No
No. 97-643
IN THE SUPREME COURT OF THE STATE OF MONTANA
1999 MT 6
BILLINGS FIREFIGHTERS LOCAL 521,
INTERNATIONAL ASSOCIATION OF
FIREFIGHTERS and RICH ELSENPETER,
Plaintiffs and Respondents,
v.
CITY OF BILLINGS and LORREN BALLARD,
FIRE CHIEF and MARK WATSON,
CITY ADMINISTRATOR,
Defendants and Appellants.
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APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Maurice R. Colberg, Jr., Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Bonnie J. Sutherland, Assistant City Attorney,
Billings, Montana
For Respondents:
John W. Ross; Brown Law Firm, Billings, Montana
Submitted on Briefs: January 7, 1999
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Decided: January 21, 1999
Filed:
__________________________________________
Clerk
Justice Karla M. Gray delivered the Opinion of the Court.
¶1. The City of Billings, Lorren Ballard, and Mark Watson (collectively, the
Defendants) appeal from the writ of mandamus and judgment entered by the
Thirteenth Judicial District Court, Yellowstone County, following its order granting
summary judgment to the Billings Firefighters Local 521, International Association
of Firefighters (Local 521) and firefighter Rich Elsenpeter (Elsenpeter). We affirm.
¶2. The ultimate issue on appeal is whether the District Court erred in granting
summary judgment to Local 521 and Elsenpeter. In resolving that issue, we address:
¶3. 1. Whether the District Court erred in concluding that the City of Billings and its
officials are statutorily required to present the charges against a suspended
firefighter to the city council for a hearing following the suspension.
¶4. 2. Whether the District Court erred in concluding that the collective bargaining
agreement provisions are consistent with the requirements of § 7-33-4124, MCA.
BACKGROUND
¶5. On March 27, 1995, Billings Fire Chief Lorren Ballard (Chief Ballard) issued a
"Notice of Intention to Take Disciplinary Action, Specification of Charges, and
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Notice of Hearing Date" to Elsenpeter. The next day, Chief Ballard suspended
Elsenpeter with pay. On March 31, 1995, disciplinary action was discussed during a
meeting in Chief Ballard's office. Chief Ballard suspended Elsenpeter without pay on
April 3, 1995, and issued a "Recommended Order and Command of Disciplinary
Action."
¶6. In May of 1995, Local 521 filed a grievance with the Billings Fire Department on
Elsenpeter's behalf, alleging that mandatory statutory procedures following
Elsenpeter's suspension were not followed. Because the interpretation of state law
was at issue, the parties agreed that the grievance was not appropriate for
arbitration under their collective bargaining agreement.
¶7. Local 521 and Elsenpeter (collectively, the Firefighters) subsequently filed a
complaint in the District Court alleging that the post-suspension requirements
contained in § 7-33-4124, MCA, which require presentation of the charges against a
suspended firefighter to the city council for a hearing, were not met. They requested
a writ of mandamus requiring the Defendants to comply with §§ 7-33-4101 et seq.,
MCA, particularly the post-suspension procedures in § 7-33-4124, MCA; a
declaration that the provisions of §§ 7-33-4101 et seq., MCA, are mandatory; and an
order requiring Elsenpeter's reinstatement with pay for the period of his suspension
in April of 1995. The Defendants answered the complaint and admitted that the
procedures alleged by the Firefighters were used in suspending Elsenpeter. They
denied, however, that they had a duty under § 7-33-4124, MCA, to present the
charges against Elsenpeter to the city council for a hearing on the bases that the
Montana Constitution and § 7-3-701(2), MCA, permit a local government which has
adopted the charter form of government to supersede certain statutory provisions
and the City of Billings (the City) had superseded § 7-33-4124, MCA, via its charter.
¶8. The Firefighters moved for summary judgment and the parties later stipulated to
the admission of certain exhibits. The District Court ordered admission of the
exhibits, heard arguments on the summary judgment motion and subsequently
issued its memorandum and order granting summary judgment to the Firefighters.
Thereafter, it issued a writ of mandamus ordering that all charges against suspended
Billings firefighters occurring since October 27, 1995, be presented to the Billings
City Council for a hearing, a declaratory judgment that the Defendants are required
to comply with § 7-33-4124, MCA, and judgment awarding Elsenpeter back pay for
the shifts he missed during his suspension in April of 1995. The Defendants appeal.
