August 20-22, 2018 Stanley Crooks Tribal Leaders Center
Washington, DC
Seminar Series Institute Commissioner Certification Training
LEVEL II AGENDA August 20 – 22, 2018 Washington, DC
Monday, August 20
8:00 am – 9:00 am Breakfast 9:00 am – 10:30 am Journey of Submission
Peter Nikiper, Director of Technical Compliance, BMM TestLabs
10:30 am – 10:45 am BREAK 10:45 am – 12:15 pm Employment Issues for Regulators Richard G. McGee, Richard G. McGee LLC 12:15 am – 1:15 pm Lunch Break (Own you own) 1:15 pm – 2:45 pm Tribal Sovereign Immunity & the Gaming Regulator Elizabeth Lohah Homer, Homer Law, CHTD 2:45 pm – 3:00pm BREAK 3:00 pm – 4:30 pm Licensing: Key Employees & Primary Officials
Carleen Chino, Executive Director, Acoma Pueblo Gaming Commission
Tuesday, August 21
8:00 am – 9:00 am Breakfast 9:00 am – 10:30 am Effective Regulatory Writing
Elizabeth Lohah Homer, Homer Law, CHTD
10:30 am – 10:45 am BREAK 10:45 am – 12:15 pm Licensing: Vendors & Facilities
Carleen Chino, Executive Director, Acoma Pueblo Gaming Commission
12:15 am – 1:15 pm Lunch Break (Own you own) 1:15 pm – 2:45 pm Internal Auditing: What’s Required & How it Should Be Approached Ryan Burns, CPA, Partner Blue Bird CPA’s 2:45 pm – 3:00pm BREAK 3:00 pm – 4:30 pm Financial Controls & Accounting Standards Ryan Burns, CPA, Partner Blue Bird CPA’s Wednesday, August 22 8:00 am – 9:00 am Breakfast 9:00 am – 10:30 am Roles of Surveillance, Cheats & Scams George Joseph, Worldwide Casino Consulting 10:30 am – 10:45 am BREAK 10:45 am – 12:15 pm Roles of Surveillance, Cheats & Scams George Joseph, Worldwide Casino Consulting
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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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.
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CARLEEN CHINO, Executive Director PUEBLO OF ACOMA GAMING COMMISSION
NIGA Commissioner Certification Training Level II August 20 – 22, 2018 Stanley Crooks Tribal Leaders Center, Washington, DC
v C arleen C hino Ø Enrolled tribal member of the Pueblo of Acoma; one of 19 Pueblos/22 Tribes in New Mexico Ø Former Executive Director for the Navajo Nation Gaming Regulatory Office Ø Current Executive Director for the Pueblo of Acoma Gaming Commission; Ø 20 years gaming experience: Executive Director, Licensing Administrator and Administrative Assistant Ø Trainer for NIGA and NIGC; and Ø Have served in various capacities in Tribal Regulator Associations in NM & AZ v D arla V allo Ø Enrolled tribal member of the Pueblo of Acoma; one of 19 Pueblos/22 Tribes in New Mexico Ø Have served in various capacities in NM Tribal Regulator Associations Ø 17 years gaming experience: Interim Executive Director, Gaming License Administrator & Administrative Assistant
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Ø To Become FamiliarWith The Gaming Employee License Process Ø To Share And Gain Knowledge And Experience On The Background Investigation and Licensing Process Ø To UnderstandWhy The Gaming Commission Must Conduct Background Investigations prior to Licensing Prospective Gaming Individuals
DO WE HAVE THE AUTHORITY TO LICENSE GAMING EMPLOYEES?
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FEDERAL
TRIBAL/STATE
IGRA
TRIBAL GAMING ORDINANCE AND REGULATIONS
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FEDERAL REGULATIONS Title 25 25 CFR PARTS 556 & 558
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v TRIBAL/STATE GAMING COMPACT
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To review an employee’s prior activities, criminal record, if any, reputation, habits, or associations that may pose a threat to the public interest or to the effective regulation of gaming on Indian lands.
