Title
13 - Tribal Employment Rights Ordinance
13.0 SHORT TITLE
The short
title of this ordinance shall be the Tribal Employment Rights Ordinance,
or TERO.
13.1 EFFECT ON PRIOR ENACTMENTS
13.1.1
Repeal. Resolution 91-71A, as amended March 6, 1995, Ordinance
No. 2-80, as amended April 27, 1995, the Rules for Hearings Before
the TERO Commission, as amended June 10, 1998, are hereby repealed
and shall be of no further force and effect as stated in Section 13.13.1
of this ordinance; provided, however, that any existing agreements
or contracts authorized under these now repealed enactments shall
remain in effect until such agreements or contracts expire or are
terminated; and provided, further, that the TERO Commission established
by this Ordinance may terminate any existing Indian preference agreement
and issue a permit in conformance with this Ordinance upon notice
to the affected party and opportunity for a hearing.
13.1.2
Certification of Indian Firms. The TERO Commission is authorized
to certify that an enterprise meets the definition of an Indian firm
set forth in Section 13.2.4 for purposes of Indian preference, and
for documentation of minority small business contract eligibility
or claimed exemptions from state taxation and wage performance bond
requirements; provided, however, that certification as provided herein
shall not oblige the Commission to advocate the claims of private
individuals and entities before any agency of another government.
13.1.3
Fair Operating Standards and Dispute Resolution Procedures for
Reservation Timber Sales Preserved Pending Approval of Administrative
Rules. TERO procedures established for Reservation timber sales
under the former MOU between Hoopa Forest Industries and the Bureau
of Indian Affairs, and consisting of (1) Exhibit A to TERO Amendment
No. 7, May 21, 1987, Fair Operating Standards and Procedures, and
(2) the Report of Timber Sale Contract/MOU Work Group, April 15, 1987,
including in particular the Contractor- Subcontractor Dispute Procedure,
are hereby preserved to the extent that they do not conflict with
the substantive provisions of this Ordinance; provided that the TERO
Commission established by this Ordinance shall review, revise, and
subject to Council approval, reissue these procedures as administrative
rules not later than 60 days after the effective date of this Ordinance.
13.2 DEFINITIONS
13.2.1
"Indian" means any member of any federally recognized
tribe, or any person who furnishes documentary proof that he or she
is recognized as an Indian by the United States pursuant to its trust
responsibility to American Indians.
13.2.2
"Hoopa Reservation" or "Reservation"
means the Hoopa Valley Indian Reservation as defined under Article
III of the Constitution and Bylaws of the Hoopa Valley Tribe.
13.2.3
"Employer" means any person, company, contractor,
subcontractor or entity located or engaging in commercial or employment
activity within the exterior boundaries of the Hoopa Valley Indian
Reservation, and which employs two or more persons.
13.2.4
"Indian Firm" means a firm or business certified
by the TERO Commission as eligible for Indian preference in contracting
and subcontracting; provided that Indians hold at least 51% ownership
interest in such firm or business and exercise majority management
control.
13.2.5
"Commission" and "Office" mean the
Tribal Employment Rights Commission and its Office and the Tribal
Office of Employment Relations.
13.2.6
"Council" means the Hoopa Valley Tribal Council.
13.2.7
"Minimum Threshold" means a minimum level that any
job applicant shall be required to meet prior to Indian Preference
being applied to that job applicant. Criteria to establish a minimum
threshold may be established by but are not limited to the following:
1.
Job Descriptions;
2. Interview Committees;
3. Skills Tests;
4. RFP's and License Requirements;
5. Other Job Requirements.
13.3 ESTABLISHMENT OF TERO COMMISSION AND OFFICE
13.3.1
Establishment and Purpose of Commission
(A)
The Hoopa Valley Tribal Council does hereby establish the Tribal
Employment Rights Commission (TERO Commission) for the purposes
of implementing and enforcing the Indian Preference provisions of
this Ordinance, and disseminating information regarding unlawful
employment discrimination by State and private employers subject
to Title VII of the Civil Rights Act of 1964 who are operating on
or near the Hoopa Valley Indian Reservation.
