ARPRYAZHKA v. JAMES ET AL.

6 NICS App. 168, ARPRYAZHKA v. JAMES ET AL. (September 2004)

IN THE TULALIP TRIBAL COURT OF APPEALS

TULALIP INDIAN RESERVATION

TULALIP, WASHINGTON

Viooltje Arpryazhka, Appellant/Plaintiff,

Charles James, Marci Fryberg, Sharon Morehead, Paul Phillips, Myra Moses, Sandy Garner, Gary Vitcovich, Alissa Vetma, Judy Addy, Tashina Simpson, Lena Hammons, William Richardson, Debra Posey, Tony Hatch, Charmaine Fleming, Birginia Carpenter, Leroy Fryberg, Joy Lacy, Frieda Williams, individually and in their official capacity as Tribal Gaming Commissioners, Herman Williams Jr., Stanley Jones, Marie Zackuse, Melvin Sheldon Jr., Calvin Taylor, Donald Hatch Jr., Marlin Fryberg Jr., Les Parks, Dawn Simpson, individually and in their official capacity as the Board of Directors, Respondents/Defendants.

No. TUL-CV-GC-2003-166 (September 15, 2004)

(Rehearing Denied, October 14, 2004)

SYLLABUS^*

Based on sovereign immunity, trial court dismissed complaint for injunctive and declaratory relief against members of the Gaming Commission and Tribal Council filed by casino employee whose license had been revoked by Gaming Commission. Court of Appeals holds that defendants did not act outside of the scope of their official duties and their actions were therefore protected by sovereign immunity. Trial court order affirmed.

Before: Jane M. Smith, Chief Justice; Edythe Chenois, Justice; Martin Bohl, Justice.

Appearances: Francis X. Lame Bull for Appellant. Michael Taylor for Appellees.

OPINION

Smith, C.J.:

SUMMARY

Appellant was employed at the Tulalip Tribal Casino in Marysville, Washington. In March of 2002, Casino management suspected Appellant was acting in violation of the Gaming

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rules and procedures. An administrative hearing was held on June 3, 2002 to allow Appellant to address the alleged violations. Subsequent to the hearing, Appellant’s gaming license was revoked. Appellant appealed the decision to the Tribal Gaming Court. The Gaming Court upheld the decision of the Gaming Commission. Appellant then filed a Complaint for Injunctive and Declarative Relief, and Damages. On November 14, 2003, a hearing was held on Appellant’s motion for leave to file a reply brief and Appellee’s motion to dismiss. On November 26, 2003, the Court granted Appellee’s motion to dismiss on grounds of sovereign immunity. Appellant timely filed an Appeal, which is the subject of this decision.

ISSUE

Do the appellees enjoy sovereign immunity from suit for the actions that they took in the handling of Appellant’s license revocation and subsequent dismissal from employment?

DISCUSSION

Appellant puts forth several facts that she is alleging shows that Appellees acted outside the scope of their official duties when they revoked her licence and then terminated her from employment. She alleges that Appellees acted in concert to discredit her when she brought to their attention the existence of a sexually explicit tape (the so called “blooper” tape). She argues that the casino management set up a video surveillance camera in an office and then set her up to open a confidential envelope. She also alleges that she was denied the opportunity to tell the Business Council about the tape, thereby violating her free speech rights. We find little merit in any of her allegations. When counsel was specifically asked to show the panel exactly where Appellees went outside the scope of their authority, he was unable to point us to any meaningful action that was in violation of their authority.

TTO 49 § 1.2.2 has been interpreted by this Court to provide immunity from suit to the Tribes and its officials¹. TTO 49 § 1.2.2 sets out Tulalip statutory immunity. It states:

The Tulalip Tribes, its Board of Directors, its agencies, enterprises, charter organizations, corporations, or entities of any kind, and its officers, employees, agents, contractor, and attorneys, in the performance of their duties, shall be immune from suit; except where the immunity of the Tribes of its officers and employees is expressly, specifically and unequivocally waived by and in a Tulalip tribal or federal statute, a duly executed contract approved by the Tulalip Board of Directors, or a duly enacted ordinance or resolution of the Tulalip Board of Directors. (Emphasis added)

It is a conceded fact that in this case Appellees have not expressly, specifically and unequivocally waived sovereign immunity. Appellant is arguing that Appellees waived

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immunity by acting outside the scope of their authority.

Appellant alleges that she was subject to surveillance and had her e-mail censured. However, she was unable to show this Court how this was outside the scope of her employers’ authority. Tribal casinos have surveillance cameras everywhere. Casino management are, and should be, concerned about possible illegal activities, both from patrons and from employees. With the amount of money that passes through the casinos, and the potential for abuse, it would be gross mismanagement not to have many layers of scrutiny throughout the operation. Appellant argues that she was set up with a fake confidential letter and was authorized in opening it. However, the Gaming Court found that her actions went beyond just the looking at the documents in the envelope. She not only looked at the documents, she made copies of it. She then proceeded to attempt to cover up her actions when it was brought to her attention.

As to the censure of the e-mail, we don’t agree with this argument either. With the inception of the Internet, it is common practice for employers to view at e-mail and what sites the employee have visited while using company computers. Ultimately those computers belong to the employer and the employee has no expectation of privacy when using them. It has been exhaustively stated that you only use company computers for company business. If you don’t want your employer to see what you are writing, don’t write it on their computer or send it through their server. They can not only look at your e-mail, they can also look at your hard drive. Trying to argue otherwise is an exercise in futility.

Appellant alleges that the Gaming Commission conspired with the Casino management to revoke her gaming license. The record reflects otherwise. The record shows that her license was revoked for reasons that were valid and covered under their rules and regulations. Her actions, and her actions alone, were the basis for the revocation. It became clear to the Court that she knew her actions were in violation of the rules and she based her actions on the “everyone does it” rule of thumb. She then tried unsuccessfully to cast blame elsewhere. The Gaming Court found that her actions in opening the envelope were in violation of the rules and her subsequent coverup “demonstrated unsuitable character and lack of integrity.” We agree with the Gaming Court’s decision to revoke her license. Without a license, Appellant would be ineligible to continue working at the casino. Her termination was therefore valid.

Appellant also alleges that she was unable to get anyone to do anything about the “blooper” tape, which violated her free speech rights. The Court sees this argument as a red herring and places little merit in its consideration. The record reflects that Appellant was able to meet with the Tribal council on several occasions and advised them of the tape. She brought the tape to the attention of management. She was given ample opportunity to report the tape to the proper authorities, all without anyone telling her she couldn’t appear or talk about it. We do not see any free speech violation.

After digesting a mountain of case law and listening to oral arguments by counsel, we remain unconvinced that the Trial Court erred in its decision to dismiss the case. The Appellees

6 NICS App. 168, ARPRYAZHKA v. JAMES ET AL. (September 2004) p. 171

did not act outside the scope of their respective authorities and the dismissal on the basis of sovereign immunity is AFFIRMED. This appeal is remanded to the Trial Court for action consistent with this Order.

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.

Concerned Citizen v. Tulalip Tribes of Washington, et al., TUL-CI-7/02-341 (Tul. Tr. Ct., October 16, 2002).