Gaming commissioners argue for their jobs back
After being ousted from their jobs when the September elections brought a new Tribal Council and executive administration, the three people who had composed the Tribal Gaming Commission came before council last week hoping to convince councilmembers to give them their jobs back.
They hadn’t done anything wrong, they argued, and the process to remove them wasn’t correct.
But Tribal Council didn’t buy it. They voted unanimously, with one abstention by Councilmember Travis Smith, to uphold the removal of Bob Blankenship, Don Rose and Sheila Brown from the board.
“Gaming, everybody knows, is the single most important economic engine for this tribe,” Scott Jones, attorney for the tribe’s executive branch, told Tribal Council. “The integrity of that enterprise is vital for this tribe. In such an important area, even the appearance of impropriety is cause for removal. Here you not only have the smoke of improper appearances, you have the fire of improper acts.”
Jones contended that the TGC had dumbed down the educational requirements for the position specifically so that former Principal Chief Michell Hicks would be eligible for the job and that Brown had violated Cherokee tribal code by applying for the position while still serving as a TGC member.
The story began when Principal Chief Patrick Lambert decided to run for office. He had served as executive director of the TGC for 22 years, the first person to hold the position, when he retired in February 2015. Rick Saunooke, who had worked closely with Lambert for most of that time, took over as interim executive director as the TGC set about finding a permanent replacement.
According to the TGC members, they took the task very seriously and made pains to approach it in the fairest possible way.
“They (commissioners) presumed that the applicants for the director would likely be well known to the commissioners both as colleagues and as friends,” former commissioner Don Rose testified. “In order to achieve as much objectivity as possible, the commissioners opted to hire an independent firm to conduct the search.”
In March 2015, the TGC entered into a contract with Valiant Consulting Group — a Native American-owned firm based in Albuquerque, New Mexico — to handle the hiring process. Valiant advertised the position, assessed applications, conducted interviews and provided the board a ranked list of the top five applicants, suggesting they interview the top three. Fourteen people applied for the job, with one of those — Rick Saunooke — excluded from consideration due to not meeting the educational requirements. The job description required a bachelor’s degree, and Saunooke had only an associate’s.
“We opened this (list of names) in the gaming commission office with the administrative assistant there to open it with us and read off the names of the people and where they rate,” Blankenship said.
Brown had applied for the job, coming in as number three on the ranking, but she assured Council there was no conflict of interest there, as she removed herself from all discussions surrounding the hiring process.
The commission then offered the job to the top-ranked applicant, Superior Court Judge Bradley Letts. However, negotiations fell through due to the salary and contract length Letts would require to compensate for leaving his current position with the state.
So, they offered the job to Hicks — the second-ranked candidate.
At the time, Hicks, who had appointed all three of the commissioners serving at the time, still held office. The plan was for him to migrate to the role of TGC executive director in November, after the Oct. 5 end of his political term.
The selection was something Lambert had feared and made clear he would fight when he came out the winner in the Sept. 3 election. On Sept. 8, the three former TGC members said, Lambert had met with them and asked about the hiring process.
“Patrick (Lambert) said, ‘I don’t know where you all are at in your hiring process, but if you hired Michell Hicks, I’m going to do all in my power to reverse that, to include tearing the house down if I have to,” Blankenship said. “And that’s the statement he made.”
Hours after his inauguration, Lambert followed through on that promise, presenting a resolution to council asking that they remove all three TGC members. At that time, he contended that Hicks’ hire was “nothing more than political payback,” the scenario was rife with “conflicts of interest” and the TGC had breached tribal code by allowing board member Sheila Brown to be considered for the director’s position.
Council passed the resolution unanimously, and the next day Hicks received word that the newly appointed TGC members had rescinded his contract. Saunooke was named acting director.
Points and counterpoints
Chad Smith, a former chief of the Cherokee Nation in Oklahoma who acted as the fired TGC members’ attorney, said the members’ removal was tantamount to a bill of attainder, which is legalese for finding somebody guilty without a trial.
