Stanhope v. Tulalip Tribal Gaming Agency

8 Am. Tribal Law 352
CourtTulalip Court of Appeals
DecidedOctober 16, 2009
DocketNo. TUL-CV-ET-2009-0039
StatusPublished
Cited by1 cases

This text of 8 Am. Tribal Law 352 (Stanhope v. Tulalip Tribal Gaming Agency) is published on Counsel Stack Legal Research, covering Tulalip Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stanhope v. Tulalip Tribal Gaming Agency, 8 Am. Tribal Law 352 (tulalipctapp 2009).

Opinion

OPINION

PER CURIAM:

FACTS

Mason Stanhope, Appellant, was terminated from his job as an Inspector II by the Tulalip Tribal Gaming Agency, Appel-lee. The Dismissal Notice charged that Stanhope fell asleep while on duty on five separate occasions in December, 2008. For the first two incidents he received a Documented Verbal Warning under TTO 84.X.A.4. For the remaining three he was given a Dismissal Notice under TTO 84.-X.C.5. The termination was for major violations and “multiple minor violations” of the Human Resources Ordinance, Title 84, specifically:

TTO 84.VLG.3i: conduct affecting adversely the confidence of the Tribal enrolled members in the integrity of the Tulalip Tribes (major).
TTO 84.IX.D.2J: conduct bringing the Tribes into disrepute (major).1
TTO 84.IX.D.l.b: Sleeping on duty—no danger to others (minor) (five offenses).
TTO 84.IX.D.l.p: violation of any employment rule, including the rules regulations and procedures of your department unit (TGA Code of Conduct) (minor).

Appellant does not dispute that he fell asleep while on duty, as stated in the Documented Verbal Warning and the Dismissal Notice, but complains that the process used by the Gaming Agency violated his due process rights under the relevant Tulalip law.

The Employment Court upheld Stan-hope’s dismissal. He filed a timely appeal.

DISCUSSION

The Tulalip Tribe governs the relationship between its employees and the Tribe through Ordinance 84. TTO 84.I.B. Title 84 contains a dedication by the Tribe to treat “... each individual with care, dignity, fairness, respect and recognition.” TTO 84.I.A (emphasis added). Each employee may rely on Title 84 in determining his/her employment status. TTO 84.1.B.

Discipline, Grievances anil Appeals within the employment relationship are covered by TTO 84.X. An aggrieved employee is entitled to a series of administrative procedures, including notice of the actions or inactions leading to the disci[354]*354pline and the consequences if the behavior does not change. If these procedures do not satisfy the employee, he or she may appeal to the Employment Court and later seek review of the Employment Court’s decision by this Court. In pursuing this appeal, the employee is entitled to, among other discovery, a copy of his/her personnel file. TTO 84.X.B.9. Relevant portions of Stanhope’s personnel file are part of the record here. Neither party seeks to supplement the record with additional portions of that file.

Treating the employee with fairness, coupled with the procedural safeguards surrounding an employee’s termination found in TTO 84.X, require that the employee receive notice of the actions or non-actions giving rise to the discipline or termination, and, for minor offenses, opportunity to change this behavior prior to termination.

1. The major violations

Appellant was dismissed for tw7o major violations under TTO 84:

TTO 84.VI.G.3: An employee shall not engage in any action, which may appear or result in ...
f. Affecting adversely the confidence of the Tribal enrolled members in the integrity of the Tulalip Tribes (ma).
TTO 84.IX D.2.t: conduct bringing the Tribes into disrepute (ma).

One major violation may be grounds for dismissal, TTO 84.IX.C.5 and TTO 84.-X.A.3.b.l, although both sections give supervisors permission to impose lesser sanctions. Two major violations compel dismissal. TTO 84.X.A.3.b.2.

TTO 84 VI.G. is captioned “Ethics, Code of Conduct.” In accordance with its caption, this section prohibits a variety of conduct that “may appear” to be unethical for a public employee. Sleeping on the job is not ordinarily an ethical offense, and it is not one here. This Ordinance section is therefore inapplicable.

The Gaming Agency, however, also disciplined Appellant for violation of TTO 84 IX.D.2.t. This section prohibits “Conduct bringing the Tribes into disrepute.” The Code does not set out what evidence is required to prove this major violation, but the Ordinance provision is clearly aimed at protecting the public image of the Tribes. Thus, there must be some evidence that the public, aware of the employees’ conduct, thought it showed the Tribes to be disreputable.

Neither the Dismissal Notice nor the portions of Stanhope’s personnel file hint as to how the Gaming Agency or other officials determined the violation of these code sections, although the Dismissal Notice was signed by the General Manager and the Human Resources Director. So far as the record shows, no evidence was presented to the Employment Court that the public was aware of Appellant’s behavior or, if aware, had any reaction to it. The Employment Court rejected Appellant’s proffer of an informal survey of Gaming Agency employees refuting the conclusion that his conduct brought the Tribes into disrepute. On appeal, the Gaming Agency noted that only one of the individuals surveyed was a tribal member. At oral argument, it also proposed that the determination of the General Manager and the Human Resources Director was sufficient proof of violation of these sections.

We do not decide here that the Gaming Agency could never prove violation of TTO IX.D.2.t, although the imprecise drafting of the section could lead to that conclusion. Nor do we hold that an informal survey is a sufficient, or even admissible, rebuttal of such an alleged violation. We do hold that under the circumstances of this case, the Gaming Agency acted unfairly: it has not [355]*355given Stanhope proper notice of the evidence supporting its allegations regarding this major violation, nor has it afforded him a meaningful opportunity to present a defense to its conclusion that this major violation was committed. The Employment Ordinance requires that a terminated employee must receive a notice “setting forth the reasons” for termination. TTO 84, IX.C.5. Merely stating that a provision of the Ordinance was violated is not a reason; the “reasons” are the facts that show such a violation. The notice need not spell out the facts in evidentiary detail, but, in this case, there must be some factual allegations in the termination notice that would support a conclusion that the Tribes had been called into disrepute. There is no way, in this case, for the individuals occupying the two tribal offices. General Manager and Human Resources Director, who today are Tuialip tribal members but who tomoiTow may not be Tuialip members, to terminate Appellant based on their unsupported conclusions that Appellant’s minor violations of falling asleep on the job mutated into the major violation for which he was terminated. Furthermore, without disclosure of the bases upon which these officers made their conclusions, Stanhope is unable to rebut them. He is thus denied proper notice of the underlying bases of the violations and an opportunity to be heard in rebuttal to these conclusions. This treatment is unfair and violates the promises made to Appellant in Ordinance 84.

Similarly, the failure to produce evidence that the Tribes were brought into disrepute means that the decision of the Employment Court was not supported by substantial evidence as required by TTO 84, § X.B.12.

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Cite This Page — Counsel Stack

Bluebook (online)
8 Am. Tribal Law 352, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stanhope-v-tulalip-tribal-gaming-agency-tulalipctapp-2009.