Confederated Tribes of the Coos, Lower Umpqua and Siuslaw Indians Tribal Code

TITLE 9 - EMPLOYMENT AND CONTRACTING

Chapter 9-1 Tribal Employment Rights Office
Chapter 9-2 Tribal Employee Records Confidentiality
Chapter 9-6 Background Investigations

CHAPTER 9-1 TRIBAL EMPLOYMENT RIGHTS OFFICE

9-1-1 Purpose

The purposes of this Code are:

(a) To ensure compliance by employers on the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians' (Tribes) lands with federal and tribal laws that are intended to prevent employment related discrimination against American Indians;

(b) To ensure compliance by employers on the Tribes' land with federal and tribal laws that are intended to give preference in employment, contracting and sub-contracting and training to American Indians; and

(c) To ensure the maximum utilization of Indian workers in all employment opportunities within the jurisdiction of the Tribes.

9-1-2 Jurisdiction

(a) This Code shall apply to all employers located or engaged in business within the jurisdiction of the Tribes. It shall not apply to any direct employment by the Tribes or by federal, state or other governments; however, contractors and subcontractors of these entities shall be subject to the Code.

(b) This Code is not intended to preempt or interfere with the rights or obligations set forth in the Tribes' Personnel Policies and Procedures. Employees of the Tribes shall be limited to the rights and remedies provided in the duly adopted manuals or procedures enacted by the Tribes for those employees. The Tribes are not subject to the revisions of this Code. This Code shall not apply to or be enforced against Tribal Enterprises. Preference in employment shall be afforded at each Tribal Enterprise in Personnel Manuals developed for each enterprise.

(c) Contract disputes are contractual and will not be within the Tribal Employment Rights Office scope of work or cause for contractor operation shutdown. Contract disputes shall be resolved through specified contract procedures for such disputes or through a court of competent jurisdiction.

9-1-3 Definitions

(a) "Tribal Council" means the governing body of the Confederated Tribes of
Coos, Lower Umpqua and Siuslaw Indians.

(b) "Compliance Agreement" means a certification signed by employers and the Tribal Employment Rights Office, setting forth how each employer will meet Indian preference hiring goals and that they will comply fully with the Tribal Employment Rights Office (TERO) Code. The "Compliance Agreement" must be executed prior to commencement of any portion of a contract or sub-contract within the jurisdiction of the Tribes.

(c) "Tribes" means the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians.

(d) "Core Crew" means the essential, permanent employees of employer. The employees must have been regular employees for at least six (6) months. "Core Crew" requests must be submitted in writing, with rationale for each position before start of any project work, and approved by the TERO Program Manager.

(e) "Employer" means any person, company, contractor, subcontractor or other entity located or engaged in work within the jurisdiction of the Tribes. The term "employer" shall include contractors and subcontractors of state, county, tribal and all governmental agencies. The term shall not mean or include the Tribes, federal, state or governmental agencies when they are employers.

(f) "Engaged in Work within the jurisdiction of the Tribes" means an employer during any portion of a business enterprise or specific project, contractor, subcontractor and any of their employee(s) that spends time performing work within the Tribes' lands.

(g) "Indian" means any person enrolled in a federally recognized tribe and recognized by the United States pursuant to its trust responsibility to American Indians.

(h) "Indian Owned Business" means a business that is at least fifty-one percent (51%) operated and controlled by an Indian.

(i) "Indian Preference" means a preference for Indians in all aspects of but not limited to: hiring, training, promotions, layoffs, contracting and subcontracting for work within the jurisdiction of the Tribes. Qualified, available Indians shall receive Indian Preference according to negotiated Compliance Plans.

(j) "Located within the jurisdiction of the Tribes" means an employer, if during any portion of a business enterprise or specific contract or subcontract, who maintains a temporary or permanent office or facility within the lands of the Tribes.

(k) "Near the Tribes' lands" mean jobs within a reasonable daily commuting distance of the land of the Tribes.

(l) "Office" means the Tribes' Tribal Employment Rights Office.

(m) "Program Manager" means the Human Resource Director.

(n) "Tribal Court" means the Tribes' Tribal Court.

9-1-4 Tribal Employment Rights Office

(a) The Program Manager of the Tribal Employment Rights Office (TERO) shall be responsible for administering the provisions of this Code.

(b) The Program Manager of the TERO shall have the authority to hire staff, to obtain and expend funds from tribal, federal, state or other sources to carry out the purposes of this Code, to establish employer record-keeping requirements, and to take such other actions as are necessary for the fair and vigorous enforcement of this Code.

