The Nottawaseppi Huron Band of the Potawatomi Tribal Council
hereby establishes the Nottawaseppi Huron Band of the Potawatomi Gaming
Commission (hereinafter the "Gaming Commission" or "Commission") as
an independent governmental subdivision of the Tribe.
As a political subdivision of the Tribe, the Commission is empowered
with all the rights, privileges and immunities of the Tribe, including
but not limited to the sovereign immunity of the Tribe from suit absent
express consent from Tribal Council. The individual members of the
Commission are officers of the tribal government and shall be immune
from suit when acting in their official capacity to the fullest extent
permitted by law.
The Tribal Council delegates to the Gaming Commission those regulatory authorities described in § 8.5-27 and general oversight authority over the Gaming Regulatory Agency's regulation of gaming conducted within the Tribe's Reservation to ensure that all gaming conducted within the Tribe's Reservation is conducted in conformance with this chapter, the regulations, the Compact, the IGRA, and regulations promulgated by the NIGC.
In all matters subject to its authority, the Commission shall
be and shall act independently and autonomously from the Tribal Council.
No prior or subsequent review by the Tribal Council of any actions
of the Commission shall be required or permitted, except as may be
otherwise explicitly provided in this chapter. Notwithstanding the
foregoing, the Commission shall be subject to all tribal law, including
generally applicable tribal administrative policies and procedures,
including finance and human resources policies, except to the extent
that an exception for the Commission is expressly provided in such
policies. The Commission fiscal year shall be the fiscal year of the
Tribe.
Commission funding, which shall be separate from that of the Gaming Regulatory Agency, shall be in an amount adequate for the Commission to properly fulfill all of its responsibilities under this chapter. The Tribal Council shall not reduce the annual budget of either the Commission or Agency during any fiscal year but may approve requests to supplement the budget when necessary. The amount of the Commission's funding shall be established annually for the subsequent fiscal year through a detailed annual budget to be prepared by the Commission and the Agency's Executive Director for Tribal Council approval, as provided in § 8.5-27H of this chapter. The Commission budget shall take into account any unexpended funds that may, with approval of the Tribal Council, be retained and carried over by the Commission at the end of each fiscal year to the next fiscal year, excluding funds that are obligated for costs or expenses incurred during the prior fiscal year.
A.
Qualifications. No person shall serve on the Commission if that person:
(1)
Is under the age of 21;
(2)
Is a member or officer of the Tribal Council;
(3)
Is a Judge or employee of the Tribal Court;
(4)
Is employed by any gaming operation or by the Gaming Regulatory Agency;
(5)
Resides in the same household with a person employed as a primary
management official of any gaming operation;
(6)
Has a direct or indirect financial interest in the gaming operation,
including any management contractor, or a direct financial interest
in any supplier of gaming goods or services. For purposes of this
section, direct financial interest shall not include the right to
per capita distributions of gaming revenues pursuant to the IGRA but
shall include direct ownership of stock in a publicly traded company,
and indirect financial interest shall not include ownership of any
mutual funds that hold such stock;
(7)
Is employed or otherwise serves in a position with responsibilities
that create a conflict of interest or the appearance of a conflict
of interest with the duties and responsibilities of the Commission,
as determined by the Tribal Council; or
B.
Additional qualifications. In addition to the qualifications prescribed in Subsection A:
(1)
All members of the Gaming Commission will be required to attend training
on hearing procedures not less than annually to develop and refresh
competencies in serving as administrative hearing officials; and
(2)
Commission members who are not tribal members must possess at least
five (5) years' experience in gaming regulation, financial audits
of gaming businesses, law or law enforcement.
C.
Eligibility determinations; Gaming Commissioner license. Before any
person may take office as a member of the Commission, the Tribal Council
shall arrange to have a comprehensive background investigation performed
on each person to be appointed. The Council shall only appoint a Gaming
Commissioner after it determines that all of the applicable qualifications
and licensing standards for service on the Commission have been met
in accordance with the standards and procedures set forth in this
section.
(1)
All persons appointed to serve on the Commission shall consent to,
and fully cooperate in the conduct of, a comprehensive background
investigation.
