7 G.D.R 34
SANDRA DESSOURCES
v.
OFFICE OF THE DIRECTOR OF REGULATION
No. GDTC-T-18-127-JAC
Mohegan Gaming Disputes Court
April 11, 2022
 
MEMORANDUM OF DECISION

GUERNSEY, C.J.

I. Procedural and Factual Background

As noted by both counsel during oral argument, in this appeal from the suspension of Plaintiff's Gaming license, there are no material factual issues in dispute. Plaintiff, a guest room attendant (GSA) for four years at the Mohegan Sun Hotel, was terminated on April 26, 2021[1 ] and her gaming license suspended on May 21, 2021. The suspension was ordered by the Mohegan Tribal Gaming Commission, which regularly reviews employee terminations to determine whether the basis for the termination involves a "threat to the public interest or to the effective regulation of gaming" such that proceedings to suspend the terminated person's gaming license are appropriate.

The termination from employment and suspension of her gaming license resulted from Plaintiff's undisputed failure to follow the rather explicit[2 ] (although sometimes open to interpretation as a "judgment call"[3 ]) rules and procedures for dealing with items left by guests in rooms at the Mohegan Sun Hotel. The genesis of this situation was the renting of Room/Suite 2707 by participants or attendees at the Miss Connecticut pageant, which room was to function as a party or assembly room. On April 11, 2021, Ms. Ashley Reid, Group Organizer, requested and believed that she and her party had been allowed a late checkout of 2:00 p.m. something that apparently was never entered into the Hotel's computer system.[4 ] As a result, with no notice of a late checkout given to Housekeeping (and the Plaintiff), the Plaintiff commenced cleaning the room prior to the occupants having completed moving out.[5 ]

Although the initial report contained the allegation by Ms. Reid that five gift bags were missing, the list of items allegedly taken increased to include three bottles of wine at $25.00 each, one gift bag with $100.00 worth of beauty care products and another bag with a customized candle and agate coaster, with a total value of $300.00.[6 ] The items that Ms. Dessources admitted taking from Room 2707, and which formed the basis for Hearing Officer's decision, were far fewer, and there is apparent agreement that what she took was some candy, lip balm, a note pad/book, coaster and a gift bag.[7 ] The Hearing Officer's meticulous decision, which found Ms. Dessources' testimony to be credible, found that the items she admitted removing were found in the following places: the book in the living room, the candy in the dining room, the candle in the bedroom, the lip gloss in the bathroom, and 2 little bags in the trash.[8 ]

Under cross examination by Commission counsel, it was established that the items pictured in Commission Exhibit 14 were the items taken by Plaintiff to her home and, when later questioned by an investigator, returned to the Hotel. Despite some slight possible misunderstanding due to language, it became clear that although the items taken were not in the "waist [sic] can" as described in the SOP for Lost & Found Items, [9 ] to the Plaintiff they were trash because, owing to the manner in which they were left in the room, she would have put them in the trash as part of cleaning the room.[10 ]

It should be noted that the Hearing Officer's "Findings of Fact" are not in the traditional form of findings, but rather a summary of the testimony of witnesses. For a witness, such as the Plaintiff, whose testimony was found "credible and relied upon for this decision" the Court will assume that the facts to which she testified which the Hearing Officer recites in his Findings of Fact constitute the Hearing Officer's Findings in the traditional sense.

One factor that emerges from the testimony before the Hearing Officer is that Plaintiff may have had a sincere, but mistaken, belief that the items she took had been left behind by the guests and were of little value. Nevertheless, it is also clear that the Plaintiff was aware of the proper procedure to be followed for items supposedly left behind but not placed in the trash. As the Plaintiff testified:

Well, she said you know what? She says it was trash because the room was empty when she went back everything dirty. She find them wet and dirty and just put them in the trash. What she did for that, I think, why she took them home, yeah, she just doesn't want to put them in the trash and then she take them. Yeah, she said she find the dress and jacket, because the [crosstalk 01:48:15], she knows that's important She called the supervisor for lost and found. For the bottles from the fridge, the little jacket, the little dress. But for this, she didn't.[11 ]

Viewed as a Finding, this establishes two things. First, that the Plaintiff was aware of, and quite capable of following, the Housekeeping Department's procedures for dealing with items believed left behind by guests. Second, it established that the items taken by Plaintiff were those, among others, that she believes she would have thrown into the trash as part of normal housekeeping duties.

II. Standard of Review

The fairly limited role of this Court in a license appeal under MTC § 3-224 has been extensively described in prior cases: In reviewing the actions of the Director of Regulation in this area, MTC § 3-224 is quite specific that the Court "shall not substitute its judgment for that of the Agency as to the weight of the evidence on questions of fact," and "shall affirm the decision of the Agency unless the Court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority of the Agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

Furman v. Office of the Director of Regulation, 7 G.D.R. 7, aff'd 1 G.D.A.P. 113 (2022), citing MTC § 3-224(j).

