4 NICS App. 66, HOOPA VALLEY TRIBAL COUNCIL v. RISLING (February 1996)
IN THE HOOPA VALLEY TRIBAL COURT OF APPEALS
HOOPA VALLEY INDIAN RESERVATION
HOOPA, CALIFORNIA
Hoopa Valley Tribal Council, Appellant
v.
Gary Risling, Appellant
No. C-95-023 (February 20, 1996)
SUMMARY
The Hoopa Valley Tribal Council suspended and subsequently terminated Gary Risling from employment. Risling appealed the suspension and termination to the TERO Commission. Prior to the TERO hearing, Risling and the Tribal Council each attempted to recuse a different Commissioner from hearing the matter on conflict of interest grounds.
The TERO Commission removed neither Commissioner. Both the Tribal Council and Risling appealed the Commission’s decision. The trial court affirmed the TERO Commission’s decision.
Finding that sufficient facts exist upon which the appearance of impartiality might reasonably be questioned, we reverse and remand.
FULL TEXT
Before: Elbridge Coochise, Chief Justice; Charles R. Hostnik, Justice; Robert J. Miller, Justice.
Appearances: Bruce Friedman, counsel for Appellant/Respondent Hoopa Valley Tribal Council; Philip Smith, counsel for Appellant/Respondent Gary Risling.
Per Curiam:
This matter came before the Hoopa Valley Tribal Court of Appeals pursuant to Appellant Hoopa Valley Tribal Council's Notice of Appeal filed on December 8, 1995, and Appellant Gary Risling's Notice of Appeal filed on December 12, 1995. Both parties appeal from a December 7, 1995 Order of the Hoopa Valley Tribal Court. The Order affirmed a Tribal Employment Rights Ordinance (hereinafter “TERO”) Commission decision not to recuse TERO Commission Chairman Jasper Hostler and Commissioner Peter Masten from deciding a grievance before the Commission. Both Mr. Hostler and Mr. Masten are former Tribal Council members. With the agreement of the
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parties, oral argument was conducted on February 1, 1996 via telephone conference call.
I. STATEMENT OF FACTS
This matter originated as an appeal to the TERO Commission from the Hoopa Valley Tribal Council's suspension and termination of Gary Risling from his employment with the Tribe as Director of the Tribal Forestry Department.
During a meeting of the Hoopa Valley Tribal Council (hereinafter "HVTC") on April 30, 1991, tribal timber sales was one topic of discussion. Among those attending the meeting was Jasper Hostler, then vice-chairman of the HVTC. On the same day, the HVTC sent Mr. Risling a written reprimand stating that "tribal timber sales have not been prepared in a timely manner as [Mr. Risling] had promised."
On August 19, 1991, the HVTC sent Mr. Risling a letter notifying him that the Council had voted to suspend him without pay for thirty days, citing several grounds for its decision. Mr. Risling was subsequently terminated. Pursuant to the Tribal Employment Rights Ordinance, Mr. Risling appealed his suspension and termination to the TERO Commission.
The TERO Commission is composed of five Commissioners, including Commission Chairman Jasper Hostler and Commissioner Peter Masten. At the time of the April 30, 1991 Tribal Council meeting, Mr. Hostler was vice-chairman of the HVTC; he remained on the Council until June of 1991. Mr. Masten was a Tribal Council member from June of 1993 until June of 1995.
Prior to a TERO hearing on the merits, the HVTC sought to recuse Mr. Hostler from hearing, deliberating, or deciding Mr. Risling's appeal on conflict of interest grounds. Mr. Risling simultaneously sought to recuse Mr. Masten for similar reasons. On September 15, 1995, the TERO Commission informed the parties that neither Commissioner Hostler nor Commissioner Masten would be recused.
On September 19, 1995, the HVTC appealed the September 15, 1995 TERO Commission decision not to recuse Commissioner Hostler. In its appeal, the HVTC argued that Mr. Hostler's status as a Tribal Council member and vice-chairman "during times bearing on issues in [this] proceeding" created an alleged conflict of interest which prevented him from acting as an impartial decision maker.
On October 11, 1995, Mr. Risling appealed the TERO Commission's decision not to recuse Commissioner Masten. Mr. Risling contended that as a former Tribal Councilman, Commissioner Masten had "direct and substantial" involvement in the matter. Specifically, Mr. Risling alleged that Commissioner Masten, through his participation in settlement negotiations and discussions with tribal legal counsel and Council members, had become privy to information regarding the appeal.
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As a result, Mr. Risling argued, Commissioner Masten could not be an independent arbiter, whose decision "must rest solely on the evidence produced at the due process hearing." Hoopa Valley Indian Housing Authority v. Gerstner, 3 NICS App. 250, 259 (Hoopa 1993).
A hearing was held before Judge David Harding on October 26, 1995. In an Order dated December 7, 1995, Judge Harding affirmed the TERO Commission's decision. Relying on Gerstner, the trial court found that the parties had not presented any facts to warrant recusal of either Commissioner:
Absent facts in the arguments presented to the court that either Commissioner is withholding information or holding themselves out to be other than persons in good standing in the community . . . . [s]peculation about what might happen in the hearing process or speculating about either Commissioners [sic] ability to be fair is premature at this time.
Order, Dec. 7, 1995 (emphasis in original). The matter was remanded to the TERO Commission for a hearing on the merits of Mr. Risling's case.
On December 8, 1995, the HVTC appealed that portion of the December 7, 1995 Order regarding Mr. Hostler's recusal. The HVTC, in seeking to recuse Commissioner Hostler, argues that Mr. Hostler cannot render an impartial judgment regarding the appeal of Mr. Risling's termination because he was present during the April 30, 1991 Tribal Council meeting and the executive session during which Mr. Risling's reprimand was allegedly discussed. As a result, the HVTC argues, Commissioner Hostler "was central to the action taken by the Council" and "knows the confidential assessments and intentions of the Tribal Council respecting [Mr. Risling] . . . ." Trial transcript at 8; HVTC Brief, Jan. 9, 1995, at 2.
On December 12, 1995, Mr. Risling appealed that portion of the December 7, 1995 Order regarding Mr. Masten's recusal. Mr. Risling alleges that Commissioner Masten cannot be an impartial adjudicator because of alleged conflicts of interest based upon the fact that: (1) as a former Tribal Councilman Mr. Masten was privy to confidential information through settlement negotiations and discussions with legal counsel; (2) the HVTC had listed Mr. Masten as an adverse witness; and (3) Mr. Risling's attorney had represented Mr. Masten's former employer in Mr. Masten's termination hearing. This Court accepted both appeals on December 18, 1995.
II. ISSUES ON APPEAL
Both parties assign error to the trial court's finding that "[n]one of the arguments in the instant case present the court with facts that can mirror the Gerstner courts [sic] reasoning". Trial Court Order at 2 (emphasis in original). Additionally, Mr. Risling challenges the Tribal Council's standing to challenge a TERO Commissioner. The issues on appeal are:
(1) Does the Hoopa Valley Tribal Council have standing to challenge a TERO
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Commissioner?
(2) Are there sufficient facts in the record to support recusal of Commissioner Hostler?
(3) Are there sufficient facts in the record to support recusal of Commissioner Masten?
III. STANDING OF HVTC
We address as a preliminary matter Mr. Risling's argument that the HVTC lacks standing to challenge a TERO Commissioner. Mr. Risling bases his challenge on the following arguments: (1) that nothing in the Ordinance gives the Tribal Council the right to challenge a Commissioner; (2) that the employee grievance process was established to protect the rights of an employee and not those of an employer; and (3) that the due process rights afforded by the Indian Civil Rights Act, 26 U.S.C. § 1302 attach to individuals and not to governments.
We disagree. The Tribal Council is a party to this action. As such, it has the same standing afforded to any party, whether that party is an individual or a governmental entity. Therefore, we hold that the Hoopa Valley Tribal Council does have standing to challenge a TERO Commissioner.
IV. STANDARD TO BE APPLIED
This Court of Appeals sits in review of a trial court decision which affirmed a prior administrative decision. The law to be applied is governed by Title III Rules of Court, Rule 3, which provides:
The Court shall look to prior judicial precedent in deciding the cases before it. Prior decisions shall have the following order of importance: Appellate decisions of this Court, trial court level decisions, and federal law. State law may be looked to as a non-binding source of guidance. [Emphasis added].
