2024 WL 4511333 (Mash. Pequot Tribal Ct.)
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Mashantucket Pequot Tribal Court.
AMY GALLOWAY
v.
MASHANTUCKET PEQUOT TRIBAL NATION
MPTC-CV-AA-2023-126
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JULY 3, 2024
MEMORANDUM OF DECISION
Edward B. O’Connell, Judge
The plaintiff appeals the termination of her employment as a finance and risk management specialist in the Finance Department of the Mashantucket Pequot Tribal National (“MPTN”) pursuant to the provisions of the Mashantucket Pequot Employee Review Code, 8 M.P.T.L. ch.1.
BACKGROUND
On April 28, 2023, the plaintiff’s employment was terminated for violating the Standards of Conduct Policy, Conflict of Interest Policy and her failure to meet the MPTN’s Standards of Conduct set forth in the Disciplinary and Performance Improvement Policy. Specifically, she was accused of assisting with the application of a tribal member, Christopher Moore, Sr., for benefits under the Tribe’s Family Support Program (“FSP”) when she knew those benefits would be deposited into a bank account in her name.1 She was also accused of notarizing Moore’s name on the application form when Moore was not present. She was also accused of submitting documents with forged signatures. The cumulative effect of these actions are alleged to violate the Tribe’s Standards of Conduct and Disciplinary and Performance Improvement Policy.
The plaintiff appealed her termination to a five member Board of Review at which eight witnesses testified. In a 3-2 decision, the Board found that the alleged conduct occurred, that it violated the MPTN’s policies, and that termination of employment was appropriate. The plaintiff then filed a timely appeal to this Court.
At the time her employment was terminated, the plaintiff was the executive administrative assistant to Tribal CFO Jean Swift. Her title was Finance and Risk Management Specialist. She was paid on a salary basis. Her duties included the Tribe’s OSHA, worker’s compensation and property and liability insurance programs. In February or March of 2022, she was detailed to assist with the administration of the Tribe’s new Family Support Program, which was run by Susie Grott. She then took over the administration of the FSP in December 2022 when Ms. Grot left her job.
The plaintiff is married to tribal member David Galloway. Her mother-in-law is Jodie Ann Little Fawn, for whom David Galloway is her court-appointed conservator. The plaintiff also has a sister named Marsha Bryan.
The plaintiff has a minor child2 with Christopher Moore, Sr.,3 who is a tribal member. Moore also has an adult son by a prior relationship with another woman named Christopher Moore, Jr.4 Moore owes the plaintiff ongoing child support for the minor child, and a considerable amount of child support arrearage. Although the plaintiff and Moore have been separated for a long time, Moore regularly uses the plaintiff’s address and phone number as contact information for his bills and other paperwork and has done so for 20 years.
The investigation that led to the plaintiff’s termination began when the plaintiff left Moore’s “Beneficiary Successor Designation Form” on a coworker’s desk before she left for vacation. The form was signed by Moore and witnessed by the plaintiff’s sister, Marsha Bryan. The co-worker thought this was unusual because it was typed rather than handwritten and it named Moore’s minor child rather than Christopher Moore, Jr. as his beneficiary. She also found it odd that the plaintiff had witnessed the form. The co-worker brought the form and its presumed peculiarities to CFO Swift’s attention.
CFO Swift then took steps to confirm the contents of the form. She reviewed Moore’s other Tribal benefits forms in her department. She noticed a notarized income verification form that was missing Moore’s signature. She recognized the plaintiff’s handwriting on this form, and on other tribal benefits documents. Swift recognized the plaintiff’s handwriting because she had worked with her for many years and is familiar with her handwriting. She tried calling Moore but was surprised, and a little suspicious, to find out the phone number belonged to the plaintiff. Swift was unaware that Moore had been using the plaintiff’s contact information and address for over 20 years. It was also discovered that Moore’s FSP application not only listed the plaintiff’s phone number and address, but also a bank account in the plaintiff’s name that he could not access.