(2)
Nominees to the Commission shall complete a license application and shall be subject to the same background investigation process and licensing standards that apply to primary management officials under Article VII of this chapter. Such background investigation shall be performed at the direction of the Council.
(3)
The investigator's report to the Tribal Council shall describe
the investigative process and shall include findings verifying that
the applicant meets all qualifications and licensing standards to
the extent that such findings can be made with reasonable certainty.
Regarding any finding that cannot be made with reasonable certainty,
the investigator's report shall fully disclose all facts and
information obtained through the background investigation that are
relevant to the qualification or licensing standard and shall include
copies of all documents related thereto.
(4)
Upon completion of the background investigation, the Council shall review the report and findings of the investigation in closed session. The Council shall make a preliminary determination in open session, as provided in Subsection D, to either approve or deny an appointment, provided that the background investigation report and all information contained therein shall remain confidential and shall not be included in the public record of the Council session unless the appointee consents in writing to have the information included in the public record.
D.
Final determination; confirmation of appointment. Following review
of the investigative report and findings, the Council shall make a
final determination, not subject to appeal or further review, as to
whether the appointee meets the applicable qualifications and licensing
standards for appointment to the Commission and shall, by majority
vote, either confirm the appointment or deny the appointment.
Commissioners shall serve three-year terms. Commissioners may
serve successive terms of office without limitation; provided that
the Tribal Council shall set terms of office to provide for the staggering
of terms.
A Commissioner shall continue to serve in his or her position
as Commissioner, with full authority, after the completion of his
or her term until such time as he/she may be reappointed or a replacement
is appointed and sworn into office.
Commission members may, at any time prior to the initiation of removal proceedings under § 8.5-23, resign from the Commission by submitting, in writing, a signed and dated letter of resignation to the Commission Secretary or Chairperson and the Tribal Council Secretary or Chairperson. The resignation shall be effective as of the date tendered unless stated in the resignation letter. A copy of the resignation letter will be forwarded to the Tribal Council Secretary.
A.
The Commission may, by majority vote, request that the Tribal Council
initiate a procedure for the removal of a Commission member, and the
Tribal Council may, on its own initiative, initiate a removal procedure
for any member of the Commission by voting to initiate removal proceedings
by simple majority of the Tribal Council for any of the following
reasons:
(1)
Nonfeasance, including the persistent failure to perform the duties
of the office, including failure to attend a significant number of
meetings;
(2)
Misfeasance, including any substantial or repeated failure to exercise
authority or discharge responsibilities in conformity with this chapter,
regulations, the IGRA or the Compact;
(3)
Malfeasance, including:
(a)
A conviction or a plea of guilty or nolo contendere regarding
any felony criminal offense or any other criminal offense involving
dishonesty or moral turpitude;
(b)
Repeat or substantial violation(s) of the code of ethics;
(c)
A knowing violation of this chapter, the regulations, the Liquor
Control Code, or other applicable tribal law that assigns duties or
responsibilities specifically to the Commission;
(d)
Misconduct in office that threatens the integrity or public
image of the Commission; and
(e)
Any conduct or omission which would be cause for denial, revocation
or failure to renew a primary management official's license;
(5)
Physical or mental disability which prevents the performance of duties.
B.
If the Tribal Council has reason to believe that cause for removal of an appointed Commissioner exists, the Tribal Council shall direct that an investigation be conducted by a qualified, independent investigator. If, in the Council's determination, the investigation substantiates the existence of cause for removal, the Council shall notify the Commissioner of the time and place for a hearing before the Council, which notice shall also fully describe the purpose for the hearing and all claims and allegations to be addressed at the hearing. The notice of hearing shall afford the Commissioner subject to removal not less than fourteen (14) business days to prepare for the hearing. Any investigation and hearing under this section shall be conducted in accordance with the procedures prescribed in Article X, except that the hearing shall be conducted by and before the Tribal Council.
C.
If the Tribal Council determines that the conduct involved merits
sanction other than removal, the Tribal Council may, in its discretion,
approve a lesser sanction, which may include censure or temporarily
relieving such Commissioner of his/her duties with pay for a period
not in excess of 30 days.
