
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Filing a Complaint
Complaints Against
APPOINTED Officials
Complaints against
ELECTED Officials
File Complaint with
BC Support Office
File Complaint with
Judiciary
Business Committee
reviews complaint
Judiciary Trial Court
reviews complaint
Complaint Process:
Elected Officials
• Complaint filed with the Nation’s Judiciary Trial Court.
• Case proceeds according to Judiciary Rules of Civil
Procedure:
• Official files answer to the complaint.
• Court may order pre‐trial meeting and/or discovery.
• Court holds a hearing.
• Court issues judgment.
• If Trial Court finds official committed misconduct, the
Trial Court selects appropriate sanction or penalty.
• Either party may appeal decision to Judiciary Court of
Appeals.
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Complaint Process:
Appointed Officials
• Complaint filed with BC Support Office.
• Complaint forwarded to BC Members and the Official.
• Official submits written response to complaint.
• BC performs initial review to determine if complaint has
merit. If complaint has merit, BC schedules a hearing.
• BC holds investigatory hearing during executive session.
After the hearing, BC deliberates.
• In open session, BC votes on whether misconduct occurred
and selects appropriate sanction or penalty by majority
vote.
• Either party may appeal decision to Judiciary Court of
Appeals
List of Sanctions & Penalties
• Verbal Reprimand
• Public Apology
• Written Reprimand
• Suspension
• Restitution
• Fines
• Loss of Stipend
• Mandatory Training
• Termination of Appointment
• Removal, in Accordance with Removal Law
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Additional Consequences
• Nothing in this law exempts an official from
individual liability or penalties imposed in
accordance with other laws.
• For example, officials who commit misconduct may
be subject to other consequences, including but not
limited to:
• Criminal Prosecution, for misconduct that violates
applicable criminal law.
• Civil Liability, in accordance with applicable law.
• Penalties for specific misconduct as authorized by
any other law of the Nation.
How is Penalty Selected?
• When imposing a sanction or penalty, the OBC or
Judiciary may consider the following:
• 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, 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.
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Protecting Due Process
• Officials accused of misconduct have the right to
be represented by an attorney or advocate.
• Officials have the right to submit a written
response to complaints against them, 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.
• Appeals to Judiciary Court of Appeals
Requested Action
Motion to adopt the Sanction and
Penalties Law Resolution
Yaw^ko
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.