This document dated March 23 was received from Wanda Batchelor on Wednesday morning. Prepared by her attorney, it is her answer to charges in a recall petition filed against her with the Tribe.,
March 23, 2013
rstory@storylaw.net
Washoe Tribal Council
Washoe Tribe of Nevada and California
919 US Hwy 395 South
Gardnerville, NV 89410
VIA EMAIL
Re: Opposition to Recall of Chairwoman of Washoe Tribal Council
Honorable Council Members:
On or about March 19, 2013, the Washoe Tribal Council Administration received a “Recall Petition for Chairwoman Wanda Batchelor” (hereafter “Recall Petition”). The Recall Petition is legally defective in that it fails to comply with the Constitution and Bylaws of the Washoe Tribe of Nevada and California (hereafter “Constitution and Bylaws”). Moreover, the allegations in the Recall Petition are both inaccurate and insufficient to constitute ground for removal of a Council Member in accordance with the Constitution and Bylaws.
I. The Recall Petition May Not Meet The Requirements Of Article IX, Section 3, Of The Constitution and Bylaws. Moreover, A Recall Petition Merely Requires The Washoe Tribal Council To Call A Special Election.
The cover letter to the Recall Petition and the Recall Petition itself both describe the Recall Petition as a Recall Petition. Moreover, the cover letter to the Recall Petition requests that Tamara Crawford, Enrollment Officer, “confirm the eligible Washoe Tribal voters.” Clearly, the Tribal Members who signed the Recall Petition anticipated a recall election. After all, the Washoe Tribal Council Chairwoman was elected in a Tribal-wide election. However, Article IX, Section 3, of the Constitution and Bylaws mandates that a recall petition of a Washoe Tribal Council member be “signed by one hundred fifty eligible voters of the Washoe Tribe.” Once the Washoe Tribal Council confirms that at least one hundred fifty eligible voters of the Washoe Tribe, the Washoe Tribal Council is mandated to hold a special election for such recall. Until the Washoe Tribal Council confirms that the Recall Petition conforms to Article IX, Section 3, of the Constitution and Bylaws, the Washoe Tribal Council can take no further action. Once the Washoe Tribal Council makes such confirmation, the Washoe Tribal Council can only schedule a special election and live by the results of that special election.
II. The Allegations In The Recall Petition Are Both Inaccurate And Insufficient To Constitute Grounds For Removal Of A Council Member In Accordance With The Constitution And Bylaws.
The cover letter to the Recall Petition also stated that the Law and Order Code and the Constitution and Bylaws do not have a provision for removal of a Chairman or Chairwoman; therefore, the petitioners are “conducting this recall under Article V (5), Section 2” of the Constitution and Bylaws. Article V, Section 2 of the Constitution and Bylaws provides that the Washoe Tribal Council may remove a “Washoe Tribal Council member or tribal officer” on three conditions. First, the vote for removal by the Washoe Tribal Council must by a 2/3d majority. Second, the Washoe Tribal Council must find that the Washoe Tribal Council member being removed is guilty of either “improper conduct” or “gross neglect of duty.” And third, the “accused shall have been given a written statement of the charges against him at least five (5) days before the meeting set for his hearing.”
The only charges that have been provided to Chairwoman Batchelor are the allegations in the Recall Petition. However, the allegations in the Recall Petition are both inaccurate and insufficient to constitute grounds for Chairwoman Batchelor’s removal from office.
GROUND ONE: “At the WTC meeting held April 2012, Ms. Bachelor denied the authority of the Dresslerville Community Council (DCC) to recall two members of its council as DCC’s Articles allow; she attempted to deny DCC’s right to be heard at the Tribal Council meeting and chose to personally “veto” DCC’s action under Article 7, Section 2 of the Washoe Tribal Constitution. Ms. Batchelor refused to disclose the “reason” why this action was taken and how it was “in the best interest of the Washoe Tribal membership as a whole.”
RESPONSE TO GROUND ONE: The record of the Washoe Tribal Council shows that the Washoe Tribal Council, at its March 9, 2012, meeting, considered the resolution of the DCC to remove Lloyd Wyatt and Arlen Wyatt from the Tribal Council. A motion was made to accept the resolution of the DCC and that motion was seconded. After discussion of the Council and after hearing from members of the audience, the Tribal Council voted on the motion and the motion failed by a vote of four in favor and seven opposed. The record of the Council, therefore, shows that Chairwoman Batchelor did not “personally” veto the matter. Instead, the Washoe Tribal Council vetoed the resolution of the DCC in accordance with its authority pursuant to Article VII, Section 2 of the Constitution and By-Laws, which provides that the, “Washoe Tribal Council reserves the right to veto any action of the community councils which, in the opinion of the Washoe Tribal Council, is whole, and Provided, Further, That such veto action must be taken within sixty (60) days from the date of the community council’s action.”
