5 NICS App. 29, MADISON v. TULALIP EDUCATION DEPT. (January 1998)

IN THE TULALIP TRIBAL COURT OF APPEALS

TULALIP INDIAN RESERVATION

MARYSVILLE, WASHINGTON

Michele Madison, Appellant,

v.

Tulalip Education Department, Respondent.

No. TUL-EMP-1/97-692 (January 18, 1998)

SUMMARY

Appellant, an employee of the Tulalip Tribes Education Department, also served as treasurer of the Utility Commission. The Utility Authority gave Appellant a tribal credit card, to which she charged Utility-related, Education Department, and personal expenses. Finding the use of a tribal credit card to make personal purchases violated the Human Resources Ordinance, the Education Department terminated Appellant’s employment.

The Employment Court, finding that Appellant’s use of a tribal credit card to make personal purchases constituted a major violation of HRO 84, affirmed her dismissal and remanded the matter back to the administrative body for implementation of discipline. Appellant was subsequently dismissed.

Appellant appealed her dismissal to the Employment Court, which denied her request on the ground that it would not hold a second hearing on the same facts and issues. Appellant appealed both Employment Court decisions to this Court of Appeals. Finding no error, we affirm.

FULL TEXT

Before:            Douglas Hutchinson*, Chief Justice; Larry J. King, Justice; Yvonne M. Leveque, Justice.

Appearances:  Michele Madison, Appellant; Claudia M. Newman, counsel for Appellant; Michael Taylor, counsel for Respondent Tulalip Education Department.

This matter came before the Tulalip Tribal Court of Appeals pursuant to Michele Madison’s Notice of Appeal filed on April 14, 1997. Ms. Madison appeals the April 4, 1997 order of the

5 NICS App. 29, MADISON v. TULALIP EDUCATION DEPT. (January 1998) p. 30

Employment Court affirming her dismissal from the Education Department.

I. BACKGROUND

Michele Madison managed the Tulalip Tribes Education Department for four years. As Education Manager, Ms. Madison was a tribal employee and, therefore, subject to the Human Resources Ordinance (HRO 84).

Ms. Madison concurrently served as the Utility Commission treasurer, a role that did not overlap her role in the Education Department. The Utility Authority operates and maintains the tribal and public utilities and provides community environmental services. The Commission is the advisory and policy setting board of directors for the Authority. Although the Commission has the duty to hire Utility personnel, and although the Utility Authority is an agency of the tribe, the commissioners are not themselves tribal employees.

In April of 1996, the Utility Authority gave Ms. Madison a tribal credit card. Between April and September of that year, in addition to charging Utility-related expenses to the card, Ms. Madison used the credit card to pay for Education Department expenses and to make personal purchases. Ms. Madison eventually repaid the Utility Department for her purchases.

On December 23, 1996, Ms. Madison was dismissed from employment with the Tribal Education Department. The Education Department found that Ms. Madison’s use of a tribal credit card to make personal purchases violated HRO 84. Ms. Madison appealed the dismissal and requested a hearing before the Tulalip Employment Court.

After a hearing on the merits, the Employment Court found that HRO 84 applied to Ms. Madison because she was an employee of the tribe. The court further found that Ms. Madison had used her tribal credit card for personal purchases. Based on these findings, the Employment Court concluded that Ms. Madison’s use of the tribal credit card to make personal purchases constituted a single major violation of HRO 84. The court affirmed the Education Department’s finding that Ms. Madison had committed a major violation of HRO 84 and remanded the matter back to that administrative body for implementation of the discipline. On April 11, 1997, pursuant to the Employment Court’s order, Ms. Madison was dismissed.

Ms. Madison appealed the Employment Court’s order to this Appellate Court. This appeal is before us now.

One week after appealing to the Appellate Court, Ms. Madison filed with the Employment Court a Notice of Appeal and Request for Hearing, appealing her April 11, 1997 dismissal and requesting a hearing before the Employment Court. The Employment Court denied Ms. Madison’s request, stating that it would not hold a second hearing on the merits. Ms. Madison appealed from that denial.

5 NICS App. 29, MADISON v. TULALIP EDUCATION DEPT. (January 1998) p. 31

On July 14, 1997, this Court consolidated the issues from both appeals.

II. ISSUES ON APPEAL

The issues on appeal are:

1) Whether the Employment Court was arbitrary and capricious in finding Ms. Madison’s actions constitute a major violation of the HRO?

2) Whether the Employment Court erred in remanding the matter back to the administrative body for implementation of the discipline?

3) Whether the Employment Court’s refusal to hear Ms. Madison’s appeal of her April 11, 1997 dismissal was arbitrary and capricious?

