4 NICS App. 171, TRIBAL ED. DEPT. v. NIXON (March 1997)
IN THE HOOPA VALLEY TRIBAL COURT OF APPEALS
HOOPA VALLEY INDIAN RESERVATION
HOOPA, CALIFORNIA
Tribal Education Department, Appellant
v.
Nicole Nixon, Respondent
Case No. C-95-028 (March 20, 1997)
SUMMARY
Appeal of trial court order which reversed a TERO Commission hiring decision and reinstated Respondent to a permanent position as teacher’s aide. Despite a recent amendment to the TERO rules which shortened the time period for appealing a TERO decision, Respondent reasonably relied on language in TERO decision that indicated she had twenty days within which to appeal to the trial court. Respondent had been terminated because of alleged violation of nepotism policy. Finding no such violation, we affirm the trial court’s order of reinstatement and remand for a hearing on damages.
FULL TEXT
Before: Elbridge Coochise, Chief Justice; Charles R. Hostnik, Justice; Christopher P. Williams, Justice.
Appearances: Bradley G. Bledsoe Downes, attorney for Appellant; Troy Fletcher, spokesperson for Respondent.
This matter came before the Hoopa Valley Tribal Court of Appeals pursuant to Appellant’s July 11, 1996 Notice of Appeal. The Hoopa Tribal Education Department appeals from the June 27, 1996 Opinion and Order of the Hoopa Valley Tribal Court which: (1) reversed a TERO Commission hiring decision, and (2) reinstated Respondent Nicole Nixon to a permanent position as Teacher’s Aide in the Hoopa Valley Head Start Program, with back pay.
I. JURISDICTION
This Court has personal jurisdiction over Respondent Nicole Nixon because she is a member of the Hoopa Valley Indian Tribe. This Court has personal jurisdiction over Appellant Hoopa Valley Tribal Education Board because it is an agency of the Tribe. The act which is the subject of this appeal occurred within the exterior boundaries of the Hoopa Valley Indian Reservation, giving rise to territorial jurisdiction. This Court has subject matter jurisdiction over this matter pursuant to Title
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I, § 1.1.04 of the Hoopa Valley Tribal Code.
II. STATEMENT OF FACTS
On October 5, 1994 the Hoopa Valley Tribe’s Head Start Program hired Nicole Nixon as a substitute teacher’s aide on an “on call basis”. Ms. Nixon subsequently applied for a full-time teacher’s aide position. The Parent Policy Council (hereinafter “PPC”) interviewed several applicants, including Ms. Nixon. The three highest-scoring candidates, Ms. Nixon, Lulu Baldy, and Tammy Fletcher were each called in for a second interview. On December 1, 1994 Pre-Kindergarten Director Gina Campbell verbally advised Ms. Nixon that she had been hired for the teacher’s aide position.
On January 10, 1995 Lulu Baldy sent a letter of complaint to the Tribal Education Department Director, Marcellene Norton. In her letter, Ms. Baldy alleged that Ms. Nixon’s hire “creates a nepotism problem . . . [because Ms. Nixon’s] Aunt is the Headstart [sic] Coordinator.” See Exhibit 22. The Education Board agreed to investigate the complaint.
Ms. Campbell sent a memo to the Education Board stating that the “ultimate decision was made to [choose] the candidate. . . based on her interview scores and her performance as a substitute in the position.” See Exhibit 24. The memo further states that nepotism was not an issue because the immediate supervisor for the teacher’s aide position was the teacher, not the Education Director. Finally, the memo reflects that Ms. Nixon’s interview score was higher than Ms. Baldy’s score.
In a January 24, 1995 letter, Ms. Campbell informed Ms. Nixon that she had been terminated because her hire violated the “Nepotism Clause” in § 7.3 of the Tribal Personnel Policy. The minutes of a January 24, 1995 Election Board meeting reflect that on that date the Board voted to send Ms. Baldy’s letter of complaint back to Head Start and the PPC for appropriate action pursuant to the Nepotism Ordinance and the Personnel Policies and Procedures. The PPC, in Executive Session on January 26, 1995, decided to “stand behind” its decision to hire Ms. Nixon and to allow her to continue to work until the nepotism issue was clarified. Two days later, Ms. Campbell sent Ms. Nixon a letter informing her that the PPC had decided to keep her on in the position of teacher’s aide until further clarification of the nepotism issue. See Exhibit 26.
