No. 87-297
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
FRED EASY,
Plaintiff and Appellant,
THE STATE OF MONTANA DEPARTMENT
OF NATURAL RESOURCES AND
CONSERVATION and THE STATE OF MONTANA,
Defendants and Respondents.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis And Clark,
The Honorable Gordon R. Bennett, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Robert T. Cummins, Helena, Montana
W. William Leaphart, The Leaphart Law Firm,
Helena, Montana
For Respondent:
John H. Maynard, Tort Claims Division, Department of
Administration, Helena, Montana
Submitted on Briefs: February 25, 1988
Decided: March 31, 1988
Filed: MAR 3 1 1988
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This case arose in the First Judicial District Court,
Lewis and Clark County, Montana. Fred Easy, hereafter the
plaintiff, appeals from the District Court's instruction to
the jury that a laid-off state employee is entitled to a
"tie-breaker" preference in rehiring by state agencies. The
plaintiff argues that the state employment policy affords him
an absolute preference in rehiring by the State. The State
contends that the intent, interpretation, and constant
application of the policy has been as a tie-breaker
preference, i.e. giving laid-off state workers a preference
if they are as qualified as other finalists. The District
Court accepted the State's argument and issued its proposed
instruction. We affirm.
The parties have submitted an agreed statement of the
record, pursuant to Rule 9(e), M.R.App.P., in lieu of the
complete transcript. That statement of the record reflects
that plaintiff lost his job with the Department of Natural
Resources and Conservation (DNRC) during a reduction in
force. His position never was reopened and consequently he
never was offered reinstatement. He applied for various
other positions at DNRC and other state agencies but never
was offered any of those jobs. He then filed a wrongful
discharge action in the First Judicial District Court, Lewis
and Clark County, alleging that DNRC and other state agencies
failed to abide by his preferred re-employment status as a
former state employee under state policy on reduction in
force. The relevant portion of that policy reads:
E. Each agency shall make a concerted
effort to make other agencies aware of
both the names of persons laid off and
their job classifications, and agencies
with vacancies shall give reinstatement
preference to those employees laid off by
other agencies when recruiting for a
specific skill if compatible with their
Affirmative Action Plan and EEO goals.
At trial, the District Court refused to give
plaintiff's proposed instruction number 15. That instruction
read :
If Plaintiff applied for a position with
the State of Montana and met the minimum
qualifications for that position, he was
entitled to an absolute reinstatement
preference for that position and was
entitled to the job.
Instead the court's instruction number 20, originally offered
by the State, read:
If Plaintiff applied for a position with
the State of Montana and met the
qualifications for that position, he was
entitled to a tie-breaker preference for
that position.
The agreed statement of the record indicates that the
Department of Administration's Personnel Division, which had
drafted the policy, intended it to be a tie-breaker
preference and had consistently applied the policy as a
tie-breaker preference.
On appeal, plaintiff analogizes the State's rehiring
policy to the Veteran's Preference Act, 5 10-2-201, et seq.,
MCA (1983). We do not consider that analogy entirely proper
and do not subscribe to the plaintiff's contention that our
decision in Crabtree v. Montana State Library (1983), 204
Mont. 398, 665 P. 2d 231, controls. In Crabtree, this Court
held that a statute, since repealed, that said veterans,
their spouses and dependents, and handicapped civilians
"shall be preferred for appointment and [state] employment"
constituted an absolute preference. Crabtree, 665 P.2d at
234.
The history and application of that statute, as set
forth in the District Court's ruling and adopted by this
Court on review, irrefutably indicated that the veteran's
preference "was born in the wake of World War I ... [and]
it was clear the preference was intended to be absolute."
Crabtree, 665 P. 2d at 234. The section was later amended to
include handicapped civilians, but had remained substantially
unchanged despite nine legislative reviews. The District
Court also noted that this Court in 1941 ruled the veteran's
preference required that a city mayor hire a veteran if the
veteran were qualified for the position. The intent,
history, and application of the statute mandated a ruling
that the preference was absolute. Crabtree, 665 P.2d at 234,
citing Horvath v. Mayor of Anaconda (1941), 112 Mont. 266,
116 P.2d 874.
No such intent, history, or application of the state
hiring policy is evident in this case. In fact, the
statement of the record before us states unequivocally that
the Department of Administration has treated the policy as a
tie-breaker preference. The plaintiff points out that the
agency's interpretation is not binding on the courts.
However, the interpretation of an administrative rule is a
question of law, and thus, one for the court. Montana Power
Co. v. Environmental Protection Agency (9th Cir. 1979), 608
F.2d 334, 344; Culligan Water Conditioning v. State Board of
Equalization (Cal. 1976), 550 P.2d 593, 596; ~orkowski v.
Snowden (Alaska 1983), 665 P.2d 22, 27.
The agency's interpretation of its rule is afforded
great weight, Culligan Water, 550 P.2d at 596, and the court
should defer to that interpretation unless it is "plainly
inconsistent" with the spirit of the rule. Des Moines School
District v. Job Service (Iowa 1985), 376 N.W.2d 605, 609.
The agency's interpretation of the rule will be sustained so
long as it lies within the range of reasonable interpretation
permitted by the wording. Joint Board of Control of the
Flathead, Mission and Jocko Irrigation District v. United
States (D. Mont. 1986), 646 F.Supp. 410, 415.
The hiring policy does not clearly preclude the notion
that it was intended only to resolve situations in which two
persons, one of whom has been laid off from state work, are
equally qualified for a state job. It imposes three
qualifications. First, the agency must know of the laid-off
employee; second, that laid-off employee must have the skills
or training needed for the position; and third, the laid-off
employee is not entitled to the job if he or she would not be
compatible with the agency's affirmative action goals. Those
qualifications preclude any notion of an absolute privilege.
The District Court's interpretation of the policy and its
jury instruction were not in error.
Affirmed.
We concur: