NO. 91-578
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
APPEAL FROM: District Court of the Tenth Judicial District,
In and for the County of Fergus,
The Honorable Peter L. Rapkoch, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Frederick F. Sherwood; Reynolds, Motl, Sherwood and
Wright, Helena, Montana
For Respondent:
Monte J. Boettger, Attorney at Law, Lewistown,
Montana
submitted on Briefs: May 21, 1992
Decided:
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Dale Duane Link alleges that the City of Lewistown failed to
hire him as a firefighter in violation of the Montana Human Rights
Act and the Governmental Code of Fair Practices. The District
Court for the Tenth Judicial District, Fergus County, granted
partial summary judgment for the City. We reverse.
The issue is whether the District Court erred in ruling that,
as a matter of law, 5 7-33-4107, MCA, prohibits the City from
hiring as a full-time firefighter an applicant over thirty-four
years of age who had been serving as a part-paid firefighter and
member of the Firefighters' Unified Retirement System for the City
since before he was thirty-four years of age.
Dale Duane Link began working as a part-paid firefighter for
the City of Lewistown in 1981. Under the City's personnel rules,
regulations, and requirements, part-paid firefighters are appointed
by the fire chief and must serve a six-month probationary period.
They receive a monetary fee for hours or fractions thereof served
in fighting fires and in training.
In 1988, Link applied for a position as a full-time fire-
fighter for the City. The position was not initially publicly
advertised beduse the Fire Chief viewed the pool of qualified
applicants to be the part-paid firefighters. Appointment to this
position required approval by the Mayor and City Council. After
testing and interviews, the Fire Chief sought approval of Link for
the full-time position at the regular Lewistown City Council
meeting of September 19, 1988.
At the meeting, Council members expressed concern with the
interpretation of 5 7-33-4107, MCA, which states that firefighters
"shall not be more than 34 years of age at the time of original
appointment." The statute does not define ttoriginal
appointment."
Link had served as a part-paid firefighter since he was thirty-one
years old, but he was thirty-nine when he applied for the full-time
position. It is undisputed that he met all other qualifications
for the job. After discussion, the City Council directed that the
full-time position be publicly advertised.
Link contacted an attorney who advised the City Council that
a complaint was being filed with the Montana Human Rights Commis-
sion. The matter came before the City Council again at its October
17, 1988 meeting. The Fire Chief informed the Council that he had
publicly advertised the position and that he still recommended that
Link be approved for the position.
After discussion, the Council tabled the matter pending review
by the City Attorney. At a meeting the following month, Council
members agreed to seek the opinion of the Montana Attorney General
on the applicability of the age limitation in 9 7-33-4107, MCA.
The effort to obtain an Attorney General opinion was abandoned
when Link filed a complaint before the Montana Human Rights Commis-
sion in November 1988. In January 1990, that complaint was
dismissed and Link was authorized to file a complaint in District
Court pursuant to 5 5 49-2-509 and 49-3-312, MCA.
Link's complaint in District Court alleges that the City
discriminated against him on the basis of age, political beliefs,
and retaliation. The court originally denied cross-motions for
summary judgment. However, on the parties' joint request for
reconsideration, it granted partial summary judgment to the City on
the age discrimination issue. It relied on the City's argument
concerning the effect of the following language in 5 7-33-4106,
MCA :
The mayor ... shall nominate and, with the consent of
the council or commission, appoint . . .all fire-
fighters.
The court reasoned that because the Mayor and City Council did not
have input into Link's appointment as a part-paid firefighter, his
appointment to that position was not an "original appointment"
under 5 7-33-4107, MCA. The partial summary judgment was certified
to this Court pursuant to Rule 54(b), M.R.Civ.P.
In this case, the ordinances and personnel rules of Lewistown,
which were approved by the Mayor and City Council, provide that
part-paid firefighters shall be appointed by the Fire Chief. We
conclude that, having delegated its authority to appoint part-paid
firefighters, the City is now estopped from denying the validity of
that delegation of authority.