(c) The Program Manager shall have the authority to:

(1) Investigate violations of the provisions of this Code;

(2) Impose penalties on employers who violate the provisions of the Code;

(3) Develop and impose numerical hiring goals and timetables that reflect the available Indian labor pool and other employment opportunities for each craft and skill category;

(4) Require employers that have established training or apprentice programs to provide preference to Indians;

(5) Establish and maintain a tribal hiring hall that maintains a record of qualified, employable Indians that are to be used by employers to fill vacancies;

(6) Prohibit any employer from imposing employment qualification criteria that serve as barriers to Indian employment unless the employer can demonstrate that such criteria are required by business necessity;

(7) To work cooperatively with other tribal programs, i.e., JTPA, to establish counseling and support programs for Indian workers to assist them in retaining employment;

(8) To enter into cooperative agreements with federal and state agencies to minimize employment discrimination on the reservation, to promote Indian Preference in hiring, training and contracting and to otherwise ensure compliance with this Code;

(9) Through required Payroll Reports, to monitor wage scale and salaries to ensure equitable compensation of Indian workers;

(10) To assess fees on employers to support the operation of the Tribal Employment Rights Office.

9-1-5 Tribal Employment Rights Program

(a) All employers shall give preference to Indians in hiring, promotion, training and all other aspects of employment, contracting and subcontracting, business opportunities and shall comply with the terms of this Code and its implementing regulations and an Compliance Agreement executed under this Code.

(b) Each employer shall be required to meet with the Program Manager at the TERO office and negotiate and execute a "Compliance Agreement" which sets forth:

(1) The minimum number of Indians the employer shall hire during any year that the employer is located or engaged in work on the lands of the Tribes; numerical goals and timetables for each craft, skill area, job classification, etc., used by the employer including, but not limited to - general labor, skilled, administrative, supervisory and professional categories;

(2) Wage scale provisions and salary compensation terms;

(3) The reporting requirements the employer shall provide the Program Manager on issues, including but not limited to: the frequency of reports, number of Indians employed, a record of persons hired, fired or promoted during the reporting period and an assessment of how close the employer is to meeting the hiring goals set forth in the Compliance Agreement.

(4) The numerical goals set forth in the Compliance Agreement shall be based upon surveys of the available Indian workforce and of projected employment opportunities on the lands of the Tribes.

(5) Compliance Agreements shall be reviewed annually and revised as necessary to reflect changes in the number of Indians available or changes in employer hiring plans.

(6) No employer who intends to engage in temporary business on the lands of the Tribes shall commence work until a Compliance Agreement has been negotiated and signed by both the Program Manager and the employer representative. An employer who has established a permanent place of business on the lands of the Tribes shall negotiate and execute a Compliance Agreement within thirty (30) days from the date the employer receives notification from the Program Manager that a Compliance Agreement is required.

(7) Any violation of an executed Compliance Agreement shall be a violation of this Code.

(8) When the TERO Office is closed and an Indian worker is unable to continue working, emergency hires will be allowed, but such hires will be hired for three (3) days only.

An employer shall not use qualification criteria or other personnel requirements that serve as barriers to Indian employment unless the employer is able to demonstrate that such criteria or requirements are required by business necessity. EEOC Guidelines shall be adopted on these matters to the extent that they are appropriate. The Program manager shall be guided by the guidelines but shall have the authority to impose additional requirements that are necessary in order to address employment barriers that are unique to Indians.

(d) Tribal Hiring Hall

(1) The Program Manager shall establish and maintain a hiring hall to assist employers in placing qualified Indians in job positions.

(2) An employer shall not hire a non-Indian in violation of the Compliance Agreement until the Program Manager has certified within a reasonable time that no qualified Indian is available to fill the vacancy. For purposes of this section, "reasonable time" shall be defined as follows:

(A) Construction jobs - the Program manager shall have forty-eight (48) hours from time of notice of manpower needs, to locate and refer a qualified Indian;

(B) All other employment - the Program Manager shall have five (5) working days to locate and refer a qualified Indian.

(3) The Program Manager may grant a waiver of a time period upon a showing by the employer that such time period imposes an undue burden upon the employer or his business.

(e) Training

(1) The Program Manager shall identify training programs necessary in order to increase the pool of qualified Indians for employment on the reservation.

(2) The Program Manager may initiate and sponsor training, programs for employers to participate in, or the Program Manager may work with employers to establish and sponsor their own training programs to assist Indians to become qualified in the various job classifications used by employers.

(3) The ratio of Indian trainees to fully qualified workers shall be negotiated as part of the Compliance Agreement. For construction projects, the number of Indian trainees shall be no less than the minimum ratio established by the Department of Labor.

(f) Unions

Employers with collective bargaining agreements with a union are responsible for informing such unions of this Code and TERO rules and regulations. Unions will give absolute preference to Indians in job referrals regardless of which referral list they are on. Temporary Work Permits will be granted Indians who do not wish to join a union. Nothing herein shall constitute official tribal recognition of any union or tribal endorsement of any union activities on the Tribes' Indian Reservation.

(g) Contractors and Subcontractors

The Indian Preference requirements contained herein shall apply to all contractors and subcontractors of an employer. The employer shall have the initial and primary responsibility for ensuring that all contractors and subcontractors comply with these requirements and both the employer and his contractors and subcontractors shall be subject to the penalties set forth herein for failure to comply with the Code requirements.

(h) Preference in Contracting and Subcontracting

Each employer shall give preference to tribal-owned or Indian-owned businesses in the award of contracts or subcontracts, subject to federal laws. The Program Manager shall maintain a list of tribal-owned and Indian-owned businesses which shall be supplied to the employers upon request. Indian owned business shall be certified by the Tribes.

