# Phone: (920)869-2214 (2017) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/tribal%3Aoneida_nation%3Ad63ae3cf99e6df18 ## Record - **Collection:** Tribal code - **Document type:** Tribal code ## Text Oneida Nation Post Office Box 365 Oneida, WI 54155 Phone: (920)869-2214 BC Meeting Materials April 12, 2017 Open Session CERTIFICATION I, the undersigned, as Secretary of the Oneida Business Committee, hereby certify that the following 306 pages are the Open Session meeting materials presented at a meeting duly called, noticed and held on the 12th day of April, 2017. ____________________________ Lisa Summers, Tribal Secretary Oneida Business Committee Open Packet Page 1 of 306 Oneida Business Committee Executive Session 8:30 a.m. Tuesday, April 11, 2017 Executive Conference Room, 2nd floor, Norbert Hill Center Regular Meeting 8:30 a.m. Wednesday, April 12, 2017 BC Conference Room, 2nd floor, Norbert Hill Center Agenda To get a copy of the agenda, go to: oneida-nsn.gov/government/business-committee/agendas-packets/ I. CALL TO ORDER AND ROLL CALL II. OPENING III. ADOPT THE AGENDA pp. 1-6 IV. OATHS OF OFFICE A. Environmental Resources Board – Marlene Garvey pp. 7-8 B. Oneida Nation Veterans Affairs Committee – Arthur Cornelius pp. 9-10 V. MINUTES A. Approve March 22, 2017, regular meeting minutes Sponsor: pp. 11-24 Lisa Summers, Tribal Secretary VI. RESOLUTIONS A. Adopt resolution entitled Implementing Per Capita Plan Adopted by General Tribal Council on June 13, 2016 Sponsor: Trish King, Tribal Treasurer pp. 25-28 B. Adopt resolution entitled Extending the Effective Date of the Community Support Fund Law Sponsor: pp. 29-32 Brandon Stevens, Councilman/Legislative Operating Committee Chair C. Adopt resolution entitled Conflict of Interest Emergency Amendments Sponsor: Brandon Stevens, Councilman/Legislative Operating Committee Chair Oneida Business Committee Regular Meeting Agenda of April 12, 2017 Page 1 of 6 p. 33 Open Packet Page 2 of 306 D. Adopt resolution entitled Drug and Alcohol Free Workplace Law Amendments Sponsor: pp. 34-64 Brandon Stevens, Councilman/Legislative Operating Committee Chair E. Adopt resolution entitled Endowments Law Amendments Sponsor: pp. 65-84 Brandon Stevens, Councilman/Legislative Operating Committee Chair VII. STANDING COMMITTEES A. Legislative Operating Committee Chair: Brandon Stevens, Councilman 1. Accept March 15, 2017, Legislative Operating Committee meeting minutes pp. 85-87 2. Request Oneida Personnel Commission to submit input regarding Employment Law pp. 88-89 3. Review Landlord-Tenant Rule # 2: Income Based Rental Program; Landlord-Tenant Rule # 3: Elder Rental Program; and Eviction & Termination Rule # 1: Disposal of Abandoned Personal Property pp. 90-182 B. Finance Committee Chair: Trish King, Tribal Treasurer 1. Approve April 3, 2017, Finance Committee meeting minutes pp. 183-189 VIII. APPOINTMENTS A. Approve recommendation to appoint Beverly Anderson, Dale Powless, and Carmelita Escamea to Oneida Child Protection Board Sponsor: Tina Danforth, Tribal Chairwoman pp. 190-191 IX. STANDING ITEMS A. Accept quarterly report regarding work plan for Cemetery Improvements Project # 14-002 pp. 192-196 Sponsor: James Petitjean, Interim Assistant Division Director/Development-Development B. Approve Constitutional Amendments Implementation Team close-out report; and four (4) additional requested actions Sponsor: Melinda J. Danforth, Tribal Vice-Chairwoman pp. 197-211 X. UNFINISHED BUSINESS A. Reconsider, review, and hear testimony from Kory Wesaw regarding application to Oneida Police Commission Sponsor: Tina Danforth, Tribal Chairwoman EXCERPT FROM FEBRUARY 8, 2017: (1) Motion by Jennifer Webster to approve the recommendation to appoint Kory Wesaw to the Oneida Police Commission, seconded by David Jordan. Motion fails due to lack of support. (2) Motion by Melinda J. Danforth to request Chairwoman Tina Danforth to reconsider the other applicants in the pool in accordance with the Comprehensive Policy Governing Boards, Committees, and Commissions, seconded by Brandon Stevens. Motion carried unanimously. Oneida Business Committee Regular Meeting Agenda of April 12, 2017 Page 2 of 6 pp. 212-213 Open Packet Page 3 of 306 XI. NEW BUSINESS A. Approve activation of $250,000 from FY 2017 CIP budget for CIP # 14-012 Oneida Farms Barn & Manure Pit Sponsor: James Petitjean, Interim Assistant Division Director/Development-Development pp. 214-217 B. Approve activation of $393,000 from FY 2017 CIP budget for CIP # 15-003 Norbert Hill Center Remodeling-Phase VIII Sponsor: James Petitjean, Interim Assistant Division Director/Development-Development pp. 218-221 C. Approve update regarding Noncompliance: Organizational Conflicts of Interest Finding in Final Monitoring Report Letter from U.S. Dept. of Housing & Urban Development (This item corresponds with item VI.C. of the agenda) Sponsor: Tina Danforth, Tribal Chairwoman pp. 222-229 D. Reconsider request to approve reorganization of five (5) Elder Services positions to Comprehensive Health Division Sponsor: George Skenandore, Division Director/Governmental Services pp. 230-242 E. Enter E-Poll results into the record in accordance with BC SOP Conducting Electronic Voting: Sponsor: Lisa Summers, Tribal Secretary 1. Failed request for reorganization of five (5) Elder Services positions to Comprehensive Health Division Sponsor: George Skenandore, Division Director/Governmental Services pp. 243-252 XII. TRAVEL A. TRAVEL REPORTS 1. Accept travel report – Councilwoman Fawn Billie – Tribal Action Plan Development Workshop – Columbia, SC – January 25-27, 2017 pp. 253-255 2. Accept travel report – Secretary Lisa Summers – National Congress of American Indians (NCAI) Executive Council Winter Session – Washington D.C. – February 14-16, 2017 pp. 256-258 3. Accept travel report – Secretary Lisa Summers – PL280 Subcommittee, Tribal Caucus, and Intertribal Criminal Justice Council meeting – Hayward, WI – March 22-24, 2017 pp. 259-260 B. TRAVEL REQUESTS 1. Approve travel request – Secretary Lisa Summers – State-Tribal Consultation with WI Department of Corrections – Hayward, WI – May 8-9, 2017 Oneida Business Committee Regular Meeting Agenda of April 12, 2017 Page 3 of 6 pp. 261-262 Open Packet Page 4 of 306 XIII. GENERAL TRIBAL COUNCIL (To obtain a copy of Members Only materials, visit the BC Support Office, 2nd floor, Norbert Hill Center and present Tribal I.D. card or go to https://goo.gl/uLp2jE) A. Petitioner Sherrole Benton: Request to change pre-employment drug testing for marijuana EXCERPT FROM MARCH 22, 2017: (1) Motion by David Jordan to accept the legislative analysis, seconded by Tehassi Hill. Motion carried unanimously. (2) Motion by Tehassi Hill to defer the legal analysis to the April 12, 2017, regular Business Committee meeting, seconded by Lisa Summers. Motion carried unanimously. (3) Motion by David Jordan to defer the financial analysis to the April 12, 2017, regular Business Committee meeting, seconded by Tehassi Hill. Motion carried unanimously. EXCERPT FROM MARCH 8, 2017: (1) Motion by Brandon Stevens to accept the progress report regarding legislative analysis, seconded by Tehassi Hill. Motion carried unanimously. (2) Motion by Jennifer Webster to accept the progress report regarding the legal analysis, seconded by Fawn Billie. Motion carried unanimously. (3) Motion by Jennifer Webster to accept the progress report regarding the financial analysis, seconded by Brandon Stevens. Motion carried unanimously. EXCERPT FROM JANUARY 11, 2017: (1) Motion by Lisa Summers to accept the verified petition from Sherrole Benton regarding a request to change pre-employment drug testing for marijuana use; to send the verified petition to the Law, Finance, Legislative Reference, and Direct Report Offices for the legal, financial, legislative, and administrative analyses to be completed; and to direct the Law, Finance, and Legislative Reference Offices to submit their analyses to the Tribal Secretary’s Office within sixty (60) days, and that a progress report be submitted in forty-five (45) days, seconded by Fawn Billie. Motion carried unanimously. 1. Accept legal analysis Sponsor: 2. Defer financial analysis to April 26, 2017, regular Business Committee meeting Sponsor: pp. 281-282 Larry Barton, Chief Financial Officer B. Approve May 16, 2017, reconvened special GTC meeting mail-out notice Sponsor: pp. 263-280 Jo Anne House, Chief Counsel pp. 283-288 Lisa Summers, Tribal Secretary C. Enter E-Poll results into the record In accordance with BC SOP Conducting Electronic Voting: Sponsor: Lisa Summers, Tribal Secretary 1. Approved request to schedule special GTC meeting on Tuesday, May 16, 2017, at 6:00 p.m. as directed at the March 19, 2017, special GTC meeting Requestor: Lisa Summers, Tribal Secretary pp. 289-297 2. Approved request to reschedule April 7, 2017, reconvened Annual GTC meeting to Sunday, April 23, 2017, at 1:00 p.m., due to identified safety concerns Requestor: Lisa Summers, Tribal Secretary Oneida Business Committee Regular Meeting Agenda of April 12, 2017 Page 4 of 6 pp. 298-306 Open Packet Page 5 of 306 XIV. EXECUTIVE SESSION (Please Note: Scheduled times are approximate and subject to change) A. REPORTS 1. Accept Chief Counsel report – Jo Anne House, Chief Counsel p. 307 a. Approve limited waiver of sovereign immunity – LexisNexis-Time Matters Annual Maintenance Agreement – contract # 2017-0280 pp. 308-316 b. Approve attorney engagement letters pp. 317-349 2. Accept Chief Financial Officer report – Larry Barton, Chief Financial Officer pp. 350-364 3. Accept Intergovernmental Affairs & Communications report – Nathan King, Director pp. 365-375 B. STANDING ITEMS 1. Land Claims Strategy (No Requested Action) C. AUDIT COMMITTEE Chair: Tehassi Hill, Councilman 1. Accept February 9, 2017, Audit Committee meeting minutes pp. 376-379 2. Accept Oneida Police Department Performance Assurance audit and lift confidentiality requirement to allow Tribal Members to view the audit pp. 380-388 D. TABLED BUSINESS 1. Adopt resolution entitled Resolution to Adopt the Second Amendment to the Public Safety Officer Pension Plan Sponsor: Larry Barton, Chief Financial Officer pp. 389-400 EXCERPT FROM MARCH 22, 2017: Motion by David Jordan to table this item until the end of the agenda, seconded by Tehassi Hill. Motion carried unanimously. E. UNFINISHED BUSINESS 1. Approve limited waiver of sovereign immunity – Independent Care Health Plan-iCare Provider Service Agreement – contract # 2016-0357 Sponsor: Debra Danforth, Division Director/Comprehensive Health Operations pp. 401-443 EXCERPT FROM MARCH 22, 2017: Motion by Lisa Summers to defer this item to the April 12, 2017, regular Business Committee meeting to request clarification on approval, seconded by David Jordan. Motion carried unanimously. F. NEW BUSINESS 1. Approve limited waiver of sovereign immunity – Wells Fargo Merchant ServicesMerchant Processing Application – contract # 2017-0244 Sponsor: Larry Barton, Chief Financial Officer Oneida Business Committee Regular Meeting Agenda of April 12, 2017 Page 5 of 6 pp. 444-523 Open Packet Page 6 of 306 2. Adopt resolution entitled Adoption of Second Amendment and the Amended and Restated Credit Note of the Oneida Nation Sponsor: Larry Barton, Chief Financial Officer 3. Review complaint # 2017-DR16-01 pp. 524-533 pp. 534-537 Sponsor: Lisa Summers, Tribal Secretary 4. Review request regarding wage adjustment procedures (This item is scheduled to begin at 11:00 a.m.) Sponsor: Lisa Summers, Tribal Secretary 5. Review request regarding wage adjustment plan for FY 2018 budget planning pp. 538-539 pp. 540-541 Sponsor: Trish King, Tribal Treasurer 6. Accept information regarding Electrical Department (This item is scheduled to begin at 1:30 p.m.) Sponsor: Tina Danforth, Tribal Chairwoman pp. 542-594 7. Discuss and set performance expectations for Direct Report – DR06 (This item is scheduled to begin at 2:30 p.m.) Sponsor: Lisa Summers, Tribal Secretary pp. 595-599 8. Enter E-Poll results into the record In accordance with BC SOP Conducting Electronic Voting: Sponsor: Lisa Summers, Tribal Secretary a. Approved request of two (2) actions regarding Limited Term Employee Agreement pp. 600-617 Requestor: Lisa Summers, Tribal Secretary b. Adoption of resolution 04-03-17-A Adoption of the Second Amendment to the Public Safety Officer Pension Plan Requestors: Larry Barton, Chief Financial Officer; Jo Anne House, Chief Counsel pp. 618-625 XV. ADJOURN Posted on the Oneida Nation’s official website, www.oneida-nsn.gov, at 2:45 p.m., Friday, April 7, 2017, pursuant to the Open Records and Open Meetings Law, section 7.17-1. The meeting packet of the open session materials for this meeting is available by going to the Oneida Nation’s official website at: https://oneida-nsn.gov/government/business-committee/agendas-packets/ For information about this meeting, please call the Business Committee Support Office at (920) 869-4364 or (800) 2362214. Oneida Business Committee Regular Meeting Agenda of April 12, 2017 Page 6 of 6 Open Packet Page 7 of 306 Oneida Business Committee Agenda Request 1. Meeting Date Requested: 04 / 12 / 17 2. General Information: Session: Open Agenda Header: Executive - See instructions for the applicable laws, then choose one: Oaths of Office Accept as Information only Action - please describe: Administer Oath of Office to Marlene Garvey to the Environmental Resource Board 3. Supporting Materials Report Resolution Contract Other: 1. 3. 2. 4. Business Committee signature required 4. Budget Information Budgeted - Tribal Contribution Budgeted - Grant Funded 5. Submission Authorized Sponsor / Liaison: Lisa Summers, Tribal Secretary Primary Requestor/Submitter: Kathleen M. Metoxen, Executive Tribal Clerk Your Name, Title / Dept. or Tribal Member Additional Requestor: Name, Title / Dept. Additional Requestor: Name, Title / Dept. Page 1 of 2 Unbudgeted Open Packet Page 8 of 306 Oneida Business Committee Agenda Request 6. Cover Memo: Describe the purpose, background/history, and action requested: The posting was in the February 2, 2017 issue of the Kalihwisaks for (1) of vacancy on the Environmental Resource Board for a (3) year term with the deadline of March 3, 2017. There was (1) applicant for the (1) vacancy on the Environmental Resource Board. The appointment was made on the March 22, 2017 BC Agenda. 