6 NICS App. 75, WAGNER v. TULALIP HOUSING AUTHORITY (October 2001)
IN THE TULALIP TRIBAL COURT OF APPEALS
TULALIP INDIAN RESERVATION
TULALIP, WASHINGTON
Daniel Wagner, Appellant,
v.
Tulalip Housing Authority, Respondent.
No. TUL-EMP-12/00-418 (October 2, 2001)
SYLLABUS*
Trial court, sitting as Employment Court, sustained employee’s termination based on violations of Human Resources Ordinance. Trial court found that employee’s conduct constituted insubordination and impeded the efficiency of the organization and that termination was appropriate discipline under the tribal Human Resources Ordinance. Court of Appeals holds that trial court ruling is arbitrary, capricious and unsupported by substantial evidence because (1) “insubordination” is not defined by the ordinance and trial court failed to provide a legal analysis of the term that would support a finding that employee’s actions had been insubordinate; (2) evidence did not support a finding that employee had impeded the efficiency of the organization; and (3) termination did not constitute appropriate discipline under tribal law. Reversed and remanded for new trial.
Before: Larry King, Chief Justice; Darwin Long Fox, Justice; Randall Steckel, Justice.
OPINION
Long Fox, J.:
SUMMARY
The Tulalip Court of Appeals finds that the Tulalip Employment Court's final decision to sustain Wagner's employment termination is arbitrary, capricious, and unsupported by substantial evidence. The court only sets forth statements rather than engage in a discussion supported by substantial evidence and applicable law when it concludes that Wagner's conduct during a staff meeting constitutes insubordination and impedes the efficiency of tribal organization within the meaning of the Tulalip Human Resource Ordinance, nor does it engage
6 NICS App. 75, WAGNER v. TULALIP HOUSING AUTHORITY (October 2001) p. 76
in a discussion supported by applicable law to explain why termination is appropriate progressive discipline. In sum, the Employment Court's final decision does not give Wagner a reason(s) explaining his employment status.
NATURE OF ACTION
This case involves an appeal from an employment termination. The Appellant, Daniel Wagner (hereinafter Wagner), was employed by the Respondent, Tulalip Housing Authority (hereinafter THA), as Accounting Clerk Four. THA terminated Wagner for his conduct during a staff meeting. Wagner appealed to the Tulalip Employment Court and the court sustained his termination. Wagner now appeals the court's final decision.
I. BACKGROUND
On November 22, 2000, THA called a staff meeting and required all THA employees and Board of Commissioners to attend. Earlier that month, several Board members had been investigated for alleged improprieties relating to tribal funds, so the morale among the staff was low. The purpose of the meeting was to build staff teamwork and morale.
At the meeting, Daniel Zackuse (hereinafter Zackuse), Chairman of the Board of Commissioners and one of the individuals investigated, invited those in attendance to "say whatever they wanted to say" on issues relating to THA. Wagner drew attention to himself as he sat with his arms folded, staring up at a monitor hanging from the ceiling. When Zackuse asked Wagner if he had anything to say, Wagner responded that he was looking "to see if [Zackuse's] face was on 100 America's Most Wanted."
THA terminated Wagner's employment for making "unnecessary and discourteous verbal remarks," a minor offense in violation of Human Resource Ordinance 84 (hereinafter HRO 84). This minor offense, however, is not specifically listed in the Ordinance and THA does not explain how it could be added. THA further decided that Wagner's conduct also constituted insubordination and impeded the efficiency of the organization, both of which are major offenses listed in the Ordinance as warranting a termination. The Ordinance, however, does not define insubordination, and THA does not explain how Wagner's conduct impeded the efficiency of the tribal organization.
Wagner filed a Notice of Appeal with the Tulalip Employment Court. The court granted him a hearing, which it heard arguments on the meaning of insubordination, as well as how Wagner's conduct did or did not impede the efficiency of THA. Wagner also argued that he should have been granted progressive discipline such as a written warning notice, a reprimand, or an opportunity to remedy his conduct prior to termination. THA, on the other hand, argued that immediate termination was appropriate.
