Clark v. Diné College

9 Am. Tribal Law 348
CourtNavajo Nation Supreme Court
DecidedOctober 27, 2010
DocketNo. SC-CV-25-10
StatusPublished
Cited by1 cases

This text of 9 Am. Tribal Law 348 (Clark v. Diné College) is published on Counsel Stack Legal Research, covering Navajo Nation Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clark v. Diné College, 9 Am. Tribal Law 348 (navajo 2010).

Opinion

OPINION

On September 21, 2010, this Court held a motion hearing on the matter of Appellant Diñé College’s (College) motions to stay execution of the Navajo Nation Labor Commission’s April 6, 2010 decision enjoining the College from further extending Appellee Ferlin Clark’s (Clark) paid administrative leave and ordering that Clark be reinstated to his full duties as President of Diñé College. We issued our decision on the same day, granting the College’s Petition for Stay of Execution and enjoining enforcement of the Commission’s decision. In that Order, we also asked for briefs on a matter raised by Amicus Jack C. Jackson, Sr. regarding the legitimacy of this appeal, which was filed after the Government Services Committee’s removal of members of the Diñé College Board of Regents without duly appointed successors, leaving the Board without a quorum. In addition, we took under advisement the issue of whether there presently exists an employment contract between Clark and the College, which has been fully briefed and argued. We will address both these matters in this opinion.

Finally, we stated we would decide at a later date whether oral argument is warranted in the appeal pending before the Court as to possible prerequisites to the Navajo Nation Labor Commission’s jurisdiction for injunction purposes. As the disposition of other issues remaining in this appeal renders this issue moot, there will be no need for a hearing on this final issue.

I

PROCEDURAL HISTORY

On March 5, 2010, Clark filed a petition for preliminary injunction with the Commission, challenging the extension of the College’s placement of him on paid administrative leave in order to investigate allegations that he “engaged in certain unprofessional and unacceptable conduct that includes, but is not necessarily limited to, creating a hostile, intimidating working environment for numerous College employees and preferentially treating a select few who [he] deemed to support [his] actions and decisions while treating those [he] deemed not to support [him] with prejudice.” Pet for Stay of Execution, at 8. Clark had been placed on administrative leave by the Board of Regents (Board) since January 25, 2010. The Board had hired an independent investigator to look into his conduct on February 24, 2010.

On March 24, 2010 the Commission held an evidentiary hearing. On April 6, 2010 the Commission granted the injunction on the basis that the College Personnel Policies and Procedures Manual (Manual) limited such leave to 30 days unless formally extended.2 Although the College finally [351]*351did extend the leave with the concurrence of the Human Resources Director on March 20-22, 2010, the Commission said that this was not done within the prescribed time period. The Commission enjoined further administrative leave and ordered Clark reinstated to his full duties as college president. That same day on April 6, the College filed a Request for Stay of Preliminary Injunction Order with the Commission. The Commission has never issued any ruling on the College’s request.

On April 26, the Government Service Committee (GSC) voted without explanation to immediately remove three Regents from the Board, leaving the Board with three active serving Regents, which is below the number needed for a quorum. On April 27, 2010, following a Board vote that day, the College represented by Patterson Joe, its Legal Counsel of record in the matter before the Commission, filed a Notice of Appeal challenging the Commission’s decision.

On May 31, 2010, Clark’s existing contract for employment expired on its own terms. Clark continued to occupy and function in the college president’s position. Since April 26, the removed Board members had not been replaced, therefore there was no Board enabled to address contract issues with Clark.

On July 27, the independent investigator returned a 172-page single-spaced report substantiating numerous allegations concerning Clark’s conduct raised by College employees. However, there was no Board able to receive, review or accept this report. To this day, the removed Board members have not been replaced and there remains no functioning Board.

On August 30, 2010, Diñé College filed an Emergency Petition for Stay of Execution of the Commission’s Order on August 30, 2010, attaching to it the independent investigator’s report and raising new and urgent concerns that Clark was now terminating employees who had testified against him in front of the Commission, demonstrated against him, or otherwise questioned his authority by asking him to produce a current employment contract. On September 8, 2010, Diñé College filed a Request for Immediate Issuance of Stay alleging intimidations and firings of further employees since the filing of the Petition. The College’s request was granted. This Court ordered Clark to cease all duties as college president. Jack Jackson, Sr. temporarily assumed the college presidency pursuant to a May 10, 2010 Standard Delegation of Authority.

On September 16, 2010, Jackson asked leave to file an amicus brief or in the alternative, for leave to intervene as a party in his capacity as acting president of Diñé College. On September 20, 2010, Clark filed his Response to Motion for Emergency Stay.

On September 21, 2010, a hearing on the issue of the College’s request for stay of execution was held at the Dine College Student Union Auditorium at Tsaile, A number of issues were urged upon the Court. Jackson claimed that, as acting president, he was the rightful representative of the College and should be permitted to intervene as a party. Jackson further claimed that the appeal filed by Joe for the College was unauthorized and should be dismissed. The College as represented by Joe objected, stating that the president lacks the authority to step into [352]*352the shoes of the Board and pursue litigation. Additionally, Joe informed the Court that there have been more terminations of college employees at the behest of Clark since their petition was filed. Finally, both parties argued at great length the existence or non-existence of a current employment contract between the College and Clark.

We issued a verbal order immediately following the hearing, and the same day issued a written Order permitting Jackson to present an amicus brief but denying his intervention as a party; granting the College’s petition for stay; and requesting briefs on the matter of the legality of the GSC’s removal of the Board members resulting in reduction of the Board to below quorum, which impacted on the authority of the Board to pursue this appeal.

II

JURISDICTION

Appeals from Commission decisions are prescribed by statute. Decisions of the Navajo Nation Labor Commission are generally appealable to the Supreme Court of the Navajo Nation pursuant to IS N.N.C. § 613(A). However, petitions for stays of Commission orders must first be filed with the Commission with an opportunity for response by the adverse party unless the Commission has otherwise approved a stipulation by the parties. 15 N.N.C. § 613(B). A petition for a stay may be filed with the Supreme Court if the petition to the Commission is denied, which may grant the stay upon satisfaction of an appeal bond, or otherwise.3 See N.R.C.A.P. Rule 25(d). In this case, the College petitioned this Court for a stay almost four months after they had filed for a stay to the Commission with no response from the Commission.

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Related

In re Seanez
9 Am. Tribal Law 329 (Navajo Nation Supreme Court, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
9 Am. Tribal Law 348, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-dine-college-navajo-2010.