No. 83-309
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
DENNIS P. WELSH,
Plaintiff and Appellant,
THE CITY OF GREAT FALLS,
MONTANA, a municipal corp.
of the State of Montana,
Defendant and Respondent.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John M. McCarvel, Judge presiding.
COUNSEL OF %CORD:
For Appellant:
Graybill, Ostrem, Warner & Crotty; Donald R. Ostrem,
argued, Great Falls, Montana
For Respondent:
David V. Gliko argued, City Attorney, Great Falls,
Montana
Submitted: ~ecember8 , 1963
Decided: October 1, 1984
Filed:
Clerk
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court .
Plaintiff, Dennis P. Welsh, appeals from a judgment of
the Cascade County District Court denying him all relief on
his complaint against the City of Great Falls for wrongful
termination as a fireman. Welsh alleged that his termination
on August 1, 1980, was without cause, had failed to follow
the statutory procedures for termination of firemen, and that
because he had a property interest in his employment, he had
been denied hearing rights guaranteed to him by the Due
Process clauses of the United States and Montana
Constitutions. Although we hold that the statutory scheme
for termination of firemen did not apply to Welsh where bad
health is the alleged reason for the termination, we also
hold that Welsh did have a property interest in his position
as a fireman and therefore that he could not be terminated
without the opportunity for a hearing before an impartial
tribunal. We do not reach the question of cause for his
termination because that can only be resolved after a proper
hearing or after Welsh has properly waived an opportunity for
another hearing.
On a separate but related issue, we hold that Welsh is
not entitled to payment for all of his accumulated sick
leave, as he contends, but is entitled only to the amount set
by statute--one fourth of his accumulated sick leave (section
2-18-618(5), MCA). This issue is decided now in order to
avoid a possible further appeal where the issue is raised
once again.
The trial court ruled that the applicable statutes did
not give Welsh any hearing rights where bad health is the
alleged reason for termination, that a series of meetings
Welsh had had with his superiors after his health had become
an issue, together with the opportunity for an exit interview
with the personnel department upon his termination, were
sufficient to meet the demands of due process under the
Fourteenth Amendment. The trial court did not rule on
Welsh's claim that his rights to due process under Art. 11, 5
17, to the Montana Constitution were violated. Finally, in a
bare-bones a11-inclusive finding, the trial court ruled that
"the Plaintiff (We1sh) acknowledged his physical incapacity
and consented to retire." We hold that under Art. 11, S 17,
of the Montana Constitution, Welsh was denied his right to
opportunity for a hearing before an impartial tribunal before
he could be lawfully terminated for health reasons.
Plaintiff Welsh began his career as a Great Falls
fireman when he was appointed to a six-month probationary
period on March 11, 1963. After the probationary period,
Welsh was nominated and appointed to serve as a full-time
Great Falls fireman. In 1971, however, a benign brain tumor
was discovered in Welsh's left temporal lobe. He underwent
two successful operations to have the tumor removed, and was
placed on medication to control seizure attacks. Welsh
returned to duty after a six-month layoff. Welsh was given
an office job in the fire prevention bureau for the first
year after his return, but was later returned to active
firefighting duties. In 1973, Welsh passed the examination
for the rank of captain and was promoted to that rank.
In 1977, Welsh suffered a severe seizure at the station
house shortly after he had returned from a fire. Accord-ing
to the testimony of a fellow fireman, Welsh passed out in the
cab of the fire engine just as it was pull-ing into the
station. After this incident, Welsh's medication dosage was
increased to attempt to prevent further seizure attacks.
Three years later, during a drill on July 21, 1980, Welsh was
hospitalized for what was diagnosed by the emergency room
doctor as "heat exhaustion." Welsh was inside a burning
structure and apparently became disoriented and confused, had
glazed eyes and was sweating profusely.
