The Arizona State Gaming Director Daniel Bergin insists that the assistant attorney general assigned to his department, Roger Banan, did nothing wrong when he destroyed notes of a secret meeting after giving Bergin a briefing on the meeting in May 2015.
Banan’s actions in destroying his hand-written notes of a meeting that included state officials and representatives of two tribes who opposed the Glendale casino of the Tohono O’odham Nation because it would harm their business are figuring into a lawsuit that the nation has against Bergin, who it is trying to force to certify Class III machines for the tribe, which currently can only offer Class II gaming at its casino.
The nation insists that the 2015 meeting was illegal collusion by the state with the tribes it was supposed to be regulating. According to Bergin, Banan took the notes solely to brief him, and they therefore do not legally constitute a public record, which it is illegal to destroy.
Bergin is trying to prevent U.S. District Court Judge David Campbell from ruling that the notes were deliberately destroyed to get around state public records laws—and to prevent the tribe from seeing them.
The tribe is trying to leverage the notes’ destruction to overcome Bergin’s claim that the tribe committed fraud when in 2002 it agreed not to build a casino in the area that includes Glendale, when it had every intention of building there.
Until the lawsuit is decided, the tribe can only offer Class II gaming, which isn’t nearly as profitable as Class III gaming. Class II games are based on bingo-like games and don’t really use the element of chance.
Banan said he had several meetings with state officials and attorneys for two rival gaming tribes, including the Gila River Indian Community,. Bergin, through his attorney, claims that Banan’s notes were taken solely for his benefit and that he always discards such notes. The notes were taken before the tribe sued the state.
In the argument before the judge, Bergin’s law said, “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.”
To support its case that the state colluded with the other tribes to harm the Tohono O’odham Nation, the nation asserts the Gaming Department sent threatening letters to vendors supplying gaming equipment to the casino, warning them that they wouldn’t be allowed to supply machines to other casinos in the state.
