opinion from deputy attorney general for navajo nation department of justice

8/13/2019 Opinion from Deputy Attorney General for Navajo Nation Department of Justice

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Memorandum To: Duane H.Yazie and Lester J. BegayRE: Resolution of the Shiprock Chapter 0I-06-14-002-SHIP and Resolution of the Tils Tsoh Slkaad Chapter TTS-RES-14-01-026: Removal of Council Delegates Charged with a CrimeJanuary 29,2014Page2There are not any statutory provisions within the Navajo Nation Code mandating theautomatic removal of a Council Delegate charged with, but not convicted of, a crime against the

Nation. There are also not any Navajo Nation court opinions mandating the automatic removalof a Council Delegate charged with, but not convicted o4 a crime against the Nation.While there are no statutory laws or judicial decisions mandating the removal from offrceof a Council Delegate charged with, but not convicted of, a crime against the Nation, the NavajoNation Code does provide the Navajo Nation Council with the discretion to place a Delegate onadministrative leave when there are reasonable grounds to believe a Delegate has seriouslybreached their fiduciary duties to the Navajo People.Additionally, under the Navajo Nation Election Code, a Council Delegate can be subjectto a recall election by sixty percent (60%) of voters who voted in the last election for thatparticular Council Delegate seat. The voters doing the recall are the sole judges of the reasons orgrounds for the recall. Under the Election Code, a Council Delegate could be recalled and thenremoved from office by the voters for being charged with, but not convicted of a crime against

the Nation.ANALYSIS

As stated above, there are no statutory laws or judicial decisions mandating the automaticremoval from office of a Council Delegate charged wittU but not convicted of, a crime againstthe Nation. That said, the Navajo Nation Code does provide the Navajo Nation Council with anavenue to remove a Delegate from active participation on the Council, even if they have onlybeen charged with, and not convicted of, a crime. The Code also provides the voters and theCouncil with avenues to remove a Council Delegate from their offtce, even if they have onlybeen charged with, and not convicted of, a crime. These options are discussed below.

A. The Navajo Nation Council has the discretion to place a-Council Deleeate onadministrative leave if the Council finds that the Delegate has seriously breached his orher duties of fiduciarv tnrst to the Navaio People.Under I I N.N.C. $ 240 (C), the "Navajo Nation Council mayby majority vote of theCouncil, place . . . any of its members on administrative leave, with or without pay, where there

are reasonable grounds to believe that such official has seriously breached his or her fiduciarytrust to the Navajo People and such leave will serve the best interests of the Navajo People."(emphasis added). Placing a Delegate on administrative leave is a discretionary, as opposed tomandatory, action that should be supported by procedures that ensure the Delegate is affordeddue process. See Shirley v. Morgan, SC-CV-02-10, slip op. at 44 (Nav. Sup. Ct. May 28,2010).

The Navajo Nation Code does not specifically define what is meant by a serious breachof fiduciary trust to the Navajo People. Fiduciary trust can generally be described as a situationwherein a person in a position of authority is obligated under the law to act in good faith andsolely on behalf of theperson(s) he or she represents. See, e.g., Black's Law Dictionar.y 625 $th


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Memorandum To: Duane H.Yazzie and Lester J. BegayRE: Resolution of the Shiprock Chapter 0 l -06- 14402-SHIP and Resolution of the Tils Tsoh Sikaad Chapter TTS-RES-14-01-026: Removal of Council Delegates Charged with a CrimeJanuary 29,2014Page 3

ed.). In the question at hand, because the Code does not provide a specific definition, it would bethe responsibility of the Council to determine whether being charged with, but not convicted of,a financial crime against the Nation constitutes a serious breach of a Delegate's fiduciary trustand whether it is in the best interests of the Navajo People to place that Delegate onadministrative leave.

