This is the Level II Training Material created for the NIGA Commissioner Certification Training - December 2018.
Dec. 12-14, 2018 New York New York Hotel Casino
Las Vegas, Nevada
NIGA Seminar Institute Commissioner Certification Training
NATIONAL INDIAN GAMING ASSOCIATION
LEVEL II AGENDA December 12-14, 2018 Las Vegas, Nevada
Wednesday, December 12
8:00 AM 9:00 AM
Breakfast to be provided
Journey of Submission Peter Nikiper, Director of Technical Compliance, BMM Test Labs
9:00 AM 10:30 AM
10:30 AM 10:45 AM
Break
Employment Issues for Regulators Charlene Jackson, Jackson Law
10:45 AM 12:15 PM
12:15 PM 1:15 PM
Lunch Break
Tribal Sovereign Immunity and The Gaming Regulator Liz Homer, Homer Law
1:15 PM 2:45 PM
2:45 PM 3:00 PM
Break
Licensing: Key Employees & Primary Officials Joseph Osterloh Executive Director Jamul Tribal Gaming Commission Thursday, December 13
3:00 PM 4:30 PM
8:00 AM 9:00 AM
Breakfast to be provided Effective Regulatory Writing Liz Homer, Homer Law
9:00 AM 10:30 AM
10:30 AM 10:45 AM
Break
Licensing: Vendors & Facilities Joseph Osterloh Executive Director Jamul Tribal Gaming Commission
10:45 AM 12:15 PM
12:15 PM 1:15 PM
Lunch Break
Internal Auditing-What's Required & How it Should Be Approached Sheryl Ashley, Director of Risk Consulting, Blue Bird CPA's
1:15 PM 2:45 PM
2:45 PM 3:00 PM
Break
Financial Controls & Accounting Standards Sheryl Ashley, Director of Risk Consulting, Blue Bird CPA's Friday, December 14
3:00 PM 4:30 PM
8:00 AM 9:00 AM
Breakfast to be provided
Roles of Surveillance Cheats & Scams George Joseph, Worldwide Casino Consulting, Inc.
9:00 AM 10:30 AM
10:30 AM 10:45 AM
Break
Roles of Surveillance Cheats & Scams George Joseph, Worldwide Casino Consulting, Inc .
10:45 AM 12:15 PM
Please plan to stay for the entire class on each day to get your certificate of completion. Please be on time for sessions
Journey of Submission What happens when a gaming machine is sent to a gaming test lab?
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Different laboratories… Do different testing.
Electrical
Safety
Gaming
And many more…
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General Process
Manufacturersubmits to a lab
The lab tests according to requested standards
The lab issues a report
The TGRA makesa finding basedon the report
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Submission to the lab 25 CFR 547.5 (c) Submission, testing, and approval – generally. Except as provided in paragraph (b) and (d) of this section, a TGRA may not permit the use of any Class II gaming system, or any associated cashless system or voucher system or any modification thereto, in a tribal gaming operation unless: …
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Submission to the lab (1) The Class II gaming system, cashless system, voucher system, or modification thereto has been submitted to a testing laboratory;
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Submission to the lab What does the lab need?
Hardware including peripherals, i.e. BV, printers
Submission letter
Math
Software
Servers
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Testing (2) The testing laboratory tests the submission to the standards established by: (i) This part; (ii) Any applicable provisions of part 543 of this chapter that are testable by the testing laboratory; and (iii) The TGRA ;
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Testing Scope of work / Submission management • Each submission is entered into a project tracking system • Kick off meeting – Engineersare assigned to the project
– Resources assigned – Timelineestablished – Any foreseen compliance issues
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Testing Random Number Generators (RNGs) • Source code review • Algorithm implementation • Samples • Analysis against Die-Hard battery
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Testing
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Testing Math Analysis • Review all combinations / patterns (wins & losses) • Calculate the game cycle • Calculate the game volatility • Calculate the RTP / hold or edge • Calculate the top award odds • Compare with manufacturers math • Emulate combinations on device and verify payouts
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Testing Functional testing
• Generate list of test scripts to be used • Based on Part 547 & 543 for Class II • Based on GLI-11/NV for Class III • Additional tests based on location or tribe the device will go to.
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Results of Testing (3) The testing laboratory provides a formal written report to the party making the submission, setting forth and certifying its findings and conclusions, and noting compliance with any standard established by the TGRA pursuant to paragraph (c)(2)(iii) of this section;
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Results of Testing (4) The testing laboratory’s written report confirms that the operation of a player interface prototype has been certified that it will not be compromised or affected by electrostatic discharge, liquid spills, electromagnetic interference, radio frequency interference, or any other tests required by the TGRA;
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Results If everything works • Technical reviews of the testing • A draft report is generated
• A regulator and/or client review of the report • Final report issued to both regulator and client
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Results What happens if issues were found during testing? • Document the problem(s) • Steps to reproduce and/or show frequency • Assign a severity (Low to High) • Resubmission or withdrawal of the submission
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Final part of a submission (5) Following receipt of the testing laboratory’s report, the TGRA makes a finding that the Class II gaming system, cashless system, or voucher system conforms to the standards established by: (i) This part; (ii) Any applicable provisions of part 543; and (iii) The TGRA.
