OKMULGEE, Oklahoma – On May 22, the National Council overrode a veto message from Principal Chief Hill concerning NCA 21-045.
NCA 21-045 created a new law called “Government Records,” which appeared to give the National Council the power to request any documents directly from department heads concerning employees.
Attorney General Roger Wiley claims he had no involvement in the creation of the law, but did feel like it presented a problem.
“I was asked if I had any issues with it and the issue I had with it was Secion 9-104 D, originally,” Wiley said. “This provided that no records were confidential.”
At the MCN Business, Finance and Justice Committee Metting on April 15, Wiley suggested an amendment be made to NCA 21-045 to eliminate that particular section. The section was passed as amended from the committee.
According to Wiley, the legislation that got back to the Chief’s desk to be signed still included Section 9-104 D when it should not have.
“My understanding is 9-104 D has since been eliminated and the correct version of the bill has been signed,” Wiley said. “That was most of my involvement with that legislation.”
The veto message from Principal Chief Hill odes include this section that AG Wiley claims to have been eliminated.
In the veto message, Chief refers to Ellis v. National Council in stating that, ‘NCA 07-191 recognizes the National Council’s investigatory powers were limited to validly issue subpoenas, the law also provides due process protections to employees and citizens, and the Principal Chief and Second Chief were immune from the law due to executive privilege.’
“I think it’s a cry in to the wilderness because its legitimate request for records was not being addressed,” AG Wiley said about the legislation.
“Now the part about the subpoenas,” he said. “I disagree with that; I don’t think it is limited to validly issued subpoenas. We are running a dysfunctional government if we require one branch to get a subpoena before it can get simple records from another branch.”
AG Wiley said he believes the branches should work more cooperatively as a governmental body.
Under NCA 21-045, the National Council could also obtain employees personal records although the legislation provides protection under 9-104 G regarding due process protection.
“Laws can be taken to the extreme, but hopefully the branches can work together and exchange records freely as needed for legitimate reasons,” he said.
On May 24, Principal Chief Hill sent out a memorandum to all cabinet members and executive branch employees asking them not to recognize NCA 21-045 due to claims of unconstitutionality.
‘As a result, NCA 21-045 will not be enforced or recognized as valid law by the executive branch. All cabinet members and executive branch employees are to respond to information requests from the National Council members in accordance with previously established executive employment policy on legislative branch request for information/correspondence section 503 of the Human Resource Policy and Procedure Manual…’
AG Wiley is familiar with the memorandum and expressed concerns.
“I think anytime an elected official asks someone not to follow the law that’s a problem, and the law has not been set aside as unconstitutional,” AG Wiley said. “It should have been challenged if the claim is that it’s unconstitutional.”
Since the Principal chief did not challenge the law, it is still an active law and can pose civil penalties for those who do not follow the legislation under the Penalties section.
“What I see is two branches of government clashing and the employees being stuck in the middle,” he said. “They don’t want to put themselves in a situation where they could lose their job because they think they’re following the law or because they’re doing what their supervisor told them to do.”
According to AG Wiley, the correct process would be for the Principal Chief to challenge this law by taking it to the District Court for a declaratory judgment.
As of time of publication, no action has been made by the Principal Chief to do so.
On the LiveWire, AG Wiley also spoke with Moore briefly covering topics and updates on the McGirt ruling. The full interview can be watched at https://youtu.be/hM-VydVNmdg.
Full legislation and related documents can be viewed at the following links: