Questions continue about Cherokee council raises
Editor’s note: Cherokee Tribal Police would not allow Smoky Mountain News Staff Writer Holly Kays entry into the Cherokee Tribal Council chambers to report on this meeting, which took place on Dec. 11. This story was written after watching a DVD recording of the meeting.
It’s been two months since Cherokee Tribal Council members voted to increase their salaries by $10,800 — and receive backpay for the years when the raises supposedly should have gone into effect — but that hasn’t been enough time for the public reaction to the increases, which many believe to be illegal, to cool down.
However, it has been long enough for some councilmembers who at first seemed in confident support of the raises to become a bit more hesitant.
“I haven’t even cashed the check. It’s in my pocketbook,” said Chairwoman Terri Henry, who had defended the rationale behind the increases, at the Dec. 11 council meeting. “I don’t know what to do with it.”
“My check was for $22,000 backpay,” said Councilmember Adam Wachacha, who had voted for the budget containing the raises and against a pair of protests to them. “Honestly I didn’t realize that backpay … all I thought I was voting on was $80,600 [salary]. I’m not trying to lie to nobody.”
The discussion took up a big chunk of the December council meeting, which lasted until the stars came out over Cherokee. The conversation began with a resolution brought forth by Soloman “Slick” Saunooke, a former councilman.
If it’s broke, why keep it?
In 2004, an ordinance of Saunooke’s was adopted with the aim of keeping council raises in check. The legislation, Ordinance 352, states that raises for council members should be on level with those given to tribal employees. It also gave a nod to the section in Cherokee’s Charter and Governing Document that states any raises council votes for itself can’t take effect until the council elected by the next election is seated.
But this month, Saunooke sought to repeal his 2004 ordinance, because, he said, “it doesn’t work.”
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“I need to know why Ordinance No. 352 is not working on council pay increase,” he said in the written comments he displayed at the meeting. “In 2004, Ordinance No. 352 became law. In 2007 council gave their self a $10,000.00 pay increase with Resolution No. 107.”
An ordinance is more powerful than a resolution, so the 2004 ordinance should have trumped the 2007 resolution, not visa versa, Saunooke said. And this year, another $10,000 raise was given, this time including backpay, without either a resolution or an ordinance passing. The funds, totaling about $1 million, were simply included in the budget.
Saunooke’s resolution ended up being tabled, but it elicited a long, circular discussion between councilmembers, tribal members and financial and legal staff.
Raises for seats
During that discussion, several councilmembers divulged the amount of backpay they were given. Though the backpay was given out of the tribal budget, the amounts of the checks written to individual councilmembers are private, Director of Finance and Management Cory Blankenship said last month.
Henry and Wachacha both said they received checks for $22,000, while Teresa McCoy, who had reported her amount at last month’s meeting, repeated that hers was for $19,000. Albert Rose said he hasn’t even looked at his check — “I hid it in a basket,” he said — and Brandon Jones, a first-term councilmember, said he only recently opened his check to discover $10,637 in backpay.
According to McCoy, that amount casts doubt on Blankenship’s previous explanation that a yearly rate of 2 percent — the average raise given to tribal employees from 2007 to 2013 — was applied to each councilmember’s salary to arrive at the backpay amount.
“For him to get a $10,000 backpay check plus a $10,800 raise, what percentage did you use for the three gentlemen who have only been here for a year?” McCoy asked Blankenship.
The answer, Blankenship said, has to do with the distinction between a salary given to a seat versus a salary given to an individual.
“I think part of the confusion might be that people are talking about these raises as if you individually are getting pay raises like I would as an employee, because my paycheck is to me as an employee,” Hannah Smith, assistant attorney general, had explained earlier in the meeting. “The law assigns increases and salaries to the seat, not the people in them, but to the seats.”
Which goes along with the explanation Principal Chief Michell Hicks gave last month as to why the salary increases are legal even though the Charter and Governing Document states that council raises can’t go into effect until the next council is seated. These raises should have been given incrementally all along, ever since Saunooke’s ordinance was passed in 2004. But they weren’t — though the sitting council did vote itself a $10,000 raise in 2007 — so this year’s budget is adjusting for raises that should have occurred all along.
