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Wednesday, 20 December 2017 14:28

Fired tribal employees receive $100K settlement

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Seven tribal employees who were fired or demoted when former Principal Chief Patrick Lambert took office in 2015 have received a combined $698,000 in settlement payouts following a November agreement that Lambert made public this week.

The news has caused a stir on the Qualla Boundary, with many questioning the legality of payouts that were not approved by Tribal Council — as expressly required in the initial version of the agreement — and that outstrip the amount covered by the tribe’s liability insurance.

Lambert said that the agreement is “clearly in violation of Tribal Law and in violation of all the normal procedures and safeguards known,” and that it was a case of Principal Chief Richard Sneed wanting “his friends to get a settlement and have their legal expenses paid.”

Sneed, meanwhile, released a statement saying that the settlement was completely legal and aimed at promoting healing within the tribe after a politically divisive year.

“I determined that in view of the recent upheaval in tribal government, the best approach was to promote unity and healing within the Tribe and to settle the lawsuit,” he said. “The settlement complies with the Tribe’s fiscal management policies and does not require the appropriation of any additional funding from Tribal Council. Nothing in the settlement constitutes an admission of wrongdoing and this settlement resolves all of these claims forever.”

 

The legal backstory

The case in question was filed on Dec. 2, 2015, nearly two months after Brandi Cooper, Mollie Grant, Mark Kephart, Jason Lambert, Donna Owl, Kimberly Peone and Cory Blankenship were let go from their high-level positions with the tribe. All seven received a letter stating that their jobs were no longer necessary due to a reorganization of tribal departments, with Peone, Kephart, Jason Lambert and Blankenship being terminated from their jobs and Cooper, Grant and Owl transferred to much lower-paying positions.

During an Oct. 8, 2015, meeting at the Cherokee Councilhouse three days after the letters were delivered, the fired employees made their case — sometimes tearfully — to Tribal Council and to the public, saying that they’d been let go as a form of political payback and that the firings and demotions were illegal.

Lambert, meanwhile, said that the people who had been terminated served in politically appointed positions that would typically end with the election of a new administration and that the people who were transferred to other positions were well aware of what they’d done to deserve demotion.

The lawsuit charges Lambert both individually and in his official capacity as principal chief, claiming the firings and demotions violated the Indian Civil Rights Act, the Cherokee Code and the tribe’s Charter and Governing Document. It charges Lambert with slander and defamation for making “false and defamatory statements” about the plaintiffs in public and states that he intentionally inflicted emotional distress on the plaintiffs.

Lambert filed a motion to dismiss the charges, arguing that he was protected from suit in his official capacity by sovereign immunity and that there is no basis for a claim against him in his individual capacity.

An April 2016 ruling in the Cherokee Tribal Court granted some of Lambert’s motions to dismiss and denied others. Both Lambert and the plaintiffs appealed portions of the ruling to the Cherokee Supreme Court, with Blankenship dismissing his claims in the month before the April ruling and refiling them in March 2017.

In the midst of these legal wranglings, Cherokee was undergoing a historic political upheaval that ended with the controversial removal of Lambert from office by impeachment on May 25. Vice Chief Richard Sneed was then sworn in to take Lambert’s place as principal chief — meaning that Sneed’s office was now the one being sued in the case.

The Cherokee Supreme Court heard what a Nov. 6 settlement agreement refers to as “lengthy oral arguments,” but did not ultimately rule on the case. Instead, the parties met to work out a mediated settlement.

An agreement signed Oct. 9 laid out terms by which the seven plaintiffs would receive a total of $525,000 between them — $75,000 apiece. The agreement states that each party will pay his or her own attorney fees and costs and that the terms will not become effective until the Cherokee Tribal Council approves them. However, the agreement states, the defendant — the tribe — will pay the $3,500 mediator’s fee.

“The Executive Branch will present this matter to Tribal Council during the month of October 2017,” the agreement states. “This agreement shall be of no force or effect unless and until so approved by the Tribal Council by the conclusion of the first Tribal Council meeting in November 2017.”

The agreement is signed by each of the seven plaintiffs — or their representatives — as well as by Attorney General Mike McConnell, Chief of Staff Paxton Myers on behalf of Principal Chief Richard Sneed and the attorneys for each side.

The November Tribal Council meeting came and went without the body approving the settlement.

The week after the meeting, however, a new settlement agreement with terms even more favorable to the plaintiffs was signed. The Nov. 6 agreement states that the plaintiffs should receive a total $698,000 — just under $100,000 apiece, about 33 percent more than the original agreement — and does not require approval by Tribal Council.  However, it still requires the parties to pay their own legal fees and states that the tribe will pay the mediator.

