Navajo Times By Bill Donovan Special to the Times WINDOW ROCK, Friday, March 18, 2011: Shirley refusing to release OnSat, BCDS documents. Former President Joe Shirley Jr. is suing the Navajo Nation’s special prosecutor to prevent his access to computer hard drives that might reveal wrongdoing by Shirley and members of his administration. In the last weeks of the Shirley administration, lawyers for Shirley filed a suit – so far unnoticed by the local media – that would hinder Special Prosecutor Alan Balaran’s probe of two costly business deals the former president had backed. But Shirley is gone now, replaced by his estranged former vice president, Ben Shelly. And in a Feb. 22 court filing, Balaran wondered why the tribe is still spending tens of thousands of dollars to “undermine” his investigation.
Balaran raised the question in a procedural motion. The lawsuit was initiated by the Shirley administration Nov. 29, 2010, after Balaran “demanded” that his office “immediately turn over hard drives that were previously searched for responsive documents.”
The lawsuit referred to a document that Balaran presented, demanding all responsive documents, both paper and electronic, within the next few days or he would instruct the tribe’s chief prosecutor to file obstruction charges against anyone who did not comply.
The president’s office refused to comply with the request, claiming that some of the documents that Balaran was requesting were protected by attorney-client privilege. It called Balaran’s argument that there is no privilege “without merit.”
“Unless the special prosecutor has specific information that a particular document or documents shows evidence of a crime, he cannot argue that the privilege should not apply,” the suit states.
The lawsuit goes on to say that some of the documents reflect the deliberations that went on within the president’s office and need to be protected “to ensure that the president reaches the best, most informed decision and makes decisions that promote hózhó.”
According to court records, the tribe has spent at least $83,000 over the past year to push the case. It used the money to hire the Phoenix law firm of Gallagher and Kennedy, and former U.S. Attorney Paul Charlton, who is representing Shirley and President Shelly.
“The special prosecutor questions why the Office of the Attorney General would retain G&K and pay them $83,203.74 to undermine the special prosecutor’s ability to carry out the very tasks assigned to him by the Special Division of the District Court,” Balaran said in one of his responses to the lawsuit.
The idea of hiring a special prosecutor originated in the Navajo Nation Council, but attitudes there changed when Balaran’s mandate was expanded to include an investigation of discretionary fund spending, which so far has resulted in criminal charges against 78 people including Shelly. (His case and two others have been settled or dismissed. The rest are still headed for trial.)
Meanwhile, however, the original probe into business dealings involving the president’s office percolated along out of the spotlight.
Shirley administration officials including Chief of Staff Pat Sandoval said publicly Shirley had no fear of an investigation because he had done no wrong.
At the same time these statements were being made, however, it now appears that the president’s office was actively trying to keep Balaran from looking into the OnSat and BCDS business. Both cost the tribe millions.
Balaran, in documents he filed with the Window Rock District Court, noted that there have been three studies – one on the tribe’s e-rate program, another on BCDS and a third on OnSat – that outlined possible legal violations.
“Each of these reports implicated then President Joe Shirley Jr., among others, as having engaged in malfeasant conduct, unethical behavior and possibly criminal actions,” Balaran said in court documents.
Balaran viewed the hiring of Charlton and G&K as an “attempt to shield the president from the investigatory efforts of the special prosecutor into OnSat and BCDS.”
While the investigation into the discretionary funds case has resulted in dozens of people being charged criminally, no charges have been filed as yet by Balaran in connection with the OnSat and BCDS investigations. He has also not spoken publicly on the status of these investigations or when charges may be filed in these cases.
Balaran’s court motions indicate that the attorney general’s office is part of the group trying to thwart his attempts to investigate matter related to the Shirley administration.
Just last month, the Navajo Nation Supreme Court issued a ruling in which justices commented on the huge task ahead for Balaran. In that ruling, which denied a defense motion to dismiss the slush fund cases, the court suggested that Balaran could seek help from the tribe’s Department of Justice and the prosecutor’s office, which is within the Justice Department.
So far, nether the prosecutor’s office or the attorney general’s office has announced plans to help the special prosecutor.
Balaran is asking the district court not to admit Charlton as Shirley’s attorney on grounds that it would violate a Navajo Nation Bar Association rule that limits non-members to participating in one case per year in tribal courts.
Charlton participated in at least two other cases before the Navajo courts in 2010, both times representing Shirley, Balaran said.
Charlton has filed a response asking the court to interpret the bar association rule as allowing non-member attorneys one case per calendar year, which would allow him to represent Shirley in the documents case.