The Second Osage Nation Congress unanimously killed two legislative bills seeking changes to the Nation’s merit-based employment system on Day One of the Sixth Special Session after they were fast tracked for that purpose.

The two bills in question, ONCA 11-20 and 11-21, were proposed by the Executive Branch and were sponsored by Congressman Eddy Red Eagle. Both bills, if passed, would have repealed ONCA 10-85, the law that was passed last Fall to establish a merit-based employment system.

Since the two bills were fast tracked and killed on the first day of the session, Congress prevented the Chief’s Office from making any public comment during committee meetings, which is the usual process. However, Principal Chief John Red Eagle issued a statement two days later and posted it to the Nation’s Web site.

According to the Feb. 25 statement, the Executive Branch said Congress “ignored the heart and soul of the legislative process by disallowing debate and public input on existing legislation that impacted tribal employee rights… By denying discussion and possible amendment to the proposed bills, the Congress foreclosed the opportunity to correct errors in ONCA 10-85 and to hear the Executive (branch’s) point of view.”

Red Eagle said his office has been “preparing timelines, revising human resources policies and procedures, posting job announcements and assigning tasks to attempt to implement the provisions of [ONCA 10-85]. What has complicated that implementation is the fact that two subjects are contained in the Act,” which led to the creation of ONCA 11-20 and ONCA 11-21.

“Congress complicated matters even further by incorporating politically appointed members of the Chief’s immediate staff into the merit system and the pay-for-performance system, thereby once again legislating administrative policy… I would have welcomed the time to explain in Committee and to the public my reasons for supporting the two bills and would have gladly discussed revisions to satisfy both branches.”

Hours after the Chief’s Office posted the statement, Congressional Speaker Branstetter responded and her statement was posted to the Congressional Web page on the Nation’s Web site.

“I certainly encourage more communication between our branches of government,” wrote Branstetter, “Perhaps if the Chief or his executive staff had approached Congress about amending specific language in the bill at some point over the last five months, the members of Congress would have been more receptive to his nearly complete re-write of the merit-based employment system before any significant steps to implement the law have been taken.”

Branstetter continued her statement with: “I do not understand how the implementation of ONCA 10-85 is complicated by having ‘pay for performance’ contained within a bill addressing the merit-based employment system. Actually it is hard to imagine a merit system being implemented without some form of a pay for performance incentive contained in the bill.”

According to ONCA 10-85, the Executive Branch is charged with hiring a human resources director and the department also includes a benefits analyst and a compensation analyst. “These three positions were placed in the law to be the driving force behind efficient implementation of the merit system,” Branstetter wrote, adding “I urge the Principal Chief and his staff to implement (ONCA 10-85) as soon as possible for the benefit of our Osage Nation employees. They so deserve it.”

Merit-based employment system already law

The merit-based employment system established under ONCA 10-85 (sponsored by Congresswoman Shannon Edwards) was passed Sept. 22, 2010, but was vetoed by Red Eagle five days later. The 2006 Osage Constitution mandates the merit-based employment system, but Red Eagle objected to language requiring his office to disclose written job descriptions of appointed staffers during the 2011 fiscal year budget-setting process. That led to the veto, which was overridden by 10 Congressional votes on Sept. 28.

When Congresswoman Shannon Edwards learned of the two proposed bills before the Sixth Special Session, which would have repealed ONCA 10-85, she asked Legislative Counsel Loyed “Trey” Gill to review ONCA 11-20 and ONCA 11-21. In a written response dated Feb. 22, Gill said the two bills “significantly change the implementation structure of a merit-based employment system,” which include:

·      Removing three human resources (department) positions stated in ONCA 10-85. The new bills proposed to have the HR department implement the merit-based and pay-for-performance systems. Gill writes the HR department is authorized to hire support staff, but the change leaves it up to the department “to decide whether new positions are needed and to fill those positions as required, assuming funding is provided.”

·      Language calling for an Employee Protection Council (as written in ONCA 10-85) had been removed. The council (listed in Section 7 of ONCA 10-85) has the authority to independently review performance assessments and is comprised of five elected members selected by the employees along with the HR director. Gill wrote: “The Employee Protection Council is not in the proposed legislation, so the initial decision of the applicable managers upon recommendation of the human resources department is final.”