The extra money isn’t a raise, Hicks said last month; it’s a pay adjustment.
“The pay stayed stagnant and the pay adjustment is what happened recently,” Smith said. “No one individual was given a raise. It’s just the value of the chair was adjusted.”
If there are issues with the outcome of that mode of implementation, Blankenship said, then maybe that’s something that council should address going forward.
“If you’re a rookie Tribal Council member and this is the first time that you’ve been elected, do you start at a base pay that is lower than the veteran council members, and your reelection would then stipulate an increase in that pay based on this formula?” Blankenship posed. “Those things need to be hashed out in legislation.”
McCoy believes that reasoning is a bit murky.
“I’m still not clear on some things because in one sentence we’re treated like employees, and we’re not, and in the next sentence we’re councilmembers and we don’t have to do what employees do,” McCoy said.
“Those are decisions, in my opinion, that are being made arbitrarily by persons who wanted this increase so bad that three times in 13 months the issue of 10,000 more dollars for councilmembers came up,” she continued.
Questions about the 2007 increase
The proposal to raise council salaries by $10,000 came to a vote on Oct. 6, 2013, in the last session before the inauguration of new members following the 2013 elections. It was voted down both then and later in the same month, on Oct. 22, 2013.
But McCoy doesn’t just have an issue with the pay increase from $70,000 to $80,000. She believes that council should, in fact, be making $60,000.
That’s an issue first brought up at this month’s council by Becky Walker, a tribal member from the Wolfetown.
“I’m glad that you brought up what happened in 2007, because I want to talk about that,” she said.
In an explanation not disputed by anyone present, Walker said that the video of the council session when the raises were passed — Sept. 24, 2007 — showed that the raises, not on the agenda at first, were brought in at the very end of the day by the acting attorney general. When council members questioned the attorney about how the raises would square with the 2004 ordinance, a straight legal answer was not forthcoming, Walker said.
“At that time, that attorney couldn’t figure it out,” Walker said. “He didn’t know what to do. He didn’t know whether to look at a percentage or a dollar amount so he didn’t even use the law.”
Instead, Walker said, he based the rationale for giving the raises on an assessment by an outside contractor who said that, based on their job duties, councilmembers should receive $10,000 more.
“The pay increase should have never went from $60,000 to $70,000, so all of these calculations that are based on $70,000 are also a violation because that pay increase in 2007 should have never happened,” Walker said.
Legislation that needs more work
Another key question, Walker said, is why councilmembers get backpay for increases they should have received but didn’t in the lean years following the recession when tribal employees don’t get the same.
“I don’t know any law that we follow retro,” she said. “And as for those tribal employees, I would say there were years when they were appropriated pay increases they didn’t get.”
Saunooke had made a similar point earlier in the meeting and was greeted by applause from the audience.
But many councilmembers remained adamant that they hadn’t broken any law.
“I don’t feel like we broke the law, because in 2004 when this [ordinance] was passed —— you’ve got the sheet here, most of us voted for that — we would get the same as an employee but then the cost containment went into effect [during the recession] and we didn’t get anything,” said Tommye Saunooke, councilmember from Painttown.
Some, though, while maintaining they hadn’t broken the law admitted there could be improvements to how it was handled.
“This was a compliance with the law,” said Perry Shell, councilmember from Big Cove. “It wasn’t a violation of the law, but I think there needs to be a lot of work on this.”
“I’ve had 25 different explanations on this thing, and I have to laugh at it,” said Brandon Jones, councilmember from Snowbird. “Yeah, there may not have been a violation of some sort of law, the charter, the code, but there was a violation of the people’s trust, and that’s the issue I’ve had with this from the very beginning.”
The audience met Jones’ comments with applause.
The discussion likely could have gone on much longer — and probably will — but Shell moved to table the ordinance so that council could work on the issue more, a move council agreed to.
“I would never vote to violate this oath of office, but I think we need to table this and work on it, because how far do we go?” Shell said. “We need to set limits on it and do it within what is a reasonable amount for persons acting in a role as a tribal council member and do it based on work done.”