CHAPTER
16: REMOVAL FROM OFFICE
16.101 Purpose and Scope.
The purpose
of this Chapter is to implement Tribal Constitution article VI by providing
procedures for determining petitions for removal from office of Tribal
elected officials. It governs proceedings for removal initiated after
the effective date of this Chapter.
16.102 Findings.
The Board
of Directors finds that:
(1) The
Tribal Constitution and Bylaws provides for a democratically elected
Chairperson and Board of Directors, with fixed terms of office. It
permits removal from office upon petition by eligible voters alleging
specific facts which show a violation of tribal law, after provision
of notice and a hearing on the charges before a specially-convened
hearing board.
(2) The
provisions of Tribal Constitution article VI provide the sole remedy
to tribal members for removal of elected officials from office. Removal
of officials elected by tribal members is disfavored and is warranted
only in serious circumstances.
(3) The
requirement of allegations of specific facts showing a violation of
tribal law, contained in Tribal Constitution article VI, section 3,
is intended to provide the accused with fair notice of the charges
against him or her, to allow for a determination whether the allegations
would warrant removal if proven, to safeguard elected officials against
spurious accusations, and to inform the accused official of the facts
which will be at issue at the hearing.
16.103 Definitions.
As used
in this Chapter:
(1) “Accused
official” means the member of the Board of Directors or the Chairperson
who is the subject of a removal petition filed in accordance with
Tribal Constitution article VI, section 3.
(2)
“Eligible voter” means any enrolled member of the Tribe
who is eighteen years of age or older, and who is either:
(a)
shown on the tribal membership roll to be a resident of an election
unit; or
(b)
registered as a voter residing outside of any election unit for
the immediately preceding Tribal election conducted under Tribal
Code Ch. 10.
(3) “Hearing
Board” means the body created under §16.107(3) of this Chapter
for the purpose of hearing the charges in the petition against the
accused official.
(4) “Hearing
Officer” means the person identified under §16.107(4) of
this Chapter as the person to preside over the hearing on the charges
in the petition against the accused official.
(5) “Secretary”
means the Tribal Recording Secretary and staff working under the Tribal
Secretary’s direction.
16.104 Initiation of Proceedings.
(1) Proceedings
under this Chapter are commenced with the filing with the Board of
Directors of a petition seeking the removal of the chairperson or
board member. A petition may not request the removal of more than
one official. Filing of a petition shall take place at a regular or
special meeting of the Board of Directors. The filing of a petition
constitutes receipt of a petition within the meaning of Tribal Constitution
article VI, section 4(a).
(2) A
removal petition shall have a principal sponsor, who shall act as
the petitioner for purposes of any hearing held on the petition. The
principal sponsor shall be a qualified and registered voter of the
Tribe. The name of the principal sponsor shall appear on each page
of the petition along with the mailing address and telephone number.
The principal sponsor is responsible to oversee the initiation of
the circulated petition and for compliance with the provisions of
this Chapter. Along with the petition the principal sponsor shall
submit a statement signed under penalty of perjury that to the best
of his or her knowledge and belief each page of the petition was circulated
by a qualified circulator and complies with the provisions of sub.
(3).
(3) Signatures
on the petition shall be solicited only by qualified circulators,
who shall be eligible voters of the Tribe. Each page circulated shall
contain a certification by the qualified circulator of that page that
he or she is a qualified circulator and that to the best of his or
her knowledge and belief no signature on the petition was obtained
through fraud, deceit, or misrepresentation; he or she has neither
caused nor permitted a person to sign the petition more than once;
he or she has no knowledge of a person signing the petition more than
once; each signature is the genuine signature of the person purporting
to sign the petition; the signer was an eligible voter of the Tribe
residing at the address shown; and that the signature was solicited
and obtained in compliance with this Chapter.
16.105 Contents of Petition.
(1) The
petition shall contain a statement of specific facts which, if true
would constitute a violation of tribal law specified in sub. (3),
together with a citation to the provision of the Constitution and
Bylaws, ordinance, or resolution violated. The allegations must provide
facts which, if true, would establish each element of the violation
alleged and which provide sufficient detail so that the accused official
can reasonably determine the conduct with which he or she is charged.