B, Registered Navajo voters have the risht to recall snd remove a Council Deleeate fromoffrce for any reasonable eround(s). presumably includine being charged with. but notconvicted of. a crime ae4inst the Nation.Under the Navajo Election Code, a Council Delegate, like other elected officials, may beremoved from office through a recall election. See,ll N.N.C. $$ 241 -244. "Recall provisionsare a means through which the public voice their dissatisfaction with their elected officials whoare subjected to removal from their elected offices." Barton, et al. v. Dilkon Recall Committee,8 Nav. R. 195, 199 (Nav. Sup. Ct. 2001).There are procedural requirements set out in the Election Code, specifically at I I N.N.C.

$$ 241 -244,that must be strictly adhered to in orderto effectuate a recall and removal of anelected official.l For example, one of the first requirements is that "sixty percent (600/0) of theregistered voters who voted in the last election for the office in question file a petition seekingthe official's removal." 1l N.N.C. $ 241(A). In the case of a Council Delegate, this appears tomean registered voters from the chapters who elected the Delegate in the first place.The Election Code does not set forth grounds for recall and places the responsibility onthe voters signing the recall petition to determine their grounds for recall. Pursuant to I I N.N.C.

$ 2al (F):The ground or grounds for recall is for the signing voters, who shall be the soleand exclusive judges of the legality, reasonableness, and sufficiency of the groundor grounds assigned for the recall. The ground or grounds shall not be subject toreview.As to the question at hand, there is nothing in the Election Code to prohibit voters fromcirculating a petition wherein the grounds for recall are that their Council Delegate was chargedwith, but not convicted of, a crime against the Nation.If voters meet the procedural requirements for a recall election, the election shall bedecided by a plnrality of votes and there shall be no run-off elections. I I N.N.C. $ 244 (E). Itshould be noted that the official sought to be recalled is automatically placed on the recallelection ballot. See,ll N.N.C. g 244 (C).

I It is strongty recommended that the Navajo Etection Administration be consulted on appropriate procedures beforeany recall efforts are commenced.


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Memorandum To: Duane H.Yazzie and Lester J. BegayRE: Resolution of the Shiprock Chapter 0I-06-14-002-SHIP and Resolution of the TIfs Tsoh Sikaad Chapter TTS-RES-14-01-026: Removal of Council Delegates Charged with a CrimeJanuary 29,2014Page 4

C. The Navajo Nation Council has the authority to remove a Council Deleeate for justcause.

A Council Delegate can be removed from office for just cause by a two-thirds majority voteoftheCouncil. llN.N.C.$240(A)and$240(AX2).UnderllN.N.C.$240(A)(l),justcause includes, but shall not be necessarily limited to:

a. Insanity, when judicially or medically determined.b. Convictionby any court of any felony.c. Council members failing to attend Council meeting as required by law.***e. Habitual indulgence in alcoholic beverages.f. Conviction of any misdemeanor involving deceit, untruthfulness, and dishonesty,including but not limited to extortion,embez.zlement, bribery, perjury, forgery, fraud,misrepresentation, false pretense, theft, conversion, or misuse of Navajo Nation fundsand property, and crimes involving the welfare of children, child abuse, child neglect,aggravated assault and aggravated battery.g. Breach of fiduciary trust duties to the Navajo People.h. Malfeasance or misfeasance of office.

[emphasis added]. Similar to placing a Delegate on administrative leave, removing a Delegateunder section 240 (A) is a discretionary, as opposed to mandatory, action that should besupported by procedures that ensure that just cause is established and the Delegate is affordeddue process. See generally, Shirley, No. SC-CV-02-10, slip op. atM.

As discussed earlier, the Navajo Nation Code does not specifically define breach offiduciary trust to the Navajo People. Nor does the Code specifically define malfeasance ormisfeasance of office. It is therefore the responsibility ofthe Council to determine whetherbeing charged with, but not convicted of, a crime against the Nation meets the criteria for justcause as to a breach of fiduciary trust duties to the Navajo People and/or malfeasance ormisfeasance of office.

CONCLUSIONThere are no statutory laws orjudicial decisions mandating the automatic removal from

office of a Council Delegate charged with, but not convicted ol a crime against the Nation. TheNavajo Nation Code does, however, provide the Navajo Nation.Council with the discretion andprocedures to place a Delegate on administrative leave. The Code also provides the voters andthe Council with avenues to remove a Council Delegate from their office, even if they have onlybeen charged with, and not convicted of, a crime.


