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Tribal Council removes alcohol commissioner

In a split decision, the Cherokee Tribal Council voted Dec. 7 to remove a member of the Tribal Alcoholic Beverage Control Commission who had been appointed to the board during the Patrick Lambert administration.

A.J. Bird was appointed to the board on Feb. 4, 2016, and elected chairman one week later. However, on Nov. 4, 2016, the alcohol board voted to remove him as chairman and elected Pepper Taylor to the office instead. Bird was eventually suspended from the board on Nov. 7, and its other members later submitted a resolution to Tribal Council asking that Bird be removed from the body completely.

“He was detrimental to the board,” Taylor told Tribal Council when presenting the resolution.

The allegations against Bird are numerous. The resolution, signed by the other four ABC Commission members, says that Bird expanded the scope of a forensic audit to an amount that cost nearly $50,000 more than what the ABC Commission had approved, refused to share the results of the audit with other commission members, said he had information about somebody delivering alcohol to the casino without ABC Commission approval but refused to share that information with the commission, and came to fewer than half of the board meetings since his 2016 removal as chairman, among other allegations.


Weighing the allegations

The resolution to remove Bird was the last item that Tribal Council heard during its Dec. 7 meeting, but Bird addressed the body that morning to request that the vote be tabled — or at least allotted a substantial amount of time for both sides to be heard.

“Have someone conduct an investigation before these allegations are made public,” he asked Tribal Council.

“Generally the person who submits it would request that. That’s how it’s always been done,” replied Vice Chairman David Wolfe, of Yellowhill.

“Thank you for the consideration,” Bird said. “I know that time is of the essence today, but I would request about two hours to go over it if this is heard today. It will take me that long to refute the allegations made against me.”

However, the vote went forward as planned, and Bird was ultimately given only five minutes to defend himself against allegations that took longer than that to be read into the record.

“I asked this morning for a respectable time, at least an hour and a half, two hours to do so,” Bird said when his time came to speak. “I’m prepared right now to refute every allegation made to Tribal Council in this legislation. My question is, are they prepared? Do they have evidence to prove to you beyond the shadow of a doubt that there’s cause for removal?”

Opinion on the validity of charges was split. Some councilmembers were forthright in saying that they seemed to be both credible and serious.

“I’m sure the board didn’t just come in and say, ‘Let’s get rid of A.J.,’” said Councilmember Albert Rose, of Birdtown. “There’s reasons for it, and it’s right here. This is business. It ain’t personal.”

Councilmember Boyd Owle, of Birdtown, was concerned by the accusation regarding missing meetings. A former member of the golf board, he said he was well aware of the importance of meeting attendance and didn’t see a reason for a person to be on a board if he didn’t attend meetings — especially a board such as the ABC Commission, whose members are paid a salary.

“You have to admit, attending meetings is important,” Owle said. “I’m not against A.J. or for him. I’m just relating to how our (golf) board operated. If you don’t attend — and getting paid for it is the next thing. We didn’t get paid at all. But we attended.”

ABC Commission member Brenda Norville also spoke to Council, expressing her reasons for signing the resolution to remove Bird.

“It was brought up that he was aware of circumstances of alcohol being delivered in the casino and not going through our warehouse,” Norville said. “That is a violation of the law. It’s just plain and simple. And that’s why my name went on that resolution. I felt like I needed to get up and speak on that whereas, because that’s proven.”

Some councilmembers, meanwhile, had questions about the allegations and whether they warrant removal.

Councilmember Lisa Taylor, of Painttown, pointed out that the law governing ABC Commission operations doesn’t say anything about commissioners’ attendance at meetings, bringing up the question of whether poor attendance could be deemed a cause for removal.

“The meetings are just the tip of the iceberg, if you read the rest of the allegations,” said Pepper Taylor.

“I’m just trying to be fair too,” replied Lisa Taylor. “It’s not on me to decide. We have to be fair to both sides.”

Councilmember Richard French, of Big Cove, questioned the charge about expanding the scope of the forensic audit.

“Something like that, does that require that he have the full authority of the commission to do something like that? Is it in writing that he has to?” he asked.

“Right now you’re delving into it and asking questions,” Pepper Taylor replied. “That’s what due process is for.”