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Key Items for Class II • Bingo Patterns • Ball Draw Process • Bingo card distribution / generation • Minimum number of players • Game Ending Pattern • Bingo game type • Disclaimers
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Key Items for Class III • RNG Review & Analysis • Game Determination
• Game Play • Accounting • Game Recall • Emulation • Security
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12/2/18
Employment Issues and Gaming Regulators
NIGA Level II Commissioner Training December 12, 2018
Charlene D. Jackson
Objective Generalized overview of employment law Things to consider ◦Jurisdiction ◦Applicability of law ◦Interpretation ◦Regulatory authority Law cannot be read in a vacuum
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Scenario: Edward Employee Edward Employee – resign or be terminated Card dealer, required to stand for long periods of time
Reasonable accommodation requested and granted on paper but not implemented; required to resume normal duties, HR complaint Routine drug test - failed Reinjured back at work; ambulance transported, hospitalized and missed work Resign or be terminated – NC/NS; failed drug test – impact gaming license He says terminated because of union activity
Long term employee and union rep; currently working on increasing wages Hurt on the job when he picked up something heavy Medical care; off work; return to work with limitations and on pain medication Workmen’s compensation paperwork not submitted
Reading the Law – Important Considerations Mandatory versus Discretionary Terms ◦ Must and shall ◦ May and can Qualifiers ◦ Notwithstanding ◦ Except ◦ Provided, however ◦ Commas ◦ And/or Legislative Intent Definitions
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Some Examples Fry Bread: Combine flour, salt and baking powder Combine flour, salt or baking powder The power of the comma:
Qualifying language: “That’s not something I’m expecting.” “That’s not something I’m expecting right now.”
Let’s eat Grandma! Let’s eat, Grandma!
Companion Reading Constitution ◦ Bill of Rights, Civil Rights, Indian Civil Rights, Tribal Constitutions Treaties Law ◦ Applicable federal law: IGRA and employment laws ◦ Applicable state law ◦ Tribal Codes and Ordinances, including the Gaming Ordinance Case Law Regulatory Agencies and Decisions Administrative and Human Resource Policies Gaming Compacts including Appendices
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Relevant Question: Jurisdiction? Tribal? State? Federal? Regulatory Agency? Concurrent? *Do not assume tribal only jurisdiction Specific applicability
Applicability by terms of a different law, agreement, regulation or policy Interpreted applicability by case law and/or action or facts *Do not assume only tribal law applies *Do not assume state law doesn’t apply
But I’m a Regulator – I Don’t Need to Know this “HR Stuff” Overlap between HR Issues and Regulatory Issues
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◦ HR – Suitability for employment and job performance within policy (operational) ◦ Commission – Threat to public interest; regulation of gaming; creation of unfair or illegal practices in conduct of gaming (Regulatory) Stay in your lane – but understand your lanes will overlap or cross Awareness is critical
TRIBAL COURT INDIAN COUNTRY, USA
EDWARD EMPLOYEE, Plaintiff, vs.
Case No.: TC-CV-2017-876
COMPLAINT
TRIBAL CASINO, TRIBAL CASINO CEO, in his individual and as CEO, TRIBAL GAMING BOARD MEMBERS and DEFENDANTS 1-6, unnamed spouses in their professional and individual capacities, TRIBAL GAMING COMMISSIONER and DEFEDANTS 7-14, unnamed spouses, in their professional and individual capacities. Defendant
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COMPLAINT - 1
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Federal Employment Laws
Applicability to Tribes – The General Rule General statutes by their own terms “applying to all persons” includes Tribes and their “property interests.” ◦ Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99 (1960) Exceptions: ◦ Exclusive rights of self governance - intramural matters ◦ Application of the law abrogates treaty rights ◦ Proof that Congress intended the law not to apply ◦ Donovan v. Coeur d’ Alene Tribal Farms , 751 F.2d 1113, 1116 (9 th Cir. 1985)
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Title VII of the Civil Rights Act of 1964 42 U.S.C. §§ 2000e – 2000e-17 (2000); Executive Order 11246 Prohibits discrimination due to race, color, religion, gender or national origin Applies to employers with 15+ employees for each working day in 20+ calendar weeks Excludes US, corporations owned by US or Indian Tribes . However, exemption does not extend to enterprises with mixed ownership (Tribe and non-Indian owner) ◦ Myrick v. Devils Lake Sioux Manufacturing Corp ., 718 F. Supp. 753 (D.N.D. 1989)
Indian Preference Under Title VII Indian preference in hiring is expressly permitted for employers on or near reservations Exceptions: ◦ No preference for members of a particular tribe over other tribes ◦ Dawavendewa v. Salt River Project Agricultural Improvement Power Dist ., 154 Fed.3d 117 (9 th Cir. 1998), See also Dawavendewa v. Salt River Project , 276 F.3d 1150 (9 th Cir 2001) ◦ Note: SRP is not a tribally owned corporation
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Age Discrimination in Employment Act 29 U.S.C. §§ 621-634 (2000) Prohibits discrimination on basis of age Employees/applicants protected if over 40 Liability may be avoided if employer can show bona fide occupational qualification requiring an employee to be younger Silent on applicability to tribes
Case Law ADEA applies to the tribe “in its capacity as proprietor” of bingo facility, at least when claimant is not a tribal member. ◦ EEOC v. Forest County Potawatomi Community , No. 2:2013mc00061 (E.D. Wis. 2014) ADEA does not apply when dispute ◦ Involves treaty rights ◦ EEOC v. Cherokee Nation , 971 F.2d 937 (10 th Cir. 1989) ◦ Intramural affairs ◦ EEOC v. Fond du Lac Heavy Equipment and Construction Co. , 986 F.2d 246 (8 th Cir. 1993) ◦ EEOC v. Karuk Tribe Housing Authority , 260 F.3d 1071 (9 th Cir. 2001)
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Americans with Disabilities Act of 1990 42 U.S.C. § 12101 et. seq. National mandate with enforceable standards for elimination of discrimination against individuals with disabilities Federal enforcement Invoke congressional authority, including the power of the 14 th Amendment and to regulate commerce to address discrimination Disability specifically defined term
Nondiscrimination Title I : Employment opportunities and requires reasonable accommodations for employers with 15+ employees ◦ Excludes: US, corporations owned by US or Indian tribes Title II: State and local government - equal opportunity to benefit from programs, services and activities ◦ No mention of tribes but tribal sovereignty may exempt tribes Title III: Public accommodations and commercial facilities that prohibit exclusion, segregation or unequal treatment ◦ Can apply to public accommodations run by a tribe, but cannot be enforced by private person against tribe in non-Indian forum due to sovereign immunity. However compliance can be compelled by US Attorney General. Florida Paraplegic Assoc. v. Miccosukee Tribe of Indians of Florida, 166 F.3d 1126 (11 th Cir. 1999)
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Fair Labor Standards Act 29 U.S.C. §§ 201-219 (2000 and 2016) Standards for minimum wages and terms of payment for overtime No specific mention of tribes 2016 Amendments ◦ Increases minimum salary levels necessary for an employee to be classified as exempt ◦ Rises the highly compensated employee threshold ◦ Automatic updates every 3 years ◦ Effective December 1, 2016
FLSA Case Law LEO not entitled to protections because tribal law enforcement is traditional governmental function. ◦ Snyder v. Navajo Nation , 371 F.3d 658 (9 th Cir. 2004)
In a case involving tribal consortium to protect native game and fishing rights, the court opted not to apply FLSA as a matter of comity and sovereignty because FLSA would not apply to state or local governments. However, government employees exercising powers of tribal government are exempt from FLSA. ◦ Reich v. Great Lakes Indian Fish and Wildlife Commission, 4 F3d 490 (7 th Cir. 1993)
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More FLSA Case Law FLSA applies to business operated on tribal land and owned by tribal member. ◦ Chao v. Matheson , 2007-WL-1830738, No. C-06-5361 (W.D. Wash., June 25, 2007)
National Labor Relations Act 29 U.S.C. §§ 141-187 (2000) Authorizes employees to form unions for collective bargaining and engaging in “protected concerted activity” Prohibits employers from prohibiting exercise of rights or engaging in conduct that may have a “chilling effect” Applies to employers with $50,000 in annual business Applies to private employers operating on or near reservations No express applicability or exemption for tribal governments but does exempt the US
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Protected Concerted Activity 2+ people acting together to improve working conditions or wages; also 1 person if
Excludes reckless or malicious behavior – sabotaging equipment, lies about a product, revealing trade secrets may cause action to lose protection May also exclude “hate speech”
he/she involves others before acting or acts on behalf of others Does not require union membership
Some Examples Social media comments Sharing own confidential information, including wages, corrective actions, etc. Rules restricting criticism of management Rules requiring employees to be respectful or that prohibit an employee from poking fun, denigrate or defame co-works and others Rules prohibiting resistance to proper work related orders or discipline, even though not overt insubordination
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Tribal Challenges Tribal law prohibiting union membership as a condition of employment did not violate NLRA. It is an exercise of sovereign authority of tribe to govern its own territory. ◦ National Labor Relations Board v. Pueblo of San Juan , 276 F.3d 1187 (10 th Cir. 2002) NLRA applies to casino wholly owned and operated by tribe on tribal reservation because the operation of a casino is not an exercise of self-governance or a governmental function. ◦ San Manuel Indian Bingo and Casino v. NL RB, 475 F.3d 1306 (D.C.Cir. Feb. 2007), reh’g en banc denied (D.C. Cir. June 8, 2007)
NLRA v. Little River Band of Ottawa Indians, No. 14-2239, (6 th Cir. June 9, 2015) Facts: Tribe operates casino under IGRA. Tribe enacted tribal law giving the tribe authority over collective bargaining, including prohibition over certain topics and banned strike activity. NLRB found the tribal law violated the NLRA and issued a cease and desist order. The tribe challenged jurisdiction on basis of sovereignty. 6 th Circuit affirmed the NLRB jurisdiction.
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Reasoning and Current Status Court found the the NLRA is a law of general applicability, that no treaty rights were involved, the issue was not one of internal self governance and affirmed NLRB jurisdiction. Petition for Writ of Certiorari denied without reasoning at same time a similar petition involving Saginaw Chippewa was denied
Far Reaching Effects Year end bonuses for labor members reduced without notice violated NLRA. ◦ Viejas Band of Kumeyaay and United Food and Commercial Workers International , 21-CA-166290, NLRB, October 11, 2016.
