Not Reported in Am. Tribal Law, 1997 WL 34691849 (Grand Traverse Trib. Jud.)
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Grand Traverse Band of Ottawa and
Chippewa Indians Tribal Judiciary.
In re REFERRAL OF John McSAUBY, to Tribal Judiciary for Removal From Office.
July 29, 1997.
OPINION OF TRIBAL JUDICIARY
MICHAEL PETOSKEY, Chief Judge.
This matter comes before the Tribal Judiciary, sitting en banc, to consider two (2) issues. The first is whether Tribal Councilor, John McSauby, is entitled to court-appointed counsel and, if so, who should pay for the representation. The second issue is whether Tribal Councilor, John McSauby should be removed from office for misconduct. The Judiciary addresses these two (2) issues in that order and enters unanimous decisions on both issues.
I. COURT–APPOINTED COUNSEL AND ATTORNEY FEES:
Preliminary Trial Court Determinations:
The trial court made a preliminary determination that Councilor McSauby should be represented by legal counsel for the following reasons:
(1) Councilor McSauby was confused about how to defend against this removal action because there is another civil proceeding pending against him to rescind the land sale that is at the heart of the current controversy. For one untrained in the law and its processes, it is difficult to separate the two. There is a commonality of facts because the two legal actions arise from the same incident. However, the legal issues are different because the nature of the two actions are completely different. It was clear that Mr. McSauby’s lack of understanding and familiarity with the law and judicial process would result with an inability to focus cleanly on the issues as the Court would need to deal with them. The result would have been that the Court itself would have been forced by necessity to be pro-actively involved with guiding the case through the judicial process and, undoubtedly, guiding the defense if unrepresented to ensure fairness, due process, and to just get the appropriate legal arguments before the Court. Surely, that would have appeared to some as the Court being biased. More importantly, the Court itself was uneasy about the prospect of guiding, as its role of being decision-maker requires impartiality. Thus, without the appointment of counsel, the necessity of clearly focused proceedings would have resulted in the decision-maker’s role being compromised and the helping hand to move the proceedings being viewed by some as biased. In a case of this importance to the tribal community neither of those consequences are acceptable.
(2) This is a matter of utmost importance to the Tribe. This is the first removal action. How the Tribal Judiciary handles this matter will be legal precedence for future removal actions. Thus, fundamental fairness is viewed not only important to the instant matter but for future matters as well. That being the case, fully-developed facts and legal arguments are important to the Court.
It is clear for the above-mentioned reasons Councilor McSauby would not be able to present either to the Court. This entire matter is an unfortunate happening. The last thing the tribal community needs is for bad law to develop on top of it. Good law results from the parties presenting their cases and arguments well. Otherwise, courts are basing decisions on partial facts and incomplete arguments.
Arguments Against Appointment:
Legal counsel for the Tribal Council presents the Judiciary with the following arguments why Mr. McSauby should not be appointed counsel paid by the Tribe:
(1) Indigent status is a prerequisite for court-appointed counsel;
(2) Tribal court should adopt the so-called “American rule”;
(3) There is no constitutional or legislative authorization to pay court-appointed counsel;
(4) It results in adding insult to injury; and
(5) There is no budget authorization to pay court-appointed counsel.
En Banc Determinations Regarding Appointment:
The Tribal Judiciary expressly adopts the reasons cited by the trial court for appointing counsel to represent Mr. McSauby. In addition, there are at least two (2) more reasons for ensuring that Mr. McSauby is represented by legal counsel:
(1) This is an important matter to tribal voters. Councilor McSauby was elected to office. To deprive them of their elected voice is a very serious undertaking. Those who elected him to office are entitled to have their chosen representative be represented by legal counsel.
(2) Tribal Councilors with minority opinions should have protections in a system of checks and balances from a tyranny by Council majority. Checks and balances in government serve to ensure good government. One of checks and balances for Councilor removal is the referral to the Tribal Judiciary, but the check and balance would be incomplete without legal representation because the deck is stacked in favor of the majority. It will be represented by the tribal attorney staff. Tribal attorneys work for the Tribal Council using tribal resources, so tribal resources should also be used to “balance” the “check” against majority reprisals against minority office holders.