A.
Vacancies on the Commission shall be filled by Tribal Council appointment
for the balance of the unexpired term.
B.
The Tribal Council shall provide notice of the vacancy to the Band
membership and an opportunity to respond prior to filling the vacancy.
C.
The Tribal Council will make a final determination regarding the eligibility of each prospective nominee to the Commission in accordance with the qualifications and procedures described in § 8.5-19.
D.
The Tribal Council will endeavor to fill any vacancy on the Commission
within forty-five (45) days of the vacancy, or as soon thereafter
as possible, in a manner prescribed by Tribal Council procedures.
Gaming Commissioners shall comply with all requirements of any
general code of ethics adopted by the Tribal Council, as well as the
following ethical standards of conduct:
A.
No member of the Gaming Commission shall have any interest, financial
or otherwise, direct or indirect, or engage in any business or transaction
or professional activity, or incur any obligation of any nature, which
is in conflict with the proper discharge of his/her duties as a Gaming
Commissioner.
B.
No member of the Gaming Commission shall use the position to secure
special privilege or exemptions for himself/herself or others.
C.
No member of the Gaming Commission shall, directly or indirectly,
give or receive or agree to receive any compensation, gift, reward
or gratuity from any sources for any matter connected with or related
to the discharge of his/her duties as a Gaming Commissioner unless
otherwise provided by law and/or regulation.
D.
No member of the Gaming Commission shall accept employment or engage
in any business or profession which he/she might reasonably expect
would require or induce him/her to disclose confidential information
of the Tribe, Gaming Commission and/or gaming operation acquired by
him/her by reason of official position, nor otherwise use such information
for personal gain or benefit (financial or proprietary).
E.
No member of the Gaming Commission shall disclose confidential information
gained by reason of official position, nor otherwise use such information
for personal gain or benefit.
F.
No member of the Gaming Commission shall transact any business in
an official capacity with any business entity of which he/she is an
officer, agent, employee or member, or in which he/she owns an interest.
G.
No member of the Gaming Commission nor any firm, corporation or association,
or other business entity in which such Commissioner is an agent, director
or officer or in which he/she owns a controlling interest, or any
interest acquired after the acceptance of tribal appointment, shall
sell goods or services to any gaming establishment which is licensed
by the NHBP Gaming Commission.
H.
Each member of the Gaming Commission who is an officer, agent, member
of, attorney for, or who owns an interest in any firm, corporation,
association or other business entity which is subject to tribal regulation
shall file a sworn statement with the Tribal Council Chairman's
office, disclosing the nature and extent of his relationship or interest;
said statement to be kept in confidence and to be disclosed only to
the members of the Tribal Council for the purpose of ascertaining
a breach of this code, and the same also to be disclosed to any other
authority having the power of removal of any public officer or servant.
I.
All members of the Gaming Commission shall act in a fair, impartial
and courteous manner in all dealings with licensees and the public.
J.
No member of the Gaming Commission shall accept any gift, discount
or other favor from any licensee that the licensee would not give
freely to the general public. Any gift, discount or favor received
by any member of the Gaming Commission shall be disclosed in writing
and reported to the Commission Chair, the Executive Director of the
Gaming Agency, and the Tribal Council.
K.
Personal solicitation for or payment to any partisan, political organization
for any partisan, political purpose or any compulsory assessment or
involuntary contribution in any official capacity is prohibited.
L.
It is the responsibility of each member of the Gaming Commission
to maintain the fact, as well as the perception, of keeping an arm's
length distance from management and employees of FireKeepers Casino
Hotel and other persons licensed by the Gaming Commission. In order
to maintain this required objectivity, Commission members should not
unnecessarily fraternize with casino team members and should not discuss
any aspect of Gaming Commission operations with management and employees
of FireKeepers Casino Hotel or other licensees.
M.
Gaming Commissioners must only act in an official capacity and as authorized under § 8.5-27. No individual member or member(s) of the Gaming Commission shall have any power or authority to direct or authorize the Executive Director or any employee of the Agency to take any action within the Agency's day-to-day regulatory authority, and members of the Gaming Commission should avoid interactions with employees of the Agency, which might unreasonably interfere with the Executive Director's authority to manage the day-to-day activities of the Agency.