(B)
TANF; Training by TERO Commission. The TERO Commission is
hereby authorized to provide basic life/work skills training consistent
with the needs of the community and implementation of the Tribal,
state, or federal TANF program; to establish a Tribal Employment
Rights training center; to enter into agreements with labor unions
and other persons or entities to provide work skills training and
education opportunities; and to generally provide employment training
to members of the Tribe and residents of the Hoopa Valley Indian
Reservation through means deemed appropriate by the Tribal Council.
(C)
TERO Tax. The TERO Commission shall be allocated sufficient
funds as determined by the Hoopa Valley Tribal Council derived from
the TERO Tax as described in Section 13.5 of this Ordinance for
implementation, conduct, and fulfillment of the TERO Commission's
purposes.
13.3.2 General Powers of the Commission
(A)
Organizational Authority. The Commission may hire immediate
TERO staff, obligate funds appropriated by the Council, and secure
and obligate funding from Federal, State or other sources to carry
out its duties and functions under this Ordinance. The Commission
is further authorized and directed to adopt such organizational
bylaws as are necessary to enable it to carry out its duties and
functions under this Ordinance. The Commission shall report directly
to the Council. The TERO Commission shall be subject to the Conflict-of-Interest
and Nepotism Ordinance of the Hoopa Valley Tribe.
(B)
Regulatory Authority.
(1)
The Commission shall promulgate rules, regulations, interpretations
of law, and guidelines for Indian preference that are necessary
to implement this Ordinance. Such rules shall become effective
upon Council approval of a resolution adopting said rules. Council
approved rules shall be codified in the Revised Code of the Hoopa
Valley Tribe, and the Commission shall take other reasonable steps
to insure that the general Reservation community is on notice
of all Indian preference and applicable employment related laws.
(2)
The Commission shall maintain an Indian Skills Bank as a means
of providing qualified Indian employees to employers, contractors,
and subcontractors. The Commission shall actively recruit Indians
for listing in the Skills Bank. The Commission shall also actively
recruit and certify Indian firms as eligible for Indian Preference
in contracting and sub-contracting.
(3)
The Commission is authorized to certify Indian firms located on
or off the Reservation, for purposes of Indian preference, minority
small business contract eligibility, exemption from state taxation
and wage performance bond requirements, and other purposes. The
Commission shall develop administrative rules to implement this
authority, which shall include provisions and procedures for revocation
of such certifications.
(4)
The Commission may register off-reservation contractors and subcontractors,
approve Indian Preference Plans, and issue permits to such contractors
according to rules and procedures to be developed, which shall
include procedures for revocation of such permits.
(5)
The Commission is further authorized and directed to investigate
complaints regarding any violation of the provisions of this Ordinance
or any Approved on other tribal law the Commission is authorized
to enforce. The Commission may also investigate possible violations
of this Ordinance if there is reasonable cause to believe a violation
of this Ordinance has occurred or is occurring. Neither the Commission
or any of its employees shall have the authority to investigate
or assist any Hoopa Tribal employee in pursing any employment
related claim not within its authority under this Ordinance
(C)
Adjudicatory Authority The Commission may hold hearings on
and determine any matter under its authority, including but not
limited to hearings necessary to the issuance, modification, and
revocation of any permit, license, certification, or assessment
authorized hereunder, as well as any adjudicatory hearing regarding
violations of the provisions of this Ordinance. The Commission shall
have no authority or jurisdiction to hear or adjudicate complaints
brought by Hoopa Valley Tribal employees that are not specifically
authorized under this Ordinance. The Commission shall promulgate
simple and fair rules to govern its adjudications, and is authorized
to issue compliance orders and impose civil penalties in the form
of fines.
(D)
Cooperative Agreements with Other Governments The Commission
may negotiate, and upon Council approval, enter into cooperative
agreements with agencies of state and federal government in order
to implement the intent of this Ordinance and eliminate unlawful
discrimination against Indians.