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The Employment Court's final decision deemed Wagner's comment to Zackuse to constitute "insubordination within the meaning of HRO 84 IX.D.2.," and further that Wagner's response constituted an "impediment to the efficiency of THA within the meaning of HRO 84.IX.D.2.v." The court affirmed the findings of THA and sustained Wagner's termination as "appropriate progressive discipline."
Wagner now comes before this Court and appeals the Employment Court's final decision.
II. DISCUSSION
We decide one primary question in this case ‑ whether the Employment Court's final decision to sustain Wagner's employment termination is arbitrary, capricious, or unsupported by substantial evidence. To answer this question we address three sub‑issues: (1) Whether the Employment Court's conclusion that Wagner's comment constitutes insubordination within the meaning of HRO 84 is supported by substantial evidence and applicable law; (2) Whether the Employment Court's conclusion that Wagner's response constitutes impeding the efficiency of THA within the meaning of HRO 84 is supported by substantial evidence and applicable law; and (3) Whether the Employment Court's conclusion that Wagner's employment termination is appropriate progressive discipline is supported by applicable law? In sum, does the Employment Court's final decision give Wagner a reason(s) explaining his employment status?
For the reason stated below, this Court finds that the Employment Court's final decision to sustain Wagner's employment termination is arbitrary, capricious, and unsupported by substantial evidence and must be reversed.
A. Scope of Review
This Court's scope of review of the Tulalip Employment Court's final decision is as follows:
The jurisdiction of the Court of Appeals in appeals of Employment Court final decisions shall be 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. HRO § X B(10).
This Court's scope of review is narrow. We can either affirm the Employment Court's final decision or reverse it when the decision is found arbitrary, capricious, or unsupported by substantial evidence. If we reverse the decision, we cannot cure the error but must return the case to the court for a new trial. Hill v. The Tulalip Tribe, 5 NICS App. at 3 (Tulalip 1998).
The Employment Court's final decision should engage in a discussion supported by reasons, substantial evidence, and applicable law. The decision serves a dual purpose when it engages in this discussion ‑ the decision provides a meaningful review, avoiding being found
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arbitrary, capricious, or unsupported by substantial evidence, and the decision gives an employee a reason(s) explaining the status of their employment. We discuss these purposes in turn.
1. Meaningful Review
The Employment Court's final decision should engage in a discussion supported by reasons, substantial evidence, and applicable law to provide a meaningful review.
First, the Employment Court's final decision should engage in a discussion supported by reasons for its decision. Hoopa Valley Indian Housing v. Gerstner, No. C‑92‑035 (September 27, 1993). These reasons should explain to an appellate court how and why the lower court reached its decision.1 If the decision is not supported by this discussion, it is impossible for the appellate court to provide a meaningful review. Parks v. Tulalip Gaming Commission, No. TUL-Ci/12/93‑269 at 330, 332 (August 1, 1994).
Second, the Employment Court's Final decision should be supported by a discussion of the evidence relied upon for its decision. Gerstner at 262. This allows a reviewing court to determine that the decision is impartial and based solely on the evidence produced at the hearing. Parks at 331. In the absence of a discussion of evidence, an appellate court cannot adequately determine whether the lower court's decision is supported by substantial evidence. Id. at 332.
Third, the Employment Court's final decision should discuss applicable law and how this law leads to its decision. The Tulalip Tribal Courts must apply the available laws, ordinances, and customary laws of the Tribes to all matters that come before the Courts. Ord. 49. §1.2.3. (as amended by Resolution No. 95‑0032, Feb 9, 1995).2 The applicable law in employment cases is HRO 84.3 When provisions in the Ordinance are unclear, the court shall apply Tulalip case precedent and customary law for clarification.4 When there is no applicable Tulalip tribal law, ordinance, or customary law, the court may use, "in the following order, federal statutes, federal common law, state common law, and state statutes" for clarification.5 If the final decision is not supported by this discussion, then there is no means to ensure that the decision is not arbitrary and capricious by appellate review.