Neither the DCC nor the Washoe public were denied the right to be heard by Chairwoman Batchelor. The Washoe Tribal Council heard the DCC and the members of the Washoe public on this matter at two separate Council sessions-March 9, 2012, and again on May 11, 2012.
The Tribal Council chose to exercise its Constitutional authority, through motion and vote, to veto the resolution of the DCC to remove its Tribal Council members. Nothing in the Constitution places on the Chairperson the responsibility to “disclose the reasons” of the individual members prior to exercising their authority and responsibility to take up and vote on matters placed before it. All Council members, however, were polled at the request of a member of the audience to explain their thinking regarding their votes at both the March and May meetings.
GROUND TWO: “Ms. Batchelor has a special interest with a small group of Dresslerville residents to prevent removal of the Tribal Vice-Chair based on their frivolous letter of support that the Tribal Council accepted without verifying signatures of these individuals where (were) Washoe tribal members and current residents of that community.”
RESPONSE TO GROUND TWO: Again, the entire Tribal Council, not solely Chairwoman Batchelor took up and considered the resolution of the DCC regarding the removal of the two DCC representatives on the Tribal Council. The entire council chose to hear from the audience, including hearing a letter of support offered by a Tribal member. There is nothing in the Constitution or duties of the Tribal Chairwoman that prevent allowing a member of the audience to offer such a letter to the Council and nothing that limits the ability of the Tribal Council to consider that letter when taking their votes on any motions. It is up to each Council member, when faced with a motion and vote, to determine what if any weight to give to anything submitted to the Council for its consideration.
GROUND THREE: “It is the responsibility of the Chairperson to lead and facilitate Tribal Council meetings and ensure proper procedures are followed. Ms. Batchelor allowed both Dresslerville representatives to the Tribal Council to vote to prevent their removal from Tribal Council. This Code of Conduct was used to illegall[y] remove [Woodford’s] Tribal Council Representative when he refused to sign it.”
RESPONSE TO GROUND THREE: Pursuant to the Constitution and Bylaws, Article I, Section1: “[t]he Chairman of the Washoe Tribal Council shall preside over all meetings of the Washoe Tribal Council, perform all duties of the Chairman, and exercise any authority delegated to him.” The Tribal Constitution makes no mention of the “protocol” for voting of Tribal Council members in any circumstances, neither does it provide the Tribal Chair with the authority to determine whether a member of the Tribal Council may or may not vote on any motion made by the Council. The Council is a self-regulating legislative body, and each member of the Council must determine whether to vote on any matter. This is true under the Tribe’s Code of Conduct, Section 3(b) & (c), as well, which provides that:
• WTC Members, Community Council Members, and Members of the Tribe’s Boards and Committees will disclose their involvement with other organizations, vendors, and/or any other associations that might produce a conflict.(emphasis added)
• WTC Members, Community Council Members, and Members of the Tribe’s Boards and Committees shall not engage in behavior involving conflicts of interest and must not make profits or unfair gains through personal transactions while acting as a member of those Councils, Boards, or Committees. (Emphasis added.)
Nothing in the Constitution and Bylaws or its Code of Conduct allows the Chairperson to decide when another Tribal Council member may vote. Neither does either document bar any Tribal Council member from voting on any matter before it. Instead, the Code of Conduct requires disclosure of any conflict and generally prohibits behavior involving such conflicts. As used in the Code, a conflict of interest is one where a personal financial interest may conflict with the interests of the Washoe Tribe. The responsibility for identifying any such conflict lies with the individual Tribal Council members, not the Chairperson. Finally, any attempt to limit the ability of an elected officer of the Tribal Council from exercising his or her rights to participate in the Council’s business must be viewed carefully. Simply voting on a matter in which the Council member also has an interest in the outcome does not mean there is a conflict of interest, and is instead part of the duties of a Council member. (E.g., Each Council Member votes for an annual Tribal budget that provides both for the Council’s stipends and for their individual Communities’ annual budgets.)
GROUND FOUR: “Ms. Batchelor and her administrative team developed a Code of Conduct that Tribal Council members were required to sign and comply with although all Tribal Council members already took an oath to work in the best interest of the Washoe Tribe.”