(i) Layoffs

In all layoffs and reductions in force, no Indian worker shall be terminated if a non-Indian worker in the same job classification is still employed. The non-Indian shall be terminated first if the Indian possesses threshold qualifications for the job classification. If an employer lays off workers by crews, all qualified Indian workers shall be transferred to crews to be retained so long as non-Indians in the same job classification are employed elsewhere on the job site. Exceptions may be non-Indians hired as "Core Crew", according to negotiated Compliance Agreements.

(j) Promotion

Each employer shall give Indians preferential consideration for all promotion opportunities and shall encourage Indians to seek such opportunities. For each promotion or supervisory position filled by a non-Indian, the employer shall file a report with the Program Manager stating what efforts were made to inform Indian workers about the position, what Indians, if any, applied for the position and if an Indian was not chosen, the reasons therefore.

(k) Compliance Fee

(1) The Program manager shall assess and collect a Compliance Fee based upon the following schedule:

(A) Every employer with a contract in the sum of ten thousand dollars ($10,000) or more shall pay a fee of two and one-half percent (2-1/2%) of the total amount of the contract. Such fee shall be paid by the employer prior to commencing work on the Tribes' Reservation.

(B) Each employer with gross sales of ten thousand dollars ($10,000) or more shall pay an annual fee of two and one-half percent (2-1/2%) of the annual payroll of the employer. Such fee shall be paid quarterly on the tenth (10th) day following the end of each calendar quarter.

(C) Compliance Fees shall be used for TERO operating budget and the percentage shall be adjusted annually to remain consistent with the national average. The Compliance Fees program shall go through the Tribes' annual budget process.

(D) The amount of Compliance Fee shall be at one percent (1%) until December 31, 2002. Effective January 1, 2003, the amount shall be assessed at two and one-half percent (2-1/2%) for all applicable contractors and subcontractors.

(2) The Compliance Fee shall only be assessed against those employers who engage in contract work or establish their business on the reservation after the enactment of this Code. This fee shall not be assessed or collected from religious and non-profit employers. The Compliance Fees shall be available to meet the operating costs of the TERO. The Program Manager shall receive a copy of each Compliance Fee payment. The Program Manager shall be responsible for collecting the fees and may establish such regulations as are necessary to insure a fair and timely fee collection process. Projects beginning off and ending on, or beginning on and ending off the reservation will be considered one hundred percent (100%) on-reservation, thus subject to the full Compliance Fee. However, if fifty percent (50%) or more of the work is off-reservation, the Program Manager is authorized to negotiate an appropriate Compliance Fee.

(l) On-Site Inspections

The Program Manager shall have the authority to make on-site inspections during regular working hours in order to monitor an employer's adherence to the terms of this Code and the employer's Compliance Agreement. The Program Manager shall have the right to inspect and copy all relevant records of an employer, of any signatory union or subcontractor of an employer, and shall have the right to speak to workers and to conduct an investigation on the job site. All information collected by the Program Manager shall be kept confidential unless disclosure is necessary or ordered as part of any federal or tribal judicial or administrative proceeding.

9-1-6 Violation Procedures

(a) Investigation by the Program Manager

Whenever a violation of this Code or an Agreement negotiated hereunder has been alleged and is brought to the attention of the Program Manager, the Program Manager shall initiate and complete a prompt and thorough investigation of the alleged violation. The Program Manager shall seek to achieve an informal settlement of the alleged violation, with a written report of findings provided to the Tribal Council.

(b) Issuance of Citation

(1) If the Program Manager determines that a violation of the Code or an Agreement negotiated hereunder exists, and an informal settlement cannot be achieved, the Program Manager shall issue a warning to the employer. This warning shall specify the nature of the violation and direct that the violation be corrected within three (3) days or sooner where warranted.

(2) If the violation is not corrected within the time specified, the Program Manager shall issue a citation to the employer which shall:

(A) Be in writing and in the name of the Tribes;

(B) State the name of the violator;

(C) Bear the signature of the Program Manager or his authorized representative;

(D) State the name and section number of the Code provision or Agreement violated;

(E) State a brief summary of facts constituting the violation; and

(F) State a time and place the employer must appear to answer to the violation at a Program Manager hearing.

The employer shall be entitled to a hearing before the Program Manager no later than ten (10) working days after receipt of a citation. Hearing procedures shall comply with the requirements of due process, but will not be bound by the formal rules of evidence. The employer shall be entitled to present evidence and to call witnesses to demonstrate that the employer has complied with the requirements of this Code or that the employer made a best effort to do so and therefore should not be subject to sanctions. On the basis of evidence presented at the hearing, and the information collected by the Office, the Program Manager shall determine whether or not the employer complied with this Code. If the Program Manager determines that the employer is out of compliance and has not made a best effort to comply, the Program Manager shall impose one or more of the sanctions provided for in the Code, as appropriate, and shall order the employer to take such corrective action as is necessary to remedy any harm done to the Tribes or individual Indians by the employer's noncompliance. The Program Manager shall send written notice to all parties within ten (10) days after its decision in the matter.