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2. Reason(s) Explaining Employment Status
Under the Indian Civil Rights Act, employment is a protected property interest which can only be terminated after minimal due process rights are granted. Gerstner at 258.6 Moreover, the stated purpose of HRO 84 is to ensure that "[e]very employee can use the Ordinance as a basis for making decisions about their employment status, the status of their supervisor, and status of the employees supervised by them."7 Reasons explaining employment termination, therefore, should not be taken lightly.
Under HRO 84, a terminated employee's rights include: notice,8 a right to a hearing,9 a final decision,10 and appellate court review.11 These rights apply to all tribal employees.12
A reason must be evident throughout these different stages of due process. The process begins with a dismissal notice where the employer must have just cause or reasons regulated by good faith to terminate an employee.13 If the employer uses discretion to construct its decision, the dismissal notice should set forth compelling reasons based on a rational discussion of the factors leading to its decision.14 The dismissal notice should also set forth reasons that demonstrate a logical and articulated connection between the decision and as underlying rational.15 During the hearing stage of due process, the Employment Court enjoys inherent power of requiring the employer to give reasons explaining how and why it reached its decision.16 Once the hearing has occurred, the court then must produce a final decision.
The final decision is a stage of due process where the Employment Court gives a reason(s) explaining employment status. The court considers the reasons set forth in a suspension or dismissal notice, evidence presented during the hearing, and weighs these against HRO 84 provisions and other applicable law to reach its decision. The decision, therefore, should engage in a discussion supported by these reasons, evidence, and applicable law which together gives an employee a reason(s) explaining the status of their employment. If the final
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decision does not give this reason(s), the employee can resort to the final stage of due process which is appellate review.
If this Court affirmed the Employment Court's final decision, we would say to Wagner that the court has given him a reason(s) explaining his employment status. This Court cannot do this.
3. This Court's Search for a Reason(s)
The stages of due process have run their course in Wagner's case. This Court has examined the Dismissal Notice, the hearing transcript, the Employment Court's final decision, written briefs from both parties, and has heard oral arguments from both sides. After all has been said and done, Wagner does not have a reason(s) explaining his employment status. In other words, Warner does not know why his employment is terminated. The Employment Court's final decision to sustain his employment termination does not engage in a discussion supported by reasons, substantial evidence, and applicable law. Instead, the court only sets forth statements and we cannot provide a meaningful review with just statements. As such, this Court finds the Employment Court's final decision arbitrary, capricious, and unsupported by substantial evidence. We now examines the three sub‑issues in turn.
B. Insubordination
First, we examine whether the Employment Court's conclusion that Wagner's comment constitutes insubordination within the meaning of HRO 84 is supported by substantial evidence and applicable law. This Court finds that the final decision is not supported by applicable law. As such, the final decision is arbitrary and capricious and must be reversed.
Insubordination is a major offense under HRO 84 and warrants employment termination.17 The Ordinance, however, does not define insubordination and the parties have struggled for a meaning and how it applies in this case.
The Employment Court's final decision states that "[w]hile Mr. Wagner's comment was not foul, it was rude and inappropriate and in light of the circumstances articulated above constitutes insubordination within the meaning of HRO 84 IX.D.2."18 Here the court includes the evidence it relied upon to reach its conclusion, but does not provide a meaning of insubordination to connect this evidence to.
Wagner argues that the Black's Law Dictionary definition of insubordination should be used in this case.19 This definition of insubordination means in part, "[a] willful disregard of an
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employer's instruction….”20 Wagner asserts that THA does not allege that it ordered him to do or not do something and that he disobeyed that order. Wagner argues, therefore, that his conduct does not constitute insubordination under this meaning.21
THA, on the other hand, argues that "[t]here is another more natural, sense of that term, in which being insubordinate could mean also in addition to a direct refusal to obey an order, it could be a refusal to be subordinate ...." THA goes on to say, "[i]t's our position that Mr. Wagner's behavior … insulting a superior, in front of the entire organization ... was insubordinate.”22
The Employment Court's conclusion that Wagner's comment constitutes insubordination is not supported by an analysis of any applicable law.
