OSGC & GBRE Business Mysteries: Unaccountability for Acts

The General Tribal Council of the Oneida Tribe of Indians of Wisconsin is the shareholder of Oneida Seven Generations Corporation.

The Oneida Business Committee is the representative of the shareholder and is supposed to act in the interests of the shareholder and to take direction from the shareholder.

The ability of the shareholder to make informed decisions with regard to OSGC requires that the shareholder have adequate access to information and documentation.

OBC and OSGC appear to be conspiring against the real shareholder by keeping GTC in the dark which has led to unaccountability for actions that have and will negatively impact the shareholder.

For example, for almost a year-and-a-half the OSGC page on the Oneida Tribe’s website has hosted an outdated version of OSGC’s Corporate Charter from January 18, 2011 despite the fact that the Charter was revised on February 8, 2012.

Additionally, the OSGC page on the Tribe’s website is supposed to host the most recent copy of OSGC’s by-laws, but as you can see that information is entirely missing and in its place is a template that just says, “To be a member of the [body], applicants must meet the following qualifications: • Refer to by-laws; • Refer to by-laws; • Refer to by-laws.” If only the shareholder could refer to the by-laws!

In fact, when the Tribal Secretary’s Office was asked in April 2013 for a physical copy of the most up-to-date version of the by-laws, the copy that was provided was from December 11, 1996. While it’s possible that no changes have occurred in seventeen years it seems highly improbable.

What’s taking the Tribal Secretary’s office so long to provide up-to-date information online and in the Secretary’s Office to keep the shareholder informed? Is the shareholder being intentionally deprived of information to which they have the right of access? And, if so, at whose behest and for whose benefit?

Included in the February 8, 2012 version of OSGC’s Charter is the Corporate Report Model established by Resolution 01-26-11-A, ‘Amending the Corporate Charter of Oneida Seven Generations Corporation,’ which amended Article XIII of the January 18, 2011 version of the Charter by “deleting the language in that article and replacing it with the language of the amendment.

Resolution 01-26-11-A states:

The Secretary or other designated reporting officer of the Corporation shall file reports with the Oneida Business Committee and General Tribal Council in accordance with this Article. Reports shall be prepared at least quarterly to coincide with the annual meeting of General Tribal Council, with other reports quarterly to the Oneida Business Committee or as required by the Business Committee as the shareholder/member of the corporation.

However, in her March 12, 2013 Memorandum regarding the Anti-Incineration petition approved by GTC on May 5, 2013, Chief Counsel Jo Anne House wrote regarding a 2008 petition by Madelyn Genskow:

The legal opinion identified that shareholders of corporation (i.e. the Tribe) have access to certain information as defined in Tribal law and the corporate charter.

Chief Counsel House goes on to write:

The charter for Oneida Seven Generations Corporation identifies that the shareholder, as represented by the Oneida Business Committee….

Therefore, the wording of Resolution 01-26-11-A is erroneous because it suggests that OBC is the “shareholder/member” when in fact OBC only acts on behalf of the actual “shareholder/member” of OSGC which is “the Tribe,” which in ownership voting matters regarding OSGC is in fact GTC.

The reports called for by Res. 01-26-11-A are: Narrative Report, Financial Report and Disclosure Report.

According to Section 1 (B) of Res. 01-26-11-A, Narrative Reports “should include, but are not limited to, at a minimum” among others these components:

e. Explanation of any material changes or developments in the market or nature of business the Corporation is primarily engaged in since the last reporting period.

j. Summary of the assets of the Corporation, including but not limited to its financial, physical, employee, customer, brand or intellectual property, and supply assets.

k. Summary and status update of any pending legal action to which the Corporation may be subject.

Here is a copy of OSGC’s Narrative Report as of March 31, 2013. This is how OSGC addressed the “financial” and “physical” aspect of item j:

Financial / Physical: Checking accounts; Buildings; Other Business Ventures.

Quite the informative summary, no? Who could ask for more? Other than perhaps the shareholder to whom a meaningful summary is due.

Also important in relation to item e is the conspicuous absence of any mention of very significant “material changes or developments in the market…of the business[.]” Specifically, that on May 5, 2013 the shareholder of OSGC – General Tribal Council – passed the following resolution:

General Tribal Council directs the Oneida Business Committee to stop Oneida Seven Generations Corporation (OSGC) from building any “gasification” or “waste-to-energy” or “plastics recycling” plant at N7239 Water Circle Place, Oneida, WI or any other location on the Oneida Reservation.

Clearly this is a remarkable sea change for OSGC ‘s market as its shareholder has informed the corporation and the world at large that it has no interest in buying what OSGC is selling when it comes to an important component of its business. Surely that would be of interest to the tribal and municipal governments that OSGC supposedly intends to market its undesirable incinerator plans to.

