NO. 94-084
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
IN THE MATTER OF
HOWARD LARRY PHILLIPS,
Petitioner and Appellant,
-vs-
CITY OF LIVINGSTON, a Municipal
Corporation, BILL R. DENNIS, RUTH
EGGAR, LYLE GILLARD, LEE HARRIS,
and PATE MIKESELL, as member of
and constituting the City Council
of the City of Livingston, Montana,
Respondents and Respondents. CL JLitlz
CCaRK~F~~~REMECO”R~
s~~~~ OF MONTANA
APPEAL FROM: District Court of the Sixth Judicial District,
In and for the County of Park,
The Honorable Byron L. Robb, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William F. Frazier, Jr.; Swandal, Douglass, Frazier
& Cole, Livingston, Montana
For Respondent:
Robert L. Jovick, Attorney at Law, Livingston,
Montana
For Amicus Curiae:
Michael J. San Souci, Bozeman, Montana, Attorney
for Montana State Council of Professional
Firefighters, International Association of
Firefighters and Local No. 630, IAFF
Submitted on Briefs: September 15, 1994
Decided: November 29, 1994
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.
This is an appeal from an order of the District Court for the
Sixth Judicial District, Park County, denying Howard Larry
Phillips' (Phillips) petition for a writ of mandamus. We reverse.
We restate the issues raised as follows:
1. Do the city of Livingston's termination hearing procedures
supersede statutory termination procedures for firefighters
established by the state legislature?
2. Is Phillips entitled to the relief provided by a writ of
mandamus?
The city of Livingston (Livingston) employed Phillips as a
full time firefighter beginning October lG, 1989. On October 6,
1993, Kenton G. Griffin, Livingston's city manager, sent Phillips
notice that there would be a termination hearing the next day
regarding Phillips' employment. The notice informed Phillips that
he was suspended with pay because of allegations that he contrived
to steal $20 from the local Firefighters Association. The notice
stated that the alleged theft would be addressed at the termination
hearing. Later the same day, Griffin sent Phillips an addendum
stating that the termination hearing would be postponed until
October 8, 1993 because two additional allegations would be
discussed. These allegations were that Phillips had misappro-
priated a flashlight and carabiners.
Phillips objected to having the hearing on such short notice
2
and requested a continuance. On October 8, 1993, Griffin sent
Phillips a letter stating that his request for a continuance of the
hearing was granted, extending the hearing date to October 14,
1993. The notice added an allegation that Phillips stole
hemostats, and informed him that this allegation would also be
considered at the hearing.
The termination hearing was held on October 14, 1993. Griffin
presided at the hearing. Phillips' counsel objected to the hearing
because it did not conform to the mandates of § 7-33-4124, MCA,
which requires firefighters ' termination hearings to be held before
the city council or commission. Griffin overruled Phillips'
objection and, on October 18, 1993, Griffin sent Phillips his
formal notice of termination. Griffin, acting as the Livingston
city manager, unilaterally decided to terminate Phillips.
On October 22, 1993, Phillips petitioned the District Court
for a writ of mandamus to command his reinstatement as a
firefighter. On January 12, 1994, the court issued its order
denying Phillips' petition. Phillips moved for reconsideration.
On January 24, 1994, the court reaffirmed its previous decision.
From these orders, Phillips appeals.
I
Do the city of Livingston's termination hearing procedures
supersede statutory termination procedures for firefighters
established by the state legislature?
For clarity, we note at the outset that although Livingston
has adopted the commission-manager form of government, Livingston's
city commission refers to itself as the Livingston city council.
Livingston's policy and procedures manual, which the Livingston
city council adopted by resolution number 2175 on June 18, 1990,
states that the city manager shall hold a termination hearing prior
to any discharge, and that only the city manager may discharge an
employee. This procedure conflicts with a Montana statute
regarding the discharge of firefighters which provides:
Suspension procedure. (1) In all cases of suspension the
person suspended must be furnished with a copy of the
charge against him, in writing, setting forth reasons for
the suspension. Such charqes must be presented to the
next meeting of the council or commission and a hearinq
had thereon, when the suspended member of the fire
department may appear in person or by counsel and make
his defense to said charges.
(2) Should the charges not be presented to the next
meetins of the council or commission after the suspension
or should the charges be found not proven by the council
or commission, the suspended person shall be reinstated
and be entitled to his usual compensation for the time so
suspended.
(3) If such charges are found proven by the council
or commission, the council or commission, by a vote of a
majority of the whole council or commission, may impose
such penalty as it shall determine the offense warrants,
either in the continuation of the suspension for a
limited time or in the removal of the suspended person
from the fire department.
Section 7-33-4124, MCA, (emphasis added).