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Memorandum To: Duane H.Yauie and Lester J. BegayRE: Resolution of the Shiprock Chapter 0I-06-14402-SHIP and Resolution of the Tiis Tsoh Sikaad Chapter TTS-RES-14-01-026: Removal of Council Delegates Charged with a CrimeJanuary 29,2014Page 5

Please let DOJ know if the Chapter desires any additional discussion on this issue.Attachmentsxc: Johnny Naize, Speaker, The Navajo Nation Council: The 22no Navajo Nation Council Delegates: Mariana Kah1, Acting Chief Legislative Counsel/OlC


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01.06. H)0z-sHlP

ftesolution of the Shiprock ChaptersFrrPr{ocK N AVAIO N /f llON

WTIEREAS:l. 'l'he Shiprock Chapter of the Navajo Nation aoe on this rcsolution pumuant to the authority confened

to the Chaptcr through Navqio Code Title 25, Chapter I; Section B. (Purpose), wltich states, "Throughadoption of tlris Act, theNavajoNation Councildelogates to Chapters governmontalauthority witlrtspect to local matterc consistent with Navajo [aw, including custom and tradition;" and

2. The Din6 people require their leadcqship to obey all laws of the Navajo Natiott including theFundamental Laws of the Din6, the Navajo Ethics Law and to uphold tho Oath of Office they swore to.Furtharthey are held to a highcr standard ofconduct, to be above reprooolq to be honorable and to setan example for atl Navajo pcople, in particular the young, artd

3. There oro Navajo Nation Couucil Delegates who have been charged with rimos against the NavajoNation and thus tlrc Din pople, includirrg ntisuse of Navajo motries, cotupiracy, fraud and abuse ofoffice, and

4. Attlrough there appears to bc no polioy on how Dologatcs who are so charged should be treated, theNavajo Personnel Poticies Manual'sTable of Penalties may provide some guidance in tlrat, it prescribeshow employees would be dealt'wilh whpn they comrnit misuse of Navajo funds, solicitation andscceprarce of kickbacks, falsifioation of Nation record, fraud and/or conspiracy to commit fraud audabuse of office; tho penalty for each of these offenses is Removal. and

5. Because of the moral and ethical duties and responsibilities that Navqio leaders must be held to, it isguestionable wlrether these individuals who are formally charged with crimcs and arc underinvestigation should aotivcly rcmain in office.

NOW, TIIERETOR"E, BE ITNESOLVED TIIAT:Requesting the Attorney Geneml of tlre Navqio Nation to issuc an opinion on whether the Navajo NationCouncil Detegntes who are fbrmally chargcd with crimes against the Navajo Nation should renrain activeon tho Navajo Nation Council.Motioncd by:battt/-r.:t-t t/'xvyrp;u- Seconded by: Nlrr-r.c.a F**,cERTIFICATIOI{Wc hereby certiff that tlre foregoing rssolution was prosented and considered al a duly oalled Chapterrneeting at which u quorum was present and tlut the same was approvcd by a vote ofggin favor, 0 opposedand g absteution on tlris Qfl day of January 20|J.

Tommie YalLie, Vico President


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Tiis ?ssh Sikaa{ Ch:rp**rPost Ofiice Box 7359Newconrb, New Mexico S?455505-696-5470 (Telephone)505-696-54?3 (Fa.x)

ti i stsohsikaad@avaj o rh apteru, org Tlis TsohRS$OLUT:ON NO: *I$*EE$I {*01 *S?6

nEr{rffiT}I{o IIIrffr?o}NsY sBNrnatp}TrIp}ievAJo}{*Tr*Nro}$sus,tuN orl}{Iol{ oN sA$AIilsr TXr*r{AyA;? r{Ar:0?,,r s,$Q:JLn IrmMArN acTrY* oN Tgp &qvAdq lYsrIoN touNfrt{WHESEAS:

1. Ths Tiis Tsoh Sikaad is a certified Chaplercf the X*vqi* liatio* Soyernmrnt p$r$a*t lo Nav*jo TribalCouncil Se*olution No. CAP'34-PS and is delegated authority wilh reepect t* local mattex consistsncewith Navajo Nation law, including custom, tradition, ancl fiscal nrattcrs; AND2.. Thr Diue peaple reqairo their leadsrship to obey all laws of&e Navajo Natitu ircluding theFund*me*tal Laws ofthe Dine, the Navajo Hthies Law and to uphold the Oath of Office they tock.Further lhoy are held to e higher stanclard ofco::duc to be cbove reproa*h, to be honorable and to set aaexampla for atl Navajo pecple, iu pu'ticulnr tlie y*ung; ANI)3. Thsre *reNsvqjr Nation Council $elegates whc have been ehargd with crimet agairst tle Nav*joNation and thus the Din* people, including misxse ofNavajo mo*ier, c*nspiraoy, *ald a:t* nbuse ofofficslAND4. Ai:hough {lere *ppoars tq bs no pclioy guide on hcw Delegates whc *re so eharged s::ould b* treaad,tho Navqio Fsrsorurel Fotrioie* Manuel Tnble *f Feualtics prcscribes how ercployeea would be d*alt wif:wh*n th*y eommit misuse ofNavqp furds, soliritatior and wceptance *f kckbackr, falsificatiot $lNation r$sord, fraud and/or *ouspiracy to commit fraud and abuse of office; the penalty for eaoh ofthesc oJfeuses is remnval; AND5. Becauso of tl'lo rnoral and elhic.al duties qnd responsibilities that Navajs le*ders must bc h*14 to, i: isquestianable whEthertkese individuals who are formal$ *harged with crimes a*d are mderinvrstignlirn *ltould artively remain iu offige.

