Thursday, May 28, 2015

PECHANGA FIRED Whistleblower and LOSES as Appeals Court REVERSES Lower Court Ruling on Sovereignty

The Pechanga Band of Luiseno Indians LOSE in appeals court.  They unlawfully fired an employee for blowing the LID off corruption.

The Pechanga Gaming Commission, whose members are:   Stella Fuller, John R. Magee, Jason P. Maldonado, William R. Ramos, and Robert B. Vargas tried to say SOVEREIGNTY protected their firing of a whistleblower.   The lower court ruled that sovereignty applied.    NO, I GUESS NOT!  In a 3-0 decision, the Appeals Court REVERSES!


Shortly after he began working at the casino, Cosentino observed ongoing criminal activity on the casino floor. Based on his observations, Cosentino became a confidential informant for the California Department of Justice and the information he provided lead to several criminal convictions. 

Defendants later sought to learn what information Cosentino provided the Department of Justice, but he followed the Department’s instructions and declined to divulge the information. When Cosentino balked, Defendants revoked his gaming license and the casino terminated his employment because he could not work at the casino without a valid license

We reverse. For sovereign immunity to bar claims against tribal officials, the claims must be based on actions the officials took in their official capacity and within the scope of their official authority. An official’s actions that exceed the scope of his or her authority are not protected. 

Although the parties do not dispute that as members of the tribe’s gaming commission Defendants had the authority to revoke a gaming license if they received reliable information the licensee no longer satisfied the requirements for 3 obtaining a license or had engaged in conduct that reflected poorly upon the tribe or its gaming activities, the record lacks evidence showing Defendants received any such information about Cosentino or explaining why they revoked his gaming license. Cosentino, however, presented evidence supporting his claim Defendants exceeded the scope of their authority by revoking his license without cause in retaliation against him. 

Sovereign immunity prevents us from inquiring into the reliability of information Defendants may have relied upon in revoking Cosentino’s license or any other errors they may have made, but it does not prevent inquiry into whether Defendants exceeded their authority by using their official position to intentionally harm Cosentino.


The Trial Court Erroneously Concluded Defendants Are Immune From Liability for Cosentino’s Claims Cosentino contends the trial court erred in applying sovereign immunity to dismiss his claims because Defendants exceeded the scope of their authority as members of the Gaming Commission by revoking his gaming license without cause and in retaliation for serving as a confidential Department of Justice informant. We agree. 


Defendants suspended his gaming license without notifying him after he failed to appear for a meeting with Defendants because his supervisor did not inform him of the meeting and did not provide another dealer to cover 15 Cosentino’s gaming table until well after the scheduled meeting. When Cosentino later met with Defendants to discuss his activities as an informant, they served him with a letter belatedly informing him the meeting was convened to determine whether they should revoke his license. Defendants nonetheless did not ask Cosentino about his license, but instead questioned him extensively about the information he had shared with the Department of Justice. When Cosentino declined to answer some of their questions based on the Department’s instructions not to divulge the information, Defendants revoked Cosentino’s gaming license without identifying any reason for doing so

SMACKDOWN:  In the face of this evidence, Defendants presented no evidence to rebut or deny Cosentino’s claim they revoked his license in retaliation and without cause. Similarly, Defendants presented no evidence showing they received any information about Cosentino’s qualification to hold a gaming license or why they suspended and revoked his license. Defendants also failed to present any authority showing they had the power to revoke Cosentino’s license without cause

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