CHIEF PECHONICKS STATE OF THE TRIBE ADDRESS State of the Tribe November 8, 2014 A Message from Chief Pechonick Today, the Delaware Tribe of Indians will swear in candidates elected November 1, 2014 in a process which violated due process and the civil rights of most if not all of the candidates. As per the Election Regulations, the Delaware Tribe of Indians Constitution and the Delaware Tribe of Indians Civil Code, Councilwoman Jenifer Pechonick and I filed a grievance or complaint for a hearing to review the election materials and see if there was a logical reason for some 700 ballots not included in the final count. In what appears to be of his own volition, Judge Charles Randall “dismissed the action with prejudice”. His action was in complete disregard to the governing documents cited previously, and thus prevented due process and violated our Civil Rights. I am deeply concerned for our Tribe and will continue to work with the remedies available to us for Election Reform and Voter’s Rights to conduct an election that is fair and impartial with results that can be endorsed by all members of the Delaware Tribe of Indians. I do not look forward to the short term however; I am convicted the general welfare of the Tribe as well as the future of the Tribe hinge on authentic leadership who serve in accordance to policies which foster an environment that honors the our mission to establish a more perfect form of government, preserve our heritage and powers of self-government, provide for the good and welfare of our people and to secure our rights and privileges as members. Election Questions and Irregularities A. Not all of the ballots sent in were counted. While there are theories available as to where the ballots went, there is a lack of information to support many of them. However, safeguards are available which could be implemented to ensure a clear chain of custody of the ballots, some of those may already be in the regulations but were not enforced; others likely exist outside of the current regulations. In addition, as Chain of Custody is reviewed, ballot security and integrity should be carefully considered. B. Current regulations as written do not provide an environment that is voter friendly. The method of balloting changed to a hybrid of requesting absentee ballots and being sent one. Tribal members did not seem to relate to the concept. Tribal members who were not on the list of 2013 voters believed themselves to be “voters in the last election” on further questioning, some believed the “last election” was two years ago or even four years ago. Those voters misunderstood they would receive a ballot and thus did not file a ballot request. The radical change for balloting likely warranted more voter education than was provided. There are other items which could be taken into consideration in reconsidering the regulations such as polling times, balloting methods, etc. C. Deviations from the regulations caused voter confusion and candidate confusion. Voter turnout may have been compromised by the “unpublished” date of acceptance for some absentee ballot requests. The “official” cutoff date for absentee ballot requests was printed as October 1, 2014. At the September Tribal Council meeting, Election Board Chairperson, Mrs. Cy Hughes said she would send out ballots as late as she could and elaborated hypothetical special circumstances of voters that should email her a ballot request. A complainant took this to mean voters who did not have outstanding circumstances should not act contrary to the published “official” date. Thus, after September 30th, both complainants maintained compliance with the “official” deadline. While the motivation to deviate from the regulations was to promote voter participation, the mixed messages caused confusion to the voter and the candidate alike. In addition, the Election Board lacked a clear channel of communication of deviations to the candidates and voters, creating confusion and affecting the uniformity of opportunity to both. D. The regulations as written do not establish, identify or address acceptable campaign practices. Candidates are free to behave in a manner unbecoming to that of an elected official. The atrocities which occurred and were unregulated were detrimental to the current administration, the candidates, the voters and the general welfare of the Tribe. One example: on or about October 13, 2014, a complainant was notified y a Tribal member (the email was forwarded to a complainant on October 14) who reported Candidate for Chief and Assistant Chief Chet Brooks, acting in an unknown capacity, sent an email which at first glance, appeared to be official election correspondence stating absentee ballot requests would be accepted through the 15th and even after that date. In a closer look, one could have easily dismissed this email as “spam” or concluded something else. Mr. Brooks provided inaccurate information, used this announcement to campaign for particular candidates and against other candidates. In addition, he likely contributed to a lower voter turnout by sharing Tribal member’s private information with a multitude of people and presenting a document unbecoming of a Tribal official, in an awkward format, spelling errors and sending the same email multiple times. The Tribal member continued to get the email blasts for days and finally sent a complaint to the Election Board Chair. To continue to cite atrocities which occurred would only cause heartburn and controversy. 