H*W, mI3REfOnE ES n&$*tv$} TEA?;1. Requesting lhs Attorney General of tho Navajo Hation ta issu* an apinion *n whe{rer tho NavnjoNatio* Conncil Delegates wlro are fonnally charged with crimes against the Nava.io Natiol shsuld

remain activp on the N*vqjo Nation Couucil.CERTI.FICATIONWe hereby co*iff that the forgoing ros*lution was duly considerad by lhe Tii* Tssh Sikaad Ckapter cf theNavqjo Nation, (New Mexico), at a duly callcd r**eting a which a quorum wa.s present and &al seilte \ilaypaxed by a vote af ?,3 in favor-{32 -opposed, axd;9.}* ubst*incd on this 12th day of Januaqy. ?014.SecsrEled:

I"$t{rJ. IlcgryPr6idqr/rrthur J. Yy:icVico Prc$id..l

D;rvi* I lrrryGrazing Nltnlrrl.orcnro C. IlrlcsCourcil Dclcgntc

Lorenzo C. Bstes, Council DelegateNr{cy A. i}e[ryScarclnryfli$clrrcr


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Shiprock Chapter Governmentof the Navajo Nation..P. O. BOX 3810 . SHIPROCK, NEW MEXICO 87420-3870Email:[email protected] . (505) 368-1081 ' . Fax (505) 368-1092 . Website: www.shiprock.rurdes.org

30 January 2014

TO MEMBERS OF THE NAVAJO NATION COUNCIL:Although the Attorney General initially misinterpreted and thus miscdnstrued the question asked, theconclusion is sound and proper. As opined, the Navajo Nation Codd at Title 11'5 240 says the "NavajoNation Council may by majority vote of the Council, place....any of its members on administrative leave,with or without pay, where there are reasonable grounds to believe that such official has seriouslybreached his or her fiduciary trust to the Navajo People and such ieave will serve the best interest of theNavajo People."The Navajo government is in a state of turmoil as it is apparent a significant number of Din6 people havelost confidence in Navajo leadership partly due to the brazen continued active participation of Delegateswho are legally charged with violatiqn of Navajo law. The Shiprock Chapter resolution asked "whether....Delegates who are formally Charged with ciimes...should remain active on the,..,Council." The AttorneyGeneral misconstrued the question by incorrectly assuming that we meant "immediate removal". Theplacing of Delegates on administrative leave bgcause thiy have breached their fiduciary trust to thepeople is equivalent to them remaining on the Council, just nbt being active.The 12 votes to remove Mr. Naize as Speaker says loudly that there remains a dominate vestige of honorand ethics on the Council. I respectfully call on the 12 Delegates to act expeditiously to restore theintegrity of the Council by placing all Delegates who are charged with crimes on adminis*ative leavewithout pay. lt does not matter how many charges they have, as evbn just one charge is a serious breachof fiduciary trust. This action would be a path back to hqnor and begin the restoration of confidence inour NCvajo Council. This act of courage will unquestionably serue the best interest of the Navajo People.

Respectfully,

CHAPTER OFFICIATS DISTRIEI 12 GRAZINC COMMITTEEDuane H. Yazzie, President Robert Hayes, MemberTommie Y azzie, Y ice-P residentKaibah C. Begay, Secretary-Treasurer

SAN IUAN RIVER FARM BOARDJoe Ben, Jr., Member COUNCIL DELEGATERussell Begaye

Duane H. Yazzie, Shi

opinion from deputy attorney general for navajo nation department of justice

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