This Court in Gerstner, 3 NICS App. 250 (Hoopa 1993) held that continued employment with the Tribe and its entities is an important property interest to which due process rights attach. Furthermore, in order to assure due process, certain minimal rights of employees must be protected. Those rights include: (1) adequate notice; (2) a hearing by an independent arbiter; (3) an initial burden of proof imposed on the employer; and (4) the right to confront and cross-examine those witnesses used against the employee. Gerstner, 3 NICS App. at 259. The case before us addresses Mr. Risling's right to a hearing by an independent arbiter. Gerstner is the controlling case. In this case we address the independent arbiter standard first articulated in Gerstner.
The TERO Commission is charged with "providing exclusive and independent investigation and administrative review of personnel actions and grievances . . .". TERO, §13.3.1 (emphasis added). In order to qualify as an independent arbiter under the Gerstner standard a "decision maker's
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conclusion must rest solely on the evidence produced at the due process hearing." Id. If an arbiter knows of investigative facts not placed into evidence, and "[e]ven if such investigative facts do not form a portion of the decision maker's conclusion, the appearance of unfairness is too high to be permissible." Id. (Emphasis added).
Federal standards, while not binding on this Court, also provide guidance. For example, see 28 U.S.C. § 455.1
We hereby establish the following standard to be used when the impartiality of a judge or arbiter is questioned:
Any judge or arbiter shall disqualify himself or herself in any proceeding:
(1) in which his or her impartiality might reasonably be questioned; or
(2) where he or she has personal bias or prejudice concerning a party; or
(3) where he or she has personal knowledge of disputed evidentiary facts concerning the proceeding; or
(4) where he or she has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular controversy.
We now apply this standard to the facts before us in this appeal.
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V. DISCUSSION
A. Recusal of Commissioner Hostler
The HVTC has not shown that Jasper Hostler does, in fact, possess any confidential information regarding the Council's reprimand or termination of Mr. Risling that would prejudice his judgment. Gerstner, however, does not require that the HVTC show actual bias by Mr. Hostler.
Mr. Hostler, who was then Council vice-chairman, attended the April 30, 1991 meeting. During that meeting, the Council members went into executive session. Also on April 30, 1991, the HVTC sent a letter of reprimand to Mr. Risling. These facts do not prove that Mr. Hostler obtained confidential information regarding Mr. Risling’s discipline; they do not show that Mr. Hostler currently possesses such knowledge; nor do they show that if Mr. Hostler did possess such knowledge, he would base his decision as a TERO Commissioner upon that knowledge. The HVTC’s evidence does not and need not rise to that level.
The facts as presented are sufficient to support a reasonable appearance that Mr. Hostler may possess confidential information regarding Mr. Risling’s discipline and that he might base his decision on information other than that adduced at the TERO hearing. This is sufficient under Gerstner to disqualify Commissioner Hostler as an independent arbiter because of the “appearance of unfairness.” Gerstner, 3 NICS App. at 259.
B. Recusal of Commissioner Masten
Mr. Risling admits that Peter Masten was neither his supervisor nor was he involved in Mr. Risling's discipline. However, once Mr. Masten became a Tribal Councilman in 1993, he presumably participated in settlement negotiations and legal discussions with counsel and Council members with regard to this case. We apply the same analysis as in Commissioner Hostler’s recusal.
During his tenure as a Councilman, Mr. Masten may have become privy to confidential information regarding Mr. Risling’s discipline and termination; Mr. Masten may use some or all of that information in rendering a decision on the merits. Again, there are sufficient facts in the record to raise a reasonable question regarding the appearance of fairness. Under the Gerstner standard, this disqualifies Mr. Masten as an independent arbiter.
VI. CONCLUSION
It has reasonably been shown that Commissioner Hostler and Commissioner Masten may each possess confidential knowledge regarding Mr. Risling’s discipline. This is sufficient to raise the appearance that their decisions regarding Mr. Risling’s case might be based on information other than that produced at the TERO hearing.
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Gerstner requires that an independent arbiter base his decisions "solely on the evidence produced at the due process hearing." This requirement extends beyond actual impartiality to also embrace the appearance of impartiality. The arguments establish sufficient facts upon which the appearance of impartiality might reasonably be questioned.
VII. ORDER
It is hereby ordered as follows:
1. The trial court order of December 7, 1995 is reversed;
2. Commissioner Jasper Hostler and Commissioner Peter Masten are to be recused from all further proceedings as arbiters in this matter; and
3. This matter is hereby remanded for further proceedings consistent with this Opinion.
(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
. . . .
(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular controversy.
. . .
28 U.S.C. §§ 455 (a) and (b).