CHAPTER 45 – SPOKANE TRIBAL EMPLOYMENT RIGHTS ORDINANCE (2021)

CHAPTER 45 – SPOKANE TRIBAL EMPLOYMENT RIGHTS ORDINANCE

Section 45-1 Name, Purpose, and Scope

Section 45-2 Definitions

Section 45-3 Spokane Tribal Employment Rights Commission

Section 45-4 Spokane Employment Rights Program

Section 45-5 Compliance Plans

Section 45-6 Enforcement and Penalties for Violations

45-7 Complaints and Hearings

Section 45-8 Appeals

Section 45-9 Confiscation and Sale

Section 45-10 Commission Funds and Fee Waivers

Section 45-11 Equal Employment Opportunities

Section 45-12 Wage and Hour Standards

Section 45-13 Health, Welfare, and Pension Fund Benefits

Section 45-14 Retaliation or Reprisal

Section 45-15 Covered Employer License Fee

Section 45-16 Publication of Ordinance

Section 45-17 Effective Date

Section 45-18 Rules and Regulations

Section 45-19 Severability

Section 45-1 Name, Purpose, and Scope

45-1.01 Name. This Ordinance shall be known as the “Spokane Tribal Employment

Rights Ordinance”.

Legislative History: Adopted 2/20/19, Resolu. 2019-165.

45-1.02 Purpose. The purpose of this Ordinance is to assist in and require the fair

employment of Indian Preference Applicant/Employees on the Reservation a-nd to

prevent discrimination against Indian Preference Applicant/Employees in the employment

practices of Covered Employers through the creation of the Tribal Employment Rights

Commission and the establishment of rules, regulations and policies governing its

responsibility and authority to ensure compliance with this Ordinance.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

45-1.03 Scope. Unless otherwise limited by federal law, this Ordinance shall apply to all

Covered Employers, regardless of tier, who engage in Covered Projects on the

Reservation, with or without an approved land lease, where the Covered Project is either

substantially performed on the Reservation, or where at least fifty percent (50%) of the

services, unfinished products, or by-products come from within the Reservation. This

Ordinance shall not apply to the Tribe, the Federal Government, or the State of

Washington, including any political subdivision thereof, or the contractors and/or

subcontractors of such governmental entities.

Legislative History: Adopted 2/20/19, Resolu. 2019-165; Amended 7/02/21, Resolu. 2021-382.

Section 45-2 Definitions

45-2.01

Definitions. For the purposes of this Ordinance, the following words or

phrases shall have the meanings indicated:

(a)

“Agent” means any employee or individual authorized to act on behalf of

the Commission.

(b)

“Agriculture” means the cultivation of land and breeding of animals and

plants to provide food, fibers, medicinal plants, and other products.

(c)

“Business for Profit” means any business enterprise or operation which is

not considered a non-profit or not-for-profit organization by the IRS.

(d)

“Chairperson” means the Chairperson of the Spokane Tribal Employment

Rights Commission.

(e)

“Commission” means the Spokane Tribal Employment Rights Commission.

(f)

“Commissioner” means a Commissioner of the Spokane Tribal Employment

Rights Commission.

(g)

“Contract” means any agreement, whether written or oral, for goods or

services, including but not limited to contracts for construction, supplies,

materials, services, and equipment, unless exempted under this Ordinance.

“Contract” is intended to be interpreted broadly and shall include

subcontracts.

(h)

“Construction” means the process of constructing a Covered Project such

as a building or infrastructure. Construction includes, but is not limited to,

clearing, cleaning, dredging, excavating, and grading of land and other

activity associated with buildings, structures, or other types of real property,

such as bridges, dams, and roads.

(i)

“Wage Scale” requires all Covered Employers to compensate all Indian

Preference Applicant/Employees at a rate equal to the wages paid to their

non-Indian Preference employees performing the same job or scope of work

on any Covered Project. If the Covered Employer is a signatory to a trade

union, the current pay scale and benefits of that trade will be paid. If tribally

determined wage rates or Davis Bacon wage rates are required by Tribal or

Federal law, those wages shall be paid.

(j)

“Core Crew” means key personnel required by the Covered Employer who

are regular, permanent employees and who are in a supervisory or other

key position; only the first and thereafter every seventh employee may be

employed as key personnel and/or core crew by a Covered Employer (for

example, after the sixth (6th) tribal/TERO employee, the seventh (7th) can

be a core crew member or key personnel).

(k)

“Council” means the Spokane Tribal Business Council.

(l)

“Court” means the Spokane Tribal Court.

(m)

"Covered Activities" are activities, inclusive of labor, goods and services,

that are directly related to Agriculture, Construction, Forestry,

Manufacturing, or Mining.

(n)

"Covered Employer" means Employers, including but not limited to General

Contractors, who perform Covered Activities for Covered Projects. For

purposes of clarity, "Covered Employer" does not include the Tribe, the

Federal Government, or the State of Washington, including any political

subdivision thereof, or the contractors and/or subcontractors of such

governmental entities.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165; Amended 7/02/21, Resolu. 2021-382.

(o)

"Covered Project" occurs when a Covered Employer receives ten thousand

dollars ($10,000.00) or more in total compensation to perform Covered

Activities for a Project, or pays employees in order to perform Covered

Activities worth a total value of ten thousand dollars ($10,000.00) or more

for a Project, and the Project is:

(1)

(2)

(3)

substantially performed on the Reservation; or

at least fifty percent (50%) of the services are performed on the

Reservation; or

at least fifty percent (50%) of the unfinished products or by-products

come from the Reservation.

(p)

“Direct Federal Contract” means a contract let by an agency of the United

States directly to a General Contractor or other Covered Employer.

(q)

“Director” means the Director of the Spokane Tribal Employment Rights

Program.

(r)

“EEOC” means the Equal Employment Opportunity Commission of the

United States.

(s)

“Employer” any person, business, or other entity with two (2) or more

employees and the owners, agents, or representatives thereof. However,

the Tribe, the Federal Government and the State of Washington, including

any political subdivision thereof, are excluded from this definition of

Employer and are not subject to this Ordinance.

(t)

“Engaged in a Covered Project” means a Covered Employer performs work

related to a Covered Project and the Covered Project is either substantially

performed on the Reservation, or where at least fifty percent (50%) of the

services, unfinished products, or by-products related to the Covered Project

come from within the Reservation.

(u)

“Federally Funded Contract” means a contract in which the Federal

Government has contracted or granted funds to a Covered Employer.

(v)

“For the Benefit of Indians” means work performed under a Direct Federal

Contract or Federally Funded Contract if the benefits provided to Indians

are in addition to or incidental to any benefits which might occur to the

general public.

(w)

“Forestry” means the science or practice of creating, managing, using,

conserving, and repairing forests, woodlands, and associated resources for

various uses, including protection, recreation, commercial, and industrial

uses. Forestry includes, but is not limited to: establishing, planting,

cultivation, maintenance, managing, and caring for forests; management of

growing timber; harvesting and logging activities; creation of wildlife

habitat; water quality management; biodiversity management; watershed

management; erosion control; reforestation activities; and efforts to protect

forests from weeds, insects, fungal diseases, and fire.

(x)

A “General Contract” mean a Contract for a Covered Project, including but

not limited to, purchasing Covered Project materials, hiring and paying

Covered Project subcontractors, or coordinating or supervising Covered

Project work.

(y)

A “General Contractor” means a Covered Employer who is responsible for

coordinating or supervising a Covered Project, including but not limited to,

purchasing Covered Project materials, hiring and paying Covered Project

subcontractors, and coordinating or supervising all the Covered Project

work. An owner who self-performs the General Contractor role shall be

considered a General Contractor.

(z)

“Indian Preference” means a unique legal right that Indian Tribes enjoy by

which qualified Indian Preference Applicant/Employees have first

consideration for all employment related to Covered Projects and all training

related to Covered Activities. Order of preference is provided in § 452.01(aa).

(aa)

“Indian Preference Applicant/Employee” means a person who is recognized

as falling within one of the below listed categories in the following order of

preference, except a different order of preference may be followed if

required as a condition of a Federal or State funded project:

(1)

Enrolled member of the Spokane Tribe of Indians.

(2)

Child of an enrolled member of the Spokane Tribe of Indians.

(3)

Spouse of an enrolled member of the Spokane Tribe of Indians.

(4)

Enrolled member of a federally recognized tribe of Indians.

(5)

Enrolled member of a state recognized tribe of Indians.

(bb)

“Indian Owned Business” means either:

(1)

a business owned by an Indian Preference individual as per the

categories specified in § 45-2.01(aa) and either has social and

economic ties to the Tribe with their primary place of residence

within the Reservation; or

(2)

a business “owned by” a Tribal Member. “Owned by” shall mean a

business entity of which at least fifty-one percent (51%) is actively

owned, operated, and managed by the Tribal Member.

