Parks v. Tulalip Gaming Commission

3 NICS App. 326, Parks v. Tulalip Gaming Commission (August 1994)

IN THE TULALIP TRIBAL COURT OF APPEALS

TULALIP INDIAN RESERVATION

MARYSVILLE, WASHINGTON

No. TUL-Ci-12/93-269 (August 1, 1994)

SUMMARY

Appeal by Appellant, Parks, of revocation of her employee gaming license by the Tulalip Gaming Commission. Appellate Court reversed Trial Court on finding that tribal employment is a property interest which triggers ICRA protection. Court of Appeals found error in Commission's failure to provide employee with adequate notice, fair hearing and a written decision.

FULL TEXT

Before: Chief Justice Elbridge Coochise, Associate Justice Charles R. Hostnik, and Associate Justice Jay V. White.

NATURE OF THE ACTION

Respondent, Tulalip Gaming Commission, revoked Appellant's Class III Gaming license, as a result of which Tulalip Casino terminated Appellant's employment. Appellant appealed the license revocation to the Commission, which affirmed its earlier revocation of Appellant's license.

Appellant subsequently filed a civil complaint against Respondent in Tulalip Tribal Court, alleging wrongful termination and unlawful revocation of her gaming license. The trial court affirmed the license revocation and dismissed Appellant's petition. Appellant appeals the trial court order.

COOCHISE, Chief Justice:

Elida Parks appeals from the revocation of her employee Class III gaming license by the Tulalip Tribal Gaming Commission.

3 NICS App. 326, Parks v. Tulalip Gaming Commission (August 1994) p. 327

I. PROCEDURAL HISTORY AND BACKGROUND

The Appellant, Elida Parks, was hired on June 29, 1992 by the Tulalip Casino as a Cage Cashier Supervisor. A Class III gaming license is required for the position, which Appellant obtained from the Tribe upon her hiring. The Tribe has authority to issue and revoke these licenses pursuant to the Tulalip Tribal-State Gaming Compact.⁴

On May 25, 1993, Appellant was suspended for three days from her job for "insubordination" in connection with her alleged presentation of Non-Sufficient-Funds (NSF) checks to the Casino when she was off-duty and a patron at the Casino.

On June 9, 1993, the Senior Inspector for the Tulalip Gaming Agency issued a notice of revocation of Appellant's Class III gaming license. The sole written explanation for the revocation was a notation to RCW 9A.56.060, a Washington State statute which prohibits the writing of bank checks with the intent to defraud.⁵ As a result of the license revocation, Appellant was terminated from employment with the Tulalip Casino.

In a letter dated June 16, 1994, Appellant appealed the license revocation to the Tulalip Gaming Commission (hereinafter, "Commission"). Appellant received no written response.

3 NICS App. 326, Parks v. Tulalip Gaming Commission (August 1994) p. 328

A second letter appealing the revocation was sent to the Commission on July 14, 1993. The following day, Appellant appeared before the Commission and the revocation of her license was discussed, but no written decision was issued after this meeting.

On August 27, 1993, Appellant wrote a third letter to the Commission, appealing the license revocation and pointing out that she had received no written response to her two previous letters. On September 17, 1993, Appellant appeared before the Commission, where she was advised that the preliminary determination of the Commission was to uphold her license revocation. During this meeting the Appellant and her representative were required to leave the room while the Commission discussed her case in executive session. After the executive session, the Appellant was invited back into the room and the meeting continued. The Commission's minutes reflect that there was no dispute that Appellant denied any intent to defraud the Casino and that she had been helped by counseling requested by her supervisor.

On September 27, 1993, the Commission sent Appellant a letter offering her employment in Class II gaming for a year, under certain conditions, after which she would be allowed to return to Class III gaming employment. No statement as to the reasons or evidence relied upon for revocation of her Class III license was included in this letter.

On November 30, 1993, Appellant filed a civil complaint against the Commission claiming wrongful termination and unlawful revocation of her gaming license. On December 10, 1993, and January 14, 1994, hearings were held in Tulalip Tribal Court on Appellant's complaint, which was treated as an appeal from the Commission's decision. A written order affirming the Commission's license revocation and dismissing Appellant's petition was issued on February 10, 1994.

Appellant appealed to this Court on February 22, 1994, and a hearing was held on May 31, 1994.

II. LIMITED SCOPE OF REVIEW

Although Appellant commenced this action on theories of both unlawful revocation of her gaming license and wrongful termination from employment, the second issue is not before us. Appellant's employer is not a party to this case and, therefore, the Court does not have jurisdiction over the wrongful termination claim. We therefore confine our review to the revocation of Appellant's license.⁶

3 NICS App. 326, Parks v. Tulalip Gaming Commission (August 1994) p. 329

III. JURISDICTION OF TRIBAL COURT

Section 11(a) of the Tribal-State Compact requires the jurisdiction of the Tulalip Tribal Court in this matter. The Tulalip Tribe enacted Ordinance No. 55A, which establishes the Tulalip Tribal Gaming Commission and defines its powers and duties. Section 9.1 of the Ordinance provides that the Commission's actions regarding gaming licenses are final "unless appealed to the Tribal Court within five (5) days of the written decision."⁷ There is no dispute between the parties as to the jurisdiction of the Tribal Court to hear this case.