(2) A
petition may include more than one ground for removal. Grounds which
rely on different incidents or patterns of conduct shall be stated
as separate counts or grounds, each of which shall meet the requirements
of sub. (1).
(3) Violations
of the following shall constitute grounds upon which a petition for
removal may be based:
(a)
Violation of the Constitution and Bylaws.
(b)
Conduct which would constitute a violation of any provision of the
Tribal Code that is punishable as a crime, regardless of whether
the Tribal Court would have jurisdiction over the offense.
(c)
Violation of the Tribal Code Ch. 10: Election Ordinance, or Tribal
Code Ch. 96: Open Meetings Ordinance.
(d)
Violation of any other ordinance or resolution that specifically
provides that its violation may constitute grounds for removal from
office.
(4) [Repealed]
(5) The
petition must be signed by at least one hundred (100) eligible voters
of the Tribe. Only original signatures shall be submitted in the petition.
16.106 Procedure Upon Filing of Petition.
(1) The
Secretary shall maintain the original petition at all times. The allegations
contained in the petition shall remain confidential until the Board
of Directors acts on the petition. Information identifying the signatories
to the petition shall remain confidential except as provided in §16.108.
(2) As
soon as practicable after the filing of the petition, the Secretary
shall refer the petition to the Tribal Registrar, who shall make a
determination of whether the petition contains the requisite number
of signatures of eligible voters. The Registrar shall review the petition
and Tribal voter registration records under standards and procedures
utilized for the verification of signatures on nominating petitions
for Tribal elections conducted under Tribal Code Ch. 10. The Registrar
shall certify the determination to the Board of Directors as least
five (5) days before the date of the meeting at which the Board of
Directors will consider the petition.
(3) The
Board of Directors shall consider the petition within fifteen (15)
days of its receipt of the petition at a regular meeting or a special
meeting called for that purpose. The contents of the petition, except
for information identifying the signatories, shall be given to the
members prior to the meeting. The Board of Directors shall consider
the petition in an open meeting, and the contents of the petition
(except for the identity of the signatories) shall thereafter be public.
(4) The
Board of Directors shall determine whether the petition, on its face,
appears to meet the criteria of §16.105. A detailed examination
of the allegations shall not be required. The Board of Directors may,
in its discretion, request the opinion of the Legal Department on
the facial sufficiency of the petition. If the Board of Directors
determines that the petition appears to be insufficient, it shall
dismiss the petition.
(5) If
the Board of Directors determines that the petition appears, on its
face, to meet the criteria of §16.105, it shall set the date,
time, and place for the initial hearing and direct the Secretary to
prepare and serve a notice of hearing upon the accused official stating
the date, time and place of the initial hearing and attaching or incorporating
the allegations of the petition as notice of the charges against the
accused official.
(6) The
determination of the Board of Directors on the sufficiency of the
petition shall not be subject to the referendum provisions of Tribal
Code Ch. 12.
16.107 Hearing Board.
(1) Upon
a determination by the Board of Directors that the petition appears
to be valid, the Chief Judge of the Tribal Court shall contact the
person appointed by the Board of Directors to select the Hearing Board
and the Hearing Officer in accordance with sub. (2) to initiate the
selection and appointment process. The Chief Judge shall act as the
Tribal liaison with the person appointed to do the selections and,
once the Hearing Board and Hearing Officer are selected, to act as
liaison with them as well.
(2) The
Board of Directors shall appoint a person to select the Hearing Officer
and the Hearing Board, and hereby appoints Kathryn L. Tierney to make
the selections until such time as the Board shall change the appointment.
(3) The
Hearing Board shall consist of three (3) attorneys who are licensed
to practice law in at least one state, and who are not employees of
the Tribe and have never had an attorney client relationship with
the Tribe, the petitioner, or a member of the Board of Directors,
or who have never provided advice to the Board of Directors in any
capacity. Preference in selection shall be given to attorneys who
are Native American and to attorneys who are knowledgeable about tribes
and Native American law.
(4)
The Hearing Officer shall be an attorney licensed to practice law
in at least one state and who meets the criteria set forth for Hearing
Board members in sub. (3). Preference in selection shall be given
to an attorney who has judicial or similar experience, is Native American,
and is knowledgeable about tribes and Native American law.
