Tuesday, March 27, 2001 | 10:41 a.m.
The state Gaming Control Board is drawing sharp criticism from the American Civil Liberties Union for its refusal to take action against the Hard Rock hotel-casino over the firing of a whistle-blower.
Harold Langert, fired from his position as a surveillance employee at the Hard Rock last year, had asked the Control Board to take disciplinary action against the hotel-casino. Langert triggered a debate over the arrest procedures of Metro officers after providing a video tape to Metro police showing officers treating a suspect in a belligerent manner.
Upon discovering Langert had leaked the tape, the Hard Rock fired Langert for violating the property's rules regarding the release of confidential information. Langert complained to the control board, arguing property management was not operating the property in a "suitable manner."
On Feb. 26, the control board denied Langert's request.
Gary Peck, executive director of the ACLU of Nevada, said the control board is sending a clear message to casino employees that they won't be protected if they blow the whistle on their employers.
"The message to all gaming employees in the state of Nevada is that they'd better not report wrongdoing to the proper authorities unless they are prepared to suffer serious consequences. That should be disturbing to everyone who cares about the integrity of the industry," Peck said.
But Dennis Neilander, chairman of the Control Board, denies this, saying the control board simply didn't have jurisdiction in the case -- particularly since it did not involve gaming activities.
"We certainly don't want to encourage anyone not to report (potential violations) to the board," Neilander said. "(But) we don't have any statutory authority over those employee-employer things.
"Even if we wanted to, we couldn't have ordered them to give this guy back his job. That's not within our power."
The Hard Rock declined comment on the Langert case.
The case began in March 2000, when Metro officers were called to the Hard Rock to arrest a woman accused of forgery. The woman protested after a male officer touched her leg, and asked why a female officer present couldn't conduct the search. The officers told her to be quiet, then began making fun of the woman.
After no one at the Hard Rock took action to report the incident to Metro authorities, Langert contacted Peck, a childhood acquaintance. Langert made a copy of the surveillance tape for Peck, who then gave it to Metro officials. Langert was promised at the time that his identity would not be disclosed.
After viewing the tape, Undersheriff Richard Winget said the officers had acted in a matter that was "not acceptable," and said the officers had been warned. The incident also prompted Metro to change its search policy; now, female suspects must be patted down by a female officer if one is present.
But word came back to Hard Rock officials that Langert was the source of the tape. As a result, Langert was fired for violating the hotel-casino's policy on the release of confidential materials.
Langert asked the control board to discipline the Hard Rock over his discharge. In a Feb. 26 letter to Langert, control board supervisor Renee Rivera denied this request, noting the Hard Rock's employee manual specifically prohibited release of surveillance tapes without management approval. Rivera then noted that "the Hard Rock Hotel and Casino has policies and procedures which allow for employees who feel any working condition, policy, procedure, or practice are unjust, to bring such concerns to the attention of their management or to the Human Resources department."
"Based on the above information, a violation (of gaming regulations) was not committed by the Hard Rock Hotel and Casino," Rivera wrote.
But Peck argues the confidential materials policy shouldn't be considered an absolute one.
"This isn't a policy that should in every circumstance be followed, in terms of the broader public interest," Peck said. "Weeks went by after the incident and nothing seemed to happen. He reasonably believed, right or wrong, that nothing would be done about it, and went to the proper authorities to ask that something be done."
Indeed, one Nevada agency -- the Employment Security Division -- agrees with Peck's view. Langert's request for unemployment benefits was initially denied by the agency, but was overturned on appeal Feb. 23.
In her ruling, Appeals Referee Shannon Shogren wrote there was no question Langert had violated the confidentiality agreement, but said "extenuating circumstances justifying the claimant's violation" should be considered. She ruled Langert's actions didn't constitute "misconduct," which cancels an employee's right to benefits.
"Since it involved a potential violation of a person's civil rights, (Langert) had a duty as an American citizen to ensure the matter would not be swept under the carpet," Shogren wrote. "There may have been other matters the claimant could have pursued. He simply chose the one most likely to achieve results."
Indeed, Langert attorney Richard Segerblom argues that state law makes it safer for a whistle-blower to go directly to the authorities, rather than through his employer.
This precedent was set in the 1980s, when Jerry Wiltsie, a poker room manager at the Maxim hotel-casino, was fired after accusing his supervisor of illegal activities. Wiltsie made his complaint to Maxim managers, not to outside authorities.
In a 1989 ruling, the Nevada Supreme Court ruled that "public policy protects workers who report illegal activity in their jurisdictions." Yet the high court refused to rule for Wiltsie, who was pursuing a retaliatory discharge claim against the Maxim. Segerblom represented Wiltsie in the case.
"Because (Wiltsie) chose the report the activity to his supervisor rather than the appropriate authorities, he was merely acting in a private or proprietary manner," the court said. "Thus, even accepting (his) allegations as true, he is not protected in this case."
Neilander said the Control Board doesn't want to discourage employees from coming forward with potential gaming violations, saying the agency relies on them to help with enforcement. But as for whether employees should first report the incident internally -- and whether their identity will be protected -- is determined on a case-by-case basis, he said.
"It depends on the nature of the violation, and what procedures are in place governing that (the reporting of potential violations)," Neilander said.
Meanwhile, Langert's not finished with the case. Segerblom said he plans to sue both the Hard Rock and Metro on behalf of Langert within the next several months. The Hard Rock will be charged with retaliatory discharge, while Metro will be accused of negligent misrepresentation in promising to protect Langert's identity, Segerblom said.
But no action is planned against the control board, Segerblom said.
"They're immune," Segerblom said. "It's unfortunate they didn't do anything, but they don't have any legal responsibility."
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