By ROBERT JUMPER
One Feather Editor
The Tribal Employment Rights Office (TERO) held a training on Wednesday, July 20 to help program personnel better understand the Independent Contract Agreement (ICA), which is the Eastern Band of Cherokee Indians (EBCI) standardized contractual agreement for establishing formal working relationships for products and services. Hosted by Terri Henry, executive director of TERO, the training was conducted by Michael McConnell, EBCI’s attorney general.
The Attorney General (AG) did a step-by-step overview of the entire ICA, highlighting areas that often require additional attention when drafting an agreement. He provided a copy of the blank agreement (and used a digital screen to visualize an agreement) and a copy of the procurement section of the tribe’s financial policy.
The current agreement originated in the early 2000s in hopes of creating a document to be used for all purposes. Because it was difficult to create a contract that would address all the many contractual situations the Tribe would encounter, the legal division of the Tribe anticipated that some contractors would request changes.
AG McConnell cautioned that, in drafting an agreement, tribal representatives should be careful as to what they change. “There are areas that are more sensitive than others. There are some areas that we must resist changing.”
AG McConnell stated that there are parameters that the courts look at within a working agreement between parties to determine if the relationship is a contractual one or an employment. The Tribe and contractor have different obligations to each other than that of a person who is employed by the Tribe. One of the factors that is weighed by the court is how much control the Tribe exerts over the contractor. At some point, the control might so be intense that the contractor would say that they are no longer under contract but are employed by the Tribe.
And that would really heighten the responsibility of the Tribe, according to AG McConnell. He said that there are about 15 items or areas that the court looks at to determine whether a service provider is a contractor or an employee. As a business separate from the Tribe, the ICA helps to identify contractors work as contract work and not employee labor, making the contractor accountable for supplying the resources, including staff, to do the scope of work required by the Tribe through the agreement.
AG McConnell reviewed each area of the ICA, including the contract amount and pay. He also talked about the importance of establishing a time frame for completion with a clear deadline. In a later portion of the tribal agreement, it lays out a “Time is of the Essence” provision, ensuring that if the contractor doesn’t fulfill the work in the time allotted, then the Tribe has a better standing if a dispute arises that must be decided in court.
He emphasized that valid start dates are important for an agreement and that prospective contractors should not be doing work if they do not have a completely signed contract with a valid start date on it. While he emphasized that the Tribe stands by its commitments, a program or entity of the Tribe and the contractor could find themselves in a bad position should the tribal leadership decide that they would not sign off on an agreement that a contractor might have started before having a valid contract with a valid start date.
AG McConnell emphasized the importance of a well written scope of work for a contract. “Writing a scope of work, that is where the meat and potatoes of your contract are. That is for the performance side.”
He also shared why the contract is so important to the Tribe. “The key is, if it’s not in writing, it doesn’t exist. When you write a contract, you are creating your world and the contractor’s world. In the old days, having an oral or spoken contract was very common, more common than written contracts. But the world has flipped. The world has changed. We are not working with a neighbor or someone down the street. We may be working with someone in a different state. And we don’t have those relationships to say ‘hey, make good on what you said’.”
Henry addressed the group and introduced the TERO team. She thanked AG McConnell for leading the discussion and training. She also indicated that there would be another Fundamentals of the Independent Contractor Agreement training in the Cherokee County/Snowbird Community in August.