N.
All personal or romantic relationships involving Gaming Commissioners
with employees of the Gaming Agency or FireKeepers Casino Hotel beyond
what would reasonably be described as a "casual social relationship"
must be promptly disclosed to the Gaming Commission Chair, the Gaming
Agency's Executive Director and the Tribal Council. When circumstances
warrant, the Gaming Commission or the Tribal Council may direct an
individual Gaming Commissioner to either terminate a relationship
with any licensee or resign his/her position on the Gaming Commission.
The Chairman and Commissioners shall be compensated at rates
established by the Council. The Tribal Council shall review the rates
of compensation for Commissioners on an annual basis and shall make
adjustments to such rates as the Council determines to be appropriate
to address increases in the cost-of-living or wage deflation. The
Council shall not reduce the rate of compensation for any Commissioner
during a Commissioner's term of office. Commissioners shall be
entitled to reimbursement for actual expenses incurred on Commission
business, including necessary travel expenses, subject to budgetary
limitations and in accordance with generally applicable finance policies
and procedures adopted by the Council or the Tribe's Chief Financial
Officer.
A.
General. The Commission shall be responsible for exercising general
oversight of the Gaming Agency to ensure that the Agency is exercising
its authority to regulate all gaming conducted within the Tribe's
Reservation in a manner that ensures that such gaming is conducted
in compliance with this chapter, regulations approved by the Commission,
the Indian Gaming Regulatory Act and the Compact. In exercising its
oversight authority, the Commission shall avoid unnecessary interference
with the Executive Director's discretion in overseeing the day-to-day
operation of the Gaming Agency and shall refrain from interference
with the authority and discretion of any gaming operations managers
to manage a gaming establishment.
B.
Appointment of Executive Director of the agency. The Commission shall have authority to coordinate with the Tribe's human resource department to recruit, interview and appoint the Executive Director of the Agency. The process shall afford an opportunity for the Tribal Council and Chief Executive Officer of the gaming establishment to review and comment on the qualifications of prospective candidates for appointment as Executive Director. The final decision as to whether any candidate meets the qualifications prescribed in § 8.5-41 shall be left to the discretion of the Commission.
C.
Rule-making authority. The Commission shall have the power and duty to review and approve regulations recommended by the Agency, or to initiate the development of proposed regulations for approval, to ensure the integrity of gaming and protection of assets of gaming establishments, including, but not limited to, regulations addressing those subjects described in § 8.5-40C.
D.
Rule-making process.
(1)
The Commission shall give notice of its intent to adopt a regulation
by posting a copy of the notice in the tribal administration offices
and by delivering a copy of the notice by United States Mail or other
appropriate means to the Tribal Council Secretary, the Tribe's
Legal Department, legal counsel for any gaming operation (if applicable),
and the chief executive officer of each gaming establishment. The
notice shall include a copy of the proposed regulation and a description
of the nature and effect of the proposed regulation. In addition,
the notice shall include the following statements:
(a)
The Commission shall afford interested parties not less than
thirty (30) days from the date of the notice to submit comments on
the proposed regulation. The Commission may, in its discretion, provide
additional time and/or additional opportunities for interested parties
to comment on proposed regulations as circumstances warrant or permit.
(b)
The Commission shall review all comments received during the
comment period and, based on such comments, shall make such changes
to the proposed regulation as the Commission deems necessary or appropriate.
(2)
The Commission shall fully consider and address all comments recommending changes to the proposed regulation that are based on sound analysis or are supported by reliable data and information. Prior to taking action to approve any regulation, the Commission shall provide not less than fourteen (14) days' notice of its intent to adopt the final regulation to the persons listed in Subsection D(1), above, and to any other person who submitted comments on the proposed regulation. The notice of adoption shall summarize the final regulation and the changes to the proposed regulation. To the extent practicable, the notice of adoption shall include written responses to all substantive comments, provided that the Commission may offer a single response to substantially similar comments.
(3)
Following the expiration of the fourteen-day notice, the Commission
shall schedule a meeting to approve the regulation and shall, by official
action, set the effective date of the regulation, and publish and
post copies of a notice of adoption of the regulation in the same
manner as for the notice of intent to adopt the regulation. The notice
of adoption shall state the effective date of the regulation and shall
announce that copies of the regulation are available from the Commission.
Copies of the notice and the final regulation shall be delivered to
all persons who were sent a copy of the notice of intent.
(4)
Emergency rules. The Commission shall have the authority to adopt emergency rules if the adoption of a rule is necessary for the immediate preservation of the public peace, health, safety, welfare, economic security, or morals, or, to address a substantial void in current regulations, the Commission may adopt such rules as may be necessary in the circumstances, and such rule may become effective immediately. Any such emergency rule shall forthwith be published and filed in the manner prescribed in Subsection D(3), above. No such rule shall remain in effect longer than 180 days after the date of its adoption pending completion of notice and comment rulemaking procedures described herein. Whenever feasible, the Commission shall afford the Tribe's Legal Department, legal counsel for each gaming establishment (if applicable), and the chief executive officer of each gaming establishment an opportunity to comment on emergency rules prior to adoption of such rules.
E.
Licensing of gaming facilities. The Commission shall have the authority to approve licenses for gaming facilities as prescribed in Article VI of this chapter.
F.
Adjudicating administrative appeals. The Commission shall have the
power to hear appeals from the following final orders or decisions
of the Agency:
(1)
Decisions to suspend, restrict or revoke a license for:
(a)
Any direct and immediate threat to the health, welfare or safety
of the public;
(b)
The failure to make prompt and satisfactory progress to correct
a problem that was the basis for a license suspension or other disciplinary
measure;
(c)
Repeated or substantial violations of this chapter, the regulations,
the IGRA, the Compact, or other applicable laws;
(d)
The failure to maintain eligibility for the license; and
(e)
The failure to remain eligible for a gaming license in any other
jurisdiction where the person is an applicant for or maintains a license,
permit or other approval related to gaming.
(2)
Any final order of the Executive Director which:
(a)
Directs the gaming operation, or any licensee, to take specified
corrective actions, or to refrain from taking a specific action deemed
to violate this chapter, the regulations, the IGRA, the Compact or
other applicable laws within the Commission's jurisdiction;
(b)
Assesses any monetary fine or penalty against the gaming operation
or employee of any gaming operation, or vendor for violations of this
chapter or any regulation.
G.
Additional powers. The Commission shall also have the power to:
(1)
Compromise, negotiate or settle any dispute to which the Commission
is a party relating to the Commission's authorized activities;
(2)
Conduct such oversight hearings, and to request information and reports
from the Gaming Agency, to determine the effectiveness of regulations
and laws, or the need for additional regulations, as the Commission
may deem appropriate in carrying out its duties, including administering
oaths or affirmations to witnesses and issuing subpoenas to compel
the production of records and the appearance of witnesses at such
hearings.
H.
Establishment of budget. The Commission shall establish an annual
budget for its operations, which shall be presented to the Tribal
Council for review and approval in accordance with deadlines prescribed
by the Tribal Council. The Commission shall have the authority to
expend funds within the approved budget without further authorization
from the Tribal Council, subject to generally applicable tribal accounting
and procurement policies.
A.
Regular meetings. The Commission shall conduct a regular meeting
once a month at the Commission office or at any other designated meeting
place. The Commission shall provide by resolution the time and place
for regular meetings. A meeting agenda shall be distributed to all
Commission members at least forty-eight (48) hours in advance of the
regular meeting, which shall be subject to change by a majority vote
of the Commission at such meeting.
B.
Special meetings. Special meetings shall be called by the Commission
Chair as necessary to carry out the official duties of the Commission.
Notice of each special meeting may be given to each Commission member
by hand delivery, telephone, mail or such other method as the Commission
may establish. Notice of the special meeting and a proposed agenda
shall be delivered to Commission members at least forty-eight (48)
hours in advance of such meeting and shall include the date, time
and place of the meeting. The agenda for the special meeting shall
be limited to the matters stated in the notice of the meeting unless
all members are present at the meeting and a majority agrees to the
change to the agenda.
C.
Emergency meetings. An emergency meeting may be called by the Chair
of the Commission with less than twenty-four (24) hours' notice,
provided that the business proposed to be taken up at the emergency
meeting cannot reasonably wait for a special or regular meeting. The
Chair of the Commission shall make every reasonable effort to provide
all Commissioners with as much prior notice of the meeting as possible
under the circumstances. The agenda for the emergency meeting shall
be limited to the business proposed in the meeting notice.
D.
Waiver of notice. The notice requirements regarding any special or
regular meeting may be waived if all members are present at such meeting
and consent to the calling of the meeting.
E.
Meetings open to the public. All meetings of the Commission shall
be open to the public; provided, however, that the Commission may,
in its discretion, close any portion of any meeting to the public
when discussing any information which the Commission deems confidential
pursuant to the provisions of this chapter.
F.
Alternative meeting arrangements. Meetings may be conducted by a
telephone conference, videoconference, web conference or similar means,
as the Commission Chairman deems necessary, subject to such requirements
as the Commission may establish. Commission members may participate
in any meeting by means of speakerphone or telephone conference, videoconference
or similar means, provided that all members participating in the meeting
can hear and be heard by each other. A member's participation
in a meeting described in this subsection without objection at the
commencement of the meeting shall be deemed consent to the manner
in which such meeting is conducted.
G.
Meeting procedures. The Commission shall prescribe rules of procedure
regarding the conduct of its meetings, provided that such rules may
not conflict with this chapter or other applicable tribal law. Any
question regarding meeting procedure that is not addressed by this
chapter, other applicable tribal law, or by rules of procedure established
by the Commission may be resolved by consulting Robert's Rules
of Order.
H.
Hearings. The Commission shall conduct hearings on administrative appeals in accordance with the procedures prescribed in Article X of this chapter. The Commission shall prescribe rules of procedure for the conduct of oversight hearings authorized by this article and such additional rules regarding the conduct of administrative appeals as the Commission deems necessary, provided such rules may not conflict with this chapter or other applicable tribal law.
A quorum of the Commission shall consist of at least two Commissioners
(which may or may not include the Chair). All decisions shall require
the affirmative vote of not less than two (2) members of the Commission,
unless indicated otherwise in this chapter.
A.
Tribal Council will designate a Chairperson for the Commission. The
Commission will select among its members a Vice Chairperson and a
Secretary. The term of office for officer positions shall be for the
term of that Commission position, and members may serve more than
one term in that capacity.
B.
The Vice Chairperson shall assume the duties of the Chairperson in
the Chairperson's absence. The Secretary shall maintain an official
record of all Commission meetings and all other records required to
be maintained by the Commission.
The Commission shall maintain a permanent administrative office.
Such office shall serve as the Commission's main business office
and shall be the site at which Commission records and documents are
maintained and stored on a permanent basis. No person except a Commissioner
or other authorized employee or agent of the Commission may possess
a key to or may enter any Commission office without the permission
of the Commission. No person may access such records except a Commissioner,
a person duly authorized by the Commission or an attorney for the
Commission or Tribe.
The Commission shall maintain complete records regarding the
following, with due regard for the confidentiality of selected records:
A.
Meeting minutes from all Commission meetings;
B.
Transcript or minutes from all hearings conducted by the Commission;
C.
Commission budget and expenditures;
D.
Communications and correspondence with the Tribal Council, tribal
agencies and officials, and state and federal agencies and officials;
E.
Any other records or documents the Commission deems necessary or
appropriate.
A.
The Commission shall make monthly written reports to the Tribal Council.
Such reports shall contain the following information:
(1)
The number of meetings or hearings held, attendance at such meetings/hearings,
and significant items on the Commission's meeting or hearing
schedule(s) (i.e., regulation drafts in process; type of hearings;
reports of activities from the Gaming Agency);
(2)
A summary of any Commission travel and training; and
(3)
All other information which the Commission deems relevant in order
to keep the Council adequately informed on all current gaming matters.
B.
Nothing in this section shall be construed to authorize the Commission
or Commission staff to provide the Council with any confidential information
pertaining to a pending regulatory or criminal investigation.