2. The following items address some of the current written regulations or actions which were outside of the current regulations: a. The Public Notice of Election in the October Newspaper (DIN) did not designate the polling times or places. b. When the Election Board Chairperson presented the names for the board members, she did not mention the real or appearance of conflict of interest with at least two of her selections 1) her son, 2) a tribal member who was scheduled to give birth in the weeks prior to the election. When questioned about these selections, at least one complainant presumed this, like many committees, was utilizing the volunteers at hand. At least two (2), capable, available (and one very experienced) Tribal members were put on a “waiting list” and not utilized, even though the regulations provide Board members may be replaced by the Board Chair for any reason of non-performance. c. It should be stated these particular co-complainants have a somewhat unique perspective of a parent-child team serving together on a board but Mr. Hughes, did not represent the Election Board with conduct expected of a Board member. He told the hired security guard, “this Tribe’s had ‘bad management’ for years”. d. Mr. Hughes, by direction of the Board, presumably, went to the post office alone on the day before the Election and picked up the ballots, brought them back to the Tribe and the election committee manipulated the ballots until early in the morning. e. On Election Day, at least three “In Person” voters confirmed the protocol of voter identification/confirmation was not in practice. None of them had to “announce their address” (although, they were each asked in different ways if the printed address on the voter’s list was current) and none of them were asked to comply with the regulation to show a photo ID. (footnote: the practice of having to show a photo ID is regarded as a way to keep minorities from voting, perhaps the Delaware Tribe of Indians’ proof of ID should be a Tribal Card!) f. The absentee ballot request form states, “This form must be received at the Delaware Election Board Post Office Box by close of business on OCTOBER 1, 2014 to receive an Absentee Ballot. Only (1) ballot per request form. This form maybe duplicated. All request forms must be mailed to:” the Delaware Election Board PO Box. However, there was an unpublished drop box only some had knowledge of under the receptionist’s desk at the Wellness Center and Ms. Hughes sent ballots requested in this manner (request dropped in the drop box). In addition, the option to email the request was another deviation which was not communicated throughout the candidates. g. The regulations suggest in certifying that “all ballots received are signed and dated by the registered voter. Voters should provide the full name including maiden name and any previous names that may have been used by the voter on the tribal registration list, date of birth and Delaware registration number.” The regulations specify the information must be “consistent with the Delaware Tribal Registration record.” This requirement is not printed on the voting instructions nor the envelope. Were ballots which did not meet this regulation handled in accordance with the regulations, that is, “All required information on the back of the self-addressed, self-certification envelope must be completed and accurate or the envelope will not be opened or counted”? h. The Chain of Custody of the Absentee Ballot is a major concern. One regulation of this matter states, “To keep ballots, including the ones from the Post Office, locked at all times except when the ballots are being counted.” i. On October 31, 2014, the night before the election, Mr. Hughes reported the Election Board stayed at the Tribe until 5 am “counting ballots”. j. There was no indication on the posted results how many ballots were received by mail and in person nor were how many, if any, spoiled or mutilated. One complainant stated her envelopes came to her stuck together and after separating them, her ballot appeared to have been tampered with, was this ballot considered spoiled? k. The regulations specify, “Ballots must be marked and sealed in the inner envelope provided marked “ballot”. The “ballot” envelope must be placed in the self-addressed envelope provided with the self-certification information on the back.” However, the Election Board determined they could combine the two envelopes and simply sign the ballot envelope. This process completely negates the “secret ballot” vote the voter is promised and fosters a state of voter intimidation or a reason for someone to not vote at all, due to the firm belief the regulations mandate a secret ballot. l. The