Instead of acknowledging the crucial importance of GTC’s overwhelming rejection of its incinerator endeavors, as well as the adjudicative rejection by the City of Green Bay, OSGC’s Narrative Report simply provides the following understatement:

OSGC is currently in litigation with the City of Green Bay regarding our rescinded permit.

No mention of the fact that OSGC is now appealing the suit it lost on January 9, 2013, nor any mention of the fact that OSGC is apparently in such dire financial straits that it had to ask OBC for $750,000 to pursue its failed lawsuit and improbable appeal of that loss. In other words, a misrepresentation of the basic facts which one has to assume is intentional.

OSGC’s Narrative Report also mentions:

OSGC reached a formal agreement with a former tenant to collect back rent. The former tenant failed to comply with the agreement and we are seeking a judgment to make the former tenant comply with the agreement.

As Oneida Eye has previously posed hypothetically, what if it turned out that OSGC or one of its business ventures was itself several years in arrears to the Tribe or departments of the Tribe? Who would be responsible for seeking judgment against them, especially regarding any agreements with the Oneida Casino given that OSGC President & Chairman Atty. William Cornelius is Counsel to the Oneida Gaming Commission?

According to Res. 01-26-11-A, information about debts owed by OSGC or its business ventures would be part of the Financial Report:

…due quarterly to the Oneida Business Committee with copies to the Oneida Treasurer and Chair of the Oneida Audit Committee and as otherwise demanded by the Oneida Business Committee as the representative owner of the Corporation.

Yet, as was noted before, OBC is not the “representative owner of the Corporation” but merely the representative of the owner/shareholder/member of the Corporation, which is in fact General Tribal Council.

Res. 01-26-11-A specifically says regarding Financial Report Access:

They may be disclosed with permission of the Corporation’s Board and/or the Owner for economic solicitation purposes or as demanded by the Owner.

The Tribe – through General Tribal Council – owns OSGC and therefore can direct OBC on matters regarding OSGC. Therefore, it seems quite obvious that the Owner – GTC members – plainly have a “legal or legitimate need to know such report information.”

As for the Disclosure Reports that OSGC is required to prepare, Res. 01-26-11-A says in Section 3 (A):

Disclosure Reports Defined: Disclosure reports financial and familial relationships and connections between the Corporation and other entities, as well as members of the Corporation’s Board and key management personnel. Any financial or legal relationship, ownership interest, or any blood kinship within the Corporation and its financial practices or partnerships shall be detailed in a structured and easy to understand format.

It goes on to say in Section 3 (B):

The Disclosure report shall include, but not be limited to, the following detailed information:

a. Names and title of all of the Corporation’s Board members’ names, time in position, and date when position shall be up for renewal or replacement (if applicable).

b. Names and title of all of the Corporation’s key management personnel, with length of service in that position, and if under contract, when that position is up for renewal or expiration of the contract term.

c. Summary of any financial or familial relationship between any of the people in part a. or part b. in this Section, as well as any relationship, financial or familial with any current member of the Oneida Business Committee or any member of any regulatory body within Oneida such as a board committee or commission charged with regulating the Corporation’s industry or activities.

d. Names of any other person, whether it be a business in any legal form or an individual, doing business with the Corporation for purposes of mutual enterprise (i.e. including but not limited to: joint ventures; membership in an LLC together; acquisition of a subsidiary; partnership).

e. Summary of the financial transactions or relationship between those listed in d. above in this Section and the Corporation, including the purpose of the mutual enterprise, legal relationship, or other connections between the Corporation, its Board or its key management personnel and this other named entity or person.

Section 3 (C) says that a Disclosure Report is due “whenever there is a change to the Corporation’s Board membership, turnover to key management personnel, or a business venture creating a new partnership, LLC, subsidiary, or any other legal entity connected to the Corporation for any purpose.

Finally, Section 3 (D) says, “Disclosure reports are proprietary and considered confidential information owned by the Oneida Tribe of Indians of Wisconsin, to be retained by the Secretary’s office. Disclosure reports are submitted to the Oneida Business Committee and accessible only to those authorized officers, officials and personnel of the Oneida Tribe of Indians of Wisconsin with a legal or legitimate need to know such report information.

So how can OSGC’s owner – General Tribal Council – get an understanding of whether or not OSGC is fulfilling its disclosure report obligations? For starters we can look at the OSGC Disclosure Report as of December 31, 2011 which was submitted as part of the open record in the meeting packet for the February 22, 2012 OBC Regular Meeting.