1) Save a copy of this form for your records. 2) Print this form as a *.pdf OR print and scan this form in as *.pdf. 3) E-mail this form and all supporting materials in a SINGLE *.pdf file to: BC_Agenda_Requests@oneidanation.org Page 2 of 2 Open Packet Page 9 of 306 Oneida Business Committee Agenda Request 1. Meeting Date Requested: 04 / 12 / 17 2. General Information: Session: Open Agenda Header: Executive - See instructions for the applicable laws, then choose one: Oaths of Office Accept as Information only Action - please describe: Administer Oath of Office to Arthur Cornelius to the Oneida Nation Veterans Affairs Committee 3. Supporting Materials Report Resolution Contract Other: 1. 3. 2. 4. Business Committee signature required 4. Budget Information Budgeted - Tribal Contribution Budgeted - Grant Funded 5. Submission Authorized Sponsor / Liaison: Lisa Summers, Tribal Secretary Primary Requestor/Submitter: Kathleen M. Metoxen, Executive Tribal Clerk Your Name, Title / Dept. or Tribal Member Additional Requestor: Name, Title / Dept. Additional Requestor: Name, Title / Dept. Page 1 of 2 Unbudgeted Open Packet Page 10 of 306 Oneida Business Committee Agenda Request 6. Cover Memo: Describe the purpose, background/history, and action requested: The posting was in the January 19, 2017 issue of the Kalihwisaks for (1) of vacancy on the Oneida Nation Veterans Affairs Committee for a (3) year term with the deadline of February 17, 2017. There were (2) applicants for the (1) vacancy on the Oneida Nation Veterans Affairs Committee. The appointment was made on the March 22, 2017 BC Agenda. 1) Save a copy of this form for your records. 2) Print this form as a *.pdf OR print and scan this form in as *.pdf. 3) E-mail this form and all supporting materials in a SINGLE *.pdf file to: BC_Agenda_Requests@oneidanation.org Page 2 of 2 Open Packet Page 11 of 306 Oneida Business Committee Agenda Request 1. Meeting Date Requested: 03 / 22 / 17 2. General Information: Session: Open Agenda Header: Executive - See instructions for the applicable laws, then choose one: Minutes Accept as Information only Action - please describe: Approve March 22, 2017, regular meeting minutes 3. Supporting Materials Report Resolution Contract Other: 1. March 22, 2017, regular meeting minutes 3. 2. 4. Business Committee signature required 4. Budget Information Budgeted - Tribal Contribution Budgeted - Grant Funded Unbudgeted 5. Submission Authorized Sponsor / Liaison: Lisa Summers, Tribal Secretary Primary Requestor/Submitter: Submitted by: Heather Heuer, Info. Mgmt. Spec./BC Support Office Your Name, Title / Dept. or Tribal Member Additional Requestor: Name, Title / Dept. Additional Requestor: Name, Title / Dept. Page 1 of 2 Open Packet Page 12 of 306 DRAFT Oneida Business Committee Executive Session 8:30 a.m. Tuesday, March 21, 2017 Executive Conference Room, 2nd floor, Norbert Hill Center Regular Meeting 8:30 a.m. Wednesday, March 22, 2017 BC Conference Room, 2nd floor, Norbert Hill Center Minutes - DRAFT EXECUTIVE SESSION Present: Vice-Chairwoman Melinda J. Danforth, Secretary Lisa Summers, Council members: Tehassi Hill, David Jordan (excused at 3:00 p.m.), Brandon Stevens; Not Present: Chairwoman Tina Danforth, Councilwoman Fawn Billie, Councilwoman Jennifer Webster; Arrived at: ; Others present: Louise Cornelius, Chad Fuss, Mike Debraska, Jo Anne House, Larry Barton, Tracy Williams, Debbie Danforth, Moon Hill, Kwaklit (Margaret) Ellis, Sherri Mousseau, Fred Muscavich, Artley Skenandore, Shawna Torres, Kelly McAnally, Josh Doxtator, Janice Hirth, Michele Danforth-Anderson, Troy Parr, Nathan King, Joanie Buckley, Leslie Ness; REGULAR MEETING Present: Vice-Chairwoman Melinda J. Danforth, Secretary Lisa Summers, Council members: Tehassi Hill, David Jordan, Brandon Stevens; Not Present: Chairwoman Tina Danforth, Councilwoman Fawn Billie, Councilwoman Jennifer Webster; Arrived at: Treasurer Trish King at 8:33 a.m.; Others present: Brad Graham, Bill Graham, Jo Anne House, Heather Heuer, Loretta Metoxen, Mike Debraska, John Boulanger, Kathy Metoxen, Elizabeth Somers, Rich Vanboxtel, Richard Elm, Desirae Hill, Chris Johnson, Don Miller, Joanie Buckley, Nancy Barton, Jen Falck, Dale Wheelock, Larry Barton, Cathy Metoxen, Debbie Danforth, Pat Pelky, Susan Wilson, Sharon Mousseau, Leanne Doxtator; I. CALL TO ORDER AND ROLL CALL by Vice-Chairwoman Melinda J. Danforth at 8:31 a.m. For the record: Chairwoman Tina Danforth, Councilwoman Fawn Billie, and Councilwoman Jennifer Webster are away on approved travel to attend the Midwest Alliance of Sovereign Tribes (MAST) meeting in Washington D.C. Treasurer Trish King arrives at 8:33 a.m. II. OPENING by Councilman Tehassi Hill Condolences expressed to the families of Gloria Cornelius and Vernon Ninham. Oneida Business Committee Regular Meeting Minutes DRAFT of March 22, 2017 Page 1 of 13 Open Packet Page 13 of 306 DRAFT III. ADOPT THE AGENDA (00:04:15) Motion by Lisa Summers to adopt the agenda with the following change: [Move Executive Session – New Business item XIV.D.04 Approve requested action regarding Funding Opportunity Number FY-6100-N-23 into Open Session as New Business item XI.C., seconded by David Jordan]. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster IV. OATHS OF OFFICE (00:04:56) administered by Secretary Lisa Summers A. Oneida Police Department – Daniel Jourdan B. Oneida Airport Hotel Corporation – Elizabeth Somers C. Land Claims Commission – Loretta Metoxen D. Oneida Nation Arts Board – Desirae Hill V. MINUTES (00:16:30) A. Approve March 8, 2017, regular meeting minutes Sponsor: Lisa Summers, Tribal Secretary Motion by Lisa Summers to approve March 8, 2017, regular meeting minutes with the following change: [Add the arrival time for Councilman Brandon Stevens after the opening prayer], seconded by Tehassi Hill. Motion carried with one abstention: Ayes: Tehassi Hill, Trish King, Brandon Stevens, Lisa Summers Abstained: David Jordan Not Present: Tina Danforth, Fawn Billie, Jennifer Webster VI. RESOLUTIONS A. Adopt resolution entitled EDA FY 2017 Economic Development Assistance Program Sponsor: Joanie Buckley, Division Director/Internal Services (00:18:26) Motion by Lisa Summers to adopt resolution # 03-22-17-A EDA FY 2017 Economic Development Assistance Program, seconded by David Jordan. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster B. Adopt resolution entitled Identifying Official Oneida Media Outlets (00:23:33) Sponsor: Lisa Summers, Tribal Secretary Motion by Tehassi Hill to adopt resolution # 03-22-17-B Identifying Official Oneida Media Outlets, seconded by Brandon Stevens. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster Oneida Business Committee Regular Meeting Minutes DRAFT of March 22, 2017 Page 2 of 13 Open Packet Page 14 of 306 DRAFT C. Adopt resolution entitled Repeal of Resolution BC-12-23-09-A, Oneida Housing Authority Admissions and Occupancy Policy (00:26:11) Sponsor: Dale Wheelock, Executive Director/Oneida Housing Authority Motion by Tehassi Hill to adopt resolution # 03-22-17-C Repeal of Resolution BC-12-23-09-A, Oneida Housing Authority Admissions and Occupancy Policy, seconded by Lisa Summers. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster VII. STANDING COMMITTEES A. Legislative Operating Committee Chair: Brandon Stevens, Councilman 1. Accept March 1, 2017, Legislative Operating Committee meeting minutes (00:54:18) Motion by Brandon Stevens to accept the March 1, 2017, Legislative Operating Committee meeting minutes, seconded by Tehassi Hill. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster B. Finance Committee Chair: Trish King, Tribal Treasurer 1. Approve March 13, 2017, Finance Committee meeting minutes (00:55:02) Motion by Trish King to approve the March 13, 2017, Finance Committee meeting minutes, seconded by David Jordan. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster C. Quality of Life Committee Chair: Fawn Billie, Councilwoman Councilman Tehassi Hill departs at 9:31 a.m. Councilman Tehassi Hill returns at 9:34 a.m. Councilman Tehassi Hill departs at 9:34 a.m. Councilman Tehassi Hill returns at 9:35 a.m. 1. Accept January 12, 2017, Quality of Life meeting minutes (00:55:33) Motion by Trish King to accept the January 12, 2017, Quality of Life meeting minutes, seconded by David Jordan. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster Oneida Business Committee Regular Meeting Minutes DRAFT of March 22, 2017 Page 3 of 13 Open Packet Page 15 of 306 DRAFT VIII. APPOINTMENTS A. Approve recommendation to appoint Arthur Cornelius to the Oneida Nation Veterans Affairs Committee (1:23:30) Sponsor: Tina Danforth, Tribal Chairwoman Motion by Lisa Summers to approve the recommendation to appoint Arthur Cornelius to the Oneida Nation Veterans Affairs Committee, seconded by David Jordan. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster B. Approve recommendation to appoint Marlene Garvey to the Environmental Resources Board (1:23:54) Sponsor: Tina Danforth, Tribal Chairwoman Motion by Lisa Summers to approve the recommendation to appoint Marlene Garvey to the Environmental Resources Board, seconded by Brandon Stevens. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster IX. STANDING ITEMS A. Defer Constitutional Amendments Implementation Team close-out report to April 12, 2017, regular Business Committee meeting (1:24:12) Sponsor: Melinda J. Danforth, Tribal Vice-Chairwoman EXCERPT FROM JANUARY 25, 2017: Motion by Lisa Summers to accept the Constitutional Amendments Team report; and to request the team to provide close-out report at the March 22, 2017, regular Business Committee meeting, seconded by Tehassi Hill. Motion carried unanimously. Motion by David Jordan to defer the Constitutional Amendments Implementation Team close-out report to April 12, 2017, regular Business Committee meeting, seconded by Tehassi Hill. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster X. UNFINISHED BUSINESS A. Forward topic of Economic Development and Diversification Set Aside to Community Development Planning Committee agenda; and accept memo as information (1:24:54) Sponsor: Trish King, Tribal Treasurer EXCERPT FROM JANUARY 11, 2017: Motion by Fawn Billie to direct the Treasurer to develop the SOPs for the Economic Development and Diversification Set Aside for the March 22, 2017, regular Business Committee, seconded by Jennifer Webster. Motion carried unanimously. Motion by Lisa Summers to forward this item to the Community Development Planning Committee agenda; and accept the memo as information, seconded by David Jordan. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster Oneida Business Committee Regular Meeting Minutes DRAFT of March 22, 2017 Page 4 of 13 Open Packet Page 16 of 306 DRAFT XI. NEW BUSINESS A. Approve concept paper regarding CIP # 13-011 – Oneida Nation High School (2:06:35) Sponsor: Troy Parr, Assistant Division Director/Development-Development Motion by Lisa Summers to approve the concept paper request to proceed regarding CIP # 13-011 – Oneida Nation High School, with the understanding that the request from the Business Committee is going to be that once this part of the phase is completed that General Tribal Council be able to weigh in on a firm yes or no on the project, seconded by Brandon Stevens. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster Councilman Tehassi Hill departs at 10:54 a.m. Motion by Lisa Summers to defer the topic of CIP communication and roll-up back to the Community Development Planning Committee for additional work, seconded by Trish King. Motion carried unanimously: Ayes: David Jordan, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Tehassi Hill, Trish King, Jennifer Webster Treasurer Trish King departs at 10:11 a.m. B. Review community concern # 2017-CC-04 regarding Norbert Hill Center pond (1:26:12) Sponsor: Tina Danforth, Tribal Chairwoman Motion by Lisa Summers to accept the update as information, seconded by Tehassi Hill. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Trish King, Jennifer Webster C. Approve requested action regarding Funding Opportunity Number FY-6100-N-23 Sponsor: Melinda J. Danforth, Tribal Vice-Chairwoman (1:40:10) Motion by Lisa Summers to direct the Assistant Division Directors of Development, James Petitjean and Troy Parr, and the Executive Director of Housing, Dale Wheelock to work together to identify a project for the Funding Opportunity Number FY-6100-N-23, which is the Indian Community Block Grant Fund, seconded by Tehassi Hill. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Trish King, Jennifer Webster XII. TRAVEL A. E-POLLS 1. Enter E-Polls into the record in accordance with BC SOP Conducting Electronic Voting: Sponsor: Lisa Summers, Tribal Secretary a. Approved travel request – Secretary Lisa Summers – PL280 Subcommittee, Tribal Caucus, and Intertribal Criminal Justice Council meeting – Hayward, WI – March 22-24, 2017 (1:41:43) Requestor: Lisa Summers, Tribal Secretary Oneida Business Committee Regular Meeting Minutes DRAFT of March 22, 2017 Page 5 of 13 Open Packet Page 17 of 306 DRAFT Motion by Brandon Stevens to enter the E-Poll results into the record for the approved travel request – Secretary Lisa Summers – PL280 Subcommittee, Tribal Caucus, and Intertribal Criminal Justice Council meeting – Hayward, WI – March 22-24, 2017, seconded by Tehassi Hill. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Trish King, Jennifer Webster b. Approved travel request – Councilwoman Fawn Billie – Association of Community Tribal Schools, Inc. meeting – Washington D.C. – April 2-5, 2017 (1:42:44) Requestor: Fawn Billie, Councilwoman Motion by David Jordan to enter the E-Poll results into the record for the approved travel request – Councilwoman Fawn Billie – Association of Community Tribal Schools, Inc. meeting – Washington D.C. – April 2-5, 2017, seconded by Brandon Stevens. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Trish King, Jennifer Webster XIII. GENERAL TRIBAL COUNCIL (To obtain a copy of Members Only materials, visit the BC Support Office, 2nd floor, Norbert Hill Center and present Tribal I.D. card or go to https://goo.gl/uLp2jE) A. Petitioner Sherrole Benton: Request to change pre-employment drug testing for marijuana EXCERPT FROM MARCH 8, 2017: (1) Motion by Brandon Stevens to accept the progress report regarding legislative analysis, seconded by Tehassi Hill. Motion carried unanimously. (2) Motion by Jennifer Webster to accept the progress report regarding the legal analysis, seconded by Fawn Billie. Motion carried unanimously. (3) Motion by Jennifer Webster to accept the progress report regarding the financial analysis, seconded by Brandon Stevens. Motion carried unanimously. EXCERPT FROM JANUARY 11, 2017: (1) Motion by Lisa Summers to accept the verified petition from Sherrole Benton regarding a request to change pre-employment drug testing for marijuana use; to send the verified petition to the Law, Finance, Legislative Reference, and Direct Report Offices for the legal, financial, legislative, and administrative analyses to be completed; and to direct the Law, Finance, and Legislative Reference Offices to submit their analyses to the Tribal Secretary’s Office within sixty (60) days, and that a progress report be submitted in forty-five (45) days, seconded by Fawn Billie. Motion carried unanimously. Treasurer Trish King returns at 10:15 a.m. 1. Accept legislative analysis (1:43:34) Sponsor: Brandon Stevens, Councilman/Legislative Operating Committee Chair Motion by David Jordan to accept the legislative analysis, seconded by Tehassi Hill. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster 2. Accept legal analysis (1:44:16) Sponsor: Jo Anne House, Chief Counsel Motion by Tehassi Hill to defer the legal analysis to the April 12, 2017, regular Business Committee meeting, seconded by Lisa Summers. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster Oneida Business Committee Regular Meeting Minutes DRAFT of March 22, 2017 Page 6 of 13 Open Packet Page 18 of 306 DRAFT 3. Accept financial analysis (Not Submitted) (1:45:05) Sponsor: Larry Barton, Chief Financial Officer Motion by David Jordan to defer the financial analysis to the April 12, 2017, regular Business Committee meeting, seconded by Tehassi Hill. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster B. Review request regarding status of Health Care Board petition (1:45:27) Sponsor: Tina Danforth, Tribal Chairwoman Motion by David Jordan to accept the request as information, seconded by Brandon Stevens. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster XIV. EXECUTIVE SESSION Councilman Tehassi Hill returns at 10:58 a.m. Councilman David Jordan departs at 11:01 a.m. Motion by Lisa Summers to go into executive session at 11:01 a.m., seconded by Tehassi Hill. Motion carried unanimously: (2:30:07) Ayes: Tehassi Hill, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, David Jordan, Jennifer Webster Councilman David Jordan returns at 11:05 a.m. Meeting recessed at 12:00 p.m. until 1:45 p.m. Motion by Lisa Summers to come out of executive session at 3:49 p.m., seconded by Brandon Stevens. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster A. REPORTS 1. Accept Gaming General Manager report – Louise Cornelius, Gaming General Manager (1:53:00) Motion by Lisa Summers to accept the Gaming General Manager report, seconded by David Jordan. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster Motion by Lisa Summers to direct the Gaming team and the Community Development Planning Committee to have a follow-up work meeting on economic development and long-term site planning, seconded by David Jordan. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster Oneida Business Committee Regular Meeting Minutes DRAFT of March 22, 2017 Page 7 of 13 Open Packet Page 19 of 306 DRAFT 2. Accept Intergovernmental Affairs & Communications report – Nathan King, Director (1:53:50) Motion by Tehassi Hill to accept the Intergovernmental Affairs & Communications report, seconded by David Jordan. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster Motion by Lisa Summers to approve the concept for the Oneida Village at the Ladies Professional Golf Association; for the team to begin work; that Intergovernmental Affairs & Communications bring back a final budget which includes the identified target number; and approval for the funds to come from the Oneida Total Integrated Enterprises funds, seconded by Tehassi Hill. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster a. Approve Greater Green Bay Convention & Visitors Bureau Agreement – contract # 2017-0182 (1:54:17) Motion by Lisa Summers to approve the Greater Green Bay Convention & Visitors Bureau Agreement – contract # 2017-0182, seconded by David Jordan. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster 3. Accept Chief Counsel report – Jo Anne House, Chief Counsel (1:55:34) & (2:30:43) Motion by Lisa Summers to defer this item until the end of the agenda, seconded by Tehassi Hill. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster Motion by Lisa Summers to approve the enrollment request, seconded by Brandon Stevens. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster Motion by Lisa Summers to refer item back to the Trust Enrollment Committee to finalize the record and take corrective action regarding the request identified in the memo dated February 28, 2017, and February 21, 2017, Trust Enrollment Committee meeting minutes, seconded by Tehassi Hill. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster Motion by Lisa Summers for the Trust Enrollment Committee to come back with at least three (3) options for funding, seconded by Tehassi Hill. Motion carried one abstention: Ayes: Tehassi Hill, David Jordan, Trish King, Lisa Summers Abstained: Brandon Stevens Not Present: Tina Danforth, Fawn Billie, Jennifer Webster B. STANDING ITEMS 1. Land Claims Strategy (No Requested Action) Oneida Business Committee Regular Meeting Minutes DRAFT of March 22, 2017 Page 8 of 13 Open Packet Page 20 of 306 DRAFT 2. Oneida Golf Enterprise – Ladies Professional Golf Association (1:56:12) Sponsor: Trish King, Tribal Treasurer Motion by Tehassi Hill to accept the update regarding the Oneida Golf Enterprise – Ladies Professional Golf Association, seconded by David Jordan. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster C. UNFINISHED BUSINESS 1. Approve three (3) actions regarding additional duties compensation of Division of Land Management Director (1:56:39) Sponsor: Melinda J. Danforth, Tribal Vice-Chairwoman EXCERPT FROM SEPTEMBER 28, 2016: Motion by Tehassi Hill to approve a procedural exception to the Standard Operating Procedure to extend additional duties pay for an additional six (6) months, seconded by David Jordan. Motion carried with one abstention. EXCEPT FROM JUNE 22, 2016: (1) Motion by Motion by Jennifer Webster to approve the continuation of additional duties compensation for Division Director of Land Management until September 30, 2016, seconded by Tehassi Hill. Motion carried unanimously. (2) Motion by Motion by Jennifer Webster to defer the discussion of this position to the Business Committee work meeting for July 19, 2016, seconded by Tehassi Hill. Motion carried unanimously. EXCERPT FROM MARCH 30, 2016: Motion by Lisa Summers to approve the continuation of additional duties compensation for Division Director of Land Management until June 31, 2016, seconded by Tehassi Hill. Motion carried unanimously. EXCERPT FROM DECEMBER 9, 2015: (1) Motion by Lisa Summers to extend the recommended additional duties compensation up to three (3) months, seconded by David Jordan. Motion carried unanimously. Motion by Lisa Summers to approve the memorandum for additional duties dated September 28, 2016, effective until March 28, 2017, seconded by Tehassi Hill. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster Motion by Lisa Summers to approve the memorandum for additional duties as a procedural exception for March 28, 2017 to June 30, 2017, seconded by Tehassi Hill. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster Motion by Lisa Summers for Councilmembers Tehassi Hill, David Jordan, and Jennifer Webster to work with the Human Resources Department to merge the Environmental Health & Safety Division and Division of Land Management Director positions per the re-organization plan; and to finalize the appropriate Human Resources paperwork, seconded by Trish King. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster Oneida Business Committee Regular Meeting Minutes DRAFT of March 22, 2017 Page 9 of 13 Open Packet Page 21 of 306 DRAFT 2. Approve recommendations regarding complaint # 2017-DR06-04 (2:36:00) Sponsors: Lisa Summers, Tribal Secretary; Jennifer Webster, Councilwoman; David Jordan, Councilman EXCERPT FROM MARCH 8, 2017: Motion by Tehassi Hill to accept complaint # 2017-DR0604 as having merit; and to assign Councilwoman Jennifer Webster, Councilman David Jordan, and Secretary Lisa Summers, seconded by Jennifer Webster. Motion carried unanimously. Motion by Lisa Summers to rescind the March 8, 2017, motion for the complaint recommendations # 2016-DR06-09, seconded by Tehassi Hill. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster Motion by Lisa Summers to approve the recommendations # 1 through 6 as corrected and as identified in the memo dated March 22, 2017, from the sub-team; and for the non-recused Officers to carry out the recommendations by the close of the business day on March 23, 2017, seconded by Tehassi Hill. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster D. NEW BUSINESS 1. Review request regarding Oneida Language House (1:58:30) Sponsor: Fawn Billie, Councilwoman Motion by Lisa Summers to approve the concept to move forward; to assign the team members of Councilmembers Tehassi Hill, Jennifer Webster, and Brandon Stevens to complete the follow-up; and that the final proposal be brought back for final approval at the May 10, 2017, regular Business Committee meeting, seconded by Trish King. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster 2. Review update regarding Tsyunhehkwa (1:59:08) Sponsor: Joanie Buckley, Division Director/Internal Services Motion by Tehassi Hill to accept the Tsyunhehkwa report; and to request the Internal Services Division Director to bring back final recommendations for the April 26, 2017, regular Business Committee meeting, seconded by Brandon Stevens. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster 3. Comprehensive Health Division contract items: a. Approve Anthem Blue Cross & Blue Shield-Dentist – contract # 2016-0891 (2:00:16) Sponsor: Debra Danforth, Division Director/Comprehensive Health Operations Motion by Lisa Summers to approve the limited waiver of sovereign immunity – Anthem Blue Cross & Blue Shield-Dentist – contract # 2016-0891, seconded by David Jordan. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster Oneida Business Committee Regular Meeting Minutes DRAFT of March 22, 2017 Page 10 of 13 Open Packet Page 22 of 306 DRAFT b. Approve limited waiver of sovereign immunity – Guardian Life Insurance Company of America-DentalGuard – contract # 2016-1193 (2:00:55) Sponsor: Debra Danforth, Division Director/Comprehensive Health Operations Motion by Lisa Summers to approve the limited waiver of sovereign immunity – Guardian Life Insurance Company of America-DentalGuard – contract # 2016-1193, seconded by Tehassi Hill. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster c. Approve limited waiver of sovereign immunity – Humana Inc.-Physician Participation Agreement – contract # 2016-0185 (2:01:16) Sponsor: Debra Danforth, Division Director/Comprehensive Health Operations Motion by David Jordan to approve the limited waiver of sovereign immunity – Humana Inc.-Physician Participation Agreement – contract # 2016-0185, seconded by Tehassi Hill. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster d. Approve limited waiver of sovereign immunity – Independent Care Health PlaniCare Provider Service Agreement – contract # 2016-0357 (2:02:09) Sponsor: Debra Danforth, Division Director/Comprehensive Health Operations Motion by Lisa Summers to approve the limited waiver of sovereign immunity – Independent Care Health Plan-iCare Provider Service Agreement – contract # 2016-0357, seconded by Tehassi Hill. Motion withdrawn. Motion by Lisa Summers to defer this item to the April 12, 2017, regular Business Committee meeting to request clarification on approval, seconded by David Jordan. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster e. Approve limited waiver of sovereign immunity – Network Health Plan-HMO POS Professional Services Agreement – contract # 2015-1276 (2:03:35) Sponsor: Debra Danforth, Division Director/Comprehensive Health Operations Motion by Tehassi Hill to approve the limited waiver of sovereign immunity – Network Health Plan-HMO POS Professional Services Agreement – contract # 2015-1276, seconded by David Jordan. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster 4. Approve requested action regarding Funding Opportunity Number FY-6100-N-23 Sponsor: Melinda J. Danforth, Tribal Vice-Chairwoman Item moved to Open Session as New Business item XI.C.at the adoption of the agenda. Oneida Business Committee Regular Meeting Minutes DRAFT of March 22, 2017 Page 11 of 13 Open Packet Page 23 of 306 DRAFT 5. Adopt resolution entitled Resolution to Adopt the Second Amendment to the Business Committee 401(k) Savings Plan (2:04:14) & (2:32:56) Sponsor: Larry Barton, Chief Financial Officer Motion by David Jordan to table item XIV.D.05 until the end of the agenda, seconded by Tehassi Hill. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster Motion by Tehassi Hill to adopt resolution # 03-22-17-E with the following change: [Delete the third resolve], seconded by Trish King. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster 6. Adopt resolution entitled Resolution to Adopt the Second Amendment to the Public Safety Officer Pension Plan (2:04:14) Sponsor: Larry Barton, Chief Financial Officer Motion by David Jordan to table item XIV.D.06. until the end of the agenda, seconded by Tehassi Hill. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster 7. Adopt resolution entitled Regarding Pardon of Efren Rivera (2:04:42) Sponsor: Lisa Summers, Tribal Secretary Motion by Brandon Stevens to adopt resolution # 03-22-17-D Regarding Pardon of Efren Rivera, seconded by David Jordan. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster 8. Review complaint # 2017-DR06-05 (2:05:07) & (2:38:09) Sponsor: Lisa Summers, Tribal Secretary Motion by David Jordan to table items XIV.D.08, XIV.D.09, and XIV.D.11. until the end of the agenda, seconded by Brandon Stevens. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster Motion by Lisa Summers to deem complaint # 2017-DR06-05 as having merit; and to assign Secretary Lisa Summers, Councilwoman Jennifer Webster, and Councilman David Jordan, seconded by Tehassi Hill. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster 9. Review complaint # 2017-DR06-06 (2:05:07) & (2:38:42) Sponsor: Melinda J. Danforth, Tribal Vice-Chairwoman Motion by Lisa Summers to deem complaint # 2017-DR06-06 as having merit; and to assign Secretary Lisa Summers, Councilwoman Jennifer Webster, and Councilman David Jordan, seconded by Tehassi Hill. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster Oneida Business Committee Regular Meeting Minutes DRAFT of March 22, 2017 Page 12 of 13 Open Packet Page 24 of 306 DRAFT 10. Review complaint # 2017-DR06-07 Sponsor: Lisa Summers, Tribal Secretary Motion by Lisa Summers to acknowledge receipt of complaint # 2017-DR06-08 (per audio) and the Business Committee has identified as having no merit, noting the complainant’s employment status; and to direct the Tribal Secretary to send the appropriate correspondence to the complainant regarding the Business Committee’s decision, seconded by Tehassi Hill. Motion carried unanimously: (2:05:43) Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster 11. Review complaint # 2017-DR08-01 (2:05:07) & (2:37:32) Sponsor: Melinda J. Danforth, Tribal Vice-Chairwoman Motion by David Jordan to deem complaint # 2017-DR08-01 as having merit; and to assign Chairwoman Tina Danforth, Councilwoman Jennifer Webster, and Councilwoman Fawn Billie, seconded by Tehassi Hill. Motion carried with one abstention: Ayes: Tehassi Hill, David Jordan, Brandon Stevens, Lisa Summers Abstained: Trish King Not Present: Tina Danforth, Fawn Billie, Jennifer Webster For the record: Vice-Chairwoman Melinda J. Danforth stated Trish is excused from this matter. XV. ADJOURN Motion by Trish King to adjourn at 3:58 p.m., seconded by Brandon Stevens. Motion carried unanimously: Ayes: Tehassi Hill, David Jordan, Trish King, Brandon Stevens, Lisa Summers Not Present: Tina Danforth, Fawn Billie, Jennifer Webster Minutes prepared by Heather Heuer, Information Management Specialist Minutes approved as presented on ___________. _________________________________ Lisa Summers, Secretary ONEIDA BUSINESS COMMITTEE Oneida Business Committee Regular Meeting Minutes DRAFT of March 22, 2017 Page 13 of 13 Open Packet Page 25 of 306 Oneida Business Committee Agenda Request 1. Meeting Date Requested: 04 / 12 / 17 2. General Information: Session: Open Agenda Header: Executive - See instructions for the applicable laws, then choose one: Resolutions Accept as Information only Action - please describe: Adopt resolution titled Implementing Per Capita Plan adopted by General Tribal Council on June 13, 2016 3. Supporting Materials Report Resolution Contract Other: 1. Statement of Effect 3. 2. 4. Business Committee signature required 4. Budget Information Budgeted - Tribal Contribution Budgeted - Grant Funded Unbudgeted 5. Submission Authorized Sponsor / Liaison: Trish King, Tribal Treasurer Primary Requestor/Submitter: Brian A. Doxtator, Executive Assistant to Tribal Treasurer Your Name, Title / Dept. or Tribal Member Additional Requestor: Name, Title / Dept. Additional Requestor: Name, Title / Dept. Page 1 of 2 Open Packet Page 26 of 306 Oneida Business Committee Agenda Request 6. Cover Memo: Describe the purpose, background/history, and action requested: BACKGROUND: On June 13, 2016, at the General Tribal Council meeting, the governing body (G.T.C.), took action directing the Oneida Business Committee (O.B.C.), to disburse a $1,300 per capita payment beginning Fiscal Year 2017 through Fiscal Year 2021. In accordance with Chapter 123 within the Shakotiwi? Stawihe' Olihwa'ke (Per Capita) law; Section 123.4-3 states, "...per capita payments may only be issued at the direction of the General Tribal Council through adoption of a resolution." Excerpts: Motion by Yvonne Metivier to direct the O.B.C. to pay $2,000 Per Capita beginning Fiscal Year 2017 through 2021. Seconded by Scharlene Kasee. Motion carried by hand count: 1068 support; 200 opposed; 35 abstained Amendment to the main motion by Nancy Skenandore to revise the Per Capita payment amount to $1,300 instead of $2,000. Seconded by Don Charnon. Motion carried by hand count: 791 support; 702 opposed; 32 abstained Amendment to the main motion by David P. Jordan to go with the O.B.C.'s plan to pay off the debt. Seconded by Chris Cornelius. Motion carried by hand count: 697 support; 612 opposed; 87 abstained REQUESTED ACTION: Adopt resolution titled Implementing Per Capita Plan. 1) Save a copy of this form for your records. 2) Print this form as a *.pdf OR print and scan this form in as *.pdf. 3) E-mail this form and all supporting materials in a SINGLE *.pdf file to: BC_Agenda_Requests@oneidanation.org Page 2 of 2 Open Packet Page 27 of 306 Oneida Nation Post Office Box 365 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Phone: (920)869-2214 Oneida, WI 54155 BC Resolution # __-__-__-_ Implementing Per Capita Plan for Fiscal Year 2017 to Fiscal Year 2021 Adopted by General Tribal Council on June 13, 2016 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 General Tribal Council met on June 13, 2016, to discuss and take action regarding proposed per capita plans by Petitioner Metivier and the Oneida Business Committee; and WHEREAS, the General Tribal Council, after presentations and discussion, adopted a per capita payment plan by way of motions that “…$1,300 instead of $2,000…” is to be paid “…beginning Fiscal Year 2017 through 2021”; and WHEREAS, section 123.4-3 of the Per Capita law identifies that “per capita payments shall be issued only at the direction of the General Tribal Council through adoption of a resolution”; and NOW THEREFORE BE IT RESOLVED, in accordance with the duly adopted Per Capita law, the Oneida Business Committee implements the action of the General Tribal Council and directs the per capita payment of $1,300 to every member be included in the budgets for Fiscal Years 2017, 2018, 2019, 2020, and 2021. Open Packet Page 28 of 306 Oneida Nation Oneida Business Committee Legislative Operating Committee PO Box 365 • Oneida, WI 54155-0365 Oneida-nsn.gov Statement of Effect Implementing Per Capita Plan Adopted by General Tribal Council on June 13, 2016 Summary This resolution implements the per capita plan adopted by General Tribal Council, which calls for an annual per capita payment of $1,300 to be made, beginning Fiscal Year 2017 and continuing through Fiscal Year 2021. Submitted by: Tani Thurner, Staff Attorney, Legislative Reference Office Analysis by the Legislative Reference Office On June 13, 2016, the General Tribal Council (GTC) passed a motion (and an amendment to that motion) which directed the Oneida Business Committee (OBC) to pay a $1,300 Per Capita in Fiscal Years 2017 through 2021. This resolution takes the following action: “[I]n accordance with the duly adopted Per Capita law, the Oneida Business Committee implements the action of the General Tribal Council and directs the per capita payment of $1,300 to every member be included in the budgets for Fiscal Years 2017, 2018, 2019, 2020, and 2021.” [see NOW THEREFORE BE IT RESOLVED] The language of the resolution states that this action is taken in accordance with the Per Capita law. Section 123.4-3 of the Per Capita law states that: […] per capita payments may only be issued at the direction of the General Tribal Council through adoption of a resolution. Passage of this OBC resolution is intended to satisfy section 123.4-3 of the Per Capita law, which states that per capita payments may only be issued at the direction of the General Tribal Council through adoption of a resolution. [Per Capita law, section 123.4-3] By adopting this resolution, the OBC is interpreting 123.4-3 of the Per Capita law as permitting per capita payments after GTC directs the OBC to adopt a resolution to implement a per capita payment that GTC authorized by motion. Conclusion Adoption of this resolution does not conflict with the Nation’s laws. Page 1 of 1 Open Packet Page 29 of 306 Oneida Business Committee Agenda Request 1. Meeting Date Requested: 4 / 12 / 17 2. General Information: Session: Open Agenda Header: Executive - See instructions for the applicable laws, then choose one: Resolutions Accept as Information only Action - please describe: Consider the Resolution Extending the Effective Date of the Community Support Fund Law for adoption. 3. Supporting Materials Report Resolution Contract Other: 1. Statement of Effect 3. 2. 4. Business Committee signature required 4. Budget Information Budgeted - Tribal Contribution Budgeted - Grant Funded 5. Submission Authorized Sponsor / Liaison: Brandon Stevens, LOC Chair Primary Requestor/Submitter: Jennifer Falck, LRO Director Your Name, Title / Dept. or Tribal Member Additional Requestor: Name, Title / Dept. Additional Requestor: Name, Title / Dept. Page 1 of 2 Unbudgeted Open Packet Page 30 of 306 r'\ Oneida Nation Oneida Business Committee Legislative Operating Committee =DDDDOO PO Box 365 • Oneida, WI 54155-0365 ONEIDA On eida -nsn.gov TO : FROM: DATE: RE: Oneida Business Committee ' ~ Brandon Stevens, LOC Chairperson '-____f_----___:) April 12, 2017 Extending the Effective Date of the Community Support Fund Law Please find the following attached backup documentation for your consideration: 1. Resolution: Extending the Effective Date of the Community Supp01t Fund Law 2. Statement of Effect: Extending the Effective Date of the Community Support Fund Law Overview The Community Supp01t Fund law ("the Law") was adopted by the Oneida Business Committee pursuant to resolution BC-05-15-96-A, and amended by resolution BC-01-08-97-G, BC-12-0113-D, and most recently with BC-01-11-17-B. The most recent amendments to the Law will become effective on May 11 , 2017. The Law states that the Social Services Area of Governmental Services Division is responsible for operation of the Community Supp01t Fund ("the Fund") but that the Social Services Area may designate the operation of the Fund to a depattment within its control. The Law also delegates rulemaking authority to the operators of the Fund to create rules to manage the Fund including the list of categories the Fund covers and funding caps. The Fund operator has not yet created and prepared rules regarding the management of the Fund. The Community Support rules will not be completed in time for the Law to become effective. The Fund operator needs additional time to develop and make effective the rules regarding management of the Fund in accordance with the process set forth in the Administrative Rulemaking law. Due to the fact that the Law is so dependent on the development and use of Community Supp01t Fund Rules, the Law cannot become effective until the rules are created and prepared. The attached Resolution will extend the effective date of the law, as stated in resolution BC-0111-17 -B, an additional one hundred and twenty ( 120) calendar days from May 11, 2017, to September 8, 2017. The attached Resolution-also provides the Fund operator until September 8, 2017, when the law becomes effective to create and make effective rules in accordance with the Law. Requested Action Approve the Resolution : Extending the Effective Date of the Community Support Fund Law Page 1 of 1 A good mind. A good heart. A strong fire. Open Packet Page 31 of 306 Oneida Nation Post Office Box 365 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 Phone: (920)869-2214 Oneida, WI 54155 BC Resolution # __-__-__-_ Extending the Effective Date of the Community Support Fund 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 Oneida Business Committee originally adopted the Community Support Fund law (“the Law”) pursuant to resolution BC-05-15-96-A, and made amendments pursuant to resolution BC-01-08-97-G, BC-12-01-13-D, and most recently with BC-01-11-17-B; and WHEREAS, the most recent amendments will become effective on May 11, 2017; and WHEREAS, the Law states that the Social Services Area of Governmental Services Division is responsible for operation of the Community Support Fund (“the Fund”) but may designate the operation of the Fund to a department within its control; and WHEREAS, the Law delegates rulemaking authority to the operators of the Fund to create rules to manage the Fund including the list of categories the Fund covers and funding caps; and WHEREAS, the Fund operator needs additional time to develop and make effective the rules regarding management of the Fund in accordance with the process set forth in the Administrative Rulemaking law; and WHEREAS, the