State Gaming Director Daniel Bergin said his state-assigned attorney did nothing wrong or illegal in destroying notes of his May 2015 meeting with officials of tribes trying to undermine the Tohono O’odham casino in Glendale.
In legal papers filed in federal court, Bergin said through outside counsel that Roger Banan, an assistant attorney general, took the half page of notes solely to brief him after the meeting. More to the point, Bergin said it was Banan’s practice to destroy such notes after the briefing.
In making the claim, Bergin is trying to do more than argue that Banan did not violate the state’s Public Records Law.
There are implications if U.S. District Court Judge David Campbell rules the notes were intentionally destroyed to keep them from getting into the hands of Tohono O’odham legal counsel. The judge could conclude that what was in them backs the tribe’s contention that Bergin was illegally conspiring with other tribes who do not want full-blown gaming at the Desert Diamond West Valley Casino.
Potentially more significant, Campbell could block Bergin from claiming he’s legally entitled to block full-scale gambling at the site based on his contention that the tribe committed fraud.
The outcome of the lawsuit is important to the tribe and could determine the future of the casino.
It opened last year, but only with Class II gaming that is not regulated by the state. That limits it to games like bingo and machines that while they look like slots actually operate as interconnected instant bingo games.
But the tribe wants Class III gaming to add real slot machines as well as poker and blackjack, which attract more customers.
It cannot do that, however, until it gets the required certification from Bergin’s agency, something he has refused to provide. So the tribe filed suit.
Bergin, in seeking to have the lawsuit dismissed, claims the tribe hid the fact that it already was looking for a casino site in the Phoenix area in 2002 even as voters were being told that their approval of a ballot measure would ensure no new casinos in the area. Bergin contends that makes it legally unfit to operate the casino.
The notes at the heart of the fight stem from at least one meeting Banan had with officials and lawyers of other Phoenix area tribes who are competing for the same business.
Lawyers for the Tohono O’odham contend the notes, which they learned about later by questioning Banan, would show Bergin and his agency are illegally conspiring with those other tribes. But since they’re not available, the Tohono O’odham want Campbell to presume that’s what they would say.
In the new filings, attorney Matthew Hoffman, hired to represent Bergin in the legal fight, urged Campbell to reject that claim.
First, he said that Banan took the “short notes’’ solely to brief Bergin, who did not attend the meeting “and discarded the notes after he had done so, consistent with his usual practice.’’
Anyway, Hoffman said, the Tohono O’odham had not yet filed this lawsuit against Bergin when the meeting occurred.
“Mr. Banan had no duty to preserve his notes because he did not believe — and could not reasonably have been known — that his brief notes could even potentially be relevant to any future lawsuit,’’ Hoffman told the judge.
He said the notes concerned what Banan construed as suggestions by Donald Pongrace, a lawyer hired by the Gila River Indian Community, who proposed actions Bergin could take to halt the Tohono casino. And Hoffman said Banan said he dismissed Pongrace’s suggestions “out of hand.’’
It turns out, however, one of Pongrace’s suggestions was to send letters to companies that provide equipment to legally authorized casinos warning them they would lose that state-authorized privilege if they sold items to casinos not authorized by the state. The Tohono contend that was designed to scare off suppliers.
Hoffman said the decision to send those letters was made by the Gaming Department before the May meeting. But evidence produced by the Tohono show they did not go out until a month later.
If the judge doesn’t buy the argument that Banan had no duty to preserve his notes, Hoffman has a legal fallback position he hopes will convince the judge not to assume the worst about what was in those notes: Banan didn’t do it to harm the Tohono O’odham.
“He did not discard them with a culpable state of mind,’’ Hoffman argued.
“Mr. Banan’s usual practice is to take notes for the purpose of advising Director Bergin, and to discard those notes after the briefing is complete,’’ the attorney wrote. “Mr. Banan followed that routine practice here.’’
Hoffman also brushed aside the contention that Banan, as a state employee, violated the Public Records Law.
“That law does not require that public officers like Mr. Banan preserve all documents but instead makes clear that all officers and public bodies shall maintain only those records that are reasonably necessary or appropriate to maintain an accurate knowledge of their official activities and of any of their activities which are supported by monies from this state,’’ he wrote.
Hoffman gave the judge a couple of other legal theories to consider.
One is that Banan’s note were privileged “because he took them with the intention of sharing their contents with his client, for the purpose of providing legal advice and providing information related to that advice.’’ And Hoffman also said the notes “constituted work product because they reflected his mental impressions regarding what to write down during the meeting he attended.’’