(cc)

“Mining” means:

(1)

The act, process, or industry of obtaining or extracting hydrocarbons,

rock, stone, gravel, sand, radioactive materials, ores, coal, minerals,

or any other geological materials or geothermal resources from the

earth, whether through a surface mine or any other means;

(2)

The act, process, or industry of obtaining or extracting any nonrenewable resource such as oil, petroleum, natural gas, and water;

(3)

On-site mineral processing, including asphalt or concrete batching,

concrete recycling, other aggregate recycling;

(4)

Transporting minerals to and from a Covered Project, on-site road

maintenance, road maintenance for roads used exclusively for

mining activities, traffic safety, and traffic control;

(5)

Reclamation and clean-up related to mining activities, such as water

treatment including but not limited to treatment facilities, cap, fill, or

storage ponds;

(6)

All other mining related activities including, but not limited to,

activities which affect noise generation, air quality, surface and

ground water quality, water quantity, water flow, glare, pollution,

traffic safety, ground vibrations, and/or significant or substantial

impacts commonly regulated under provisions of land use or other

permits.

(dd)

“Manufacturing” means the process of converting raw materials,

components, or parts into finished goods, wares, or any article of value, by

manual labor or by machinery, especially on a large scale or when carried

on systematically with division of labor.

(ee)

“OFCCP” means the Office of Federal Contract Compliance Programs of the

United States.

(ff)

"Project" means an individual or collaborative piece of work, consisting of

any number of Transactions, planned and designed to achieve a particular

aim or purpose. For example, if the intended aim or purpose is to construct

a single detached dwelling, then the Project is to construct a single home.

If the aim or purpose is to construct a housing development, then the

Project is to construct an entire housing development. Additionally, if the

Project is for the construction of a single-family home, then the related

plumbing, electrical, landscaping, etc. contracts would all still be part of the

same Project.

(gg)

“Reservation” means the Spokane Indian Reservation in Washington,

including all extensions thereof, including all land, whether owned by the

United States in trust for the Tribe or a Tribal Member, or fee lands located

therein, and any lands owned by the United States in trust for the benefit

of the Tribe or a Tribal Member, wherever they are located.

(hh)

“Respondent” means any Covered Employer, union, or other entity, or any

individual owner or employee thereof, facing a complaint for a violation of

this Ordinance or the rules, regulations, or decisions of the Commission or

the Director, including any entity which appeals such complaint to the Court.

(ii)

“Secretary” means the Secretary of the Interior or his duly authorized

representatives.

(jj)

“Subcontract” means any contract let by a General Contractor to its

subcontractors for supplies or work related to a Covered Project, regardless

of tier.

(kk)

"Transaction" means an agreement, including but not limited to a Contract,

whether oral or in writing, whereby an Employer agrees to provide goods

or services, or otherwise engage in a Covered Project.

(ll)

“Tribal Member” means a person who is a duly enrolled member of the

Tribe.

(mm) “Tribe” means the Spokane Tribe of Indians.

(nn)

“Tribally Owned Business” means a business that is at least fifty-one

percent (51%) owned by the Tribe.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

Section 45-3 Spokane Tribal Employment Rights Commission

45-3.01 Appointment. The Commission shall be comprised of five (5) members and two

(2) alternates appointed by the Council.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

45-3.02 Terms of Office. The members of the Commission shall be appointed for a term

of three (3) years. To ensure continuity, the Council shall appoint two (2) members plus

two (2) alternates for a three-year (3) term, two (2) members for a two-year (2) term

and one (1) for a one-year (1) term. The Council shall fill each vacancy by appointing a

new member or reinstating the member whose term is expiring. An alternate shall replace

any member who is removed or for some other reason cannot fulfill their term. An

alternate shall also sit in place of any member of the Commission absent whose presence

is required to create a quorum as required by § 45-3.08.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

45-3.03 Removal from Office. A Commissioner may be removed by the Council only for

good cause shown after notice and hearing by the Council.

Legislative History: Codified 2/20/19, Resolu. 2019-165.

45-3.04 Vacancy and Interim Appointment. If a Commissioner shall die, resign, become

incapacitated or be removed from office, a vacancy on the Commission shall be created

automatically, and the unexpired term shall be filled by the Alternate. If two (2) or more

vacancies are created, Council members shall be appointed to serve the unexpired terms.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

45-3.05 Chairperson. The Chairperson shall be elected by the members of the

Commission on an annual basis. The Chairperson shall preside at all formal and informal

meetings and hearings of the full Commission.

Legislative History: Codified 2/20/19, Resolu. 2019-165.

45-3.06 Duties of the Commission. The Commission or its authorized representatives

shall administer this Tribal Employment Rights Ordinance.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

45-3.07 Powers of the Commission. The Commission or its authorized representatives

shall have the following powers and authority:

(a)

To present written recommendation to the Council for the appointment of

the Director, who thereafter shall be subject to the supervision of the

Commission. The Spokane Tribe of Indians Employee Policy Manual shall

be followed when filling the Director position and when supervising the

Director. The Commission shall provide written guidelines on how to

implement supervision of the Director, subject to Tribal Council’s approval.

(b)

To pay salaries pursuant to a salary schedule approved by the Council.

(c)

To delegate powers of the Commission to the Director consistent with this

Ordinance.

(d)

To promulgate regulations consistent with this Ordinance, which shall be

subject to approval by the Council.

(e)

To make recommendations to the Council on amendments to this

Ordinance.

(f)

To expend funds appropriated by the Council for the Spokane Tribal

Employment Rights Program and funds collected from Covered Employers

as provided herein.

(g)

To obtain funding from Federal, State or other sources to supplement

Council appropriations.

(h)

To establish numerical hiring goals and timetables specifying the minimum

number of Indians a Covered Employer must hire by craft or skill level.

(i)

To require Covered Employers to establish or participate in job training

programs as the Commission or the Director deems necessary to increase

the pool of Indians eligible for employment on the Reservation.

(j)

To establish and administer the Tribal Hiring Hall and require Covered

Employers to use the Hiring Hall.

(k)

To prohibit Covered Employers from using job qualifications criteria or

personnel requirements that may bar Indians from employment unless such

criteria or requirements are bona fide and necessary occupational

qualifications for employment. Commission regulations may adopt EEOC

guidelines or may adopt additional requirements to eliminate employment

barriers unique to Indians and the Reservation.

(l)

To enter into agreements with Unions to insure union compliance with this

Ordinance.

(m)

To require Covered Employers to give preference to Tribally Owned

Businesses and Indian Owned Businesses in the award of Contracts related

to Covered Projects.

(n)

To establish counseling programs to assist Indians in obtaining and

retaining employment.

(o)

To hold hearings and to subpoena witnesses and documents in accordance

with this Ordinance.

(p)

To assess fines and penalties consistent with this Tribal Employment Rights

Ordinance.

(q)

To require Covered Employers to submit reports and take all action deemed

necessary by the Commission or the Director to ensure compliance with this

Ordinance.

(r)

To enter into cooperative agreements with Federal agencies such as EEOC

and OFCCP to eliminate discrimination against Indians both on and off the

Reservation as well as to enter into agreements with the Council for the

same purposes.

(s)

To take such other actions consistent with this Ordinance as are necessary

to achieve the purpose and objectives of the Spokane Employment Rights

Program established in this Ordinance.

(t)

The Commission including any of its agents, employees or delegates, shall

retain all rights and privileges of sovereign immunity of the Tribe.

(u)

The Commission can operate and manage job training or similar programs

when such programs are delegated to the Commission by the Spokane

Tribe's other Agencies and Departments that are charged to operate such

programs, or when establishment of new job training or similar programs

are deemed necessary and delegated to the Commission by the Tribal

Business Council.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165; Amended 11/10/20, Resolu. 2020-336.

45-3.08 Commission Obligations.

(a)

In establishing and maintaining the numerical goals provided for in §454.03, and the requirements for training programs as provided for in §454.04, the Commission shall consult with affected Covered Employers and

shall consider their input and recommendations.

(b)

The Commission may hold such formal and informal meetings, and regulate

the times and procedures thereof as it may deem necessary in order to

carry out its duties and powers under this Ordinance.

(c)

The Commission shall attempt, whenever possible, to administer this

Ordinance and execute its powers hereunder by a consensus approach. If

a consensus cannot be achieved, the affirmative vote of at least three

Commissioners shall be required to render effective any decision or action

of the Commission, and the Chairperson shall be entitled to vote on any

decision or action.

(d)

All written agreements or plans, directives, orders, complaints, and appeals

which the Commission is authorized or required to issue or file hereunder

shall bear the signature of at least two Commissioners.