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Casino Pauma (9 th Circuit – 2018) NLRA applies to tribal gaming establishment owned and managed by the tribe and operated on tribal land. Violation of NLRA to try to stop distribution of union literature
Tribal Labor Sovereignty Act Legislation to exclude Indian Tribes from the definition of employer under NLRA
Introduced but no traction
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Family Medical Leave Act 29 U.S.C. §§ 2601-2654 (2000) Employers with 50+ must provide 12 weeks of unpaid leave in a year for family and medical reasons ◦ Birth, adoption, placement of child in foster care ◦ Care of seriously ill child, spouse or parent; or ◦Own serious illness ◦ Return to same or equivalent position upon return Law does not specifically mention tribes – DOL position that the law applies to tribes ◦ Eligible employee requirements ◦ employed for 12 months and 1,250 hours
FMLA Case Law Exhaustion of tribal court remedies required ◦ Sharber v. Spirit Mountain Gaming, Inc ., 343 F.2d, 724 (9 th Cir. 2003) Tribe has sovereign immunity from suit that is not abrogated by FMLA. Likewise, gaming compacts and tribes policies did not waive immunity, so none would be inferred. ◦ Muller v. Morongo Casino Resort & Spa, ED-CV-14-02308-VAP (KK)(C.D. Cal., July 17, 2015)
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Employee Retirement Income Security Act 29 U.S.C. §§1001 et. seq. Standards for voluntarily established pension or welfare-benefit plans Not applicable to tribal employer benefit plans if the plan covers only tribal employees employed in traditional governmental roles but applicable to tribes engaged in commercial activities (2006 amendment)
Consolidated Omnibus Budget Reconciliation Act 29 U.S.C. §§ 1161 et seq . (2000) Requires continuation of health insurance coverage for up to 18 months after an employee leaves Not applicable to insurance plans maintained by tribes if ◦Tribal employees employed in traditional governmental roles Insurance plans for commercial tribal enterprises are subject to COBRA
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Workers’ Compensation General Rule: State labor and employment laws do not apply to employers operating solely on Indian reservation ◦ California v. Cabazon Band of Mission Indians, 480 U.S. 202, 208 (1987) Except : 40 U.S.C. § 290 provides state authority to apply workers’ compensation laws to all lands owned or held by the US within the state. Interpretation – state workers’ compensation laws may apply
The Take Away – When law is silent TRIBAL GOVERNMENT Tribal internal issue Tribal treaty Tribal members with no applicability to non- members Law generally not applicable
COMMERCIAL INTERESTS Effect on non-tribal members Not a governmental function - even though profits will be used to fund government Law probably applicable
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Scenario: Edward Employee Edward Employee – resign or be terminated Card dealer, required to stand for long periods of time
Reasonable accommodation requested and granted on paper but not implemented; required to resume normal duties, HR complaint Routine drug test - failed Reinjured back at work; ambulance transported, hospitalized and missed work Resign or be terminated – NC/NS; failed drug test – impact gaming license He says terminated because of union activity
Long term employee and union rep; currently working on increasing wages Hurt on the job when he picked up something heavy Medical care; off work; return to work with limitations and on pain medication Workmen’s compensation paperwork not submitted
Charlene Jackson cjackson@cdjacksonlaw.com (480) 785-6196
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TRIBAL SOVEREIGN IMMUNITY AND THE GAMING REGULATOR
Tribal Sovereign Immunity: General Principles
u Sovereign immunity is a fundamental aspect of an Indian tribe’s inherent sovereignty q As noted by the Supreme Court, tribal sovereign immunity “is a necessary corollary to Indian sovereignty and self-governance.” u Tribal governments are immune from lawsuits in
both federal and state courts UNLESS: q 1) Congress has authorized the suit; or q 2) The tribe has waived its immunity
u Sovereign immunity also extends to commercial activities conducted by tribal entities that are “arms” of the tribe
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Tribal Sovereign Immunity: Tribal Officials
u Sovereign immunity also protects tribal officials and tribal employees acting: q 1) In their official capacity; and q 2) Within the scope of their authority u Why protect tribal officials? q In suits against tribal officials, the sovereign entity (tribe) is the “real, substantial party in interest” q A plaintiff cannot circumvent tribal immunity simply by naming an officer of the Tribe as a defendant rather than the sovereign entity q Ultimately, relief would run against the tribe - need to protect the tribe’s treasury
Tribal Sovereign Immunity: Tribal Officials
u “Individual” Acts vs “Sovereign” Acts q Individual - acts outside the scope of delegated authority are considered individual acts and not protected acts of the sovereign (tribe). q Sovereign –acts taken in official capacity and within the scope of delegated authority are protected acts of the sovereign (tribe).
