Absent: Council Members Phillip Jiron, Josephine Padilla and Douglas Jiron. Governor Eddie Paul Torres.
Meeting started at 9:06 a.m.
Council, by motion, unanimously approved a home site development application for home construction for Anthony Sean Paquin. 9 in favor, 0 opposed & 0 abstaining.
Council approved payment of legal fees to Sonosky, Chambers, Sachse, Mielke and Brownell for April 2013 in the amount of $ 47,119.87. 7 in favor, 2 opposed & 0 abstaining. Secretary Verna Teller and CM Joseph “Cougar” Lucero opposed.
9:35 a.m. Governor Torres and Tribal Attorney Pablo Padilla arrived.
CM Juan Rey Abeita recommended that the Council place the Board of Education on the agenda for next week. He said that Board Members want to give a report to the Council and explain why the Board “fell apart.” The outgoing Board Members also want to make recommendations on who the Council should appoint to the Board pursuant to their bylaws.
Vernon Abeita, Director of Isleta Emergency Medical Services, requested the Council to approve a Mutual Aid Agreement with American Medical Response (AMR). The Tribe’s EMS and AMR are agreeing to help each other in providing ambulance coverage for their respective areas or jurisdictions.
For instance, if the Pueblo’s ambulances are unavailable, AMR will send its ambulance to provide EMS coverage on the reservation. The Pueblo will also respond to calls within AMR’s jurisdiction, when AMR is not available to respond within their territory.
Council, by motion, unanimously approved the Mutual Aid Agreement as presented by Vernon Abeita and Pablo Padilla. 9 voting in favor, 0 opposing & 0 abstaining.
10:30 a.m. Secretary Teller stepped out of the meeting and CM James Abeita served as Secretary.
Vernon Abeita also requested that the Council approve a resolution adopting the National Incident Management System (NIMS). According to Abeita, Homeland Security established NIMS to ensure a uniform and systematic approach for responding to emergency situations such as a plane crash, train wreck or a terrorist threat. He also said that the federal government was requiring agencies to adopt NIMS in order to qualify for grant funding.
The Council approved the Resolution Adopting the National Incident Management System (NIMS). 7 in favor, 0 opposed & 1 abstaining. CM Juan Rey Abeita abstained. Secretary Teller was not present for the vote.
11:14 a.m. Secretary Teller returned.
Governor Torres selected Kevin Mariano to serve as the Chief of Police for the Isleta Police Department (IPD).
Secretary Teller told the Governor that she had concerns with the officers at IPD. She said that they needed to have a “friendlier demeanor” to the community. Essentially, Teller wants the community to feel that the officers are approachable.
Secretary Teller advised the Council that there is one (1) vacancy on the TEC. Currently, four (4) persons are serving on the TEC and they are all females. Teller suggested that the Council appoint a male to fill the vacancy to be fair. Teller asked the council to make their nominations during Tuesday’s meeting (July 2, 2013).
Last term, the Council authorized the Tribal Attorney, Pablo Padilla, to hire an Associate General Counsel to help him with the Tribe’s legal work. Padilla is the Tribe’s General Counsel. He explained that he did not hire anyone because there is no office space for an associate. He said office space will become available at the end of July.
Padilla asked the Council whether they wanted to be involved in the selection process of the Associate General Counsel. Article V, Section 2(a) of the Isleta Tribal Constitution empowers the Council “to employ legal counsel . . . .” So, Padilla asked the Council to decide whether they wanted to hire the lawyer pursuant to the Constitution.
Padilla explained that he did not want for council members to later question or challenge his decision to hire someone based on the Constitution. So, he asked the Council to give him direction, in light of the Constitution, before he made any decision.
Secretary Teller stated that it was the obligation of the Tribal Council to hire the Associate General Counsel due to the language in the Tribal Constitution. She also explained that the position was vital to the Pueblo and that it was the duty of the Council to choose the attorney that would fill the position.
Teller also said that Francine Jaramillo, a tribal member, was a candidate for the position. She felt that the Council should consider hiring Jaramillo as the attorney because unlike non-Indians or non-members, Jaramillo was more likely to do a better job for the Pueblo. Teller explained that non-Indians or non-members simply go home at the end of the day and they do not live with the consequences of their decisions. In contrast, Jaramillo has a vested interest in the Pueblo because she is a tribal member and this is Jaramillo’s community.
CM Cynthia Jaramillo stated that she felt that the Council already met its obligation by hiring the General Counsel for the Tribe. She said, it was now Pablo Padilla’s responsibility to hire the Associate General Counsel. She felt it was “controlling” for the Tribal Council to be involved in the hiring process. Jaramillo said the Council should leave it to a professional to hire the Associate Counsel. She said, “Pablo has done a superb job in representing the Pueblo.”
CM Joseph “Cougar” Lucero asked, “Who keeps the Council in check?” He stated that it was a “matter of trust” for the Council to allow Padilla to hire the person that he would supervise.
CM Barbara Sanchez said that the Council met the “intent” of the Constitution by hiring the General Counsel. She felt it was the responsibility of the General Counsel to now hire the associate. She said, it would be an error on the part of the Council to hire the Associate General Counsel.
CM James Abeita also agreed that Padilla should hire the associate.
CM Joseph “Cougar” Lucero made a motion for Pablo Padilla to hire the Associate General Counsel without any interference from the Tribal Council. Second by CM Barbara Sanchez. Motion carried 6 in favor, 3 opposed & 0 abstaining.
James Abeita Michael Allen Lente
Juan Rey Abeita
Joseph “Cougar” Lucero
Michael Allen Lente
According to Pablo Padilla, 14 persons submitted applications to serve as the Associate General Counsel. Attorney Padilla conducted interviews and narrowed the field down to two applicants.
Padilla will determine whether the two applicants are still interested in the position. He will then decide whether to hire one of the candidates or advertise the position once again.
Secretary Teller stated that she is very disappointed with the Isleta Appellate Court because they are not rendering decisions in a timely manner. She referenced the case concerning former CM Diane Peigler versus the Pueblo of Isleta.
Last term, the Council removed Peigler from her position on the Council. Peigler filed a lawsuit against the Council challenging their actions to remove her from office. She argued that the Council violated Article VII of the Isleta Tribal Constitution by removing her from office without conducting a recall election.
According to Teller, it has been about one (1) year since the Appellate Court heard the case. But, the Court has not yet made a decision. She said the Court’s failure to make a decision is a “governance” issue.
Secretary Teller also stated that several tribal members have complained to her about the Appellate Court’s failure to render decisions in a timely manner. She is especially concerned about cases involving children.
Teller asked Tribal Attorney Padilla whether the Council could do anything to compel the Appellate Court to make a decision on the Peigler case. Padilla did not want to discuss any specifics on the case because the Council meeting was open to the public.
Padilla did say that he could take follow up action on the case based upon a prior Council meeting. He is referring to a Council meeting held on March 12, 2013, where the Council discussed the Peigler case in an executive session. At that time, the Council decided to take some type of action in the Peigler case while they were in executive session. [An “executive session” is a secret meeting where the Council prohibits tribal members from listening to their discussion.]
At that time, when the Council moved out of their executive session, none of the council members were willing to make a motion in an open session of the council meeting to document the Council’s decision. Nevertheless, Padilla said that he would follow through with the Council’s decision as discussed during their secret meeting.
At a prior meeting, the Council decided to remove Justice Francine Jaramillo from the Isleta Appellate Court to appoint Roshanna Toya-Lucero.
In response, the Chief Justice of the Isleta Appellate Court, William Johnson, advised the Council that the terms of office for the Justices did not expire until December 2013. The Justices reached this conclusion based upon the Ordinance Establishing the Appellate Court (Ordinance). If the Appellate Court is correct, it would mean that the Council lacked authority to remove Jaramillo from the Court arbitrarily.
Justice Jaramillo also sent a letter to the Council concerning their decision to remove her from the Appellate Court. Apparently, Jaramillo’s letter indicated that the Council could not remove her from office due to the language in the ordinance specifying that the Council could only appoint Justices in the month of December following their election to the Council. The Council did not respond to Jaramillo’s letter.
In contrast, the Council’s interpretation of the Ordinance is that the terms of the Justices coincide with the Council that appointed them. This would mean that the terms for the Justices expired in 2012 along with the prior Council.
The Ordinance states:
“[t]he term of office for each Appellate Court Justice shall be for two (2) years or until another Justice is appointed and shall coincide with the term of office of the appointing Tribal Council. Appointments of Appellate Court Justices shall be made by Tribal Council between December 1 and December 31 of each year that follows a regular election of Tribal Council.”1
The second sentence specifies that the Council can make appointments to the Appellate Court in December following their election to the Council. This means that the current Council can only appoint Justices in December of 2013 because their election into office occurred in November 2012. So, the second sentence contradicts the first sentence. This is why the Appellate Court and the Tribal Council are in a battle as to whether the Council has the power to remove Justice Jaramillo to appoint Roshanna Toya-Lucero.
After Chief Justice Johnson advised the Council of the Appellate Court’s interpretation of the Ordinance, the Council told Johnson that they would get a second legal opinion from their Attorney, Gary Brownell. The Council promised to get back to the Chief Justice after conferring with Brownell.
While the Justices were waiting to hear back from the Tribal Council, the Council decided to quietly amend the Appellate Court Ordinance. Thereafter, on June 13, 2013, Attorney Pablo Padilla informed the Council that the Secretary of Interior approved the Council’s amendment to the Appellate Court Ordinance. It is unknown what changes the Council made to the Ordinance because the Council has not made their amendments available to the community.
Now, Attorney Padilla told the Council that based upon the amended Ordinance the Council should develop a response to Justice Francine Jaramillo’s letter concerning her term of office as an Appellate Court Justice.
Secretary Teller asked Attorney Padilla whether the Council’s amendment to the Ordinance is an “ex post facto” violation of the Tribal Constitution. Article III, Section 1(j) of the Isleta Tribal Constitution prohibits ex post facto laws. Padilla replied “no” because he said the “ex post facto” provision only applies to criminal laws.
“Ex post facto” is a Latin phrase. It means “after the fact” or making a law that creates penalties for something retroactively.
For example, today, you walk your dog without a leash. A police officer sees you walking your dog without a leash. Three days later, the Council passes a law to make it illegal to walk your dog without a leash. The officer then goes to your home to arrest you because he remembered that three days ago, you walked your dog without a leash. So, he would be using the law to penalize you for something that you did BEFORE a law was enacted that made it a crime to walk your dog without a leash.
In any event, Attorney Padilla will now prepare a letter to Justice Jaramillo, on behalf of the Council, based upon the Council’s amended ordinance.
The Tribal Attorney, Pablo Padilla, also explained that decisions made by the Isleta Appellate Court might be invalid due to Justice Francine Jaramillo’s participation in rendering those decisions.
This is due to the fact that the Council appointed Roshanna Toya-Lucero to take Justice Jaramillo’s position on the Appellate Court. But, Jaramillo did not step down from the Court. This would mean that if the Council’s interpretation of the Appellate Court Ordinance is correct, then Justice Jaramillo did not have the legal authority to remain a Justice of the Appellate Court.
So, if Jaramillo lacked the legal authority to serve as a Justice on the Court, then any cases that she heard could be challenged by the parties to the case. In other words, any decisions rendered by the Appellate Court that included Jaramillo as a presiding Justice could be deemed invalid. This could cause extreme turmoil to the parties of those cases.
The only cases that would be affected are cases involving Jaramillo’s participation AFTER the Council appointed Toya-Lucero to the Appellate bench.
12:21 p.m. the Council breaks for lunch.
I did not return for the afternoon session.
In the afternoon session, the Council approved a per capita distribution in the amount of $1,250 for 2013. The Council will make the distribution in two payments. The first payment will occur in August in the amount of $625 and a second payment in December for the remaining $625.
Please note, I was not present for the discussion on the per capita distribution.
By Christopher Abeita
- Article 3, Sec. 5, Isleta Tribal Council Resolution # 2011-049, “Enacting an Ordinance Establishing . . . Isleta Appellate Court Justices.” ↩