Court upholds Shirley reinstatement

By Bill Donovan
Special to the Times

WINDOW ROCK, June 3, 2010

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The Navajo Nation Council does not have the authority to put a president on administrative leave, the Navajo Nation Supreme Court ruled in a decision handed down May 28.


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The ruling addresses a vote by the council to put President Joe Shirley Jr. on administrative leave last Oct. 26, pending an investigation into his involvement with two business dealings that cost the tribe millions and left it with little or nothing to show for its investment.

The court took notice of the current political unrest within the Navajo government.

"This appeal comes to us at a critical time of great disharmony between the branches of the Navajo Nation government that is evident to the Navajo people," the ruling states. "The leadership of the branches have been in conflict over government reform and unable to sit down with each other and talk things out for almost two years."

In order to address the problems, the court said, it first had to address something that was not brought up in the suit - the recent council resolution that prohibits courts from using Diné Fundamental Law in deciding cases.

The Supreme Court rebuffed the ban, saying the council had no authority over the use of traditional law in court decisions.

The ruling examined the council's declaration that an emergency existed to warrant Shirley's suspension, and found that the standard was not met. To the contrary, the court wrote, the council's handling of the matter "is notable for secrecy, haste, disregard for persuasive Navajo Nation legal authority, and the shabbiest of shabby treatments of the president, both individually and in his office, in violation of the fundamental principle of k'é."

Shirley had appeared on the opening day of the fall council session to give his state of the nation address, as is customary. Instead, he was ushered out of the council chambers and a resolution was drafted that would put him and his administrative staff on leave.

The council declined to make public - or to tell Shirley - the specifics that necessitated emergency action. Instead, despite a legal opinion from the attorney general saying there was "scant evidence of any criminal misconduct," the council voted 40-22 to sideline Shirley.

The Supreme Court said it was "unable to find that a bona fide emergency existed (for this action) that would justify by-passing committee review and approval. We are frankly puzzled by the absence of any hearing on this situation."

For this reason, the court upheld the lower court ruling that said the emergency resolution used to put Shirley on administrative leave was invalid.

The court pointed out that the council has other ways of delving into alleged misconduct, for example, the Ethics and Rules Committee can hold a hearing.

And if the council's concern was preserving evidence, the court noted that there are other ways to protect documents from being shredded or otherwise disappearing.

"Injunctions or restraining orders are readily available through the courts to protect documents or files needed for any investigation," the ruling stated.

While the government has a right to take action if a high-ranking official is deemed to be acting improperly, "the public also has a right to participate through public hearings."

Chief Justice Herb Yazzie, in presenting the ruling in the May 28 press conference, said the use of administrative leave was not appropriate because it is a sanction used in dealings between employers and employees. The president of the tribe, he said, is not an employee of the council.

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