The application of this standard has repeatedly been described as follows:

If the administrative record provides substantial evidence upon which the hearing officer could reasonably have based his finding ... the decision must be upheld. The obvious corollary to the substantial evidence rule is that a court may not affirm a decision if the evidence in the record does not support it. Bialowas v. Commissioner of Motor Vehicles, 44 Conn.App. at 709, 692 A.2d 834 (internal quotation marks and citations omitted).

See Kochachy v. Office of the Director of Regulation, 1 G.D.R, Am. Tribal Law 522 (2003).

III. Analysis

It is apparent, although not of controlling significance, that had the request by Ms. Reid, the Group Organizer, for a late checkout been properly acted upon and entered into the Mohegan Sun Hotel system, the Plaintiff would not have been placed in a position of cleaning room 2707 prior to it being vacated by its occupants, and the issues before the Hearing Officer and this Court would never have arisen. However, as Commission counsel has emphasized, this case is based on her admitted failure to follow specific SOP rules for Lost and Found items.

There is nothing in the Record to indicate that the Hearing Officer committed any of the errors itemized in MTC § 3-224(j)(1)-(3). Similarly, there is no claim (or evidence) of unlawful procedure (§ 3) or error of law (§ 4) other than his treatment of the crime of Larceny. Regarding this claim, that the Hearing Officer committed an error of law in finding Plaintiff's conduct in taking the items "analogous" to Larceny as defined under Connecticut law, Plaintiff argues, correctly, that Larceny is a specific intent crime (committed "with intent to deprive another of property or to appropriate it for himself or a third person, he wrongfully takes, obtains or withholds such property from an owner," [12 ]). See State v. Verszegi, 33 Conn.App. 368, 635 A.2d 812 (1993). The statutory definition of "owner" is quite broad: "An 'owner' means any person who has a right to possession superior to that of a taker, obtainer or withholder." [13 ] In this context, it is clear that the Plaintiff had no right to possession of any of the items she took except as set forth in Standard Operating Procedures (SOP) Dept: Housekeeping Task 47 Title: Lost & Found Items. [14 ] For items left behind, the procedure is as follows:

3. If the item is not a "Big 5" [15 ] item the housekeeping team member will bag the items(s) with a note indicating the date, time, room number, guest name (if known) and a list of the items placed in the bag and seal the bag. The team member will then notify a supervisor or office coordinator to contact security with a location for pick up.

There is no provision for any housekeeping team member to retain these items. For items left with a note from the guest or in the "waist" [waste] can, such items "are considered unwanted by the guest" and the GRAs "are free to request the item(s) to take home" (emphasis added):

They must get approval from the Housekeeping Director/Executive Housekeeper and a "Property Removal Pass" must be obtained to be able to take the item off the property. Any violations to this rule will result in disciplinary action up to and including termination . . .

Given that the Plaintiff had no right to possession of the items she took without following the specific SOP procedures, the Hearing Officer's conclusion that Plaintiff's conduct was analogous to Larceny is not clearly erroneous. [16 ] Termination of the Plaintiff for violation of this policy was specifically within the discretion of her employer. Whether the permanent suspension of her gaming license in addition to termination is "[a]rbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion" is at issue, and should be analyzed in light of the significant role played by the Mohegan Tribal Gaming Commission in licensing issues:

Under the Mohegan-Tribe - State of Connecticut Compact for Class III Gaming the MTGC has the "primary responsibility for oversight of tribal gaming operations." Compact, Section 13(a). The MTGC has the duty and responsibility to monitor all gaming operations to assure that all provisions of the Compact and tribal gaming ordinances and policies are enforced.

Notice of Decision, Findings of Law § 1. Under the Compact, "gaming operation" "means any enterprise operated by the Tribe on its Reservation for the conduct of any form of Class III gaming in any gaming facility." Further, "gaming facility" "means any room or rooms in which Class III Gaming as authorized by this Compact is conducted on the Reservation." Compact, Sections 2(k) and 2(j). This clearly does not include Room/Suite 2707 of the Mohegan Sun Hotel occupied in connection with the Miss Connecticut Pageant. [17 ]

The Hearing Officer's legal conclusions, as set forth in Findings of Law §§ 1, 2 and 3 relating to the authority of the Mohegan Tribal Gaming Commission, acting through the Office of the Director of Regulation, in the issuance and revocation of gaming licenses, are unassailable. An issue presented in this case, however, is the divergence of the facts of this case from the Hearing Officer's Finding of Law § 4:

The decisions of the MTGC to suspend or revoke an employee's license must be supported by credible evidence of activities, criminal conviction, reputation, habits and/or associations that pose a threat to the effective regulation of gaming or create or enhance the chances of unfair or illegal practices, methods, and activities in the conduct of the gaming activities.

