ZenniHome hearing opens without subpoenaed witness testimony

DÁ’DEESTŁ’IN HÓTSAA

No subpoenaed Executive Branch officials testified Monday as the Budget and Finance Committee opened an investigative hearing into federally funded housing contracts after the Navajo Nation Department of Justice advised employees not to participate.

President Buu Nygren and Chief Legal Counsel Bidtah Becker, who were scheduled for today, did not testify during the June 8 hearing in the Council Chamber in Window Rock.

BFC Chair Shaandiin Parrish was not present. Vice Chair Carl R. Slater conducted the hearing.

The BFC did not go into executive session. The committee recessed to see whether subpoenaed witnesses would appear at 1 p.m., but no witnesses testified. The hearing ended earlier Monday and is scheduled to continue Tuesday at 10 a.m.

The hearing concerns federally funded Navajo Nation contracts for housing and related matters under Resolution BFJY-55-25, according to subpoena language reviewed by the Navajo Times.

The language states recipients were ordered to appear before the Budget and Finance Committee at 10 a.m. Monday and produce records tied to American Rescue Plan Act funds and Fiscal Recovery Funds received by the Navajo Nation for housing contracts and related matters, including contracts between IDS+A and ZenniHome.

The subpoena cites the authority of the BFC to hold investigative hearings and the authority of Speaker Crystalyne Curley to issue subpoenas under Navajo law.

The proposed agenda listed the hearing dates as June 8 through June 18, beginning at 10 a.m. each day. It states witnesses would be sworn in and questioned by BFC members, the Office of Legislative Counsel and the Office of the Auditor General.

DOJ cites privilege

In a confidential attorney-client privileged memorandum obtained by the Navajo Times Monday morning, Acting Deputy Attorney General JoAnn B. Jayne wrote that DOJ had been made aware of subpoenas issued by Curley commanding Executive Branch employees to appear and produce documents at the hearing.

Jayne appeared before the BFC on Monday and told members the memorandum was protected by attorney-client privilege.

“The confidential client-attorney privilege has not been waived,” Jayne said.

Slater questioned why the DOJ sent a notice to employees who may have received subpoenas but did not ask the BFC, the speaker or the Office of Legislative Counsel for a list of subpoenaed witnesses.

Jayne told the BFC that the DOJ did not know all the witnesses who had been subpoenaed. She said the DOJ knew only of subpoenas given to people within the department and sent the notice because it represents the Navajo Nation government.

“The government is actually a client to the Department of Justice as well,” Jayne said.

Slater questioned what obligation the DOJ had to advise the BFC after it learned the investigative hearing had been authorized and after subpoenas were issued.

Jayne asked for an executive session, saying some of the information she would share could be privileged.

Slater asked her to cite the section of Navajo Nation law that required executive session for attorney-client privilege.

“We’re bound by a higher level here at the Council for entering into executive session,” Slater said. “We have an obligation to provide public testimony and information to the Navajo people.”

He said the BFC needed a specific citation and understanding before moving into executive session because of concerns that attorney-client privilege can be overused to keep public information from being released.

Jayne told Slater she would look for the citation.

In the memo obtained by the Navajo Times, Jayne wrote that it applied to all DOJ “clients” who received subpoenas for the investigative hearing “for any date, time, or location.”

The memo states that some individuals received amended subpoenas for different dates and times, as well as additional correspondence changing the location.

Jayne wrote that DOJ provides legal services to all three branches of government and represents the government’s interests in legal matters. The memo states that the investigative hearing is “fundamentally inconsistent with the law” and advises recipients not to attend or testify.

The memo states that compelling witnesses to testify about legal matters pending with a special prosecutor could prejudice the Navajo Nation’s rights in ongoing legal efforts, harm the integrity and stability of the government and force disclosures that could violate rights established in the Navajo Bill of Rights.

The memo also raises concerns about attorney-client privilege. The memo states that hearing rules require the proceeding to be held in open session, but communications between elected tribal officials, officers, employees or agents of the Navajo Nation government and its attorneys are protected by attorney-client privilege.

No waiver of attorney-client privilege for the Executive Branch has taken effect without the express approval of the attorney general, according to the memo. Jayne wrote that Acting Attorney General Kris Beecher or a designee has not provided a waiver.

“Therefore, the hearings violate applicable Navajo law,” the memo states.

The memo advises subpoenaed clients not to testify or participate in the investigative hearings to protect their legal interests and the best interest of the Navajo Nation.

A separate email obtained by the Navajo Times was sent to employees who received subpoenas. The email repeats DOJ’s advice not to participate or testify at the hearing and states that the department provided a response letter to the BFC advising against holding the investigative hearing.

“The Department of Justice has notified the Committee that the Investigative Hearing is fundamentally inconsistent with the requirements of the law and the interests of the Navajo Nation,” the email states. “We have informed the committee that we have advised our clients not to attend or testify in the hearing.”

Slater questions court filing

Slater also questioned Jayne about a June 4 application for a temporary restraining order, preliminary injunction and motion to stay the BFC investigative hearing.

Slater said the filing was brought by Nygren and sought to block the hearing from moving forward.

Jayne asked to discuss the matter in executive session, saying DOJ could answer questions there as counsel for its clients.

Slater asked whether an application for a temporary restraining order, preliminary injunction and motion to stay filed with a district court is a public document.

Jayne said anything filed with the court is a public document but added that if a filing concerns information covered by attorney-client privilege, then it is not open for discussion.

Slater said the BFC had received no legal advice from DOJ on the court filing or the hearing process before receiving the attorney-client privileged memo Monday morning. He said the filing attempts to stop the investigative hearing and argues that the 2010 Special Prosecutor Act should suspend Legislative Branch investigations, including BFC hearings.

Slater said the BFC had read its powers and authorities into the record at the start of the hearing. He said the committee was concerned about attempts to block legislative oversight authorized under those powers and subpoena authority.

Slater said the BFC does not believe the temporary restraining order filing has shown a legal basis for an Executive Branch official to suspend or override investigative authority delegated to the BFC.

He also said a written agreement between the special prosecutor and the chief legislative counsel had been signed May 21 and submitted to the court, satisfying a statutory requirement under the law he cited during the hearing.

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