The court relies on HRO 84 § IX D(2) alone, which limits its ability to discuss how this provision supports its conclusion. The court states that Wagner's comment constitutes this major offense "within the meaning" of the Ordinance, yet the Ordinance does not provide a meaning. How then can the court make this statement or engage in a discussion without the inclusion of other authority for clarification? As it stands, Wagner's property interest is terminated because he violated a major offense that neither the Ordinance, THA, nor the Employment Court has a meaning for. This is alarming.23
The Employment Court does not apply available Tulalip case precedent in accordance with Ordinance 49 § 1.2.3 to clarify the meaning of insubordination. The court has ruled on insubordination cases dozens of times. During the hearing, THA stated, "I don't know what this court has ruled if ever. There is another more natural sense of that term ... insubordination could mean ... a refusal to be subordinate." The court responded, "[t]he court's actually ruled on it dozens of times." (Italics ours.). THA then asked, "[i]n the same way"? The court answered, "[y]ea ...."24 The court then should have considered at least one of these dozens of cases to clarify the meaning of insubordination and how it might apply in this case.
The Employment Court does not apply available Tulalip customary law in accordance with Ordinance 49 § 1.2.3 to clarify the meaning of insubordination. It has been brought to this Court's attention that there is Tulalip customary law regarding insubordination. Yet, this law was not sought after nor considered during the hearing or final decision stages of due process. This is unfortunate considering this unwritten law predates the written laws and ordinances commonly used today by the Tulalip Courts. Clearly the recent legislative amendment of
6 NICS App. 75, WAGNER v. TULALIP HOUSING AUTHORITY (October 2001) p. 82
Ordinance 49 § 1.2.3 indicates its strong intent that Tulalip customary law is just as important as Tulalip written laws, and that the Courts are to apply this unwritten law to all matters whenever it is available. Surety this unwritten law will be sought after and considered during the new trial for this case.
C. Impeding the Efficiency of Tribal Organization
Next, we examine whether the Employment Court's conclusion that Wagner's response constitutes impeding the efficiency of THA within the meaning of HRO 84 is supported by substantial evidence and applicable law. This Court finds that it is not. As such, the final decision is arbitrary, capricious, and unsupported by substantial evidence and must be reversed.
The Employment Court concludes that "Wagner's response on November 22, 2000 constitutes an impediment to the efficiency of THA within the meaning of HRO 84.IX.D.2.v." The court, however, does not consider any testimony or other evidence presented during the heating to support this conclusion. Is Wagner's response a hindrance in the short‑term or the long‑term? The court does not make this clear and leaves room for interpretation.
Wagner's interpretation involves a short‑term hindrance. He argues that his conduct does not impede the efficiency of THA because the staff meeting continued after he made his remark without further incident.25 THA's interpretation, on the other hand, involves a long‑term hindrance as is evidenced by the testimony of Sheryl Wharton and Cynthia Hatch. Wharton testified, "[i]f other staff members see an employee discredit and disrespect the people that oversee our operation ... [w]e have no team.. We can't work together … it just hinders the overall operation … if [Wagner] was not disciplined, any employee would believe they could … have no respect for their supervisors, their managers, or the commission."26 Hatch testified that in the long‑term the "[s]taff’s going to always remember … if you don't take charge and you let your employees or whoever speak in that … insulting manner, than why can't the rest of them do it?"27
The Employment Court's conclusion that Wagner's remark impedes the efficiency of THA should discuss applicable law and how this law leads to its decision. The Ordinance does not explain what circumstances violate this major offense and the court does not discuss how Wagner's response impedes THA's efficiency. Without this discussion, there is no means to ensure that the decision is not arbitrary and capricious by appellate review.
