STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

DONNA L VANDIVER, Employee

MOLE LAKE BAND, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04201222RH


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, no benefits are payable based on work performed as treasurer for this employer.

Dated and mailed February 9, 2005
vandido . usd : 164 : 1  ET 490

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

In the petition for commission review the claimant argues that the position of tribal treasurer does not meet the definition of "elected position" as contemplated by the legislature. The claimant states that Article XIII of the Wisconsin Constitution provides that the only permissible process for recall of true elected officials is by a recall election. She maintains that an elected official may not be fired by an individual or small committee, and that a position subject to such summary termination is not truly an elected position. The claimant's arguments fail. The Tribal constitution specifically provides for the removal of members of the Tribal Council by an affirmative vote of three Council members, and does not require a recall election. Moreover, the statutory exclusion in question, which applies both to units of government and Indian tribes, does not speak to the method or manner in which the elected official loses his or her office, but only to the manner in which he or she is elected. Specifically, the statute provides that employment does not include service "as an official elected by vote of the public." Wis. Stat. § 108.02(15)f. The claimant testified that she was elected in a public election by the tribal membership. While in her petition she contends that she was not elected by a vote of the general public, since only enrolled members of the Mole Lake Band could vote, that argument is without merit. Given that the statute specifically applies to Indian tribes, the phrase "elected by vote of the public" clearly contemplates a vote by the tribal membership. Any other interpretation would render the statute invalid with regard to the elected officials of an Indian tribe. Accordingly, the appeal tribunal decision is affirmed.

cc: Attorney Robert E. Hanson



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