7 NICS App. 143, TULALIP GAMING v. HALFMOON AND STAMP (December 2006)
IN THE TULALIP TRIBAL COURT OF APPEALS
TULALIP INDIAN RESERVATION
TULALIP, WASHINGTON
Tulalip Tribal Gaming Agency, Appellant,
v.
Mary Halfmoon and Eduardo Stamp, Appellees.
Nos. TUL-CV-ET-2006-0046; -0047 (December 5, 2006)
SYLLABUS*
Employment court overturned dismissal of two casino employees, finding that substantial evidence in the record supported charges of multiple minor violations of the Tribe’s Human Resources Ordinance, Gaming Ordinance, and Ethics Code, but that there was not substantial evidence sustaining allegations that the employees had committed major violations of these codes. Court of Appeals holds (1) absent a finding that the employer failed to follow the Human Resources Code, the Employment Court must uphold the administrative ruling of the employer; (2) the Employment Court did not find that the employer had failed to follow the code; and (3) provisions of the code requiring a remand for a new trial should not be applied where the facts are not contested and the only issues on appeal are issues of law. Employment Court order reversed and remanded for entry of judgment affirming the administrative decision of the employer.
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Jane Smith, Chief Justice; Elizabeth Nason, Justice; Douglas Nash, Justice. |
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Lael Echo-Hawk for Appellant; Mary Halfmoon, pro se; Eduardo Stamp, pro se. |
OPINION
Nash, J.:
Facts
On December 24, 2005, Tulalip Tribal Gaming Agency (TGA) employees Halfmoon and Stamp, Appellees here, detained Tulalip Gaming Organization (TGO) employee Richard Simpson during work hours as a practical joke. Appellees planned to advise Simpson that he was going to be arrested for allegedly assaulting Halfmoon in retaliation for an earlier incident
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when Simpson and Halfmoon were snapping each other with rubber bands. Simpson was taken to a detention room where his gaming license was taken from him and he was questioned. Appellee Stamp advised Simpson that the TGA Chief Inspector had been consulted regarding the alleged assault, that Simpson could be charged under the domestic violence statute and that the Snohomish County Sheriff’s Office would be coming to speak with Simpson and probably take him into custody. None of those statements were true. The incident proceeded as planned for approximately ten minutes at which time Appellees declared the matter a joke. Thereafter, none of the participants or observers informed their supervisors of the incident.
Approximately three weeks later, after hearing from TGO management of the incident, Appellant TGA conducted an investigation, during which Appellees were placed on administrative leave. Appellees were terminated from employment on January 31, 2006, for violations of the Human Resource Ordinance, the TGA Code of Ethics and violations of the Gaming Ordinance and Gaming Compact. Appellee Halfmoon was dismissed for the following reasons: (1) soliciting another employee to commit an offense; (2) conduct bringing the Tribes into disrepute; (3) impeding the efficiency of the Tribal organization; (4) inducing another employee to commit a violation of the Human Resource Ordinance (HRO 84); (5) violating the TGA Code of Ethics/Conduct Policy which requires conduct in accordance with the highest degree of morality, truthful conduct towards all persons, assumption of responsibility and accountability for his or her act or omission to act, governed by ordinary and reasonable rules of good conduct and behavior, failure to display good morals and values and commission of an act which could adversely affect the Agency (TGA). Appellee Exhibit No. 2 at 1. Appellee Stamp was dismissed for the following reasons: (1) acting outside the chain of command; (2) violation of any employment rule, including the rules, regulations and procedures of his department; (3) violating the TGA Code of Ethics/Conduct Policy which require conduct in accordance with the highest degree of morality, truthful conduct toward all persons, assumption of responsibility and accountability for his or her act or omission to act, conduct governed by ordinary and reasonable rules of good conduct and behavior, failure to display good morals and values and commission of an act which could adversely affect the Agency (TGA), and intimidation, use of unjustifiable violence, force, or threats against a person; (4) attempting to threaten or intimidate another person while on the job; (5) conduct bringing the Tribes into disrepute; (6) impeding the efficiency of the Tribal organization; (7) rude, discourteous, offensive or abusive language or conduct toward supervisors, other employees; threatening, intimidating or coercing another employee; and (8) failure to meet the duties of a TGA employee as outlined in the Tulalip Tribal Gaming Ordinance. Appellee Exhibit No. 1 at 1 – 2.