Law is so dependent on the development and use of Community Support Fund rules that the Law cannot become effective until the rules are created and prepared; and NOW THEREFORE BE IT RESOLVED, the effective date of the Community Support Fund law as stated in resolution BC-01-11-17-B is extended an additional 120 calendar days from May 11, 2017, to September 8, 2017. NOW THEREFORE BE IT FURTHER RESOLVED, that the Fund operator shall have until September 8, 2017, when the law becomes effective to create and make effective rules in accordance with the Law. Open Packet Page 32 of 306 Oneida Nation Oneida Business Committee Legislative Operating Committee PO Box 365 • Oneida, WI 54155-0365 Oneida-nsn.gov Statement of Effect Extending the Effective Date of the Community Support Fund Law Summary This Resolution extends the effective date of the Community Support Fund law. Submitted by: Clorissa N. Santiago, Staff Attorney, Legislative Reference Office Analysis by the Legislative Reference Office This Resolution extends the effective date of the Community Support Fund law, as stated in resolution BC-01-11-17-B, an additional one hundred and twenty (120) days from May 11, 2017, to September 8, 2017. This Resolution also requires that the Fund operator shall have until the law becomes effective on September 8, 2017, to create and make effective rules in accordance with the Community Support Fund law. Conclusion Adoption of this Resolution would not conflict with any of the Nation’s laws. Page 1 of 1 The following items were deleted at the adoption of the agenda and/or during the course of the meeting: VI. RESOLUTIONS C. Adopt resolution entitled Conflict of Interest Emergency Amendments Sponsor: Brandon Stevens, Councilman/Legislative Operating Committee Chair X. UNFINISHED BUSINESS A. Reconsider, review, and hear testimony from Kory Wesaw regarding application to Oneida Police Commission Sponsor: Tina Danforth, Tribal Chairwoman XIV. EXECUTIVE SESSION D. TABLED BUSINESS 1. Adopt resolution entitled Resolution to Adopt the Second Amendment to the Public Safety Officer Pension Plan Sponsor: Larry Barton, Chief Financial Officer E. UNFINISHED BUSINESS 1. Approve limited waiver of sovereign immunity – Independent Care Health PlaniCare Provider Service Agreement – contract # 2016-0357 Sponsor: Debra Danforth, Division Director/Comprehensive Health Operations F. NEW BUSINESS 6. Accept information regarding Electrical Department Sponsor: Tina Danforth, Tribal Chairwoman Open Packet Page 34 of 306 Oneida Business Committee Agenda Request 1. Meeting Date Requested: 04 / 12 / 17 2. General Information: Session: Open Agenda Header: Executive - See instructions for the applicable laws, then choose one: Resolutions Accept as Information only Action - please describe: Adopt resolution entitled Drug and Alcohol Free Workplace Law Amendments 3. Supporting Materials Report Resolution Contract Other: 1. Statement of Effect 3. Law: Redline and clean 2. Legislative Analysis 4. Fiscal Impact Statement Business Committee signature required 4. Budget Information Budgeted - Tribal Contribution Budgeted - Grant Funded 5. Submission Authorized Sponsor / Liaison: Brandon Stevens, Council Member Primary Requestor/Submitter: Jen Falck, LRO Director Your Name, Title / Dept. or Tribal Member Additional Requestor: Name, Title / Dept. Additional Requestor: Name, Title / Dept. Page 1 of 2 Unbudgeted Open Packet Page 35 of 306 Oneida Nation 000000 PO Box 365 • Oneida, WI 54155-0365 ONEIDA Oneida -nsn.gov TO: FROM: DATE: RE: ~ Oneida Business Committee Legislative Operating Committee Oneida Business Committee · Brandon Stevens, LOC Chairperson4_5 . April 12, 2017 Dmg and Alcohol Free Workplace Law Amendments ..5 Please find the following attached backup documentation for your consideration of the Dmg and Alcohol Free Workplace Law Amendments: 1. Resolution: Dmg and Alcohol Free Workplace Law Amendments 2. 3. 4. 5. 6. Statement of Effect: Drug and Alcohol Free Workplace Law Amendments Drug and Alcohol Free Workplace Law Amendments Legislative Analysis Drug and Alcohol Free Workplace (Redline) Drug and Alcohol Free Workplace (Clean) Drug and Alcohol Free Workplace Law Amendments Fiscal Impact Statement Overview The attached Resolution will adopt permanent amendments to the current Dmg and Alcohol Free Workplace Policy ("the Policy") that are necessary in order to keep the Policy compliant with requirements of a new finalmle (29 CFR 1904) concerning the Occupational Health and Safety Act. Amendments to the Policy were adopted by the Oneida Business Committee (OBC) on an emergency basis through Resolution BC-10-26-16-D. The emergency amendments expire on April 26, 20 17. The pe1manent amendments: • Petmanently adopt the emergency amendments which brought the Policy into compliance with OSHA by removing the requirement that an employee submit to mandatory dmg and alcohol testing immediately following a work-related accident; • Refer to the Policy as the Drug and Alcohol Free Workplace law (the "Law") moving forward; • Clarify that the Law applies to all employees when operating a vehicle owned by the Nation or a vehicle rented by the Nation in addition to during working hours and when ·on-call. [see section 202.4-1]; • Add the responsibility of providing the appropriate infmmation to EHN in the event a medical condition prevents the employee from properly completing drug and alcohol testing so alternative drug and alcohol testing measures can be taken by EHN. [see section 202.5-2(g)]; • Clarify that a supervisor's decision made in regard to reasonable suspicion dmg and alcohol testing of an employee is final and non-appealable. [see section 202. 7-3]; Page 1 of 2 A good mind. A good heart. A strong fi re. Open Packet • • Page 36 of 306 Clarify how diluted drug test results will be handled. [see section 202.8-6]; and Update the language to ensure compliance with drafting style and formatting requirements. In accordance with the Legislative Procedures Act, a public meeting was held regarding the Drug and Alcohol Free Workplace amendments on, March 2, 2017, with a ,comment period closing on March 9, 2017. Those comments were accepted and considered by the Legislative Operating Committee at the AprilS, 2017, Legislative Operating Committee meeting. Requested Action Approve the Resolution: Drug and Alcohol Free Workplace Law Amendments Page 2 of 2 A good mind. A good heart. A strong fire. ~ ONEIDA Open Packet Page 37 of 306 Oneida Nation Post Office Box 365 Phone: (920)869-2214 Oneida, WI 54155 BC Resolution # ________________ Drug and Alcohol Free Workplace Law Amendments WHEREAS, the Oneida Nation is a federally recognized Indian government and a treaty tribe recognized by the laws of the United States of America; and WHEREAS, the Oneida General Tribal Council is the governing body of the Oneida Nation; and WHEREAS, the Oneida Business Committee has been delegated the authority of Article IV, Section 1, of the Oneida Tribal Constitution by the Oneida General Tribal Council; and WHEREAS, the Drug and Alcohol Free Workplace Policy (the “Policy”) was adopted by the Oneida Business Committee by resolution BC-10-25-95-A and amended by BC-12-11-13-F; and WHEREAS, the federal Occupational Safety and Health Administration (OSHA) adopted amendments to 29 CFR 1904, a final rule which became effective on November 1, 2016, and which prohibited employers from retaliating against workers who report work-related injuries and illnesses; and WHEREAS, the prohibition of retaliation against workers who report work-related injuries and illnesses includes limiting post-incident drug and alcohol testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use; and WHEREAS, the Oneida Business Committee adopted emergency amendments to the Policy pursuant to Resolution BC-10-26-16-D in accordance with the emergency adoption process set forth in the Legislative Procedures Act (LPA); and WHEREAS, the emergency amendments brought the Policy into compliance with OSHA requirements by removing the requirement that all employees must immediately undergo mandatory drug and alcohol testing following a workplace accident; and WHEREAS, the emergency amendments to the Policy expire April 26, 2017; and WHEREAS, the adoption of the emergency amendments to the Policy on a permanent basis are necessary to remain compliant with OSHA requirements; and WHEREAS, although the permanent amendments contain the removal of mandatory drug and alcohol testing requirements following a workplace accident, employees are still required to immediately report all workplace accidents to their supervisor and can undergo drug and alcohol testing at any time if there is reasonable suspicion that the employee is under the influence of alcohol or drugs; and WHEREAS, additional permanent amendments include changing the Policy to a law to align with the Legislative Operating Committee’s directive that all legislation is to be classified as laws moving forward; and Open Packet Page 38 of 306 BC Resolution _____________ Drug and Alcohol Free Workplace Law Amendments Page 2 of 2 WHEREAS, amendments clarify that the Law applies to all employees when operating a vehicle owned by the Nation or a vehicle rented by the Nation in addition to during working hours and when on-call; and WHEREAS, amendments add the responsibility of providing the appropriate information to EHN in the event a medical condition prevents the employee from properly completing drug and alcohol testing so alternative drug and alcohol testing measures can be taken by EHN; and WHEREAS, amendments clarify that a supervisor’s decision made in regard to reasonable suspicion drug and alcohol testing of an employee is final and non-appealable; and WHEREAS, amendments clarify how diluted drug test results will be handled; and WHEREAS, in accordance with the LPA, a public meeting was held regarding the Drug and Alcohol Free Workplace law amendments on March 2, 2017, with a comment period closing on March 9, 2017. Those comments were accepted and considered by the Legislative Operating Committee at the April 5, 2017, Legislative Operating Committee meeting. NOW THEREFORE BE IT RESOLVED, that the amendments to the Drug and Alcohol Free Workplace law are hereby adopted and are effective immediately. Open Packet Page 39 of 306 Oneida Nation Oneida Business Committee Legislative Operating Committee PO Box 365 • Oneida, WI 54155-0365 Oneida-nsn.gov Statement of Effect Drug and Alcohol Free Workplace Law Amendments Summary This Resolution adopts permanent amendments to the Drug and Alcohol Free Workplace law (the “Law”). Submitted by: Clorissa N. Santiago, Staff Attorney, Legislative Reference Office Analysis by the Legislative Reference Office This resolution adopts permanent amendments to the Drug and Alcohol Free Workplace Policy (the “Policy”). The federal Occupational Safety and Health Administration (OSHA) adopted amendments to 29 CFR 1904, a final rule which became effective on November 1, 2016, and which prohibited employers from retaliating against workers who report work-related injuries and illnesses. The prohibition of retaliation against workers who report work-related injuries and illnesses includes limiting post-incident drug and alcohol testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use. The Policy requires all employees to immediately undergo drug and alcohol testing following a workplace accident. These requirements in the Policy conflict with the requirements under federal law. The Legislative Procedures Act (LPA) allows the Oneida Business Committee (OBC) to take emergency action to amend a law where it is "necessary for the immediate preservation of the public health, safety, or general welfare of the reservation population" and when enactment or amendment of legislation is required sooner than would be possible under the LPA. [see LPA section 16.9-5]. Through Resolution BC-10-26-16-D, the OBC enacted emergency amendments to the Policy to obtain compliance with OSHA’s regulations. The emergency amendments brought the Policy into compliance by removing the requirement that an employee submit to mandatory drug and alcohol testing immediately following a workrelated accident. In order for the Policy to remain compliant with OSHA’s rule, the emergency amendments must be permanently adopted. The Policy’s emergency amendments expire April 26, 2017. Since the emergency amendments were adopted on October 26, 2016, additional amendments to the Policy have been proposed. The proposed amendments now refer the Policy as a law. This aligns with the Legislative Operating Committee’s directive that all legislation is to be classified as laws moving forward. Page 1 of 2 Open Packet Page 40 of 306 Additional proposed amendments to the Law:      Clarify that the Law applies to all employees when operating a vehicle owned by the Nation or a vehicle rented by the Nation in addition to during working hours and when on-call. [see section 202.4-1]; Add the responsibility of providing the appropriate information to EHN in the event a medical condition prevents the employee from properly completing drug and alcohol testing so alternative drug and alcohol testing measures can be taken by EHN. [see section 202.5-2(g)]; Clarify that a supervisor’s decision made in regard to reasonable suspicion drug and alcohol testing of an employee is final and non-appealable. [see section 202.7-3]; Clarify how diluted drug test results will be handled. [see section 202.8-6]; and Update the language to ensure compliance with drafting style and formatting requirements. In accordance with the Legislative Procedures Act, a public meeting was held regarding the Drug and Alcohol Free Workplace amendments on March 2, 2017, with a comment period closing on March 9, 2017. Those comments were accepted and considered by the Legislative Operating Committee at the April 5, 2017, Legislative Operating Committee meeting. Conclusion Adoption