Tag Archives: Judge Carol Perry

9/27/2011 Gallup Independent: Prosecutor's documents protected – Navajo court keeps restraining order

9/27/2011 Gallup Independent: Prosecutor’s documents protected – Navajo court keeps restraining order  By Kathy Helms, Dine Bureau:  WINDOW ROCK – A temporary restraining order will remain in place to protect Navajo Nation financial documents while Special Prosecutor Alan Balaran and Navajo Department of Justice work on a plan to ensure documents are preserved, District Court Judge Carol Perry ruled Monday.

Perry granted a temporary restraining order Friday at the request of Balaran pending Monday’s hearing on a preliminary injunction and request for the appointment of a special master to protect the “lifeblood” of the Navajo Nation housed within Administration Building One.

Balaran became concerned after seeing a Sept. 15 press release from the Office of the President/Vice President which stated that a team of 50 individuals would be working every day for three days to retrieve documents, which would be scanned and then destroyed because black mold allegedly had been found inside the building.

Balaran pointed out that according to the press release, the decision had been made to destroy documents even though an assessment of the contamination wasn’t expected to be delivered until the following day, and there was no mention of mold – black, blue or otherwise.

Navajo Department of Justice attorney Paul Spruhan said that in filing the ex parte motion, Balaran had acted on incomplete information without bothering to call the Department of Justice or members of the Incident Management Team. He also laid part of the blame on the press release from the president’s office.

“Apparently there was a press release – mind you, not an order, not an executive order, not an administrative order – that suggested falsely, and unfortunately, that this was how this situation was going to be handled; that these documents were going to be taken out and scanned and destroyed,” Spruhan said.

However, early Sept. 15, prior to issuance of the press release, Controller Mark Grant and members of the Incident Management Team appeared before the Budget and Finance Committee where destruction of the documents was discussed. As part of the emergency response action, Grant said, “They’re talking about scanning all the documents in the building and then disposing of them afterward.”

Ron Interpreter, emergency management specialist with the Inter Tribal Council of Arizona Inc., told the committee, “When the documents are purged, there’s a certificate of destruction that is provided by the company so that will help meet some of the federal regulations … to prove and show cause or reasons why those documents were destroyed,” he said. “Mr. Grant is aware of that process and he’s putting a purging policy in place.”

Operations Chief Wilson Laughter told the committee, “Whatever is contaminated will be removed, and they will triple bag it and seal it. That’s how it’s going to work.”

Neither Grant nor Interpreter were asked to testify at Monday’s hearing and team members said they were not instructed to destroy documents.

Deputy Attorney General Dana Bobroff told Judge Perry that the majority of Navajo Nation records are already under a detention order issued by the Court of Federal Claims regarding trust mismanagement litigation against the United States. There also is an executive order issued by President Joe Shirley Jr. in 2007-2008 prohibiting the destruction of documents, she said.

“The concern comes out, I guess, some of your people forgot to update the president’s office. It’s important that this information is provided,” Perry told her.

In Friday’s motion, Balaran said the “intimate involvement” of Shirley’s former chief of staff, Patrick Sandoval, who now heads Navajo Occupational Safety and Health Administration, and the timing of the proposed destruction of documents was of particular concern given allegations against Sandoval pertaining to OnSat, the E-Rate Program and BCDS.

“While it may sound conspiratorial on my part, I get very nervous when I’m leaving in a week and all of the sudden there is a rush to movement on this,” Balaran said.

According to Sandoval, closing the administration building wasn’t just his decision. “It was a joint decision of safety professionals there in Window Rock. There were many meetings and there were many people involved in that decision to go ahead and close it.

“I am not intimately involved in any of the things happening up to this point. What NOSHA did was we closed the building, and we’ll reopen it when it’s safe. I am not spearheading any destruction of documents, which is what was alleged,” he said. “I’m pretty far out of the loop on everything.”

Balaran suggested the court appoint a special master “to ensure that all documents that were obtained by the Navajo Nation are protected in accordance with federal, state and Navajo standards.” He also requested that the restraining order remain in effect until after the new special prosecutor steps in.

While they may disagree on motives, he said, “Nobody from the Office of the Attorney General believes in the idea of destroying records, that I’ve talked to. … In fact, it’s the one point of unison that we have.”

Spruhan said he thought a special master, in theory “is a good idea,” however, it also suggests that the people in charge on the Incident Management Team “simply can’t be trusted. …  I believe it’s unnecessary.”

Because Judge Perry had other hearings to preside over Monday afternoon, she ended the hearing around 1:30 p.m., after allowing attorneys to state their positions and briefly question members of the Incident Management Team, made up of Wilson Laughter, David Nez, Herman Begay, Julius Elwood, Herman Shorty and Wilfred Keeto.

Under questioning by Balaran, they admitted they were not certified in the treatment of mold.

Perry told the attorneys and those in attendance they were free to submit written statements to the court within the next three days. She said she expects to issue an order on Thursday. She also asked DOJ about the progress in appointing a successor to Balaran.

Bobroff said she met with the Special Division Monday morning and it is expected they will announce a new special prosecutor within 10 days. Perry said she was hopeful there will be a new special prosecutor named by 5:01 p.m. Friday, right after Balaran’s contract expires.

9/8/2011 Navajo Times: DOJ's role in slush fund case questioned

9/8/2011 Navajo Times: DOJ’s role in slush fund case questioned by Marley Shebala: Some Navajo Nation Council delegates accused of looting their discretionary funds are hoping the tribe’s insurance coverage includes the legal expenses of their defense. Henry Howe, an assistant attorney general for the Navajo Nation’s Department of Justice, told the Window Rock District Court on Aug. 29 that several individuals named in the suit filed July 28 by Special Prosecutor Alan Balaran have asked DOJ “whether the Navajo Nation’s insurance policies provide insurance coverage or the cost of representation by an attorney, or both, arising out of the claims made by the special prosecutor.”

Defendants in the civil suit include 81 of the 88 members of the previous Council, former President Joe Shirley Jr., former Attorney General Louis Denetsosie, Controller Mark Grant, and current Attorney General Harrison Tsosie, all of whom are required to respond to the allegations in the suit within 30 days of being served.

Because of the number of people named in the suit, getting everyone served has been a slow process. Some responses were due by Aug. 29 while other defendants have deadlines extending throughout September.

Some defendants have already made arrangements to file their responses without an attorney and others have hired private counsel, including Gallup attorney David Jordan, who represented 23 of the defendants when Balaran filed criminal cases against them.

Balaran later dropped the criminal charges in favor of pursuing civil remedies, which he said would be a more efficient way for the tribe to recover some of the money lost.

Howe had asked the tribal court to extend the deadline for everyone until Oct. 15 to give the Justice Department and the tribe’s Insurance Commission time to seek expert advice on the question of whether the tribe’s insurance company will provide attorneys or pay their attorney fees.

Window Rock District Court Judge Carol Perry denied the request Sept. 1 but said she wanted to be kept informed of the status of discussions on who should pay the defendants’ legal bills.

She pointed out that some defendants have already decided to represent themselves or have hired private counsel, which is consistent with the general rule that “parties to a dispute must bear their own legal costs in the absence of a statute or special circumstances justifying an award of attorney fees.”

Perry pointed to recent Navajo Nation Supreme Court decisions dealing with the criminal cases filed by Balaran, in which the high court stated that “people expect their government to perform properly, that money will be used in a manner which they have been informed and will not be used for private purposes.”

The defendants are accused of running or enabling scams that took discretionary funds meant to aid impoverished tribal members and redirected the money to benefit the defendants or their relatives.