The Tribal Judiciary by reasoning as above rejects all five (5) arguments made by counsel for the Tribal Council. All five (5) rejections are based on the reasoning above and respectively follow:
(1) Given that this matter is of the utmost importance to the tribal community as a whole for the reasons cited above, indigent status is not required. If Mr. McSauby has unduly profited, there are other remedies available for tribal redress.
(2) The “American rule” adopted by state and federal courts is rejected in its application to this case. If we are to be just like them, with wholesale adoption of their rules and laws, why do we continue to argue that Indian people have a very different perspectives than those of the society that surround us and thus, exercise self-government to incorporate our own values? The Tribal Judiciary’s sense of what is fair and why can be different than those of other courts and is, as expressed above, in this case.
(3) The Tribal Court is a court of general jurisdiction. See Tribal Constitution, Article V, Sec. 1. As such, it has the inherent power to do whatever is reasonably necessary to fairly resolve any matter that is appropriately before it. This is a constitutional power. Thus, the Tribal Constitution gives the Court the power to do what is reasonably necessary. The Tribal Council’s authorization is not necessary.
(4) There was no way of knowing whether insult would be added to injury prior to these matters being heard by the Judiciary. Even at the point of releasing this Opinion, much fact-finding must occur to fairly resolve the civil suit between the Tribe and Mr. McSauby. To this point, the stipulated facts and offers of proof presented to the Judiciary are only the tip of the iceberg.
(5) That there is no budget authorization is a woefully inadequate reason to deny representation by counsel in a matter of this importance to the Band. It seems that the Tribal Council can find resources to do many other things that are not expressly included in prior appropriations. In this time of relative resource-rich ability to do many things for the community benefit and in light of the reasoning expressed above clearly pointing out the numerous benefits to the community as a whole, the Tribal Council must pay Defendant McSauby’s attorney fees and court costs.
FOR ALL OF THE FOREGOING REASONS, reasonable attorney fees and costs are awarded to Councilor McSauby’s attorney. A detailed invoice must be submitted to the Tribal Court for its review and approval prior to submission to the Tribal Council for payment.
II. REFERRAL FOR REMOVAL:
The referral to the Tribal Judiciary of the removal from office of Tribal Councilor John McSauby was premised on the suspicion that he might have engaged in misconduct. The En Banc Hearing before the Tribal Judiciary on June 18, 1997 only involved the suspicion of misconduct that implicates violations of the Tribal Constitution and tribal law.
It is both unfortunate and surprising that the conflict-of-interest aspects of this matter went unnoticed by those involved until tribal members brought them to the attention of the Tribal Council. “Red flags” should have been jumping up all over and flapping like crazy. It is also clear that this matter would not have gotten this far if Tribal Council would have: (1) worked more closely with legal staff in order to ensure that Council has the legal guidance it needs; and (2) refrained from using polling forms to conduct business and posted the proposed action for public notice. Legal counsel for the Tribal Council acknowledged that mistakes were made but argued that such should not excuse Councilor McSauby. We agree.
The pertinent language upon which the decision of the Tribal Judiciary rests in deciding this matter is: “In carrying out the duties of tribal office, no tribal official ... shall make or participate in making decisions ...”. GTB Tribal Constitution, Article XII, Sec. 1 (bold added for emphasis). The question that must be answered is whether Councilor McSauby either made or participated in making the decision to purchase the land from himself.
The Judiciary expressly gives its definitive interpretation of that language as follows:
(1) “... make ...” means affirmatively voting on the issue; and
(2) “... participate in making ...” means engaging in any activity directed toward any decision-maker to influence, directly or indirectly, a decision which involves a personal financial interest.
The Tribal Judiciary rejects the prevailing interpretation of the conflict-of-interest provision that was argued by both counsel during oral argument at the Hearing on June 18, 1997. The pertinent portion involved in that dominant interpretation is “... which require balancing a personal financial interest, other than interests held in common by all tribal members, against the best interests of the Band.” GTB Tribal Constitution, Article XII, Section 1. The arguments centered upon whether the personal interest of Councilor McSauby was outweighed by the benefit to the Band. This interpretation is fostered by the word “balancing” which leads some to think that a balancing test is required to ascertain whether there is in fact a conflict-of-interest. We think not. The mere fact a personal financial interest is involved is sufficient to create a conflict-of-interest. The benefit to the Band is irrelevant. The word “balancing” simply means that the benefit to the individual must be weighed against the benefit to the Band. The outcome of the balancing is not determinative of a conflict-of-interest. The conflict-of-interest arises because a balancing of Councilor McSauby’s personal financial interest against the interest of the Band must occur. Who does the balancing or at what juncture is irrelevant. The promoter of a personal financial interest would not push for action or decision if he/she had not balanced the interests in his/her mind in order to develop the justification to sell the promotion to others. That kind of balancing is inherent in promotion of any personal interest.