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} Protect the Tribes gaming assets } To verify all information disclosed by the applicant; } To ensure the applicant’s honesty and integrity } Restrain organized crime and corrupt influences } Reduce employee theft } Reduce threat of onsite violence to create a safer workplace environment and protect the public interest } Required by NIGC and/or State
v A CONFIDENTIALITY AGREEMENT should be signed by all Gaming Commission Employees who are authorized to access licensing files and information. This would help ensure all information viewed, collected and maintained in Gaming Commission files remain confidential. v Required on Gaming License Application
v Privacy Act of 1974
v Notice Regarding False Statements
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& S e c u r I t y
P r i v a c y
ü Gaming license files and information must be kept confidential and must be protected from disclosure to unauthorized individuals and entities ü Employee Files must be secured or locked ü Access Controlled (Employee File Access Log - NIGC) ü Disclosure of information only with a Release of Information Authorization Form (Notarized) ü Desktop confidentiality ü Resources of information must be kept confidential and not be disclosed to the applicant or any other parties, unless otherwise prohibited by law
Ø The person(s) having management responsibility for a Management Contract and/or management of the gaming facility; Ø Any person in the capacity of the CEO, CFO, COO, Casino General Manger, Casino Compliance, Etc… Any person who has authority: i. To hire and fire employees; or ii. To set up working policy for the gaming operation; or iii. The Chief Financial Officer or other person who has financial management responsibility. iv. Any other person designated by the tribe as a primary management official
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Bingo caller;
§ If not otherwise included, any other person whose total cash compensation is in excess of $50,000 per year; or § If not otherwise included, the four most highly compensated persons in the gaming operation § Any other person designated by the tribe as a key employee
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§ Counting room supervisor; § Chief of security; § Custodian of gaming supplies or cash; § Floor manager; § Pit Boss; § Dealer; § Croupier; § Approver of credit; or § Custodian of gambling devices including persons with access to cash and accounting records within such devices;
Any and all contract, subcontract, or collateral agreement between an Indian tribe and a contractor or between a contractor and a subcontractor if such contract or agreement provides for the management of all or part of a gaming operation
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Employees that are suggested to not be licensed are as follows: § Food and beverage service personnel § Gift shop managers, assistant managers, cashiers, and clerks; § Greeters; § Landscapers, gardeners, and groundskeepers; § Maintenance, cleaning and janitorial personnel; § Stewards and valets; § Wardrobe personnel; § Warehouse personnel; and § Hotel personnel
Gaming License Application Process
Applicant completes application. Review for completeness.
Interview applicant over application to assure complete accuracy.
Applicant is fingerprinted, photographed and drug tested.
Determine level of licensure
License/Position type require to be state certified and/or NIGC approval
Application Type
Key Employee, PMO or Management Contractor
Background Investigation Process
If NO apparent disqualifiers a Temporary License can be issued
Upon completion of a full investigation a Gaming License can be issued
Notification to the NIGC and/or State
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} Develop questions/plan of action prior to interview
} Conduct the interview in a private setting to minimize distractions } Put the applicant at ease ◦ Introduce yourself and the role of the Gaming Commission ◦ Describe the application and the licensing process } Listen Carefully, take notes ◦ Assure all required documents are obtained at this time (Photo ID, DL, SSCard, CIB, etc…) ◦ Assure all releases are notarized, supplemental forms complete, etc… ◦ Note discussed issues not written on application (places lived, jobs, relationships, etc…) – Failure To Disclose
} Don’t Challenge Answers Given ◦ Let the applicant being interviewed do the talking ◦ Do not make suggestions and/or advise what to say or do } Stay in Control when applicants become emotional (sad, angry, irate, etc…) } Watch for body language (sweating palms, tapping of a pen, tone of voice, nervousness) } Look for unanswered questions on the application, have applicant complete all sections even if inapplicable - (N/A) } Provide summary to the file after the interview concludes - run a preliminary name search for any criminal/derogatory information once interview is concluded
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556.2 Privacy notice.
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} (a) A tribe shall place the following notice on the application form for a key employee or a primary management official before that form is filled out by an applicant: } In compliance with the Privacy Act of 1974, the following information is provided: Solicitation of the information on this form is authorized by 25 U.S.C. 2701 et seq. The purpose of the requested information is to determine the eligibility of individuals to be granted a gaming license. The information will be used by the Tribal gaming regulatory authorities and by the National Indian Gaming Commission (NIGC) members and staff who have need for the information in the performance of their official duties. The information may be disclosed by the Tribe or the NIGC to appropriate Federal, Tribal, State, local, or foreign law enforcement and regulatory agencies when relevant to civil, criminal, or regulatory investigations or prosecutions or when pursuant to a requirement by a tribe or the NIGC in connection with the issuance, denial, or revocation of a gaming license, or investigations of activities while associated with a tribe or a gaming operation. Failure to consent to the disclosures indicated in this notice will result in a tribe's being unable to license you for a primary management official or key employee position.
} The disclosure of your Social Security Number (SSN) is voluntary. However, failure to supply a SSN may result in errors in processing your application.