After the July 21 incident, Welsh had three meeti~qs
with the fire chief, the final one resulting in the fire
chief handing Welsh a termination letter effective August 1,
1980. Welsh was also offered an exit interview with the
personnel department before his employment terminated, but he
declined the interview. The City argues that Welsh did not
have a property interest in his position as a fireman, and
also that the statutes providing hearing rights to firemen
before their termination do not apply, if the alleged reason
for termination is for physical incapacity. But assuming the
statutes do apply to termination for physical incapacity, the
City argues that the three meetings, together with the exit
interview that Welsh declined, were sufficient to compl-y with
the spirit of the statutes.
The first meeting took place in the fire chief's office
that day after the July 21, 1980, incident that resulted in
Welsh's temporary hospitalization for either a seizure or
heat exhaustion. Present were Welsh, fire chief Mike
Kal-ovich, and Lee Bright, the operations officer. The
emergency room doctor had released Welsh but the fire chief
nonetheless told Welsh that he should have a physical
examination. The fire chief asked and obtained permission
from Welsh to speak to Wel-sh's doctor, Dr. Douglas Brenton.
They also discussed the report from the officer in charge of
the July 21 fire drill, as well as letters from other
firefighters who were present at the drill and had observed
Welsh's physical reactions during the drill.
The second meeting took place 10 days later (on July 31,
1980) in the fire chief's office after the fire chief had met
with Welsh's doctor, Dr. Brenton. Welsh, the fire chief, and
the operations officer were present again. The fire chief
confronted Welsh with Dr. Brentonrs letter and Welsh
acknowledged that he had suffered more seizures than were
known to the fire chief. When the fire chief suggested that
he retire, Welsh replied that if he were in the fire chief's
position he "would do the same thing." The City relies on
this statement as proving that Wel-sh consented to retire.
The third and final meeting was five days later, August
5, 1980, when the fire chief handed Welsh his termination
letter containing an effective resignation date of August 1,
1980. At the hearing in District Court Welsh testified that
when he was given this termination letter he did not consent
to his retirement and that he was never told he had a right
to a hearing. The City concedes Welsh was not told he had a
right to a hearing.
Finally, before the dismissal became final., Welsh was
offered the traditional exit interview before the personnel
board, but he declined the opportunity for an interview.
Apart from his due process argument, Welsh argues that
section 7-33-4124, MCA, gives him a right to a hearing before
termination. The City argues that this statute does not
apply to a firefighter's termination for bad health, and
alternatively, that if it does apply, Welsh was familiar with
all of the fire department regulations because he was a
training officer, and therefore that Welsh waived his right
to any hearing provided by the statute.
The statute on which Welsh relies, section 7-33-4124,
MCA, must be read in conjunction with sections 7-33-4122 and
7-33-4123, MCA. Section 7-33-4122, provides for the
appointment of a firefighter and states that the firefighter
shall hold the appointment during good behavior and as long
as he is physically able to perform the job. The following
statute, section 7-33-4123, authorizes the fire chief to
suspend a firefighter for "neglect of duty or a violation of
any of the rules" of the department. The next statute, the
one on which Welsh relies, simply provides for the procedures
to be used. where a fireman is suspended for neglect of duty
or for violating fire department rules.
Section 7-33-4124, provides in pa.rt:
(1)
l8 In all cases of suspension the person
suspended must he furnished with a copy of the
charge against him, in writing, setting forth
reasons for the suspension. Such charges must be
presented to the next meeting of the council or
commission and a hearing had thereon, when the
suspended member of the fire department may appear
in person or by counsel and make his defense to
said charges . . ."
Clearly, this statute provides no hearing remedy for one
who is terminated for physical disability. Reading the three
statutes together, as we must, they apply only to situations
where neglect of duty or violation of rules is the alleged
reason for termination. However, notwithstanding this
statutory deficiency, we hold that section 7-33-4122, creates
a property interest in positions such as that of fireman once
the probationary period is satisfied, and therefore that
Welsh could not be terminated without first being given the
opportunity for a hearing before an impartial tribunal.
Contrary to the City's argument, the statutes applicable
to Welsh do not create an employment terminable at the will
of the employer. Sections 7-33-4101, et seq. , MCA, control
the appointment and. continued employment of a municipal
firefighter in a first class city such as Great Falls.
