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The Confederated Tribes of the Grand Ronde Community of Oregon [Ordinances]

Last amended: 2003


ORDINANCE NUMBER: 255.5

DATE ORIGINALLY ADOPTED: 3-25-98

DATE AMENDED: 4-29-98

SUBJECT: Employment Action Review Ordinance

RESOLUTION NUMBER: 019-98; 032-98


Employment Action Review Ordinance

Tribal Code § 255.5


(a) FINDINGS AND PURPOSE:


(1) The Tribal Council finds that employment opportunities provided by the Confederated Tribes of the Grand Ronde Community, including agencies and instrumentalities of the Tribe, promote the health, safety, welfare and economic security for employees of the Tribe and their families.

(2) The Tribal Council finds that Spirit Mountain Development Corporation, Spirit Mountain Gaming, Inc., and the Grand Ronde Tribal Housing Authority are agencies and instrumentalities of the Tribe.

(3) The Tribal Council finds that employees of Spirit Mountain Development Corporation, Spirit Mountain Gaming, Inc., and the Grand Ronde Tribal Housing Authority are employees of the Tribe.

(4) The Tribal Council recognizes and finds that the Tribe and agencies and instrumentalities of the Tribe have sovereign immunity from suit in Tribal Court and all other courts and administrative proceeding, except to the extent such immunity has been clearly and expressly waived either by the Tribal Council or by Congress.

(5) The Tribal Council finds that sovereign immunity bars suit against the Tribe and agencies and instrumentalities of the Tribe by Tribal employees in matters relating to the terms and conditions of employment, except to the extent such immunity has been clearly and expressly waived by the Tribal Council or Congress.

(6) The Tribal Council finds that sovereign immunity serves an important function in preserving the Tribal Council's ability to manage limited Tribal resources so that the Tribe can provide governmental services and take other action to promote the health, safety, welfare and economic security for the benefit of Tribal members, Tribal employees and residents of and visitors to the Grand Ronde Indian Reservation.

(7) The Tribal Council finds that the remedy provided to Tribal employees by this Ordinance for review in Tribal Court of Final Employment Decisions of the Tribe will enhance the employment relationship between the Tribe and Tribal employees consistent with the Tribal Council's responsibility to manage Tribal resources in order to provide governmental services and to promote health, safety, welfare and economic security for the benefit of Tribal employees and residents of and visitors to the Grand Ronde Indian Reservation.

(8) The Tribal Council declares that the purpose of this Ordinance is to enhance the employment relationship between the Tribe and Tribal employees consistent with the Tribal Council's responsibility to manage Tribal resources in order to provide governmental services and to promote health, safety, welfare and economic security for the benefit of Tribal employees and residents of and visitors to the Grand Ronde Indian Reservation.

 

(b) DEFINITIONS:

 

(1) "Day" means calendar day. Whenever a deadline falls on a weekend or holiday observed by the Tribal Court, the deadline shall be extended to the next work day of the Tribal Court.

(2) "Decisionmaker" means (A) the Executive Officer or any board, officer, employee or agent of the Tribe, including any agency and instrumentality of the Tribe other than a Tribal Government Corporation, to whom authority has been delegated to make a final Employment Decision, and (B) the chief executive officer of a Tribal Government Corporation or any board, officer, employee or agent of a Tribal Government Corporation to whom authority has been delegated by a Tribal Government Corporation to make a Final Employment Decision.

(3) "Employee" means an employee, whether full-time, part-time, temporary, on-call, regular, introductory or otherwise, of the Tribe, including any agency and instrumentality of the Tribe.

(4) "Employee Benefits" means vacation, sick leave, medical, or other insurance coverage, or other employment benefits provided to an Employee by the Tribe but the term Employee Benefits as used in this Ordinance does not include claims for worker's compensation or unemployment compensation.

(5) "File," "Filed," or "Filing" means to physically place in the possession of the Tribal Court. Filing is not effective upon mailing or other means of delivery until a complete copy of the document to be filed actually is received in full by the Tribal Court.