(d) Emergency Relief

When the Program Manager determines that a violation has occurred that is of a critical nature requiring immediate remedial action, the Program Manager may issue a citation without delay, stating sanctions to be placed on an employer. An employer shall have the right to appeal to the Tribal Court, any imposition of emergency sanctions on an employer by the Program Manager. The Tribal Court shall schedule a hearing on any appeal of a decision by the Program Manager granting emergency relief pursuant to this subsection within ten (10) working days.

(e) Appeals

Any person adversely affected by a decision of the Program Manager shall have the right to appeal the decision to the Tribal Court in accordance with this Code.

(f) Individual Complaint Procedure

(1) Any Indian who believes that an employer has failed to comply with the Code, or who believes that they have been discriminated against by an employer because they are Indian, may file a complaint with the Office. The complainant shall be responsible for providing the Office with evidence of the discriminatory practices. Upon receipt of a complaint supported by sufficient evidence of discrimination against an Indian complainant, the Office shall conduct an investigation of the charge and shall attempt to achieve an informal settlement of the matter. If voluntary conciliation cannot be achieved, the Program manager shall hold a hearing on the matter, shall make a determination on the validity of the charge, and shall order such relief as is necessary to make whole any Indian who is harmed by the employer's non-compliance or discriminatory behavior. The decision shall be in writing and shall be sent to all parties.

(2) In conducting the hearing, the Program Manager shall have the same powers, and shall be bound by the same hearing requirements as provided in (d) and (e) of this chapter.

9-1-7 Penalties

(a) Penalties for Violation

Any employer who violates this Code or an agreement negotiated hereunder, shall be subject to penalties including, but not limited to:

(1) Denial of the right to commence or continue business on the reservation;

(2) Suspension of operations on the reservation;

(3) Payment of back pay and/or damages to compensate any injured party;

(4) An order to summarily remove employees hired in violation of this Code or Agreement negotiated hereunder;

(5) Imposition of monetary civil penalties; and

(6) An order specifying requirements for employment, promotion and training Indians injured by the violation.

(b) Monetary Fines

The maximum monetary penalty that may be imposed for a violation is five hundred dollars ($500). For purposes of the imposition of penalties determined by the Court or sanction by the Program Manager, each day during which a violation exists shall constitute a separate violation.

(1) The Program Manager shall be entitled to pursue the enforcement of any order of the Tribes' Tribal Court when necessary to collect penalties or to ensure compliance with the terms and conditions of any order issued by the Tribes' Tribal Court.

(2) Any cost associated with the enforcement of such Order issued pursuant to this Code shall be assessed on the employer that is out of compliance. These may include, but not be limited to: document reproduction costs, filing fees, attorney fees and costs incurred by TERO staff related to securing enforcement of the Order.

(3) Employers that do not comply with the provisions of this Code, and leave the reservation before enforcement penalties or an order by the Program Manager or the Tribes' Tribal Court, shall be denied the right of contracting or doing further business on the Tribes' Reservation.

9-1-8 Tribal Court Enforcement and Judicial Review

(a) The Program Manager may file a petition in tribal court seeking:

(1) Enforcement of all or part of any order which hasn't been appealed.

(2) Enforcement of all or part of any court order issued on appeal.

(3) The petition shall contain all pertinent facts about the order, including a copy of the order, shall state which parts of the order need to be enforced and against whom, and shall set forth facts to show how the order is not being complied with. The Program Manager shall serve all parties to the proceeding with copies of the petition.

(4) Upon receipt of the petition, the court shall schedule a hearing and subpoena all necessary parties. The hearing shall be held within ten (10) days from the date the petition is filed.

(5) The Program Manager shall have the burden of proving to the court that the court order has not been complied with. The parties to the hearing on the petition may produce oral testimony or written documentation to support their case.

(6) The court shall render a decision on the petition filed by the Program Manager within fourteen (14) working days and enter whatever order is necessary or appropriate.

(b) The Tribes' Tribal Court is hereby granted exclusive jurisdiction to hear, review, and decide any issues regarding implementation, interpretation, or enforcement appeals under this Code. The decision of the Tribal Court shall be final and binding.

(c) In ruling on matters arising under this Code, the Court shall have the authority to assess and collect civil penalties; to enjoin or mandate actions to enforce the revisions of this Code; and to provide any other relief the Court deems lawful and equitable. Provided that, no money damages may be claimed in any suit against the Tribes, the Tribal Employment Rights Office or its officials engaged in their official duties under this Code.

(d) The Court shall be responsible for establishing rules and procedures necessary to hear and adjudicate actions brought hereunder.

(e) Ruling on matters arising under this Code, the Tribal Court shall have the authority to assess and collect civil penalties, to enjoin or mandate actions to enforce the provisions of this Code, and to provide any other relief the Tribal Court deems lawful and equitable; provided that nothing in this Code shall be construed as a waiver of the sovereign immunity of the Tribes, nor of the tribal sovereign immunity possessed by the Tribal Employment Rights Office or its officials engaged in their official duties under this Code. Accordingly, nothing in this Code shall be construed as any authority for a claim for money damages against the Tribes, the Tribal Employment Rights Office or TERO Officials acting pursuant to their authority under this Code.