(e)

Any actual or apparent conflict of interest by a Commissioner or TERO

Employee must be identified and reported immediately by said

Commissioner or Employee to the Commission. Failure to report an actual

or apparent conflict of interest shall be reported to the Council, which may

take action pursuant to §45-3.03 of this Ordinance and such failure is

determined by this Code to be “good cause”. These requirements shall

apply to personal conflicts of interest, including but not limited to immediate

family members, business conflicts of interest, and other conflicts of

interest.

(f)

The Commission shall establish and administer a Tribal Hiring Hall, as per

§45-4.07.

(g)

The Commission is authorized to develop a Local Indian Business Support

Program, as per § 45-4.08(d).

(h)

The Commission shall have additional obligations as identified elsewhere in

this Ordinance.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

45-3.09 Removal of Director.

(a)

Only the Council may remove the Director, and only for good cause after

notice and hearing by the Council.

(b)

The Council may consider written Commission recommendations

concerning removal of the Director. Such recommendations are not binding,

nor are they required for Council to remove the Director. The Commission

does not have authority to remove the Director.

(c)

Before voting to remove the Director, the Council shall give the Director

reasonable written notice of the reasons for the proposed removal and an

opportunity to respond to such notice at a meeting of the Council. If, after

such a meeting, the Council determines to remove the Director, the decision

of the Council shall only be reviewable as provided for in the Spokane Tribe’s

Employee Policy Manual.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

45-3.10 Duties and Powers of the Director.

(a)

Subject to the supervision and direction of the Commission, the Director

shall exercise all those duties and powers under this Ordinance which may

be delegated to the Director by the Commission, provided, however that

any decision which the Commission is authorized or required to make

hereunder, including the issuance or filing of the written materials listed in

§45-3.08 hereof, shall not be so delegated. The Commission may delegate

routine or administrative correspondence not involving any decision-making

powers of the Commission to the Director.

(b)

The Commission shall define by rule or regulation the specific powers and

duties hereunder which the Director shall exercise.

(c)

The Director shall maintain a list of Tribally Owned Businesses and Indian

Owned Businesses.

(d)

To make recommendations to the Council, or the Council’s authorized

designee, when hiring and/or firing TERO Program employees. The Spokane

Tribe of Indians Employee Policy Manual, and all applicable limitations and

requirements thereof, shall be utilized in the hiring and/or firing process.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

Section 45-4 Spokane Employment Rights Program

45-4.01 Coverage and Scope.

(a)

All Covered Employers who perform Covered Projects are required to apply

Indian Preference, as per § 45-2.01(aa), in hiring, promotion, and training,

of employees who perform Covered Project activities. All Covered

Employers shall ensure that Covered Project comply with this Ordinance

and the rules, regulations and orders of the Commission.

(b)

The foregoing requirements shall apply only to Covered Employers engaged

in Covered Projects. When a Covered Employer has previously agreed in a

Contract, lease or other Transaction to give preference to Indian Preference

Applicant/Employees, this Ordinance and authorized Commission rules,

regulations, and directives shall define the specific minimum obligations of

the Covered Employer pursuant to such written agreement.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

45-4.02 General Contractors and Subcontractors.

(a)

The Indian Preference requirements contained in this Ordinance shall be

binding on all Covered Employers, regardless of tier, and shall be deemed

part of all Contract specifications.

(b)

The General Contractor shall have the initial and primary responsibility for

insuring all contractors and subcontractors comply with these requirements.

(c)

If a contractor or subcontractor of a General Contractor fails to comply with

all Indian Preference requirements or otherwise violates this Ordinance in

any way, the General Contractor, as well as the contractor or subcontractor,

shall be subject to penalties provided by this Ordinance.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

45-4.03 Minimum Numerical Goals and Timetables for Indian Employment.

(a)

The Commission or the Director may establish the annual numerical goals

for the minimum number of Indian Preference Applicant/Employees each

Covered Employer must employ on his work force during any year that he

or any of his employees are engaged in Covered Projects. Numerical goals

may be set for each craft, skill, or job classification, etc., used by the

Covered Employer and shall include, but is not be limited to, administrative,

supervisory and professional categories. The goals shall be expressed in

terms of man hours of Indian Preference Applicant/Employee employment

as a percentage of the total man hours worked by the Covered Employer’s

work force in the job classification involved.

(b)

For both new and existing Covered Employers, the goal(s) shall be reviewed

by the Commission at least annually and shall be revised as necessary to

reflect changes in number of Indian Preference Applicant/Employees

available or changes in Covered Employer hiring plans.

(c)

Each Covered Employer shall submit a monthly report to the Director

indicating the number of Indian Preference Employees in their work force,

how close the Covered Employer is to meeting his goals, all persons hired

and/or fired during the last month, the job positions involved, and other

information requested or required by the Commission.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

45-4.04 Training.

(a)

The Commission may require Covered Employers to participate in training

programs to assist Indian Preference Applicant/Employees to become

qualified in the various job classifications used by the Covered Employer.

(b)

The Commission shall set the ratio of Indian Preference Applicant/Employee

trainees to fully qualified workers after consultation with the Director and

Covered Employers.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

45-4.05 TERO Fee.

(a)

A Covered Employer shall pay an annual TERO Fee of five percent (5%) of

the value of all Covered Activities performed by the Covered Employer for

Covered Projects, as determined by the Commission as per Subsection 454.05 (e).

(b)

The Director may invoice the Covered Employer and payment shall be due

within fourteen (14) days from the date of the invoice. The absence of an

invoice shall not relieve the Covered Employer of the obligation to pay the

TERO Fee. Where good cause is shown, the Director may authorize

installment payments to be paid over the course of the year.

(c)

If for any reason the value of a Covered Project increases or decreases, the

Covered Employer, or the General Contractor who has elected to be

responsible for TERO compliance for the entire Covered Project, shall notify

the Director of this change within fifteen (15) business days, and any

change in the TERO Fee shall be assessed and paid or refunded as

applicable.

(d)

If for any reason a General Contractor does not pay a required TERO Fee

in full and in the time period required by §45-4.05(b), the Director may, in

the Director’s sole discretion, require subcontractor Covered Employers to

pay the applicable portion of the TERO Fee as per this § 45-4.05.

(e)

For purposes of calculating the TERO Fee, the value of Covered Activities

shall be annually determined by the Commission in one of the following

ways:

(1)

The actual audited value of the Covered Activities as substantiated

by the Covered Employer and verified by the Commission; or

(2)

The Commission may impose an assessment in lieu of the actual

audited value of the Covered Activities as determined by Subsection

45-4.05(e)(1); or

(3)

(f)

In lieu of audited value or an assessment, the Commission, the

Director, and Covered Employer may mutually agree to an assessed

value of the Covered Activities based upon alternative methods for

calculation and determination.

A Covered Employer who disagrees with the amount of the required TERO

Fee may appeal the determination pursuant to Section 45-7.

(1)

If the Covered Employer appeals an assessment imposed under

Subsection 45-4.05(e)(2), the Covered Employer shall bear the

burden of proof and must prove the Commission’s assessment is

manifestly unreasonable in light of the actual value of the Covered

Activities.

Legislative History: Amended 3/31/2009, Resolu. 2009-172; Amended 6/26/2012; Resolu. 2012-260; Repealed and Replaced 2/20/19,

Resolu. 2019-165; Amended 3/14/2019, Resolu. 2019-188.

45-4.06 Job Qualification and Personnel Requirements.

(a)

Covered Employers are prohibited from using job qualification criteria or

personnel requirements which bar Indian Preference Applicant/Employees

from employment unless such criteria or requirements are required by

business necessity and are bona fide occupational qualifications for

employment as listed in the most recent version of the Dictionary of

Occupational Titles established by the U.S. Department of Labor, or unless

the Indian Preference Applicant/Employee is unemployable for other valid

reasons.

(b)

Covered Employers may designate key personnel who are regular,

permanent employees in a supervisory or other key position as Core Crew.

Only the first and thereafter every seventh employee may be employed as

Core Crew by a Covered Employer.

(c)

At no time shall Core Crew displace actual or potential Indian Preference

Applicant/Employees by performing work outside the Core Crew’s normal

classification.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

45-4.07 Tribal Hiring Hall.

(a)

The Commission will establish and administer a Tribal Hiring Hall to assist

the Director and Covered Employers in placing Indian Preference

Applicant/Employees in job positions. A Covered Employer may recruit and

hire workers from whatever process he chooses, as long as he complies

with this Ordinance, and the Federal Equal Opportunity Act, in hiring

practices, and Indian Preference regulations and agreements pertaining to

Covered Employer’s operation.

(b)

The Director will determine grade level for Indian Preference

Applicant/Employees pursuant to either industry guidelines or a

Commission-approved program which documents grade levels in a manner

consistent with industry standards.