Ms. Nixon learned of her termination in a February 7, 1995 letter. The letter also informed her that the Education Board found that her employment violated the anti-nepotism policies of the Hoopa Valley Tribe. On February 13, 1995 the Education Board approved the hiring of Lulu Baldy for the position of teacher’s aide.
Ms. Nixon filed a grievance with the TERO Commission on February 17, 1995. The TERO Commission held grievance hearings on April 3 and April 26, 1995. On May 17, 1995 the TERO Commission, upon finding that neither the Head Start Policy Committee nor the Head Start Director
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has the legal authority to hire or fire, affirmed the Education Department’s decision to terminate Ms. Nixon and to hire Ms. Baldy. The TERO Commission further found that “[a]lthough the Board mistakenly relied on the anti-nepotism prohibition in not hiring [Ms. Nixon], its decision was justified by [the interview] scores.”
As part of its written decision, the TERO Commission notified the parties that they had twenty days from receipt of the decision to file any appeals. On June 9, 1995 Ms. Nixon appealed the TERO Commission decision.
A trial court hearing on Ms. Nixon’s appeal was scheduled and continued several times, and finally set for October 26, 1995. Ms. Nixon failed to appear at the October 26 hearing, at which time the trial court judge dismissed the case and gave the parties permission to refile for review.
Ms. Nixon refiled her appeal on November 2, 1995. The trial court reviewed the matter de novo and issued its Opinion and Order on June 27, 1996. The trial court found: (1) contrary to the TERO Commission’s finding, that the hiring authority for Head Start programs resides in the PPC and the Head Start Director, not in the Hoopa Education Board; (2) that the Education Board’s hiring of Ms. Baldy was null and void; (3) that Ms. Nixon’s hire remained in effect; and (4) that Ms. Nixon’s hire did not violate the anti-nepotism policy and, therefore, her termination was invalid. The trial court reversed the TERO Decision After Hearing and reinstated Ms. Nixon to her permanent position as Teacher’s Aide.
An appeal to this Court followed on July 11, 1996. The Education Board’s appeal alleges that the trial court decision was arbitrary, capricious, and not in accordance with the law.
III. DISCUSSION
A. Timeliness of Appeal
The trial court concluded that Ms. Nixon’s appeal from the TERO Commission’s decision was timely. See Trial Court Opinion and Order at 4. The Tribe contends that this conclusion is clearly erroneous.
Generally, appellate courts will not consider issues raised for the first time on appeal unless good cause is shown why the issue was not raised below. Nevertheless, the timeliness of filing of Ms. Nixon’s appeal concerns the jurisdiction of the Court to hear the matter and may, therefore, be raised for the first time on review.
1. Twenty-Day Time Period
On February 17, 1995 Nicole Nixon filed an appeal with the TERO Commission. On May
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17, 1995 the TERO Decision after Hearing was hand delivered (evidenced by a receipt) to Ms. Nixon. The decision affirmed the Education Board’s decision not to hire Ms. Nixon and informed the parties that they had twenty days from receipt of the decision in which to appeal. Ms. Nixon appealed the TERO decision on June 9, 1995, which was 23 calendar days, or 16 working days, after receipt of the decision.
Prior to issuance of the TERO decision, the TERO Rules were amended to reduce the appeal time period from 20 days to 10 days. 1 The decision itself, however, notified Ms. Nixon she had 20 days within which to appeal to tribal court. Clearly the TERO Commission’s grant of twenty days in which to file an appeal of its decision was unauthorized. Nevertheless, this Court finds that it was reasonable for Ms. Nixon to have relied upon a statement in a written decision issued by an administrative body with the apparent authority to issue such statements.
2. Calendar Days v. Work Days
We next address whether “20 days” means 20 work days or 20 calendar days. Given Ms. Nixon’s reasonable reliance on the provisions in the TERO Decision, and in light of the Court Rule 1 admonition against interpretations that would result in prejudice to the parties, this Court interprets “20 days” to mean 20 work days. This is consistent with the current intent of the TERO Commission to provide 20 work days within which to file an appeal of a TERO Commission decision. See current TERO Hearing Rule VI(f).2 We therefore affirm the trial court’s finding that Ms. Nixon timely filed her appeal from the TERO Commission’s decision. See [Trial Court] Opinion and Order at 4.
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In recognizing that the TERO Commission and the trial court gave appellant 20 work days to appeal the TERO Commission decision, we find that Ms. Nixon’s appeal of the TERO Decision After Hearing was filed timely. Accordingly, we now turn to the merits of the case.