IV. JURISDICTION AND POWERS OF GAMING COMMISSION

Pursuant to the Indian Gaming Regulatory Act of 1988, (P.L. 100-497, 25 U.S.C Sec. 2701-2721 and 18 U.S.C. Sec 1166-1168), the Tulalip Tribes of Washington entered into a Tribal-State compact with the State of Washington to provide a framework for the operation of Class III gaming by the Tulalip Tribe. Under Section 6 of the Compact, "[t]he primary responsibility for on-site regulation, control and security of the gaming operation authorized under this Compact, and for the enforcement of this Compact within Tulalip Tribal Lands, shall be that of the Tribal Gaming Agency." Section 6(d) of the Compact provides, in part, that "[t]he Tribal Gaming Agency shall be empowered by Tribal Ordinance to impose fines and other sanctions within the jurisdiction of the Tribe against a gaming employee. . . ."

Tulalip Tribal Ordinance 55A states that the purpose of the Tulalip Tribal Gaming Commission is to be a single Tribal agency primarily responsible for regulatory oversight of Class I, II and III gaming. Ordinance 55A, Section 9.0(ii) provides that the Commission, in order to assure the compliance of any Tribal gaming operation with applicable laws, "may deny an application for or suspend or revoke any license or permit issued by it, for any reason or reasons it deems to be in the Tribal or public interest." This constitutes an affirmative grant of substantive authority to the Commission to suspend or revoke Appellant's gaming license.

The procedural mechanism through which the substantive powers granted the Commission in Section 9.0(ii) are to be exercised is set out in Section 9.1, which provides, in part:

"Any action taken by the Commission under this Section shall be reduced to writing with a copy delivered to the affected organization or person, who may appeal within ten (10) days of receipt thereof the action to the Commission, which shall conduct a hearing at a public or private hearing and determine the appeal of the charges at a time in their discretion, as well as prescribe the procedures for the hearing." (Emphasis added).

3 NICS App. 326, Parks v. Tulalip Gaming Commission (August 1994) p. 330

This provision sets forth broad procedural guidelines which must be followed by the Commission when it suspends or revokes licenses or permits.

V. APPLICATION OF ORDINANCE 55A, Section 9.1 TO REVOCATION OF APPELLANT'S GAMING LICENSE

Ordinance 55, Section 9.1 requires the Commission to provide written notice of its actions and the opportunity for an appeal hearing when revoking a license or permit.

Minimal due process rights must be observed by the Commission to make any appeal meaningful. Although it may not be necessary to follow formal court procedures, it is up to the Commission to prescribe procedures which will ensure a full and fair hearing.

Minimum due process rights include: (1) adequate notice of charges; (2) a fair hearing to appeal the charges, and; (3) a written decision setting forth the reasons for the Commission action.

A. NOTICE

In order to constitute adequate notice, the notice must clearly state the reasons for the Commission action in order to make any appeal meaningful. Here the Appellant was initially provided with a form indicating that her license was revoked, with a citation to Section 9A.56.060 under "RCW Reference." No reference was made in the form regarding any charges against her, her right to appeal, or procedures to be followed to obtain a hearing.

Although the notice provided Appellant arguably conforms to the bare minimum requirements of Section 9.1., the Court finds that notice inadequate on two grounds: (1) failure to set out clearly the reasons for the license revocation, and (2) failure to advise the Appellant of her right to appeal the revocation, and how to appeal. Specifically, she was not advised that she only had ten days within which to file an appeal to the Commission under Ordinance 55A, Section 9.1.⁸

B. HEARING

Once an appeal is filed, the Commission must conduct a hearing and "determine the appeal of the charges . . . as well as prescribe the procedures for the hearing." Ordinance 55A, Section 9.1 The Commission has not yet adopted any rules prescribing the procedures for

3 NICS App. 326, Parks v. Tulalip Gaming Commission (August 1994) p. 331

appeals. Nothing prevents the Commission from adopting appeal procedures in advance of receipt of an appeal.

The Appellant appeared before the Commission on two occasions: July 15, 1993, and September 17, 1993. Although the Commission has referred to both of these appearances as "hearings," the record indicates that in both cases, the Appellant's appearance was treated more as an item on the Commission agenda than as the administrative appeal hearing which Section 9.1 mandates.

Most troubling to the Court is that the Commission did no conduct an impartial administrative hearing. Although no verbatim record was kept, the minutes of the Commission's administrative hearing, which included a closed executive session in the middle of the hearing, indicate that the Commission may have made a determination which decided the outcome of the hearing before coming back from executive session to hear Appellant's presentation. That Commission decision, therefore, was not based on the evidence presented at the hearing. By reaching a decision before hearing the evidence, the Commission did not provide a fair hearing to Ms. Parks. Even if the decision to uphold the revocation was not formed in the executive session, the appearance of unfairness is too great to be permissible.

Moreover, it is not clear from the record that the Appellant was ever informed of the evidence which was considered against her. This precluded Appellant from having an "opportunity to be heard" or to present contrary or rebuttal evidence. Implicit in the Appellant's right to a hearing is her right to hear the evidence presented against her, with a full opportunity to respond. This did not occur in this case.

A complete record is essential for later review by the Tribal Court. The Trial Court sits as an appellate body reviewing the record of the administrative proceeding. This Court is in the same position. The rules to be adopted by the Commission need to take these considerations into account.

C. WRITTEN DECISION REQUIRED

Ordinance 55A, Section 9.1, mandates that the Commission's decision on an appeal shall be in writing. This provision is important to ensure that an impartial decision is rendered, based solely on the evidence produced at the hearing. It is also important for later review by the Tribal Court at both the trial and appellate levels.

In this case, the only written document issued after the hearing held under Section 9.1 is the letter to the Appellant, dated September 27, 1993, and signed by the Chairman of the Tulalip Gaming Commission. The letter refers to the September 17, 1993, meeting between the Commission and the Appellant, and states that the Appellant cannot return to her old position but could go to work in the Casino's Class II section on conditional terms. There is no discussion of the reasons for the Commission’s decision or the evidence relied on in reaching that decision.

3 NICS App. 326, Parks v. Tulalip Gaming Commission (August 1994) p. 332

This Court finds that the letter does not comport with the minimal due process requirements contemplated by Title 55A, Sections 9.0 and 9.1. Section 9 provides that the Commission may revoke a gaming license "for any reason or reasons it deems to be in the Tribal or public interest." We hold that Sections 9.0 and 9.1 require the Commission to state those reasons in writing.

Because the letter lacks a discussion of the reasons and evidence relied upon for the Commission's decision, it is impossible for the Tribal Court to provide a meaningful review of the decision on appeal. There is no means to ensure that an impartial decision was rendered based solely on the evidence presented at the hearing.

The Commission's decision to revoke Appellant's Class III Gaming license is, therefore, both arbitrary and capricious. This Court can only guess as to why that decision was rendered. A Court will not engage in pure speculation solely to support a decision which, as the Trial Court endeavored to point out, may well be justified. Because the Commission did not provide reasons for its decision, the result cannot be affirmed.

VI. ORDER AND REMAND FOR FURTHER PROCEEDINGS

Although the Tulalip Tribal Gaming Commission has the substantive authority to revoke or suspend the Appellant's Class III Gaming license, in doing so it must provide the minimal due process protections to the Appellant, as mandated by Ordinance 55A, Sections 9.0 and 9.1.

IT IS HEREBY ORDERED, that the Trial Court is REVERSED, and this matter is therefore REMANDED to the Tulalip Tribal Commission for further proceedings consistent with this opinion.

HOSTNIK and WHITE, Associate Justices, concur.

The Tribal-State Gaming Compact, entered into by the Tulalip Tribes of Washington and the State of Washington on August 2, 1991, vests authority for the denial, suspension or revocation of Tribal gaming licenses in the Tribal Gaming Agency, which is defined to be the Tulalip Tribal Gaming Commission or "such other agency of the Tribe as the Tribe may from time to time designate by written notice to the State as the single agency primarily responsible for regulatory oversight of Class III Gaming, as authorized by this Compact." Tribal-State Compact, Section 2(q). Tulalip Tribal Ordinance No. 55A, establishing the Tulalip Tribal Gaming Commission, confirms this authority.

References to the "Tribal Gaming Agency" in the Tribal-State Compact, therefore, are to be read as references to the Tulalip Tribal Gaming Commission, not to the Tulalip Gaming Agency. The Tulalip Gaming Agency includes gaming inspectors employed and supervised by the Tulalip Tribal Gaming Commission.

RCW 9A.56.060(1) provides, in part: "Any person who shall with intent to defraud, make, or draw, or utter, or deliver to another person any check, or draft, on a bank or other depository for the payment of money, knowing at the time of such drawing, or delivery, that he has not sufficient funds in, or credit with said bank or other depository, to meet said check or draft, in full upon its presentation, shall be guilty of unlawful issuance of bank check."

Appellant consistently has denied any intent to defraud the Casino and no criminal proceedings have been commenced against Appellant in connection with the alleged "NSF" checks.

It appears, however, that the sole reason Appellant's employment was terminated was the revocation of her Class III gaming license.

Appellant's appeal in this suit was untimely and, therefore, subject to dismissal; however, under the circumstances of this case, where the Commission's decision gave no notice of the five-day appeal deadline, we waive the deadline in the interest of justice.

We consider the license revocation notice from the Tulalip Gaming Agency, dated June 9, 1993, to be an "action taken by the Commission," within the meaning of the ordinance subject to appeal to the Commission, within ten days. Appellant's letter to the Commission, dated June 16, 1993, may be seen as timely commencement of her appeal.