} (b) A tribe shall notify in writing existing key employees and primary management officials that they shall either:
} (1) Complete a new application form that contains a Privacy Act notice; or
} (2) Sign a statement that contains the Privacy Act notice and consent to the routine uses described in that notice.
} (c) All license application forms used one-hundred eighty (180) days after February 25, 2013 shall comply with this section.
Request the following: ◦ Full Name (aliases, former names, maiden names) ◦ Date of Birth, Place of Birth ◦ Social Security Number ◦ State Driver’s License or Photo ID ◦ Residences (State, County, City, Country) ◦ Military Service (DD214) ◦ Ownership/Business Interests/Relationships w/tribes ◦ Residence and/or Business Telephone Numbers
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◦ Education (Diploma, Degree, Transcripts) ◦ Criminal History - Felony/Misdemeanor offenses; bench warrants, restraining orders, probation. Request copies of the following documents: Criminal Complaints/Citations Police Reports Judgment and Sentencing/Order Final Disposition ◦ Other Gaming Licenses Held ◦ Current Photograph ◦ Management Contract/Employment Application
} (a) A tribe shall place the following notice on the application form for a key employee or a primary management official before that form is filled out by an applicant: ◦ A false statement on any part of your license application may be grounds for denying a license or the suspension or revocation of a license. Also, you may be punished by fine or imprisonment (U.S. Code, title 18, section 1001).
} (b) A tribe shall notify in writing existing key employees and primary management officials that they shall either:
} (1) Complete a new application form that contains a notice regarding false statements; or
} (2) Sign a statement that contains the notice regarding false statements.
} (c) All license application forms used 180 days after February 25, 2013 shall comply with this section
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EDUCATION VERIFICATION CRIMINAL HISTORY CHECK: FBI / FEDERAL/STATE/TRIBAL COURT AND LAW ENFORCEMENT RECORDS PAST EMPLOYMENT VERIFICATION VERIFICATION OF ORGANIZATIONS/ASSOCIATIONS CHARACTER REFERENCE INTERVIEWS – PERSONAL/PROFESSIONAL PROFESSIONAL LICENSE/CERTIFICATION CREDIT HISTORY CHECK: VERIFIES ADDRESSES, SSN, DOB, ALIASES, RESIDENCE HISTORY, BANKRUPTCIES, JUDGMENTS/LIENS, PAST DUE AMOUNTS, ACCOUNT VERIFICATIONS, FICO SCORE, ETC… OTHER SOURCES OF INVESTIGATIVE LEADS: Other Licensing Jurisdictions; Military Records; INS Records; SSN Verification; Civil Filings; Tax Records; Business License, Motor Vehicle Records, Local P.D. Gang Units, Sex Offender Lists, CIB, Passports, Workmen Comp, Social Media, etc...
K E Y E L E M E N T S
Ø Past Activities - Livelihood Ø Past Criminal Record/History Ø Reputation, Habits and/or Associations
Ø Integrity (FTD) Ø Moral Character Ø Loyalty
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} Misdemeanors (Alleged charges & convictions) } Felonies (Alleged charges and/or convictions) } Alleged or pending charges or investigations, dismissals, deferred, closed or nolle prosequi cases } ActiveWarrants / Outstanding Fines } Patterns of Domestic Violence, Assault & Battery } Probation / Parole Status } Alcohol/Drug Issues } Risk / Liability / Stability } False Statements or Failure to Disclose
} Language in Ordinance or Regulations: “alleged or pending charges”, “dismissals, or nolle prosequi cases”; this allows the interviewer to hear or see a “pattern of history” especially when prospective employees start giving their version of the incident or try to restructure their story; they also “assume” that if a case is closed or that they complete probation or pay all their fines that it goes off their record; } Specific language in the gaming license application gives them time to think about what issues they have been involved in and it is amazing at what they CAN remember. } Suggest to have a Felony License Policy and Drug Testing Policy in the Ordinance or Regulations;
} MOU with NIGC or State Gaming Commission for submission of fingerprints
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} A Gaming License is a revocable privilege; all applicants are obligated to report all violations occurring while their gaming license is valid – Specify timeframe (criminal, civil, bankruptcy, warrants, derogatory, etc…) } The burden of proving qualification to hold a Gaming License is at all times on the applicant
} NO Negative / Adverse Publicity
} Additional/Random Background Checks / Drug Tests } Gaming Commission can then Issue, Deny, Suspend or Revoke a Gaming License
} Appeals/Grievance Process
C O NT A CT I N F O R M A T I O N Pueblo of Acoma Gaming Commission P.O. Box 454 Pueblo of Acoma, NM 87034 Phone: 505-552-7411 Carleen Chino, Executive Director clchino@skycity.com Darla Vallo, Gaming License Administrator dmvallo@skycity.com
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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 .