13.3.3
Composition of the Commission
(A)
The Commission shall be composed of five (5) members in good standing
in the community. Three (3) members of the Commission shall be appointed
by the Council in October of even numbered years, each for a term
of two (2) years; and two (2) members shall be appointed in odd
numbered years, each initially for a term of one (1) year, thereafter
being appointed in October of odd-numbered years each for a term
of two (2) years. Any member may be removed by the Council at any
time for cause, subject to notice and opportunity for a hearing
before Council. The Council's decision shall be final. All terms
of office shall commence on October 1 of the year position becomes
vacant.
(B)
Decisions of the TERO Commission shall be made by a majority vote.
A quorum shall consist of any three of the five Commission members.
(C)
Any Commission member shall be disqualified from any involvement
in decisions affecting the tribal department or entity with which
he or she is employed or volunteers their time to that department.
13.3.4
Powers of the TERO Director
The TERO
Director shall have those powers delegated by the Commission as it
deems necessary to carry out this Ordinance. The Director shall be
the investigating agent for the Commission responsible for investigating,
researching, reporting and documenting any relevant information required
by the Commission. The Director shall report directly to the Commission.
13.4 INDIAN EMPLOYMENT PREFERENCE POLICY AND PROCEDURES
All employers
shall extend a preference to qualified Indians, as provided herein,
in all aspects of employment, including but not limited to recruitment,
hiring, promotion, lateral transfers, retentions, training, contracting,
and subcontracting. No employer may recruit, hire, or otherwise employ
any non-Indian for any employment position covered by this Ordinance;
unless and until the TERO Commission has furnished written notice to
such employer that no qualified Indians are available for such position.
13.4.1
Applicability Unless clearly and expressly prohibited by federal
and other tribal laws or Council action, this Ordinance shall apply
to all employers, including but not limited to: The Council and all
its programs, departments, and chartered entities or enterprises;
private employers and independent contractors and subcontractors,
including those performing work for the Council, the State of California,
or the United States.
13.4.2
Covered Positions The Indian Employment Preference Policy of
this section shall apply to each and every job classification, skill
area, or craft recognized or utilized by an employer, including administrative,
supervisory, and professional classifications.
13.4.3
Qualified Indians; Employment Criteria An Indian shall be qualified
for employment in a position if he or she meets the minimum threshold
requirements for such position, and such Indian shall be accorded
the preferences to which he or she is entitled under this Ordinance.
No employer may utilize any employment criterion that is not legitimately
related to the performance of the position.
13.4.4
Eligible Indians
(A)
Hoopa Valley Tribe, its Entities, and private employers contracting
with the Tribe: The Hoopa Valley Tribe, its programs, departments,
chartered entities and enterprises, and private employers contracting
with the Tribe, shall extend a preference to qualified Indians according
to the following priorities:
(1) Enrolled members of the Hoopa Valley Tribe;
(2)
Indian spouses of enrolled members of the Hoopa Valley Tribe;
(3)
Indians residing within the exterior boundaries of the Hoopa Valley
Indian Reservation.
(4)
Indians not residing within the exterior boundaries of the Hoopa
Valley Indian Reservation.
If
this section conflicts with any applicable federal laws or regulations,
the Hoopa Valley Tribe and its programs, departments and chartered
entities and enterprises, and private employers contracting with
the Tribe shall extend Indian preferences according to the requirements
of said federal laws and regulations.
(B)
Private Employers Not Contracting with the Hoopa Valley Tribe:
Private employers not contracting with the Hoopa Valley Tribe and
doing business within the exterior boundaries of the Hoopa Valley
Indian reservation shall not be subject to the priority requirements
of Section 13.4.4(A), but shall extend a preference to qualified
Indians residing on or near the exterior boundaries of the Hoopa
Valley Indian Reservation. Private employers operating under contracts
with the Hoopa Valley Tribe shall be required to provide Indian
Preference according to the requirements of § 13.4.4 (A).
13.4.5
Notice of Employee Rights. All employers subject to this Ordinance
shall prominently display a notice to all employees and applicants
for employment of their rights under this Ordinance.
13.4.6
Employer Retaliation Prohibited. It shall be violation of this
Ordinance for any employer to take any adverse personnel or hiring
action, or to retaliate in any way, against any person who attempts
to enforce the requirements under this Ordinance. Employers found
by the Commission, pursuant to an adjudicatory hearing, to have engaged
in retaliation shall be subject to appropriate sanctions to be imposed
by the Commission. The Commission may in its discretion either hold
a hearing or file action in Tribal Court to review an allegation of
unlawful retaliation. The Tribal Court is authorized to issue temporary
injunctions for enforcement of this provision to prevent unlawful
conduct.
