Balaran gets court order to protect documents

By Bill Donovan
Special to the Times

WINDOW ROCK, Sept. 26, 2011

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The tribe's special prosecutor went to court Monday to make sure that financial records were not destroyed as part of the cleanup of the financial administration building.

But it turns out that officials have not destroyed any of the documents despite a press release that was issued in mid-September saying that they did.


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Attorneys for the tribe also said in a court hearing held Monday that there are no plans to destroy any documents.

Alan Balaran, who is now in his last week as the tribe's special prosecutor, said in an affidavit to the court that he became concerned when he heard a report that that financial personnel were told that the building would be closed for six months to a year and that all documents in the building were contaminated and would be scanned and destroyed.

The president's office also put out a similar message in a press release on Sept. 15, he said in Monday's hearing.

The tribe has closed down the administration building after 18 tribal employees who work in departments housed in the building began complaining of headaches, bloody noses and neurological problems.

An emergency incident team has been set up to determine the cause of the illnesses and Pat Sandoval, director of the tribe's Office of Safety and Health, said that no employees will be allowed to go back to work in the building until that cause is found.

He estimated Monday that that may take anywhere from six to 12 months. Until then, the programs housed in the building have been relocated to other buildings in the tribal complex.

But while the employees have moved out, hundreds of thousands - perhaps millions - of financial documents remain in the building, many of them, as Balaran pointed out at the hearing, originals that are irreplaceable.

Balaran's knowledge of what was going on with the cleanup consists primarily of statements released by the tribe over the past four weeks, outlining the hiring of outside firms to investigate the cause of the mysterious illnesses and the appointment of an emergency incident team made up of tribal employees to oversee the operation.

On Sept. 15, the president's office issued a press release saying that the various departments housed in the building - from the controller's office to the auditor general - will be allowed to assess to documents they need immediately to do their jobs.

"Documents will be scanned and then destroyed," the press release stated.

Balaran stressed that these documents may be important to his investigation into allegations of misuse of discretionary funds but they also may be needed in other litigation, including the suit that the tribe has against the Bureau of Indian Affairs claiming that the federal agency was negligent in the supervision of tribal funds going back to 1946.

"Federal, state and tribal laws all require that financial documents be preserved and all prohibit their destruction in this way," he said.

"There is no one document that spells out how the tribe spent the $36 million in the discretionary funds," he said, which means that any of the documents now housed in the administration building may be important in that case.

He said another thing he was worried about was who would be handling those documents, indicating that tribal officials who have been named in the civil suit may have access to documents that would help their case if they became lost.

He said he was particularly concerned about Sandoval, who was chief of staff under Shirley. Sandoval, he said, would have a reason for seeing sensitive documents to become lost.

"I don't have any idea who is going to be handling what amounts to your legacy," he said.

And if the documents are going to be removed from the building, he said he wondered where they were going to be taken and what kind of security arrangements will be made to sure that they are kept safe.

Press releases from the president's office indicated that what's being investigated is the possibility of some kind of mold growing in the building, possibly on the papers.

Balaran said that there have been suggestions that black mold may be responsible for the people coming down sick and that to clear up the problems, the records would have to be destroyed.

He pointed out that mold problems of this type are caused by paper products coming in contact with water in the form, for example, of a flood or a water main break.

A water main break occurred in the building back in 2007 and officials didn't destroy any papers that became wet at that time, he said. What they did was set the papers in the sun and allowed them to dry.

"What I can't understand is why there is a rush all of a sudden," Balaran said.

Officials knew back in August there was a problem but it's been only in the last couple of weeks that there has been talk of destroying documents and he wondered if that had anything to do with the fact that this was his last week as special prosecutor.

What he asked for was a court order continuing an earlier restraining order prohibiting the destruction of any financial records. He also wanted the court to appoint a special master to oversee the documents.

Paul Spruhan, an assistant attorney general in the Department of Justice, told the court that Balaran didn't know what he was talking about since there were no plans to destroy any documents.

The tribe was aware, he said, of tribal, state and federal laws that prohibit such destruction.

"And the special prosecutor would have known that if he had called up or anyone else to learn what was going on," Spruhan said.

He stressed that the six members of the incident team alone had the authority to deal with the problem at the administration building and people in the president's office, had no involvement. Nor did they exert pressure on any of the incident team members to destroy any of the records.

Perry decided to test this for herself and called up all six members of the incident team.

They are: Wilford Keeto, the head of the team; Wilson Laughter, the operations chief; Dave Nez, chief of planning, who worked for the tribe's office of Public Health Emergency Preparedness; Julius Elwood, a safety officer; Herman Begay, a building supervisor; and Herman Shorty, director of Environmental Health Code Enforcement for the tribe.

The six were asked if anyone had any relationship to Sandoval or had felt any pressure from anyone in the president's office.

They all said no to these two questions, except for Elwood, who pointed out that he reported to Sandoval and had informed him when he was appointed to the team, promising to send him updates on when the building would be re-opened.

The court was also told that the locks to the building had been changed and only four keys to the entrance had been made and all of these were in the hands of emergency personnel.

Spruhan said the tribe and the special prosecutor were in rare agreement that nothing should happen to the tribe's financial records because of the various federal, tribal and state laws that protected them.

He stressed that whoever had written that press release saying that the records would be destroyed after they were scanned was wrong and that should never had gone out.

But Balaran would have known that, he said, if he had called up the Department of Justice or had asked anyone involved in the cleanup of the building.

Balaran said the reason he didn't call up anyone was because the last time he did that, he had to shell out $20,000 of his own money to get documents he wanted from the tribe.

There's a restraining order now in place prohibiting any destruction of financial records and Perry ordered that to remain in force.

She accepted an offer from Spruhan to have both sides sit down and come up with a policy that would handle this situation, at least until a new special prosecutor is appointed.

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