6 NICS App. 67, SHORT v. HOOPA HEALTH ASSOCIATION (July 2001)

IN THE HOOPA VALLEY TRIBAL SUPREME COURT

HOOPA VALLEY INDIAN RESERVATION

HOOPA, CALIFORNIA

David Short, Appellant,

v.

Hoopa Health Association, Respondent.

No. A-99-008 (July 15, 2001)

SYLLABUS^*

Trial court, acting in its appellate capacity, affirmed TERO Commission ruling upholding agency’s termination of employee for cause. Court of Appeals, sitting as Supreme Court, holds (1) post-termination hearing and grievance procedure satisfied due process requirements and remedied agency’s failure to provide pre-termination performance evaluation; (2) hearing officer did not deprive employee of due process when hearing officer disallowed oral argument on issue of pre-termination evaluation; (3) substantial evidence supported TERO Commission ruling. Trial court order affirmed.

Before:     Yvonne Leveque Kobluk, Chief Justice; Volney Cothran, Justice; Katherine M. Eldemar, Justice.

OPINION

This matter came before the Hoopa Valley Tribal Supreme Court pursuant to Appellant's Notice of Appeal, filed on August 23, 1999. Appellant appeals from the tribal court's Decision and Order, filed on July 19, 1999, affirming the TERO Commission's termination of his employment.

I. Jurisdiction

    This Court has personal, territorial, and subject matter jurisdiction over this appeal pursuant to §1.1.04 of the Hoopa Valley Tribal Code. Pursuant to § 1.4.01, this Appellate Court sits in review of the tribal court decision as the Hoopa Valley Tribal Supreme Court.

6 NICS App. 67, SHORT v. HOOPA HEALTH ASSOCIATION (July 2001) p. 68

II. Factual Background

Appellant, David Short, was employed by the Hoopa Health Association as the Emergency Medical Services (EMS) Coordinator, a position he held for approximately fifteen years until he was terminated in October 1995. The EMS provides emergency services, including ambulance services, on the Hoopa Valley Indian Reservation. Mr. Short's duties as coordinator included the selection, recruitment and evaluation of EMS personnel and management of the department.

Starting in July 1995, a number of staff conflicts and concerns about Appellant's job performance became apparent. The evidence in the record shows some employees resigned from the EMS Department as a result of these conflicts. There is also evidence of employee complaints regarding Mr. Short's management of the department, scheduling problems, staffing problems, and personnel problems. Mr. Short had an on‑going conflict with a particular EMS employee. In early October 1995, Mr. Short notified the employee and Ray Matilton, employee's supervisor, that he refused to work with the employee anymore.

Ray Matilton became the HHA's Chief Executive Officer in October 1994. In August 1995 Mr. Matilton met with Mr. Short to discuss some of the personnel problems. At that time, Mr. Matilton told Mr. Short that he was not managing the department adequately nor was he providing sufficient management leadership. In September 1995, Mr. Matilton reprimanded Mr. Short in writing for unprofessional behavior during a telephone conversation with a job applicant.

In October 1995, Dr. Andrew Hooper, the Pre‑hospital Medical Director at Mad River Community Hospital, sent a letter to Mr. Matilton voicing his concerns with regard to the Hoopa Ambulance Service. Specifically, Dr. Hooper was concerned that Mr. Short was unable to recruit and maintain qualified medical personnel in the EMS department. Further, during the hearing, Dr. Hooper testified that he had observed an increase in personnel conflicts between Mr. Short and the EMS staff. He indicated that he believed these problems compromised patient care.

In addition to his management of staff conflicts and complaints, questions were raised regarding Mr. Short's performance in the field during emergencies. For example, in 1994, Mr. Short received a telephone call from the father of a newborn delivered at home. The father requested information about feeding the newborn; however, he refused to have the baby checked at the hospital. Acting as a liaison between the father and various medical personnel who urged that the baby he brought to the hospital, Mr. Short learned the father was afraid Child Protective Services (CPS) would take his baby. Believing the father of the child would take the baby and run, Mr. Short refused to divulge the father's name or call child protective services. At the time, Mr. Matilton expressed his concern to Mr. Short about his involvement in the situation and his failure to call CPS.

6 NICS App. 67, SHORT v. HOOPA HEALTH ASSOCIATION (July 2001) p. 69

Mr. Matilton terminated Mr. Short's employment on October 23, 1995 for "poor or ineffective performance over an extended period of time . . . ." Mr. Matilton did not provide a written evaluation of Mr. Short prior to terminating him.

III. Procedural History

Mr. Short filed a complaint with the TERO Commission on February 6, 1996. The TERO Director initially declined to act on the grievance. Mr. Short then filed an action in the Hoopa Valley Tribal Court seeking a writ of mandamus to compel the Director to investigate the grievance and issue a formal recommendation to the Commission. The trial court granted the writ and ordered the Commission to hold a hearing on the matter.¹

The Tribe filed a motion to vacate the writ, which the trial court denied. The Tribe then petitioned the Court of Appeals for a writ of mandamus. The Appellate Court denied the petition.²

Pursuant to an investigation, the TERO Director recommended denial of Mr. Short's grievance. Mr. Short requested a hearing before the full Commission. A hearing was held over the course of six days: May 27, May 28, June 16, August 4, August 5, and August 22, 1997. A decision was issued October 29, 1997. The Commission upheld Mr. Short's dismissal.³

Mr. Short appealed the TERO Commission decision to the Hoopa Valley Tribal Court, sitting in appellate review pursuant to Hoopa Valley Tribal Code § 1.4.01(b). The Appellate Court upheld the TERO decision in its July 19, 1999 order. This appeal followed.

