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Additions received to code: 2006
185.010
- General
1. Purpose - Pursuant to the Coquille Indian Tribal Constitution, Article VI, Section 1, the Tribal Council has legislative authority to establish Tribal codes. In order to protect the health and welfare of the Tribe, its members, employees, residents, visitors, and especially its children, the Council has established policies and procedures by which certain persons coming into proximity with children must meet minimum standards of character.
2. Background and intent - The Coquille Indian Tribe recognizes that no resource is more vital to the Tribe's continued existence and integrity than its children and the Tribe has a direct interest in protecting children.
3. Definitions -
(a) Adjudication means the process used to determine suitability for employment.
(b) Adjudicating official is the person conducting an adjudication.
(c) Child means an individual who is not married and has not attained 18 years of age.
(d) Covered Position means any employee, service contractor or volunteer with any Tribal entity that has proximate contact with or control over children. In the case of a service contract with a corporation, limited liability entity or similar non-individual entity, "covered position" includes all employees of such entity working under such a contract, and depending on the subject matter of the contract, may include primary managers of the entity.
(e) Crimes against persons are defined by local law. Adjudicating officers must contact local law enforcement agencies to determine if the particular conviction is defined as a crime against persons.
(f) Tribal entity includes, but is not limited to, work units of Tribal government and Tribally-chartered entities.
(g) Must is used in place of shall and indicates a mandatory or imperative act or requirement.
(h) Tribe means the Coquille Indian Tribe.
185.020 - Jurisdiction
This Ordinance applies to all covered positions in a Tribal entity, regardless of the location of execution or performance.
185.050 - Exemption for certain employees
If federal, state or Tribal law otherwise requires a person in a covered position to satisfy a licensing or background investigation requirement such a person will not be exempt from the requirements of this ordinance unless:
1. The licensing or background investigation requirements are at least as stringent as those required under this ordinance;
2. The person in such position has had such a background investigation within the previous twelve months and consents to a background investigation covering the period of time that passed since the prior successful background investigation;
3. The person successfully maintains any such license and successfully completes such background investigation;
4. The Tribal entity maintains the results of such background investigation in a locked filing cabinet; and
5. The person signs a release permitting designated Tribal officials to view the results of their background investigation.
185.100 - Determination that all positions are covered
The Tribal Council has determined that all employment, volunteer and contractor positions in all Tribal entities involve covered positions. Therefore, all non-exempt applicants, employees, volunteers and contractors must successfully complete a background investigation as described in this ordinance.
185.120 - Background investigations
All Tribal entities must conduct an investigation of the character of each person that holds, or is being considered for, a covered position, to determine their suitability for employment. Only those individuals who meet minimum standards of character will be placed in a covered position. Each applicant, employee, volunteer or contractor must sign a release authorizing this background investigation. A failure to sign such a release will be grounds for termination of employment or for determining a candidate to be unqualified for a covered position. A Background investigation conducted under this Ordinance must be no less extensive than that required by the federal Indian Child Protection and Family Violence Prevention Act, 25 USC §3201 et seq.
185.140 - Determination of suitability
Determinations of suitability measuring the fitness or eligibility of an applicant, volunteer, employee or contractor in a covered position does not evaluate a person's education, skills, knowledge, experience, etc. Rather, it requires that the employer conduct a background investigation to:
1. Determine the degree of risk the applicant, volunteer, contractor or employee brings to the position; and
2. Certify that the applicant's, volunteer's, contractor'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 any child.
185.160 - Minimum standards of character
Minimum standards of character refer to identifiable character traits and past conduct. Minimum standards of character ensure that no applicant, volunteer, contractor or employee will be placed in a covered position if he or she 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 assault, sexual molestation, sexual exploitation, sexual contact or prostitution, or crimes against persons.
185.180 - Employment applications
All employment applications for covered positions must:
1. Ask whether the applicant, volunteer, or contractor has been arrested or convicted of a crime involving a child, violence, sexual assault, sexual molestation, sexual exploitation, sexual contact or prostitution, or crimes against persons;
2. Ask the disposition of the arrest or charge;
3. Require that an applicant, volunteer, or contractor sign, under penalty of perjury, a statement verifying the truth of all information provided in the employment application; and
4. Inform the applicant, volunteer, or contractor that a criminal history record check is a condition of employment and require the applicant, volunteer contractor or employee to consent, in writing, to a record check.