(c)

Covered Employers must pay employees who perform Covered Project

activities wages as required by the Wage Scale and applicable wage rates.

(d)

A Covered Employer who disagrees with the Director’s determination may

appeal the determination pursuant to Section 45-7 of this Code.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

45-4.08 Counseling and Support Programs.

(a)

The Commission shall cause to be established counseling and other support

programs to assist Indian Preference Applicant/Employees to obtain and

retain employment. Such counseling and other support programs shall

operate according to the preference guidelines of § 45-2.01(aa).

(b)

Every Covered Employer shall be required to cooperate with the

Commission or the Director regarding such counseling and support

programs.

(c)

Every Covered Employer must provide opportunity to any Indian Preference

Applicant/Employee to enter any such program for counseling prior to

termination unless the Indian Preference Applicant/Employee was

terminated for good cause as defined in § 45-4.09(a).

(d)

The Commission is authorized to develop a Local Indian Business Support

Program to promote, facilitate and encourage the success of Indian Owned

Businesses. The Commission is authorized to develop and set criteria

allowing for the reimbursement of certain administrative fees to Indian

Owned Businesses who participate in the Local Indian Business Support

Program.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

45-4.09 Layoffs and Terminations.

(a)

In making any layoffs and reductions in force, all Covered Employers shall

maintain ratios of Indian Preference Applicant/Employees as required by

this Ordinance. Furthermore, no Covered Employer shall terminate or layoff

any Indian Preference Applicant/Employee who is employed pursuant to

this Ordinance without good cause for such termination. “Good cause for

termination” means failure to adequately perform the job, failure to follow

orders, any illegal or fraudulent act pertaining to employment with Covered

Employer, or any act which puts the Covered Employer or other employees

of Covered Employer in an unsafe position in the course of the Indian

Preference Applicant/Employee’s employment.

(b)

The Covered Employer shall apply any and all layoffs in a reasonable and

fair fashion. Layoffs should only occur when there is not adequate work to

keep all employees on the job or when the Covered Employer has a cash

flow shortage necessitating reduction in the work force.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

45-4.10 Promotions. Every Covered Employer shall, in accordance with ratios as required

by this Ordinance, give Indian Preference Applicant/Employees who perform Covered

Project activities preferential consideration for all promotion opportunities and shall

encourage Indian Preference Applicant/Employees to seek such opportunities.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

45-4.11 Summer Students. For Covered Projects, Covered Employers shall give

preferential consideration for summer student employment in accordance with the

preferences set forth in § 45-2.01(aa). Covered Employers shall make every effort to

promote after-school, summer, and vacation employment for Indian Preference students.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

45-4.12 Indian Preference Requirements in Awarding General Contracts and Contracts.

(a)

Covered Employers shall give preference in the award of Contracts to

Tribally Owned Businesses and Indian Owned Businesses. These rules and

regulations apply to all Covered Employers Engaged in a Covered Project.

Tribally Owned Business and Indian Owned preference requirements set

out herein shall apply to:

(1)

(2)

All Contracts which are not Direct Federal Contracts or Federally

Funded Contracts, except as provided in § 45-4.12(a)(2); and

All Contracts which are For the Benefit of Indians and which are

covered by Section 7(b) of the Indian Self Determination Act, P.L.

93-638, 25 U.S.C. 45(e) (b).

(b)

As between equally qualified Indian Owned Businesses, the order of

preference set forth in § 45-2.01(aa) shall be adhered to.

(c)

Any Covered Employer or Indian Owned Business may bid as a supplier,

General Contractor, or subcontractor on the Reservation, but shall not

submit bids for a Contract or to be supplier if bidding on the General

Contract, and shall sign a non-collusion statement for each contract.

(d)

Covered Employers shall notify the Director of all bid openings and the

Director shall have the option to attend all bid openings.

(e)

The Director shall maintain a list of Tribally Owned Businesses and Indian

Owned Businesses which shall be supplied to Employers for their use.

(f)

For all Covered Projects worth seventy-five thousand dollars ($75,000.00)

or more, Covered Employers shall provide an “Indian Contracting Utilization

Plan” to the Commission, which must be approved before the Covered

Employer may commence work on the Covered Project. The Indian

Contracting Utilization Plan must set forth how the Covered Employer

intends to meet the requirements of this Ordinance when awarding General

Contracts and Contracts, and must also provide documentation with respect

to:

(1)

(2)

(3)

How bids from Tribally Owned Businesses or Indian Owned

Businesses were solicited; and

Who was awarded the Contract or Transaction; and

Why a particular Contract or Transaction was awarded to the

particular bidder.

(g)

If the General Contractor or Covered Employer asking for bids has reason

to believe that two (2) or more qualified Tribally Owned Businesses or

Indian Owned Businesses can bid for work included within a Covered

Project, then the invitation for bids shall be restricted to qualified Tribally

Owned Businesses and Indian Owned Businesses. If bids are restricted only

to qualified Tribally Owned Businesses and Indian Owned Businesses and

the Tribally Owned Businesses and Indian Owned Businesses fail to submit

a qualified bid, the invitation for bids shall be open to competition from nonIndian owned businesses and firms.

(h)

If there are less than two (2) Tribally Owned Business or Indian Owned

Business bidders, then the invitation for bids shall also be open to

competition from non-Indian owned businesses and firms.

(i)

Unless there are no Tribally Owned Business or Indian Owned Business

bidders, the lowest qualified Tribally Owned Business or Indian Owned

Business bidder shall be awarded the General Contract or Contract,

provided that such bid is within budgetary limits of the specific Covered

Project or component thereof.

In such instances, Tribally Owned

Businesses and Indian Owned Businesses shall be entitled to an allowance

as between non-Indian Owned Business bidders in the amounts set forth in

§ 45-4.12(k).

(j)

In the case of § 45-4.12(a)(2), the lowest qualified Tribally Owned Business

or Indian Owned Business bidder shall be awarded the General Contract or

Contract if the lowest qualified Tribally Owned or Indian Owned bidder is

within budgetary limits established for the specific project or component of

the project. In such instances, Tribally Owned Businesses and Indian

Owned Businesses shall be entitled to an allowance as between non-Indian

Owned Business bidders in the amounts set forth in § 45-4.12(k).

(k)

The lowest qualified Indian Owned Business or Tribally Owned Business

bidder shall be entitled to an allowance as between the lowest qualified

non-Indian Owned Business bidder in an amount that is not more than the

following fixed percentages:

PERCENTAGE OF BID OR DOLLAR AMOUNT, WHICH

When the lowest responsive bid is

or bid amount

Percentage

(whichever is lowest)

_____________

10% or $ 9,000.

At LEAST

$000,000

but LESS than

$100,000

$100,000

$200,000

9% or $16,000.

$200,000

$300,000

8% or $21,000.

$300,000

$400,000

7% or $24,000.

$400,000

$500,000

6% or $25,000.

$500,000

$1 million

5% or $40,000.

$1 million

$2 million

4% or $60,000.

$2 million

$4 million

3% or $80,000.

$4 million

$7 million

2% or $105,000.

$7 million or more

responsive

(Based on annual Contract value)

1% of lowest

bid, w/no $ amt

(l)

A Covered Employer who fails to provide an Indian Contracting Utilization

Plan shall be deemed in violation of this Ordinance and shall be subject to

enforcement actions, including assessment of fines and penalties, as set

forth in this Ordinance.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

45-4.13 Burden of Proof. In any hearing before the Commission where the issue is

Covered Employer compliance with any of the requirements of § 45-4.14, the burden of

proof shall be on the Covered Employer to show compliance.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

45-4.14 Prohibited Activities.

(a)

The following is a non-exhaustive list of prohibited activities.

(1)

(2)

(3)

(b)

Submitting false or fraudulent information to the Director or the

Commission;

Operating as a front or pass through company; or

Preventing or interfering with a Covered Employer’s compliance with

this Ordinance.

Bid collusion is strictly prohibited for Covered Projects and will result in

enforcement as set forth in this Ordinance and as otherwise provided under

the laws of the Tribe, including but not limited to debarment.

(1)

(2)

(3)

Bid collusion shall include, but is not limited, to price fixing, bid

rigging, allocation schemes, or any other action or inaction that

restricts competition or impacts project pricing. Any practice

involving or comparable to informing a competitor of the amount of

the bid or offering them an opportunity to underbid will be

considered bid collusion.

If a Covered Employer determines that a contractor, subcontractor,

or other Covered Employer has engaged in bid collusion, the Covered

Employer shall disqualify the bid and refer the matter to the Director.

The Covered Employer or Tribal entity shall provide the Director with

all documentation supporting its determination. If the Director

makes a finding that bid collusion did occur, the Director shall

proceed as set forth in this Ordinance.