IV. Issues on Appeal

Appellant raises three issues on appeal:

1)   Whether failure to provide Mr. Short with a pre‑termination written evaluation is a due process violation;

2)   Whether the TERO hearing officer violated due process when he failed to permit Appellant the opportunity to present closing argument regarding due process issues; and

3)   Whether the TERO Commission's factual findings were adequate to support its decision to uphold Appellant's termination.

6 NICS App. 67, SHORT v. HOOPA HEALTH ASSOCIATION (July 2001) p. 70

We address each issue in turn.

V. Discussion

A. Is failure to provide written pre‑termination evaluation a due process violation?

In the instant case the Tribe's failure to provide a written pre‑termination evaluation is not a sufficient basis for reversing the TERO Commission and reinstating Appellant. This Court holds that a failure to provide a written pre‑termination evaluation is not, in and of itself, a due process violation sufficient to require reinstatement or to grant the relief requested by Appellant.

The TERO ordinance provides substantial due process protections both pre‑ and post-termination. In the case before us, the Tribe failed to provide Appellant with a single written pre-termination evaluation. However, this failure was overcome by the post termination protection of a TERO Commission hearing. The post‑termination hearing met the minimum due process requirements set forth in Hoopa Valley Indian Housing Authority v. Gerstner, 3 NICS App. 250 (Hoopa Valley 1993). At the hearing the Tribe bore the burden of proving that termination was the appropriate remedy. Appellant had an opportunity to present evidence and confront the witnesses against him. Appellant had an opportunity to argue issues of law. The hearing officer and, ultimately, the full TERO Commission found sufficient factual basis for termination.

B. Did the hearing officer violate due process by failing to permit Appellant the opportunity to present closing arguments regarding due process?

The hearing officer did not violate Appellant's right to due process when he disallowed oral argument on the issue of pre‑termination written evaluations. The hearing officer is granted certain latitude in conducting a hearing. TERO Commission Rules Section 2A. While the hearing officer is required to hear oral argument he or she may limit or direct the argument to conform to time constraints or relevant subject matter. Here, as stated above, the issues relating to pre‑termination written evaluations were no longer relevant to the proceeding. Since the issue was no longer relevant, the hearing officer properly limited argument and did not commit reversible error.

C. Were the TERO Commission's factual findings adequate to support its decision to uphold Appellant's termination?

The record is replete with numerous and specific instances of Appellant's poor job performance. The extensive TERO hearings took place over the course of six days, with testimony taken from six witnesses. Appellant argues the TERO Commission's findings were conclusions as opposed to independent findings. Although the TERO Commission's findings

6 NICS App. 67, SHORT v. HOOPA HEALTH ASSOCIATION (July 2001) p. 71

were essentially the same as the CEO's findings, we hold the Commission's findings were adequate to support the termination decision.

The decision of the TERO Commission is upheld unless it is proven to be arbitrary, capricious, or not in accordance with law. Resolution No. 91‑71 A, approved March 6, 1995. The Appellate Court, in determining whether the TERO Decision was arbitrary or capricious, must decide whether there was substantial evidence to support the termination decision. Gerstner, 3 NICS App. 250, 263 (Hoopa Valley 1993).

CEO Ray Matilton's letter of termination to Mr. Short, dated October 23, 1995, stated that the dismissal was "a result of poor or ineffective performance over an extended period of time, during which I have observed a deterioration of your ability to provide leadership and direction….[s]ituations occur where a lack of good judgement [sic] has been exercised on your part, and/or inappropriate behaviour exhibited while acting as a representative of Hoopa Health Association."

The TERO Commission found that Mr. Short "exhibited poor performance and deteriorating leadership skills … lost the ability to supervise his crew and effectively deal with the personnel problems in his department … employees lost respect for him … appellant took inadequate steps to improve his management skills to meet the situation."

It is the role of the trier of fact to determine the credibility of the witnesses and to weigh the evidence. The TERO Commission, as the fact finder, weighed the evidence and determined the credibility of the witnesses. The Appellate Court is authorized to review the record and determine whether there is substantial evidence to support the decision reached by the TERO Commission.

Findings of fact are sufficient if they permit a clear understanding of the basis for the decision of the TERO Commission. For purposes of this appellate review, the complete record provides an understanding of the issues without the aid of separate findings or basis for those findings. There was substantial evidence to support the TERO Commission's factual findings.

VI. Conclusion

This Court has personal, territorial, and subject matter jurisdiction over this appeal. For the reasons stated in the discussion above, this Court should deny Appellant's requested relief.

VII. Order

Therefore, based on the foregoing, we hereby affirm the Decision and Order of the Hoopa Valley Tribal Court filed on July 19, 1999. Pursuant to that Decision and Order, Mr. Short shall not be reinstated. Appellant's requested relief is hereby denied.

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The syllabus is not a part of the Court's Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this Reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.

See Short v. Powell, Hoopa Valley Tribal Court, C‑96‑043, Opinion & Order Granting Writ of Mandate (1996).

See Hoopa Health Association v. Hoopa Valley Tribal Court (Short), 4 NICS App. 169 (Hoopa 1997).

See Short v. Hoopa Health Association, TERO Commission, T‑97‑04 (Oct. 29, 1997).