We examined a city's attempt to supersede Montana statutes
dealing with municipal fire departments in Billings Firefighters
Local 521". City of Billings (1985), 214 Mont. 481, 694 P.2d 1335.
In that case, the city of Billings passed an ordinance which
purported to supersede almost all of Title 7, Chapter 33, Part 41,
MCA, regarding municipal fire departments. Billinqs Firefighters,
694 P.2d at 1337. We examined § 7-1-114(f), MCA, which states that
4
local government powers are limited by any law requiring local
government to carry out a function or provide any service.
Billings Firefiqhters, 694 P.2d at 1339-40. We held that the
Billings ordinance was deficient because the ordinance did not
require the city to provide an essential service; specifically, the
ordinance did not provide for the mandatory creation of a municipal
fire department which is required of every city in 5 7-33-4101,
MCA. Billinss Firefiqhters, 694 P.2d at 1339-40. In reaching our
conclusion that the Billings ordinance was void, we expressly noted
that we were not ruling upon other possible conflicts between the
ordinance, other sections of Title 7, Chapter 33, Part 41, MCA, and
§ 7-1-114(f), MCA. Billinas Firefiahters, 694 P.Zd at 1340. We
now have reason to make such a ruling regarding Livingston's policy
and procedures manual.
In the present case, Livingston attempted to supersede the
statutory duty of the city council to hold a hearing before it
decides to terminate a suspended firefighter. We hold that this
violates § 7-l-114, MCA, which states in relevant part:
(1) A local government with self-government powers
is subject to the following provisions:
. . .
(f) Any law directinq or requiring a local
government
o r any officer or employee of a local
government v out anv function or provide any
to carr
service . . . .
(2) These provisions are a prohibition on the self-
government unit acting other than as provided. [Emphasis
added.]
Section 7-33-4124, MCA, clearly requires the Livingston city
council to hold a hearing at its next meeting following the
5
suspension of a municipal firefighter. The council failed to
perform this function. Livingston's policy and procedures manual
essentially has the city manager perform the council's function.
As applied to firefighters, this policy violates the limitations
placed on local governments' powers by § 7-1-114(f), MCA. Thus, as
the policy is applied to city firefighters, it is void.
Livingston argues that the termination procedures provided in
the city manual validly supersede those provided in § 7-33-4124,
MCA, because those termination procedures were included in
Livingston's collective bargaining agreement with the union. In
support of its position, Livingston cites § 39-31-306(3), MCA,
which states in part: "An agreement between the public employer
and a labor organization must be valid and enforced under its terms
when entered into in accordance with the provisions of this
chapter. . . .'I
Livingston also cites a Kansas case in support of its
argument. In Gorham v. City of Kansas City (Kan. 1979), 590 P.Zd
1051, 1056, the Kansas Supreme Court held that terminated policemen
waived their due process rights to a pre-termination hearing
because their union had entered into a collective bargaining
agreement with a grievance procedure. We note that Phillips was
provided with notice of the charges. against him before the city
manager conducted the termination hearing. However, the issue in
this case does not involve the denial of constitutional due
process. Gorham is distinguishable because there was no specific
statutory right to a termination hearing at issue, and the
bargaining agreement here is different from that in Gorham.
We have not addressed the issue of whether a laborer waives
the right to due process, or a statutorily mandated hearing, by
entering into a collective bargaining agreement; nor do we need to
today. A thorough examination of the collective bargaining
agreement makes it possible to give effect to both § 7-33-4124,
MCA, and § 39-31-306(3), MCA. Section l-Z-101, MCA, states in
relevant part that "[w]here there are several provisions or
particulars, such construction is, if possible, to be adopted as
will give effect to all."
Livingston's policy and procedures manual provides that the
city manager shall hold a termination hearing prior to any
discharge, and that only the city manager may discharge an
employee. Article V of the collective bargaining agreement is
entitled "Policy and Procedures." Section 5.1 of the agreement
states: "The Union agrees to adopt the City of Livingston[']s
Policy and Procedures manuals where not in conflict with this
Agreement." Article XIII of the collective bargaining agreement is
entitled "Discipline and Discharge." Section 13.3 states: "The
employer may suspend an employee with pay pending the final
decision as to the appropriate discipline or the overturning of the
discipline bv the appropriate authority" (emphasis added).
The appropriate authority for administering discipline in this
case was the city council, pursuant to § 7-33-4124, MCA. Thus, the
section of Livingston's policy and procedures manual which vests
the city manager with the power to discharge firefighters conflicts
7
with § 13.3 of the collective bargaining agreement. Therefore, in
accordance with § 5.1 of the collective bargaining agreement,
Phillips' union did not adopt Livingston's policy and procedures
manual where it deals with discipline and discharge of city
employees. We hold that the city of Livingston's termination
hearing procedures do not validly supersedes those procedures
established by the state legislature for the termination of
firefighters.