(5) The
person making the appointments shall take reasonable steps to ascertain
that the persons appointed meet all of the criteria set forth in this
section. Upon completion of the appointment process, the appointing
person shall prepare and submit to the Board of Directors a report
concerning the appointment process.
16.108 Review of Petition Signatures.
The registrar’s
determination of the sufficiency of the number of signatures on the
petition may be reviewed by the Hearing Officer prior to the initial
hearing upon motion of the accused official. The Hearing Officer’s
review shall be conducted in camera, outside the presence of
the parties, with the assistance of the registrar. The parties may be
represented by attorneys during the in camera inspection, provided
that the attorneys agree to keep the identity of the signatories confidential
and not disclose them to their clients. The Hearing Officer and the
attorneys shall maintain the confidentiality of the signatories. If
the Hearing Officer determines that a petition contains less than 100
valid signatures or does not meet the requirements of §16.104,
the Hearing Officer shall dismiss the petition.
16.109 Initial Hearing.
The Hearing
Board shall convene at the date, time, and place set in the notice of
hearing and hold the initial hearing as provided in this section. The
Hearing Officer shall preside at the initial hearing. If circumstances
warrant the Hearing Board may participate by teleconference, but the
Hearing Officer shall preside in person. The initial hearing shall be
for the purpose of:
(1) if
the accused official wishes to challenge the petition on its face,
hearing arguments and ruling on the petition in accordance with §16.110;
(2) scheduling
of the hearing on the petition;
(3) scheduling
discovery, motions, and other preliminary matters;
(4) expediting
the disposition of the action and discouraging wasteful prehearing
activities;
(5) any
other matter that the parties, the Hearing Officer, or the Hearing
Board wish to discuss concerning the hearing.
(6) The
Hearing Officer may enter an order summarizing the results of the
initial hearing.
16.110 Standards for Determination of Petition.
(1) In
deciding a challenge to the petition on its face filed under §16.109(1),
the Hearing Board shall determine whether the petition meets the criteria
of §16.105, and whether the violations alleged in the petition
would, if true, warrant removal of the accused official from office.
(2) In
making the determination as to whether the violations alleged in the
petition would, if true, warrant removal from office, the Hearing
Board shall consider the nature of the conduct and the public interest
of the Tribe, including, but not limited to, such factors as:
(a)
the provisions of law violated;
(b)
whether the conduct is a breach of public trust, abuse of authority,
or official misconduct;
(c)
whether the conduct evidences lack of integrity;
(d)
whether the conduct contravenes or frustrates an important Tribal
policy or interest; and
(e)
whether the Tribe’s interests or public trust and confidence
in the Tribe or its officials would be impaired if the accused remained
in office.
(3) If
the petition contains more than one ground or count, the Hearing Board
shall make a separate determination of the sufficiency of the allegations
of each challenged count under sub. (1), and may dismiss or limit
the grounds for particular counts. The determination under sub. (2)
shall then be made based on the totality of the remaining counts.
16.111 Hearing on the Petition.
(1) The
Hearing Officer shall preside over the hearing. The Hearing Officer
shall afford the accused official all of the rights guaranteed under
the Indian Civil Rights Act. The Hearing Officer shall conduct the
hearing and shall rule on preliminary and procedural matters before
and at the hearing. The Hearing Officer shall conduct the hearing
in accordance with the rules of procedure applicable to civil proceedings
in the Tribal Court and shall apply the rules of evidence applicable
to civil proceedings in Michigan courts. The Hearing Officer shall
not participate in the deliberations of or vote on the decision of
the Hearing Board; provided, that if a member of the Hearing Board
shall become unable to serve in that capacity or participate in the
deliberations and decision, the Hearing Officer shall do so in place
of that member.
(2) In
the event that issues concerning preliminary or procedural matters
arise requiring resolution before the selection of the Hearing Officer,
any member of the Hearing Board that has already been selected may
hear and rule on the matter.
(3) If
an issue arises prior to the hearing that involves the interpretation
of a provision of the Tribal Constitution other than a provision of
Article VIII, the Hearing Board shall refer the issue to the Board
of Directors for their decision on the interpretation; provided, that
no such issue need be referred if the referral would cause a delay
in the proceedings.