RESPONSE TO GROUND FOUR: Neither Ms. Batchelor nor her administrative team developed a Code of Conduct as alleged in the Recall Petition. Washoe Housing Authority actually developed the Code of Conduct because it was a requirement to obtain funding under the Indian Community Development Block Grant (“ICDBG”) Program. The United States Department of Housing and Urban Development (“HUD”) regulations mandated that all members of the Washoe Tribal Council and all commissioners and alternate commissioners of the Washoe Housing Authority Board of Commissioners sign a Code of Conduct acceptable to HUD. Accordingly, Washoe Housing Authority staff drafted and both the Washoe Tribal Council and Washoe Housing Authority Board of Commissioners enacted the Code of Conduct before the present Washoe Tribal Council was elected and the Washoe Housing Authority Board of Commissioners was appointed. To ensure that the Washoe Tribe received its 2012 ICDBG funding, Washoe Housing Authority staff reminded the new Tribal Council and the new Board of Commissioners to sign the Code of Conduct.
GROUND FIVE: “The Code of Conduct does not have the power for removal because this policy was not brought before the tribal membership through a secretarial election, passed or amended to the Constitution by resolution. This action violates our rights and those of Tribal Council members.”
RESPONSE TO GROUND FIVE: The Code of Conduct does not grant the power of removal of a Washoe Tribal Council member; and the Washoe Tribal Council has never removed a Washoe Tribal Council member through the Code of Conduct. The Code of Conduct provides that “[a]ny removal action must be done in accordance with applicable law, e.g. the Washoe Tribe’s Constitution and By-Laws, Article V, Section 2, any Community Articles of Associations, or Tribal Law & Order Code.” Accordingly, under Constitution and Bylaws, Article V, Section 2, the Washoe Tribal Council removed Mr. Crawford from his seat on the Council because he refused to sign the Code of Conduct which jeopardized the Tribe’s ICDBG funding. The Washoe Tribal Council provided Mr. Crawford written notice of the charges, which alleged that by refusing to sign the Code of Conduct, Mr. Crawford was guilty of improper conduct or gross neglect of duty. He was provided with an opportunity to respond to those charges at a public hearing held by the Council on February 3, 2012. By motion and vote of more than 2/3 of the Tribal Council, Mr. Crawford was then removed from his Council seat.
The Washoe Tribal Council, not Chairwoman Batchelor alone, passed the Code of Conduct and removed Mr. Crawford from the Council. The Tribal Council’s actions were in accordance with the Constitution and Bylaws and mandated by HUD to obtain the Tribe’s ICDBG funding.
GROUND SIX: “Woodfords’ community chairperson submitted a letter of resignation to the Washoe Tribal Council and relocated. Ms. Batchelor refused to accept the resignation causing delays to fill the vacancy on both the Tribal Council and Woodfords community council, continued to pay the Chairperson, losing $6,000 in tribal funds for that community.”
RESPONSE TO GROUND SIX: The Woodfords Community Chairperson, Ms. DeAnn Roberts, submitted her resignation from the Woodfords Community Council verbally to the Woodfords Community Council. The Woodfords Community Council did not take any formal action on the matter, as there was some confusion over whether the verbal resignation was sufficient or intended to be permanent. Ms. Roberts did not present the resignation to either Chairwoman Batchelor or the Tribal Council for approval/acceptance, and neither did the Woodfords Community Council. The Woodfords Community Council, in May of 2012, took the step of removing Ms. Roberts rather that accepting the verbal resignation, and formalized that removal through a resolution presented to the Tribal Council at its May Council meeting. At that same meeting, the Woodfords Community Council appointed her replacement, which the Council also accepted. On March 16, 2012 Tribal Administration directed the CFO to stop the WWCC stipends effective immediately.
GROUND SEVEN: “Under Article I, Section 2 of the Washoe Tribal Constitution, the Vice-Chair is only to assume the duties of the Chair in her absence. Ms. Batchelor created a paid position for the current Vice-Chairman in the wake of a major deficit when a number of tribal positions were eliminated and staff lost their jobs.”
RESPONSE TO GROUND SEVEN: Under the Tribe’s By-Laws, Article I, Section 2, “The Vice-Chairperson shall assist the Chairman when called on to do so, and in the absence of the Chairman shall preside, and when so presiding shall have all the privileges, duties and responsibilities of the Chairman.” (Emphasis added). The By-Laws, therefore explicitly provides that the Vice Chairman may assist to the Council and/or the Chairperson when called upon to do so. Chairwoman Batchelor has called upon the Vice Chairman to provide administrative assistance to the Tribe’s administration and government. The Tribal Council, through the approval of the Tribal budget for FY2011, approved payment to the Vice Chairman for providing that administrative support and assistance to the Chairwoman. The Tribal Council’s budget was considered and approved at a public Tribal Council meeting.