Debating due process

After that exchange, Tribal Council prepared to vote on setting a hearing date for the issue, but Legislative Counsel Carolyn West raised her hand to deliver some comments before the vote was held.

“When a government affords due process to someone, it’s because you’re getting ready to take life, liberty or property,” she said. “My opinion is he doesn’t have a property right. This is an appointment. This isn’t his personal property. This isn’t his real property. This is an appointed position. Sure, you can give him notice, which he’s had. He’s here. You can give him an opportunity to defend himself, which is in essence due process, but to label an appointment a property right that an individual has is not appropriate.”

“I think missing meetings and stuff, that’s enough for me to move to pass,” Owle said when West finished speaking.

“I still think he has the right to explain why he was missing meetings,” replied Lisa Taylor. “Do you just want to remove somebody for missing and not know the reason?”

“I really didn’t want to get into the hearing phase of it, but we have a question on the move,” said Chairman Adam Wachacha.

Before the vote, however, Tribal Council heard from Bird for his allotted five minutes, from Norville — and from former Principal Chief Patrick Lambert.

Lambert took issue with West’s definition of due process, stating that there was precedent for board members to be granted a hearing before being removed and noting that Bird’s presence at the meeting didn’t necessarily mean that he’d been served proper notice.

“Merely showing up on the agenda and catching word to be here at a certain time is not due process,” he said. “That’s not proper service or the ability to properly refute.”

Five minutes is certainly not enough time to defend against the allegations, Lambert said, and as to West’s assertion that due process is not required in this case, Lambert pointed out that the law states that board members can be removed only “for cause.”

“Cause dictates due process,” he said.

Lambert also took issue with the fact that, while his name was included on the resolution, he was not served any notice of the upcoming vote. The resolution states that Bird expanded the scope of the forensic audit “at the direction of Principal Chief Patrick Lambert.”

“If someone’s going to accuse me of something, they better be prepared to back it up and prove that it’s true,” he said.

Wolfe, meanwhile, said that he believes Bird’s due process should have been before the ABC commission, since they’re they ones accusing him.

“I think his due process should be with the board,” Wolfe said. “They’re the ones accusing him. Evidently they have enough. There’s three pages here that they felt that they have enough to remove him or at least present a resolution with cause.”

Other councilmembers said that the due process would come after the vote, during the protest process. Tribal law allows “interested parties” to enter a protest of any decision made by Tribal Council requesting a rehearing or other remedy. However, passage of the resolution would remove Bird effective immediately, whether or not the results of any future hearing later restored him to the position.

“Part of the due process with the resolution is if it’s passed, they have an opportunity to protest the resolution, and there is a hearing,” Wachacha said earlier in the discussion.

In the past, Tribal Council has not always granted hearings requested in protest resolutions. Multiple times in recent years, the body has dealt with protest resolutions by reading the protest cover letter into the record and then voting on whether or not to hold a hearing. In one notable example, then-Chairman Bill Taylor refused to even allow a resolution to be read into the record that was attached to a March protest letter asking that the decision to impeach Lambert be rescinded. Councilmembers then voted 8-4 to deny the protest without a hearing being held.

During the December meeting, the weighted vote on Bird’s removal came in with 61 votes in favor of removing him, 33 in favor of tabling the decision and six absent. Councilmembers Tom Wahnetah, of Yellowhill; Bucky Brown, of Snowbird, Perry Shell, of Big Cove, French and Taylor voted to table the decision. Chairman Adam Wachacha, of Snowbird; Vice Chairman David Wolfe, of Yellowhill; and Councilmembers Jeremy Wilson, of Wolfetown; Councilmember Bo Crowe, of Wolfetown, Rose and Owle voted to pass it. Councilmember Tommye Saunooke, of Painttown, was absent.

Bird maintains that he’s done nothing wrong and can refute every allegation against him. He has already filed a protest of the decision and is waiting to find out whether it will be heard. He is also considering filing a lawsuit.

“Technically Tribal Council has done nothing more yesterday than remove me based off of rumor, hearsay, because there’s no evidence,” he said.

Tribal Council will likely vote on Bird’s protest resolution during its January meeting.

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