Copyright © 1998 NLThomas
All Rights Reserved

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Writ of Mandamus - Filed Jan. 9, 1998

Cherokee Press Association
Friday, January 9, 1998

Copyright © 1998 CPA
All Rights Reserved

Filed
Jan. 9, 1998
Time: 10:20 AM
Cherokee Nation Judicial Appeals Tribunal

IN THE JUDICIAL APPEALS TRIBUNAL
OF THE CHEROKEE NATION

HAROLD J. DeMOSS, in his official
capacity as a Council Member of
the Cherokee Nation of Oklahoma

Plaintiff,

vs.    Case No. JAT 98-01

JOE BYRD, JENNIE BATTLES,
JAMIE HUMMINGBIRD, AND IRVIN ROCK,

Defendants.

WRIT OF MANDAMUS

COMES NOW Harold J. DeMoss, in and by his attorney of record Nathan H. Young, III, and moves this court for a Writ of Mandamus against the above named defendants. In support of this application, the Plaintiff alleges and states as follows:

VENUE AND JURISDICTION

1. This is an action in which original jurisdiction arises under the Constitution of the Cherokee Nation of Oklahoma.

2. All the acts complained of occurred within the boundary of the Cherokee Nation.

PARTIES

3. The Plaintiff is a duly elected and qualified Council Member of the Cherokee Nation of Oklahoma representing District 7 (the Will Rogers District).

4. The Defendant Joe Byrd is Principal Chief of the Cherokee Nation of Oklahoma.

5. The Defendant Jennie Battles is Secretary/Treasurer and Chief Financial Officer of the Cherokee Nation of Oklahoma.

6. The Defendant Jamie Hummingbird is Special Assistant to the Chief of Staff.

7. The Defendant Ervin Rock is the Human Resources Director of the Cherokee Nation of Oklahoma.

OPERATIVE FACTS

8. The Plaintiff is Chairman of the Executive & Finance Committee of the Tribal Council of the Cherokee Nation of Oklahoma.

9. On the 30th day of December, 1997, the Plaintiff submitted a request (see Exhibit “A”) for information concerning bonus payments to certain high ranking Cherokee officials.

10. These bonus payments are not authorized by law.

11. Furthermore, the Plaintiff of the Chairman of the Executive & Finance Committee is charged with monitoring the budget and finances of the Cherokee Nation.

12. The Plaintiff made his request concerning the “bonuses” as a council member.

13. This Court has previously ruled that information requested by a council member or any citizen is public information and subject to disclosure.

14. On January 2, 1998, Ervin Rock refused to provide the Plaintiff with the requested information alleging “privacy” and the need for employee permission. (See Exhibits “B” and "C".

15. The salaries and bonuses paid to these Cherokee officials come from Cherokee Nation funds. These funds are budgeted and authorized by the Cherokee Nation Tribal Council.

16. Defendant Rock’s refusal to give this information is a direct violation of this Court’s previous orders.

17. Furthermore, Title 28 CNCA Paragraph 4 mandates the Plaintiff to bring this action.

REMEDY

18. This Court issue instanter its pre-preemptive writ of mandamus directing the parties to appear before this honorable Court and provide immediately the information requested in Exhibit "A".

19. The Plaintiff believes that the defendants will attempt to defy or circumvent this Court’s order to avoid compliance and, therefore, requests this Court to exercise continuing jurisdiction in this matter to its conclusion.

20. Because the Defendants actions are oppressive, malicious and in bad faith and a violation of 28 CNCA Paragraph 4, the Defendants be ordered to pay Plaintiff’s attorney fee in a reasonable amount as set by the Court.

21. That this Court grant any other further relief it deems necessary and just.

HAROLD DeMOSS, Plaintiff

/S/
NATHAN H. YOUNG, III (CNB# 0070
Attorney for Plaintiff
239 West Keetoowah
Tahlequah, OK 74464
918-456-8900

ATTORNEY’S LIEN CLAIMED

EXHIBIT "A"

MEMORANDUM

To: Jamie Hummingbird, Special Assistant to the Chief of Staff

From: Harold DeMoss, Chairman, Executive & Finance Committee

Date: 12/30/97

Re: Request for Information

Please provide me with information concerning any bonuses or anything other than base salary paid to date for the following staff:

George Thomas
Ervin Rock
Jennie Battles
Rick Robinson
Bud Squirrel
Gary Stopp

______

EXHIBIT "B"
CHEROKEE NATION MEMORANDUM

TO: Jamie Hummingbird, Special Assistant to the Chief of Staff

FROM: Ervin Rock, Human Resources Director

SUBJECT: Request for Information, 12/30/97, Harold DeMoss

DATE: December 31, 1997

Cherokee Nation must ensure strict security of personal information for which we maintain custody. This applies to client information for services, health information, etc., as well as employee information. Such limits to accessibility of information are in place to limit Cherokee Nation’s exposure to civil liability. Such liability most often arises in the publication of personal information about an employee beyond the scope of individuals with a need to know.

In efforts to maintain compliance with privacy rights of individuals, it is policy that access to personnel information be limited. Human Resources maintains a list of individuals that may access personnel information and the limits to their access. Supervisor’s may access information on their staff, only.

Further, it is Cherokee Nation policy that any requests for salary verification (which would include bonuses that ultimately becomes salary) that the request be on letterhead and be accompanied by the employee’s or former employee’s authorization and signature giving permission to release the information.

Also of significance concerning this request, the individuals are under an employment agreement with Cherokee Nation. The agreement provides for no access to employee information absent a subpoena from a court of competent jurisdiction.

It is our intention to aid the Principal Chief’s efforts to provide information to the Legislative Branch in furtherance of their duties. It is also our duty to identify and provide recommendations on issues that could result in a negative impact of the Cherokee Nation as a whole. We understand that the status of information provided under the current process is altered and becomes a matter of public record, which could expose Cherokee Nation.

Attached is an “EXPRESS PERMISSION FORM” that can be utilized to release the requested information. Human Resources will anticipate return of the completed forms before the information is released.

Thank you.

_________________

EXHIBIT "C"

CHEROKEE NATION MEMORANDUM

TO: Harold DeMoss, Tribal Council Member, Will Rogers District

FROM: Jamie Hummingbird, Special Assistant to the Chief of Staff

DATE: 2 January 1998

SUBJECT: Information Request

I forwarded your request for employee bonus information to Ervin Rock, Director of Human Resources, for his review and action. I received the attached response today.

The response basically states that this is confidential employee information and can not be released without the express written consent of the parties involved. To do so without the parties consent could be a violation of their privacy. As you may be aware, the Cherokee Nation must take all precautionary measures to ensure that no laws are broken during the course of our duties.

As a part of his response, Mr. Rock also included a release form that, if signed, would allow you access to the information you requested. I would be happy to forward any forms you obtain to Human Resources and then provide you with any information I may receive.

Should you have any questions, please contact me at ext. 2733.