--- Am. Tribal Law ----, 2018 WL 1219217 (Cherokee Sup.Ct.)
Only the Westlaw citation is currently available.
Supreme Court of the Cherokee Nation.
Kristie BYRD, Appellant/Claimant,
v.
CHEROKEE NATION BUSINESSES, LCC, Appellee/Respondent.
Case No. SC-16-18
|
January 8, 2018
|
FILED JANUARY 10, 2018
APPEAL FROM THE DISTRICT COURT OF THE CHEROKEE NATION, TAHLEQUAH, OKLAHOMA, CV–2014–293, HONORABLE BART FITE, TRIAL JUDGE, AFFIRMED
Attorneys and Law Firms
CHAD SMITH, CNBA#0008, 22902 S. 494 Road, Tahlequah, OK 74464, (918) 453-9200, chad@chadsmith.com, Attorney for Appellant/Petitioner
TRALYNNA SCOTT, CNBA#0518, OBA#31875, TIM K. BAKER, CNBA#0011, OBA #461, 777 West Cherokee Street, Catoosa, OK 74015, (918) 384-5848 Fax (918) 266-8196, tralynna.scott@cn-bus.com, tim.baker@cn-bus.com, ANDREW WILCOXEN, CNBA#0247, OBA#9604, WILCOXEN & WILCOXEN, 112 N. 5th Street, P.O. Box 357, Muskogee, OK 74401, (918) 683-6696 fax (918) 682-8605, seadog@wilcoxenlaw.net, Attorneys for Appellee/Respondent
Before: John C. Garrett, Chief Justice, Angela Jones, Justice, Lynn Burris, Justice, Mark L. Dobbins, Justice
Opinion
Opinion by: Mark L. Dobbins, Justice
STATEMENT OF CASE
On October 12, 2016, the District Court of the Cherokee Nation granted Cherokee Nation Businesses, LLC’s Motion to Reconsider. Judge Bart Fite reversed his earlier ruling and upheld the termination of the employment of Kristie Byrd. The lower Court held that the termination was in conformity with 51 CNCA § 1010(A)(1), which states that an employee can be summarily terminated for any reason involving moral turpitude affecting or potentially affecting conduct while on duty.
The Court found that the use of a non-prescribed amphetamine “does” rise to the level of moral turpitude and found the termination of Byrd to be warranted and within the legal parameters.
In Byrd’s appeal of Judge Fite’s ruling, Appellant spends a significant amount of argument on the legal meaning of “moral turpitude”. The concept of moral turpitude is void of a precise definition. The Appellant attempts to compare its case to that of the Attorney General. The Court finds that line of reasoning unpersuasive.
The Cherokee Nation’s actions regarding the Attorney General fall under different scrutiny. Action against the Attorney General must be initiated by the Tribal Council. Additionally, the Attorney General is not an employee of CNB, and thusly does not have any bearing on the instant case and are of no relevance.
The Appellant, on August 26, 2011, signed the Cherokee Nation Industries Substance Abuse and Drug Testing Policy. This Policy was attached to the Response Brief of Cherokee Nation Business and marked as Exhibit C. The second paragraph states:
Reporting to work under the influence of alcohol or a medically unauthorized drug or narcotic is considered gross misconduct and is grounds for employment action up to an including termination.
Appellant did in fact test positive during a random drug test for amphetamines. As a result of that failed test, Byrd was terminated in conformity with the drug testing policy.
Included in the policy is that the employee is subject to random drug testing absent any finding of reasonable suspicion. Appellant executed the Drug Testing Policy and had notice that a positive test could result in termination of employment. If Byrd had accidentally ingested her son’s medication she should have notified authorities prior to testing.
This Court hereby affirms the Motion to Reconsider by Judge Fite terminating the employment of Kristie Byrd.
MOTION FOR SACTIONS AGAINST ATTORNEY CHAD SMITH
On April 10, 2017, Cherokee Nation Business filed a Motion for Sanctions Against Attorney Chad Smith. CNB, in its motion, cites an admonishment of the Hearing Officer, Judge Grey, from a previous case of Smith’s. Smith attempted to once more bring up the case of Attorney General Hembree in arguing his case.
This Court acknowledges its ability to sanction attorneys for improper conduct, Smith again urges this spurious position in Byrd. This usage of an irrelevant example again does not go unnoticed by this Court.
The imposition of sanctions should be exercised sparingly. The Court finds that in the instant case that sanctions shall not be issued. Instead, this Court would issue a stern admonition that any further actions by Smith to harass or embarrass individuals will not be tolerated.
When an attorney loses the respect of jurists that would be the apex of sanctions and one would hope that this tactic will cease.
IT IS SO ORDERED this 8th day of January, 2018.
All Citations
--- Am. Tribal Law ----, 2018 WL 1219217