(6) "Final Employment Decision" means a final determination relating to the terms and conditions of employment, other than claims for worker's compensation or unemployment compensation, made by a Decisionmaker. No action or decision shall be deemed a Final Employment Decision subject to judicial review until and unless the affected Employee has exhausted available review procedures, including but not limited to any grievance procedure, for resolving a dispute relating to the terms and conditions of employment. A Final Employment Decision shall include a notice to the affected Employee of a right to file a petition for judicial review under this Ordinance in Tribal Court within thirty (30) days of the date of the Final Employment Decision.

(7) "Office of Tribal Attorney" means the department of the Tribe so designated.

(8) "Tribal Court" means the Grand Ronde Tribal Court established pursuant to Article IV of the Constitution of the Confederated Tribes of the Grand Ronde Community of Oregon.

(9) "Tribal Council" means the branch of the Tribe designated by that name in Article II of the Constitution of the Confederated Tribes of the Grand Ronde Community of Oregon.

(10) "Tribal Government Corporation" means any Corporation chartered by the Tribal Council which is wholly owned by the Tribe, including any subsidiary or subdivision of a Tribal Government Corporation that is chartered by the Tribal Council and wholly owned by a Tribal Government Corporation. Tribal Government Corporations are agencies and instrumentalities of the Tribe. The term Tribal Government Corporation includes but is not limited to Spirit Mountain Development Corporation, and Spirit Mountain Gaming, Inc.

(11) "Tribal law" means the Constitution of the Confederated Tribes of the Grand Ronde Community of Oregon, initiatives and referendums adopted by members of the Tribe in accordance with the Constitution on the Tribe, ordinances and other legislative enactments adopted by the Tribal Council, and common law of the Tribal Court.

(12) "Tribe" means the Confederated Tribes of the Grand Ronde Community of Oregon, including all agencies, departments, offices, divisions, commissions, authorities, corporations, instrumentalities or other entities of the Tribe, except that corporations chartered under the law of any State shall not be included in the term Tribe under this Ordinance.

 


(c) WAIVER OF SOVEREIGN IMMUNITY:

 

(1) Absent applicable law to the contrary, the sovereign immunity of the Tribe, including the Grand Ronde Tribal Housing Authority and each Tribal Government Corporation, shall continue except that such immunity is hereby expressly waived to judicial review exclusively by the Tribal Court of any Final Employment Decision upon the timely filing of a petition for judicial review with the Tribal Court by an aggrieved Employee in accordance with the standards and procedures established by the Ordinance.

(2) The standards and procedures for judicial review provided by the Ordinance are integral parts of the limited waiver of sovereign immunity provided by this Ordinance and shall be strictly and narrowly construed.

(3) Absent applicable law to the contrary, the remedies under this Ordinance upon an order reversing or remanding a Final Employment Decision shall be limited, as appropriate, to reinstatement, payment of back pay, and payment of other back Employee Benefits. Absent applicable law to the contrary, no rule of law shall be applied under this Ordinance imposing absolute or strict liability, punitive damages or exemplary damages, nor shall any award be made under this Ordinance for pain and suffering, mental anguish or suffering, or consequential damages.

(4) This Ordinance does not waive the sovereign immunity of officers, employees or agents of the Tribe or officers, employees or agents of any agency or instrumentality of the Tribe.

(5) This Ordinance does not waive the sovereign immunity of the Tribe or any agency, department, office, division, commission, authority, corporation, instrumentality or other entity of the Tribe except as expressly provided in this Ordinance.

(6) This Ordinance provides the exclusive remedy for claims relating to the terms and conditions of employment between the Tribe or any agency and instrumentality of the Tribe, other than claims relating to worker's compensation and unemployment compensation.

 


(d) JUDICIAL REVIEW OF A FINAL EMPLOYMENT DECISION:

 

(1) Any Employee aggrieved by a Final Employment Decision is entitled to seek judicial review of that Final Employment Decision in the Tribal Court under this Ordinance. An aggrieved Employee may not use any other procedure to seek judicial review of a Final Employment Decision, other than a claim for worker's compensation and unemployment compensation, even though another procedure for judicial review may be provided by another provision of Tribal law of general application.