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Tribal Sovereign Immunity: Tribal Officials
u How to determine whether act is within “scope of delegated authority”: q Examine enabling statute or law and determine whether the official was authorized to carry out the action at issue q Ask: Was the official empowered to do what s/he did? If so, the action was taken pursuant to the official’s delegated authority and protected by the tribe’s sovereign immunity
Tribal Sovereign Immunity: Tribal Officials
u What if the official’s actions were wrong? q Merely being wrong or mistaken does not take an action outside the scope of delegated authority u The scope of authority analysis turns “on the breadth of official power the official enjoys and not whether the official is charged with using that power tortuously or wrongfully.” Tenneco Oil Co. v Sac & Fox Tribe , 725 F.2d 572, 576 (10th Cir. 1984) q Official action is still an action of the sovereign entity, even if the official’s actions were wrong or mistaken, so long as it does not conflict with the official’s valid authority
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Tribal Sovereign Immunity: Tribal Officials
u HYPOTHETICAL: q Gaming Commissioners revoke an employee’s gaming license q Revoked licensee sues Gaming Commissioners in their individual, personal capacities q Gaming Commissioners move to dismiss the suit on sovereign immunity grounds, arguing that the revocation action was taken in their official capacity as Gaming Commissioners and within the scope of their delegated authority q Tribe’s gaming ordinance specifically authorizes Gaming Commissioners to make licensing determinations, including suspensions and revocations q How should the court rule?
Tribal Sovereign Immunity: Tribal Officials
u Under these circumstances, the court should dismiss the suit because: q 1) The revocation was an official act of the Gaming Commission and performed by the Gaming Commissioners in their official capacities; and q 2) The revocation action was taken pursuant to the Gaming Commissioners authority under the gaming ordinance to suspend and revoke gaming licenses.
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Tribal Sovereign Immunity: Cosentino v Fuller
u Cosentino v Fuller q The hypothetical is based on a recent CA state court decision, Cosentino v Fuller q The state court did not find the Commissioners sovereign immunity claims persuasive q Contrary to the long-settled doctrine of sovereign immunity, the CA state court ruled that sovereign immunity did not apply, and that the Gaming Commissioners exceeded the scope of their powers by revoking the employee s license without cause u What went wrong?
Tribal Sovereign Immunity: Cosentino v Fuller
u Classic Case of “Bad Facts Making Bad Law”: q The licensee/plaintiff, Cosentino, was a blackjack dealer who, after observing criminal activity on the gaming floor, became a confidential informant for the California Department of Justice q The Gaming Commissioners scheduled a private meeting with Cosentino, but he was never personally notified of the scheduled meeting. After missing the meeting, he was suspended from work q The Gaming Commissioners notified him of his suspension and their intent to revoke license by letter mailed to his former address q About a month later, Cosentino met with the Gaming Commissioners and was asked to disclose information about his informant activities. Cosentino declined to do so. q Shortly after the meeting, Cosentino was notified by letter that his license had been revoked. q Cosentino sued Gaming Commissioners personally, claiming that the revocation was in retaliation for his informant work
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Cosentino v. Fuller
u Court’s Ruling: q The Gaming Commissioners overstepped their
authority by revoking the employee’s gaming license in retaliation and without cause q Sovereign immunity will not protect the Gaming Commissioners unless they can show that the license was revoked based on criteria identified in IGRA, Compact, or gaming ordinance q Nothing in the record shows that the Commissioners had the authority to revoke his license without cause or in retaliation q “Sovereign immunity . . . does not prevent inquiry into whether [they] exceeded their authority by using their official position to intentionally harm Cosentino.”
Cosentino v. Fuller
u Breakdown of the Court’s (Mis)Reasoning: q The court looked beyond the Commissioners’ “scope of authority” to consider the circumstances under which the Commissioners exercised that authority q The court focused on the lack of evidence/record to support the revocation decision – i.e., the Commissioners’ failure to provide evidence regarding plaintiff’s unsuitability for licensure q Without such evidence, the court simply accepted the plaintiff’s allegation that the revocation was without cause and in retaliation q Since the Commissioners did not have the authority to revoke licenses without cause or in retaliation, their conduct was outside the scope of their authority and not protected by the tribe’s sovereign immunity
q In other words, the Commissioners’ act of revocation was lawful, but their motives were not, so therefore the act was outside the scope of their authority
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Cosentino v. Fuller
u Where the Court Went Wrong: q State courts are not meant to have any role in tribal gaming licensing, let alone decide whether tribal officials are in compliance with their own laws q The Commissioners’ motives for carrying out an otherwise official and lawful act are irrelevant for purposes of sovereign immunity q Decision allows plaintiff to sue Commissioners individually for an action of the tribe’s government q This means tribal officials may be held personally liable simply by voting or participating in a decision to effect a sovereign act of the tribe
Impact of Cosentino v. Fuller
u It’s Not as Bad as it Sounds: q The case has been “depublished,” which means it’s non-binding and cannot be relied on as precedent q Also, bear in mind this is a state court decision u Nonetheless, the case serves as a cautionary tale for TGRA officials and employees u Key question is: what can you do to avoid finding yourself in this situation?
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Fundamental Principles for TGRAs
u Act within the scope of your authority q TGRA may only exercise such power as it has been delegated and NO MORE u Avoid arbitrary and capricious acts q There should be a rational connection between the facts examined and the action taken by the TGRA u Interpret the law fairly and reasonably q Be unbiased (free of personal animus) q Avoid prejudging the outcome
Process Matters
u Fundamental Fairness: q Fairness and consistency q Proportionality q Least adversarial means to achieve objective
u Due Process Requires: q Notice q Opportunity to be heard q Impartial adjudicator q Fair process
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Process Matters
u In other words, the affected person should always be advised of: q What is happening q When and where it is happening
q Why it’s happening q What could happen q And, what they can do if it does.