of this Resolution would not conflict with any of the Nation’s laws. Page 2 of 2 Open Packet Page 41 of 306 Analysis to OBC Consideration 2017 04 12 Drug and Alcohol Free Workplace Amendments Legislative Analysis Analysis by the Legislative Reference Office Title Sponsors Requester & Reason for Request Purpose Authorized/ Affected Entities Related Legislation Enforcement & Due Process Public Meeting Status 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Drug and Alcohol-Free Workplace (law) Fawn Billie and Jennifer Webster Drafter Clorissa N. Maureen Analyst Santiago Perkins The Oneida Law Office has requested these changes due to a recently adopted change to federal law. Additional minor changes were made. The current amendments permanently adopt the emergency amendments in effect since October 26, 2016. This law governs drug/alcohol testing of employees of the Nation. HRD, Employee Health Nursing, Oneida Nation Employee Assistance Program, Medical Review Officer (MRO), all employees of the Nation and applicants for employment with the Nation Personnel Policies and Procedures; Workers Compensation Law The law identifies how reasonable suspicion can be established, such that an employee can be sent for drug and/or alcohol testing [see 202.7]. Employee’s cannot appeal or challenge this determination [see 202.7-3]. A public meeting was held March 2, 2017. The LOC has considered all comments and accepted changes are reflected in the current draft. Overview The Drug and Alcohol Free Workplace Policy was adopted as a tool to establish a workplace free of the influence of drugs and alcohol. Applicants for employment must pass a drug screen to be eligible for employment. Current employees can be sent for drug and alcohol testing based upon reasonable suspicion of their immediate supervisor. The overall goal of the law is to assist employees who are experiencing issues with drugs and/or alcohol with getting help to promote rehabilitation and improve the health and safety of employees and customers. The OBC adopted emergency amendments to the Drug and Alcohol Free Workplace Policy (law) to comply with a change to federal law (29 CFR 1904) pursuant to resolution BC-10-2616-D. Although the federal rule went into effect August 10, 2016, it was not enforced until November 1, 2016. These proposed amendments are being considered for permanent adoption. The federal rule is intended to prevent employers from discouraging employees from reporting workplace injuries and illnesses. The change to federal law more clearly prohibits employers from using drug testing, or the threat of it, as a form of retaliation against employees who report injuries or illnesses. The comments for the Final Rule, published on the Federal Register, states: “[t]he final rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses. To strike the appropriate balance here, drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.” Page 1 of2 Open Packet 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 Page 42 of 306 Analysis to OBC Consideration 2017 04 12 The emergency amendments adopted October 26, 2017 removed the requirement for employees to undergo alcohol and drug testing every time they are involved in a work-related accident [see 202.3-1(m) and 202.8-3 of current policy previous to emergency amendments]. The amendments also removed the provision that treated a failure to do so as refusal to test [see 202.9-1(i) of current policy previous to emergency amendments]. References were deleted related to work-related accidents when identifying what refusal to test entails [see 202.9-1(i) of current policy previous to emergency amendments]. These changes mean that employees of the Nation will no longer be subject to mandatory drug and alcohol testing for every work-related accident. The law will not identify any situations where an employee is subject to mandatory post-accident testing. However, employees may still be subject to drug and alcohol testing if their supervisor has reasonable suspicion that the employee may be under the influence. Standards/processes for how supervisors can establish reasonable suspicion are still contained in the amended law [see 202.7].       Additional Amendments The amended law now states that employees a supervisor’s decision made in regard to reasonable suspicion of drug and alcohol testing is final and not appealable [see 202.7-3]. Other The Oneida Tribe of Indians of Wisconsin was updated to Nation throughout the law in accordance with the approved constitutional amendments. The law was changed from a policy to a law in accordance with the current LOC’s directive that all policies become laws. Minor language and formatting changes have been made to improve the clarity of the law without affecting the content. Refer to the fiscal impact statement for any financial impacts. The emergency amendments are currently effective and will remain in effect for up to six months (expire 4/26/2017), with the possibility of a one-time extension of up to an additional six months [see Legislative Procedures Act, 16.9-5(b)]. The proposed amendments are being considered for permanent adoption. Page 2 of2 Open Packet Page 43 of 306 Draft 1for OBC Consideration 2017 04 12 1 2 Title 2. Employment – Chapter 202 DRUG AND ALCOHOL FREE WORKPLACE POLICY 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 202.1. Purpose and Policy 202.2. Adoption, Amendment, Repeal 202.3 Definitions 202.4 Application 202.5 Shared Responsibility 202.6 Prohibited Behavior 202.7 Reasonable Suspicion 202.8 Drug and Alcohol Testing 202.9 Refusal to Test 202.10. Waiting Period 202.11. Consequences for Prohibited Behavior 202.1. Purpose and Policy 202.2. Adoption, Amendment, Repeal 202.3. Definitions 18 19 20 21 22 23 24 25 26 27 28 29 30 202.4. Application 202.5. Shared Responsibility 202.6. Prohibited Behavior 202.7. Reasonable Suspicion 202.8. Drug and Alcohol Testing 202.9. Refusal to Test 202.10. Reasonable Suspicion Testing Waiting Period 202.11. Consequences for Prohibited Behavior 202.12. Re-hire 202.13. Other Potential Consequences 202.14. Confidentiality 202.15. Communication 202.1. Purpose and Policy 202.1-1. Purpose. The TribeNation is committed to protecting the safety, health and well-being of all employees, and other individuals in the workplace. The TribeNation recognizes that alcohol abuse and drug use pose a significant health and safety threat to our customers and other employees. The TribeNation also recognizes that alcohol/ and drug abuse and addiction are treatable illnesses. The TribeNation realizes that early intervention and support may improve the success of rehabilitation. 202.1-2. Policy. It is the policy of the TribeNation to establish a drug and alcohol-free workplace program that balances respect for individuals with the need to maintain an alcohol and drug-free environment. The TribeNation encourages employees to voluntarily seek help for their personal drug and alcohol-related problems. 202.2. Adoption, Amendment, Repeal 202.2-1. This policylaw was adopted by the Oneida Business Committee by resolution BC10-25-95-A and amended by BC-10-20-99-A, BC-12-05-07-B, BC-12-11-13-F and BC-10-26-16D.___________. 202.2-2. This policylaw may be amended or repealed by the Oneida Business Committee and/or the Oneida General Tribal Council pursuant to the procedures set out in the Legislative Procedures Act. 202.2-3. Should a provision of this policylaw or the application thereof to any person or circumstances be held as invalid, such invalidity shall not affect other provisions of this policylaw which are considered to have legal force without the invalid portions. 202.2-4. In the event of a conflict between a provision of this policylaw and a provision of another Policylaw, the provisions of this Policylaw shall control. 202.2-5. This policylaw is adopted under authority of the Constitution of the Oneida Tribe of Indians of Wisconsin.Nation. 202.3. Definitions 202.3-1. This section shall govern the definitions of words or phrases as used hereinwithin this law. All words not defined herein shall be used in their ordinary and everyday sense. (a) “Appropriate authority” shall meanmeans the Human ResourceResources Department hiring representative, immediate supervisor, EHN, MRO, and/or EAPONEAP who requests 2 O.C. 202 – Page 1 Open Packet Page 44 of 306 Draft 1 for OBC Consideration 2017 04 12 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 the drug and/or alcohol testing for reasons of pre-employment, reasonable suspicion, and/or follow-up testing. (b) “Business day” means Monday through Friday from 8:00am-4:30pm, excluding holidays recognized by the Nation. (bc) “Confirmed positive test result” shall meanmeans a lab-confirmed drug test that is verified by the MRO that exceeds the cut-off levels established by this Policylaw (levels established by the USUnited States Department of Health and Human Services), confirmed saliva testing, confirmed evidential breath alcohol test results of 0.02 or greater; and/or refusal to test. (cd) “EHN” means the Oneida Employee” shall mean Health Nursing Department. (e) “Employee” means any individual who is employed by the TribeNation and is subject to the direction and control of the TribeNation with respect to the material details of the work performed, or who has the status of an employee under the usual common law rules applicable to determining the employer-employee relationship. “Employee” includes, but is not limited to; an individual employed by any program or enterprise of the TribeNation, but does not include elected or appointed officials, or individuals employed by a Tribally Chartered Corporation. For purposes of this Policylaw, individuals employed under an employment contract as a limited term employee are employees of the TribeNation, not consultants. (df) “External applicant” shall meanmeans a person who is applying for a position and not currently employed by the TribeNation. (eg) “HRD” shall meanmeans the Human Resources Department and/or representatives performing Human Resources functions applicable to this Policylaw. (fh) “Internal applicant” shall meanmeans a person who is applying for a position who is currently employed by the TribeNation, this shall includeincludes those employed under a temporary status. (gi) “MRO” shall meanmeans Medical Review Officer who is a licensed physician who is responsible for receiving and reviewing laboratory test results generated by an employer’s drug testing program and evaluating medical explanations for certain drug test results. (hj) “Nation” means the Oneida Nation. (k) “NHTSA” means the National Highway Traffic Safety Administration. (l) “ONEAP” shall meanmeans the Oneida Nation Employee Assistance Program which is a professional counseling program staffed by clinical social workers licensed by the State of Wisconsin which offers services to Tribalthe Nation’s employees and family members. (im) “Prohibited drug(s)” shall meanmeans marijuana, cocaine, opiates, amphetamines, phencyclidine (PCP), hallucinogens, methaqualone, barbiturates, narcotics, and any other substance included in Schedules I through V, as defined by Section 812 of Title 21 of the United States Code. This shall also includeincludes prescription medication or over-thecounter medicine used in an unauthorized or unlawful manner. (jn) “Return-to-Work Agreement” shall meanmeans an agreement, developed by an ONEAP counselor and signed by the employee and the ONEAP counselor, and the referring supervisor, which sets out the actions the employee needs to complete in order to return to work and remain employed. (o) “SAMHSA” means the United States Department of Health and Human Services, Substance Abuse and Mental Health Services Administration. 2 O.C. 202 – Page 2 Open Packet Page 45 of 306 Draft 1 for OBC Consideration 2017 04 12 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 (kp) “Supervisor” shall meanmeans the immediate supervisor, or person who has taken on the role of supervisor due to an absence that is responsible for performance review, corrective action, and day-to-day assignments of duties. (l) “Tribal” or “Tribe” shall mean the Oneida Tribe of Indians of Wisconsin. (mq) “Work-related accident” shall meanmeans an unexpected event involving an employee that occurs in the employee’s working environment or during an activity related to work, that: (1) results in an injury to the employee and requiresor another person that may require medical intervention by a police officer or emergency medical technician, or treatment at a medical facility, (2) results in death of the employee or another person, or (3) involves any property damage. 202.4. Application 202.4-1. This Policylaw applies to all applicants for employment, whether external or internal, and all employees during working hours and when on-call, when on-call, and when operating a vehicle owned by the Nation or a vehicle rented by the Nation. 202.4-2. Employees are An employee is prohibited from the use of prohibited drugs and alcohol during working hours, when on-call, and when operating a vehicle owned by the Nation or a vehicle rented by the Nation. 202.4-3. An employee is prohibited from the use of intoxicants and prohibited drugs while on official business travel while the conference or meeting is in session. 202.4-3. 4. An employee is not exempted from this Policylaw if they travel to another state, territory or country where the use of certain drugs is legal. 202.5. Shared Responsibility 202.5-1. A safe and productive drug and alcohol free workplace is achieved through cooperation and shared responsibility between the employer and employeesan employee. 