The debate over a 2011 Congressional subpoena demanding six months worth of emails from Treasurer William Kemble is now being considered in Osage Nation Trial Court.
Attorneys for the Second Osage Nation Congress and Kemble argued for their clients at the Tribal Courthouse during a Jan. 26 hearing. Judge Marvin Stepson will rule on the Congressional subpoena being challenged by Kemble.
On Aug. 2, 2011, Congress served Kemble the written subpoena after its government operations committee started investigating the accounting department operations in July after receiving tips about potential problems in the office and whether the Nation’s funding is entirely collateralized at the banking institutions it’s kept in.
According to the subpoena, the Congress ordered him to submit nine pieces of information and documentation. Kemble responded to eight of the nine subpoenaed items, but he is contesting the ninth item which is: “All of your e-mails from any Osage Nation owned computer from February 1, 2011 to the present day concerning any aspect of your job.”
Kemble, through legal counsel, filed a motion to quash the Congressional subpoena on Sept. 9 in tribal court, which was also the deadline set by Congressional Speaker Jerri Jean Branstetter for the information in the subpoena, or he would be considered in contempt of Congress.
Kemble argues the email demand would cause an undue burden and hardship, as he would need to sort through six months worth of emails that he said totaled over 3,000. Kemble also argues several of those emails contain “privileged” communication with Principal Chief John Red Eagle and Assistant Principal Chief Scott BigHorse as well as communication considered attorney-client privileged information.
Congress is opposing the quash motion stating that Kemble has not provided evidence that review of his emails would create an undue unburden or hardship, according to its written response to the quash motion. In court, the Congressional attorney also argues that modern technology can be used to sort through the emails in a timely manner.
Stepson did not opine on the case during the Jan. 26 hearing but asked both government branches’ attorneys to submit their final documents of case facts and findings within 10 days. Stepson said he would use those documents to make a ruling in the case.
Congress (including its committees) has the authority to issue subpoenas for documents and witnesses as deemed necessary under the Congressional Subpoena Act (ONCA 07-48), which both branches cited in their arguments. Those subpoenas require a majority approval vote of the Congress or committee issuing them and must be signed by the Congressional Speaker. Subpoena subjects who do not comply with a Congressional subpoena face a contempt charge with a fine not exceeding $500 or a one-year jail sentence, or both.
Daniel Lewerenz, an Oklahoma City-based attorney representing Kemble, said Kemble may contest the subpoena, per ONCA 07-48, in court if it “subjects a person (to) undue burden or hardship.”
In a Sept. 12 court filing, the Congress challenged Kemble’s quash motion which did not contain supporting evidence to prove a burden in providing the subpoenaed emails.
Kemble responded with a Sept. 16 sworn affidavit, which states his computer files contain 3,145 emails he sent or received during the six-month period specified in the subpoena. Kemble, who did not comment on the court hearing, previously told the Osage News (of the email total): “That's definitely an undue burden in my book, and I think the Court will agree.”
Lewerenz argued that Kemble could spend over 40 work hours to sort through his emails – not counting time spent on other daily work duties. Lewerenz said if Kemble spends one minute to examine each email, he would be spending up to 52 hours to determine whether its contents concern any aspect of his job.
“The tribe just doesn’t operate without a Treasurer for a week,” Lewerenz said. In his affidavit, Kemble also said sorting through the emails would be a burden to him “because of the sensitive nature of review for privileged communications, I would not be able to delegate this task, but would have to perform it myself, inhibiting my ability to fulfill my duties as Treasurer.”
Loyed “Trey” Gill, Congressional legal counsel, said Congressional Speaker Jerri Jean Branstetter, who signed the Aug. 2 subpoena, acknowledged that communication between Kemble and the Chiefs is considered privileged communication (per ONCA 07-48) but questioned whether producing the emails would be burdensome.
Gill said the Nation’s work computers are equipped with Microsoft Outlook, which contains a search engine feature for users to sort through emails by date, keyword and sender/recipient. “(Kemble) has the ability to remove privileged information,” Gill told the court.
In challenging the burden argument, Gill said a Congressional staffer sorted through 1,000 emails, which took 30 minutes. “It probably took a longer time to draft the motion to quash the subpoena than producing the emails,” he said.
Lewerenz noted that ONCA 07-48 does not address documents containing attorney-client privilege information and said the subpoena email demand is “vague” and lacks “particularity,” which is called for in Section 5 of ONCA 07-48.
“It does not list a scope of particular inquires,” Lewerenz said adding that something Kemble thinks is an aspect of his job “may not be the same” as what other people think is an aspect of the Treasurer’s job.
Stepson asked what could be considered privileged material in the emails in addition to communications with the Chiefs. Lewerenz said his office, Hobbs, Straus, Dean & Walker, has been in contact with Kemble regarding the previous subpoena issue and reports associated with it are considered attorney-client privilege.
Congress voted to issue the Aug. 2 subpoena to Kemble for the nine items after the Congressional Committee on Government Operations started investigating the accounting department. The committee conducted interviews with several accounting workers and Kemble on July 14 and 15.
The government operations committee issued a Sept. 7 report with findings such as: Kemble: “implemented new policies and procedures, in the absence of an emergency, without submitting them to (Congress) for approval in violation of the Treasury law (ONCA 06-02); has failed to adhere to the existing approved policies and procedures; and has moved Minerals Council funds without the knowledge and authorization of the members.”
The committee report refers to a June 2011 transfer of Osage Minerals Council money from one Pawhuska bank to another without the involvement of OMC members. Regarding the transfer, the report states: “The Committee finds that the Treasurer should be directed, by Executive Order, not to transfer or withdrawal funds out of Minerals Council accounts without the consent of the Minerals Council.”
Kemble said during his July 15 subpoena interview the money transfer was done to address collateralization issues so the money is protected. Regarding the transfer, the report states: “The Treasurer has allowed funds to remain undercollateralized periodically throughout this fiscal year at First National Bank of Pawhuska, placing funds at risk of loss.”
The Aug. 2 subpoena issue is independent of the latest development regarding a Congressional investigation of Kemble’s office.
The Congress voted 10-2 to form the Select Committee of Inquiry Jan. 4 during its 13th Special Session after Congresswoman Shannon Edwards made the motion and listed 11 allegations against Kemble which include those specified in the July subpoena report.
Five Congress members will serve on the Select Committee of Inquiry to investigate the allegations. The committee must submit a written report of its findings and conclusions if it finds sufficient grounds exist for the Congress to consider a trial for removal.
Congress will start its 15th Special Session on Feb. 6 at 10 a.m. with the Select Committee of Inquiry business listed as the sole item on the Legislative Proclamation announcing the special session.