As a part-paid firefighter, Link has contributed to the
Firefighters' Unified Retirement System (FURS) since 1981. The
legislative history of S 7-33-4107, MCA, shows that concern about
the retirement and disability system was a key reason for setting
a maximum age for original appointment as a firefighter. Because
part-paid firefighters participate in FURS, it is reasonable to
conclude that the legislature intended the maximum age provision to
apply to part-paid firefighters as well as full-time firefighters.
This Court gives deference to interpretations of the Montana
Human Rights Commission concerning the laws which it enforces.
Harrison v. Chance (1990), 244 Mont. 215, 220, 797 P.2d 200, 203.
The Commission has interpreted l'oriqinalappointment" under § 7-33-
4107, MCA, to include appointment as a "part-time volunteer fire-
fighter." Elliot v. City of Helena (1989), Montana Human Rights
Commission Cause No. 8701003108.
A 1991 opinion of the Montana Attorney General further
supports the conclusion that appointment as a part-paid firefighter
may constitute an "original appointmentw under 5 7-33-4107, MCA.
The Attorney General, at 44 Op. ACt'y Gen. No. 8, pointed out that
the limitation on age at the time of original appointment in 5 7-
33-4107, MCA, is preceded by the following language:
The state of Montana determines that age is a valid, bona
fide occupational qualification for the position of
firefighter because of the rigorous physical demands of
the firefighting profession and the expectation of many
years of emergency service.
This provision clearly refers to the right under § 49-1-102, MCA,
to be free from discrimination based on age, as part of the Montana
Human Rights Act. The Attorney General further pointed out that
the Ninth Circuit Court of Appeals has noted the inherent contra-
diction in a policy that establishes a maximum hiring age but makes
no provision for hiring persons over that age with extensive
similar experience. E.E.O.C. v. County of Los Angeles (9th
Cir. l983), 706 F.2d 1039, 1043, cert. denied, 464 U.S. 1073. A
statute should be interpreted to give a lawful result if possible.
Grossman v. State Dept. of Natural Resources (1984), 209 Mont. 427,
682 P.2d 1319; 5 1-3-232, MCA. The interpretation given to 3 7-33-
4107, MCA, by the District Court results in the likelihood that the
statute would violate laws prohibiting age discrimination.
For all of the above reasons, we hold that Link's appointment
as a part-paid firefighter was his "original appointment" under
5 7-33-4107, MCA. Therefore, we reverse the partial summary
judgment and remand to the District Court for further proceedings
consistent with this Opinion.
-. 8-
/MA
-chief Justice
6
We concur:
Justices
Justice Karla M. Gray, dissenting.
I respectfully dissent from the opinion of the majority. The
issue before us requires a straightforward interpretation of the
meaning of noriginal appointment,I1 as that phrase is used in 5 7-
33-4107, MCA, for purposes of determining whether Mr. Link met the
statutory qualifications for firefighters at the time he was
considered and rejected for a position as a firefighter in the City
of Lewistown Fire Department. It is my view that the answer is
equally straightforward: Mr. Link had not been appointed as a
firefighter pursuant to 5 7-33-4106, MCA, before he reached 34
years of age; therefore, he did not meet the statutory
qualifications for firefighters under 5 7-33-4107, MCA.
The majority relies briefly on five different bases, each set
forth in from one to four sentences, to support its result in this
case; this almost complete absence of discussion or analysis
reflects the inherent weakness of the majority's conclusion. An
appropriate statutory analysis mandates a conclusion that the
District Court did not err in granting summary judgment to the
City. That analysis is set forth below, followed by a discussion
of the flaws in the majority's approach.
The statutes relating to municipal fire departments are
contained in Title 7, Chapter 33, Part 41, Montana Code Annotated.
Section 7-33-4101, MCA, authorizes and requires a fire department
in every Montana city and town; those departments are to be
organized and managed as mandated in part 41. The composition of
municipal fire departments and the duties of the fire chief and
assistant chief are set forth in 5 5 7-33-4103 and 7-33-4104, MCA.