(2) Proceedings for judicial review of a Final Employment Decision under this Ordinance shall be instituted by the Filing of a petition for judicial review in the Tribal Court. The petition shall be Filed with the Tribal Court within thirty (30) days of the date of the Final Employment Decision. Prior to Filing a petition with the Tribal Court, the aggrieved Employee shall serve copies of any such petition on (A) the Decisionmaker, (B) either the Executive Officer of the Tribe or where the Final Employment Decision relates to the terms and conditions of employment with a Tribal Government Corporation, then in that event, upon the chief executive officer of the Tribal Government Corporation which issued the Final Employment Decision, (C) the Office of Tribal Attorney, and (D) the Secretary of the Tribal Council. Proof of such service shall be filed with the Tribal Court together with the petition for judicial review. Failure to make such service prior to filing the petition for judicial review and failure to file proof of such service together with the petition for judicial review shall be jurisdictional defects which shall deprive the Tribal Court of jurisdiction to review the petition. Service may be made by personal service or by proof of mailing by certified mail, return receipt requested. Where service is by certified mail, return receipt requested, service shall be deemed effective on the day of such mailing. No fee shall be charged by the Tribal Court for the filing of a petition for judicial review under this Ordinance.

(3) Absent applicable law to the contrary, the timely filing of a petition for judicial review shall not stay enforcement or effectiveness of a Final Employment Decision. Where other applicable law or a rule of the Tribal Court provides that the Tribal Court may issue a stay of the Final Employment Decision, the Tribal Court may issue a stay on such terms as the Tribal Court deems appropriate in accordance with applicable law or rule of the Tribal Court.

(4) Within thirty (30) days of the Filing of the petition, or such longer time as the Tribal Court may allow, the Tribe or the Tribal Government Corporation whose Final Employment Decision is the subject of the petition shall transmit to the Tribal Court the original or a certified copy of the entire underlying record relating to the Final Employment Decision under review. A copy of the record provided to the Tribal Court shall be transmitted to the Employee who filed the petition for judicial review. Within five (5) days of receipt of the record submitted to the Tribal Court, an Employee may file a written request with the Tribal Court identifying the additional documents or information which the Employee requests be included in the record. The Employee filing such a request shall serve a copy of the request either on the Executive Officer of the Tribe or where the Final Employment Decision relates to the terms and conditions of employment with a Tribal Government Corporation then in that event upon the chief executive of the Tribal Government Corporation and the Office of Tribal Attorney or other attorney representing the Tribal Government Corporation. The Tribe or Tribal Government Corporation receiving such a request shall have five (5) days to file a written response. If it is shown to the satisfaction of the Tribal Court that the additional documents or information cited by the Employee were part of the underlying record, the Tribal Court shall order that such documents or information be included in the record to be considered by the Tribal Court in reviewing the Final Employment Decision. By stipulation of the parties, or by order of the Court, the record may be shortened or summarized. Any party who unreasonably refuses to stipulate to shorten or limit the record may be assessed costs by the Tribal Court. The record shall be maintained under seal and no person other than authorized representatives of the parties and the Tribal Court shall be allowed to review said file except upon an order issued by the Tribal Court after notice to the parties. Such orders are not favored and may not be issued except with the consent of the affected Employee and either the Tribe or the Tribal Government Corporation which submitted the record or upon a showing of exceptional necessity or a legal requirement mandating the requested disclosure. The record shall include the following: (A) a copy of the Final Employment Decision; (B) a copy of all documentary information or evidence submitted to or relied upon by the Decisionmaker who issued the Final Employment Decision; (C) a copy of relevant portions of an employee's personnel file; (D) a copy of any investigation reports and incident reports submitted to or relied upon by the Decisionmaker who issued the Final Employment Decision; and (E) a copy of any recorded proceeding relating to the Final Employment Decision.

(5) The Tribal Court Judge assigned to a petition for judicial review shall schedule and conduct a prehearing conference within thirty (30) days of the filing of the record. The prehearing conference may deal with such matters as: (A) supplementation or shortening of the record; (B) clarification of the specific issues presented by the petition for judicial review; (C) scheduling of briefs or other written argument; (D) setting of the date for a hearing on oral argument; and (E) such deadlines and other matters as may expedite the orderly and prompt resolution of issues presented by the petition for judicial review. The Tribal Court Judge may issue a prehearing order and a post hearing order to further regulate conduct of proceedings on the petition for judicial review. With agreement of all parties, the Tribal Court may issue an order to shorten any deadline imposed by this Ordinance. Upon a showing of significant hardship, the Tribal Court may extend any deadline in the interest of justice.