CFO Swift reviewed David Galloway’s tribal benefits file to verify the plaintiff’s address, because the plaintiff is not a tribal member and presumably would not have a tribal benefits file. While checking the file, Swift saw another Beneficiary Successor Designation Form the plaintiff had witnessed. That form was signed by David Galloway in his capacity as the conservator for his mother Jodie Ann Little Fawn. Both Moore’s and Little Fawn’s beneficiary forms were also witnessed by the plaintiff’s sister Marsha Bryan. CFO Swift thought Marsha Bryan’s two signatures looked different.
In sum, after deciding to verify the Beneficiary Successor Designation Form signed by Moore and left by the plaintiff on a co-worker’s desk, CFO Swift discovered documents in Moore’s file that listed the plaintiff’s address, phone number, and bank account and that appeared to have the plaintiff’s handwriting. She discovered Moore’s FSP funds were being directly deposited into the plaintiff’s bank account. And she discovered a beneficiary form in David Galloway’s file that had a signature by Marsha Bryan that looked different from the signature by Marsha Bryan on Moore’s beneficiary form. CFO Swift contacted Team Member Relations to report some possible fraudulent activity. She also told them that the FSP prohibited using another person’s bank account, although later she reluctantly rescinded that statement, acknowledging that no part of the then-existing policy had this provision, but continued to insist that it is the “spirit of the law.”
CFO Swift contacted the plaintiff. The plaintiff explained her relationship with Moore, that he often uses her bank account and other information, and that the FSP deposit is to support their minor child. The plaintiff provided CFO Swift with three phone numbers to reach Moore. Swift had a hard time contacting Moore but eventually reached him. He explained that the plaintiff is his minor son’s mother and that he did sign the documents. Swift told him his FSP funds could go into a joint account with the plaintiff so long as an affidavit is signed authorizing this practice.5
While CFO Swift was trying to contact Moore, the plaintiff arranged for him to visit her lawyer’s office and sign an affidavit stating he had an account with the plaintiff for about 10-12 years, and he agreed to deposit his FSP funds into this account so the plaintiff can use those funds for the benefit of their minor child, for whom he owes “substantial money in back child support.”
When the plaintiff returned from vacation, she was called into a meeting with Team Member Relations Director Larry Dutra. Dutra asked the plaintiff about the form she left on her co-worker’s desk. He asked why it had her information. He asked who Little Fawn is and told the plaintiff that Marsha Bryan’s signature does not match the signature on Moore’s benefit form.
Director Dutra obtained 23 documents signed by Moore, Moore, Jr., David Galloway, Marsha Bryan, and the plaintiff, and hired a handwriting analyzer to analyze those documents for common authorship. As to Moore, Dutra submitted employment tax documents from 2016, the affidavit he signed in the plaintiff’s lawyer’s office, and various tribal benefits applications. The handwriting analyzer determined that many of the documents did not share common authorship, including two sets of Moore’s documents. He did not provide an opinion as to which documents were authentic, nor did he opine that the plaintiff forged any of them.
After his investigation Dutra suggested terminating the plaintiff for receiving FSP funds, for notarizing a document that was not signed, and for forging signatures.
A Board of Review convened on July 26, 2023. The Board was comprised of five members: two supervisors and three hourly employees. The MPTN asserted that the Board should hold the plaintiff to a higher standard because she was a salaried employee. The plaintiff disputed this and claimed that she should not be held to the higher standard of a supervisor because she is not a supervisor.
As to the forgeries, all the people who were alleged to have had their signatures forged testified at the hearing that they did, in fact, sign the respective documents.
The Board reviewed the documents containing the alleged forgeries and the report of the handwriting expert and made its own determination regarding the signatures. As to the FSP, the board found that the policy did not expressly prohibit the bank deposit arrangement between Moore and the plaintiff.
As to the notarized-unsigned form, the plaintiff explained that there were multiple sheets that were being signed and she missed that Moore did not sign the notary section. She testified to this Court at its hearing that when she was notified of the defect, she quickly corrected that omission by calling Moore back to the office and had him sign the form and administered the notary oath to him.
