Navajo AG determines recent Council legislation violated Navajo law

WINDOW ROCK, Ariz. - Navajo Nation Attorney General Louis Denetsosie has determined that legislation approved by the Navajo Nation Council last month to give delegates $378,000 for "attorney fee and expenses" violates nine laws and the voter-approved Line Item Veto Initiative.

Denetsosie found that failing to send the legislation - CN-47-10 - to Navajo Nation President Joe Shirley Jr., for his consideration, signature or veto, violated:

• Title 2 Sections 164(A) and (B);

• Title 2 Sec. 165(B);

• Title 2 Sec. 221;

• Title 2 Sections 1005(C)(10) (11) and (12);

• Title 12 Sections 800 and 840; and

• The Line Item Veto Initiative approved by voters on Dec. 15, 2009.

"The failure of the Navajo Nation Council to forward CN-47-10 to [President Shirley] for review violated those Navajo Nation laws that, by statute and initiative, specifically require presidential review," Denetsosie wrote in a three-page legal opinion issued Dec. 8.

After the legislation passed, it was certified by Speaker Lawrence T. Morgan, but was never sent to the President's office for consideration as all legislation must. Because the legislation is now subject to a presidential line-item veto, it cannot be overridden by the Council in the event that President Shirley were to veto it.

Dominic Beyal, director of the Navajo Nation Office of Management and Budget (OMB) stated that the allocation of money has not been carried out because of the legal question, which he said is now clear. Although the legislation did not specify how the money would be used, it is believed it was intended to pay lawyers to assist Council delegates with their defense related to the Special Prosecutor's investigation of the misuse of discretionary funds.

In his analysis, Denetsosie found the $378,000 was originally allocated as budget line items in the Personnel General Fund of the Council's budget. Legislation CN-47-10 would amend the original budget line item from the Personnel General Fund to attorney fees and expenses.

Denetsosie found that the legislation, passed Nov. 23, waived an intentionally-restrictive finance law in order to get around a 2002 budget moratorium designed to prevent spending from the General Funds Personnel Accounts Savings. Because the 2002 Council Resolution CAP-46-02 prohibits such reallocations from the Personnel General Fund, he stated, the Council waived the eight-year-old law, also known as the Classification/Pay Plan, to allow the reallocation from the Personnel General Fund.

However, the law's language states that the Classification/Pay Plan approved "a moratorium on any future proposed Budget Reallocations from General Funds Personnel Accounts Savings, effective immediately."

The Classification/Pay Plan also restricts all branches General Funds Personnel Accounts to be used solely for "administering and maintaining the Classification and Pay Plans by the Department of Personnel Management."

Denetsosie noted that the Classification/Pay Plan is a policy statement, and that the waiver of the Classification/Pay Plan is a policy action. Title 2 Sec. 165(B) states that amendments to existing law are subject to presidential veto and that the current legislation attempted to amend the Classification/Pay Plan by waiver and, is consequently subject to presidential review, Denetsosie said. That review did not happen because the Council bypassed the President.

Denetsosie noted that the Classification/Pay Plan:

• Explicitly and clearly prohibits the Personnel General Fund from being reallocated to other functions and purposes, and

• Restricts the Personnel General Fund solely to administering and maintaining the Classification and Pay Plans by the Department of Personnel Management.

"CN-47-10 could not have been lawfully passed by the Council with (the Classification/Pay Plan) standing as is," Denetsosie stated. "Therefore, the Council waived [the Classification/Pay Plan] in order to proceed with its attempt to reallocate $378,000 ... to a different purpose."

In a Nov. 23 memorandum to the Council, OMB senior Budget Analyst Nanette Francisco warned that the Classification/Pay Plan places a moratorium on any proposed budget reallocation from the general funds personnel accounts.

Denetsosie noted that Title 12 Sec. 800 defines fiscal decisions by the government as "important policy decisions" that implement the government's fiduciary duty "to manage finances wisely, and to plan for the adequate funding of services desired by the Navajo People."

Denetsosie further determined that the line item veto initiative empowers President Shirley to veto budget line items in Council budget actions like this one and that should CN-47-10 be vetoed, the Council "has no lawful authority to attempt to override the President's veto."

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