APPENDIX A - LEGISLATIVE HISTORY AND EDITORIAL CHANGES

TRIBAL EMPLOYMENT RIGHTS OFFICE CODE

LEGISLATIVE HISTORY AND EDITORIAL CHANGES

The Tribal Council of the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians' Reservation enacted the "Tribal Employment Rights Office" Code, Resolution No. 02-014, Ordinance No. 041, in a regular Tribal Council meeting on January 13, 2002. Vote was 7 (for), 0 (against) and 0 (abstaining).

CHAPTER 9-2 TRIBAL EMPLOYEE RECORDS CONFIDENTIALITY

9-2-1 Policy

It is the policy of the Confederated Tribes of the Coos, Lower Umpqua and Siuslaw Indians (Tribes) that all records relating to an individual when employed by the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians as a full-time, part-time or temporary employee shall be confidential and shall not be disclosed to any person, entity, or governmental agency without the consent of the employee involved, or unless specifically allowed by Tribal law.

9-2-2 Definitions

(a) Employee as used in this Chapter, shall mean any person working for the Tribes in any capacity, including as a volunteer, whether full time, part time or temporary, and Tribal Council members.

(b) Employment Records shall mean any writing, tape, copy or other memorialization of whatever kind or nature maintained, obtained or generated while an employee is working for the Tribes and that relates to the employment of the employee and which includes but is not limited to resumes, health records, warning notices, disciplinary actions, evaluations, recommendations, retirement records, garnishments, vacation and sick leave, hours, wages, withholding, earnings, dependents, marital status, employment applications, previous Tribal employment and terminations.

(d) Tribes shall mean the Confederated Tribes of Coos, Lower Umpqua and
Siuslaw Indians hereafter Tribes.

(e) Disclosure shall mean the intentional transmittal of any employment record or part thereof to any individual, entity or governmental entity, or the intentional leaving of any employment record or part thereof in such a manner of place that it is likely to be obtained by an individual, entity or governmental agency.

(f) Gender (singular or plural). Reference to persons by terms denoting one sex shall be taken as referring to either sex. Reference to persons is a term denoting the singular shall include the plural.

9-2-3 Duty Not to Disclose

No employee of the Tribes shall disclose any employment record relating to a present or past employee of the Tribes without the prior written consent of the employee to whom the record applies or unless otherwise allowed under this Chapter.

9-2-4 Exception to the Rule Against Disclosure

It shall be lawful for an employee of the Tribes to disclose an employment record to the following:

(a) A custodian as defined herein;

(b) The Tribal Administrator when necessary for the Tribal Administrator to carry out his responsibilities including but not limited to the duty of supervisor, discipline, investigations of alleged violations, grievance matters and financial and grant accountability;

(c) The Tribal Police, once established, when in conjunction with an ongoing investigation and the holder of an employment record is served with a subpoena signed by the Tribal Court Judge requiring the transmittal of the employment record. In cases where the Tribal Police believe that public filing of a request for a subpoena would compromise an ongoing investigation, the Tribal Police may request that the Tribal Court consider the requested subpoena in camera, without a public filing;

(d) Any other individual, entity or governmental agency when the disclosure is allowed by an order of the Tribal Court;

(e) The United States when required by the Internal Revenue Code, the specific requirements of a grant or grant application, or other specific federal law made applicable to Indian tribes; or

(f) The Tribal Attorney when acting to advise the Tribal Administrator or any department head or supervisor.

9-2-5 Duty to Notify

(a) Except as provided in subsection (b) of this section, any time that disclosure is made pursuant to section 9-2-4, the person making the disclosure shall within five (5) working days notify the employee whose records were disclosed of the
disclosure, identify the person to whom the disclosure was made and the justification for the disclosure.

(b) The notification requirement set out inn subsection (a) of this section shall not apply to certain disclosures made in the regular course of business in order to facilitate the preparation of payroll, the computation of employee benefits, or routinely required by the Internal Revenue Service.

9-2-6 Penalties

(a) The knowing and intentional disclosure of any employment record in violation of this Chapter by an employee other than a Tribal Council person shall be considered a serious offense subjecting the offending employee to the sanctions set out in the Tribes Personnel Manual.

(b) The knowing and intentional disclosure of any employment record by a member of the Tribal Council shall be deemed to be a violation of the Tribal Council (CODE OF PROFESSIONAL RESPONSIBILITY) and gross misconduct under (SECTION ** OF ARTICLE ** OF THE TRIBES CONSTITUTION) and shall subject the offending Tribal Council person to the sanctions and procedures set out in the (CODE OF PROFESSIONAL RESPONSIBILITY).