The Board voted three to two to uphold the termination.6 The plaintiff timely appealed. On appeal, the plaintiff challenges the composition of the Board, the application of the higher standard of conduct, and the Board’s findings that the plaintiff forged documents, notarized an unsigned document, and violated FSP policy.
STANDARD OF REVIEW
Employment appeals are governed by tribal law. The role of the Court is to determine whether the Board’s final decision is “appropriate” by considering whether:
(1) There was a reasonable basis for the Board or Review’s consideration that the Employee did or did not violate the policies and/or procedures established by the Employer for the position held by the Employee;
(2) There was reasonable basis to find that the Employer did or did not substantially comply with the policies and/or procedures regarding discipline;
(3) The Employee was given a description of the offense or conduct that was the basis for the Disciplinary Action and both parties were afforded a reasonable opportunity to present and refute evidence regarding the offense or conduct and/or evidence of aggravating or mitigating circumstances relating thereto;
(4) There was a reasonable basis for the Board of Review’s decision as to whether the form of discipline was or was not appropriate for the offense or conduct; and
(5) The Board of Review’s decision is in violation of tribal law or exceeds the Board’s authority under tribal law.
8 M.P.T.L. ch. 1 § 8(f)(1)–(5).
“ [A] ‘reasonable basis’ means a determination of whether there is substantial evidence in the record to support the findings of fact and conclusion drawn therefrom.” Luond v. Mashantucket Pequot Gaming Enterprise, 6 Mash.App. 73, 76 (2016) (quoting Walton v. Mashantucket Pequot Gaming Enterprise, 6 Mash.Rep. 20, 24 (2012)).
Substantial evidence is more than a scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The evidence must afford a substantial basis of fact from which the fact in issue can be reasonably inferred and it must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury. It is not necessary that such evidence be unequivocal, but rather that it support the [Board’s] findings.
Id. (quoting Magee v. Mashantucket Pequot Gaming Enterprise, 4 Mash.App. 40, 53 (2007)).
If substantial evidence exists, and if the [Board’s] conclusions are rational and reasonable, the reviewing court would find that the [Board] had a reasonable basis for concluding that the employee violated the policies or procedures established for the position held by the employee.... If substantial evidence does not exist, or if the [Board’s] conclusions are not reasonable or rational, the decision would constitute a clear error of judgement and the [Board] would not have a reasonable basis for concluding that the employee violated the policies or procedures of the Gaming Enterprise.
Id. (quoting George v. Mashantucket Pequot Gaming Enterprise, 5 Mash.Rep. 322, 329 (2010)).
“In determining whether or not substantial evidence exists, this Court’s review is limited to the Record and any briefs or oral argument provided by the parties. The Court may not substitute its own judgment for that of the Board of Review.” Id. (quoting Mashantucket Pequot Gaming Enterprise v. Prentice, 6 Mash.Rep. 110, 112 (2013) (citation omitted in original)). The Court must defer to the Board of Review’s judgement as to the weight of the evidence and the credibility of the witness. 8 M.P.T.L. ch.1 § 8(c).
The plaintiff challenges the Board’s basis for concluding that she violated the Tribe’s policies or procedures related to the FSP Program and the falsification of documents. She also levies two procedural challenges pertaining to the composition of the Board and application of the higher Standards of Conduct, which will be categorized as challenges to the Board’s finding that the defendant complied with its disciplinary policies. These will be considered in detail below.
I. THE BOARD’S DECISION THAT THE PLAINTIFF VIOLATED TRIBAL POLICIES OR PROCEDURES REGARDING THE FSP PROGRAM
The Board found that the plaintiff violated the Standards of Conduct Policy as well as the Disciplinary and Performance Improvement Policy and the Conflict of Interest Policy. The Board found no violation of the section of the Standards of Conduct Policy related to improper use of authority for personal profit or advantage. The Board’s conclusions are premised on two different violations; one relating to the Family Support Program, the other relating to the falsification of documents.