Section 7-33-4122, MCA, provides that once an appointed
firefighter has successfully completed his six-month
probationary period, the mayor or city manager shall nominate
the firefighter for service and the firefighter ". . . shall
thereafter hold (his or her) respective appointments during
good behavior and while they have the physical ability to
perform their duties." Clearly, unless a firefighter
neglects his duty or violates fire department rules, or
becomes physically disabled, his employment cannot be
terminated. Under section 7-33-4122, firefighters hold their
appointments as long as they are physically able and as long
as they do not neglect their d.uties or violate the rules.
Absent neglect of duty, bad conduct, or physical disability,
the appointment of a firefighter lasts until voluntary
termination or until retirement.
Our holding that a firefighter has a property interest
in his positior! insofar as the due process clause of our
state constitution is concerned, was presaged by the case of
State ex rel. Driffill v. City of Anaconda (1910), 41 Mont.
577, 111 P. 345, where this Court in interpreting section
3327, R.C.M. 1947, a predecessor to section 7-33-4113, MCA,
stated that the statute "does secure to every paid fireman -
a
right to his position." (Emphasis added.) 41 Mont. at
580-581. Although this statement arose in the Court's
discussion of the propriety of a mandamus action brought by a
fireman who was wrongfully discharged, and who sought
reinstatement, it is clear that even in 1910 the statute
secured to a firefighter "a right to his position." The
Court recognized then, as we must, the civil service status
of firemen in holding that the statute secured to firemen a
"right" to his position. Here, there is also a "right" to
the position, subject to the conditions of the statute.
Nor do the City's arguments convince us that the hearing
requirement was somehow satisfied or that Welsh waived his
right to a hearing. The argument that the meetings between
Welsh and the fire chief and operations officer satisfied the
hearings requirement cannot be taken seriously. Neither the
fire chief nor the operations officer was part of an
impartial tribunal, and in fact they were part of the
accusatory and confrontational process seeking Welsh's
termination--regardless of whether they had good cause. Nor
does the offer of the City to give Welsh an exit interview
before the personnel board constitute any kind of hearing
opportunity. The exit interview could not have given any
redress to Welsh, but at most would have been a forum before
which he could present his grievances. This in no way
constitutes a fair hearing as required by our due process
clause.
Finally, the City argues that Welsh waived his rights to
a hearing. Although the City's arguments are d-irected more
to the statutory provisions for hea.ring, which this Court has
found inapplicable to a suspension for health reasons, we
nonetheless discuss the City's waiver arguments in the
context of the constitutional hearing requirement. The City
could prevail on the waiver issue only if it had proved that
Welsh knew h.e had a constitutional riqht to a hearing and
that he voluntarily waived that riqht--a waiver being a n
.
intentional relinquishment of a known right. Gerard v.
Sanner, et al. !1940), 110 Mont. 71, 103 P.2d 314. Although
a waiver can be express or implied by conduct, in either case
it was the City's burden to prove that Welsh waived his right
to a hearing. Here the City admits that it did not advise
Welsh of his right to a hearing, and there is no evidence to
prove that Welsh had independent knowledge of his right to a
hearing. For these reasons the City's waiver argument must
fail.
Welsh argues also that he was not given his full
allotment of sick leave benefits as required by statute, and
that these sick leave benefits are a property right that was
denied him in this case. Upon his termination Welsh was
given one-fourth his accrued sick leave benefits. The
statute requires that upon the termination of employment, the
employee is entitled to one-fourth his accrued sick leave
benefits (section 2-18-618 (5), MCA) . Welsh argues, however,
that the statute speaks only to the situatjon where one
voluntarily terminates his employment rather than to one who
is terminated by the employer. He argues that because the
statute does not cover his situation, he is entitled to his
full accumulated sick leave and that he has been denied a
property right if not given his full allotment.