The Commission reserves the right to exercise all available equitable

and legal remedies, including cancellation of the Covered Project and

debarment from future bidding on Covered Projects and/or

decertification with the Tribe for up to one (1) year. Willful and/or

repeated violations may result in debarment for up to three (3) years.

(4)

(5)

(6)

(c)

Debarred Individuals may not bid or participate in any Covered

Projects or any other Contracts with the Tribe as owners or key

employees of other companies during the period of debarment.

If a Covered Employer is engaged in Covered Projects at the time

they are found to have engaged in bid collusion, the Director in their

discretion may require the Covered Employer to complete their

current work, and during this period the Covered Employer shall be

suspended from bidding and or performing any work on any other

Covered Projects. The debarment period shall commence when the

current Covered Project is completed.

Any Covered Employer found to have engaged in bid collusion may

be liable for damages for any losses suffered by another firm.

Any Covered Employer disputing a Director determination on bid

collusion may appeal the determination to the TERO Commission, as

per hearing pursuant to § 45-7.03.

Covered Employers who engage in activities prohibited by this Section 454, or who otherwise violate this Ordinance, shall be subject to enforcement

actions as set forth in this Ordinance.

Legislative History: Adopted 2/20/19, Resolu. 2019-165.

Section 45-5 Compliance Plans

45-5.01 Scope.

(a)

Covered Employers who engage in Covered Projects shall abide by a hiring

and employment Compliance Plan approved and issued by the Commission.

The Compliance Plan shall set forth how the Covered Employer will meet

the goal of one-hundred percent (100%) Indian Preference employment in

each job classification and other obligations set out herein for all Covered

Projects, subject to any exceptions provided by this Ordinance. Within thirty

(30) days of the Director’s initial approval, the Director shall obtain final

approval from the Commission at which time the Compliance Plan shall be

issued.

(b)

No Covered Employer as identified above may commence work unless it has

submitted a Commission-approved Compliance Plan setting forth how the

Covered Employer intends to meet the Compliance Plan goals and

objectives during the one-year period of said Compliance Plan.

Legislative History: Codified and Amended 2/21/19, Resolu. 2019-165, Amended 3/14/2019, Resolu. 2019-188.

45-5.02 Compliance Plan for Covered Employers.

(a)

All Covered Employers who engage in Covered Projects shall provide a

proposed Compliance Plan for consideration by the TERO Director who shall

approve, approve with modifications or reject the proposed Compliance

Plan. The TERO Director shall present approved Compliance Plans to the

Commission for consideration of final approval and issuance pursuant to

Section 45-5.01.

(b)

Each Covered Employer shall meet with the Director at least five (5)

business days prior to actually beginning work on a Covered Project and

shall furnish the Director with a precise list of the number and kinds of

employees the Covered Employer expects to employ. The Commission shall

issue a Compliance Plan after considering any special factors or

circumstances the Covered Employer wishes to present.

(c)

Each Compliance Plan shall establish the goal of one-hundred percent

(100%) Indian Preference employment in each job classification for

Covered Projects if:

(d)

(1)

Qualified Indian Preference Applicant/Employees are reasonably

available when the Compliance Plan is adopted to fill all job positions

in each job classification anticipated by the Covered Employer; or

(2)

Qualified Indian Preference Applicant/Employees can reasonably be

expected to become available from training programs or other

sources to fill all such positions during the one-year period of the

Compliance Plan.

(3)

If qualified Indian Preference Applicant/Employees are not available,

then a Compliance Plan may provide for goals of less than 100%

Indian Preference employment in affected job classifications.

If the Covered Employer was already engaged in a Covered Project prior to

the effective date of this Ordinance, and the Covered Project is not yet

complete, that Covered Employer shall comply with § 45-5.03 to develop a

Compliance Plan for that Covered Project.

Legislative History: Codified and Amended 2/21/19, Resolu. 2019-165, Amended 3/14/2019, Resolu. 2019-188.

45-5.03 Compliance Plans for Existing Covered Employers.

(a)

Covered Employers who engaged in a Covered Project prior to the effective

date of this Ordinance shall provide proposed Compliance Plans which

establish hiring and employment goals for employees expected to be

employed after the effective date of this Ordinance during the one (1) year

period of any Compliance Plan.

(b)

Within thirty (30) calendar days after the effective date of this Ordinance,

or longer period of time as determined by the Director, each existing

Covered Employer shall meet with the Director and shall furnish a

reasonably specific list of the number and kinds of new employees the

Covered Employer expects to employ in the following calendar year. The

Commission shall issue a Compliance Plan after considering any special

factors or circumstances the Covered Employer wishes to present.

(c)

Compliance Plans for existing Covered Employers shall establish the goal of

one-hundred percent (100%) Indian Preference employment for new hiring

in each job classification if qualified Indian Preference Applicant/Employees

can reasonably be expected to become available to fill such new positions

during the duration of the Plan. If qualified Indian Preference

Applicant/Employees are not available, then Compliance Plans may provide

for goals of less than one-hundred percent (100%) Indian Preference

employment in affected job classifications.

Legislative History: Codified and Amended 2/21/19, Resolu. 2019-165, Amended 3/14/2019, Resolu. 2019-188.

45-5.04 Compliance Plans; Enforceability.

(a)

A Compliance Plan shall be fully enforceable by the Commission or Director,

as applicable.

(b)

Failure to obtain a Compliance Plan, failure to adhere to the terms of a

Compliance Plan approved by the Director, or supplying false information

to the Director, shall subject the non-complying Covered Employer to

monetary penalties of up to five-thousand dollars ($5,000.00) per violation,

per day. Penalties assessed may be appealed to the Commission.

(c)

Covered Employers engaged in Covered Projects without an approved

Compliance Plan shall be required to stop work on all Covered Projects until

an acceptable Compliance Plan has been submitted to and approved by the

Director.

Legislative History: Repealed and Replaced 2/21/19, Resolu. 2019-165, Amended 3/14/2019, Resolu. 2019-188.

45-5.05 Revision of Compliance Plans; Monthly Employer Reports.

(a)

Each Covered Employer subject to a Compliance Plan shall submit a monthly

report to the Director, or other report as otherwise directed by the

Commission, on a form provided, indicating:

(1)

(2)

(3)

The number of Indian Preference Applicant/Employees in the

Covered Employer’s work force;

How close the Covered Employer is to meeting Compliance Plan

goals;

The total number of persons hired or terminated during the month

and the affected job positions; and

(4)

(b)

Any other information specified by the Commission and reasonably

necessary in monitoring the Covered Employer’s efforts to abide by

the Compliance Plan.

The Director shall meet at least annually with each Covered Employer to

review the goals of every Compliance Plan. Any Compliance Plan may be

revised at any time, after meetings between the Director and Covered

Employer, when necessary to reflect changes in the number of qualified

Indian Preference Applicant/Employees available or changes in Covered

Employer hiring practices.

Legislative History: Codified and Amended 2/21/19, Resolu. 2019-165, Amended 3/14/2019, Resolu. 2019-188.

45-5.06 Compliance Monitoring.

(a)

Upon request of the Director, all Covered Employers shall submit reports

and other information, including but not limited to contractor documents

and certified payroll and personnel records as requested.

(b)

Covered Employers are required to regularly submit payroll information of

all workers on the Covered Project to determine compliance with the

Compliance Plan. Payroll information shall be due at the time the Covered

Employer issues payroll.

(c)

Covered Employers shall allow on-site monitoring of Covered Projects for

compliance with this Ordinance and to confirm workforce utilization

requirements.

Legislative History: Adopted 2/20/19, Resolu. 2019-165.

45-5.07 Non-Compliance or Violations. If any Covered Employer fails or refuses to

comply with the Compliance Plan, such non-compliance shall be deemed a violation of

this Ordinance and subject to fees and penalties set forth in Section 45-6 of this

Ordinance.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

45-5.08 Compliance by Unions.

(a)

Each union with a collective bargaining agreement with a Covered Employer

must file a written agreement stating the union will comply with this

Ordinance and the rules, regulations and directives of the Commission

(“Union Agreements”). Until such Union Agreement is filed with the Director

and approved by the Commission, the Covered Employers thereunder may

not commence work on any Covered Project.

(b)

Union Agreements must be filed with the Director and must provide:

(1)

(2)

(3)

(4)

(5)

That the union will give preference to Indian Preference

Applicant/Employees in job referrals regardless of which union

referral list they are on

That the union will cooperate with the Director in all aspects and

assist in the compliance and enforcement of this Ordinance and

related regulations and agreements.

That the union will establish a mechanism allowing Indian Preference

Applicant/Employees to register for job referral lists by telephone or

mail.

