An assistant attorney general has admitted he deliberately destroyed notes of meetings with representatives of tribes trying to undermine the Tohono O’odham casino in Glendale.
In depositions obtained by Capitol Media Services, Roger Banan said he was sent to those meetings by Daniel Bergin, director of the state Department of Gaming. Bergin has been opposed to the Tohono O’odham opening the casino at all. And now that it’s open, he is trying to block full-scale casino gaming there.
Banan said he was tasked with meeting with other area tribes who, for their own reasons, are opposed to the Glendale casino. And he said those tribal representatives presented a variety of ideas of what Bergin should do to kill the Tohono O’odham casino.
Attorneys for the Tohono O’odham asked him for the notes to find out whether Bergin, who subsequently made several moves against the tribe, was being influenced by the other tribes who, as competitors, would want to block the casino.
Banan, however, said they can’t have the notes because he destroyed them after briefing Bergin.
He said he no longer considered it necessary to keep them. And he said the other tribes with whom he was talking wanted the discussions kept secret.
Despite that, Banan has been required to answer questions from attorneys for the Tohono O’odham Nation about those meetings. But Banan, testifying under oath in his Aug. 23 deposition — and with no notes to refer to — told tribal attorneys he could not recall anything that happened at any of the three meetings.
That destruction could undermine efforts by the Ducey administration to stop full-scale gaming at the Glendale casino.
Attorneys for the Tohono O’odham are suing Bergin in federal court, saying he is illegally blocking their demand that the tribe be allowed to conduct Class III gaming at the West Valley Resort.
It opened late last year as a Class II facility, something that does not require state permission, operating machines that are similar to slot machines. The tribe also cannot offer things like poker and blackjack.
Bergin, in trying to quash that lawsuit, filed a counterclaim arguing that tribe defrauded the state and voters in 2002 when the gaming compacts were negotiated and approved at the ballot. Bergin contends the tribe deliberately hid its plans for a Glendale casino even as voters were being told there would be no new casinos in the Phoenix area.
But if U.S. District Court Judge David Campbell believes that Bergin and his agency have not been playing fair in this and other ongoing lawsuits with the tribe, he could unilaterally block the state from making that fraud counterclaim. And that would strip the state of its main defense in the litigation, making it easier for attorneys for the Tohono O’odham to get a ruling in their favor.
Campbell already has raised questions about Bergin’s actions.
In an order last month, the judge called it “troubling’’ that the state gaming regulator would partner with some tribes he regulates “to thwart expansion of another.’’ Campbell said there are good reasons for the Tohono O’odham to know what Bergin and Banan were saying to other tribes.
In new court filings Wednesday, Paul Charlton, the lead attorney for the Tohono O’odham, told Campbell that the intentional destruction of the notes leads to several conclusions. Most notably, Charlton said, it suggests that Bergin was taking actions against the Tohono O’odham at the behest of the other tribes.
Charlton said only after Banan met with the other tribes and briefed Bergin did the gaming director send out letters to gaming supply companies “threatening’’ to revoke their ability to do business in the state if they provided equipment to the new Glendale casino.
That wasn’t all.
Charlton said Bergin also sent letters to employees who accepted positions at the casino. And he suggested to the Department of Liquor Licenses and Control that agency deny a liquor license for the facility.
The destroyed notes may create problems for Banan beyond their effect on the ongoing litigation over the Glendale casino.
“Banan’s destruction of his notes was all the more egregious because they were public records protected by the Arizona Public Records Law,’’ Charlton write. “As such, Banan knew, or certainly should have known, he had a legal obligation to preserve them.’’
A spokesman for the Department of Gaming said it would have no response to any matters pending in court.