Here we find stunning omissions of disclosure that undermine the very purpose of requiring a Disclosure Report in the first place. Let’s look at the most egregious examples of omitted information:

  • OSGC manages properties on land owned by the Tribe and the Oneida Land Commission oversees land use and zoning, yet the report fails to note that Land Commission Chairperson Amelia Cornelius is the mother of OSGC CEO Kevin Cornelius.
  • OSGC and some of its business ventures have contracts and agreements which must be reviewed and approved by the Oneida Gaming Commission, yet the report fails to note that OSGC President & Chairperson Atty. William Cornelius is Counsel for the Oneida Gaming Commission and that Gaming Vice-Chairperson Amelia Cornelius is the mother of OSGC CEO Kevin Cornelius and she oversees the contract between Atty. William Cornelius and the Oneida Gaming Commission in addition to having approval of contracts between Oneida gaming operations and OSGC ventures including Oneida-Kodiak Construction, LLC, and Oneida Generations, LLC.
  • OSGC doesn’t disclose that Oneida Generations, LLC, has a Memorandum of Agreement with the Oneida Tribe, nor that Oneida Generations receives monthly lease payments from the Oneida Casino for occupancy of the 29/32 Travel Center.
  • Names of persons whose businesses are doing business with OSGC for purposes of mutual enterprise are entirely omitted.
  • While registered agents’ names can be found publicly on the Wisconsin Dept. of Financial Institutions website, the owners, partners and key personnel of each entity is not listed. For example, the board members of Oneida Energy, Inc., which include President William Cornelius, CEO Kevin Cornelius, Director Nathaniel King and Michael Metoxen are not disclosed.
  • The very existence of Green Bay Renewable Energy, LLC, which was formed on December 15, 2011 and registered in the State of Delaware and is a co-party with OSGC in their failed lawsuit and current appeal against the City of Green Bay, is completely absent from the Disclosure Report.

Given these inexcusable examples of OSGC’s utter failure or blatant refusal to comply with its Corporate Charter to reveal basic and relevant disclosure information, it’s no wonder that OSGC has kept all of of its subsequent Disclosure Reports inaccessible to GTC by claiming a need for “confidentiality.” It makes one wonder just exactly how OBC could have missed the blinking neon signs of corporate irresponsibility given the fact OBC is responsible for oversight to ensure that the information OSGC submits is sufficiently adequate and accurate. OSGC must know by now OBC won’t press for details.

This raises the question: Who has oversight over the Oneida Business Committee and can hold them accountable for failing to hold OSGC accountable? The answer to that question is the same as the answer to the question, ‘Who owns OSGC?’: General Tribal Council, which apparently cannot trust OBC to be the arbiter of whether OSGC is fulfilling its obligations and serving the interests of the Tribe, which is why GTC should not be denied access to OSGC’s Narrative Reports, Financial Reports nor Disclosure Reports.

OBC has proven itself incapable or unwilling to hold OSGC accountable for:

  • OSGC’s plans to build dioxin-emitting incinerators on the Oneida Reservation.
  • OSGC officials signing contracts after the expiration of their Board terms.
  • OSGC’s relationships with subsidiary of a violator of the Foreign Corrupt Practices Act. (see below)
  • OSGC making misrepresentations of fact to the Tribe and surrounding communities.
  • OSGC inflicting damage to the Tribe’s reputation.
  • OSGC losing millions of dollars due to its own actions.
  • OSGC failing to fulfill its agreements with the Tribe.
  • OSGC failing to fulfill its reporting obligations.

Therefore, the General Tribal Council of the Oneida Tribe of Indians of Wisconsin must exercise its right to hold OSGC accountable for missing and withheld information, misinformation and disinformation and to direct OBC to dissolve Oneida Seven Generations Corporation.

 

See also:

PIC to Operate New Biomass Gasification Plant

PIC is pleased to announce that it has entered into a full care, custody and control Operations and Maintenance agreement with Oneida Energy for a new biomass gasification project located in Green Bay, Wisconsin.

Why PIC?

As of March 2008, PIC is a wholly owned subsidiary of Marubeni Group, a publicly listed company headquartered in Tokyo, Japan with $41.1 billion in revenue.

From JUSTICE.gov on Tuesday January 17, 2012: Marubeni Corporation Resolves Foreign Corrupt Practices Act Investigation and Agrees to Pay a $54.6 Million Criminal Penalty

Marubeni Corporation has agreed to pay a $54.6 million criminal penalty to resolve charges related to the Foreign Corrupt Practices Act (FCPA) for its participation in a decade-long scheme to bribe Nigerian government officials to obtain engineering, procurement and construction (EPC) contracts, the Justice Department’s Criminal Division announced today.

 


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