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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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Regulatory Writing
u Effective writing is a skill and all skills require practice. u Fortunately, much regulatory writing is readily given to standard forms and formats – use them where practical and to the extent possible. u Always proof read, checking for grammar and spelling – do not trust the word processing software:
u It shouldn’t be taken for granite; u It doesn’t know when to quiet; u It’s not a good tooter.
Practical Tips
u Complex writing requires planning u Make an outline u Issue (Topic) u Rule
u Statutory authority of agency u Statutory/regulatory provision at issue u Facts u Analysis u Conclusion
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Practical Tips
u Follow the outline, but remember… u Sometimes it helps to just get your thoughts
down on paper – then start editing for logic, flow, continuity, and thoroughness. u Thoughts may not always flow in an organized manner, but in editing one can rearrange sentences, add or remove information, fine tune language and grammar.
Hypothetical u The TGA is statutorily authorized to review and approve promotions. The regs require that promotions be submitted for review at least 21 days in advance of the promotion. Management has not been timely submitting promotions. The TGRA has sent informal reminders of the requirements as well as a guidance document. The problem persists. The TGRA has decided to address the problem through the issuance of an Order to Cure.
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Order to Cure-Issue
u Issue u On this 17 th day of December, 2014, the Tribal Gaming Agency (“TGA”) hereby issues this Notice and Order to Cure Deficiencies to the Director of Marketing and the Players Club Manager in response to audit findings showing repeated instances of non-compliance with Part 26 of the Gaming Regulations and the TGA’s 2012 Guidance Memorandum on Promotions. u This Notice and Order to Cure Deficiencies is issued in lieu of a formal enforcement action possibly culminating in the assessment of a civil fine or adverse licensure action in order to provide the Marketing Department and Players Club a reasonable period of time to effect a cure to the conditions resulting in the identified instances of non-compliance.
Order to Cure- Rule u Section 19(O) of the Gaming Statute provides that any person or entity subject to the jurisdiction of the Tribal Nation who fails to comply with the Nation’s gaming regulations or an order of the TGA is in violation of the Ordinance. u Pursuant to the TGA’s October 23, 2012 Guidance Memorandum on Promotions issued to the General Manager and Marketing Director, all required information and documentation for a promotional activity must be submitted to the TGA for approval at least twenty-one (21) days in advance of any advertising of the promotional activity. For any non-advertised promotional activity or ongoing program of activities, all required information and documentation must be submitted to the QTGA at least fourteen (14) days before the initiation of such promotional activity.
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Order to Cure - Facts u The TGA has conducted an audit of approximately forty-two (42) promotions taking place between during October 2012– Oct 2014 to determine the extent to which such submissions have been in compliance with the requirements set forth in Part 26 and the TGA’s 2008 Guidance Memorandum on Promotions. As briefly summarized, the audit revealed:
u There were twenty-eight (28) promotion submissions that were not timely submitted to the TGA.
u There were six (6) instances of incomplete promotion submissions (required information and/or documentation were not included).
u There were twelve (12) instances where promotion-related marketing materials such as brochures and invitations were distributed to patrons prior to being approved by the TGA.
u There were three (3) instances where the rules of the promotion were amended without TGA review and approval.
Order to Cure - Analysis u The audit revealed that he Marketing and Players Club departments have routinely failed to comply with the specific promotion submission requirements set forth Part 26 of the regulations and the TGA’s 2012 Guidance Memorandum, particularly in relation to the advance notice and approval requirement. More than half of the promotions conducted in the review period were not compliant with the notice requirement and marketing materials were routinely being circulated without TGA approval. u The TGA’s review and approval process serves as an important check against unfair, misleading, and/or deceptive trade practices in relation to promotional activities. Additionally, it ensures that appropriate rules are in place to govern each promotional activity, which in turn serves to advance fairness and integrity of both the operation and the patrons. It is therefore critical that the development, marketing, and conduct of promotions are carried out in a manner that is consistent with applicable laws and regulations. Failure to maintain compliance, therefore, constitutes a serious violation
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Order to Cure - Analysis u In spite of the numerous compliance issues identified in the audit, the TGA has elected not to issue a Notice of Violation to the individual managers of the two departments at this time. The TGA will instead issue this notice of the identified deficiencies and order the Marketing and Players Club departments to comply with applicable requirements through this Order to Cure Deficiencies. u This action is consistent with Section 5(E) of the Gaming Statute, which delegates the TGA specific oversight and enforcement authority in relation to all laws and regulations applicable to the gaming enterprise as well as any policies and procedures enacted in furtherance thereof. As part of its enforcement authority, the TGA may also issue such orders and directives as may be necessary to ensure compliance with these laws and regulations. Any licensee who fails to comply with an order or directive of the QTGA is in violation of the Ordinance. u Each director , therefore, is hereby notified that failure to comply with this Notice and Order to Cure Deficiencies and the requirements applicable to promotions shall constitute a serious violation of the Gaming Statute that may result in the assessment of a civil fine and/or subject you to adverse licensing actions by the QTGA.