9-2-7 Grievance Procedure

(a) Any current or past employee of the Tribes who believes that employment records relating to him or her were disclosed in violation of the Chapter may request that the Tribal Administrator investigate the allegation of improper disclosure. At the close of the investigation, the Tribal Administrator shall report in writing to the employee, or former employee, any conclusion with respect to the alleged improper disclosure and what action, if any, is to be taken. Provided that when the alleged improper disclosure is against the Tribal Administrator, the Tribal Attorney shall undertake this investigation.

(b) There shall be no appeal from the decision of the Tribal Administrator or the Tribal Attorney, as the case may be. Provided that nothing herein shall affect whatever legal or equitable rights might be available under Tribal law, if any, to the person who alleges the improper disclosure.

(c) The procedures set out in this section shall not apply to allegations of improper disclosure by Tribal Councilpersons. Such allegations shall be referred for investigation to the (COUNCIL ETHICS COMMITTEE) to be resolved pursuant to the (COUNCIL CODE OF PROFESSIONAL RESPONSIBILITY).

9-2-8 Required Disclosure

(a) When not otherwise allowed under section 9-2-4 of this Chapter, an employee may be required to disclose employment records in conjunction with a
grievance or disciplinary action filed by or against an employee, new employment at the Tribes, or promotion.

(b) To the extent that an employee fails to consent to the disclosure of employment records, the Tribes may deny the grievance, affirm the disciplinary action, or refuse to hire, promote or transfer the employee. Provided that the employee shall retain all rights otherwise available, if any, to challenge the action of the Tribes under Tribal law, and may there prove by clear and convincing evidence that the required disclosure was not reasonably related to the action then being considered by the Tribes.

9-2-9 Sovereign Immunity

Nothing in this Chapter shall waive the sovereign immunity of the Tribes or the immunity of any employee, agent, attorney or councilperson from suit or the imposition of any judgment. Provided that to the extent any separate Tribal law has, or may in the future waive the sovereign immunity of the Tribes or any of its employee, agents or attorneys, nothing in this section shall modify or limit any waiver found in such separate Tribal law.

APPENDIX A - LEGISLATIVE HISTORY AND EDITORIAL CHANGES

TRIBAL EMPLOYEE RECORDS CONFIDENTIALITY

LEGISLATIVE HISTORY AND EDITORIAL CHANGES

The Tribal Council of the Confederated Tribes of the Coos, Lower Umpqua and Siuslaw Indians enacted the "Tribal Employee Records Confidentiality" Code, Resolution No. 02-013, Ordinance No. 040, in a regular Tribal Council meeting on January 13, 2002. Vote was 7 (for), 0 (against) and 0 (abstaining).

CHAPTER 9-6 BACKGROUND INVESTIGATIONS

9-6-1 Purpose

In order to protect the health and welfare of the Tribes, its members and especially its children, employees, residents, visitors, and to protect the financial and cultural resources of the Tribes, the Tribal Council has established policies and procedures to determine suitability for Tribal employment, contracting and volunteering.

9-6-2 Definitions

(a) "Adjudication"

The process used to determine suitability for employment, contracting and volunteering.

(b) "Adjudicating Official"

The Human Resources Director or his designee.

A person applying for an employment, volunteer or contract position with the Tribes.

(d) "Child"

An individual who is not married and has not attained eighteen (18) years of age.

(e) "Covered position"

A position either paid or unpaid involving regular contract or control over a child to include but not limited to a volunteer, contract or employment relationship.

(f) "Crimes Against Persons"

Crimes Against Persons are defined by local law. The Adjudicating Official must contact local law enforcement agencies in the jurisdiction in which the crime was prosecuted, to determine if the particular conviction is defined as a crime against persons.

(g) "Tribal Entity"

Includes, but is not limited to, work units of Tribal government and Tribally chartered entities and corporations.

(h) "Must or Shall"

Indicates a mandatory or imperative act or requirement.

(i) "Tribes"

The Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians.

(j) "Gender" (singular or plural)

Reference to persons by terms denoting one (1) sex shall be taken as referring to either sex. Reference to persons by a term denoting the singular shall include the plural.

9-6-3 Jurisdiction

This Code applies to all employees in of a Tribal Entity, regardless of the location of execution or performance. This Code shall also apply to volunteers and contractors in Covered Positions.

9-6-4 Exemption for Certain Employees

If federal, state or Tribal law otherwise requires a person in a position to satisfy a licensing or background investigation requirement, such person will not be exempt from the requirements of this Code unless:

(a) The licensing or background investigation requirements are at least as stringent as those required under this Code; and

(b) The person in such position has had such a background investigation within the previous twelve (12) months and consents to a background investigation covering the period of time that passed since the prior successful background investigation; and

(d) The Tribal entity maintains the results of such background investigation in a locked filing cabinet; and

(e) The person signs a release permitting designated Tribal officials to view the results of the background investigation.

9-6-5 Background Investigations - Employment and Covered Positions

(a) All Tribal entities must conduct a background investigation of an employee to determine his/her suitability for employment.

(b) All Tribal entities must conduct a background investigation of volunteers and contractors in Covered Positions to determine their suitability as provided for in this Chapter.