A. THE FAMILY SUPPORT PROGRAM
The Tribe’s FSP Program began in January, 2022. Moore submitted his application, which contained the FSP Account Arrangement, in February, 2022. At the time Moore applied for the FSP program in February, 2022 and requested that his benefits be deposited in the plaintiff’s bank account, there were no written provisions which prohibited that procedure.7 The Tribe posits that at the time Moore applied for FSP benefits, the plaintiff was working in the Finance Department and assisting Tribal members in the preparation and filing of applications for FSB benefits and should have been aware of the “spirit” of the program even if there was no specific prohibition against depositing benefits in another person’s bank account. At that time, however, she was not a director or manager of the program, which had no rules, and could not be changed with knowledge of the underlying premise of the program, particularly when she understood that the benefits of her particular FSP Account Arrangement were to be used for the benefit of her child, who is a Tribal member.
The Tribe also asserts that even if the FSP program did not expressly prohibit the FSP arrangement, FSP participants nonetheless had notice of a rule prohibiting deposits into non-tribal member bank accounts due to the grammatical construction of informational packets and FAQs sent to tribal members in January, 2022, when the FSP program started. These documents contained words and phrases such as “program participant” and “participating Tribal Members” and “you – the Tribal Member” which, claims the Tribe, helped explain to tribal members how to enroll and utilize the FSP program. The Court is not persuaded that these snippets from the FAQ’s and the informational packet establish a clear rule as to who may not have benefits deposited in the name of another person.
Nor did the plaintiff and Moore attempt to hide the FSP Account Arrangement from anyone. They had been using a financial arrangement of this sort for decades. No one told them that it was inappropriate.
There was no evidence of a Finance Department policy stating that an employee must disclose when he or she receives funds from a benefit program. It is basic jurisprudence that a rule or policy must be in effect at the time of the conduct in order for that conduct to have violated the policy. An employee cannot be terminated for violation of a policy which was not in effect at the time of the alleged conduct. Without evidence of a tribal policy or procedure, the Board could not have had a reasonable basis to conclude that the FSP Account Arrangement was a violation of a policy or procedure. The Court holds that there was not a reasonable basis for the Board to conclude that the plaintiff violated tribal policies or procedures at the relevant time.
B. CONFLICT OF INTEREST
Moore applied for the FSP program in February of 2022, shortly after it was established. At that time the plaintiff was performing data entry work in the Finance Department. It was not alleged, nor was it proved, that she assisted Moore in the completion or filing of his application for the program. She was aware that Moore intended to deposit his benefits into her bank account in order to pay child support and arrearages for their minor child, but was not told that this would be an improper use of the program benefits.
The Tribe asserts that the FSP Account Arrangement constituted a conflict of interest on the part of the plaintiff because even though she may not have been aware that the FSP Account Arrangement was improper at the time it was established, she should have disclosed it when she became aware that it was not proper. The Tribe contends that she was under a continuing duty to disclose the existence of the FSP Account Arrangement because it gave her an edge over other creditors of Moore and she was assured of receiving monthly deposits into her account, amounting to self-dealing and a conflict of interest.
There was no evidence that the plaintiff was aware that the Tribe considered the FSP Account Arrangement to be improper at any time prior to her termination. CEO Swift considered it to be contrary to the “spirit” of the program, but conceded that there was no policy prohibiting it at the time it was created. Nor is there policy providing that when an employee of the Finance Department receives funds under a tribal benefit program, he or she must disclose that fact to a superior. As noted, supra, the plaintiff and Moore made no attempt to hide the FSP Account Arrangement from anyone, including tribal officials, and no one told them it was inappropriate until the plaintiff was terminated. The Court holds that there was not a reasonable basis for the Board to conclude that the plaintiff’s conduct in receiving FSP program funds for the support of her minor child, who is a minor child, constituted a conflict of interest.
II. THE DECISION REGARDING COMPLIANCE WITH DISCIPLINARY POLICIES AND PROCEDURES
The plaintiff contends that the Tribe failed to adhere to its Disciplinary Policy or Board of Review Policy pertaining to the conduct of her hearing before the Board of review. She makes two arguments: (1) she was improperly held to a higher standard of conduct reserved for professional management employees; and (2) her Board of Review should have been comprised of three members rather than the five members who were seated on her case.