Section 7-33-4106, MCA, addresses the manner in which the
chief, assistant chief and all firefighters of the department
mandated by 5 7-33-4101, MCA, must be selected; it specifically
requires the mayor, with the city council's consent, to appoint
each of them to the position. Finally, 5 7-33-4107, MCA, sets out
the qualifications for the position of firefighter; it includes a
determination by the Montana legislature that age is a bona fide
occupational qualification for the position and goes on to require
that firefighters "shall not be more than 34 years of age at the
time of original appointment[.]"
It is the latter statutory requirement that is at issue in
this case. The language is clear and plain. A person cannot be
more than 34 years old when originally appointed to a firefighter
position. Reading this language together with the preceding
statutes governing municipal fire departments can produce only one
result: the "original appointment" refers back to the only
appointment process mentioned in the statutes--the appointment by
the mayor and city council required by 5 7-33-4106, MCA. Applying
this straightforward statutory interpretation mandates a holding by
this Court that the District Court did not err in ruling that the
City was prohibited from hiring a firefighter into its municipal
fire department who was over 34 years old at the time he was being
considered and who had not previously been appointed to a
firefighter position in the manner required by 3 7-33-4106, MCA.
The majority relies in part on § 7-33-4109, MCA, which
specifically relates to supplementary volunteer fire departments,
in reaching its result. Nothing in that statute permits, much less
requires, such a conclusion. No statutory language mandates the
manner in which such volunteers are to be selected. The majority
does not seem to understand what appears so clear to me from the
very construction and organization of these statutes; namely, the
very fundamental differences between full-time, professional
firefighters and fire departments mandated by §§ 7-33-4101through
7-33-4107, MCA, and supplementary volunteer firefighters and fire
departments authorized under 5 7-33-4109, MCA. The members of a
volunteer fire department authorized by 5 7-33-4109, MCA, are
"enrolled members" of such a department, in contrast to
firefighters "appointedn to municipal fire departments. The
volunteerst duties, by statute, are to assist paid fire
departments. And, while it is true, as the majority suggests, that
volunteers are "part-paid," they are not permanent part-time
employees as we ordinarily think of such part-time workers.
Indeed, under 5 7-33-4109, MCA, volunteers are paid only for such
fires as they are called out to assist in fighting; that pay can be
as little as $1 per hour of service.
The majority begins its shotgun approach to this case by
suggesting that because the City's rules and regulations require
part-paid firefighters to be appointed by the fire chief, this
"delegation of authorityn regarding part-paid firefighters estops
the City from denying the validity of that delegation as to full-
time firefighters. As discussed above, the two situations are not
at all comparable. No statutory hiring requirements exist vis-a-
vis part-paid firefighters; a specific statutory requirement--
appointment by the mayor and council--exists for hiring full-time
firefighters. Furthermore, both the fire chief's affidavit in this
case and the City's regulations make it clear that no delegation of
authority exists regarding the hiring of full-time firefighters.
In addition, contrary to the majority's suggestion in this
regard, the City does not attempt to deny the validity of the rules
and regulations regarding selection of part-paid firefighters by
the fire chief with the approval of the full-time firefighters. As
discussed, the two situations are entirely separate. Thus, there
is nothing upon which the City can be estopped. Finally, the
majority's shorthand presentation of the estoppel basis of support
for its conclusion does not indicate whether collateral estoppel,
judicial estoppel or equitable estoppel is being applied, much less
how the required elements for the purported estoppel are met in
this case.
The majority next relies on the legislative history of § 7-33-
4107, MCA, noting that concerns therein about the retirement and
disability system formed part of the basis for the maximum age for
original appointment as a firefighter. From this concern, and
because part-paid firefighters like Mr. Link can contribute to the
FURS, the majority states that it is reasonable to conclude that
the legislature intended the maximum age to apply to part-paid and
full-time firefighters. First, this conclusion seems to be a non
sequitur. The question before us is not whether the age limitation
applies to volunteers; the question is the meaning of "original
appointmentt1
in $ 7-33-4107, MCA. In addition, it is not necessary
to look to the legislative history to determine the meaning of that
statutory language because the language is clear and plain and
susceptible of only one meaning.