202.5-2. Employee. It is the employee’s responsibility to: (a) Be free from the effects of prohibited drugs, and/or alcohol during working hours, and/or when scheduled to be on-call. (b) Refrain from the unlawful manufacture, distribution, dispensation or possession of any prohibited drugs while working. (c) Comply with drug and alcohol testing if directed to do so upon the request of an appropriate authority. (d) Confidentially report suspicious behavior of an employee immediately to the supervisor of the employee in question. (e) Cooperate with the requests made by EHN and the MRO and. The employee shall return the call of the MRO within twenty-four (24) hours of the call being made to the employee. EmployeesAn employee who failfails to cooperate and dodoes not contact the MRO within twenty-four (24) hours of receiving contact shall not receive back pay for any time between the date the MRO placed the call until the time the employee does return the call of the MRO. 2 O.C. 202 – Page 3 Open Packet Page 46 of 306 Draft 1 for OBC Consideration 2017 04 12 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 (f) Sign a consent form to be tested for alcohol and drugs when requested by a supervisor, EHN, a certified drug and alcohol technician, or police personnel in accordance with this Policy.an appropriate authority. (g) Provide the appropriate information to EHN in the event a medical condition prevents the employee from properly completing drug and alcohol testing so alternative drug and alcohol testing measures can be taken by EHN. 202.5-3. Supervisor. It is the supervisor’s responsibility to: (a) Be familiar with this Policylaw and any related policies and procedures. (b) Investigate reported suspicious behaviors while maintaining the confidentiality of the person who reported the suspicious behavior. (c) Promptly intervene with employeesan employee who areis believed to be under the influence of prohibited drugs and/or alcohol. (d) Monitor the employee under the influence of prescription and/or over-the-counter medications that could compromise the safety of the employee, fellow employees, or the public. (e) Send the employee through the contracted transportation service for reasonable suspicion drug and alcohol forensic testing. (f) Take appropriate action as outlined by this Policylaw. (g) Sign the Return- to- Work Agreement along with the employee and ONEAP counselor that was developed by ONEAP. (h) Send a copy of the consent to submit to drug and alcohol testing form signed by the employee to EHN. 202.5-4. Supervisor and Employee. Supervisors and employeesA supervisor or an employee that failfails to adhere to theirthe responsibilities of the supervisor or employee under this Policylaw may be subject to disciplinary action or other consequences as explained in section 202.13. 202.5-5. Off-duty Use of Prohibited Drugs or Alcohol. Off-duty use of prohibited drugs or alcohol may result in continued impairment during on-duty hours, which shall then constitute a violation of this Policylaw. It is the employee’s responsibility to understand the consequences of off-duty use, and take steps to avoid the possibility of on-duty impairment. In the case whereAn employee who is called in for an emergency or unplanned work (this does not include, excluding those on-call),, and he or she has been using prohibited drugs or drinking alcoholic beverages prior to such a call, such employee shouldshall inform the employee’s supervisor they cannot report, and shall continue to decline to report until the effects of the prohibited drugs or alcohol have left his or herthe employee’s system. Such refusal to report shall not be viewed as improper, and disciplinary action shall not arise specifically from such refusal. 202.5-6. Use of Controlled Substances That May Affect Safety or Performance. EmployeesAn employee who areis taking or areis under the influence of any controlled substances during working hours (such as, including prescription medication or over the counter medication),, which may affect the employee’s job performance or safety of the employee, fellow employees, public, or assets of the TribeNation have the following obligations: (a) The employee shall notify the employee’s immediate supervisor about the use of the substance and possible work-related effects prior to commencing work. (b) Upon request, the employee may be required to obtain a written statement of any work restrictions or impact on performance or safety relating to the legal substances from his or herthe employee’s physician or pharmacist. 2 O.C. 202 – Page 4 Open Packet Page 47 of 306 Draft 1 for OBC Consideration 2017 04 12 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 (c) An employee shall not sell or share his or her prescribed medications with any other person, and shall not take medications that are prescribed to another person. (d) It may be necessary for the employee’s supervisor, area manager or Employee Health Nursing (EHN) to consult with the employee’s personal physician, pharmacist or an MRO, with the employee’s approval or written authorization, to determine if the medication might impact the employee’s ability to perform his or herthe employee’s job, or pose a hazard to other employees or to the general public. (e) The employee’s duties may be temporarily modified for up to one hundred eighty (180) days. Any modification of duties shall result in the appropriate modification of pay as established by the Human Resources Department. 202.6. Prohibited Behavior 202.6-1. An applicant or employee of the TribeNation is in violation of this Policylaw if he or she: (a) Uses, possesses, and/or sells prohibited drugs, or is under the influence of prohibited drugs or alcohol while on duty. Notwithstanding section 202.11, any employee who is caught using, possessing or selling prohibited drugs shall be immediately terminated from employment with the TribeNation. (b) Fails to inform his or her supervisor of being under the influence of prescription medication and/or over-the-counter medication(s) which may affect the employee’s job performance or safety of the employee, fellow employees, public, or assets of the TribeNation. (c) Uses unauthorized prescription drugs or intentionally misuses and/or abuses prescription medications. (d) Refuses to test. (e) Has a confirmed positive test result after completing a drug and/or alcohol forensic test through EHN or its designeea medical facility, or has a confirmatory test come back as positive. 202.7. Reasonable Suspicion 202.7-1. Establishing reasonable suspicion begins when the supervisor becomes aware either by personal observation and/or secondary reported observation that an employee may be under the influence of drugs and/or alcohol: this may include seeing or receiving a report that the employee has taken or possess prohibited drugs or prescription medication that is not specifically prescribed to that employee. In order to make a reasonable suspicion determination, the supervisor shall evaluate the following: (a) Specific, contemporaneous and articulable observations concerning appearance, behavior, speech, or body odors of the employee consistent with possible drug use or alcohol misuse. (b) The observations may include indications of the chronic and withdrawal effects of prohibited drugs or alcohol. 202.7-2. The supervisor shall document his or her observations and discuss the matter with the employee. During this discussion, the supervisor may ask the employee for proof of a prescription. The employee shall comply with this request. If after a discussion with the employee, the supervisor continues to suspect the employee may currently still be under the 2 O.C. 202 – Page 5 Open Packet Page 48 of 306 Draft 1 for OBC Consideration 2017 04 12 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 influence or reasonable suspicion is otherwise established, the supervisor shall refer the employee for reasonable suspicion drug and alcohol forensic testing. 202.7-3. A supervisor’s decision made in regard to the reasonable suspicion drug and alcohol testing of an employee is final. An employee shall not appeal or challenge a supervisor’s determination for reasonable suspicion drug and alcohol testing. 202.8. Drug and Alcohol Testing 202.8-1. Drug and alcohol tests are forensic in nature, meaning they are performed to formalize conditions of employment as described in this Policylaw. To ensure the accuracy and fairness of this Policylaw, all forensicdrug and alcohol testing shall be conducted according to the Department of Health and Human Services, Substance Abuse and Mental Health Services Administration (SAMSHASAMHSA) guidelines for Federal Workplace Drug testingTesting Programs. 202.8-2. The Employee Health Nursing DepartmentEHN or its designee shall use Federal Drug Administration approved urine tests and National Highway Transportation Safety Administration (NHTSA) certified evidential breath testing devices or NHTSA certified salivascreening devices, operated by technicians whose training terminology, procedures, methods, equipment, forms, and quality assurance comply with best practices. (a) Confirmation drug testing done on urine specimens shall be conducted by a laboratory which is certified by the U.S. Department of Health and Human Services using its confirmation methods and established cut-off levels. Laboratory-confirmed results shall undergo the verification process by a MRO. (b) Confirmation breath alcohol testing shall be performed using an NHTSA certified evidential breath testing device. (c) Confirmation drug testing done by saliva testing shall be performed using an NHTSA certified saliva test. 202.8-3. If an employee is involved in a work-related accident, he or she shall immediately inform his or her supervisor of the accident. 202.8-4. Each employee, as a condition of employment, is required toshall participate in preemployment, reasonable suspicion, and follow-up testing upon the request of an appropriate authority. 202.8-5. A negative test result is required for employment eligibility. In cases where a test result is diluted or the test was cancelled, retesting urine for drugs is required. If the re-test results in a negative-dilute, the applicant shall be given a negative test result. If the re-test results in a positive-dilute, then the applicant shall be given a positive test result. Other retesting may also be required at the direction of the MRO. A negative test result is required for employment eligibility. 202.9 Refusal to Test 202.9-1. 202.8-6. Dilution of Test Results. In cases where a drug test result is diluted, a positive dilute of the test result requires that the applicant or employee shall be given a confirmed positive test result, while a negative dilute of the test result requires retesting. EHN shall notify the applicant or employee of the required retesting. (a) If the re-test results in a negative-dilute, the applicant or employee shall be given a negative test result. 2 O.C. 202 – Page 6 Open Packet Page 49 of 306 Draft 1 for OBC Consideration 2017 04 12 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 327 (b) If the re-test results in a positive-dilute, then the applicant or employee shall be given a positive test result. 202.9. Refusal to Test 202.9-1. Refusal to test is prohibited behavior as defined in section 202.6. Refusal to test carries the same consequences as a non-negative and/or confirmed positive test result. Examples of refusal to test include, but are not limited to: (a) Substituting, adulterating (falsifying), or diluting the specimen. (b) Refusal to sign the required forms . (c) Refusal to cooperate in the testing process in such a way that prevents completion of accurate testing and as directed by the collector. (d) Failing to remain at the testing site until the testing process is complete. (e) Providing an insufficient sample of urine or breath. (f) Failing to test or to re-test. (g) Failing to appear within two (2) hours after an order or request is made for testing or re-testing. (h) Behaving in a confrontational or discourteous manner that disrupts the collection process . 202.10. Reasonable Suspicion Testing Waiting Period 202.10-1. This section applies only to current employees who meet the reasonable suspicion standard. AnIt does not apply to applicants of the Nation. 202.10-2 During drug and alcohol testing for reasonable suspicion, an employee shall be immediately removed from duty without pay during the waiting period betweenat the time of initiation of the reasonable suspicion drug and alcohol testing and specimen collection anduntil the employer’s notificationemployer is notified by EHN of negative results on both the drug and alcohol tests, alcohol and drugs, or MRO-verified negative test results. 202.10-2. 3. When negativeconfirmation of test results are made available to the employer, the supervisor shall notify the employee by telephone and by certified mail using the contact information provided by the employee. The notice to the employee shall identify a reinstatement date. Back if the test was confirmed negative, or applicable consequences if the test was confirmed positive. If the employee is reinstated, back pay shall be provided in accordance with the Back Pay Policylaw. However, if the employee fails to return to work on the assigned reinstatement date as instructed in the notice from the supervisor, the supervisor shall discipline the employee in accordance with the Personnel Policies and ProceduresNation’s laws, rules and policies governing employment, unless an extension is granted in writing by the supervisor along with the reason for the extension. An employee who is ultimately terminated for failure to return to work on his or her assigned reinstatement date shall not be eligible for employment for one (1) year after the date of termination. 202.10-3. This section applies only to current employees who meet the reasonable suspicion standard. It does not apply to applicants. 