II
Is Phillips entitled to the relief provided by a writ of
mandamus?
A district court's denial of a writ of mandamus is a matter of
legal interpretation; we review district courts' legal
interpretations as to whether they are correct. Rocky Mountain
Timberlands, Inc. v. Lund (Mont. 1994), 877 P.2d 1018, 1020-21, 51
St.Rep. 653, 654: citing Steer, Inc. v. Dep't of Revenue (1990),
245 Mont. 470, 803 P.2d 601.
Section 27-26-102, MCA, provides as follows:
(1) A writ of mandamus may be issued by the supreme
court or the district court or any judge of the district
court to any lower tribunal, corporation, board, or
person to compel the performance of an act that the law
specially enjoins as a duty resulting from an office,
trust, or station or to compel the admission of a party
to the use and eniovment of a risht or office to which
the party is entitled and from which the party is
unlawfully precluded by the lower tribunal, corporation,
board, or person.
(2) The writ must be issued in all cases in which
there is not a plain, speedy, and adequate remedy in the
ordinary course of law. [Emphasis added.]
We have stated that the writ of mandamus will lie where, in
8
addition to there being no plain and adequate remedy in the
ordinary course of law, the party seeking to invoke the writ is
entitled to the performance of a clear legal duty against whom the
writ is directed. State ex rel. Neuhausen v. Nachtsheim (1992),
253 Mont. 296, 299, 833 P.2d 201, 203; citing State ex rel.
Galloway v. City of Great Falls (1984), 211 Mont. 354, 358, 684
P.2d 495, 497.
Here, there is no question that a clear legal duty exists.
Under § 7-33-4124, MCA, the Livingston city council is directed to
conduct a termination hearing at its next meeting following a
firefighter's suspension. Since they failed to do so, the relief
specifically provided by § 7-33-4124(2), MCA, is Phillips'
reinstatement to his former position.
"As a general rule, before mandamus will issue to a public
officer, board or municipality, a demand for the performance of the
act sought to be compelled is required." Liebman v. Brunell
(1984) I 212 Mont. 459, 460, 689 P.2d 248; citing State ex rel.
School District No. 29, Flathead County v. Cooney (1936), 102 Mont.
521, 59 P.2d 48. Phillips has demanded the Livingston city council
to hold a termination hearing since the city manager first presided
over Phillips' termination hearing. Thus, he has met the demand
requirement.
Livingston argues that mandamus is inappropriate because
Phillips has not exhausted his avenues of remedy under the
grievance procedure contained in the collective bargaining
agreement. In support of its position, Livingston cites Lueck v.
9
United Parcel Service (1993), 258 Mont. 2, 851 P.2d 1041. In
Lueck, we affirmed the district court ' s summary judgment and
dismissal of a former United Parcel Service employee's retaliatory
discharge claim because he failed to utilize the grievance
procedures available in his union's collective bargaining agreement
with UPS. Lueck, 851 P.2d at 1044-45.
The present case, however, is distinguishable from Lueck
-*
Lueck did not involve an application for writ of mandamus.
Further, there was neither a clear statutory duty for a legislative
body to take action, nor was there a clear and mandatory statutory
remedy provided for the discharged employee. Here, 5 7-33-4124(l),
MCA, clearly establishes that the Livingston city council has the
duty to hold a termination hearing after the suspension of a
firefighter. Section 7-33-4124(2), MCA, just as clearly provides
that the remedy for the council's failure to hold such a hearing is
Phillips' reinstatement to his former position.
Finally, mandamus is the proper remedy in this case because
Phillips does not have a plain, adequate, and speedy remedy.
Section 27-2G-102(2), MCA. Phillips' remedy for the denial of the
process provided in § 7-33-4124(l), MCA, is clear. Section 7-33-
4124(2), MCA, provides that if the city council or commission does
not hold a termination proceeding following a firefighter's
suspension, the firefighter is entitled to reinstatement and pay
for the term the firefighter was suspended. We hold that the
District Court incorrectly interpreted the law and erred by failing
to issue the writ of mandamus.
10
For the reasons previously stated, we reverse the judgment of
the District Cour.t and remand for proceedings consistent with this
opinion.
1
/ - Justike
We concur:
11
November 29, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
foIlowing named:
William F. Frazier, Jr.
SWANDAL, DOUGLASS, FRAZIER & COLE
206 East Callender
Livingston, MT 59047
Robert L. Jovick
Attorney at Law
P. 0. Box 1245
Livingston, MT 59047
Matthew Flanick
Attorney at Law
414 East Callender
Livingston, MT 59047
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA