3 NICS App. 363, Shopbell v. Tulalip Gaming Commission (November 1994)
IN THE TULALIP TRIBAL COURT OF APPEALS
TULALIP INDIAN RESERVATION
MARYSVILLE, WASHINGTON
Shopbell v. Tulalip Gaming Commission
No. TUL-Ci-11/93-268 (November 16, 1994)
SUMMARY
Appeal by casino employee of revocation of her casino gaming license by Tulalip Gaming Commission. Court of Appeals affirmed Trial Court on finding that "substantial evidence" existed in the record to support decision of Commission.
FULL TEXT
Before: Chief Justice Elbridge Coochise, Associate Justice Charles R. Hostnik, and Associate Justice Jay V. White.
Appearances: Paula Plumer, for Appellant; James H. Jones, Jr., Bell & Ingram, P.S., for Respondent.
NATURE OF THE ACTION
Respondent, Tulalip Gaming Commission, suspended Appellant's Class II gaming license on that grounds that she knowingly participated in a conspiracy to misappropriate Tulalip Casino monies. Casino terminated Appellant's employment the following day. Appellant appealed the license suspension to the Commission, which denied a hearing on the grounds that Appellant was not entitled to a hearing under the Tulalip Personnel Policies Manual. Nearly one month later, Appellant appealed the Commission's denial to the Tulalip Tribal Court.
The Tribal Court remanded the appeal to the Commission, holding that every employee who holds a gaming license is entitled to a due process hearing before the Commission. Commission held a hearing and found that sufficient evidence existed to warrant revocation of Appellant's license. Appellant appealed Commission's decision in the Tulalip Tribal Court, which affirmed the Commission's revocation of Appellant's license. Appellant appeals the Tribal Court order.
PER CURIAM:
Appellant Peggy Shopbell appeals from a decision of the Tulalip Tribal Court dated June 21, 1994, upholding the Tulalip Gaming Commission's decision to revoke her Class II gaming
3 NICS App. 363, Shopbell v. Tulalip Gaming Commission (November 1994) p. 364
license. The issues raised on appeal are whether the Appellant was afforded due process by the Tulalip Gaming Commission when her gaming license was revoked, and whether the principles of equitable estoppel preclude the Commission's revocation of Appellant's gaming license. The Tribal Court decided there was substantial evidence to support the Commission's decision. We agree.
In reviewing this matter, we are confined to the record produced at the administrative hearing conducted by the Tulalip Gaming Commission. We are in the same position as the Trial Court in reviewing that record. The Trial Court's review was limited to determining whether there was substantial evidence to support the Commission's decision. We must apply that same standard of review on appeal.
I. PROCEDURAL HISTORY AND BACKGROUND
The Appellant, Peggy Shopbell, was hired on July 13, 1992, by the Tulalip Casino as a pulltab seller. A Class II gaming license is required for the position, which Appellant obtained from the Tribe when she was hired. The Tribe has authority to issue and revoke these licenses pursuant to the Tulalip Tribal-State Gaming Compact.
On September 1, 1993, Appellant's gaming license was suspended on the grounds that she knowingly participated in a conspiracy to misappropriate $27.00 in Tulalip Casino monies. Her employment with the Casino was terminated the following day.
On September 10, 1993, Appellant filed a written initial appeal with the Tulalip Gaming Commission, requesting reinstatement of her gaming license. The Commission issued a decision on September 27, 1993, denying Appellant a hearing before it on the grounds that under the Tulalip Personnel Policies Manual she was not entitled to a hearing. Appellant waited until November 22, 1993 to appeal the Commission's denial of a hearing to the Tulalip Tribal Court.
On December 16, 1993, the Tulalip Tribal Court ordered the appeal remanded to the Commission, finding that every employee who holds a gaming license is entitled to a due process hearing before the Commission. That hearing includes the right to be informed of the reason for the revocation, the opportunity to call and cross-examine witnesses, and a written decision by the Commission. It is also to include notification of any further appeal rights.
Pursuant to the Tribal Court Remand Order, the Commission held a hearing on January 26, 1994, with all parties present. On March 10, 1994, the Tulalip Gaming Commission issued a written decision finding that the Appellant had "knowingly participated in a conspiracy to misappropriate $27.00 in Tulalip Casino monies, through misappropriation of the proceeds of an unclaimed winning pulltab ticket, and through conduct that constituted manipulation of the game." The Commission concluded that this conduct -- conspiracy to misappropriate Tulalip Casino monies -- constituted conduct which warranted revocation of Appellant's gaming license in order to protect both the Tribal and public interest of ensuring that the Tulalip gaming operation is conducted honestly.
3 NICS App. 363, Shopbell v. Tulalip Gaming Commission (November 1994) p. 365
On March 16, 1994, the Appellant, through her attorney, filed a written appeal of the Commission's decision with the Tulalip Tribal Court. The Tulalip Tribal Court heard the appeal on June 10, 1994, with all parties and their attorneys present.
On June 21, 1994, the Tulalip Tribal Court issued its opinion. The Court sustained the Commission's decision to revoke Appellant's gaming license on the grounds that substantial evidence existed in the record of the Gaming Commission's hearing of January 26, 1994, to support the Commission's finding.
Appellant filed a Notice of Appeal of the Trial Court decision on July 11, 1994. The Tulalip Tribal Court of Appeals heard the appeal on September 12, 1994, with the Appellant, her attorney, Paula Plumer, and James Jones, Jr., attorney for the Commission, present.
II. JURISDICTION OF TRIBAL COURT
Section 11(a) of the Tribal-State Compact9 recognizes the subject matter jurisdiction of the Tulalip Tribal Court to hear these cases. Pursuant to that Compact, 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.
Personal jurisdiction exists because the Appellant lives within the exterior boundaries of the Tulalip Reservation. Although not necessary for jurisdictional purposes, the Appellant is also a Tribal member.
Territorial jurisdiction exists because: (1) the alleged incident occurred on the Tulalip Reservation, (2) the place of employment is within the exterior boundaries of the Tulalip Reservation, and (3) the place of employment is regulated by the Tulalip Gaming Commission.
The Tulalip Tribal Court of Appeals has jurisdiction over this case pursuant to the Tulalip Tribal Law and Order Code, Ordinance 49, Section 1.11.1, which states in pertinent part:
Any person who claims in good faith, that the Tulalip Tribal Court made a mistake in interpreting the law or a mistake in procedure which affected the outcome of a case shall have a right to appeal a final judgment.
3 NICS App. 363, Shopbell v. Tulalip Gaming Commission (November 1994) p. 366
III. ALLEGED PROCEDURAL DELAYS
Appellant asserts that she cannot get a hearing on the termination of her employment until a licensing decision is reached, and that the Commission has created delays causing her irreparable injury amounting to a denial of due process.
The record reflects that Appellant's employment was terminated on September 2, 1993, and that she submitted a "grievance" to the Commission dated September 10, 1993. The Commission met on September 17, 1993. By letter dated September 27, 1993, the Commission advised her that she was not eligible for a grievance hearing, but that she could have the matter heard in Tribal Court. We cannot say that the 17-day period required for the Commission's decision was unreasonable.
Appellant then waited until November 22, 1993 – a period of 56 days -- before appealing to Tribal Court. The Tribal Court acted on December 16, 1993, and ordered the Commission to provide Appellant with a due process hearing on the licensing issue. On January 7, 1994, the Commission issued a detailed Notice of Hearing setting a date of January 11, 1994. Given the intervening holidays, it was not unreasonable for the Commission to take 22 days after the Tribal Court's order to develop and issue its notice.
The hearing then was delayed another 15 days until January 26, 1994, at Appellant's request. The Commission deferred its decision until after a full transcript could be prepared, and it issued its decision on March 10, 1994. Again, this Court cannot find any denial of due process associated with a 43-day period for preparation of a transcript, deliberation and decision.
The total time in which this matter was in the hands of the Commission was 92 days; there was an additional 71 days of delay caused or requested by the Appellant. We believe that the Commission acted in a very timely manner given all of the circumstances.
Moreover, even if the time delays caused injury, it is not "irreparable injury" because the Appellant could be compensated if she were to prevail on the merits in her wrongful termination proceedings. There was no denial of procedural due process.
IV. ANALYSIS AND DISCUSSION
After this case was initially remanded by the Tribal Court to the Tulalip Gaming Commission for hearing, the Commission provided in writing its January 7, 1994, Notice of Hearing to Appellant, describing in detail the nature of the allegations being made against her, the exhibits comprising the administrative record (copies of which were attached to the notice), the date, time, and place of the hearing, and the procedures to be followed at that hearing.
A portion of that notice specifically stated that alleged theft and conspiracy formed the basis upon which the Commission took its action initially to suspend Appellant's gaming license.
3 NICS App. 363, Shopbell v. Tulalip Gaming Commission (November 1994) p. 367
It also clearly stated that, at the hearing, the Commission: (1) would consider whether the alleged conduct constituted sufficient reason for the suspension, and (2) would consider revocation of the license based upon the Tribal or public interest.
At the hearing, Appellant asserted that she did not violate any rules contained in the Tulalip Pulltab Procedures Manual then in effect, which was introduced into evidence as Exhibit 7. Specifically, she indicated that the rule contained at Section 6 (C), on page 7 of that manual was not violated. That rule provides in part:
If prizes of $20 and over are unpaid when the last tab is sold, they will be paid to the purchaser of the last tab . . . .
We find that on this issue the Appellant is correct that this rule was not violated because there is no evidence in the record to show that pulltabs were no longer being sold at the time the incident arose.
Although Appellant is correct in that the alleged violation of Rule 6(C) of the Pulltab Manual cannot be a basis for suspension or revocation of her gaming license, that was not the issue before the Commission. As clearly pointed out in the January 7, 1994, Notice of Hearing, the issues before the Commission were whether there was substantial evidence that Washington State statutory theft and criminal conspiracy laws were violated or whether Appellant's conduct otherwise constituted sufficient reason for revocation of Appellant's gaming license based upon the Tribal or public interest.10
It is undisputed that on August 7, 1993, Appellant and a co-worker cashier at the casino discovered shortly before Appellant's shift ended that the cashier had an opened, but unclaimed, winning $27 pulltab. It also is undisputed that when Tina Wilsey arrived to give Appellant a ride home, Appellant and Wilsey went to the women's restroom where Appellant loaned Wilsey two dollars. Wilsey then used the two dollars to purchase pulltabs from the cashier. The cashier, with Appellant's knowledge, gave the unclaimed winning $27 pulltab to Wilsey along with the purchased pulltabs.
3 NICS App. 363, Shopbell v. Tulalip Gaming Commission (November 1994) p. 368
Wilsey then collected the $27, and gave the cashier a $10 tip. Wilsey testified she gave the $17 balance to Appellant as they were driving home; the Appellant testified she declined all but the two dollars she had loaned Wilsey in the restroom, and that Wilsey spent the rest of the money on food for the two of them.
There is evidence in the record which indicates that the proceeds of the winning ticket were split between Appellant and the cashier from whom the ticket was purchased. This implies an agreement existed. The evidence is sufficient for the Commission to find, by a preponderance of the evidence, that there was a violation of the Washington Criminal Conspiracy Statute, RCW 9A.28.040, and that this conduct is not within the Tribal or public interest. Therefore, there are grounds to support the Commission's decision to revoke Appellant's gaming license.
In short, we are satisfied after a careful review of the entire record in this case that there was substantial evidence presented to the Commission to support its finding that Appellant "knowingly participated in a conspiracy to misappropriate $27 of Tulalip Casino monies, through misappropriation of the proceeds of an unclaimed winning pulltab ticket, and through conduct that constituted manipulation of the game." This finding was set forth in the Commission's letter to Appellant of March 10, 1994.
Appellant argues that the doctrine of equitable estoppel should apply in this case. She contends that her actions may be explained or excused based upon her allegation that a casino supervisor once told her that unclaimed winning pulltabs simply could be given to another customer. She did not call the supervisor as a witness to corroborate her story. Even if she had, the applicability of equitable estoppel is essentially a factual determination. As stated in Robinson v. Seattle, 119 Wn.2d 34, 82, 830 P.2d 318, cert. den. U.S. , 121 L.Ed.2d 598, 113 S.Ct. 676 (1992):
Equitable estoppel is not favored, and the party asserting estoppel must prove each of its elements by clear, cogent, and convincing evidence . . . . The elements to be proved are: first, an admission, statement, or act inconsistent with a claim afterward asserted; second, action by another in reasonable reliance on that act, statement, or admission; and third, injury to the party who relied if the court allows the first party to contradict or repudiate the prior act, statement, or admission. (Citations omitted.)
In quoting language from this case of the Washington State Supreme Court, we do not imply that Washington State common law is binding upon this Court. Nonetheless, the Court's description of equitable estoppel is in accord with the great weight of authority in most jurisdictions. It is applied by analogy here.
Although the theory of equitable estoppel was not argued to the Commission, it is evident in its decision that even if such a theory were argued, the Commission would not have found facts sufficient to support that theory. The Commission's decision to terminate Appellant's gaming license was based on findings that she conspired to recruit Tina Wilsey to purchase the
3 NICS App. 363, Shopbell v. Tulalip Gaming Commission (November 1994) p. 369
winning ticket, provided funds to Tina Wilsey for purchase of the winning ticket, and then split the entire proceeds of the winning ticket between the employee who sold the winning ticket and herself. Under those facts, Tina Wilsey, the Casino customer, did not retain any of the proceeds of that winning ticket. Although the evidence is conflicting, there is substantial evidence to support these findings.
This Court is confined in its review of this matter to determine whether there is substantial evidence in the record to support the findings, conclusions and decision of the Tulalip Gaming Commission. We find that there is substantial evidence to support the Commission's determinations. Therefore our inquiry must end.
This Court is not permitted to substitute its judgment for the judgment of the Commission. Even if this Court were to reach a different factual conclusion based on the evidence presented before the Commission, our review is still confined to determining whether substantial evidence exists to support the decision made by the Commission.
In view of our holding, we need not address other assignments of error raised by Appellant.
V. ORDER
Based upon the foregoing, it is hereby ordered that the decision of the Tulalip Tribal Court, affirming the decision of the Tulalip Gaming Commission, is hereby AFFIRMED.
The Tulalip Tribes of Washington - State of Washington Gaming Compact, dated August 2, 1991, is referred to herein as "Tribal-State Compact."
The Tribal-State Compact, Section 5(c) (ii) provides that the State Gaming Agency may revoke certification for a gaming license for any reason in the public interest, including but not limited to when a holder of certification "knowingly causes, aids, abets, or conspires with another to cause, any person to violate any of the laws of this State...." Section 5(e) provides that "revocation of any Tribal gaming license by the Tribal Gaming Agency shall be in accordance with Tribal ordinances and regulations governing such procedures and the grounds for such actions shall not be less stringent than those of Section 5(c)." Tulalip Tribal Ordinance 55A, Section 9.0 (ii), provides in part that the Commission (which is the Tribal Gaming Agency referred to in the Tribal-State Compact) may revoke any tribal gaming license "for any reason or reasons it deems to be in the Tribal or public interest."