Ethics: Double Standard?

Q. A tribal council member who was convicted of driving while intoxicated was forced to resign his position on the council. Just a few months earlier, a tribal secretary, who was convicted of the same crime, was placed on three-months probation but allowed to keep her job. Is it proper for tribal governments to employ two standards of conduct – one for elected officials and one for employees?

A. Depending upon the tribe’s constitution and laws, it may be both legal and proper for a tribal government to apply distinct standards of conduct that result in elected employees being treated differently. For example, many tribal constitutions prohibit elected officials, including tribal council members, from holding office after they have been convicted of a serious criminal offense. In some jurisdictions, depending upon the defendant’s criminal history and offense conduct, driving while intoxicated is a gross misdemeanor or felony-level offense.

Accordingly, it is conceivable that a tribal official could be constitutionally prohibited from retaining his/her position following such a conviction while an employee, not covered under the constitution, may be permitted by tribal employment policy to keep his/her job after a probationary period. Also, many tribes have adopted a code of ethics that prohibits tribal officials and/or employees from engaging in certain types of conduct, including criminal behavior.

Such ethics laws may subject tribal officials and employees to different penalties for violating the same restriction. It is important for misconduct to be clearly defined by the tribe so that everyone is on notice as to the consequences of their behavior.

Joseph M. Paiement is a tribal attorney and an instructor for Falmouth Institute, teaching Ethics, Tribal Constitutions and American Indian Law.

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