D. Progressive Discipline
Finally, we examine whether the Employment Court's conclusion that Wagner's employment termination is appropriate progressive discipline is supported by applicable law.
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This Court finds that it is not. As such, the final decision is arbitrary and capricious and must be reversed.
HRO 84 provides that, "[v]iolations of or actions contrary to the provisions of this Code shall be considered either major or minor and disciplinary actions taken accordingly."28 To this end, the Ordinance provides progressive disciplinary due process where the employee receives different types of discipline for different degrees of offenses that are imposed in a progressive manner.
For a first minor offense, for instance, an employer does not have grounds for discharge.”29 Instead, the employer provides the employee a written warning notice and counseling by an immediate supervisor.30 For a second minor offense of any type within one year of the first offense, discipline progresses and an employer provides the employee with a written warning notice, a policy consultation by human resources, and a five day suspension without pay.31 The employee up to this point is given the opportunity to remedy their conduct. For a third minor offense of any type within one year of the first offense, discipline progresses one last time and the employer finally has grounds for discharge.32
For a first major offense of any type, on the other hand, discipline bypasses written warning notices, counseling, and consultation, and progresses to suspension without pay for five to fifteen days.33 Rather than a written warning notice, the employee receives a written suspension notice with a copy of the appeal notice.34 The employee up to this point is also given the opportunity to remedy their conduct. A second major offense of any type, however, progresses to termination.35
Under HRO 84, progressive discipline also provides for immediate dismissal. The Ordinance provides that a first major offense of any type warrants "dismissal, dependent upon the seriousness of the offense at determined by the supervisor of the employee."36 The disciplinary action for a major offense of this sort bypasses written warning notices, counseling, consultation, suspension without pay, and progresses to immediate termination. Here the employee is not given the opportunity to remedy their conduct. Rather, the statutory scheme of the Ordinance gives the employer the discretion to determine that an offense is serious enough that continued employment would only jeopardize the health and well being of the workplace.37
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The Employment Court's final decision sustained Wagner's employment termination as "appropriate progressive discipline." The court, however, does not engage in a discussion supported by HRO 84 provisions or other applicable law, so there no means to ensure that the decision is not arbitrary and capricious by appellate review.
Why exactly is Wagner's employment termination appropriate? The court's decision does not provide an explanation. The court does not explain how Wagner's remark to Zackuse can be added to HRO 84's list of minor offenses, how this minor offense can constitute a major offense(s), and how this major offense(s) can bypass the progressive discipline afforded to minor and major offenses and progress to immediate termination.
The Employment Court's final decision should explain how THA can use discretion to add other violations to the Ordinance's list of minor or major offenses.38 The court offers a brief explanation when it states that, "HRO 84 does not provide an exhaustive list of specifically enumerated violations … rather, the ordinance provides a guide for this court to use when it addresses specific acts of misconduct," and that the Ordinance "shall not be used as an exhaustive list of ‘hooks’, upon which an employer must strain to hang a dismissal.”39 Although these statements may be true, the court's explanation is not supported with the inclusion of HRO 84 provisions or other applicable law, nor do these statements address Wagner's concern which is evident when he raised this issue again in his Brief as well as during his oral argument.40
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The Employment Court's final decision should also explain why termination is appropriate when Wagner was not granted the progressive discipline afforded to minor and major offenses. The court does not explain with the inclusion of applicable law how THA can use discretion to determine that a minor offense can constitute a major offense, and that a first major offense of any type warrants "dismissal, dependent upon the seriousness of the offense as determined by the supervisor of the employee,”41 The disciplinary action for a major offense of this sort bypasses written warning notices, counseling, consultation, suspension without pay, and progresses to immediate termination. Here Wagner is not given the opportunity to remedy his conduct. Rather, the statutory scheme of the Ordinance gives THA the discretion to determine that his offense is serious enough that continued employment would only jeopardize the health and well being of THA's workplace.42
III. CONCLUSION
There is one primary issue in this case which is answered by addressing three sub‑issues. This Court rules on them accordingly.