(6) Not later than forty-five (45) days after the record is filed with the Tribal Court, the Employee shall File two copies of a brief which shall not exceed twenty (20) typed pages, double spaced with 1.5 inch margins on all sides, which shall set forth specific issues with legal argument with citation to the record supporting the Employee's position. The Employee's brief shall clearly state the relief requested. The Tribe or the Tribal Government Corporation whose Final Employment Decision is being reviewed by the Tribal Court shall file a response brief within thirty (30) days of filing of the Employee's brief and shall be subject to the same rules as to form, length, legal argument and citation to the record. Employee shall have fifteen (15) days from filing of the tribe's or Tribal Government Corporation's response brief to file a reply brief limited to ten (10) typed pages, double spaced with 1.5 inch margins on all sides, and further limited to those matters raised in the response brief. Copies of all briefs and other filings with the Tribal Court shall be served on the opposing party at the same time such brief or other filing is filed with the Tribal Court. In the exercise of discretion, the Tribal Court may establish different or additional requirements to those set out in this subsection. The Tribal Court may request additional briefing on any issue or matter.

(7) Matters shall be submitted to and review shall be conducted by the Tribal Court without a jury on the record or on that part of the record relied upon by the parties with the aid of briefing, oral argument and any motions authorized by this section.

(8) The Tribal Court may affirm the Final Employment Decision; remand the case to the Decisionmaker for further proceedings including proceedings to supplement the record; or reverse the Final Employment Decision, in whole or in part, if substantial rights of the Employee have been denied because the Final Employment Decision:

 

(A) Violates applicable provisions of the Constitution of the Confederated Tribes of the Grand Ronde Community;

(B) Violates provisions, substantive or procedural, of applicable Tribal law or federal law;

(C) Is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with applicable law; provided, however, that nothing in this Ordinance shall limit or qualify the right of the Tribe or any Tribal Government Corporation to adopt and enforce employment policy; or

(D) Is not supported by substantial evidence on the record taken as a whole, except that this standard shall not apply to any matter committed to the discretion of the Tribe or any Tribal Government Corporation.

The Employee shall have the burden of persuasion. Without limiting the appropriate standard of review, the Tribal Court shall give due deference to the rule of nonprejudicial error and matters within the expertise or judgment of the Tribe or any Tribal Government Corporation. The Tribal Court shall recognize the right of the Tribe and any Tribal Government Corporation to rely upon supervisors and managers to exercise judgment and discretion in making decisions affecting the terms and conditions of employment, including, but not limited to, matters involving employee compensation, training, retention, scheduling, assignment and transfer of responsibilities, promotion, demotion, discipline, suspension and termination.


(e) APPLICABLE LAW:
Tribal law and applicable federal law apply to the terms and conditions of employment with the Tribe and any Tribal Government Corporation and likewise shall govern all petitions for judicial review of Final Employment Decisions.


(f) SEVERABILITY:
If any provision of this Ordinance or application of this Ordinance to any person or circumstance is determined to be invalid, such invalidity shall not affect other provisions or application of this Ordinance to other persons or circumstances which can be given without the invalid provision or application. To this end, the provisions of this Ordinance are declared to be severable.


(g) RETROACTIVE EFFECT:
This Ordinance is remedial and applies retroactively to any Employee claims relating to the terms and conditions of employment arising between October 18, 1995 and April 15, 1998. Any Employee or former Employee who desires to assert any claim relating to the terms and conditions of employment which predate April 15, 1998 must, within thirty (30) days after notice is published in Smoke Signals of the Tribal Council Resolution amending this Ordinance to give it retroactive effect as provided by this subsection, either (1) initiate applicable Employee action review procedures, including but not limited to grievance procedures, to resolve a dispute relating to the terms and conditions of employment or (2), if a Final Employment Decision regarding such a claim had been made before April 15, 1998, commence an action for judicial review under subsection (d) of this Ordinance. Remedies for any claims arising between October 18, 1995 and April 15, 1998 shall be limited, as appropriate, to reinstatement and/or payment of not more than one year's back pay.


I certify this to be a true copy of the Confederated Tribes of the Grand Ronde Community of Oregon Employment Action Review Ordinance.


                                       
Tribal Council Secretary

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