13.5 ESTABLISHMENT OF TERO TAX AND FEES
There
is hereby established a TERO tax to be paid to the Hoopa Valley Tribal
Council by each prime contractor and by each employer operating within
the exterior boundaries of the Hoopa Reservation, whose total contract
or annual gross revenues is $1,000.00 or more. The tax shall be equivalent
to one percent (1%) of the total gross value of any contract performed
within the Reservation or of the total annual gross revenues. The TERO
tax may be paid in incremental payments, subject to the prior written
approval of the Tribal Council. The proceeds of the tax shall be used
in implementing this Ordinance and providing funding for the Hoopa Valley
Tribal Court's processing and hearing of employment termination cases
pursuant to the requirements of Title 1. The Hoopa Valley Tribal Council
shall authorize the appropriate amounts of the TERO Tax to be utilized
by the TERO Commission and the Tribal Court according to proof of budgetary
needs provided by each department. The TERO tax shall be governed under
guidelines approved by the Tribal Fiscal Department. A contractor or
employer failing to pay the TERO Tax shall be subject to sanctions imposed
by the Commission. The Hoopa Valley Tribal Council when it is determined
to be in the interests of the Hoopa Valley Tribe reserves the right
to waive TERO Taxes and Fees for any contract or contracts.
13.6 SPECIAL REQUIREMENTS FOR CONTRACTORS AND SUBCONTRACTORS
The requirements
of this Section apply to all employers engaging in commercial or employment
activities within the Reservation pursuant to public or private contract.
If this section's contracting requirements conflict with applicable
federal law or regulations, the applicable federal laws or regulations
shall supersede this section.
13.6.1
Certification by Commission Any contractor or subcontractor
claiming eligibility for Indian preference under this title shall
submit documentation acceptable to the Commission, pursuant to its
authority under Section 13.3.2 (B)(3) that is an Indian firm as defined
in Section 13.2.4.
13.6.2
Indian Preference Plan Each contractor shall include in its
bid an Indian Preference plan for the master contract and any subcontracts.
The plan shall indicate the name of the proposed subcontractor, whether
it is an Indian-owned firm and if not, information on the good faith
steps taken to identify Indian firms for the subcontract. A contractor
may not refuse to employ an Indian subcontractor for the reason of
price so long as the Indian firm's price is within five percent (5%)
of the lowest bid, calculated by multiplying the lowest bid by 105%.
A contractor may not refuse to employ an Indian subcontractor for
the reason that a non-Indian firm is more qualified so long as the
Indian firm satisfies the threshold requirements for technical qualifications.
13.6.3
Failure to Submit Indian Preference Plan An apparent successful
bidder who fails to submit an Indian preference plan prior to award
of the contract shall be considered a non-responsive bidder for the
purpose of awarding the contract.
13.6.4
Amendments to Plan If awarded the bid, the contractor may not
deviate from the plan or add or delete any existing new subcontracts
or subcontractors without the written consent of the Contracting Officer
or his designee and notice to the Commission. Any amendments to the
Indian Preference Plan must be in writing and approved prior to the
date of implementation.
13.6.5
Bid Shopping Prohibited A contractor is prohibited from engaging
in bid shopping as a means of avoiding its Indian subcontract preference
obligations. Bid shopping is defined as any practice which a bidder
or contractor informs a prospective subcontractor that it will receive
a subcontract only if it offers a price lower than that proposed by
another firm.
13.7 JOB CATEGORIES
Employers
or subcontractors employed by a primary contractor under one or more
contracts totaling at least $10,000 shall not participate in more than
one area of the overall project for which such employer or subcontractor
is employed. A superintendent or any person in a similar capacity employed
by the primary contractor shall not be employed in any other aspect
of said project.
13.7.1
Identification of Regular, Permanent Employees Prospective
contractors and bidders shall identify regular, permanent employees,
including those included in subcontractors, in the bid package. Such
employees may be employed on the project whether or not they are Indian.