While a correct statement of the law, however, to be clear there is nothing in the Record or the Hearing Officer's decision that ties the taking of items from Room 2707, supposedly unoccupied, but taken clearly in violation of the SOP for Lost and Found items, to any threat to the effective regulation of gaming in rooms in which Class III gaming is conducted under the Mohegan Tribe -State of Connecticut Gaming Compact.

However, the Hearing Officer's final conclusion does not rely solely on the Plaintiff's conduct being a threat to the effective regulation of gaming:

[H]er continued licensing and employment as a Guest Room Attendant at Mohegan Sun does pose a threat to the public interest, the interest of the Mohegan Tribe and/ or to the effective regulation of gaming.

Conclusion, § 3. Viewed in the context of a Guest Room Attendant cleaning a room that was supposed to be unoccupied and taking items she otherwise would have put in the trash, it could be argued that this conclusion is overly harsh. However, as Commission counsel has argued, Plaintiff violated a specific and detailed SOP policy, signed and acknowledged by her, which violation triggered a serious complaint by a hotel guest. [18 ]

The Hearing Officer's conclusion that Plaintiff's conduct posed a threat to the interest of the public and the Mohegan Tribe is neither arbitrary or capricious nor characterized by abuse of discretion or clearly unwarranted exercise of discretion. [19 ] It is irrelevant that this Court could have reached a different conclusion as to the necessity/reasonableness of suspending/terminating Plaintiff's gaming license following her termination of employment.[20 ] There is substantial evidence in the Record upon which the hearing officer could reasonably have based his finding and decision. Kochachy v. Office of the Director of Regulation, op. cit.

The decision of the Hearing Officer confirming the suspension of Plaintiff's gaming license is AFFIRMED.

 
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Notes:
[1 ] Commission Exhibit 3. The issue the appropriateness of her termination is not before the Court.
[2 ] Commission Exhibit 8.
[3 ] Testimony of Sheldon Preston, Shift Manager, Housekeeping Department, Transcript at 49-50.
[4 ]See Commission Exhibit 11. Ms. Reid attempted to charge brunch to the room but "my name was not showing up on the Suite." Commission Exhibit 11.
[5 ] As described by Ms. Reid and noted in the Incident File Full Report, even though Ms. Reid believed they had a late checkout, prior to the Plaintiff's arrival a Bellman arrived and put multiple items on his cart.
[6 ] Commission Exhibit 15.
[7 ] There is some evidence that the bag may have been found in the waste basket.
[8 ] Finding of Fact #10.
[9 ] Commission Exhibit 8.
[10 ] For example, questioned about the lipstick, her response was: "The sink was really dirty, and then she found it in the sink. So she thought it was trash." Transcript at 59.
[11 ] Transcript at 60.
[12 ] Conn. Gen. Stat. § 53a-119(a).
[13 ] Conn. Gen. Stat. § 53a-118(a)(5).
[14 ] Commission Exhibit 8.
[15 ] Weapons, Drugs/Medications, Cash Money or Chips, Electronic items or Jewelry.
[16 ] If it were larceny, it would be the lowest degree of larceny.
[17 ] It should be noted that, under the Constitution of the Mohegan Tribe of Indians of Connecticut, Article XIII, Section 1, "Gaming" also includes "any associated hotel, associated resort, or associated entertainment facilities, on tribal lands." Article XIII, Section 1. The Gaming Disputes Court, established under Article XIII, Section 2 and MTO 95-4, has consistently interpreted "Gaming" in its Constitutional sense rather than as defined in the Tribal-State Compact.
[18 ] Given the large discrepancy between Ms. Reid's initial complaints and what the Plaintiff actually took (as found by the Hearing Officer), it is plausible or even likely that the most serious complaints regarding missing items were the result confusion in the checking out process. Plaintiff's observance of the SOP policy regarding items left behind, however, would have avoided this situation.
[19 ] It should be emphasized that the primary function of the MTGC is precisely that set forth in the Hearing Officer's Findings Law, § 1 ". . . to monitor all gaming operations to assure that all provisions of the Compact and tribal gaming ordinances a policies are enforced." This case, however, involves the authority of the MTGC with respect to tribal gaming ordinances ensure that each licensee ". . . be of good character, honest and have integrity." MTO 94-1. Implicit in the Hearing Office conclusion that Plaintiff's conduct was analogous to Larceny is that she does not meet this standard. In future cases where licensee's conduct is far removed from any Tribal "gaming operation," it is conceivable that a license suspension/revocation m not be affirmed unless appropriate and/or required to uphold this or other ethical standards for licensees.
[20 ] It is noteworthy that the Hearing Officer found Plaintiff's testimony credible. An equally reasonable alternative conclusion t could have been drawn in this case is that the error in judgment committed by the Plaintiff is highly unlikely to be repeated her, and that counseling would be sufficient protection for the interests of the public and the Mohegan Tribe.
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