(c) Applicants and employees must sign a release authorizing this background investigation. A failure to sign such a release will be grounds for termination of employment, volunteering or contracting or for determining a candidate to be unqualified for employment, volunteering or contracting with the Tribes.

9-6-6 Determination of Suitability

Determinations of suitability measuring the fitness or eligibility of an Applicant or employee does not evaluate a person's education, skills, knowledge or experience. Rather it requires that the Tribes conduct a background investigation to:

(a) Determine the degree of risk the Applicant or employee brings to the position; and

(b) Determine that the Applicant's or employee's past conduct would not interfere with his or her performance of duties or create an immediate or long-term risk for the Tribes; and

(c) Determine that the Applicant or employee meets minimum standards of character. Minimum standards of character refer to identifiable character traits and past conduct to include but not limited to criminal arrest and/or convictions that would create a risk of danger or loss to the Tribes based on the job responsibilities of the position in which the person has applied or is employed

9-6-7 Additional Standards for Employees, Volunteers and Contractors Working in Covered Positions

(a) Background and Intent

The Tribes recognize that no resource is more vital to the Tribes' continued existence and integrity than its children and the Tribes have a direct interest in protecting children.

(b) Covered Positions shall include but not be limited to employees, volunteers and contractors providing child protective services, social services, health and mental health care, child day care, education, foster care, residential care, recreational programs, and detention services, Peacegiving services or transportation. For all other positions, the Tribal Administrator or his designee shall routinely review each job position description, volunteer position or contract for services and make a determination as to whether the persons occupying the position will have regular contact with or control over children. A determination of the Tribal Administrator that a position is a Covered Position is a final determination not subject to judicial review.

(c) For Covered Positions, an additional background investigation shall be conducted in accordance with the Indian Child Protection and Family Violence Prevention Act of 1990, 25 USC §3207 and the Crime Control Act of 1990, 42 USC §13041. Each applicant, employee, volunteer or contractor shall provide a set of fingerprints obtained by a law enforcement officer, which shall be submitted to the Identification Division of the Federal Bureau of Investigation and the State criminal history repositories of all states that the individual lists as current and former residences in the employment application.

(d) No applicant, volunteer, contractor or employee will be placed in a Covered Position if he has been found guilty of or entered a plea of nolo contendere or guilty to any offense under Tribal, federal or state law involving crimes of violence, sexual abuse, sexual assault, sexual molestation, sexual exploitation, sexual contact or prostitution, a crime with a child victim, a drug felony, or a felony or two (2) or more misdemeanor crimes against persons.

9-6-8 Covered Position Applications

Applications for Covered Positions in Section 9-6-7 shall meet the following:

(a) Ask whether the applicant, volunteer or contractor has ever been arrested or convicted of a crime involving a child, violence, sexual assault, sexual molestation, sexual exploitation, sexual contact or prostitution, crimes against persons or a drug-related felony; and

(b) Ask the disposition of the arrest or charge; and

(c) Require that an applicant, volunteer or contractor sign, under penalty or perjury, a statement verifying the truth of all information provided in the application; and

(d) Inform the applicant, volunteer or contractor that a background investigation is a condition of employment, volunteering or contracting with the Tribes and require the applicant, volunteer, contractor or employee to consent, in writing, to a background investigation.

9-6-9 Process for Adjudicating Suitability

(a) Adjudication is the process used to determine suitability. The adjudication process protects the interests of the Tribes and the rights of applicants and employees.

(b) Each case is judged on its own merits. All available information, both favorable and unfavorable, must be considered and assessed in terms of accuracy, completeness, relevance, seriousness, overall significance and how similar cases have been handled in the past.

(d) The Adjudicating Official must review the background investigation to determine the character, reputation and trustworthiness of the individual. At a minimum, the Adjudicating Official must:

(1) Review the application with the background investigation and compare the information provided:

(2) Review the results of written record searches requested from the Tribal Police or local law enforcement agencies, former employers, former supervisors, employment references and schools; and

(3) Review the results of any fingerprint charts maintained by the Federal Bureau of Investigation of other law enforcement information maintained by other agencies.

(e) Relevancy is a key objective in evaluating investigative data. The Adjudicating Official must consider prior conduct in light of:

(1) The nature and seriousness of the conduct in question, in relation to the job duties of the applicant, employee, volunteer or contractor;

(2) How recent the conduct was and circumstances surrounding the conduct in question;

(3) The age of the individual at the time of the incident;

(4) Societal conditions that may have contributed to the nature of the conduct;

(5) The probability that the individual will continue the type of behavior in question; and

(6) The individual's commitment to rehabilitation and a change in the behavior in questions;

(f) Covered Positions are subject to a federal statutory bar for consideration of employment, volunteering or contracting. Any finding that a person was found guilty at any time of or entered a plea of nolo contendere or guilty to any offense under Tribal, federal or state law involving crimes of violence, sexual abuse, sexual assault, sexual molestation, sexual exploitation, sexual contact or prostitution, a crime with a child victim, a drug felony, or a felony or two (2) or more misdemeanor crimes against persons is an absolute prohibition for consideration of or continued employment, volunteering or contracting with the Tribes.