GROUND EIGHT: “In the summer of 2011 Ms. Batchelor allowed the Tribal Council to disband nearly all tribal committees. This action created significant problems and unnecessary stress for volunteers and staff, as well as undue dissention among tribal members. While tribal elders on the Senior Center advisory committee were insulted when they were disbanded, the Washoe Cultural Resource Advisory Committee that Ms. Batchelor continues to chair was not affected. This created more problems, violated tribal policies and put business at a standstill. Personnel issues, Educational scholarships, Health Board issues, delay of Hunting & Fishing tags, Housing issues, Constitution Committee amendments and proposed changes, and the Election Board were all affected. WTC then scrambled to put people on these boards to conduct business leavings boards vacant. When these committees were reestablished, the Tribal Council provided no parameters, expectations, or directions for improvement.”
RESPONSE TO GROUND EIGHT: Chairwoman Batchelor, in her authority as the Chair of the Tribal Council, does not and cannot direct or require the Tribal Council to take any particular action. In this matter, the Washoe Tribal Council chose to address the issue of the various Tribal Committees and Boards through a restructure. She did so via memorandum in which she explained that the Washoe Tribal Council chose to take on a restructure due to the confusion in many Committees and Boards regarding who Council appointed to each entity, for what term, and through what process. Therefore, the Council simply required all persons to re-apply for their Committee or Board. This was done as efficiently and quickly as possible in order to reduce the confusion and disruption to the work performed by each body. The restructure violated no policy of the Washoe Tribal Council. The reappointment process did not change any responsibility, duty, expectation, or direction for the various Committees or Boards, many of whom have Tribal Code provisions that provide their required duties. The Washoe Cultural Resource Advisory Committee was restructured during this process, and the Council appointed its members via resolution in 2011.
GROUND NINE: “Ms. Batchelor proposed to eliminate the Ranch resulting in tribal opposition. Two committees with tribal council representatives were established to discuss options but meetings were continually canceled where vital issues remain unanswered.”
RESPONSE TO GROUND NINE: Neither the Chairwoman nor the Washoe Tribal Council has proposed to “eliminate the Ranch.” What the Tribal Council did was hear and consider information regarding the status of the Ranch’s budget and operations and appoint a committee to meet to determine what steps are needed to address the ongoing issues regarding those issues. The Committee met several times, and in the end, made recommendations to the Washoe Tribal Council regarding possible future steps for the Ranch. None of those suggestions includes “eliminating the Ranch.”
It is the responsibility of the Tribal Council and Chairwoman to review the operations of the Tribe’s programs and departments in order to ensure that they are operating efficiently and within their budgets. Similarly, it is the responsibility of the Tribal Council and the Chairwoman to ensure that the Tribe’s Ranch is operating efficiently and within its budget. If it is not, it is the Council’s responsibility to try to find solutions. The Committees appointed to consider what options are available to the Tribe to address the issues at the Ranch is in accordance with the Council’s duties and authorities.
GROUND TEN: “Ms. Batchelor schedules regular Tribal Council meetings in closed sessions where critical information is discussed and major decisions are made. Closed sessions are only to be held for enrollment and personnel. The monthly open Tribal Council meetings are limited to not more than 2 hours. Soon after Ms. Batchelor became Chair, tribal members were no longer allowed the right to speak, and must meet a 10 day requirement to be on the agenda. Tribal members are not given answers to questions regarding steps being taken to secure the future of our tribe. The tribal membership is excluded from any input or decision-making.”
RESPONSE TO GROUND TEN: The Constitution and Bylaws provide that the Tribal Council shall hold regular meetings monthly, on the second or third Friday of the month. (By-Laws, Article III, Section 1). The Bylaws also provide that special meetings of the Council may be called by the Tribal Chair or the Tribal Council, “and when so called the Washoe Tribal Council shall have power to transact business as in the regular meetings.” Nothing in the Constitution and Bylaws limits the amount of special or closed meetings that the Council may call. Similarly, nothing in the Constitution and Bylaws limits the topics discussed during any special or closed session.
