Council says AG, deputy must go
By Marley Shebala
TSÉ DAA K'AAN, N.M., Nov. 11, 2010
The Council last week voted 42-0 with two delegates abstaining to order legislation terminating Attorney General Louis Denetsosie and Deputy Attorney General D. Harrison Tsosie. (The majority, 46 delegates, did not vote or were not present.)
This brings to at least three the number of high officials in other branches that the Council is seeking to remove. It has legislation in process to remove Chief Justice Herb Yazzie and has already voted for the ouster of the two associate justices of the Navajo Nation Supreme Court, including one who had already resigned before the Council voted.
Denetsosie had no comment Tuesday on the move. His brief statement to the Navajo Times came after he reported to the Government Services Committee on the status of Special Prosecutor Alan Balaran's activities. The committee met at Tsé Daa K'aan Chapter.
During Denetsosie's report, no mention was made of the Council's Nov. 4 decision to fire him and Tsosie. The Council directed its staff to draft a resolution removing them from office after it was unsuccessful in getting information about Balaran's activities from Assistant Attorney General Henry Howe, whose job includes maintaining contact with the special prosecutor's office.
Howe told the delegates he cannot discuss the investigation with anyone who is charged with a crime, which at latest count leaves only 11 delegates for him to report to.
The Council blames Denetsosie for allowing Balaran, whose original mandate was to investigate two fiascos involving the executive branch, to instead start investigating the legislative branch.
Following publication of a Navajo Times investigation of Council discretionary funds, Denetsosie asked the court to broaden the special prosecutor's job to include the funds. Denetsosie told angry delegates at the time that he had verified the documents cited by the Times, and was ethically obligated not to ignore evidence of wrongdoing.
Howe told the council that he had advised Speaker Lawrence Morgan (Iyanbito/Pinedale) the Council needed to be in executive session and the delegates Balaran had charged could not be present when he and Controller Mark Grant reported on the status of Balaran's work and how much he has spent of the $500,000 allocated by the Council for him to investigate OnSat and BCDS, two business deals that cost the tribe millions.
The Council wanted to fire Howe on the spot and asked acting Chief Legislative Counsel Marianna Kahn if they could also fire Grant, who sat silently next to Howe.
On Tuesday, legislative staff confirmed that legislation to remove Denetsosie and Tsosie is in process to come before the Council at a special session scheduled for Nov. 30.
Denetsosie, like Howe, prefaced his report to the Government Services Committee by explaining his legal duty under the Navajo Nation Bar Association and the Arizona Bar Association to protect "privileged and confidential" information or face disciplinary action and sanctions.
He also asked the committee to understand the position of the special prosecutor, who - under Navajo law - has full power and independent authority to initiate prosecutions on his own.
Denetsosie explained that under Navajo law, the special division of the Window Rock District Court appoints the special prosecutor and signs a contract setting his fees and the terms and conditions of his service.
"I've spoken with the special prosecutor and he has asked me to keep those matters confidential," Denetsosie said. "And until he is prepared to give report to committee, I cannot provide any information."
He noted that the special division could release information about the work of the special prosecutor but that it would require a formal request from the attorney general.
Denetsosie said Balaran asked him to keep all matters related to his investigation confidential, so he could not make such a request.
He noted that Balaran did provide a written report to the committee about the status of his investigation of BCDS and OnSat.
Balaran stated in the report that his investigation of BCDS and OnSat was ongoing and the due process rights of the individuals he was investigating prevented him from divulging their names with the committee, Denetsosie reminded the committee.
Denetsosie was emphatic that earlier this year when his deputy, Harrison Tsosie, was running for president, all information concerning the application for a special prosecutor was "sequestered" and that Tsosie was not privy to any discussions with the special prosecutor.
He said Tsosie is further disqualified from contact with the special prosecutor because he has a close relative on the Council. Denetsosie declined to name the relative.
However, Delegate Young Jeff Tom (Mariano Lake/Smith Lake) cast doubt on Tsosie's distance from the special prosecutor. During the Council's Nov. 4 special session, Tom said Tsosie had announced during a presidential debate in Crownpoint that delegates would be indicted by the special prosecutor - three months before Balaran filed the first criminal complaints.
As of Wednesday, 77 of 88 delegates are facing one of more of the following charges involving alleged misuse of discretionary funds: theft, conspiracy, fraud, forgery, and abuse of office.
The entire eight-member Government Services Committee has been charged.
The committee consists of Chairman Ervin Keeswood Sr. (Tsé Daa K'aan), Vice Chair Leonard Teller (Lukachukai/Tsaile/Wheatfields), and delegates Charles S. Damon II (Bááháálí/Church Rock), Roy Laughter (Chilchinbeto/Kayenta), Danny Simpson (Huerfano), Amos Johnson (Forest Lake/Kíts'íílí/Tsé Ch'ízhí), Orlanda Smith Hodge (Cornfields/Greasewood Springs/Klagetoh/Wide Ruins), and Lee Jack Sr. (Indian Wells/White Cone).
After Denetsosie's report, Teller asked him if it's true there was "a huge push" for Balaran to investigate the council's discretionary funds ahead of BCDS and OnSat and whether Balaran would be investigating the discretionary funds of President Joe Shirley Jr. and Vice President Ben Shelly.
Denetsosie said he didn't know about a "big push" to move the Council discretionary funds ahead of BCDS and OnSat.
Laughter questioned whether $27,000 - all that remains of the $500,000 appropriated for Balaran - is enough to finish the investigation of BCDS and OnSat.
The "total emphasis" of the special investigation has been on the council, he added.
"I don't have any intimate information on any of these cases and how (Balaran) arrives at any decision," Denetsosie said. "I can tell you that the special prosecutor is working with due diligence on all these cases. He has thousands of documents to review."
Money mostly spent
Johnson asked Denetsosie if he could at least provide a percentage of how far along Balaran was in his investigation of BCDS and OnSat.
And he said if the $27,000 runs out before Balaran finishes investigating the executive office discretionary funds, BCDS, OnSat and the Tribal Ranch Program, where would funds come from for Balaran to complete his work.
Denetsosie said since he doesn't have any knowledge about Balaran's investigation of BCDS and OnSat, he couldn't provide a percentage of how much work Balaran had completed.
He noted that Balaran responded in writing to the committee's request for information on his investigation of BCDS and OnSat and so he would take their concerns to Balaran.
But Denetsosie said Balaran has no responsibility to provide a written report to them.
He explained that Balaran has been working for six months and under the law that the Navajo Nation has the obligation to pay his bills.
And if a contractor runs out of funds and his work is incomplete, normally there is a search for funds to complete it, he added.
Denetsosie recalled that the Budget and Finance Committee approved $500,000 from the Justice Department's contingency fund, so if the special investigation funds are exhausted, he will ask B&F for more.
Denetsosie also clarified the record on another point - saying a local newspaper had erred in reporting that the investigation of BCDS and OnSat has been turned over to federal authorities, or that federal marshals had arrested two council delegates is in error.
He acknowledged, however, that he gave the U.S. attorney copies of the Council's investigation of BCDS and OnSat, which was conducted last year by outside law firms hired by the Council after Denetsosie declined to seek a special prosecutor.
The U.S. attorney's office and the FBI are reviewing the reports and have not informed him whether they will take the case, Denetsosie said.