 

Accusations of dishonesty

Councilmember Lisa Taylor, of Painttown, asked Sneed to address the issue during a Dec. 7 Tribal Council meeting.

“I’d like you to address something that I’ve been hearing in the community. I hope it is a rumor, and I’d just like you to squelch it publicly,” she said. “I’ve been getting phone calls that six or seven employees from the last administration paid out $75,000 for a settlement, and I think the people need to know.”

In response, Sneed acknowledged that a settlement had been made in the lawsuit and said that it was paid from a line item that the tribe has budgeted for lawsuits. The tribe has liability insurance, he said, and the company had agreed to pay a portion of the settlement with the tribe footing the rest of the bill. However, he told Taylor, he couldn’t say anything more specific than that.

“There’s a nondisclosure agreement, so I’m not supposed to talk about the details of it,” he said.

“I thought they lost in the lower court,” Taylor said later in the discussion.

“No ma’am,” Sneed said.

Lambert was in attendance at that meeting, and before the meeting ended that day he made his way to the podium to express his opinion of Sneed’s comments.

“What was stated here at the podium is a direct lie,” Lambert said. “Those people did lose their case. Because of the tribe not having waived sovereign immunity, they lost their case. They appealed that to the Supreme Court.”

At the point the case was settled, Lambert said, the tribe was winning its appeal. Also a lie, Lambert said in comments posted on Facebook Sunday, Dec. 17, was Sneed’s reference to the existence of a nondisclosure agreement.

“It’s simply a ploy and straight-out lie for Richie (Sneed) or anyone else to say this agreement is confidential and it can’t be discussed,” Lambert wrote.

In fact, the Nov. 6 agreement, which Lambert also posted, expressly states that the agreement is not confidential and is subject to public records laws.

“There is no confidentiality agreement with respect to the terms of this Agreement and Plaintiffs acknowledge that this Agreement may be subject to disclosure pursuant to Chapter 132 (Public Records) of the Cherokee Code. However, the negotiations that occurred during the mediated settlement conference shall remain confidential,” section five of the document reads.

Lambert also alleged that the payout itself was unnecessary and negotiating a settlement above what is covered by insurance is illegal.

“Richie (Sneed) decided instead of allowing the court case to proceed forward through the Supreme Court, where it is certain they would have upheld the decision of dismissal of several claims and would have ruled on behalf of the Tribe in the other claims and the Tribe would have won again, Richie said NO we (we meaning the Tribe) should pay them — essentially give his friends a pocketful of money even though they were losing their case,” Lambert wrote.

The insurance company limited its payments for settlement at $180,000, Lambert wrote, far short of the total $698,000 settlement. Section 1-2(g)(3) of the Cherokee Code states that recovery for tort claims against the tribe is “not to exceed the amount of liability coverage maintained by the tribe.”

“The law was violated by paying any of this settlement out of tribal funds,” he wrote.

The morning after Lambert’s post, which included the settlement documents and his commentary on them, Sneed posted a link to his response, displayed on The Cherokee One Feather site under the heading “Principal Chief’s Report for December 2017.”

The first portion of the article dealt with the settlement issue, including a brief recap of the case and mediation followed by two paragraphs expressing Sneed’s desire to promote healing within the tribe after the impeachment turmoil and the high priority he places on treating tribal employees with respect.

“I think those who use their talents, experience and education to benefit the Tribe are one of our most valuable resources,” Sneed wrote. “Our Tribe must work to have unity and to resist the continuing allegations of wrongdoing by those who themselves have jeopardized our Tribe through misconduct. During this season of hope and joy, we should all join together to work for the betterment of our Tribe through good work, not discontent.”

However, Sneed’s statement did not directly address all of the issues Lambert brought up, such as the lack of a confidentiality agreement, the legality of using tribal money for settlement payments or revision of the original $525,000 agreement to a much higher $698,000.

The Smoky Mountain News reached out to Sneed for an interview and was referred to the posted statement. Sneed did not respond to a reply stating that the paper had further questions after reading the statement.

The paper sent a follow-up email listing questions such as the reason for increasing the settlement payout between October and November, explanation of Sneed’s statement that a nondisclosure agreement prevented him from discussing the settlement, the amount of the $698,000 to be paid by the insurance company and the reason the agreement was not presented to Tribal Council in October. As of press time, no response had been received.

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