185.200 - Process for adjudicating suitability
1. Adjudication is the process used to determine suitability for employment. The adjudication process protects the interests of the employer and the rights of applicants and employees.
2. 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.
3. An adjudicating official conducts the adjudication. The Tribal Council will appoint an adjudicating official who must first have been the subject of a favorable background investigation and is:
(a) Well-qualified and trained to perform the adjudicating official tasks.
(b) If the adjudicating official is not trained in these types of investigations, he or she initially must be supervised by someone that is experienced.
(c) Thoroughly familiar with all laws, regulations and criteria involved in making a determination for suitability.
4. 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:
(a) Review each security investigation form and employment application and compare the information provided;
(b) Review the results of written record searches requested from the Tribal Police and local law enforcement agencies, former employers, former supervisors, employment references, and schools; and
(c) Review the results of any finger-print charts maintained by the Federal Bureau of Investigation or other law enforcement information maintained by other agencies.
5. Relevancy is a key objective in evaluating investigative data. The adjudicating official must consider prior conduct in light of:
(a) The nature and seriousness of the conduct in question;
(b) The recency and circumstances surrounding the conduct in question;
(c) The age of the individual at the time of the incident;
(d) Societal conditions that may have contributed to the nature of the conduct;
(e) The probability that the individual will continue the type of behavior in question; and
(f) The individual's commitment to rehabilitation and a change in the behavior in question.
6. All persons in any covered position(s) must be reinvestigated every three years.
7. All covered positions must report any criminal arrests or convictions to their supervisor.
185.220 - Denial or dismissal of employment
1. A Tribal entity must deny employment, terminate a contract or terminate employment of a person in a covered position if an adjudication under this ordinance 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.
2. A Tribal entity must deny employment, terminate a contract or terminate employment of a person in a covered position if an adjudication under this ordinance finds that the person has been convicted of an offense involving a child victim, a sex crime or a drug felony.
3. If an applicant for, or contractor or employee in a covered position has been charged with an offense described under subsections (1) or (2) of this section, but the charge is pending or no disposition has been made by a court:
(a) The Tribal entity may deny consideration of the applicant until the charge has been resolved.
(b) The Tribal entity may deny the employee or contractor any on-the-job contact with children until the charge is resolved.
(c) The Tribal entity may detail or reassign the employee or contractor to other duties that do not involve contact with children.
(d) The Tribal entity may place the employee on administrative leave until the court has disposed of the charge.
185.240 - Other factors warranting denial or dismissal of employment
An applicant, volunteer, contractor or employee may be disqualified from consideration or continuing employment in a covered position if an adjudication under this ordinance finds that:
1. The individual's misconduct or negligence interfered with or affected a current or prior employer's performance of duties and responsibilities;
2. The individual's criminal or dishonest conduct affected the individual's performance or the performance of others;
3. The individual made an intentional false statement, deception or fraud on an examination or in obtaining employment;
4. The individual has refused to cooperate with an investigation;
5. 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;
6. The individual has illegally used narcotics, drugs or other controlled substances without evidence of substantial rehabilitation; or
7. The individual knowingly and willfully engaged in an act or activities designed to disrupt government programs.
185. 280 - Rights of applicant, volunteer, contractor or employee
1. 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.
2. Tribal entities and adjudicating officials 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.
3. The applicant, volunteer, contractor or employee who is the subject of an 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.
4. The results of an investigation cannot be used for any purpose other than to determine the suitability for employment in a covered position.
5. 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.
6. Privacy requirements of any Tribal, federal or state agency providing background investigations will be complied with, including Tribal personnel policies safeguarding information derived from background investigations.
185.500- Emergency Exemption
The Tribal Council may suspend the requirements of this Ordinance during any emergency that the Tribal Council determines may threaten the health or welfare of the Tribe or of its residents or members.
185.700 - Sovereign immunity intact
Nothing in this ordinance 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 Coquille Indian Tribe.
185.800 - Severability
If any provision of this Ordinance is held invalid by a court of competent jurisdiction, the invalid portion will be severed and the remaining provisions shall continue in full force and effect.
COQUILLE INDIAN TRIBE CHILD PROTECTION ORDINANCE -- Adopted March 25, 2000
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