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STANDARD OF REVIEW
¶9. We review a district court's ruling on summary judgment de novo, applying the
same Rule 56(c), M.R.Civ.P., criteria used by the district court. Montana Metal
Buildings, Inc. v. Shapiro (1997), 283 Mont. 471, 474, 942 P.2d 694, 696 (citation
omitted). The moving party must establish the absence of genuine issues of material
fact and entitlement to judgment as a matter of law. Montana Metal Buildings, 283
Mont. at 474, 942 P.2d at 696 (citation omitted). Here, the District Court determined
there were no significant factual issues and granted summary judgment to the
Firefighters based on its interpretation of the law applicable to firefighter
suspensions. We review a district court's conclusions of law to determine whether the
interpretation of the law is correct. Ash Grove Cement Co. v. Jefferson County
(1997), 283 Mont. 486, 491-92, 943 P.2d 85, 89 (citation omitted).
DISCUSSION
¶10. 1. Did the District Court err in concluding that § 7-33-4124, MCA, requires the City and its officials
to present the charges against a suspended firefighter to the city council for a hearing?
¶11. In granting summary judgment to the Firefighters, the District Court concluded
that suspending a firefighter is a function of the city council, which is required to
maintain a municipal fire department pursuant to §§ 7-33-4101 et seq., MCA, and,
therefore, § 7-33-4124, MCA, requires all cities, regardless of their form of
government, to present the charges against a suspended firefighter to the city council
for a hearing. The Defendants contend that the District Court's conclusion is
erroneous because suspending firefighters is part of the organization and structure of
the City's government under its charter, rather than a city council function, and,
pursuant to § 7-3-701(2), MCA, the City's charter supersedes § 7-33-4124, MCA.
¶12. Article XI, Section 5 of the Montana Constitution expressly provides for the
charter form of self-government, requires the legislature to establish procedures
regarding the charter form, and states that "[c]harter provisions establishing
executive, legislative, and administrative structure and organization are superior to
statutory provisions." Consistent with this constitutional mandate, the legislature
enacted §§ 7-3-102 and 7-3-702, MCA, which provide for the charter form of
government possessing self-government powers. The legislature also provided for the
superiority of charter provisions regarding structure and organization over statutory
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provisions. See § 7-3-701(2), MCA. The legislature recognized, however, that the
superiority of charter provisions is not without limits and provided, in § 7-3-708(1),
MCA, that "[c]harter provisions may not conflict with the provisions of part 1,
chapter 1, which establish statutory limitations on the powers of self-government
units." Section 7-1-114(1)(f), MCA, contains one of the statutory limitations and
provides that local governments with self-government powers are subject to "any law
directing or requiring a local government or any officer or employee of a local
government to carry out any function or provide any service[.]" In this regard, and
subject to exceptions not applicable here, all towns and cities in Montana are
required to organize and manage a fire department in accordance with §§ 7-33-4101
et seq., MCA. Section 7-33-4101, MCA.
¶13. We previously addressed whether charter provisions relating to a fire
department were superior to statutory mandates in a similar dispute between the
City and Local 521 in Billings Firefighters Loc. 521 v. City of Billings (1985), 214
Mont. 481, 694 P.2d 1335. In that case, the city--acting under its charter--exempted
its fire service from most of the statutory provisions pertaining to municipal fire
departments. Billings Firefighters, 214 Mont. at 483, 694 P.2d at 1336. Specifically,
the city council adopted an ordinance purporting to supersede § 7-33-4101, MCA,
which requires all cities to organize, manage and control their municipal fire
departments in accordance with the provisions of Title 7, Chapter 33, Part 41, MCA.
Billings Firefighters, 214 Mont. at 490, 694 P.2d at 1339-40. Because the ordinance
contained no requirement that the city maintain a municipal fire department, we
held that the city violated § 7-1-114(1)(f), MCA, by attempting to supersede all of § 7-
33-4101, MCA. Billings Firefighters, 214 Mont. at 491, 694 P.2d at 1340. We did not
address possible conflicts between other sections of Title 7, Chapter 33, Part 41,
MCA, and § 7-1-114(f), MCA. Billings Firefighters, 214 Mont. at 491, 694 P.2d at
1340.
¶14. We returned to the subject of municipal fire departments in Phillips v. City of
Livingston (1994), 268 Mont. 156, 885 P.2d 528. The city of Livingston, which had
adopted the commission-manager form of government but referred to its commission
as the city council, adopted a policy which stated that only the city manager could
discharge city employees and required the city manager to hold a termination
hearing before any discharge. Phillips, 268 Mont. at 158, 885 P.2d at 530. The city
manager held a hearing on the charges against firefighter Phillips and, thereafter,
terminated him. Phillips, 268 Mont. at 158, 885 P.2d at 529-30. Phillips petitioned the
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district court for a writ of mandamus to compel his reinstatement because the
hearing was not before the city council or commission as required by § 7-33-4124,
MCA. Phillips, 268 Mont. at 158, 885 P.2d at 530. The court denied the petition.
Phillips, 268 Mont. at 158, 885 P.2d at 530.
¶15. We observed on appeal that Livingston's policy conflicted with § 7-33-4124,
MCA, by not requiring a termination or suspension hearing for firefighters by the
city council and by allowing the city manager to discharge Phillips. Phillips, 268
Mont. at 159-60, 885 P.2d at 530-31. Noting that Livingston was attempting to
supersede the statutory duty of the city council to hold a hearing before deciding to
terminate a suspended firefighter, we held that the effort violated § 7-1-114(1)(f),
MCA, which subjects local governments with self-governing powers to laws directing
or requiring a local government to carry out a function. Phillips, 268 Mont. at 159-60,
885 P.2d at 530-31. Moreover, because Livingston's policy did not require the council
to perform the statutory function of holding a hearing, that policy--as applied to
municipal firefighters--was void. Phillips, 268 Mont. at 160, 885 P.2d at 531.
¶16. Like Livingston in Phillips, the City in the present case has attempted to
supersede the § 7-33-4124, MCA, requirement that charges against a suspended
firefighter be presented to the city council for a hearing. Because the hearing
requirement is a statutorily required function of the city council pursuant to Phillips,
the City's charter cannot supersede the requirements of § 7-33-4124, MCA. See
Phillips, 268 Mont. at 159-60, 885 P.2d at 530-31.
¶17. The Defendants contend, however, that Phillips is distinguishable because,
unlike the City here, Livingston does not have self-government powers; thus,
according to the Defendants, Phillips applies only to local governments with general
government powers. While it is true that we did not specifically address the nature of
Livingston's local government in Phillips, except as indicated above, our decision
therein was based on § 7-1-114, MCA, which is expressly applicable to local
governments with self-government powers. Since it is undisputed in this case that the
City has self-government powers, both § 7-1-114, MCA, and Phillips apply here.
¶18. The Defendants also argue that procedures relating to the suspension of all City
employees are part of the structure and organization of the City under its charter
and, pursuant to § 7-3-701(2), MCA, the City is free to supersede the hearing
requirement contained in § 7-33-4124, MCA. In this regard, they assert that the
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District Court erred in applying a dictionary, rather than a statutory, definition of
the term "structure" as that term appears in Article XI, Section 5 of the Montana
Constitution and § 7-3-701(2), MCA, both of which recognize the superiority of
charter provisions over statutory provisions "establishing executive, legislative, and
administrative structure and organization[.]" According to the Defendants, the
District Court should have applied the definition of "structure" contained in § 7-1-
4121(24), MCA, because the statutory definition is narrower than the dictionary
definition and, therefore, a more appropriate definition for the term "structure" as
used in § 7-3-701(2), MCA.
¶19. "Whenever the meaning of a word or phrase is defined in any part of [the
MCA], such definition is applicable to the same word or phrase wherever it occurs,
except where a contrary intention plainly appears." Section 1-2-107, MCA. Section 7-
1-4121, MCA, specifically limits application of the definitions contained therein to §§
7-1-4121 through 7-1-4149, MCA. The legislature having clearly expressed its
intention to limit application of the § 7-1-4121, MCA, definitions, the definition of
"structure" set forth in that statute cannot properly be applied to § 7-3-701(2),
MCA. See Richter v. Rose, 1998 MT 165, ¶¶ 18-19, 962 P.2d 583, ¶¶ 18-19, 55 St.Rep.