B. Scope of Review
Title I, Chapter 7 of the Hoopa Valley Tribal Code governs appellate procedure. Section 1.7.11 sets forth this Court’s scope of review of trial court decisions:
The appellate panel may either affirm the judgement as entered, modify it, or reverse the judgement by the majority vote, and its decision shall be final.
Pursuant to § 1.7.06, this Court reviews the “same record and evidence that was used by the Trial Court. . . .” Additionally, this Court also requested and reviewed the record in Nixon v. Norton & Education Department, Case No. C-95-017, a matter which, for all intents and purposes, constitutes an essential portion of the procedural history of the matter before us.
C. Merits
Both parties acknowledge the Commission inaccurately applied the nepotism provision of the Tribal Personnel Policy. The basic difference between the Commission decision and the trial court decision is when Nicole Nixon was hired, and by whom.
The Commission determined that the Education Board had the authority to hire and no one was hired until February 13, 1995 when the Board resolved the controversy by hiring Lulu Baldy instead of Nicole Nixon. The trial court determined that Ms. Nixon was hired in December 1994 by the PPC and Gina Campbell. Thus arises the issue of who has authority to hire and fire Head Start program employees.
Our analysis does not require a determination of who has the authority to hire and fire Head Start employees. The Education Board hired Lulu Baldy only because it perceived that the hiring of Nicole Nixon would result in a violation of the nepotism policy. In fact, both parties agree no violation of that policy would have occurred. Ms. Nixon was the candidate recommended for hire by the PPC, and was rated higher than Ms. Baldy by the interview committee. See Exhibits 10, 24. Ms. Nixon had a higher score, according to the evidence in the record. See Exhibit 24. In the absence of a nepotism issue, Nicole Nixon would have been the person hired.
The trial court was correct in its determination that Ms. Nixon should be reinstated. The trial court’s determination on this issue will be upheld.
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D. Remand for Damages Hearing
The nepotism provision was inappropriately applied to this situation. That inappropriate application caused Ms. Nixon to be terminated. Ms. Nixon should be reinstated, with an award of back pay and benefits, to the position for which she was hired on December 1, 1994. The trial court’s order of June 27, 1996 contemplated a separate hearing on damages to be awarded to Ms. Nixon. In light of our decision, this matter shall be remanded to the trial court for that hearing.
E. Attorney Fees
The issue of attorney’s fees was specifically reserved by the trial court, which has not yet ruled on this issue. See Trial Court Order of June 27, 1996. Therefore a decision by this Court on that issue is premature.
IV. ORDER
Therefore, based on the foregoing, it is hereby ordered that the trial court Opinion and Order of June 27, 1996 is affirmed. This matter is remanded to the trial court for a hearing to determine damages, including the amount of back pay, costs, and attorneys fees.
Ordinance 2-80 (amended April 27, 1995) states: “. . . except as expressly provided herein, any and all previous TERO enactments are hereby repealed and shall be of no effect.” Furthermore, TERO Rule 13.10 provides that “[a]ppeals of decisions of the TERO Commission may be filed under the rules of the Tribal Court.” Court Rule 22 provides that within ten days from entry of judgment, “a party dissatisfied with the judgment may file a notice of appeal with this Court.” Court Rule 22, however, is not a statutory provision. Furthermore, Court Rule 1 provides that “[t]he Rules of Court are subject to change by the Court without notice, but such changes shall not be interpreted as to prejudice the rights of parties in pending cases.” [Emphasis added]. The Court did not change the rules in this matter, and the TERO Commission had no authority to do so.
On November 15, 1995 the TERO Hearing Rules were adopted pursuant to section 13.3.2(c) of Ordinance 2-80 (amended April 27, 1995). TERO Hearing Rule VI(f) provides:
Any party to the matter may request review of the final decision of the TERO Commission in Hoopa Tribal Court. . . . A request shall be filed in the Tribal Court no later than twenty (20) work days from the date of the receipt of the decision of the Commission. . . . [Emphasis added].
Nevertheless, the preamble to the Hearing Rules explicitly states that “[t]hese Rules shall apply to all complaints and appeals filed with TERO after the date of their adoption.” [Emphasis added]. Ms. Nixon filed her TERO complaint in February of 1995; therefore, TERO Hearing Rule VI(f) does not apply to this matter. We find instructive, however, the TERO Commission’s resolution of the calendar day/work day ambiguity.