For each regular Tribal Council meeting, the Chairwoman and the Tribal Council follow the Order of Business set out in the Constitution and Bylaws. The time for each meeting is not limited or set by the Chair or the Council, but simply runs until all times on the agenda are complete. In order to provide for a more efficient agenda setting process that allows the Council to have ample time to review any information before their regular Council meetings, the Chairwoman and the Tribal Council have set out some procedures for the development of the monthly agenda and Tribal Council packet. This includes the requirement that any documentation be submitted into the Tribal Council packet must be given to the Secretary/Treasurer at least three weeks prior to the next Council meeting. In addition, in order to appear on the Council’s agenda, the Secretary/Treasurer must receive a request in writing no less than 10 days before a Council meeting.
The Chairwoman and the Tribal Council do their best to ensure that those that submit agenda requests and/or ask questions of the Council receive answers, either verbally during meetings or on the phone, or in writing. The Council routinely allows questions from the public during meetings and either responds during the meeting or follows up afterward verbally or in writing. Obviously neither the Chairwoman nor the Council is perfect, but continue to try to answer Tribal members’ question and concerns and continue to strive to ensure that Tribal members receive information about the Council’s business and actions.
GROUND ELEVEN: “Ms. Batchelor’s ineffective and unstable leadership contributes to a hostile work environment where staffs fear for their jobs if they do not support her. Tribal or community council members who work for our Tribe are reluctant to voice their opinions or challenge her. Rather than focusing precious time and energy toward tribal progress, it is wasted in power struggles with the very people she took an oath to fairly and impartially represent. The WTC recently approved a “long house/roundhouse” on the clear Creek parcel, claiming the Washoes used these houses from the 1800’s to 1930. Several elders are appalled and angered with this action which was not brought before the tribal membership.”
RESPONSE TO GROUND ELEVEN: This statement is unfounded and unsubstantiated. Every employee of the Tribe has the ability and right to speak their minds without fear of reprisal. Decisions regarding employees are handled through the Human Resources Department and sometimes Tribal Council if warranted. The Chairwoman alone does not practice deciding employees’ futures.
At the request of Tribal members and representatives of a Tribal program called the Washiw Zulshish Goom Tahn-Nu (Washoe Warrior Society), the Washoe Tribal Council considered and approved a request to use an area of Tribal trust land at Upper Clear Creek to construct a gathering place and cultural center. This request was granted after the members of the Warrior Society presented their plan to each Community’s Councils and after presenting their request to the Washoe Tribal Council during at least three different regular TC meetings. Originally, the design for the structure to be placed at the site was that of a roundhouse. After hearing feedback from various Washoe community members regarding this proposal, the Warrior Society has changed their plan and will instead build a Washiw Tahn-Nu Ung-gahl or Washoe People’s House which will be designed as a large gális duŋal and will be constructed incorporating traditional materials and methods by Washoe members and families, to be a meeting place, a Washoe Tribal spiritual and healing center and a resource and unity-building force by and for the Washoe people, eventually part of a traditional Washoe village with gális duŋals, a gathering place for Elders, youth, and all Washoe Tribal members for events and retreats, culture camps and language classes, with plans for sustainability and for positive comfortable experiences for Tribal members, to strengthen and preserve Washiw culture, traditions and language.
III. Conclusion
The allegations are largely inaccurate. Moreover, individually or cumulatively, the allegations against Chairwoman Batchelor are insufficient to constitute ground for removal of a Council Member in accordance with the Constitution and Bylaws because the allegations do not amount to “improper conduct” or “gross neglect of duty.” Finally, since the entire Washoe Tribal Council participated in every action that is now alleged to be grounds for removal, the entire must be removed from office if the Washoe Tribal Council finds that the allegations constitute “improper conduct” or “gross neglect of duty.”
The allegations constitute nothing more than a few Tribal members that appear to have a different perspective on how they would govern. The appropriate action is for them to field a different candidate for the chairmanship in the next general election.
Finally, Chairwoman Batchelor leaves you with the follows:
“Your life is the culmination of all the choices you have made regarding your many life experiences, your aboriginal origins, and vast capabilities. By choosing, exercise the core responsibility of being yourself and of unfolding your love of life into external manifestation. Choosing is an opportunity to influence the direction of your life. Saying “no” is often the right choice, you have the right to disallow or defend against anything that is wrong for you or harmful to your well-being.
“ No” is not a popular word, but then making the right decision is not about popular consent”.
Sincerely yours,
Robert W. Story,
Attorney for Wanda Batchelor
Chairwoman of the Washoe Tribal Council