Administrative Record u Importance of an Administrative Record q Create a paper trail documenting decision-making process and basis for agency decision q Record should reflect the following: Ø TGRA collected the available information Ø Considered all relevant factors Ø Made a reasoned decision based upon credible, substantial evidence in the record q The administrative record will be your greatest weapon in defending against challenges to agency actions
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Final Thoughts
u Case may be non-binding, but that doesn’t mean it can be ignored u Sovereign Immunity is an affirmative defense u This means that if a case is filed, you have to present the defense, and u If it’s a state court, they might do something like the California court in the Cosentino case.
END
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National Indian Gaming Association: Gaming Commissioners Certification Level II
Joseph Osterloh Executive Director
License Types
Key Employee
Gaming Vendor
Primary Management Official
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Permit?
Non-Key Employee
Non-Gaming Vendor
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Know the Governing Authorities
• Indian Gaming Regulatory Act (IGRA) • 25 C.F.R. §§ 556, 558 • Tribal/State Gaming Compact • Tribal Gaming Ordinance • Tribal Gaming Commission Rules and Regulations
Governing Authorities: IGRA A Tribal Gaming Ordinance Must Ensure…
That background investigations are conducted on Primary Management Officials and Key Employees of the Gaming Enterprise;
That licenses be issued to Primary Management Officials and Key Employees, with prompt notification to the NIGC; and
A standard whereby any person whose prior activities, criminal record, if any, or reputation, habits and associations pose a threat to the public interest or to the effective regulation of gaming, or create or enhance the dangers of unsuitable, unfair, or illegal practices and methods and activities in the conduct of gaming shall not be eligible for employment.
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Definition: Key Employee 25 C.F.R. §502.14 Key Employee:
(1) Bingo caller; (2) Counting room supervisor; (3) Chief of security; (4) Custodian of gaming supplies or cash; (5) Floor manager; (6) Pit boss; (7) Dealer; (8) Croupier; (9) Approver of credit; or (10) Custodian of gambling devices including persons with access to cash and accounting records within such devices; (b) If not otherwise included, any other person whose total cash compensation is in excess of $50,000 per year; or, (c) If not otherwise included, the four most highly compensated persons in the gaming operation. (d) Any other person designated by the Tribe as a key employee.
Definition: Primary Management Official 25 C.F.R. §502.19 Primary Management Official. (a) The person having management responsibility for a management contract; (b) Any person who has authority: (1) To hire and fire employees; or (2) To set up working policy for the gaming operation; or (c) The chief financial officer or other person who has financial management responsibility. (d) Any other person designated by the tribe as a primary management official.
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License Application 25 C.F.R. § 556.4 Sets Forth What the application must contain: • Full name, other names used; • Previous five years of employment; • Any existing and previous business relationships with Indian tribes; • Any previous gaming licensees applied for, and whether or not such license was granted; • Each felony for which there is an ongoing prosecution or a conviction; • Each misdemeanor conviction or ongoing (excluding minor traffic violations) within 10 years; • For each criminal charge (excluding minor traffic charges) whether or not there is a conviction, if such criminal charge is within 10 years of the date of the application; • Any application for an occupational license or permit, whether or not such license or permit was granted; • A photograph; • Any other information a tribe deems relevant; and • Fingerprints consistent with procedures adopted by a tribe according to §522.2(h) of this chapter.
Also… 25 C.F.R. § 556 also requires a Tribe’s Gaming License Application to include:
Privacy Notice Notice Regarding False Statements
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Background Investigation File For every primary management official or a key employee, a Tribe shall: Create and maintain an investigative report on each background investigation. An
investigative report shall include all of the following: - Steps taken in conducting a background investigation; - Results obtained; - Conclusions reached; and - The basis for those conclusions .
NIGC Submission
A Two Part Submission – A notice of results (NOR) of background investigations, 25 CFR 556 – A notice of licensing determination, 25 CFR 558
Notifications submission methods. – Encrypted Email to the Regional Office.
– Fax. – Mail.
The two part submissions must not be made at the same time
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Licensing Requirements A Tribe must notify NIGC of the results of the background investigation within 60 days of an individual beginning work. – A tribe shall conduct an investigation sufficient to make an eligibility determination NOR must include: – Applicants name – DOB – Social Security Number
– Date on which they will begin work – Copy of the eligibility determination
Eligibility Determination
An Eligibility Determination an adjudication by the Tribal Gaming Commission. It is a formal Agency Action. It is a decision regarding the eligibility and suitability of a Key Employee or Primary Management Official to hold a gaming license issued under the jurisdiction of the Tribe. The Tribal Gaming Commission reviews the results of the background investigation and considers an applicant’s criminal history, reputation, habits, associations, and other factors.
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Licensing Requirements A summary and listing of the information presented in the investigative report must be included in the NOR: – Any previously denied licenses – Revoked licenses – Criminal Charges brought within 10 years of the application – Every Felony conviction or on-going prosecution**
**A Deferred Sentence is considered an ongoing prosecution and should be considered accordingly.
Licensing Requirements A Tribe must retain the following, subject to inspection by the NIGC, for no less than THREE YEARS from the date of termination of a license:
– Applications for Licensing; – Investigative Reports; and – Eligibility Determinations
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Licensing – Tribal/State Compact
Requirements subject to each individual State and Tribal negotiations. Will differ from Jurisdiction to jurisdiction. Similarities and differences may be found in many Tribal/State Compacts with regard to licensing requirements.