We normally would not discuss this issue because of our
dispostion of the primary issue that requires the City to
give Welsh a hearing on whether cause exists to terminate him
for bad health. However, if it is decided that cause exists
to terminate Welsh, the issue of whether Welsh is entitled to
his total accumulated sick leave or to one-fourth of his
accumulated sick leave, is still one that must be decided.
This is true even if after an adverse ruling on the main
issue, Welsh decided not to appeal. It is proper then, to
decide the issue now.
Welsh's argument is based on a misplaced reliance on
section 2-16-621, MCA, and on a strained construction of
section 2-18-618(5), MCA. In relying on section 2-16-621,
MCA, Welsh argues that the statute expressly allows him
payment for al.1 accumulated sick leave. However, the statute
applies only to accumulated vacation benefits. It provides
in substance that where one is terminated by the employer the
employer must pay the employee for accumulated vacation
benefits. And in relying on section 2-18-618 (5), Welsh
places a most unreasonable construction on the meaning to be
given to the failure of the statute to mention involuntary
termination. The statute gives one-fourth of the accumulated
sick leave pay to an employee who terminates employment or
who retires, but it does not mention the case of involuntary
retirement. Wel-sh's contention that he therefore is entitled
to full. payment for accumulated sick leave because the
statute does not mention involuntary termination, is strained
at best. A more reasonable construction of the statute's
goal is that upon termination of employment for whatever
reason, the employee is entitled to one-fourth of his
accumulated sick leave. The statute makes no distinction
between vol.untary or involuntary termination.
We vacate the judgment of the District Court and remand
with directions that the case be sent to the City of Great
Falls so that they may take the necessary steps for a hearing
that accords Welsh his due process rights. Welsh was clearly
improperly terminated. It is of no force and effect, and
therefore void. He is therefore entitled to full pay and
benefits from the time of his termination until the final
disposition of this case.
We do not hold that the City has no authority to suspend
a firefighter for health reasons. But we do hold that when
it is done, the firefighter's employment does not terminate
until such time as he is either given a hearing in accordance
with due process requirements or he waives his right to a
hearing. Neither of those situations exists here.
We vacate the judgment of the Dictrict Court and remand
with directions.
We Concur:
Justices
Mr. Justice John Conway Harrison, dissenting.
I respectfully dissent.
I would first hold that there was sufficient cause to
terminate the appellant due to his physical impairment.
Given his admitted condition, the City had, in my opinion,
an unrestricted right to terminate him under section
7-33-4107, MCA, (which applies to the qualifications for the
office that he held), and section 7-33-4122, MCA. In my
opinion, sections 7-33-4121 and 71-33-4124, MCA do not apply
to termination, only to the suspension for neglect of duty
or violation of fire department rules. I would find that
the appellant had an opportunity for a hearing as provided
by our law and it was waived by him.
As noted by the majority opinion, the principal
question here is whether the appellant had a property
interest in his job such that he can only be terminated by
complying with due process requirements, citing Reiter v.
Yellowstone County, Montana (1981), 627 P.2d 845, 38 St.Rep.
686. Here the District Court found that the appellant
voluntarily retired, so in my opinion the issue of a
property interest and due process issue need not be
discussed.
Having so found I would find no necessity to discuss
the second issue raised herein.
I would uphold the finding of the District Court.
I join in the foregoi i s s e n t of Mr. Justice John
U
Conway Harrison.
Mr. Justice Fred J. Weber dissents as follows:
I respectfully dissent from the majority opinion which
concludes that plaintiff was terminated in violation of his
due process rights. The majority opinion correctly concludes
that plaintiff had a property right protected by the due
process clause. However, the majority opinion contains no
analysis of what process is due plaintiff under the
circumstances of this case a-nd fails to balance the competing
rights of plaintiff and defendant.
The majority appears to conclude that because the
plaintiff has a property right in his employment, he is
automatically entitled under the Montana Constitution to a
pretermination hearing. This conclusion is contrary to
federal constitutional law on this point. While this Court
may interpret the Montana Constitution as providing more
protection than the United States Constitution, the majority
has completely failed to explain its reasons for applying a
stricter rule in this case, requiring back pay and a
pretermination hearing. The majority opinion cites no
authority for this conclusion.