A. STANDARD OF CONDUCT
The definitions section of the Disciplinary Policy divides tribal employees into two classes based on whether they have supervisory responsibilities and whether they are paid on a salary basis. The two classes of employees are defined as follows:
• Hourly/Non-Supervisory Employees: Employees paid on an hourly basis excluding those who have supervisory responsibilities.
• Salaried/Supervisory Employees: Employees paid on a salaried basis and employees paid on an hourly basis that hold supervisory responsibilities.
The latter class of employees includes two distinct subclasses. The first subclass is employees paid on a salary basis. Supervisors who are paid on a salary bases fall within the first subclass. The second subclass is employees paid on an hourly basis that hold supervisory responsibilities.
The difference between these two classes of employees is important because different disciplinary policies and procedures apply to the different classes of employees. Much of the Disciplinary Policy is dedicated to defining the disciplinary process for hourly/non-supervisory employees. That process includes a system of progressive discipline. However, the section of the Disciplinary Policy captioned “Disciplinary Process for Salaried/Supervisory Positions” specifically excludes salaried/supervisory employees from the system of progressive discipline. It states in part: “The progressive disciplinary process provided to hourly Employees does not apply to salaried/supervisory Employees.” The Court finds that the progressive disciplinary process does not apply to salaried/supervisory employees.
Additionally, the same section regarding the disciplinary process for salaried/ supervisory employees provides that they “are considered to hold professional/ management positions and will be held to higher standards than hourly/non-supervisory Employees.” The Court finds that the Disciplinary Policy considers all salaried Employees, supervisory and non-supervisory alike, to be professional/management employees and holds them to a higher standard than non-supervisory hourly employees. The Tribe justifies its policy because it believes salaried non-supervisory employees generally exercise greater responsibility than hourly non-supervisory employees, and so it expects them to conduct themselves according to a higher standard. The fairness of these generalizations is not for the Court to decide. See Barthelet v. Mashantucket Pequot Gaming Enterprise, 4 Mash.App. 8 (2004) (“It is not the role of the court to dictate internal policies of the Gaming Enterprise, but rather to defer to the expertise and experience of management in the setting of its own policies.”). The same rule should apply to tribal government employee policies. The issue before the Court is whether the plaintiff was denied the protection of the progressive disciplinary process and improperly held to the higher standard of conduct reserved for supervisors and managers, not whether the terms of the Disciplinary Policy are wise or unwise.
While the plaintiff may not have been a manager or a supervisor, the parties agree that at all times relevant to this case that she was paid on a salaried basis. As a salaried employee, the Court finds that the plaintiff was expected to conduct herself according to a higher standard commensurate with the generally higher level of responsibility and professionalism expected of a salaried employee. The Court finds that neither the Tribe nor the Board violated the Disciplinary Policy in their respective findings that she failed to uphold the higher standard. The Court holds that the plaintiff was not wrongfully denied progressive discipline and that there was a reasonable basis to conclude her conduct was properly evaluated according to the higher standard of conduct expected of salaried employees.
B. IMPROPER SIZE OF THE BOARD OF REVIEW
Alternatively, the plaintiff argues that if her Board properly applied the standard of conduct for a salaried/supervisory employee, then the Board should have had three members rather than five members. She refers to the Board of Review Policy to support her claim that salaried/supervisory employees are entitled to three-member Boards of Review, and asks the Court to conclude that the Board Policy was violated because a five-member Board convened for her hearing. The Tribe argues that the plaintiff has waived this progressive discipline objection regarding the size of the Board on appeal because she did not raise this objection in the proceedings below.
