Council eliminates EAB with new act

BY BRITTNEY BENNETT
Former Reporter
11/15/2017 01:00 PM
Main Cherokee Phoenix
Tribal Councilor Bryan Warner, sponsor of the 2017 Employee Access to Justice Act, speaks during the Tribal Council’s Nov. 13 meeting at the W.W. Keeler Tribal Complex. The act eliminates the Employee Appeals Board and sends termination cases to the tribe’s court system. BRITTNEY BENNETT/CHEROKEE PHOENIX
TAHLEQUAH, Okla. – Tribal Councilors eliminated an appeal process for terminated or demoted employees by replacing the Employee Administrative Procedures Act with the Employee Access to Justice Act at their Nov. 13 meeting.

The new act seeks to “expedite the judicial review of employment terminations and involuntary demotions by employees of the Cherokee Nation” while also “providing due process and for cause removal protections guaranteed by the Cherokee Nation Constitution.”

It amends Title 51 of the CN Code Annotated – Civil Procedure and eliminates the Employee Appeals Board in favor of employee appeals from Human Resources going directly to District Court.

The EAB was comprised of three hearing officers appointed by the principal chief and approved by the Tribal Council. The EAB heard employees’ termination or demotion appeals.

In an Oct. 26 Rules Committee meeting, Assistant Attorney General Chrissi Nimmo told legislators that the legislation would only affect the appeals process and not the employee demotion or termination process itself.

“The act that’s in front of you today is what happens after they’re fired, so none of that process will change because of this act,” Nimmo said. “What this legislation will do is, of these people, if they want to appeal this, they go directly to court. I can tell you because I’ve been defending these cases for nine years, the EAB simply slows this process down.”

Nimmo told Tribal Councilors that employees previously filing an appeal via the EAB process would on average see a resolution within seven months, not including time for appeals that may be sent to District Court.

Under the new act, employees who believe they have been wrongfully terminated or demoted have 20 days from notice by Human Resources to file a petition with the court. A stamped copy of the petition must also be served within five days to the HR director and the chief legal officer of attorney general’s office. All filing fees under the act are waived.

Under the previous act, CN employees who felt wrongfully demoted or terminated could file a review or reconsideration letter with the HR director. If the decision were upheld, the employee would have 10 days to file an appeal with the EAB and receive a decision before an appeal could be filed in court.

“The goal of this legislation is to cut out the EAB, we go to District Court, we get a decision that hopefully says, ‘yes, they were terminated for a cause,’ or, ‘no they weren’t,’ and put them back to work,” Nimmo said. “We don’t like these dragging out either because if we have to put someone back to work after two and a half years, we’ve got to pay back pay. We’ve got to pay benefits. We have to pay attorney’s fees.”

Nimmo assured legislators that while EAB members were paid $500 each per hearing “no extra cost” would be incurred under the new act to move cases directly to the two CN-employed judges.
The new act will not affect employees who are part-time, temporary, seasonal or under contract. Damages allowed if wrongful termination or demotion is found include reinstatement to the position or a similar position, back-pay and benefits up to one year of the employee’s salary and benefits and assistance with attorney’s fees not to exceed 20 percent of the awarded amount.

Nimmo said that during the past eight years the CN has averaged 25 terminations annually, with 14 annually being job abandonments in which individuals did not come back to their jobs or submit notices.

Legislators also authorized an application to Indian Health Services’ fiscal year 2018 Youth Regional Treatment Center Aftercare Pilot Project. If approved, the CN will enter into an agreement with IHS to provide services to the Jack Brown Treatment Center, including yearlong post-discharge case management and holistic and cultural services or training for families and patients transitioning back to their communities.

In other business, legislators:

Increased the FY 2018 comprehensive operating budget by $6.6 million to $658.4 million,

Approved a resolution to provide training to 477 staff members working with individuals with disabilities through grant funding from the Department of Labor for a Disability Education Initiative,

Reappointed James Amos and Anthony Yates as Housing Authority of the Cherokee Nation commissioners,

Reappointed Bob Berry, Gary Cooper, Harrold “Sam” Ray, Michael Watkins, Brent Taylor, Buck Charles George and Jerry Holderby as Cherokee Nation Businesses board members,

Donated surplus office equipment to Brush Cherokee Action Association, Sequoyah County Boys & Girls Club, Calvary Indian Baptist Church, Jeremiah Foundation, Set Free Ministries, Marble City Food Pantry, Maryetta School and the town of Spavinaw.

To watch the full Tribal Council meeting and find archived agendas and meeting minutes go to cherokee.legistar.com/Calendar.aspx\ .

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