The most recent event involving an April 7, 2014, legal action by Navajo Council Speaker Johnny Naize against 12 Navajo Nation Council delegates and the Legislative Services Director is a WRITTEN request from Council Delegates Katherine Benally and Charles Damon II for the Navajo Nation Department of Justice to be their attorney.
Benally and Damon are claiming that they deserve legal representation because the tribal justice department is currently the legal counsel for the 12 delegates and one tribal employee.
Benally is well known as a stauch supporter of Naize. And Damon has also shown his support for Damon by walking out of a Council Naabik’iyati Committee, which resulted in the Committee losing a quorum and without a quorum, the Committee couldn’t vote on legislation for the Council to remove Naize because of his 12 criminal charges of conspiracy to commit briber and bribery.
Benally and Damon stated in their letter to Navajo Nation Attorney General Harrison Tsosie that they wanted the tribal justice department to be their attorneys “to invalidate the 12 named defendants’ unlawful actions of April 4, 2014, in Case No. WR-CV-109-14.”
Case No. WR-CV-109-14 is Naize’s temporary restraining order and civil complaint against the 12 delegates that voted to place him on paid leave and against Platero for doing his job, which is to process Council legislation. And in this case, Platero processed the Council’s legislation that put Naize on paid leave. (THE ENTIRE CASE NO. WR-CV-109-14 CAN BE FOUND AT THE END OF THIS POST)
Benally and Damon also informed the attorney general that if he didn’t assign any tribal attorney to them that they wanted him to provide funding for legal attorneys for them and the other Council delegates that are not defendants in the Naize versus 12 council delegates and one employee.
The 12 delegates named in Naize’s TRO and civil complaint are: Alton Shepherd, LoRenzo Bates, Nelson BeGaye, Russell Begaye, Josh Lavar Butler, Lorenzo Curley, Jonathan Hale, Jonathan Nez, Leonard Pete, Danny Simpson, Leonard Tsosie and Dwight Witherspoon.
There are 24 delegates and the other 12 delegates that are named in Naize’s TRO and civil complaint are: Benally, Damon, Roscoe Smith, David Tom, George Apachito, Mel Begay, Kenneth Maryboy, Duane Tsinigine, Elmer P. Begay, Walter Phelps, and Edmund Yazzie.
Delegate Edmund Yazzie served as speaker pro temp during the Council’s debate and actions on legislation 0069-14, the removal of Naize as speaker, which was the Council amended to be the placing of Naize on paid leave.
According to a copy of the written letter from Benally and Damon, their request was to Navajo Nation Attorney General Harrison Tsosie. A tribal justice department stamp showed that it arrived at the department at about 5 p.m. on April 8, which was yesterday.
April 8 was also the day that a hearing was held before Window Rock District Court Judge Carol Perry on Naize’s request for a legal halt to the Council’s decision to place him on paid leave and to allow him to continue using the tribal government SUV assigned to him and living in the tribal housing assigned to the speaker.
April 4 was when the Council, after four hours of debate, voted 12 in favor, 0 opposed to put Naize on paid leave.
According to the Council’s debate, the paid leave was to allow Naize to focus his full attention on his 12 criminal charges of conspiracy to commit bribery and bribery that were filed against him by the Navajo Nation Special Prosecutors, who were hired to investigate and prosecute tribally elected officials who misused the tribal Finance Assistance Fund, which is more commonly known as the discretionary fund or slush fund.
Delegate Leonard Tsosie had recommended to Naize that he have his trial on the 12 criminal charges as soon as possible so that Naize and the Council would know if he was innocent or guilty.
Naize has repeatedly said that he would be “exonerated” of the 12 charges.
But back to the letter from Delegates Katherine Benally and Charles Damon II to Attorney General Harrison Tsosie to be their attorney.
Benally and Damon reminded Attorney General Tsosie that the tribal justice department had provided funding for then President Joe Shirley to defend himself against the tribal Special Prosecutors and that financial legal assistance from the attorney general’s office for Shirley continued even after Shirley was no longer president.
Today, I spoke with Attorney General Tsosie and he said that he had scheduled a meeting today with Benally and Damon and that they both failed to meet with him.
But he said that he would try to meet with them tomorrow, April 10.
The attorney general said that he wanted to explain to Benally and Damon that they were not named in any legal action involving Naize and the 12 delegates and so he couldn’t understand why they needed attorneys.
And according to a statement from Naize’s political appointee, ANSLEY L. CURLEY. which is part of Naize’s request for a TRO against the delegates and employee, Curley saw Delegates Katherine Benally, George Apachito, Roscoe Smith, Mel Begay, David Tom and Naize walk out of the Council meeting just before the Council voted on placing Naize on paid leave on April 4.
And after the April 4 Council meeting, I asked Benally why she walked out and she said that she refused to be part of a “coup.”
Attorney General Tsosie added that the tribal justice department which is headed by the attorney general, provided funding for Shirley but it was for Shirley to hire an attorney to defend himself against the Council’s decision to place him on paid leave.
In October 2009, the Council voted 48 in favor, 22 opposed, to place Shirley on paid leave while the special prosecutors investigated Shirley’s for alleged wrongdoing in tribal contracts with BCDS or Biochemical Decontamination Systems Manufacturing and OnSat.
BCDS Chief Executive Officer Hak Ghun used more than $1 million of a $2.2 million from the tribe for personal expenses. The tribal contracts were made between Ghun and the tribal Division of Economic Development, which was under the Executive Branch. Shirley headed the executive branch and was very supportive of the BCDS contract.
Ghun was never prosecuted by the tribe. But in August 2013, a federal court sentenced Ghun, 62, to federal prison for two years and day for tax evasion. Ghun was also ordered to pay $249,567 in restitution to the Internal Revenue Service. His tax evasion charge was related to the time he worked as BCDS CEO from 2005 to 2007.
The OnSat issue concerned possible overbilling for internet services to the Navajo Reservation’s 110 chapters and Headstart schools. Shirley was implicated in the special prosecutors’ investigation also because of his support for OnSat.
Attorney General Tsosie recalled today, April 9, that then Attorney General Louis Denetsosie also decided to provide funding to the Council so they could hire an attorney to defend their actions against Shirley.
Attorney General Tsosie, who was Denetsosie’s deputy attorney, emphasized that the legal conflict between Shirley and the Council involved two branches of the Navajo Nation government.
The Naïze versus 12 council delegates and one tribal employee legal conflict involves one branch, Tsosie explained.
And so he said there is no justification for the tribal justice department to legal represent Benally and Damon or for the tribal justice department to provide funding for Benally and Damon to hire an attorney.
Delegate Leonard Tsosie stated in an April 8 email, “This is an interesting request. This is a request from a group of Council delegates who chose to walk out of the lawful debate.
“If they had any right to representation to be secured by the Attorney General, they waived it by walking out,” Tsosie stated.
He added, “Their plot was to break a quorum and we know they texted each other to do so because they simultaneously got up to leave. They could argue that they they did not wish to be part of an unlawful proceeding, but they participated in the beginning part of the session.
“They even dared to tell us that they wanted an immediate vote and not to delay when they sensed that a two-third vote was not present. After the Council amended to a lesser penalty which requires only a majority vote, they walked out,” Tsosie recalled. “The properly constituted Council with a quorum made a decision to put Speaker Naize on administrative leave. That is the decision that needs to be defended.”
He added, “The two requesting delegates are on the wrong side of this issue and cannot ask the AG (attorney general) for funds or representation to support the wrong side.
“Further, their side of the issue is also being competently represented by Mr. Naize. The requesting delegates appear to be plotting to put the AG (attorney general) office in a legal quagmire by requesting it to support or represent both sides of the issue,” Tsosie explained.
He stated, “The AG (attorney general) should immediately deny their request.”
Window Rock District Court Judge Carol Perry ORDERED the first hearing on Case No. WR-CV-109-14 at 10 a.m. on April 8, 2014, at the Window Rock District Court, after she denied Naize’s request for a temporary restraining order against the 12 delegates and one employee on April 7, 2014, which is when Naize’s attorney, Brian Lewis of Greenberg Traurig LLC., filed the TRO and civil complaint. Greenberg Traurig is located in Denver, Colo.
Also on April 7, 2014, Attorney General Tsosie filed a motion for the court to DENY Naize’s TRO.
On April 8, 2014, Lewis, who is Naize’s attorney, responded by filing a legal CHALLENGE to Attorney General Tsosie request to deny the TRO.
And on April 8, 2014, Attorney General Tsosie filed a motion to DISMISS Naize’s TRO and civil complaint because Naize failed to follow proper legal procedures by ignoring the Navajo Nation Sovereign Immunity Act.
On April 8, 2014, Judge Perry ORDERED a second hearing at 9 a.m. on April 16, 2014. Perry also issued a brief account of the April 8 hearing and a more detailed ORDER to the attorneys of both parties in Case No. WR-CV-109-14.