The plaintiff argued to the moderator and to the Board that she was being subjected to an improper standard of conduct under the Disciplinary Policy. Her emphatic arguments against the higher standard of conduct demonstrate that she was aware of the fact that she was being treated as a terminated salaried/supervisory employee. She also indicated that she received a copy of the Board Policy on May 4, 2023, almost three months before her Board hearing. She knew or should have known at that time that the Board Policy provides different sized boards of review for the two different classes of employees. These grounds for her objection were known to her prior to this appeal, yet the plaintiff did not claim either to the moderator or to the Board itself that if she was being held to the higher standard then she was entitled to a three-member Board.
Regardless of why she waited until her appeal to this Court to object to the size of the Board, consideration of her objection for the first time on appeal is impermissible. The plaintiff knew or should have known about the purported error during the proceedings below and yet she declined to object to the error then. Litigants who consider that the tribunal below committed several purported errors cannot strategically reserve some of them for appeal in order to have two bites at the proverbial apple. See, for example, Krattenstein v. G. Fox and Company, Inc., 155 Conn. 609, 616 (1967) (“We have made it clear that we will not permit parties to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial.”); Dragan v. Connecticut Medical Examining Board, 223 Conn. 618, 632 (1992) (“A party to an administrative proceeding cannot be allowed to participate fully at hearings and then, on appeal, raise claims that were not asserted before the board.”). The Court finds that the plaintiff has waived this objection. The Court will not decide the merits of this objection in this appeal.
III. FALSIFICATION OF DOCUMENTS
After a review of documentary and testimonial evidence presented to it, the Board found that the plaintiff’s employment should be terminated for “Dishonesty, including fraud and falsification of MPTN documents.” Included within this category are failure to recognize differing signatures of persons who signed various forms, varying signatures of Moore’s and improper notarization of Moore’s application for FSP benefits.
A. VARYING SIGNATURES OF SIGNATORIES AND MOORE
The Tribe retained the services of a handwriting expert, James Streeter, who examined documents signed by the plaintiff, Moore, the plaintiff’s husband David Galloway, her sister Marsha Bryan and Christopher Moore, Jr. His report concluded that a number of the signatures display “dissimilarities in individual handwriting characteristics and habits,” and opined that they did not share common authorship. He compared a number of signatures of the plaintiff, and came to the same conclusion. In the absence of an exemplar, he qualified his less than conclusive opinion by stating that “some individuals possess and utilize more than one style of writing in his or her signatures,” and this “precludes rendering a more definitive opinion at this time.”
The plaintiff contends that all of the persons who signed the forms that the Board reviewed appeared before the Board and testified that their signatures were genuine. The Board, however, chose not to credit the testimony of some or all of those witnesses. It is within the purview of the Board to evaluate and weigh the credibility of the witnesses before it, and this Court must defer to the Board’s judgment as to the weight of the evidence and credibility of the witnesses. 8 M.P.T.L. ch. 1 § 8(c); “Judicial review of the administrative decision to suspend or terminate an employee ... is extremely limited.... In making this determination, the court does not retry the facts. The trial court may not substitute its own judgment for that of the Board on the weight of the evidence or on questions of fact.” Mashantucket Pequot Gaming Enterprise v. Holmander, 6 Mash.Rep. 243, 246 (2015) (citations omitted).
The Board is better positioned than this Court to determine whether or not to credit witness testimony. The Board heard and watched the witnesses testify about their signatures and their relationships with the plaintiff. The Court finds no grounds upon which to invade the Board’s decision not to credit the witnesses’ testimony and will not disturb this conclusion.
As to the genuineness of the signatures, Mashantucket law turns to the factfinder when there is no expert testimony on that particular question. Mashantucket Pequot Gaming Enterprise v. Davis, 3 Mash.Rep. 273, 276 (2000). In Davis, the court, acting as factfinder, observed that the two signatures at issue matched one another but did not bear a close resemblance to other signatures of the defendant that were known to be authentic. Because neither party submitted expert testimony on the genuineness of the signature, the court “[made] the necessary comparisons and [formed] its own opinion as to the genuineness of the signature.” Davis, 3 Mash.Rep. at 276. Here, although there was an expert witness report, it does not opine on the genuineness of any of the signatures that the Tribe submitted for evaluation. The case at bar is similar to Davis, where there was no expert opinion on that question. Thus, the Board could “make the necessary comparisons and form its own opinion as to the genuineness of the signature[s].” Davis, 3 Mash.Rep. at 276.