A regular, permanent employee is one who is and has been on the contractor's
or subcontractor's annual payroll, or is an owner of the firm. The
fact that an individual has worked for the contractor on previous
projects shall not of itself qualify that individual as a regular,
permanent employee. Exceptions for superintendents and other key personnel
may be granted by the Commission on a case-by-case basis. Any contractor
or subcontractor which fills vacant employment positions in its organization
immediately prior to undertaking work pursuant to a contract on the
Hoopa Reservation shall provide evidence acceptable to the Contracting
Officer and the Commission that such actions were not intended to
circumvent the provisions of this Ordinance.
13.7.2
Lay-Offs No Indian Worker shall be laid off as long as a non-Indian
worker in the same craft is still employed, not as long as the Indian
meets threshold qualifications for the job, unless such non- Indian
has been employed for more than 90 days longer than such Indian. If
the contractor lays off by crews, qualified Indians shall be transferred
to any crew that will be retained, as long as there are non-Indians
in the same craft employed elsewhere on the Reservation under the
same contract.
13.7.3
Existing Contracts, Employers Any existing contracts or other
work presently operating under an agreement with the Tribal Employment
Rights Office will continue under the same written guidelines and
rules. Each employer shall provide to the Commission a list of employees
and their Indian affiliation, if any, as part of the implementation
of this Ordinance.
13.7.4
Reporting Requirements Each employer shall submit monthly reports
to the Commission on a form provided indicating the number of employees,
including a separate tally of Indians, it has on its work force, monthly
hires and fires, and other information as may be identified on the
form. An employer who fails to submit monthly reports shall be subject
to sanctions provided under this Ordinance.
13.8 IMPLEMENTATION
In implementing
the requirements of this Ordinance, the Commission may:
13.8.1
Numerical Hiring Goals
Impose
numerical hiring goals and timetables that specify the minimum number
of Indians an employer must hire.
13.8.2
Training Programs
Require
employers to establish or participate in such training programs as
the Commission determines necessary in order to increase the pool
of qualified Indians on the Hoopa Reservation. Such training programs
must have prior approval from the Contracting Officer and should preferably
be included in the bid package. If training programs are not included
in the bid package, the Commission shall give due consideration to
the increase in cost, if any, for performing the program.
13.8.3
Attend and monitor all job interviews as a non-voting participant.
13.8.4
Prohibit an employer from establishing extraneous qualification criteria
or other requirements that serve as barriers to Indian employment.
13.8.5
Enter into agreements, subject to approval by the Hoopa Tribal Council,
with unions and other employers to insure compliance with this Ordinance.
13.8.6
Require employers to give preference in the award of contracts and
subcontracts to qualified Indian-owned firms and businesses.
13.8.7
Establish programs to provide counseling and support to Indian Workers
to assist them to retain employment. Employers may be required to
participate in and/or cooperate with such support and counseling programs.
13.8.8
Issue Permits
Issue
permits for implementation and provisions of this Ordinance and other
agreements entered into under the authority of this Ordinance.
13.9 ENFORCEMENT BY TERO COMMISSION
In implementing
this Ordinance the Commission shall have the following powers of enforcement:
13.9.1
Investigation, Monitoring
To investigate
and monitor complaints, concern, and inquiries regarding Indian preference.
13.9.2
Issue Notices of Non-Compliance and Compliance Orders
To issue
notices of non-compliance and compliance orders with the Indian preference
provisions of this Ordinance and other applicable provisions of this
Ordinance.
13.9.3
Citations, Subpoenas, and Penalties
To issue
citations and subpoenas to employers regarding violations of the Indian
preference provisions of this Ordinance, and to impose such civil
penalties, including fines, as may be reasonably necessary to remedy
the consequences of a violation of the Indian preference provisions
this Ordinance or to deter future violations.
13.9.4
Hearings To hold such hearings as may be necessary to resolve
complaints, enforce the provisions of this Ordinance, and hear concerns
regarding issues pursuant to the Commission's authority under this
Ordinance.
