TULALIP TRIBES UTILITIES DEPT. v. JONES

5 NICS App. 34, TULALIP TRIBES UTILITIES DEPT. v. JONES (January 1998)

IN THE TULALIP TRIBAL COURT OF APPEALS

TULALIP INDIAN RESERVATION

MARYSVILLE, WASHINGTON

Tulalip Tribes Utilities Department, Appellant,

Clifford Jones & Marvin Jones, Respondents.

No. TUL-EMP-1/97-699, 1/97-700 (January 28, 1998)

SUMMARY

Termination notices for two tribal members by the Tulalip Utilities Department were found by the Employment Court to be procedurally incorrect. The Employment court dismissed, on the merits and without trial, all charges against the employees and invalidated the terminations themselves. Finding that the Tulalip Human Resources Ordinance (HRO) does not state that all underlying charges should be dismissed when there is a procedural error, and also finding that the HRO is not clear on whether an employer should have the opportunity to correct a procedural error, the Court of Appeals affirms the Employment Court order which finds the dismissal notices invalid, but reverses the dismissal of charges against Respondents and remands to determine the effect of an invalid termination notice upon the underlying charges.

FULL TEXT

Before: Douglas Hutchinson^*, Chief Justice; Larry J. King, Justice; Yvonne M. Leveque, Justice.

I. NATURE OF ACTION

These consolidated cases involve terminations of employment of two tribal members by the Tulalip Utilities Department. The termination notices were procedurally incorrect. As a result, the Employment Court dismissed, without trial on the merits, the charges against the employees which had resulted in the terminations. We affirm in part, reverse in part and remand for a hearing on limited issues.

5 NICS App. 34, TULALIP TRIBES UTILITIES DEPT. v. JONES (January 1998) p. 35

King, J:

II. FACTS

The “Order on Motion to Dismiss” entered by the Employment Court is a concise and accurate statement of the facts and the lower court’s conclusions:

. . .

III. BASIS FOR FINDINGS

The Tulalip Human Resources Ordinance, HRO 84 V.Q.2 prohibits individual tribal employees from participating in any employment decisions involving immediate family. The section states, in relevant part:

Employees, Committee members, Commissioners, or other tribal officials shall be disqualified from any personnel actions involving the . . . discipline, demotion, termination, investigation, laying off or other personnel actions involving immediate family. . . .

“Immediate family” is defined under HRO 84 V.Q. 1 as, inter alia, uncles, nephew s and first cousins. The parties have stipulated that the dismissal papers of Appellants, Marvin J one s and Clifford Jones, were signed by Danny Simpson, uncle to Clifford Jones and cousin to Marvin Jones. It is, therefore, established that “immediate family” participated in the “dismissal” of the appellants.

The language of the ordinance is crystal clear. Immediate family shall be disqualified from any personnel action involving . . . termination. HRO 84 V.Q.2 (emphasis added). The process by which an employee may be terminated is also provided in HR O 8 4. Specifically, HRO 84 X.A.6.a requires:

Dismissal notices must be in writing using the notice of dismissal form, with signatures of the employee and supervisor showing approval of the department or division manager, if any. A dismissal notice without the proper signatures w ill not be v alid. HRO 84 X.A.6.a (emphasis added).

Danny Simpson is disqualified from signing the termination notices of immediate family member, yet he signed the dismissal notices of both appellants. It is difficult to imagine how a signature can be proper when the signator is among a class unqualified to sign. Hence, this court must find that Danny Simpson’s signatures are not proper within the meaning of HRO 84 X.A.6.a, and, therefore, the dismissal notices which form the bas is of this action are invalid.

Based on the foregoing reasoning and the record and file herein, the court finds and concluded the following:

IV. FINDINGS OF FACT & CONCLUSIONS OF LAW

1. Danny Simpson is the first cousin of Marvin J one s and the uncle of Clifford Jones;

2. First cousins and uncles are “immediate family” within the meaning of HRO 84;

3. Tulalip employees/officials/commissioners, etc. are disqualified from participating in the termination o f immediate family;

4. Danny Simpson is disqualified from participating in the dismissal of Marvin or Clifford Jones, two members o f his immediate family;

5. The signing of dismissal papers is “participation” within the meaning of HRO 84;

6. The signature of an employee unqualified to sign cannot validate a dismissal notice;

5 NICS App. 34, TULALIP TRIBES UTILITIES DEPT. v. JONES (January 1998) p. 36

7. Danny Simpson signed the dismissal notices of both Marvin and Clifford Jones;

8. The dismissal notices of Marvin Jones and Clifford Jones are invalid and therefore, cannot support the dismissal of either appellant.

Wherefore, based upon the foregoing, it is hereby ORDERED, ADJUDGED and DECREED that:

1. The charges against both appellants which arise from the invalid dismissal notices are dismissed.

2. For the purpose of filing any appeal from this order, the time line shall be gin on the da te that this ord er is entered / filed.

III. ISSUE AND DISCUSSION

Was the Employment Court’s dismissal of all charges against Appellants “arbitrary and capricious?”

Section X(B)(10) of the Tulalip Human Resources Ordinance directs the appellate court in appeals of Employment Court final decisions to “reverse the Employment Court and direct a new trial where the decision of the Employment Court is found to be arbitrary, capricious, or unsupported by substantial evidence.”

Black’s Law Dictionary defines “arbitrary and capricious” as follows:

Characterization of a decision or action taken by an administrative agency or inferior court meaning willful and unreasonable action without consideration or in disregard of facts or without determining principle.

BLACK’S LAW DICTIONARY, 5th ed.

We have no dispute with the lower court’s finding that Mr. Simpson’s signature on the notices of termination invalidated the notice. Upon finding that the dismissal notices were invalid, the Employment Court invalidated the dismissals themselves. Nowhere in the HRO is there mention of what happens when invalidation of the written notice occurs. The HRO does not address clearly whether the employer should have the opportunity to correct its error, nor does it state that all underlying charges should be dismissed. The parties should be allowed to offer testimony and to present evidence regarding the consequences of a termination notice rendered invalid due to improper signatures.

Therefore, based on the foregoing, we hereby affirm that portion of the April 18, 1997, Employment Court order which finds the dismissal notices invalid; we reverse the dismissal of charges against Appellant and remand for a hearing to determine the effect of an invalid termination notice upon the underlying charges.

Due to unforeseen circumstances, Justice Douglas Hutchinson is no longer able to participate in the consideration of this matter. This Opinion is the unanimous decision of the remaining members of the appellate panel.