TULALIP TRIBES MAINTENANCE v. MCCOLLUM

6 NICS App. 138, TULALIP TRIBES MAINTENANCE v. MCCOLLUM (June 2004)

IN THE TULALIP TRIBAL COURT OF APPEALS

TULALIP INDIAN RESERVATION

TULALIP, WASHINGTON

The Tulalip Tribes Maintenance, Appellant,

Gary McCollum, Appellee.

No. TUL-CV-ET-2003-351 (June 04, 2004)

SYLLABUS^*

On remand from Court of Appeals, trial court, sitting as Employment Court, modifies its prior ruling by overturning the suspension of an employee and ordering various forms of relief. Court of Appeals holds that the relief ordered by the trial court exceeded the authority of the trial court and was therefore arbitrary and capricious. Trial court order reversed and remanded.

Before: Jane M. Smith, Chief Justice; Robert T. Anderson, Justice; Edythe Chenois, Justice.

OPINION

Anderson, J.:

In an order filed April 27, 2004, this court reversed the decision of the Tulalip Employment Court. We ruled that Tulalip Tribal Ordinance 84 did not require progressive discipline prior to suspension as ordered by the Employment Court and remanded the matter to the Employment Court for further proceedings. We stated: "On remand, the court should reconsider and clarify its finding as to whether a major offense occurred." Opinion and Order at 2.

On remand and apparently without a hearing or new trial, the Employment Court determined that a "major offense" had not occurred and: 1) overturned the suspension of Mr. MeCollum; 2) provided that the Employment Court's order constitutes a written warning under Ordinance 84; 3) ordered Mr. McCollum to complete an anger management course; 4) ordered the Tribe to pay for time and benefits lost to the suspension; and 5) ordered the tribe to pay for costs of the anger management course. Order on Remand (April 29, 2004). We reverse the decision of the Employment Court and remand for a new trial.

6 NICS App. 138, TULALIP TRIBES MAINTENANCE v. MCCOLLUM (June 2004) p. 139

Ordinance 84 explicitly provides that the Employment Court's remedial power is limited to "reinstatement in the job and/or back pay and benefits." Ordinance 84.X.B.9. The Employment Court thus had the authority to order relief numbered 1 (suspension of appellant is overturned) and 4 (appellant to be paid for time and benefits lost due to the suspension) set forth above and in the Court's Order. It did not have authority to enter relief numbered 2, (a warning), 3 (order that Mr. MeCollum attend an anger management course, and 5 (at the Tribe's expense). Our authority on appeal is also limited. We have the power 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." Ordinance 84.X.B.9. Because the Employment Court ordered relief beyond that permitted by Ordinance 84, we find that its action was arbitrary and capricious. We therefore reverse and remand and direct that a new trial be held.

We note that this matter was the subject of a trial and that the errors committed by the Employment Court were errors of law. The Employment Court may exercise its discretion in determining the scope of a new trial necessary to resolve this case.

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.