Tribes May Get Allies on Panel

With the clock ticking on the Davis administration, the governor’s office is offering last-minute concessions to the state’s powerful casino tribes by moving to change the balance of the gambling control commission and oust its top legal advisor, according to the commission chairman.

Acting Chairman Arlo Smith said he was asked last week by a Davis administration official to fire the board’s general counsel, who earlier this year had been singled out by an Indian leader as a source of antagonism for casino tribes.

Smith said that he had refused to ax Pete Melnicoe, but that the official had then told him that the governor had no choice but to appoint two new commissioners who would support the ouster.

Davis press secretary Steven Maviglio said Saturday that he could not confirm or deny the call. However, he said the governor’s appointment secretary, Michael Yamaki, had told him that Yamaki was unaware of any such conversation. Maviglio said Davis would not be making any more appointments that require Senate approval unless Senate President Pro Tem John Burton (D-San Francisco) notifies Davis that Burton will call the body back into session while Davis is still governor.

Members of the five-member commission are appointed by the governor, subject to Senate confirmation. The commission -- which is charged with supervising all gambling establishments and ensuring that they are not owned or managed by people deemed a threat to the public health, safety or welfare -- has two vacancies. Commissioners also oversee a revenue-sharing trust fund to which tribal casinos must contribute.

Smith confirmed the incident after a former commission chairman and anti-gambling activist complained to reporters about the ouster effort. Smith, a Davis appointee, refused to say who had approached him.

Several of the state’s biggest gambling tribes contributed more than $10 million to oppose the governor’s recall and to support foes of Gov.-elect Arnold Schwarzenegger. During the campaign, Schwarzenegger angered the tribes with ads accusing his opponents of pandering to Indians and not taxing their casinos. Davis himself has received $1 million in political donations from tribes this year.

At a news conference last week, Schwarzenegger called on Davis to stop making appointments or signing bills that could change the direction of state government. The new governor is expected to take office once the election has been certified, which must be on or before Nov. 15. When asked to comment on the possibility that Davis would appoint new gambling commissioners, a spokesman for Schwarzenegger said the incoming governor would take it as an act of bad faith if Davis filled the commission with his appointees.

“Gray Davis has pledged to make a smooth transition to a Schwarzenegger administration,” said Sean Walsh, a spokesman for the governor-elect. “Clearly the gambling control commission plays an important regulatory role, and, with respect to the vacant appointments, we hope and expect they will be available to the Schwarzenegger administration.”

A Davis spokeswoman acknowledged that the administration was still looking for candidates to fill the vacancies on the gambling commission. Terms of commissioners can range from two to four years.

Former Commission Chairman John Hensley said he had learned of the attempt to fire Melnicoe from tribal sources. He described the general counsel as an excellent lawyer who just wanted to do things by the book.

Smith -- a former San Francisco district attorney and a top state Justice Department official under four attorneys general -- said he had been approached by a top administration official on Wednesday, the day after voters recalled Davis and named Schwarzenegger as the governor’s successor.

“I told him Melnicoe was an outstanding attorney and I could not terminate him,” Smith said. “I reminded him that it required three votes of the commission, and that’s when I was told” the two vacancies would be filled by anti-Melnicoe appointees and “there would be five members of the commission within a week or so.”

Last month, Davis drew fire from public policy watchdogs and academics for proposing that Indian tribes choose the new members of the commission.

Davis made the proposal behind closed doors during a session with tribal casino leaders in the midst of the recall battle. The proposal was criticized even by a few Indian leaders, who considered it an attempt to keep tribes from supporting the removal of the governor.

In recent months, Davis has made more than 350 appointments to dozens of state regulatory boards and commissions overseeing such things as universities, police officer training and parks. Before his recall election campaign began, the governor averaged 54 appointments a month. Since then, he has averaged 89 a month.

Board counsel Melnicoe said he was aware of the administration’s request that he be terminated.

The attorney has been under attack from tribal leaders for much of the year. In a May article in Indian Country Today, a national newspaper that reports on Native Americans, the chairman of the Pechanga Band of Mission Indians said the increasingly frosty relations between Davis officials and Native Americans could be soothed if Melnicoe moved on. Tribal Chairman Mark Marcarro did not return phone calls from reporters.

Deron Marquez, chairman of the San Manuel Band of Mission Indians, agreed last week that Melnicoe had clashed with tribes. “I don’t want to say he was anti-Indian. I just don’t think he understands Indian tribes or their operations,” said Marquez, whose band has long been at odds with the commission.

Marquez said Melnicoe and other commission officials had been too zealous in regulating Native American casinos, pushing beyond the bounds of the 1999 compact that acts as a blueprint for governing relations between the state and gambling tribes. “These guys had the attitude we knew nothing and they knew everything,” he said.

Boosters of Melnicoe said he frequently favors a strict interpretation of the law, and that has stood in the way of what some tribes wanted to do.

Cheryl Schmit, director of Stand Up for California, a group opposed to casino expansion, said she had also heard that Smith had received the call from the governor’s office.

Melnicoe is the second official to face removal after being criticized by powerful Indian leaders. Over the summer, Davis reassigned David Rosenberg, the administration’s point man on gambling, at the request of Indian leaders.

Former chairman Hensley resigned last April, a move that casino leaders openly applauded. Since then, the deeply divided commission has been unable to resolve any controversial issues, routinely splitting 2 to 1, with Smith and Commissioner J.K. Sasaki calling for stronger regulation than Commissioner Michael Palmer believes necessary. It takes a majority of three to make a decision.

A commission reconstituted by Davis would be in a position to decide several key issues, most notably a simmering high-stakes dispute over how much Indian casinos pay the state each year as part of their gambling agreement.