Procedural History
Appellees appealed their termination to the Employment Court where their appeals were consolidated for trial, which was held on March 20, 2006. In a decision rendered March 28, 2006, the Employment Court overturned the dismissal of both Appellees, finding that the alleged major violations were not supported by substantial evidence and ordered the reinstatement of the
7 NICS App. 143, TULALIP GAMING v. HALFMOON AND STAMP (December 2006) p. 145
Appellees. Halfmoon v. TGA, Decision on Appeal, TUL-CV-ET-2006-0046 (March 28, 2006); Stamp v. TGA, Decision on Appeal, TUL-CV-ET-2006-0047 (March 28, 2006). The employment court further found that multiple minor violations could be supported by substantial evidence and that the TGA could take appropriate action based on the multiple minor violations. Id.
On March 31, 2006, the TGA filed a notice of appeal with the Tulalip Tribal Court of Appeals. On June 13, 2006, the Court of Appeals issued an order requesting supplemental information. A Supplemental Statement was filed by the Appellant TGA on July 5, 2006. Neither Appellee filed a Supplemental Statement. The Court of Appeals accepted the Notice of Appeal and a hearing was scheduled and held on September 29, 2006.
Issues on Appeal
Appellant, TGA, poses several issues on appeal, specifically:
1. The Employment Court erred in its failure to uphold the TGA’s disciplinary actions when it did not find the TGA failed to adhere to the requirements of the Human Resource Ordinance.
2. The Employment Court erred when it found no substantial evidence to support a finding of major violations of the Human Resource Ordinance, department rules and Code of Ethics, the Gaming Ordinance, and the Gaming Compact.
3. The Employment Court erred when it found substantial evidence to uphold a finding of multiple minor violations, which is enough to dismiss an employee under the Human Resource Ordinance, but failed to uphold the disciplinary action.
Standard of Review
This case is governed by the laws and policies of the Tulalip Tribes. The jurisdiction of this Court in this case has been defined by tribal law.
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.
H.R.O. § X.B.10.
7 NICS App. 143, TULALIP GAMING v. HALFMOON AND STAMP (December 2006) p. 146
Statutory Background
The Human Resource Ordinance (HRO) (Ordinance 84) defines the grounds for which an employee may be disciplined. Two different categories of actions are defined: Major and minor offenses. Major offenses are defined as:
. . . those acts included in, but not limited to, violations of the rules of employee conduct specifically set forth in this Ordinance. Major offenses are those acts of such a nature that the first offense indicates that continued employment of the employee is not in the best interests of the Tribes and for which an employee may be suspended or terminated.
H.R.O. § IX.C.5.
Minor offenses are defined as:
. . . those acts which are unacceptable if repeated, but for which the employee will not be suspended or charged for the first offense.
H.R.O. § IX.C.5.
The ordinance authorizes a supervisor, with the approval of their department or division manager, and a review by the Human Resources Department with an authorized signature, to proceed, to dismiss or involuntarily terminate an employee “who has committed (1) multiple minor, or (2) multiple major and minor, or (3) a single major violation of this Ordinance.” H.R.O. § IX.C.5.
This statutory scheme is further developed by a provision of the ordinance that provides that “If the supervisor or administrator is found to have followed this Ordinance 84 . . . the decision of the supervisor or administrator shall be upheld. H.R.O. § X.B.11. (Emphasis supplied)
Analysis
This Court need only address the first issue raised by Appellant to resolve this case.
A review of the decision of the Employment Court reveals that there was no finding made that the supervisor or administrator in this case failed to comply with the provisions of the Human Rights Ordinance. Absent such a finding, the only course of action available to the Employment Court was to uphold the decision of termination since the language in H.R.O. § X.B.11 is mandatory. Further, absent such a finding, the findings made by the Employment Court that the alleged major violations were not supported by substantial evidence, that minor
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violations could be supported by substantial evidence and that the TGA could take appropriate action based on the multiple minor violations were inappropriate and are without effect.
Under H.R.O. § X.B.10, it would appear that the only option available to this court is 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.” However, the Employment Court in these cases did not make a factual error but rather an error in the application of the law. This Court has previously examined the issue of whether H.R.O. § X.B.10 limits this Court’s jurisdiction to reversal and remand for a new trial in every instance. In Medina v. THA, No. TUL-CR-ET-2004-0211, that was the conclusion reached. This Court has also remanded cases back to the Employment Court for “proceedings consistent with this opinion” instead of ordering a new trial. See, e.g., Bill v. THA, TUL-CV-ET-2004-0083. The issue of this Court’s remedial powers under H.R.O. § X.B.10 in cases where there has been an error of law as opposed to an error of fact was thoroughly analyzed in TGA v. Murray, 5 NICS App. 90, 91-92 (Tulalip Tribal Ct. App. 1998).
