Supreme Court hears arguments in HCN Gaming Commission v. HCN Ethics Review Board

By Tim Wohlers

The Ho-Chunk Nation Supreme Court held oral argument at the tribal court building on Oct. 14, to hear from both parties involved in HCN Gaming Commission v. HCN Ethics Review Board. 
The case has been the focus of much attention throughout the Nation’s gaming establishments, and revolves around actions taken by the gaming commission in 2015 – when it revoked the licenses of HCG-Black River Falls’ top two financial officers. 
“The gaming commission arbitrarily revoked the gaming licenses of CFO Steve Mach and Casino Controller Trina Johnson,” stated Executive Manager of HCG-Madison Dan Brown.  “They did so without charges, and without due process.” 
The move resulted in Mach and Johnson’s immediate termination, since both of their positions had required a gaming license.  They were escorted from the premises the very same day they learned of the commission’s intentions to revoke their licenses. 
“I was unable to continue as Casino Controller,” Johnson stated, “because a license is necessary for gaming employment.” 
They each filed a grievance within days of their dismissal, citing a lack of due process. 
The Grievance Review Board (GRB) found in their favor, and ordered that the casino compensate them for lost wages up to $10,000. 
“It appears to the Board that the decision by the Gaming Commission was arbitrary and capricious,” it stated. 
The board was not able to reinstate their gaming licenses, however, as it lacks the power to do so.  The administrative body could only recommend that management relocate them to a comparable position within the company. 
So executive managers at the casino filed a lawsuit against the commission in HCN trial court, asking that its actions be reversed. 
“There is no amount of monetary damages that can fix an unlawful revocation of a gaming license,” stated attorney for the plaintiffs Heidi Drobnick.  “The requested relief in this case is reinstatement.” 
Less than four months later, though, the suit ended in an out-of-court-settlement.  According to court records, the details of the agreement were confidential. 
“We had a settlement,” said attorney for the gaming commission Erik Shircel.  “(And) there was a dismissal.” 
Mach and Johnson were not party to the lawsuit, however, and claim that they had no knowledge of the settlement. 
“They never saw the settlement agreement,” said the attorney for the appellees, Andrew Adams.  “It was never provided to them.” 
The former Finance employees then turned to Ho-Chunk Nation’s Ethics Review Board (ERB), and filed a complaint against the commission. 
The board found that the gaming commission committed ethics violations by not showing cause, and recommended that commissioners be removed. 
“The ERB found that the (gaming commission) had, in fact, committed ethics violations,” stated Brown.       
But the gaming commission stood by its decision and took the Ethics Review Board to court, where the case was heard by a different judge. 
The judge ruled in favor of the Ethics Review Board and agreed with its recommendation to remove the commissioners. 
“(It serves as) a message to would-be Gaming Commissioners to know one’s job,” Brown stated, “and uphold the Gaming Ordinance within the established parameters.” 
The gaming commission appealed to the Supreme Court, where the matter is currently under consideration.  Oral arguments were presented by both parties earlier this month. 
“We are requesting that the court reverse the decision of the Ethics Review Board,” Shircel said. 
He argued that the case should not have been reopened after a settlement agreement was reached, and that the Ethics Review Board was wrong to take up a matter that had already been resolved.  He equated it to double jeopardy. 
“Essentially,” Shircel said, “the appellees gave those individuals a second kick at the can here.” 
The attorney for the Ethics Review Board reminded the court that Mach and Johnson were not part of that settlement, and had never even seen the agreement.  He argued that, because of this, the resulting dismissal order should not prevent the two from pursuing any kind of recourse.   
“The order should not be given automatically a preclusive effect on the parties not privy to the settlement agreement,” Adams said.  “Otherwise, you’re automatically building into an order a violation of somebody’s due-process rights.” 
Associate Justice Tricia Zunker announced that she will be the one authoring the court’s opinion, which will likely address both the orders of the trial court and the ERB’s recommendations. 
Although she has 60 days from the date of oral arguments to issue her opinion, Zunker said she’d like to begin writing it as soon as possible.