(4) The
Hearing Board shall conduct a hearing on the petition, which shall
be open to the public. The hearing shall be held at the place and
shall commence on the date and time specified at the initial hearing.
If requested by the Hearing Board, the Hearing Officer may hear all
or part of the testimony or review all or part of the evidence and
make findings of fact for the Hearing Board. An audio recording of
the hearing shall be made in the same manner as for hearings in Tribal
Court, and the hearing shall be videotaped in the same manner as for
meetings of the Board of Directors.
(5) The
Hearing Officer shall have the same power to swear witnesses and take
testimony under oath and to issue process to compel the attendance
of witnesses and the production of documents or other evidence, and
to impose the same sanctions for failure to comply, as at a criminal
proceeding under Chapters 70 and 71 of the Tribal Code. This power
shall extend to tribal officials, and to documents and other evidence
in the possession of the Tribe, notwithstanding claims of sovereign
immunity.
(6) The
parties to the proceeding shall be the principal sponsor, who shall
be designated as the petitioner, and the accused official, who shall
be designated as the respondent. Each of the parties shall have the
right to be represented by counsel of their own choosing at his or
her own expense.
(7) The
petitioner shall have the burden of going forward with the evidence
and the burden of proving the allegations of the petition by clear
and convincing evidence.
(8) Each
of the parties shall have the right to appear at the hearing, to present
evidence and argument, and to call and examine witnesses. The accused
official shall have the right to address the Hearing Board regarding
the petition.
(9) The
Hearing Board shall decide whether the accused official shall be removed
from office by majority vote of those present and voting, applying
the standards set forth in §16.110(2). The Hearing Board shall
prepare a written decision setting forth its basic findings of fact
and the reasons for its decision, which may be prepared with the assistance
of the Hearing Officer. The decision shall be recorded by the Hearing
Officer and certified to the Board of Directors. The decision shall
be rendered within 60 days after the initial hearing. The decision
of the Hearing Board shall be final.
16.112 Improper Contact with Hearing Officer or Hearing Board.
(1) The
Hearing Officer and the members of the Hearing Board shall not have
any ex parte contact with the petitioner, the respondent, counsel
for either party, or any other person concerning the proceedings;
provided, that nothing shall prohibit contact by the Hearing Officer
with counsel for either party (or a party, if not represented by counsel)
concerning routine matters of administration of the proceedings. If
any such contact is made or attempted to be made, the Hearing Officer
or member of the Hearing Board shall report the contact or attempt
to the Hearing Board and to the Board of Directors.
(2) No
person shall contact the Hearing Officer or any member of the Hearing
Board with the intent of influencing the course or outcome of the
proceedings under these Procedures.
(3) Except
as provided in sub. (1), the petitioner and respondent shall make
no contact, directly or indirectly, or cause contact to be made, with
the Hearing Officer or any member of the Hearing Board with the intent
of influencing the course or outcome of the proceedings under these
Procedures.
(4) No
person shall contact the person appointed by the Board of Directors
to select the Hearing Officer and Hearing Board, directly or indirectly,
with the intent of influencing the selection process or the choices
to be made by the appointed person; provided, that the appointed person
may seek recommendations for appointees from persons who are not connected
with the Tribal government or administration.
(5) As
used in this section, “contact” includes any form of oral
or written communication, including without limitation oral contact,
written communication, phone calls, e-mails, voicemail, or voice messages.
(6) Any
person who violates the provisions of this section may be sentenced
to imprisonment not to exceed three (3) months, or a fine not to exceed
Five Thousand Dollars ($5,000.00), or both. In addition, violation
of this section by a member of the Board of Directors shall constitute
a violation of Tribal law upon which a petition for removal from office
may be based.
16.113 Application and Effective Date.
This Chapter
shall take effect on the date of its enactment and shall govern any
petition filed with the Board of Directors after the effective date.
It shall not apply to any proceedings on a petition filed prior to the
effective date.
16.114 Repealer.
Resolution
No. 2003-57, Establishing Interim Hearing Board Procedures, is repealed
as of the effective date of this Chapter, except that it shall continue
to apply to any proceedings on a petition filed prior to the effective
date.
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