regulations are redundant to the same idea – ballots are to be counted after the polls close. m. The absentee ballot request as well as the voting packet state in concurrence with the regulations. “Ballots must be received by the US Post Service no later than the close of business the day before the election.” Ballots were removed from the post office on Friday (Were any removed prior to that? What was the Chain of Custody of those ballots?) On Saturday, in a manner contrary to the regulations, an Election Board member and the hired security guard went to the post office and picked up ballots at the post office, again, after the prescribed deadline. What was done with these (approximately) 12 ballots? n. On Election Day, all relevant parties a) shall arrive at the voting place at time designated by the Election Board Chairperson, b) remain on duty throughout the day until all votes have been counted and certified and c) Election Board members, candidate(s) watchers and security guard will be locked in the counting room or building once the count has begun. No other person shall be allowed in the counting room or building during the count. The complainants are unclear as to the status of the “count” while the polls were open November 1. Ms. Hughes, which question about the non-compliance of the ballot/self-certify envelope stated the Election Board on Saturday during the voting would open the “Ballot” envelope remove the ballot and turn the ballot and the envelope over to the League of Women Voters for counting. However, Mr. Hughes reported the ballots were counted on Friday. If this isn’t accurate, why was the Board at the Tribal Center until 4 or 5 am? o. At least one (1) Chief candidate and up to four (4) Council Candidates campaigned to vote for the four candidates who were not incumbents. This message seemed to say to vote for four (4) candidates instead of three (3) repeatedly stated (in various ways) at the least created an atmosphere of cognitive dissidence for a voter, confusion and could have resulted in spoiled ballots. p. The regulations discuss the security of the counting room or the counting building. Controversy arose from the confusion of what exactly was the area designated for the Election Board activities. The votes may have been counted in the same area as the voting was conducted; however, Ms. Hughes and Mr. Hughes went freely from the office to the polling area. During the count, several tribal members reported seeing an Election Board member leave (the counting room? the building?) with a ballot and come back without the ballot. An Election Board member remarked, “I don’t think he ever brought that ballot back.” q. The security guard wasn’t feeling well and left at one when the polls closed. He was not asked or informed of his obligation to stay. The Election Board chair was quite clear that anyone who was involved in any capacity in the count must stay until the counting was done. She perhaps jokingly said if your watcher “had a heart attack, we would let them leave.” The security guard had the sniffles and left, not realizing he was supposed to stay through the process. A tribal employee that was in the counting room/voting area (all day? part of the day?) left the counting room and was not permitted back in but Mr. Hughes was re-admitted after leaving. It is unclear if Mr. Hughes left multiple times or if the Election Board member and the Tribal employee were making the same reference. r. The “certified return” posted on the door was only signed by two (2) Election Board members and four (4) League of Women Voters. A tally wasn’t posted, although the sheet listed was titled as such. s. The security guard reported to Ms. Hughes a candidate was posted in front of the building by the flags. He informed Ms. Hughes that in the past candidates weren’t allowed to do that due to the 100 ft. rule and in order to error on the side of caution, in the past the candidates posted their signs “down by the road”. Ms. Hughes left the building and without witness alleges she spoke to the candidate and his brother. She came back in and told the security guard, it was ok, the candidates’ brother reported they were 110 ft. from the voting place. The blatant disregard for this rule was a popular recollection and report throughout the day. The brother reported 102 ft to another person who asked and 115 ft to another. The candidate sat there for most of the day the polls were open, stopping would be voters and chatting with them. One concerned Tribal member called to tell a complainant of the violation, the Tribal member was advised to take a picture (the complainant recalled an election in recent times when the same candidate did the same thing and she pleaded with him to comply with the regulations and not jeopardize the process. After sometime, that candidate moved his campaign camp clearly out of the “danger zone” but for the General Election of 2014 he stayed right in front of the building, after everyone was gone for the day, the Tribal member, verifying the location with the picture he took measured the candidate’s position at 96 ft. A Tribal member was reported to be in the foyer of the voting place greeting would be voters as they arrived, letting them know she was there to “support Bonnie Jo”. t. At the September Council meeting, Ms. Hughes reported approximately 1200 absentee requests had been received, but corrected this statement to say this number included the people who voted last election who would automatically receive a ballot. The list the candidates could purchase listed 994 voters of the 2013 election. The complainants were not provided the final number of absentee ballot mailed, nor did the posted sheet include how many were received. At the September 15th meeting, Ms. Hughes reported about 1200 ballots to be sent. The best estimate from the sheet (assuming everyone voted for a candidate for Chief) was 624 ballots received. Where are the other 600+ ballots? u. Candidates were afforded the right to purchase a list of electronic media. Said list, “shall clearly show all registered voters, less “lost” Delaware.” The list contained 7661 tribal members with addresses, of these; a significant number of households had more than one Tribal member listed. The complainants conducted two mail outs of first-class mail which totaled approximately 5300 voting households, from local to nationwide. Nearly 700 of those were returned with a variety of reasons, such as no such number, moved no forwarding address, forwarding address expired etc. (Footnote: the number of Delaware who are lost is currently about 2,000.) v. The Election Board and Elder Committee created a “Candidate Forum” for the Candidates to have a very structured opportunity to “debate”. Candidates were given less than a week’s notice of the event and some were otherwise obligated. A provision was offered for candidates to film their introduction in lieu of attendance and those would be shown at the Forum. On other Tribal business, one of the complainants utilized the video option. Her video was not shown at the Forum, as promised, which resulted in exposure for her. The Forum was recorded and candidates were told the submitted videos would be sequenced with the recorded forum for the website. They were not, and there’s nothing written to communicate, the complainant appears at the least to have ignored the process and perhaps at the worst boycotted. w. The posted official results sheet did not appear to have the signatures of all of those present at the count. The number of ballots is not apparent. The number of spoiled ballots is not available. The tally was not posted. The words “General Election” at the bottom are marked through. The Judges are listed as “Tribal Council”. On November 1, 2014 the Delaware Tribe of Indians held a General Election for Chief and three Tribal Council seats. The initial results of the election indicated the current Chief Paula Pechonick and the three incumbent Tribal Council members lost their seats. Initial review of the results showed Assistant Chief Chester “Chet” Brooks as the winner by 67 votes or 8.98% with a total of 317 votes and Pechonick with 250 votes, two other candidates split the rest of the votes. The total number of votes cast was 728 with 626 absentee ballots and 98 walk in votes. On November 1, 2014 the Delaware Tribe of Indians held a General Election for Chief and three Tribal Council seats. The results of the election indicated the current Chief Paula Pechonick and the three incumbent Tribal Council members lost their seats. Initial review of the results showed Assistant Chief Chester “Chet” Brooks as the winner by 67 votes or 8.98% with a total of 317 votes and Pechonick with 250 votes, two other candidates split the rest of the votes. The total number of votes cast was 728 with 626 absentee ballots and 98 walk in votes. The voter turnout was contrary to expectation. The Tribe’s General Election occurs every two years with the position of Chief elected every four years . The election for Chief has a higher turnout than the alternate elections. In the 2010 election 1562 votes were counted. The number of ballots sent out for the 2014 General Election was reported to be about 1200 as of September 15, 2014 and the opportunity to request ballots was held open for another month. The question of the whereabouts of the some 600 ballots (the difference between the conservative estimation of the number of ballots mailed versus the number of ballots counted) compelled two candidates to file an official complaint in accordance with the Delaware Tribe of Indians Election Regulations. Preparation of the complaint and comparison of the actual process to written policy presented an astonishing number of irregularities. Chief Paula Pechonick and Tribal Council member Jenifer Pechonick filed a complaint in accordance to the Regulations and sent courtesy electronic copies to each judge, the Court Clerk, the Election Board Chairperson and the Election Board’s email address. The Election Board in turn, complied and presented the complaint to the Delaware Tribe of Indians Court Clerk November 5, 2014. The Court Clerk contacted Jenifer Pechonick to advise the made payable line on the certified check included with the complaint was incorrect. The Court Clerk stated Judge Charles Randall said the check was incorrectly made payable to: “Kinzie Gomez” with “Court Clerk” in the memo portion and needed to be remitted in the correct form. The co-complainants referred to the Regulations which stated the check be made to: Delaware Tribe of Indians Court Clerk. Chief Pechonick took her Regulations to Judge Randall who was at the Tribal offices to explain why she had submitted the check as printed. Judge Randall did not change his opinion and said, “Jenifer should know better, she wrote it.” Chief inferred his reference was to the complaint. Jenifer was also informed he made the same comment to another party – but this time Judge Randall said, “Jenifer should know better she wrote the rules.” In the meantime, the Court Clerk had placed a call to Judge Randall to discuss that she also thought the check was compliant with the Regulations. Judge Randall issued a new directive the check now needed to be made to “Kinzie Gomez” but in the memo portion instead of “Court Clerk” the memo needed to be printed as: “Delaware Tribe of Indians Court Clerk” because “as written, the check could be for the Nowata County Court, we wouldn’t know.” The following day the Court Clerk sent an order signed by Judge Randall, on behalf of the Delaware Tribal Court that the complaint was dismissed with prejudice. The order in its entirety follows, as does the pertinent excerpts from our Code, Constitution and Election Regulations. In response to the order – the Election Regulations define complaint as “any dispute with the conduct and procedures of any Delaware Tribe of Indians called election or failure to act in accordance with the requirements of the Delaware Tribal Constitution or Tribal Election Regulations.” There is no format offered or other requirements. The chosen format offered an organized way to present complex ideas, however, the Court confuses the Election Regulations Complaint with a pleading and scolds the complainants not only for not specifically listing the Election Board as the respondents but more so for not providing notice to the same. The only purpose for a complaint is for the reasons defined above. Per the Regulations the Election Board is the first to see the information. Further, a Tribal member reported that she had heard the complaint was filed as a Councilperson-elect told her the Election Board Chairperson shared the information Wednesday night. Further, the Chief-Elect and a Council member both had copies of the Court Order on Thursday. Neither were “put on notice” of the protest and it would be interesting, at best, to understand the chain of communication. The order further goes on to state, “The Petitioners seek relief in contradiction with the Delaware Tribe of Indians Constitution and Bylaws”. All of Delaware Tribe of Indians grievance provisions offer a hearing, the concurrent nature of the Election Regulations do not make the co-complainants “petitioners”. The Election Regulations are cited within the Delaware Tribe of Indians Constitution and Bylaws as the method by which elections shall be conducted. The co-complainants filed in accordance with the procedure outlined therein. The procedures provide the Election Board forwards the complaint to the Court. Then, a hearing shall be conducted as follows: the hearing shall be held before the Delaware Tribal Court within twenty (20) days of the filing of the complaint. The complaint (sic) shall be afforded a fair hearing providing the basic safeguards of due process, which shall include: The opportunity to examine, before the hearing, all documents, records and regulations of the Election Board, which are relevant to the hearing. The only opportunity the Court has to deviate is “if the judges determine that the issue has been previously decided in an earlier proceeding.” Judge Randall concludes, “Put simply, the General Council is mandated by the Constitution, no branch of government can seek to prevent its occurrence. Such power rests exclusively with the Delaware people and cannot be created by any lesser body. Assuming the Petitioners have presented a complaint upon which relief can be granted, which the clearly have not; this Court is without the ability to fashion the relief requested in contradiction to the Delaware Constitution.” One must infer the Court refers to a portion of the “relief sought” in the complaint in which the Co-complainants seek 1) An emergency injunction* to maintain status quo and to 2) postpone General Council while a 3) a full audit of the Tribal enrollment data base/tribal census is conducted to determine the correct addresses for a majority of Tribal members and a 4) full review and reform of the Election Process and Voter Rights is executed to include Board and candidate training and an election is held with these measures in effect. Please be good to yourself and good to each other and Pray for our Tribe.
Posted on: Sat, 08 Nov 2014 19:13:46 +0000
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