The United States Supreme Court applies a two-part
analysis to resolve due process issues. The Court first
determines whether the governmental entity involved has
deprived the individual of a constitutionally recognized
liberty or property interest. See, e . g . , Board of Regents of
State Colleges v. Roth (1972), 408 U.S. 564, 92 S.Ct. 2701,
33 L.Ed.2d 548; Perry v. Sindermann (1972), 408 U.S. 593, 92
S.Ct. 2694, 33 L.Ed.2d 570. If the individual has been
deprived of a liberty or property interest, the Court must
then determine what process is due under the circumstances.
See, e.g., Goldberg v. Kelly (1970), 397 U.S. 254, 90 S.Ct.
1011, 25 L.Ed.2d 287; Mathews v. Eldridge (1976), 424 U.S.
"Process" is not a clearly defined term and the nature
and timing of the procedure required by the due process
clause depends on many factors concerning the individual
deprivation. J. Nowak, R. Rotunda and J. Young,
Constitutional Law at 498 (1978). The Court uses a balancing
test to determine what process is due and considers three
factors in this analysis:
". . . our prior decisions indicate that
identification of the specific dictates of due
process generally requires consideration of three
distinct factors: first, the private interest that
will be affected by the official action; second,
the risk of an erroneous deprivation of such
interest through the procedures used, and the
probable value, if any, of additional or substitute
procedural safeguards; and finally, the
Government's interest, including the function
involved and the fiscal and administrative burdens
that the additional or substitute procedural
requirement would entail." Mathews v. Eldridge
(1976), 424 U.S. at 334-35, 96 S.Ct. at 903, 47
L.Ed.2d at 33.
The majority has considered only the first of these three
factors.
Considering all three factors of the analysis, j t is
.
clear that the requirements of due process would be satisfied
in this case by a post-termination hearing. While the
plaintiff has a substantial property interest at stake, the
risk of erroneous deprivation of that interest through the
procedures used by the defendant in this case is nearly
nonexistent. There was no dispute between the parties that
the plaintiff was physically unable to continue w0rkin.g as a
firefighter. That was the conclusion of his own doctor.
Under section 7-33-4122, MCA, plaintiff, as a firefighter,
holds his appointment with the City "while [he has] the
physi.ca1 ability to perform [his] duties. " Without dispute,
plaintiff no longer had the physical ability to perform his
duties. For the protection of fellow firefighters, the
public, and the City itself, the defendant was required to
terminate plaintiff if he did not resign voluntarily. It is
obvious that under these facts, "additional or substitute
procedural safeguards" would have had no "probable value."
The majority opinion has not considered the interests of
the City in the fiscal and administrative burdens imposed by
the pretermination hearing requirement in this case. Even
though it is undisputed that plaintiff was physically unable
to work as a firefighter, the majority opinion requires the
City grant plaintiff full and benefits from the date
of the termination to the final disposition of the case. The
City will be required to provide a hearing, the requirements
of which are not specified in the majority opinion, to
determine an issue that is already determined beyond dispute.
This places fiscal and administrative burdens on the City
which simply are not justified in this case.
I disagree that due process requires a pretermination
hearing in this case. Cf. Arnett v. Kennedy (1974), 416 U.S.
134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (no due process
pretermination hearing requirement for government employee
under facts of that case). I would hold that the
requirements of due process would best be served by a
procedure which fairly balances the interests of the parties
as follows:
(1) A post-termination hearing, with all due
process rights, at which the plaintiff fireman and
the defendant City could present all of the facts.
If my conclusion that the termination was proper is
incorrect, then an award could properly be made to
the plaintiff granting him back pay from the date
of termination.
(2) If the termination is found to have been
proper, then the City would not be penalized by the
payment of compensation to the plaintiff from the
date of termination.
This procedure would fully protect the interests of the
plaintiff. I would remand t h e c a s e f o r a p p l i c a t i o n o f t h i s
procedure.