“If these commissioners have done something wrong, there’s a proper process to do that,” Smith said. “Resolution No. 4 was not the proper process.”
Not so, countered Jones. In fact, the Cherokee code specifies that TGC members are “subject to removal, with cause, by a majority of the Tribal Council.”
“This is not a bill of attainder,” he said. “If this is a bill of attainder, then any time this council takes an act to remove somebody — which is set forth in multiple places where you can do that — then all of those would be bills of attainder.”
Likewise, Jones shot down Brown’s assertion that she had been acting within the bounds of the code by simply removing herself from discussions pertaining to the hiring process. Tribal code prohibits commissioners from “engaging in outside employment or activities, including seeking or negotiating for future employment, which conflict with their official duties and responsibilities as determined by the Tribal Council.”
“There’s not much more of a clear conflict of interest than to still be a member of a board that’s deciding who to hire in a position that you’ve applied for,” Jones said. “If you’re going to apply for the position, you’ve got to resign from the board. That’s just that simple.”
Councilmember Teresa McCoy questioned whether Brown had actually removed herself as thoroughly as she had claimed to. Reading from the minutes of a July 8 TGC meeting, McCoy pointed out that Brown was listed as being part of a discussion as to the process for advertising the position.
“She (Brown) was in the meeting at that time and she agreed that she was going to go along with the changes that were proposed for the position,” McCoy said. Brown had submitted her letter of interest in the position the previous month.
McCoy also questioned the educational requirements that were listed when advertising the position. Previously, the standard had been that the executive director should have a master’s degree or above — Lambert, the former director, had a law degree — but this time around the position was open to anyone with at least a bachelor’s.
“To me our casino is our golden egg,” McCoy said. “I mean, we drop the qualifications or standards to hire people in key positions, to me we jeopardize the quality this tribe would be receiving.”
According to tribal code, executive directors must have “at least five years of responsible administrative experience in public or business administration or possess broad management skills and have an MBA, J.D., or other higher degree of education.” Jones concedes that it’s possible to read that sentence in two ways — saying either that the director must have five years of experience in one of the fields listed or have broad management skills plus a higher degree of education; or else that directors must have experience as well as a higher degree. But Jones contends that the correct reading is the latter and argued that the TGC members knew that.
“Actually, it is obvious the ordinance calls for at least a master’s, but we concluded the lowest we could go and still meet the ordinance requirements was a bachelor’s,” Jones read from a July 1 email from Rose to Lambert.
Based on that, Jones charged that the TGC board set out wanting to hire Hicks and wrote the job description so that he would stand a high likelihood of getting selected through Valiant’s process.
“They knew before they made the decision that Chief Hicks with a bachelor’s degree was not qualified for this position under the code,” Jones said.
Smith, meanwhile, retorted that the email was taken out of context and part of a long chain of emails showing the commission’s “due diligence.”
Based on his education and experience, McCoy said, Hicks should qualify for a salary range of $149,000 to $178,000 under the TGC salary scale, but his starting salary was $214,000.
That’s still a lot less than the $250,000 Lambert was making at the time of his resignation, Smith pointed out, and significantly less than the salary Letts requested.
But it’s not apples to apples, McCoy responded, because Lambert holds a juris doctor degree and had been in his position for 20 years before progressing to his end salary.
The final decision
It took council some time to come to a decision. After two hours of deliberation they came back in session only to decide they needed more time in closed session to reach a conclusion. But when the decision came, it was not ambiguous.
With a move by Councilmember Tommye Saunooke and a second by Councilmember Bo Crowe, council voted unanimously to deny the protest, with Councilmember Travis Smith abstaining.
“I could talk about a few relevant things and a lot of things that aren’t relevant, but I don’t think I need to,” Jones said. “It is clear this council made the right decision when it passed Resolution No. 4.”