The Employment Court's final decision to sustain Wagner's employment termination is arbitrary, capricious, and unsupported by substantial evidence. The court only sets forth statements rather than engage in a discussion supported by substantial evidence and applicable law. As such, this Court cannot provide a meaningful review and Wagner does not have a reason(s) explaining his employment status.
First, the Employment Court's conclusion that Wagner's comment to Zackuse constitutes insubordination within the meaning of FRO 84 is not supported by an analysis of any applicable law. The Ordinance does not define insubordination and the court does not apply available Tulalip case precedent and customary law to clarify this meaning and how it might apply in this case.
Second, the Employment Court's conclusion that Wagner's remark to Zackuse constitutes an impediment to the efficiency of THA is not supported by substantial evidence and applicable law. Although the court heard testimony as to how Wagner's remark might constitute this major
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offense, the court does not include this testimony nor any other evidence to support its conclusion. The court does not discuss how Wagner's remark impedes THA's efficiency when the Ordinance does not explain what circumstances violate this major offense.
Third, the Employment Court's conclusion that Wagner's employment termination is appropriate progressive discipline is not supported by an analysis of any applicable law. The court does not explain with the inclusion of HRO 84 provisions how Wagner's remark to Zackuse can be added to FRO 84's list of minor offenses, how a minor offense can constitute a major offense(s), and how this major offense(s) can bypass the progressive discipline afforded to minor and major offenses and progress to immediate termination.
IV. ORDER
For the reasons stated above, the Tulalip Court of Appeals reverses the Employment Court's final decision and returns this case to the court for a new trial.
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 Rave v. Ho Chunk Nation Gaming Commission, No. CV 96‑33 at 6044 (Oclcbcr 9, 1977), discussing how a court enjoys inherent power to enforce a standard of reasonableness on an agency, requiring it to show how and why it came to a decision. The same principle applies where the appellate court requires the lower court to show how and why it came to a final decision
“The Tulalip Tribal Courts shall apply the laws and ordinances of the Tulalip Tribes, including the custom laws of the Tribes, to all matters coming before the Courts….” Ord. 49. § 1.2.3. (as amended by Resolution No. 95‑0032, Feb. 9, 1995).
HRO 94 § X B(8).
Ord. 49. § 1.2.3. (as amended by Resolution No. 95-0032, Feb. 9, 1995).
“….where no applicable Tulalip tribal law, ordinance, or custom law can be found, the Courts may utilize, in the following order, federal statutes, federal common law, stare common law, and state statutes as guides to decision of the Courts." Ord. 49. § 1.2.3. (as amended by Resolution No. 95-0032, Feb. 9, 1995).
See Lee v. Horejsi, No. HOH‑Civ‑799‑012 at 5 (March 26, 2000), discussing that "an elected tribal official who is entitled to hold an office under tribal law has a property interest in that office which can only be taken by procedures meeting the requirements of due process." See also Glenn v. Newman, 614 F.2d 467, 471 (5th Cir. 1980) where the Missouri Court of Appeals held that a personnel regulation listing a number of violations warranting dismissal and describing disciplinary procedures was sufficient to create a property interest in continued employment.
HRO 84 § I A.
HRO 84 §§ IX C(4); X A(6)(a); and X B(4).
HRO § X B(5)-(8).
HRO 84 § X B(9).
HRO 84 § X B(10).
HRO 84 § X B(3).
HRO 84 § IX D; 82 Am Jur 2d § 120.
Rave v. Ho Chunk Nation Gaming Commission, No. CV 96-33 at 6044 (October 9, 1977).
Id.
Id.
HRO 84 §§ X B(8); IX (D)(2)(a); X A(3)(b)(1).
Tulalip Employment Court’s Findings, Conclusions, Opinion, and Order at 4 (March 14, 2001).
Wagner’s closing argument, Transcript, tape 2 at 36 (March 7, 2001).
Appellant’s Brief at 8.
