Molissa Regan v. Della Finkbonner

1 NICS App. 82, Regan v. Finkbonner (February 1990)

IN THE NOOKSACK TRIBAL COURT OF APPEALS

NOOKSACK INDIAN RESERVATION

DEMING, WASHINGTON

No. NOO-Ci-6/89-0155 (February 15, 1990)

SUMMARY

The Court of Appeals held that when a tribal employee appeals a termination action, the employer must follow applicable tribal ordinances, rules, regulations, policies and the Indian Civil Rights Act in order to afford the employee due process throughout the grievance procedure.

Additionally, when an employee is awarded retroactive compensation, the personnel director of the tribe cannot be held personally liable for wages due and owing by the tribe to the employee.

FULL TEXT

Before:	Chief Justice Hollis Chough, Associate Justice Elbridge Coochise, and Associate Justice John L. Roe.
Appearances:	Present for the hearing were: Appellant, Molissa Regan; Respondent/Appellant, Della Finkbonner. Also present were Ross Cline, Vice-Chairman, and Brad Hubbard of the Nooksack Tribe who made up the Tribe's managerial team.

This matter came on for hearing on 12 December 1989 in the Nooksack Tribal Appeals Court.

ISSUES ON APPEAL

The purpose of the hearing was twofold: (1) to hear Appellant, Molissa Regan's appeal regarding her termination of employment, and (2) Della Finkbonner's petition for appeal. The Appeal of Order to pay $1,178 stated:

"Della Finkbonner is not responsible for any debts of the Nooksack Indian Tribe, because that is who the debt belongs to."

The Appeals Court panel having heard testimony, having read all court documents and considering all exhibits introduced into evidence, and reviewed all pertinent documents related to the case, and being fully advised of the premises, now makes the following Findings of Fact.

1 NICS App. 82, Regan v. Finkbonner (February 1990) p. 83

FINDINGS OF FACT

On October 6, 1988, Molissa Regan was verbally terminated from her employment with the Nooksack Tribe.

Molissa Regan received her formal termination in writing on October 17, 1988.

A grievance to review the termination was requested. A Grievance Panel convened to hear the grievance. The aggrieved party, Molissa Regan, was not in attendance. Tribal Personnel representatives were present for the Hearing. The Grievance Panel upheld the termination action on October 17, 1988.

Molissa Regan later on, requested a grievance hearing. The reason given was that she was not notified of the hearing of October 17, 1989 until a later date. An alternate Grievance Panel convened to hear the termination for the second time. Molissa Regan was present for the hearing on November 8, 1988. Tribal personnel officials were not present.

The alternate Grievance Panel reversed the first Grievance Panel's decision. The alternate Grievance Panel reinstated Molissa Regan to her former position with the condition that she be paid retroactive compensation from October 6, 1988, by memo of November 8, 1988.

On November 17, 1988, a speed letter was issued to Molissa Regan by Della Finkbonner, Personnel Director. The message was as follows:

"We have chosen not to go with the recommendation of the Grievance Panel decision for retroactive pay from October 6, 1988 through to November 11, 1988.

We will pay you for two (2) days you were here. November 14th and 15th, 1988, a total of 16 hours."

Molissa Regan filed for a Show Cause in the Tribal Court to enforce the second Panel's Decision.

July 6, 1989, Della Finkbonner received a Nooksack Tribal Court Notice for hearing. The court date for the hearing was for July 26, 1989.

Due to cancellation and rescheduling of the court date(s), a second Notice to Appear was issued. This was received by Della Finkbonner on August 17, 1989.

A hearing by the trial court was held on August 17, 1989, the Honorable Judge Emma Dulik presiding. The trial court issued an

1 NICS App. 82, Regan v. Finkbonner (February 1990) p. 84

order from that hearing.

''Della Finkbonner to pay Molissa Regan the sum of $1,178.00 with no interest on the amount."

10.

A Petition was filed with the Nooksack Tribal Court by Della Finkbonner, requesting the Tribal Court to reconsider the Court Order of August 17, 1989.The Petition states:

"I, Della Finkbonner am not responsible for any debts of the Nooksack Indian Tribe, because that's who the debt belongs to. And personally I am not obligated to pay Molissa Regan back pay for work she did not do for me personally ... I feel I have been taken to court, accused, humiliated and embarrassed on a charge that should never have gone this far."

11. Reconsideration on the Show Cause was not held.

CONCLUSION

The Appeals Court having reviewed and considered all testimony has arrived at the following conclusion. Tribal personnel and supervisory representatives knowingly or unknowingly have committed oversight of applicable tribal ordinances, rules, regulations, policies and the Federal Indian Civil Rights Act, which sets forth the requirements of ''Due Process."

The August 17, 1989 Order should have ordered the Tribe to pay the back pay to Molissa Regan by the Director, Della Finkbonner, and should not order Della Finkbonner to personally pay $1,178.00.

What has occurred is a clear misunderstanding of duties and responsibilities on the part of tribal personnel officials. They assumed tribal personnel supervisory responsibilities that are not within their scope of job description or official duties. Tribal officials and personnel assume duties and responsibilities that are not protected under the Tribal Constitution; they are acting on their own and acting beyond the scope of their tribal authority.

In order for the tribe to be protected, from violating the Indian Civil Rights Act and other applicable tribal rights and laws that apply to the Nooksack Indians and non-Indians who are employed within the exterior boundaries of Indian reservations they must always be given their due process. Without due process a ruling in favor of the Tribe may cause future employee personnel problems. A ruling in favor of the aggrieved can also establish a precedent that would be unfair to the Tribe.

ORDER

Therefore, the following are set forth to allow the aggrieved and tribal personnel (managerial team) officials to have their day in court with all

1 NICS App. 82, Regan v. Finkbonner (February 1990) p. 85

interested parties present for a grievance hearing.

The Nooksack Tribal Court Order of August 17, 1989 is reversed.

This case is remanded to the Nooksack Tribal Court (Trial Court) for the following actions:

2a. The Nooksack Tribal Court within 15 days upon receipt of this Order shall order a new Grievance Panel by the Nooksack Tribe to hear Molissa Regan's grievance with all parties properly notified.

2b. The grievance panel to convene within sixty (60) days upon receipt of this Order.

2c. That Molissa Regan can appear with her spokesman or lawyer for her hearing, if she so desires.

That it is the Tribe's Grievance Panel's responsibility to properly notify all parties, and all parties shall be present for the hearing and not a separate panel for each party.