Licensing – Tribal/State Compact Similarities often include descriptions of: • How compacted, or “covered”, Employee Licenses will be issued and regulated within the State; • Who within the Tribe will be responsible for submitting information to the State (TGRA); • Who within the State will have authority to access Tribal licensing records (State Compliance Agency).
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Licensing - Tribal Ordinance Tribal Gaming Ordinances set forth:
• The Tribal Gaming Commission’s authority to issue a license; • The requirements for licensure (who is required to hold a license); • The eligibility and suitability criteria for holding a license; • The process for background investigations; • The process for issuing a license; • The terms and conditions for holding a license; • Provisions for actions against a license by the Tribal Gaming Commission.
Understand the Licensing Process
To be an effective licensing authority and fair adjudicator, Commissioners must have a thorough understanding of not only the licensing standards of IGRA, the NIGC, the Compact, and the Tribal Gaming Ordinance, but also the Commission’s Regulations and the internal procedures used by the licensing/background department.
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Tip: SPEND TIME WITH YOUR LICENSING STAFF AND LEARN THE IN’S AND OUT’S • Learn the internal processes of the background investigation and how to summarize; I. The different regulatory/law enforcement agencies your Commission works with; II. Timelines for submissions; III. The actual standards are for denials and revocations. • Understand the vocabulary of the industry: Fingerprint results, law enforcement reports for different jurisdictions; • Don’t be ashamed to ask questions or admit that you don’t know something; • Network with other Gaming Commissioners; • Be knowledgeable of what technology your background/licensing department utilizes • Be respectful, confidential and ethical
Responsibility
Remember…
Background Investigations and Licensing of Key Employees and PMOs is one of the single most important directives of a Tribal Gaming Commission. Be diligent and through. Don’t let the casino operation inf luence your decisions regarding license applicants.
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Develop a Tracking Processes:
Name
Position
Id Number/Classificati on
Application Date Received
Status
Date Submitted for Approval
Date submitted to NIGC/State
Joe West Blackjack Dealer
13-012/Key
6/2/17
Awaiting Info from Applicant
Judy Smith
T.G. Director 12-001/Key
4/2/17
Application Complete Application Complete
5/25/17
5/31/17
Bill Clark Landscape Technician
22-025/Non-Key
5/8/17
6/10/2017
Questions or Comments?
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Thank you!
Joe Osterloh Executive Director JTGC josterloh@jiv-nsn.gov (619) 334-5308
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Effective Written Communication
Why do we write?
u The first question before setting pen to paper or fingers to keyboard: What is my motivation for writing? u To convey factual information? u To seek information?
u To persuade a course of action? u To demand a course of action?
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Why Do We Write? u Determining WHY we write enables us to determine: u The format for the writing u The tone of the writing u The style of the writing u All of which are critical to the effectiveness of the writing.
To Whom am I writing? u The second question before setting pen to paper or fingers to keyboard is: To whom am I writing? u Authority figure? u Peer? u Subordinate? u Member of the Public? u License applicant? u Licensee? u Governmental official?
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Regulatory Writings
Gaming Regulators utilize many different types of writings:
u General
u Legal findings & conclusions
Correspondence
u Memoranda u Budget Justifications u Reports
u Notices u Orders u Guidance documents u Regulations
u Information u Investigative
Regulatory Writings
u Each category of document types will have sub- categories. u For example, general correspondence may include letters to:
u Members of the public u Government agencies
u The media u Businesses
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Regulatory Writings
u Regardless of the type of writing, the overall objective is that it be EFFECTIVE . u And, reflect favorably on the agency’s credibility and professionalism.
Effective Writing
u Effective writing has a logical flow of ideas and is cohesive. This means it holds together well because there are links between sentences and paragraphs. Writing which is cohesive works as a unified whole and is easy to follow because it uses language effectively to maintain a focus and to keep the reader “on track”.
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Effective writing is achieved through the use of both MACRO and MICRO writing devices. Macro u the presence of a clear thesis statement; u the use of clear sentence structure; u the logical flow of information in the text; u the focus the text has maintained on the subject. Micro
u the repetition of key subject words and key descriptive words throughout the text; u clearly focused sentences; u the use of connective words and transition signals.
Logic and Coherence u The main sections of the text should develop the material in a logical and coherent manner, reflecting the structure outlined in the introduction or the topic sentence of the piece of text. u Make sure you include: u Clear statements on the relationships between topics; and u The order you then go on to present your points (using legitimate paragraphs) follows the order of these initial statements u This allows the logical sequence of the text to be clearly visible to the reader.
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Logical flow within paragraphs
u The move from one sentence to another within a paragraph should be logical. The order in which information is presented needs to keep the reader centered on the focus of the paragraph, developing points upon this topic in a sequenced way.
Micro Elements of Paragraphing
u A paragraph is one of the basic units of organization in writing. A paragraph is a related group of sentences, arranged in a logical manner which develop one main idea. This idea is generally expressed in one sentence known as the 'topic sentence'. The topic sentence usually occurs as the first sentence in the paragraph. u In addition to the topic sentence, a paragraph contains other sentences that support the point the topic sentence made. They might do this by elaborating or further explaining the point made in the topic sentence, providing supporting details or giving evidence. u A paragraph may also contain a concluding sentence, or sentences that provide a transition to the following paragraph.
