Shirley appeal stalled by hearing officer controversy

By Marley Shebala
Navajo Times

WINDOW ROCK, March 26, 2009

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After four months, President Joe Shirley Jr.'s appeal of a Navajo Election Administration decision rejecting his two government reform initiatives remains at a standstill in the Office of Hearings and Appeals.

Chief hearing officer Marcella King-Ben officially disqualified herself March 11, two days after Shirley's attorney, Albert Hale, asked for the immediate appointment of a new hearing officer for the case. The original hearing officer stepped down in January.

As of Tuesday, hearings and appeals office staff reported that King-Ben had not appointed a new hearing officer, and noted that there is no statutory deadline requiring her to act.

One of Shirley's initiatives would reduce the Navajo Nation Council from 88 to 24 members. The other initiative would authorize the president to veto items in spending bills passed by the council, called a line-item veto.

He had hoped to put both questions before Navajo voters, but the election office ruled Nov. 12 that neither petition had enough valid signatures to become a ballot measure. Shirley appealed the finding Nov. 13.

On March 9, Hale noted in a written motion that King-Ben had scheduled a status conference for March 13, and argued that she should remove herself from the case because of "publicly expressed disdain" for him and her "expressed bias and prejudice" in statements she made that were quoted in a Jan. 8, 2009, Navajo Times article.

The article concerned the decision by John Chapela, the hearing officer originally appointed by King-Ben, to step down from the case. Chapela disqualified himself after Chief Legislative Counsel Frank Seanez, who is representing the election office in the appeal, called for his removal.

Seanez said Chapela had spoken "publicly and very strongly" in favor of reducing the size of the council, and this suggested he might lack neutrality.

At the time, Hale asserted that King-Ben should not hear the case herself because she's close to a member of the Navajo Nation Council, George Arthur (Nenahnezad/San Juan/T'iistsoh Sikaad).

In the Jan. 8 article, King-Ben responded that she and Arthur are friendly in their professional roles only, and called Hale a "womanizer" who in 1998 was forced to resign as Navajo Nation president under a cloud of ethical allegations.

She said she had already told Hale she would not hear the case and had appointed Chapela, a private attorney in Window Rock.

Hale noted in his March 9 motion, however, that she had never issued a written order recusing herself. She issued a written order to that effect March 11.

Hale also stated in his motion that on Feb. 9 he had recommended three individuals to replace Chapela, but Seanez had objected to them.



Shirley launched his petition drive last spring with the hope of getting both reform questions on the Nov. 4, 2008, ballot. The momentum slowed, however, after he agreed in June to mediated discussions with his chief adversary in the matter, Speaker Lawrence T. Morgan (Iyanbito/Pinedale).

The Aug. 6, 2008, deadline to turn in signatures for the November ballot came and went. On Aug. 12, the two sides announced an agreement, but then they disagreed on what they'd actually agreed to. Shirley renewed his efforts to gather signatures, this time for a special election.

He claimed that if Morgan had not lured him into bogus negotiations he would have met the original signature deadline.

On Oct. 28, Shirley submitted 18,638 signatures for his initiative to reduce the council and 18,002 signatures for his line-item veto initiative. He needed 16,530 valid signatures on each petition.

On Nov. 12, the election office notified Shirley that he was 2,257 signatures short of that number on the first petition, and 2,908 short on the second petition. The following day Shirley filed his appeal of the election office decision.

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