The union will establish journeyman upgrade and advance

apprenticeship programs for Indian Applicants and Employees.

That the union will grant temporary work permits to Indian

Preference Applicant/Employees who do not wish to join the union.

(c)

The Director will provide a memorandum of agreement for use by all unions

who have collective bargaining agreements with a Covered Employer.

(d)

Nothing herein or any activity by the Commission or the Director shall

constitute official Tribal recognition of any union or Tribal endorsement of

any union activities on the Reservation.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

45-5.09 Burden of Proof. In any hearing before the Commission where the issue is

compliance by a Covered Employer or union with any of the requirements of this Section

45-5, the burden of proof shall be on the Covered Employer to demonstrate compliance.

Legislative History: Codified and Amended 2/21/19, Resolu. 2019-165, Amended 3/14/2019, Resolu. 2019-188.

Section 45-6 Enforcement and Penalties for Violations

45-6.01 Enforcement and Penalties for Violations. The Director is authorized to enforce

this Ordinance and the rules and regulations of the Commission as follows:

(a)

Informal Settlement. If the Director has reason to believe a violation of this

Ordinance has occurred, whether upon investigation initiated by a complaint

filed pursuant to § 45-7.2, or on their own initiative, the Director shall then

issue written Notice of Violation to the accused Covered Employer. The

Director and the accused Covered Employer may seek an informal

settlement of the alleged violation immediately. If no settlement can

reasonably be made, the Director shall submit the Notice of Violation to the

Chairperson of the Commission, who shall issue a Notice of Hearing.

(b)

Notice of Violation. The Notice of Violation shall set out the nature of the

alleged violation and the steps necessary to come into compliance

(“Corrective Measures”). The accused Covered Employer shall be provided

not more than five (5) calendar days to implement the Compliance

Measures. This time may be shortened in the Director’s reasonable

discretion to irreparable harm.

(c)

If the Covered Employer disagrees with the Notice of Violation, he may

submit a written Request for Hearing to the Commission. The Request for

Hearing may include a request that Corrective Measures be stayed pending

a Final Decision.

(d)

If a Covered Employer refuses to comply with requirements within the time

imposed by the Director and submitted a Request for Hearing on the matter

pursuant to § 45-7.2(c), the Director may submit a motion to the

Commission to impose one or more penalties below upon said violator.

After being fully advised on the matter, the Commission may issue an order

imposing such penalties it deems necessary. Said order shall constitute a

Final Decision of the Commission and can be appealed only pursuant to

Section 45-8.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

45-6.02 Enforcement.

(a)

Any Covered Employer, or any employee thereof, found in violation of this

Ordinance or the rules, regulations, or decisions of the Commission or the

Director may be subject to the following penalties:

(1)

(2)

(3)

(4)

(5)

(6)

(7)

(8)

(9)

(10)

Denial of any opportunity to commence, continue, or engage in

Covered Projects;

Immediate suspension of any and/or all work on Covered Projects;

Payment of damages and back-pay to compensate any injured party;

Removal of employees hired in violation of this Ordinance or the

rules, regulations, or decisions of the Commission or the Director;

Imposition of monetary civil penalties;

Prohibition from engaging in future work on the Reservation;

Order requiring changes in procedures and policies necessary to

eliminate the violation(s);

Employment, promotion and/or training of Indian Preference

Applicant/Employees injured by the violation;

Any other order deemed necessary by the Commission to alleviate,

eliminate, and compensate for any violation(s);

Imposition of a one-time ten-percent (10%) penalty fee on all

amounts due on monetary payments ordered by the Commission if

not paid within thirty (30) days of Final Decision. If ordered

payments are not paid within sixty (60) calendar days of the initial

billing, then an additional one-time thirty-percent (30%) penalty fee

shall be imposed in addition to the ten-percent (10%) referred to

(11)

above. After sixty (60) calendar days, interest shall accrue at the

rate of one percent (1%) per month on any unpaid balance;

If enforcement and/or collection action becomes necessary for any

Commission Final Decision the Respondent shall pay all reasonable

attorney fees and costs incurred in such proceeding.

(b)

The maximum penalty which may be imposed is five-thousand dollars

($5,000.00) for each violation.

(c)

Each day during which a violation exists shall constitute a separate violation.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

Section 45-7 Complaints and Hearings

45-7.01 Notice of Hearing.

(a)

If the Commission orders a hearing, the Director shall cause a written notice

of hearing to be served upon Respondent and all interested parties stating

the nature of the hearing and the evidence to be presented.

(b)

The notice shall advise Respondent and interested parties of the alleged

violation, their required presence or the presence of a representative on

their behalf, their right to be present at the hearing, to present testimony

of witnesses or other evidence, and to be advised by counsel at their own

expense.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

45-7.02 Complaints.

(a)

Any individual, business, organization, or other entity that believes, or

reasonably believes, any Covered Employer is in violation of this Ordinance,

or any rules or regulations issued thereunder, may file a complaint with the

Director, or the Commission’s authorized agent.

(1)

(2)

(3)

(4)

The complaint shall be in writing and shall provide such information

as is necessary to enable the Director to carry out an investigation.

The Director shall investigate every complaint filed.

If upon investigation, the Director has reason to believe a violation

has occurred, the Director shall proceed pursuant to the provisions

of Section 45-6.

Within twenty (20) business days after receipt of the complaint, and

on a regular basis thereafter, the Director shall provide the

complaining party with a written report on the status of the

complaint.

(b)

Complaints filed under § 45-7.02(a) shall be filed with the Director or the

Commission’s authorized agent within thirty (30) calendar days after the

alleged violation(s), whether by action or omission, occurred.

(c)

The complaint shall include the date, place, and circumstances of the

alleged violation(s) of this Ordinance. The complaint shall be served upon

the Respondent(s) against whom the charge(s) are made within ten (10)

business days of the complaint’s filing.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

45-7.03 Complaints Regarding Administrative Acts of the Commission or Director.

(a)

Any Covered Employer, employee, or other party may challenge any action

of the Commission or the Director by filing a written complaint with the

Director, or the Commission’s authorized agent within five (5) business days

from said action.

(b)

The Commission will review the compliant and will advise the complaining

party of its determination, including any corrective action taken.

(c)

To assist in evaluating the allegations in the Complaint, the Commission

may order an investigation and/or the production of documents, evidence

and witnesses. The Commission may also hold such Hearings as necessary.

Legislative History: Adopted 2/20/19, Resolu. 2019-165.

45-7.04 Service of Complaints. Complaints may be served by registered mail or hand

delivery with receipt.

Legislative History: Codified 2/20/19, Resolu. 2019-165.

45-7.05 Investigations.

(a)

On the Director’s own initiative or pursuant to a complaint, the Director may

conduct an investigation to determine whether any provision of this

Ordinance or any rules, regulations, or decisions hereunder have been

violated.

(b)

The Director or designee may enter, during business hours, the place of

business or employment of any Covered Employer the Director deems

necessary to monitor for compliance with the requirements of this

Ordinance or any rules, regulations, or directives hereunder.

(c)

The Director or his designee shall show official identification adequate to

identify them as the authorized agents of the Commission to make such

investigation.

(d)

If upon the conclusion of the investigation the Director determines that a

violation of this Ordinance has occurred, she shall issue a Notice of

Violation.

(e)

Upon receipt of a Request for Hearing pursuant to § 45-6.01, the Presiding

Official shall issue a Notice of Hearing. The Presiding Official shall have the

discretion to stay Corrective Measures pending the issuance of a Final

Decision.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

45-7.06 Hearing Procedure.

procedure:

Hearings shall be governed by the following rules of

(a)

All parties may present testimony of witnesses and other evidence, and may

be represented by counsel at their own expense.

(b)

The Commission may have the advice and assistance of legal counsel

provided by the Tribe.

(c)

The Chairperson of the Commission, or the Vice-Chairperson, shall preside

and the Commission shall proceed to ascertain the facts in a reasonable and

orderly fashion.

(d)

The hearing may be adjourned, postponed, and continued at the discretion

of the Commission and with due notice to the parties.

(e)

At the final close of the hearing, the Commission may take immediate action

or take the matter under advisement.

(f)

The Commission shall provide written determination to all parties within

thirty (30) calendar days after the hearing.

(g)

If any party with proper notice of the date and time of a hearing fails to

appear, a finding of violation may be made against them in default.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

45-7.07 Power to Require Testimony and Production of Records. For the purpose of

investigations or hearings which, at the reasonable discretion of the Director or the

Commission, are necessary and proper for the enforcement of this Ordinance, the

Commission, the Director, or any designee thereof, may administer oaths or affirmations,

subpoena witnesses, take evidence, and require the production of books, papers,

contracts, agreements, documents, records, or information which the Director or the

Commission deems relevant or material to the inquiry.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

45-7.08 Prehearing Procedures.