Assuming arguendo that resort to the legislative history is
appropriate, it is my opinion that that history supports a result
opposite from that reached by the majority. The concern relating
to the firefighter's retirement and disability situation found in
the legislative history is that, due to the stamina and agility
required and the very hazardous and stressful nature of
firefighting, it is important for firefighters to be able to retire
at a relatively young age--for the sake of both themselves and
their colleagues. In connection with the amendment raising the
maximum hiring age to 34 from 31, professional firefighters
expressed concern that the amendment would move in the wrong
direction, by preventing firefighters from retiring at an earlier
age and keeping them working into more advanced years. These
concerns are not applicable to part-paid firefighters.
The result reached by the majority in this case produces
exactly the result over which concern is expressed in the
legislative history; it allows volunteer firefighters to be hired
on as full-time firefighters at any age, Under the majority's
result, as long as a volunteer firefighter has been selected for
that duty before reaching 3 4 years of age, he or she qualifies f o r
appointment as a full-time professional firefighter at age 40, 45,
50 or even later, notwithstanding the statutory maximum age. This
total gutting of the maximum age qualification clearly is not what
the Montana legislature intended.
The majority next relies on the Human Rights Commission's
Elliott decision. The problem in this regard is that the issue
presently before the Court is not the same issue addressed by the
Commission in Elliott.
The issue in Elliott was whether the age limit for time of
original appointment meant when appointed to a specific fire
department (that is, the one most recently being applied to) or to
any fire department in Montana. The Commission essentially
concluded that "original appointment" under 5 7-33-4107, MCA, means
any fire department in Montana as opposed to the fire department to
which one currently is applying for a position. The Commission did
not address, presumably because it was not raised, the issue before
us here; namely, the meaning of "original appointment" under § 7-
33-4107, MCA, in relation to the "appointment by mayor" requirement
of 5 7-33-4106, MCA.
Elliott involved a person who had been a part-paid firefighter
elsewhere attempting to be hired as a full-time firefighter in the
City of Helena Fire Department when he was more than 34 years old.
Helena asserted that "originally appointed" meant, in that case,
first hired as a firefighter (including as a part-paid firefighter)
by the City of Helena. Elliott asserted, and the Commission
concluded, that the phrase meant first hired by any fire department
in Montana. The Commission was correct in ruling that the original
appointment language is not location specific and, if the same
issue were before us in this case, I would give that conclusion
deference. But the two issues are not the same; therefore, Elliott
is not applicable here.
The majority next states that an Attorney General's opinion
supports a conclusion that appointment as a part-paid firefighter
'9nay1'constitute an original appointment under 9 7-33-4107, MCA.
The Attorney Generalfs opinion provides no support for such a
conclusion. Neither the Attorney General's opinion nor the factual
situation on which it is based relates in any way to part-paid
firefighters.
The fifth and final basis for the majority's conclusion
relates to age discrimination. As with its estoppel position, the
majority's conclusion that the District Court's interpretation of
§ 7-33-4107, MCA, results in the lllikelihoodfl
that the statute
would violate ltlawsll
prohibiting age discrimination is, at best,
shorthand. The majority does not indicate which laws would be
violated or provide any analysis as to how the facts of Mr. Link's
case would result in such a violation.
In this regard, it should be noted that the situation before
us does not violate the federal Age ~iscriminationin Employment
Act. Under the ADEA, it is not unlawful for a political
subdivision employer to refuse to hire an individual because of the
individual's age if the refusal to hire is (1) with regard to
employment as a firefighter and the individual has attained the
maximum hiring age in effect under applicable state law on March 3,
1983, and (2) pursuant to a bona fide hiring plan that is not a
subterfuge to avoid the purposes of the ADEA. 29 U.S.C. 5 623(j).
The maximum hiring age of 34 years was in effect in Montana on
March 3, 1983, and nothing in this case suggests that the
limitation is a subterfuge.
In summary, it is my view that Mr. Link was not appointed as
a firefighter pursuant to § 7-33-4106, MCA, before he reached the
maximum hiring age for that position. As a result, he did not meet
the statutory qualifications for a full-time firefighter. I would
affirm the District Court.
Justice Fred J. Weber joins in the foregoing dissent of
Justice Karla M. Gray.