III. STANDARD OF REVIEW

The jurisdiction of the appellate court in appeals of Employment Court final decisions 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.” HRO 84, § X (B)(10) (emphasis added).

Black’s Law Dictionary defines “arbitrary and capricious” as follows:

Characterization of a decision or action taken by an administrative agency or inferior court meaning willful and unreasonable action without consideration or in disregard of facts or without determining principle.

BLACK’S LAW DICTIONARY, 5th ed.

IV. DISCUSSION

A. Was the Employment Court arbitrary and capricious in finding Ms. Madison’s actions constituted a major violation of HRO 84?

Ms. Madison contends that as a Utility Commissioner she was not and is not bound by the Human Resources Ordinance. Nevertheless, it is undisputed that Ms. Madison was an employee of the tribes’ Education Department. As such, the Employment Court found that Ms. Madison was bound by the provisions of HRO 84 and, further, that Ms. Madison was aware of this fact. HRO 84, § IX(D) contains a non-exhaustive list of violations, prefaced by the following provision:

The following list is to be used as guidance to supervisors and the C.E.O. in assigning penalties for rules violations. All situations are not listed but the use of this

5 NICS App. 29, MADISON v. TULALIP EDUCATION DEPT. (January 1998) p. 32

guide should result in fair and appropriate disciplinary action. . . .

The violations are grouped into two categories: minor violations and major violations. Major violations are defined as “those acts of such a nature that the first offense indicates that continued employment of the employee is not in the best interest of the tribes and for which an employee may be suspended or terminated.” HRO 84, §X(A)(1). Included in the list of major violations is the “personal use of tribal property – [o]ver $50.00.” HRO 84, §IX(D)(2)(h). Based on facts brought out at trial and testimony elicited from witnesses, the Employment Court found that over the course of several months Ms. Madison had used a tribal credit card to make personal purchases. The fact that Ms. Madison eventually repaid the account is immaterial. It was neither arbitrary nor capricious for the Employment Court to find that these purchases constituted a major violation of HRO 84.

B. Did the Employment Court err in remanding the matter back to the administrative body for implementation of the discipline?

The Employment Court affirmed the Administration’s finding that Ms. Madison had committed a major violation of HRO 84 and remanded the matter back to the administrative body for implementation of the appropriate discipline. Section X(B)(9) limits the jurisdiction of the Employment Court to either: (1) reinstate the employee with or without back pay and benefits; or (2) uphold the decision of the supervisor or administrator “[i]f the supervisor or administrator is found to have followed this Ordinance 84.” The Employment Court chose the latter. Because of the clear limitations imposed by § X(B)(9), the Employment Court did not err in sending the matter back to the appropriate administrative body to implement disciplinary action.

C. Was the Employment Court’s refusal to hear Ms. Madison’s appeal of her April 1997 “dismissal” arbitrary and capricious?

Pursuant to the Employment Court’s order, the Education Department terminated Ms. Madison’s employment. Ms. Madison appealed the Employment Court’s order to this Court of Appeals, and appealed her termination to the Employment Court. The Employment Court declined to hear the appeal on the basis that it was a request for “multiple hearings” on the same matter, which the HRO does not allow. Ms. Madison contends, however, that her “second dismissal was a separate action that raised different substantive and procedural issues than the first dismissal.”

We disagree. Ms. Madison was dismissed from employment with the tribe on December 23, 1996. She filed a Notice of Appeal and a Request for Hearing before the Employment Court. The Employment Court held a full hearing on the merits and upheld the administrative finding that Ms. Madison had committed a major violation of HRO 84. The Employment Court then remanded the matter to the administrative body for implementation of discipline, which it did on April 11, 1997. After Ms. Madison’s dismissal in December, she was not reinstated and she did not return to work at the Education Department. She could not have been dismissed from a position she no longer held. Therefore, the parties’ characterizations notwithstanding, what occurred on April 11, 1997 was, in effect, an enforcement of the earlier administrative decision to dismiss her, not a second dismissal.

5 NICS App. 29, MADISON v. TULALIP EDUCATION DEPT. (January 1998) p. 33

To allow a hearing on the merits of the April 11, 1997 action would be to allow Ms. Madison the proverbial second bite at the apple. The HRO does not provide for multiple appeals of employment decisions. The Employment Court was neither arbitrary nor capricious in refusing to hear Ms. Madison’s appeal of her April 11, 1997 “dismissal.”

V. ORDER

Therefore, based on the foregoing, it is hereby ordered that the Employment Court’s April 4, 1997 order affirming Michele Madison’s dismissal from the Education Department is affirmed.


*

Due to unforeseen circumstances, Justice Douglas Hutchinson is no longer able to participate in the consideration of this matter. This Opinion is the unanimous decision of the remaining members of the appellate panel.