Osage Nation Attorney General Clint Patterson ruled Feb. 2 that Mark Simms, the longtime Gaming Enterprise Board member who resigned one day then rescinded his resignation four days later is not, in fact, a member of the board anymore.
Alice Goodfox, the Speaker of the Congress, posed the question to the Nation’s top legal officer.
Patterson’s opinion was direct. “No, Mark Simms is not a Gaming Enterprise Board member as he resigned his board position creating a board vacancy and cannot legally rescind his resignation as this creates an unallowable reappointment to the Gaming Enterprise Board,” says Patterson’s short answer to Goodfox.
“Per the Constitution and Osage law, only the Principal Chief can fill a vacancy by appointment or reappoint a member to the Gaming Enterprise Board, with subsequent confirmation by Congress, and that did not happen.”
Patterson’s opinion comes just days before Congress’ Commerce, Gaming and Land Committee is poised to hold a three-day hearing that starts Feb. 7. The purpose of the hearing is to investigate casino policies and oversight of executive expenses, concerns that arose after expense reports from casino executives showed what some deemed excessive spending by Byron Bighorse, the former CEO of the casinos who resigned right before the reports came out publicly in early December.
Simms has been a defender of Bighorse, whom he credits with steadily increasing casino revenues and thus tribal distributions during his eight years as CEO. (Bighorse, the son-in-law of Principal Chief Geoffrey Standing Bear, previously was a casino manager.)
When he tried to rescind his resignation from the board, Simms said he had been prompted to do so because the Osage Nation Gaming Commission had refused to allow him to surrender his gaming license – which gives regulators some leverage over him as the Commission continues to investigate expense reporting.
When he resigned, Simms wrote that his business, Accent Pest Control, had an 8(a) federal contract that he felt might put his gaming license in jeopardy.
When he tried to rescind his resignation, Simms said the Gaming Commission’s decision to refuse to accept his license was a larger message to him.
“I feel this might be a blessing as I put the contract as priority and I should have been standing with my Board no matter what the outcome is good or bad.
“As I have spoken with you and each Board member you all have expressed the respect for me and have encouraged me to stay on the board. Thus, I would feel honored to come back to the Gaming Board and help deal with these uncertain times so we can continue making record profits for our Osage people.”
Patterson wrote that Osage law has no provision allowing Simms to change his mind after he resigned on Jan. 20 “effective immediately.”
“Upon tendering his resignation, the GEB position became vacant,” Patterson wrote. “Per the Act, only the Principal Chief can make new appointments to the GEB due to board vacancies.
“… Any rescission of one’s resignation is legally indistinguishable from a reappointment to the GEB, a power reserved exclusively to the Principal Chief.”
Simms has been subpoenaed to appear before the Congressional investigative hearing on Feb. 9 along with the current board Chairman Geoff Hager, board member Julie Malone and former chairman Mark Revard, the latter of whom raised alarms about expense reports.
The hearings are set to begin Feb. 7, when eight past and present casino employees, along with Chief Standing Bear’s executive assistant, have been subpoenaed. The Day 1 witnesses include Bighorse, and his wife, former casino marketing director Jennifer Bighorse, plus other casino brass. It is questionable that Congress has the power to subpoena former employees, but as of Feb. 2, no one had filed a motion to quash any subpoenas in Osage Nation Trial Court.
On Feb. 8, witnesses will be from the regulatory side: Elizabeth Hembree, the director of the Gaming Commission, and Patrick O’Brien, the director of regulatory compliance for Osage Casinos.
The hearings will be streamed on the Osage Nation Congress’ home page, https://www.osagenation-nsn.gov/who-we-are/legislative-branch/live-media, and will be available thereafter at Mixlr.com.