Offers of Proof Applied to Constitutional Interpretation:
The Stipulation of Facts and Offers of Proof do not implicate Councilor McSauby in actually casting a vote for the land purchase. However, there is much to show that he actively engaged in promotion of the land purchase to the other members of the Tribal Council, that he pushed the process to make the ultimate decision, and that he influenced the decision. Councilor McSauby’s offer of proof is very telling. He offers to prove that he:
(1) discussed the project with individual Tribal Councils members, the Tribal Chairman and aggregates of Tribal Council members;
(2) subsequently met Tribal Council members to present proposed plans, an itemization of costs and benefits, the engineering site plans, marketing analysis, and discussed the status of the project through several conversation;
(3) took a proposed polling voting form that he prepared to the Tribal Chairman’s office;
(4) presented the polling form to a Tribal Council member at a subsequent Gaming Commission Meeting for that Council member’s vote;
(5) met with another Council member, who was about to leave town, in order to get her vote;
(6) asked a third Council member to vote;
(7) personally submitted the polling form to the Gaming Commission Accounting Department for the preparation of a check request;
(8) on a later date, December 4, 1996, personally took the signed check request form to the Tribal Chairman’s office for his signature, at the request of the Gaming Commission Accounting Department;
(9) returned the signed check request form to the Gaming Commission Accounting Department;
(10) signed the check issued by the Gaming Commission Accounting Department to Leelanau Title Company to purchase the land; and
(11) delivered the signed check to the Leelanau Title Company closing officer.
All of the above are conflict-of-interest activities. (1) through (6) are misconduct in violation of the constitutional prohibition of participating in the making of a decision. (7) through (10) are activities that demonstrate Councilor McSauby’s personal financial interest in seeing the deal through. Normally, the (7) through (10) activities are ones which would be handled administratively which points out that this entire matter was handled outside of procedural norms. Councilor McSauby’s land sale to the Band was not placed on any Tribal Council agenda for presentation, discussion, consideration, public input, or Tribal Council decision. Those who serve the Tribe can be reasonably expected by its membership to operate within commonly accepted government and administrative procedures. The Judiciary understands that the Tribal Council has taken steps to ensure procedural safeguards for the future by the adoption of the “Tribal Council Meetings Ordinance”. It is a good step in the right direction. The Tribal Constitution is clear about open meetings, public notice of meetings, a reasonable opportunity to be heard, and that the Tribal Council shall act only by ordinance, resolution, or motion.
The tribal community has every right to expect that tribal officials and employees will avoid conflicts-of-interest. Tribal members have a right to loyal service and fulfillment of confidence placed in officials and employees. Tribal officials have a fiduciary responsibility to tribal membership. Good government will require that even the appearance of a conflict-of-interest be avoided. In that regard, the Tribal Council is urged to seriously consider the adoption of a code of ethics for tribal official and employee conduct to provide additional guidance beyond that offered in this Opinion.
Councilor McSauby was referred to the Tribal Judiciary for removal because it was suspected that he might have engaged in misconduct. Having found that there was indeed misconduct, the Tribal Judiciary finds grounds for removal. Having found that grounds for removal exist, the Judiciary must remove Councilor McSauby from office. The removal is mandated under Article VIII, Sec. 2(f) of the Tribal Constitution.
FOR ALL OF THE FOREGOING REASONS, IT IS THE FURTHER ORDER OF THE TRIBAL JUDICIARY that Councilor John McSauby be removed from office.
No Appeal Right:
Consistent with the Trial Court’s previous Order in this matter to provide for an en banc hearing before the entire Tribal Judiciary, there shall be no appeal right in this matter.
Not Reported in Am. Tribal Law, 1997 WL 34691849