Official Misconduct in the Navajo Nation. Navajo Law Seminar Sponsored by: Sutin, Thayer & Browne & Johnson Barnhouse & Keegan

Transcription

1 Official Misconduct in the Navajo Nation OCTOBER 14, 2016 Navajo Law Seminar Sponsored by: Sutin, Thayer & Browne & Johnson Barnhouse & Keegan MARC LOWRY

2 CORRUPTION MAKES ECONOMIC DEVELOPMENT MORE DIFFICULT 2

3 FACTORS THAT CAN PLAY A ROLE IN CORRUPTION 1. UNEMPLOYMENT 50% 2. PER CAPITA INCOME $7, BELOW POVERTY LEVEL 37% Comprehensive Economic Development Strategy Report, p. 120; The Navajo Nation Division of Economic Development 3

4 WORKPLACE RISKS Lack of internal controls and accountability Internal Controls Review o o o Lack of effective leadership supporting financial accountability Inadequately qualified accounting staff No internal financial policy enforcement 4

5 Delegate #1 s payment to Delegate #2 s Family Delegate #2 s payment to Delegate #1 s Family Request Date To For Amount Request Date To For Amount 1/27/2009 Delegate 2 s son Youth Enrichment $4,363 1/27/2009 Delegate 1 s Sister-in-law Rent; bills $4,363 5

6 The Discretionary Fund Cases Defendants charged with misusing Navajo Nation Financial Assistance funds 140 criminal complaints filed against 16 Council Delegates and two Navajo Nation employees for misusing Financial Assistance Program funds Charges included bribery, false vouchers, abuse of office, and conflicts of interest All 18 individuals who were charged were convicted 6

7 What To Do When You Are Confronted With A Potential Misconduct Situation? Let s Hit The Books 7

8 SUBSTANTIVE ETHICS LAW ADDRESSING OFFICIAL MISCONDUCT 1. NAVAJO NATION ETHICS IN GOVERNMENT LAW, 2 N.N.C A. 2 N.N.C (A), General Prohibitions; conflicts of interest No public official or employee shall use, or attempt to use, any official or apparent authority of their office or duties which places, or could reasonably be perceived as placing, their private economic gain or that of any special business interests with which they are associated, before those of the general public, whose paramount interests their office or employment is intended to serve. B. Specific examples under 2 N.N.C. 3745(B) : i. Using public office for private gain; ii. Giving preferential treatment to any special interest organization or person; iii. Adversely affecting the confidence of the people in the integrity of the government of the Navajo Nation. 8

9 SUBSTANTIVE ETHICS LAW ADDRESSING OFFICIAL MISCONDUCT C. Prohibition on using official confidential information for private gain. 2 N.N.C D. Restrictions on representing other interests before governing bodies. 2 N.N.C E. Unauthorized compensation or benefit for official acts. 2 N.N.C F. Unauthorized personal use of property or funds of the Navajo Nation. 2 N.N.C G. Unauthorized use of staff. H. No acceptance of annual gifts of more than $ N.N.C N.N.C

10 SUBSTANTIVE, ENFORCEABLE, ETHICAL REGULATIONS I. Adoption of Supplemental Codes of Conduct for Officials & Employees, 2 N.N.C. 3758; (A) Authorizes the chief executive or administrator of every governmental entity of the Navajo Nation to submit for approval supplemental ethics rules. Upon adoption by the Naa bik íyáti Committee, such rules will have the force of substantive law. (B) 2 N.N.C (B) Authorizes the Ethics and Rules Committee to adopt supplemental rules, regulations, and standards of conduct for all elected officials as defined by the Navajo Nation Code. 10

11 THREE KINDS OF REMEDIES FOR VIOLATIONS OF ETHICAL LAW OR REGULATIONS 1. Administrative Remedies under 2 N.N.C Private Reprimand Public Reprimand Suspension from Office/Employment Removal from Office/Employment Disqualification from Office/Employment for 5 years 11

12 THREE KINDS OF REMEDIES FOR VIOLATIONS OF ETHICAL LAW OR REGULATIONS 2. Civil Remedies under 2 N.N.C Civil Liability equal to three times the value of the benefit or benefits obtained If more than one person is responsible for the harm, each individual is responsible for the entire amount of damages caused 12

13 THREE KINDS OF REMEDIES FOR VIOLATIONS OF ETHICAL LAW OR REGULATIONS 3. Criminal Remedies under 2 N.N.C If found guilty of a knowing and willful violation of any ethics law, a fine of not more than $500 and incarceration not to exceed 180 days Upon conviction, cannot be a candidate for public office or eligible for an appointed position for five years 13

14 SUBSTANTIVE CRIMINAL LAW ADDRESSING OFFICIAL MISCONDUCT TITLE 17, CHAPTER 3, SUBCHAPTER 7 BRIBERY AND RELATED OFFENSES 17 N.N.C. 360 Bribery in Official and Political Matters Elements of the crime: 1. agree to confer a benefit upon any elected official or employee, or agree to accept a benefit as an elected official or employee 2. with the intention, understanding, or agreement that the elected official or employee s vote, opinion, judgment, or exercise of discretion will be influenced 14

15 SUBSTANTIVE CRIMINAL LAW ADDRESSING OFFICIAL MISCONDUCT TITLE 17, CHAPTER 3, SUBCHAPTER 7 BRIBERY AND RELATED OFFENSES 17 N.N.C. 363 Making a False Navajo Nation Voucher Elements: 1. knowingly makes, or causes to be made, a material misrepresentation or forged signature, 2. upon any Navajo Nation voucher, 3. with the intent that the voucher be relied upon for the unauthorized expenditure of Navajo Nation funds. 15

16 SUBSTANTIVE CRIMINAL LAW ADDRESSING OFFICIAL MISCONDUCT TITLE 17, CHAPTER 3, SUBCHAPTER 7 BRIBERY AND RELATED OFFENSES Penalties: days incarceration per offense 2. $5,000 fine 3. Restitution 16

17 Federal Limitations on Tribal Criminal Penalties Indian Civil Rights Act, 25 U.S.C. 1302(c) For sentences greater than 1 year, a Tribe must ensure: 1. that a defendant has licensed, effective counsel; 2. that the Judge is adequately trained and licensed; 3. that all criminal laws, rules of procedure and evidence are publically available; and 4. that a record of the proceedings is kept. 17

18 HOW TO BEGIN YOUR CASE? You must report the corrupt activity to an appropriate Navajo agency ETHICS & RULES OFFICE, WHITE COLLAR CRIME UNIT, AUDITOR GENERAL S OFFICE, CHIEF PROSECUTOR S OFFICE, 18

19 WHEN TO BEGIN YOUR CASE? ETHICS CASES; 2 N.N.C No action shall be brought under [the Ethics Code] more than four years after the cause of action has accrued. 19

20 WHEN TO BEGIN YOUR CASE? CRIMINAL CASES; 17 N.N.C. 205 (A) A prosecution for embezzlement of Navajo Nation monies or falsification of Navajo Nation records or vouchers may be commenced at any time within five years after discovery of the offense. (C) If the offense has a material element of fraud, forgery or an offense against the Navajo Nation government, prosecution may be commenced after discovery of the offense 20

21 THANK YOU 21