13.9.5
File and Defend Cases in Tribal Court To bring or defend a
complaint or other pleading in Tribal Court for enforcement of the
Indian preference provisions of this Ordinance, against any employer
within the exterior boundaries of the Hoopa Reservation.
13.10 TRIBAL COURT
Appeals
of decisions of the TERO Commission may be filed under the rules of
the Tribal Court. The Tribal Court is hereby authorized to hear and
dispose of appeals from final decisions from TERO Commission hearings.
Any appeal from a final decision of the TERO Commission must be filed
within twenty (20) calendar days after the date of receipt of the TERO
Commission's decision. Any decision not appealed within the required
time frame shall become final and the Tribal Court shall have no jurisdiction
to hear the appeal.
13.11 LEGAL REPRESENTATION
In carrying
out its responsibilities under this Title, the Commission shall consult
a legal counsel of its choosing subject to the approval of the Council.
Any legal counsel chosen must be admitted in good standing to practice
law in the state of California and the Hoopa Valley Tribal Court bar.
13.12 PRINCIPLES OF CONSTRUCTION; SEVERABILITY; SOVEREIGN IMMUNITY
PRESERVED
13.12.1
This Ordinance is remedial legislation intended to rectify the long-standing
problem of severe under-employment of Hoopa tribal members and other
Indians living in the Reservation community. Accordingly, it is to
be construed liberally to achieve its purposes. Doubtful issues are
to be resolved in favor of a right of any party to obtain administrative
review.
13.12.2
If any part of this Ordinance is found to be invalid for any reason,
it is the intent of the Council that the remaining provisions remain
in force to the maximum extent possible, and that they continue to
be construed according to the provisions of this Section.
13.12.3
Nothing in this Ordinance is to be construed as a waiver of the Tribe's
sovereign immunity from unconsented lawsuit, nor as consent by the
Tribe to bring an action against the Tribe, its officers, or any of
its departments or entities.
13.13 EFFECT OF AMENDMENTS ON PRIOR TERO LEGISLATION AND PENDING
CASES
13.13.1
Prior TERO Enactments or Rules: Resolution 91-71A, as amended March
6, 1995, Ordinance No. 2-80, as amended April 27, 1995 are repealed
and shall have no further force and effect. The Rules for Hearings
Before the TERO Commission, as amended June 10, 1998 shall be permitted
to be used where they are consistent with the language of this statute
by providing uniform rules for hearings when they are authorized under
this ordinance. Under no circumstances shall those present rules be
considered authority for the TERO Commission to hear employment related
grievances other than which is authorized under this statute. The
TERO Commission under the authority granted by §13.3.2(C) shall
draft new Rules Before Hearings to effect the most recent amendments
to this Ordinance.
13.13.2
All current employee grievances that are not related to termination
where the TERO Commission has not issued a final decision shall be
dismissed. An employee termination case that has been appealed to
the TERO Commission prior to the date of the Tribal Council transferring
employee termination grievances to the Tribal Court shall be heard
by the TERO Commission. However, all employee termination cases regardless
of whether they are pending before the TERO Commission or before the
Tribal Court shall be subject to the requirements of 1 H.V.T.C §
1.1.04(f) as it relates to the Hoopa Valley Tribe's limited waiver
of sovereign immunity.
CERTIFICATION
I, the
undersigned, as Chairman of the Hoopa Valley Tribal Council, do hereby
certify: that the Hoopa Valley Tribal Council is composed of eight members,
of which six (6) were present, constituting a quorum, at a Regular Meeting
thereof, duly and regularly called, noticed, convened, and held this
11th day of April, 2005; that this TERO Ordinance, Title 13 was adopted
at said meeting by a vote of five (5) for and zero (0) against; and
that since its adoptions this Ordinance has not been altered, rescinded,
or amended in any way.
DATED THIS
ELEVENTH DAY OF APRIL, 2005.
_______________________________________
CLIFFORD
LYLE MARSHALL, CHAIRMAN
HOOPA VALLEY TRIBAL COUNCIL
ATTEST:
________________________________________
DARCY MILLER, EXECUTIVE SECRETARY
HOOPA VALLEY TRIBAL COUNCIL
Approved
on April 11, 2005
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