(g) All employees or contractors in Covered Position(s) must be reinvestigated every three (3) years. All volunteers must be reinvestigated annually.

(h) Employees or contractors in Covered Positions must report any criminal arrests or convictions to their supervisor or contracting official.

9-6-10 Denial or Dismissal of Employment, Contract or Volunteer Position

(a) A Tribal entity must deny employment, terminate a contract or volunteer position or terminate employment of a person in a Covered Position if an adjudication under this Code finds that the person has been found guilty of or entered a plea of guilty or nolo contendere to any Tribal, federal or state offense involving a crime of violence, sexual assault, sexual molestation, child exploitation, sexual contact, prostitution or crimes against persons or a drug felony at any time.

(b) If an applicant for, or contractor or employee in a Covered Position has been charged with an offense described under subsection (a) of this section, but the charge is pending or no disposition has been made by a court:

(1) The Tribal entity may deny consideration of the applicant, volunteer or contractor until the charge has been resolved, or

(2) The Tribal entity may deny the employee or contractor any on-the-job contact with children until the charge is resolved, or

(3) The Tribal entity may detail or reassign the employee or contractor to other duties that do not involve contact with children, or

(4) The Tribal entity may place the employee on administrative leave until the court has disposed of the charge, or

(5) The Tribal entity may terminate the contractor's contract for cause; or

(6) The Tribal entity may terminate a volunteer agreement.

9-6-11 Other Factors Warranting Denial or Dismissal of Employment

An applicant, volunteer, contractor or employee may be disqualified from consideration or continuing employment in any position if an adjudication under this Code finds that:

(a) The individual's misconduct or negligence interfered with or affected a current or prior employer's performance of duties and responsibilities;

(b) The individual's criminal or dishonest conduct affected the individual's performance or the performance of others;

(d) The individual has refused to cooperate with an investigation;

(e) The individual's alcohol or substance abuse is of a nature and duration that suggests the individual could not perform the duties of the position or would directly threaten the property or safety of others;

(f) The individual has illegally used narcotics, drugs or other controlled substances without evidence of substantial rehabilitation; or

(g) The individual knowingly and willfully engaged in an act or activities designed to disrupt government programs.

(h) The individual engaged in conduct of a nature that renders the individual unfit for a specific position due to the job responsibilities of that position.

9-6-12 Rights of Applicant, Volunteer, Contractor or Employee

(a) Before an adjudication is final, the applicant, volunteer, contractor or employee must be provided an opportunity to explain, deny or refute unfavorable and incorrect information gathered in an investigation. The applicant, volunteer, contractor or employee should receive a written summary of all derogatory information and be informed of the process for explaining, denying or refuting unfavorable information. A response should be written and may attach documentary evidence to refute or explain information gathered in the investigation.

(b) Tribal entities and the Adjudicating Official must not release the actual background investigative report to an applicant, volunteer, contractor or employee. However, they may issue a written summary of the derogatory information.

(c) The applicant, volunteer, contractor or employee who is the subject of a background investigation may obtain a copy of the reports from originating (Tribal, federal or state) agency and challenge the accuracy and completeness of any information maintained by that agency.

(d) The results of an investigation cannot be used for any purpose other than to determine the suitability for employment in a covered position.

(e) Investigative reports contain information of a highly personal nature and should be maintained confidentially and secured in locked files. Investigative reports should be seen only by those officials who, in performing their official duties, need to know the information contained in the report.

(f) Privacy requirements of any Tribal, federal or state agency providing background investigations will be complied with which shall include Tribal personnel policies safeguarding information derived from background investigations.

9-6-13 Appeal

(a) The decision of the Adjudicating Official shall be final as to any decision hereunder regarding an applicant, contractor or volunteer.

(b) Employees, unless otherwise prohibited by an employment contract, shall have those appeal rights granted to them under the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians Employee Policy Manual and Chapter 9-4, Employment Action Review.

9-6-14 Sovereign Immunity Intact

Nothing in this Code is to be construed to create a cause of action for violation of its provisions or to be construed as a waiver of the sovereign immunity of the Tribes, which is by this reference hereby expressly asserted.

9-6-15 Severability

If a court of competent jurisdiction holds any provision of this Code invalid, the invalid portion will be severed and the remaining provisions shall continue in full force and effect.

APPENDIX A - LEGISLATIVE HISTORY AND EDITORIAL CHANGES

BACKGROUND INVESTIGATIONS

LEGISLATIVE HISTORY AND EDITORIAL CHANGES

The Tribal Council of the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians enacted the "Background Investigations" Ordinance, Resolution 05-085; Ordinance No. 063, in a regular Tribal Council meeting on September 11, 2005. Vote was 6 (for), 0 (against) and 0 (abstaining).

The Tribal Council of the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians approved the "Background Investigations" Ordinance, Resolution 05-035, Ordinance No. 063 in a regular Tribal Council meeting on May 15, 2005. Vote was 5 (for), 0 (against), and 0 (abstaining).

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