At the hearing, the Board not only had the benefit of the expert’s report but it also had knowledge of context, which the expert did not. Importantly, the Board was able to use a genuine signature by Moore as an exemplar to compare to other purported signatures of his. The expert characterized the signatures as belonging to two groups, group A and group B, and he determined that these two groups were produced by different authors. The group A signatures are italicized, tall, and compact. The group B signatures are swooping, round, and spacious. Because of the obvious differences in these two groups and the expert report that they do not share common ownership, the Court finds that the Board’s conclusion that the signatures “clearly do not match,” had a reasonable basis. Furthermore, unbeknownst to the expert but known to the Board was that one of the signatures was signed by Moore for an affidavit taken at the plaintiff’s attorney’s office and could be treated as an exemplar of Moore’s signature. That signature is part of the group A signatures. Because the signatures in group B do not share common authorship with those in group A and group A contained an exemplar of Moore’s genuine signature, the Court holds that the Board had a reasonable basis to conclude that the group B signatures are not the genuine signatures of Moore.
Here, the Board had not only expert handwriting evidence which found that “signatures clearly did not match” but also compared the actual signatures at issue and had an opportunity to hear and assess the credibility of the signatories who testified. They learned of the close relationship of the signatories and the plaintiff. They heard the testimony of CEO Swift, who was familiar with the plaintiff’s handwriting.
The Court holds that there is a reasonable basis for the Board’s conclusion that the plaintiff was incompetent in failing to recognize differing signatures of signatories in close relationship to her, including Moore, and in failing to recognize differing signatures of Moore.8
B. NOTARIZATION OF MOORE’S APPLICATION FORM
The plaintiff admits that within minutes of submitting Moore’s unnotarized application form she was notified of her mistake and immediately had Moore re-sign the document, notarized his signature and re-uploaded the properly signed form, thus refiling it with the Tribe. This position relies on the testimony of the plaintiff9 and Moore. But, as discussed above, the Board did not find either the plaintiff or Moore to be credible witnesses. Thus, the Board had reasonable grounds to disregard their explanation of the circumstances surrounding this incident. Moreover, the Board had reasonable grounds for believing this document was not signed by Moore because it was part of the group B signatures. The Court holds that there was a reasonable basis to support the Board’s conclusion that the plaintiff’s conduct constituted a falsification of Moore’s application form by not properly notarizing it.
CONCLUSION
The decision that the plaintiff violated tribal policies or procedures regarding the FSP program is REVERSED; the decision regarding the composition and number of Board members is AFFIRMED; the decision regarding falsification of documents is AFFIRMED. The plaintiff’s appeal is DENIED.
BY THE COURT:
All Citations
2024 WL 4511333
Footnotes |
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The FSP provides tribal members with funds via direct deposit to a checking account that can be used for various approved expenses. |
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Consistent with this Court’s policy, it will not name the child in this decision. |
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Hereinafter, references in this decision to “Moore” are to the elder Christopher Moore unless stated otherwise. |
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The plaintiff took care of Christopher Moore, Jr., since he was young, and has a strong relationship with him. |
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The plaintiff and Moore did so and have not had any trouble since. |
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Unless otherwise specified, references to the Board’s decision are to the majority decision. |
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The Tribe adopted written policies for the FSP program eight months later, on October 10, 2022, retroactive to January 1, 2022. They were revised in May of 2023 to prohibit using another’s bank account, after the plaintiff’s termination. |
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Note that the Court does not find that the plaintiff herself forged the signatures of other persons. |
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The plaintiff also testified at the Court’s oral argument while assisting the Court and counsel to unravel the sequence of events. The focus of the Court’s inquiry on appeal, however, is the finding of the Board of Review. The Court makes no findings based on the plaintiff’s testimony at the oral argument. |
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