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Topic Sentences
u The topic sentence signals to the reader what the rest of the paragraph is about. Without topic sentences, paragraphs can be difficult to read as well as difficult to write. u A good topic sentence states both the topic and the central idea of the paragraph. It is neither too general nor too specific; it states the main idea clearly, but does not give the specific details. u A paragraph without a clear topic sentence can be very hard to follow. The reader has to concentrate very hard to understand the point the writer is making.
Topic Sentences u One of the simplest and most effective techniques for drafting the topic sentence is just to state the topic: u We are writing to inform you that the Gaming Commission has granted your application for a gaming license. u Contrast the foregoing sentence with the following:
u The Gaming Commission was established pursuant to the Gaming Ordinance of 2010, which grants the Commission broad authority to regulate gaming on the Tribe’s Indian lands, including the authority to issue licenses to key employees and primary management officials. With regard to your application for a key gaming license submitted on January 1, 2016, the Gaming Commission completed a thorough background investigation and verified the information submitted on your application. Based on the results of the investigation, the Gaming Commission has determined that you are suitable for licensure.
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Bad Topic Sentences
u Why does the second example fail?
It’s not a sentence – it’s a paragraph, but it took a paragraph to get to the point. AND, the point, when finally made, was vague and ambiguous. It was difficult to read and understand. If a writing is difficult to read and understand, it is NOT EFFECTIVE .
1.
2.
3.
Clearly refer to ideas, subjects and objects throughout the text
u If we do not refer to ideas and things clearly and consistently throughout the text, the thread of meaning is lost and the chain (of ideas) is broken. This often results in the reader of your text being unsure what point you were making or being unable to follow your argument.
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Applying the Principle
u Dear License Applicant: u We are writing to inform you that your application for a gaming license has been granted. You may appear at the Commission’s offices at 1431 Agency Road to pick up your badge during regular business hours on any weekday. Please be advised that you must wear your badge at all times while working at the Casino. u Your gaming license is valid for two years. Sixty days prior to the expiration date, you will receive a notice to renew your license. It is your responsibility to complete and submit your license renewal form to the Commission at least two weeks prior to the expiration date. Failure to timely complete and submit the renewal form may result in the lapse of your license in which case you will not be permitted to work until the license has been renewed. u An important condition of your license is that you must advise the Commission of any changes in the information on your application. You must immediately inform the Commission of any changes to your name, address, and phone number. Importantly, tribal law specifies that any arrests or criminal charges must be reported to the Commission within 72 hours. Failure to comply may result in the suspension or revocation of your license. u If you have any questions, please feel free to contact the Commission.
Tonality
u Using the previous example, how would you characterize the tone?
u Professional? u Informative? u Threatening? u Hostile? u Adversarial?
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Tonality
u In regulatory writing, the objective always is: u To achieve a professional tone u To convey all relevant information u To be clear, precise, and understandable
Tonality
u Professional writing is characterize through the use of: u Plain language u Short sentences u Limited use of adjectives and adverbs u Appropriate use of verbs u Adjectives and adverbs should be used sparingly because they can dramatically affect tone.
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Tonality u Compare the following sentences:
u The Commission is investigating a serious incident that occurred very late on the night of January 1, 2014, accusing you of wrongfully accepting a large tip from an elderly gaming patron in clear violation of Section 12 of the gaming ordinance. u The Commission is investigating an incident that occurred at 12:00 p.m. on January 1, 2014 in which it is alleged that you accepted a tip from a gaming patron in violation of Section 12 of the gaming ordinance. u Note that the tone of the first example can be read to suggest that the Commission has already made up its mind that the allegation is true. The second example simply conveys facts.
Tonality u Why is tonality important?
u It affects the agency’s credibility u If, at the investigative stage, the agency has already accepted an allegation as true and has determined the outcome, it becomes vulnerable to challenges in the basis of: u Bias u Unfairness u Due process u Arbitrary and Capricious Decision-making
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Connective Words u Connective Words include both conjunctions and transition signals. These types of word signal the logical relationships between ideas so that the reader can easily understand the relationship between the parts of a text. Using connective words increases the effectiveness of a piece of text by helping the flow of the writing.
Connecting Words
u Connecting words are particularly important in regulatory writing, particularly any writing requiring analysis. u When issuing a determination, it isn’t enough to simply reach a conclusion. A conclusions must have a basis.
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Connecting Words
u Compare the following examples: u Please be advised that your application for a gaming license has been denied on the basis of your suitability for licensure. You may appeal this decision… u Please be advised that your application for a gaming license has been denied because you failed to disclose on your license application a felony conviction entered by the District Court of Someplace County on January 1, 2014. Pursuant to Section 17 of the Gaming Ordinance, an applicant’s failure to disclose all arrests, criminal charges and convictions is grounds for denial of the application. You may appeal this decision…
Connecting words
u Connecting words are critical to all analytical writing because they convey WHY and on WHAT basis a conclusion is reached. u If one’s findings and conclusions do not contain such words and phrases as “because,” “as a result,” “therefore,” “accordingly,” “due to,” “for the reason(s),” or “consequently,” for example, it may well be analytically deficient.
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