2 O.C. 202 – Page 7 Open Packet Page 50 of 306 Draft 1 for OBC Consideration 2017 04 12 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350 351 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 367 368 369 370 371 202.11. Consequences for Prohibited Behavior 202.11-1. Either an internal applicant or an external applicant may decline the position at any time before being directed to the Employee Health Nursing Department EHN or other designated testing site for his or herthe applicant’s drug and alcohol testing. 202.11-2. External Applicant. If an external applicant fails to show at the testing site within the time allotted, or on the date of the scheduled test, or has engaged in prohibited behavior as listed at section 202.6-1(e) that has been documented, the employment offer shall be withdrawn. An external applicant shall not be eligible for hiring consideration for one hundred eighty (180) days from the date of the urine drug screening test. 202.11-3. Internal Applicant. If an internal applicant fails to show at the testing site within the time allotted, or on the date of the scheduled test, or has engaged in prohibited behavior as listed at section 202.6-1, the employment offer shall be withdrawn. The applicant shall be removed from duty and subject to respective consequences of this Policylaw. The applicant shall not be eligible for hiring consideration in a different position for one hundred eighty (180) days from the date of the urine drug screening test. 202.11-4. Employee. If an employee has engaged in prohibited behavior as listed in section 202.6-1, and/or fails to cooperate by not responding to contact from the MRO within ten (10) business days (which shall be deemed thereafter as a definite positive test), he or shethe employee shall be removed from duty and subject to the respective consequences of this Policylaw. 202.11-5. Consequences. (a) First Violation. (1) Any employee who engages in prohibited behavior as defined in section 202.6 for the first time shall be removed from duty without pay and shall receive a mandatory referral to ONEAP for an assessment. The ONEAP shall also determine if the employee shall be subject to return-to-duty/follow-up testing. If follow-up testing is required, the testing shall be at the employee’s expense. (2) The employee shall be required to sign aa Return-to-Work Agreement and submit itthe agreement to his or her supervisor within ten (10) calendar days or the employee shall be terminated and ineligible for re-hire for one (1) year. (A) When the supervisor signs the Return-to-Work Agreement the employee shall be placed back on the work schedule by the next regularly scheduled workday. (3) Failure to comply with the signed Return-to-Work Agreement shall result in the employee being terminated and ineligible for re-hire for one (1) year. (b) Second Violation. (1) Any employee who engages in prohibited behavior as defined in section 202.6 a second time within his or her lifetime of employment with the TribeNation shall be removed from duty without pay and shall receive a mandatory referral to ONEAP for an assessment. (2) The employee shall be required to sign aa Return-to-Work Agreement and submit it to theirthe employee’s supervisor for signature within ten (10) calendar days or the employee shall be terminated and ineligible for re-hire for one (1) year. After a second violation the employee shall not be placed back on the work schedule until: 2 O.C. 202 – Page 8 Open Packet Page 51 of 306 Draft 1 for OBC Consideration 2017 04 12 372 373 374 375 376 377 378 379 380 381 382 383 384 385 386 387 388 389 390 391 392 393 394 395 396 397 398 399 400 401 402 403 404 405 406 407 408 409 410 411 412 413 414 415 (A) The employee receives approval from the ONEAP that they have demonstrated sufficient progress in a treatment program that would indicate the employee is drug and alcohol free within thirty (30) days of the employee being removed from duty; and (B) The employee completes a return-to-duty drug screening and alcohol test at a SAMHSA-certified facility at their own expense, which shall be negative within thirty (30) days of the employee being removed from duty; (C) The ONEAP notifies the supervisor of the employee’s eligibility to return to work. (3) As a condition of continuing employment, the employee shall participate in follow-up testing with continued negative results as directed by the ONEAP and listed in the Return-to-Work Agreement. All follow-up testing shall be at the employee’s expense. (4) Failure to comply with the Return-to-Work agreement or follow up testing shall result in the employee being terminated and ineligible for re-hire for one (1) year. (c) Third Violation. (1) Any employee who engages in prohibited behavior as defined in section 202.6, a third time in his or her lifetime of employment with the TribeNation shall be terminated. The employee shall not be eligible for employment unless he or she receives a forgiveness pursuant to the Pardon and Forgiveness Lawlaw. An employee that receives a forgiveness shall not be eligible for re-hire for one (1) year after the date of termination. 202.12. Re-hire 202.12-1. Former employeesA former employee that werewas terminated due to violations of this Policylaw shall provide, along with theirthe former employee’s application for employment, the following: (a) Proof of completion of a certified Alcohol and Other Drug Abuse program; and (b) A negative drug screening and alcohol test at a SAMHSA-certified facility completed within the last thirty (30) days. This drug screening and alcohol test shall be done at theirthe former employee’s own expense. 202.13. Other Potential Consequences 202.13-1. The violation of this Policylaw may result in consequences to the employee beyond any discipline or corrective action that may be taken. Other potential consequences include the following: (a) Disqualification of Unemployment Benefits.: EmployeesAn employee who areis terminated as a result of a violation of this Policylaw may be ineligible for unemployment benefits. (b) Reduction of Workers Compensation Benefits.: EmployeesAn employee who sufferincurs an injury in a work-related accident that occurred while engaged in a violation of this Policylaw may have any workers compensation benefits reduced. (c) Criminal Penalties.: EmployeesAn employee whose conduct violates state or federal criminal laws may be referred to appropriate law enforcement for criminal prosecution. 2 O.C. 202 – Page 9 Open Packet Page 52 of 306 Draft 1 for OBC Consideration 2017 04 12 416 417 418 419 420 421 422 423 424 425 426 427 428 429 430 431 432 433 434 435 436 437 438 439 440 441 442 443 444 445 446 447 448 449 450 (d) Liability for Accidents.: EmployeesAn employee whose conduct in violation of this Policylaw causes an accident may be held personally responsible for losses associated with the accident, and the employee may be required to pay for those losses. 202.14 . Confidentiality 202.14-1. Information related to the application of this Policylaw is confidential. Access to this information is limited to those who have a legitimate “need to know” in compliance with relevant laws and personnel policies and procedures. 202.14-2. All drug and alcohol testing information shall be maintained at EHN in confidential records, which are separate from the employee’s clinical and personnel files. The employee may request a copy of his or herthe employee’s records. The records may be requested by a third party in accordance with the Oneida Personnel PoliciesNation’s laws, rules and Procedurespolicies governing employment. 202.15. Communication 202.15-1. HRD shall communicate this Policylaw to all employees to ensure all employees are aware of their role in supporting this Policylaw: (a) All employees shall be given information on how to access this Policylaw. (b) This Policylaw shall be reviewed in new employee orientation and other means, as deemed appropriate by HRD. (c) All employees shall sign an acknowledgment form stating they have received a copy of this Policylaw, have read and understand it, and agree to follow this Policylaw. End. See GTC-101-31-94-B Adopted by the OBC on 808-17-94 Emergency Amendments BC-04-20-95-C Adopted BC-10-25-95-A (repealed previous versions) Amended BC-10-20-99-A Amended BC-12-05-07-B Amended BC-12-11-13-F Emergency Amended BC-10-26-16-D Amended BC- 2 O.C. 202 – Page 10 Open Packet Page 53 of 306 Draft 1for OBC Consideration 2017 04 12 1 2 Title 2. Employment – Chapter 202 DRUG AND ALCOHOL FREE WORKPLACE 3 4 5 6 7 8 9 10 11 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 202.1. Purpose and Policy 202.2. Adoption, Amendment, Repeal 202.3. Definitions 202.4. Application 202.5. Shared Responsibility 202.6. Prohibited Behavior 202.7. Reasonable Suspicion 202.8. Drug and Alcohol Testing 12 13 14 15 16 17 18 19 202.9. Refusal to Test 202.10. Reasonable Suspicion Testing Waiting Period 202.11. Consequences for Prohibited Behavior 202.12. Re-hire 202.13. Other Potential Consequences 202.14. Confidentiality 202.15. Communication 202.1. Purpose and Policy 202.1-1. Purpose. The Nation is committed to protecting the safety, health and well-being of all employees, and other individuals in the workplace. The Nation recognizes that alcohol abuse and drug use pose a significant health and safety threat to our customers and other employees. The Nation also recognizes that alcohol and drug abuse and addiction are treatable illnesses. The Nation realizes that early intervention and support may improve the success of rehabilitation. 202.1-2. Policy. It is the policy of the Nation to establish a drug and alcohol-free workplace program that balances respect for individuals with the need to maintain an alcohol and drug-free environment. The Nation encourages employees to voluntarily seek help for their personal drug and alcohol-related problems. 202.2. Adoption, Amendment, Repeal 202.2-1. This law was adopted by the Oneida Business Committee by resolution BC-10-25-95-A and amended by BC-10-20-99-A, BC-12-05-07-B, BC-12-11-13-F and BC___________. 202.2-2. This law may be amended or repealed by the Oneida Business Committee and/or the Oneida General Tribal Council pursuant to the procedures set out in the Legislative Procedures Act. 202.2-3. Should a provision of this law or the application thereof to any person or circumstances be held as invalid, such invalidity shall not affect other provisions of this law which are considered to have legal force without the invalid portions. 202.2-4. In the event of a conflict between a provision of this law and a provision of another law, the provisions of this law shall control. 202.2-5. This law is adopted under authority of the Constitution of the Oneida Nation. 202.3. Definitions 202.3-1. This section shall govern the definitions of words or phrases as used within this law. All words not defined herein shall be used in their ordinary and everyday sense. (a) “Appropriate authority” means the Human Resources Department hiring representative, immediate supervisor, EHN, MRO, and/or ONEAP who requests the drug and/or alcohol testing for reasons of pre-employment, reasonable suspicion, and/or follow-up testing. (b) “Business day” means Monday through Friday from 8:00am-4:30pm, excluding holidays recognized by the Nation. (c) “Confirmed positive test result” means a lab-confirmed drug test that is verified by the MRO that exceeds the cut-off levels established by this law (levels established by the United States Department of Health and Human Services), confirmed saliva testing, confirmed evidential breath alcohol test results of 0.02 or greater; and/or refusal to test. (d) “EHN” means the Oneida Employee Health Nursing Department. 2 O.C. 202 – Page 1 Open Packet Page 54 of 306 Draft 1 for OBC Consideration 2017 04 12 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 (e) “Employee” means any individual who is employed by the Nation and is subject to the direction and control of the Nation with respect to the material details of the work performed, or who has the status of an employee under the usual common law rules applicable to determining the employer-employee relationship. “Employee” includes, but is not limited to; an individual employed by any program or enterprise of the Nation, but does not include elected or appointed officials, or individuals employed by a Tribally Chartered Corporation. For purposes of this law, individuals employed under an employment contract as a limited term employee are employees of the Nation, not consultants. (f) “External applicant” means a person who is applying for a position and not currently employed by the Nation. (g) “HRD” means the Human Resources Department and/or representatives performing Human Resources functions applicable to this law. (h) “Internal applicant” means a person who is applying for a position who is currently employed by the Nation, this includes those employed under a temporary status. (i) “MRO” means Medical Review Officer who is a licensed physician who is responsible for receiving and reviewing laboratory test results generated by an employer’s drug testing program and evaluating medical explanations for certain drug test results. (j) “Nation” means the Oneida Nation. (k) “NHTSA” means the National Highway Traffic Safety Administration. (l) “ONEAP” means the Oneida Nation Employee Assistance Program which is a professional counseling program staffed by clinical social workers licensed by the State of Wisconsin which offers services to the Nation’s employees and family members. (m) “Prohibited drug(s)” means marijuana, cocaine, opiates, amphetamines, phencyclidine (PCP), hallucinogens, methaqualone, barbiturates, narcotics, and any other substance included in Schedules I through V, as defined by Section 812 of Title 21 of the United States Code. This also includes prescription medication or over-the-counter medicine used in an unauthorized or unlawful manner. (n) “Return-to-Work Agreement” means an agreement, developed by an ONEAP counselor and signed by the employe [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/tribal%3Aoneida_nation%3Ad63ae3cf99e6df18. Public record. Not legal advice.