Id.
THA’s closing argument, Transcript, tape 2 at 27 (March 7, 2001).
See Chief Justice Lisa Brodoff’s dissent, Wagner v. THA, TUL-EMP-3/00-123 at 6-7 (March 27, 2001). discussing that it is unfair to have such a severe punishment (termination) when an employee is not give notice of the meaning of insubordination in HRO 84.
Id.
Appellant’s Brief at 7.
Wharton’s testimony, Transcript, tape 1 at 16 (March 6, 2001).
Hatch’s testimony, Transcript, tape 3 at 33 (March 6, 2001).
HRO 84 § IX A(5).
HRO 84 § X A(2).
HRO 84 § X A(3)(a)(1).
HRO 84 § X A(3)(a)(2).
HRO 84 § X A(3)(a)(3).
HRO 84 § X A(3)(b)(1).
HRO 84 § X A(5)(a)-(c).
HRO 84 § X A(3)(b)(2).
HRO 84 § X A(3)(b)(1).
82 Am Jur 2d § 119.
During the hearing, Wagner argued that "the Tribal Agency Employer, does not have utter and complete discretion...in interpreting that list. That list is there for a reason...the entire statutory scheme of HRO 84, evidences an intent by the legislature to ensure that Tribal employees have…a property right or a right to continued employment, in the absence of good cause for termination." Wagner's closing argument, Transcript, tape 2 at 32 (March 14, 2001).
Tulalip Employment Court’s Findings, Conclusions, Opinion, and Order at 5 (March 14, 2001).
Wagner argues that HRO 84 does not give THA "discretion to discipline employees for violations which do not appear on the list; nor does it give these individual discretion to add to the list." Appellant's Brief at 7. This Court disagrees.
The duty of THA includes the right to exercise discretion. HRO 84 is not black and white, and allows for discretion when constructing disciplinary actions. On one hand, the Ordinance specifically states what violations constitute a major or minor offense and what disciplinary actions to take. On the other hand, the Ordinance states that not all situations are listed in its classification of violations, and that all other violations are considered major or minor at the discretion of the supervisor, and disciplinary actions taken accordingly. HRO 84 § IX §§ D(2) and A(5).
While THA has discretion to construct disciplinary actions in these gray areas under HRO 84, this discretion is not absolute but is limited by a standard of reasonableness. In Rave v. Ho-Chunk Nation Gaming Commission, 25 ILR 6042, 6044 (March 1998), the court noted that, "[it] is a well‑settled tenet of administrative law that agency decisions must prove reasonable under the circumstances. The court goes on to say that "[r]easonableness may be determined through a demonstration of full consideration of all relevant matters and a logical and articulated connection between the decision and its underlying rational." Id. Furthermore, the court enjoys the inherent power to enforce this standard of reasonableness on an agency by requiring it to show how and why it came to a decision. Id.
HRO 84 suggest that supervisors can use discretion to add to the list of offenses. The Ordinance provides, "[t]he following list is to be used as guidance to supervisors and the CEO in assigning penalties for rules violations. All situations are not listed but the use of this guide should result in fair and appropriate disciplinary action…” HRO 84 § X A(3)(b)(l). (Italics ours.). The language "all situation are not listed" suggests there are other violations which perhaps should be on the list. The Ordinance further provides that offenses are to be classified as either major or minor, and that "[a]ll other violations shall be considered major or minor at the discretion of the supervisor...." HRO 84 § IX A(5). (Italics ours.). Clearly this suggest that THA can use discretion to add to the list of offenses. Finally, in Jones v. Tulalip Tribes Retirement Home, No. TUL‑EMP‑3/00‑l29, the Employment Court affirmed an employer's termination of Jone's because she called her supervisor a "fat bitch." The court said, "calling a immediate supervisor a foul name is a violation of HRO 84 despite the fact that this act is not specifically enumerated' in the Ordinance.
HRO 84 § X A(3)(b)(1).
82 Am Jur 2d § 119.