Under our interpretation of the standard of review set out in HRO 84, §X(B)(10), the Employment Court’s findings of fact are only to be reversed when they are "arbitrary, capricious, or unsupported by substantial evidence." When the trial court’s factual findings are found to be unsupported, only then is the remedy of a "new trial" available to the appellant and required to be ordered by the Court of Appeals.
There is no need for a new trial when the only issue before the Court of Appeals is whether the trial judge correctly applied the law to the facts. We see no purpose in having a new trial to take testimony, evidence and arguments when the facts of what occurred in the matter have been already correctly determined.
We further find that HRO 84, §X(B)(10) sets forth a high standard for overturning a trial court’s factual findings by requiring that a new trial only be set where the decision is found to be arbitrary, capricious, or unsupported by substantial evidence. We are interpreting this latter part of HRO 84, §X(B)(10) as applying only to the factual findings of the trial court. This standard makes it very difficult for the appellate panel to overturn the trial court’s decision on the facts unless the finding has little or no basis in the evidence presented to that judge. This high standard makes sense. It is the trial judge, after all, who saw the witnesses, heard the testimony, asked the questions, and who has the best sense of the credibility of the witnesses. Therefore, his or her determination of what happened in a particular case should be given the greatest deference and should only be overturned in extraordinary circumstances. As noted above, in the event the Court of Appeals does overturn factual findings, a new trial must be ordered.
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However, the standard is lower for review of a trial court’s legal conclusions under HRO 84, §X(B)(10). This, too, makes sense, because the trial judge is in no better position to decide the meaning of the law as applied to this case than is the appellate panel. The trial judge’s presence at the hearing, ability to view the witnesses, and judgment about truthfulness, while significantly contributing to his/her decisions regarding the facts of what happened in a particular case, adds little more to his/her understanding of what the applicable law means.
As a result, we find that this standard of review requires only that we consider the trial judge’s ruling on the law, but we are free to make a different decision on any legal interpretation. We are not required to send the case back for a new trial when the trial court decision is reversed only on a legal conclusion rather than a factual finding.
We make this decision by interpreting the first part of the standard – "The jurisdiction of the Court of Appeals in appeals of Employment Court final decisions shall be to reverse the Employment Court . . ." – to apply only to the legal conclusions of the trial judge. In other words, the appellate court can only reverse the trial court on legal interpretations, but must remand for a new trial (rather than simply reverse) when it finds that the trial court’s factual findings are "arbitrary, capricious, or unsupported by substantial evidence." We recognize that this is a strained reading of HRO 84, §X(B)(10), applying the first half of the sentence to legal conclusions and the second half to factual findings. We are concerned that we may not be reading the intent of the Board of Directors appropriately in construing this section in this fashion.
However, we are convinced that our reading of the standard of review language is reasonable, particularly in light of the inefficiency of ordering a new trial when a full, complete, and undisputed legal record has already been developed by the trial court. We invite the Board of Directors to clarify its intent in this section, if indeed our decision is an inappropriate reading of the review standard language in HRO 84, §X(B)(10).
Tulalip Gaming Agency v. Murray, 5 NICS App. 90, 91 - 92 (Tulalip Tribal Ct. App. 1998).
The conclusion reached in Murray, based upon the foregoing analysis, was that the Court of Appeals can reverse the Employment Court without remanding for a new trial if the appellate court holds that the Employment Court committed only an error of law. The analysis is sound and takes into account the several issues raised by attempting to apply H.R.O. § X.B.10 to cases such as the one before the Court now. It is significant that the Tulalip Board of Directors has not taken action to clarify its intention with regard to H.R.O. § X.B.10 in response to the Murray
7 NICS App. 143, TULALIP GAMING v. HALFMOON AND STAMP (December 2006) p. 149
Court’s invitation tendered some 8 years ago.
The Murray analysis governs the case before us. The Employment Court overturned the dismissal of Halfmoon and Stamp but made no finding that the supervisor or administrator failed to comply with the provisions of the Human Rights Ordinance. This course of action runs afoul of H.R.O. § X.B.11, which provides that “If the supervisor or administrator is found to have followed this Ordinance 84 . . . the decision of the supervisor or administrator shall be upheld. (Emphasis supplied) This is not an error of fact that is governed by the terms of H.R.O. § IX.C.5, which would require this Court to remand the case for a new trial. It is an error of law and application of the Murray analysis leaves this Court free to correct that error with out the necessity of requiring a new trial.
Conclusion
Based upon the foregoing, the decision of the Employment Court in these matters is hereby reversed and remanded to the Trial Court to enter an Order Affirming the Decision to Terminate employees Halfmoon and Stamp.
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.