(a)

Review of TERO Files. The Respondent shall have the right to review the

Director’s relevant case file by scheduling an appointment with him for that

purpose during regular working hours at any point after receiving notice of

a hearing. The Director shall remove any portion of the file as necessary

to protect confidential information. After the Director has removed any

confidential information, Respondent may make copies of the Director’s

relevant case file as necessary at Respondent’s sole cost.

(b)

List of Witnesses. Ten (10) business days prior to the hearing, or within

two (2) business days if the hearing is to be held less than ten (10) business

days after notice, the Respondent and the Director shall submit to the

Commission Chairperson a list of witnesses each intends to call at the

hearing, the approximate length of their testimony, and the general

substance of said testimony. Said list shall also indicate any witnesses to

be subpoenaed.

The Commission shall then issue any necessary

subpoenas.

(c)

Expert Witnesses. Any party, including Respondent, who intends to present

testimony of an expert shall, no fewer than fifteen (15) business days prior

to the hearing, provide the Commission and the opposing party the name,

qualifications, and the substance of said expert testimony. Failure to do so

shall disqualify such testimony from the hearing. Hearings which require

expert testimony shall be scheduled in a manner to allow for this minimum

fifteen (15) business day notice requirement, including by not limited to

rescheduling the hearing date.

(d)

Pre-hearing Interview of Witnesses. The Respondent and the Director shall

have the right to interview the witnesses of the other party prior to any

hearing. The Director’s witnesses shall be interviewed in the presence of

the Director or his representative. The Respondent’s witness shall be

interviewed under such reasonable conditions as are established by the

Respondent. Either party may appeal to the Chairperson of the Commission

if cooperation is not forthcoming. The Chairperson is empowered to require

such steps as are necessary to resolve the dispute.

(e)

Production of Documents and Materials. The Parties shall provide each

other with a list of documents, papers, and tangible evidence intended to

be introduced at hearing, including a statement regarding the substance

and relevance of each. Said documents, papers, and tangible evidence shall

be provided no later than ten (10) days prior to the hearing or within two

(2) days if the hearing date is noticed less than ten (10) days before the

hearing. Failure to produce such list and the documents listed within the

time prescribed may render said documents inadmissible at hearing on

motion of opposing party and in the Commission’s discretion.

(f)

Continuances. Any request for a continuance or postponement of the

hearing must be submitted in writing to the Chairperson of the Commission

no fewer than three (3) business days prior to the hearing. However, if the

Director and Respondent mutually submit a request for postponement

because there is a possibility of settling the matter, the request for a

postponement may be submitted at any time.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

45-7.09 Conduct Of The Hearing.

(a)

Presiding Official. The Chairperson or designated Commissioner (“Presiding

Official”) shall preside over the proceedings. The Presiding Official will take

whatever action is necessary to insure an equitable, orderly, and

expeditious hearing. Parties will abide by the Presiding Official’s rulings.

The Presiding Official has the authority to:

(1)

(2)

(3)

(4)

(5)

Administer oaths or affirmations;

Regulate the course of the hearing;

Rule on offers of proof;

Limit the number of witnesses when testimony would be unduly

repetitious; and

Exclude any person from the hearing for conduct or misbehavior

which obstructs or disrupts the hearing.

(b)

Director. Unless otherwise provided in this Ordinance, the burden shall be

on the Director to establish by a preponderance of the evidence that a

violation of this Ordinance has occurred. The Director may be represented

by an attorney provided by the Tribe.

(c)

Respondent. The Respondent shall be present for the entire hearing.

Respondent may represent himself during the proceeding or may be

represented by an attorney.

(d)

Recording of the Hearing. All hearings shall be recorded and the

Commission shall retain the tape(s) for no less than one (1) year after the

hearing.

(e)

Prohibition Against Reprisals. All parties shall have a right to testify on their

own behalf, without fear of reprisal.

(f)

Starting Time. The hearing shall begin promptly at the time specified by

the Commission.

(g)

Opening Statements. Both parties shall be afforded the opportunity to

present opening statements with respect to what they intend to prove at

the hearing.

(h)

Order of Proceeding. The Director shall present his case first.

(i)

Examination and Cross Examination of Witnesses. Both parties may

subpoena and examine or cross-examine friendly and hostile witnesses.

Harassment or efforts to intimidate witnesses shall not be tolerated.

Commissioners may examine witnesses at any point during that witness’s

testimony. The testimony of all witnesses shall be under oath or affirmation.

(j)

Irrelevant Testimony. Parties may object to testimony that is clearly

irrelevant, immaterial or unduly prejudicial. The Commission shall prohibit

any testimony that is clearly irrelevant, immaterial or unduly prejudicial.

(k)

Written Testimony. Written testimony will be admitted into evidence during

the hearing only when the Commission determines that the witness is

unavailable to testify at the hearing and good cause exists for the witness’s

unavailability. When a party wishes to use the written testimony of a

witness who cannot appear, the party must submit a written explanation of

the witness’ nonappearance to the Commission at least fifteen (15) business

days prior to the hearing. If the Commission is satisfied with the written

explanation, the party shall obtain the witness’ testimony by means of

deposition. When a deposition cannot be obtained or used, as determined

by the Commission’s reasonable discretion, an affidavit or a sworn

statement from the witness may be used. A signed but unsworn statement

shall not be admitted in evidence.

(l)

Closing Statement. Closing Statements for each party will be permitted.

The Director shall present his Closing Statement first.

(m)

Audience. The hearing shall be open to the public. However, the

Commission may remove any person who disrupts the hearing or behaves

in an inappropriate manner.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

45-7.10 The Commission’s Final Decision. The Commission’s Final Decision shall be in

writing and shall be issued no later than thirty (30) calendar days after the hearing. The

Final Decision shall be served on the Respondent by registered mail or by personal

service. The Final Decision shall consist of the following parts, in the following order:

(a)

The facts as determined by the Commission;

(b)

The finding of “violation” or “no violation” on each alleged charge against

the Respondent along with the legal and factual basis for said finding;

(c)

The orders and sanctions imposed, if any;

(d)

Information on rights to appeal;

(e)

Information on the Commission’s authority to act if the party fails to comply

with the Commission’s orders or fails to appeal; and

(f)

The injunctive or bonding requirements, if any, that the Commission will

seek from the Court pending the completion of the appeal if an appeal is

filed.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

45-7.11 The Record.

(a)

The Commission shall include copies the Notice of Violation, Request for

Hearing, Notice of Hearing, all documents and other evidence admitted to

the record at the hearing, and the hearing recording/transcripts in the

Official Record.

(b)

The Commission and shall maintain and store Official Records for a period

of one (1) calendar year from the date of the Final Decision.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

45-7.12 Finality of the Decision – Appeal.

(a)

Respondent may appeal to the Spokane Tribe Court as provided in Section

45-8 of this Ordinance.

(b)

Final Decisions shall be effective immediately.

(c)

Parties must comply with the Commission’s Final Decision. If Respondent

fails to comply with the Commission’s Final Decision, the Commission may

petition the Court for such preliminary and permanent injunctive and other

relief as necessary to enforce the Final Order.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

Section 45-8 Appeals

45-8.01 Right to Appeal. Any Respondent to a hearing shall have the right to appeal a

Final Decision of the Commission to the Court by filing a Notice of Appeal with the Court

within twenty (20) business days of the issuance of the Final Decision.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

45-8.02 Scope of Review. The Court shall uphold the Commission’s Final Decision unless

it is demonstrated that the decision was arbitrary, capricious, unsupported by the weight

of the evidence, or in excess of the Commission’s authority.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

45-8.03 Notice of Appeal: Contents. The Notice of Appeal shall:

(a)

Specifically describe the Commission’s Final Decision from which appeal is

taken (Respondents are encouraged to include a copy of the Final Decision

as an attachment to the Notice of Appeal);

(b)

Specify the grounds upon which reversal or modification or order is sought;

and

(c)

Be signed by appellant.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

45-8.04 Stay on Appeal; Bond.

(a)

Unless otherwise ordered by the Spokane Tribal Court, the Final Decision of

the Commission shall not abate or stay, and shall remain in effect, pending

the outcome of the appeal in Court. If the Court orders a stay, the Director

may petition and, for good cause shown, the Court may order the

Respondent to post a bond sufficient to cover monetary damages that the

Commission previously assessed against the party or some other amount

to assure the party’s compliance with other sanctions or remedial actions

imposed by the Commission’s order if that order is upheld by the Court.