Order to Cure - Conclusion
u In view of the foregoing, the TGA hereby orders, commands, and directs the following: u All future promotions shall be in full conformance with Part X of the regulations; u Within thirty (30) calendar days from the date of service of this notice, you shall prepare a memorandum directing all staff performing promotion-related functions to review this Notice and Order to Cure Deficiencies, the TGRA Guidance document, and all other applicable policies and procedures relating to the conduct of promotions. u This Notice and Order to Cure Deficiencies is effective immediately, and compliance with the provisions of this Order is mandatory. u Please be advised that you shall have an opportunity to be heard on this matter at a hearing before the TGA on Friday, January 2, 2015, at 11:00 am in the offices of the TGA, which are located at 1313 Mockingbird Lane. Please notify the TGA within ten days from the date below if you wish to contest this Order to Cure and proceed to hearing. Failure to provide such notice within the specified timeframe will be construed as your acceptance of the terms and conditions set forth herein.
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Final Thoughts
u A Notice and Order is but one example of the types of regulatory writings issued by a TGRA, but the basic principles are the same: plan, outline, edit to ensure a logical, consistent, professional document.
END
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LICENSING: GAMING VENDORs & GAMING FACILITIES
NIGA Commissioner Certification Training Level II
August 20 – 22, 2018
Stanley Crooks Tribal Leaders Center, Washington, DC
CARLEEN CHINORLEEN Chino u Enrolled tribal member of the Pueblo of Acoma; one of 19 Pueblos/22 Tribes in New Mexico u Former Executive Director for the Navajo Nation Gaming Regulatory Office u Current Executive Director for the Pueblo of Acoma Gaming Commission; u 20 years gaming experience: Executive Director, Licensing Administrator & AdminAssistant u Trainer for NIGA and NIGC; u Served in various capacities in Tribal Regulator Associations in NM & AZ a Vallo DARLA VALLO u Enrolled tribal member of the Pueblo of Acoma; one of 19 Pueblos/22 Tribes in New Mexico
u Have served in various capacities in NM Tribal Regulator Associations u 17 years gaming experience: Interim Executive Director, Gaming License Administrator & Admin Assistant
BioS
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PRIMARY FUNCTION OF LICENSING VENDORS AND GAMING FACILITIES Prevent organized crime and criminal entities from infiltrating into tribal gaming
} MANUFACTURERS/DISTRIBUTORS OF GAMING DEVICES AND SUPPLIERS OF GAMING SERVICES MUST BE LICENSED BY THE TRIBAL GAMING OFFICE, IF APPLICABLE, STATE LICENSED/CERTIFIED
} APPROPRIATE FEES MAY BE COLLECTED TO OFFSET COSTS OF A BACKGROUND INVESTIGATION
} A PRELIMINARY INVESTIGATION SHOULD BE CONDUCTED ON THE BUSINESS ENTITY & ITS PRINCIPALS PRIOR TO THE ISSUANCE OF A TEMPORARY LICENSE & PRIOR TO A SALE OR LEASE AGREEMENT
} BUSINESS REGISTRATION AND/OR TRESPASS PERMIT WITH THE TRIBAL TAX/BUSINESS DEVEOPMENT AND OR LAND/REALTY OFFICE
} VENDORS ARE SEEKING A PRIVILEDGE TO WORK WITH INDIAN CASINOS, IT IS NOT A RIGHT, HENCE VENDOR LICENSE PROCESS
VENDOR LICENSE PROCESS
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Suggest Classifications
u Gaming Vendors u Non-Gaming Vendors u Non-Profit Organizations u Exempt Companies (Attorneys, CPAs) u Sub-Contractors (Construction, Valet Co.) u Tribal Member Owned Companies
Vendor Classifications (Cont’d.)
u Vendor classifications can be based on monetary thresholds or on the Percentage % of Business Transactions
u Application Fees
u Background Check on Vendor/Company Principals & local management (Criminal & Financial) u Criminal/Civil Jurisdiction Release
u Vendor License u Renewals
u Updated Info on changes to Company
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