·      The Employee Classification section is also removed from the proposed legislation, wrote Gill. The proposed legislation includes key language from the Osage Constitution which states: “the merit principle will govern the employment of persons by the Osage Nation excluding executive staff and other appointed positions serving at the will of the Office of the Principal Chief.” Gill also notes: “there is no other clarification on employment classification and it leaves to the current human resources department the responsibility to determine job descriptions and pay scale ranges.

“Overall, it appears that these bills are designed to keep the merit-based employment system housed completely under the current (HR department), except for the pay-for-performance decisions still being made by managers of each branch of government,” concludes Gill’s review.

According to the Chief’s Office, ONCA 11-20 was intended “To establish a merit-based system of employment to include a grievance system and to address nepotism” and ONCA 11-21 was “To establish a Pay for Performance system of compensation.” Language concerning both issues is covered in ONCA 10-85.

At the start of the Feb. 23 special session, Chief Red Eagle delivered opening remarks where he briefly addressed the legislation.

“We, the Executive Branch, have not eliminated the original intent of ONCA 10-85 (the merit-based employment system passed during the 2010 Tzi-Zho Session) with these two proposed bills,” said Red Eagle, “What we intend to do is provide a more effective… implementation of the merit-based system and a pay-for-performance system which will provide ease and understanding for our employees.”

How to kill two bills in one day

After Congressman Eddy Red Eagle, who sponsored both ONCA 11-20 and ONCA 11-21, read them into the record during the first day of the Special Session, Congressman Raymond Red Corn motioned to suspend the Congressional rules and advance both bills onto second reading before Speaker Jerri Jean Branstetter referred them to Congressional committees with the other introduced bills that day.   

Both motions to advance the bills passed with a 9-3 vote. Voting “no” on each motion were Congressmen Red Eagle, Mark Simms and William “Kugee” Supernaw.

Congressman Red Eagle, who stated he accommodated the sponsorship of the bills sought by the Executive Branch, said he saw weaknesses in the two bills including the lack of specifics regarding employee training and the implementation of an employee wellness program aimed at providing health education opportunities to lower employee absenteeism due to sickness.

Edwards also addressed the Congress and read portions of Gill’s review on ONCA 11-20 and ONCA 11-21. Edwards said she was not contacted by anyone regarding proposed changes to ONCA 10-85, “so a wholesale repeal of that bill was quite a shock to me and frankly I assumed that the administrative (Executive) branch was carrying forward with the mandate of the law and in fact I think that creating a policies and procedures manual for our consent/ approval is a step forward and I applaud that.”

Chief Red Eagle delivered a 34-page revised copy of the Nation’s human resources policies and procedures manual to the Congress on Feb 23 during his executive address at the Special Session.

Edwards said she would vote “no” for the two bills, noting previous efforts to pass a merit-based employment system failed. “I believe we have spent a lot of time working on this system that Congress wanted to pass as a law. I think it’s the responsibility of the Executive Branch to attempt to implement the law. I don’t think that’s happened… I believe that we’re open for amendments, but to come wholesale and say ‘sorry, wipe out what’s been done for the past two years and start over with this’ is not, in my opinion, in keeping with a cooperative system of government.”

Congressman Geoffrey Standing Bear said he would also vote “no” on the bills. He noted the new bills included the Osage Minerals Council as part of the merit-based employment system, but ONCA 10-85 does not.     

Congressman Raymond Red Corn noted it has been over five months since the Congress passed ONCA 10-85 via veto override and the merit system has yet to be implemented by the Executive Branch. “Second, ONCA 10-85 is by far the most thoroughly researched law in the short history of this Congress. It went through committee no less than five times in 2010,” he said adding the Nation spent over $150,000 in consultation fees to build the law.

“I’m not closing my mind to amendments to this bill (ONCA 10-85),” said Supernaw, “At this point, I think we should implement the bill, try it out, if there’s refinements and adjustments to be made, then they should come forward in the nature of amendments.”

ONCA 11-20 and ONCA 11-21 failed after 12 “no” votes were cast via roll call.

In his Feb. 28 “Update” e-mail newsletter, Red Corn said the 0-12 votes were “unprecedented in our short history as a tripartite government” as he discussed the special session votes.  

The Sixth Special Session ended after three days and comes just over one month following the Fifth Special Session when the Congress passed a revised budget parameters act (on Jan. 26), which contains rules for the government entities to follow when submitting operational budgets. The bill did not become law after Chief Red Eagle pocket vetoed the bill.

The Hun-Kah Session begins March 21.

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