(b)

If the Commission’s Final Decision is reversed or modified, the Court shall

specifically direct the Commission as to further action on the matter,

including making and entering any order(s) in connection therewith and the

limitations or conditions to be contained therein.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

45-8.05 Security for Compliance. If the Commission, in its discretion, has reason to

believe Respondent will remove itself or its property from the Reservation during any

stage of an enforcement action, the Commission may petition the Court pursuant to the

rules and procedures of the Court to attach such property as necessary to ensure payment

of any fees or damages owed, or to secure compliance or for such other relief as is

necessary and appropriate to protect the rights of the Commission and other affected

parties.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

Section 45-9 Confiscation and Sale

45-9.01 Purpose of Procedure.

(a)

If a Covered Employer fails to pay a monetary judgment or damage imposed

on it, or otherwise fails to comply with any order or decision of the

Commission, including but not limited to a Final Decision, within twenty-one

(21) business days after any order or decision of the Commission and no

appeal has been filed with the Court, the Commission may petition the Court

to order Tribal Law Enforcement to confiscate and hold for sale such

property of the Covered Employer as is necessary to ensure payment of

said monetary damages or to otherwise achieve compliance.

(b)

If a Covered Employer fails to pay a monetary judgment or damage imposed

on it, or otherwise fails to comply with any order or decision of the

Commission, including but not limited to a Final Decision, and the Covered

Employer has filed an Appeal with the Court, the Commission may

immediately petition the Court to confiscate and hold, but not sell, such

property of the Covered Employer as is necessary to ensure payment of

said monetary damages or to otherwise achieve compliance.

(c)

The Commission’s petition shall be accompanied by a list of Covered

Employer property which the Commission has reason to believe is within

the jurisdiction of the Court, the value of which approximates the amount

of monetary damages at issue. If the Court finds the petition to be valid, it

shall order Tribal Law Enforcement to confiscate and hold said property.

Tribal Law Enforcement shall deliver in person, or by certified mail, a notice

to the Covered Employer informing it of the confiscation and of the right to

redeem said property by complying with the order outstanding against it.

(d)

If the Covered Employer has not come into compliance within thirty (30)

days after confiscation, the Court shall order Tribal Law Enforcement to sell

said property, the proceeds of which shall be used to first pay any

outstanding fees and damages, and then to pay any costs incurred by the

Court and Tribal Law Enforcement in the confiscation and sale.

(e)

Any sale made pursuant hereto shall be made in a commercially reasonable

manner.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

Section 45-10 Commission Funds and Fee Waivers

45-10.01 Commission Funds. All fees collected pursuant to this Ordinance shall be

deposited into the Tribe’s designated TERO Fund.

45-10.02 Fee Waivers. The Tribe reserves the right to waive any and all fees required

under this Ordinance. Council may advise the Commission of any requested fee waivers.

All fee waivers must be adopted by lawful resolution of the Council, of which the

Commission shall receive notice.

Legislative History: Amended 09/07/07, Resolu. 2007-539; Codified and Amended 2/20/19, Resolu. 2019-165.

Section 45-11 Equal Employment Opportunities

45-11.01 Equal Employment Opportunities. No Covered Employer shall discriminate

against any Indian Preference Applicant/Employee for employment or promotion

opportunities because of color, religion, sex, national origin, or age and must assure

advertisements include equal opportunity for access.

Legislative History: Codified and Amended 02/20/19, Resolu. 2019-165.

Section 45-12 Wage and Hour Standards

45-12.01 Equal Pay. Every Covered Employer shall be required to provide equal pay to

Indian Preference Applicant/Employees performing work similar or comparable to other

employees.

Legislative History: Codified and Amended 02/20/19, Resolu. 2019-165.

45-12.02 Rate of Pay. Every Covered Employer shall be required to pay whichever rate

of pay is highest when Federal, State, or Tribal wage, rates, and/or guidelines are used.

Wage Rate requirements shall apply.

Legislative History: Amended 07/28/09, Resolu. 2009-357; Codified and Amended 2/20/19, Resolu. 2019-165.

45-12.03 Federal, State, and Local Agencies. The Commission or Director may use

Federal, State, or Tribal agencies in resolving a discrepancy concerning wages and hours

worked.

Legislative History: Amended 07/28/09, Resolu. 2009-357; Codified and Amended 2/20/19, Resolu. 2019-165.

45-12.04 Violations. Any Covered Employer who is in violation of this Section 45-12 shall

be subject to the penalties outlined in Section 45-6.

Legislative History: Adopted 02/20/19, Resolu. 2019-165.

Section 45-13 Health, Welfare, and Pension Fund Benefits

45-13.01 Payroll Deductions. Payroll deductions shall be permissible for health, welfare,

and pension fund benefits, but any payroll deduction constituting a contribution on behalf

of the Indian Preference Applicant/Employee to any fund established by the Covered

Employer, Indian Preference Applicant/Employee, or both, for the purpose of providing

medical or hospital care, pensions, annuities, retirement, death benefits, compensation

for injuries, illness, accidents, sickness or disability, or which are applied to payment of

insurance to provide any of the foregoing, including unemployment benefits, vacation

pay, savings accounts, or similar payments for the benefit of employees, their families

and dependents shall be permissible, PROVIDED HOWEVER, the following standards

must be met:

(a)

The deduction is not otherwise prohibited by law;

(b)

It is either:

(1)

(2)

Voluntarily

consented

to

by

the

Indian

Preference

Applicant/Employee in writing and in advance of the period in which

the work is to be done, and such consent is not a condition either for

obtaining or the continuation of employment, or

Provided for in a bona fide collective bargaining agreement between

the contractor or subcontractor and representatives of its

employees;

(c)

No profit or other benefit is otherwise obtained directly or indirectly, by the

Covered Employer or any affiliated person in the form of commission,

dividend, or otherwise; and

(d)

The deduction shall serve the convenience and best interest of the Indian

Preference Applicant/Employee.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

Section 45-14 Retaliation or Reprisal

45-14.01 Retaliation or Reprisal.

(a)

Any harassment, discrimination, or threat against any person, business, or

other entity which has filed a complaint, opposed any unlawful employment

practice, or testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing involving a violation of this Ordinance

shall itself constitute a violation of the this Ordinance, PROVIDED

HOWEVER, that said harassment, discrimination, or threat must be related

to or based upon the person, business, or other entity’s participation in such

activities.

(b)

Any violation of this Section 45-14 shall be subject to the penalties outlined

in Section 45-6.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

Section 45-15 Covered Employer License Fee

45-15.01 Covered Employer License Fee.

(a)

All Covered Employers must acquire a “Covered Employer License” to

operate on the Reservation as follows:

(1)

(2)

The Covered Employer must provide proof of operational record with

a minimum of two (2) successful and consecutive years of experience

as an Employer performing Covered Activities; or

The Covered Employer must provide proof that they are employees

who have performed Covered Activities for hire for a minimum of five

(5) years.

(b)

A license fee of shall be imposed for said license, the amount to be

determined by the Council.

(c)

The license and license application must be renewed on a yearly basis,

expiring one year from the day said license was purchased.

(d)

Failure to obtain or renew a Spokane Tribal Contractor License shall be a

violation of this Ordinance and is subject to sanctions outlined in Section

45-6.

Legislative History: Amended 06/17/2008, Resolu. 2008-382; Codified and Amended 2/20/19, Resolu. 2019-165.

Section 45-16 Publication of Ordinance

45-16.01 Publication of Ordinance. The Commission or the Director shall make a current

copy of this Ordinance, including any amendments thereto, available to a Covered

Employer upon request.

Unless otherwise excluded by this Ordinance, all bid

announcements issued by any Tribal, Federal, State or other Covered Employer shall

contain a statement that the successful bidder shall be obligated to comply with this

Ordinance.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

45-16.02 Licensing and Business Permits. All Tribal agencies responsible for issuing

business permits for Covered Activities or who are otherwise engaged in activities

involving contact with prospective Covered Employers shall be responsible for advising

such prospective Covered Employers of their obligations under this Ordinance and all

rules, regulations, and decisions of the Commission.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

45-16.03 Copies of Ordinance. Copies of this Ordinance are available for Indian

Preference Applicant/Employees upon written request to the Director.

Legislative History: Adopted 2/20/19, Resolu. 2019-165.

Section 45-17 Effective Date

45-17.01 Effective Date. This Ordinance shall be effective from the date of its approval

by the Council via tribal resolution.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

Section 45-18 Rules and Regulations

45-18.01 Rules and Regulations. Consistent with the requirements of this Ordinance,

the Commission may from time to time adopt detailed rules, regulations, policies and

guidelines consistent with and necessary for full implementation of this Ordinance.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.

Section 45-19 Severability

45-19.01 Severability. If any provision of this Ordinance or its application to any person

or circumstance is held invalid, the remainder of the Ordinance, or the application of the

provision to other persons or circumstances, shall not be affected.

Legislative History: Codified and Amended 2/20/19, Resolu. 2019-165.