663, ¶¶ 18-19.
¶20. Having disposed of the Defendants' definitional argument, we turn to § 7-3-701
(2), MCA, pursuant to which charter provisions that establish "executive, legislative,
and administrative structure and organization are superior to statutory provisions."
When interpreting a statute, we first look to the plain meaning of the language used
therein. Section 1-2-106, MCA; State v. Nye (1997), 283 Mont. 505, 510, 943 P.2d 96,
99 (citations omitted).
¶21. "Structure" is defined as the "interrelation or arrangement of parts in a
complex entity: political structure; plot structure." American Heritage Dictionary (3d
ed. 1992) 1782. The City's charter provides that the city council and the mayor
constitute the legislative branch. It prohibits the city administrator from being the
mayor or a member of the city council; in other words, the city administrator cannot
be part of the legislative branch of the City's government. Indeed, the city
administrator's duties are addressed in Article VI of the charter, which pertains to
the executive branch. This broad outline reflects that the City established its political
structure in its charter and, pursuant to § 7-3-701(2), MCA, those charter provisions
would supersede statutory provisions regarding legislative and executive structure.
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¶22. The question remains, however, whether holding a post-suspension hearing for a
firefighter is a function of the city council and, therefore, falls within the parameters
of § 7-1-114(1)(f), MCA, which mandates that local governments with self-
government powers are subject to statutory provisions requiring the local
government, its officers or employees to "carry out any function or provide any
service." While we have determined that holding a hearing on firefighter suspensions
is a function of the city council (see Phillips, 268 Mont. at 160, 885 P.2d at 531), we
have not previously focused on the term "function" as used in § 7-1-114(1)(f), MCA.
¶23. "Function" is defined as an "[a]ssigned duty or activity. A specific occupation
or role. . . ." American Heritage Dictionary (3d ed. 1992) 734. Applying that definition
here, it is clear that § 7-33-4124(1), MCA, expressly assigns the duty of holding a
hearing following a firefighter's suspension to the city council. Therefore, we
conclude that holding such a hearing is a "function" of the city council as that term is
used in § 7-1-114(1)(f), MCA.
¶24. The Defendants contend that requiring compliance with § 7-33-4124, MCA, by
local governments which have adopted the charter form of government produces an
absurd result because § 7-3-704(1), MCA, authorizes a city charter to provide for
either an elected legislative body, such as a city council, or a legislative body
"comprised of all qualified electors." According to the Defendants, a city which has
adopted the charter form of government and chosen not to have an elected legislative
body would be forced to present all firefighter suspensions to the entire qualified
electorate or forego the ability to suspend firefighters. Our function is to interpret
the law and apply it to the facts before us, however, and the facts of this case are that
the City has an elected city council. The result reached here is not absurd and we
decline to address the Defendants' hypothetical scenario.
¶25. We hold that the District Court correctly concluded that § 7-1-114(1)(f), MCA,
prohibits the City from superseding the city council hearing requirement contained
in § 7-33-4124, MCA, via its charter, and that the City and its officials are statutorily
required to present the charges against a suspended firefighter to the city council
following the suspension.
¶26. 2. Did the District Court err in concluding that the collective bargaining agreement provisions are
consistent with the requirements of § 7-33-4124, MCA?
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¶27. After rejecting the Defendants' argument that the City superseded § 7-33-4124,
MCA, via its charter, the District Court considered the Defendants' alternative
argument that the statute was effectively waived by the parties' collective bargaining
agreement (hereinafter, the CBA). The Defendants contended that Articles III and
VIII of the CBA were inconsistent with a city council hearing pursuant to § 7-33-
4124, MCA, and, as a result, constituted a waiver of that statutorily mandated
hearing. In granting summary judgment to the Firefighters, the District Court
specifically determined that Article VIII was not inconsistent with § 7-33-4124,
MCA. It then generally concluded that the CBA could be interpreted consistently
with § 7-33-4124, MCA, but did not specifically address Article III.
¶28. Before addressing the Defendants' assertions of error regarding the District
Court's determinations that the CBA and the statute are not inconsistent, we observe
that the Firefighters raise a threshold issue regarding whether the provisions of the
CBA apply to Elsenpeter's suspension. They posit that, because the effective date of
the CBA on which the Defendants rely was July 1, 1995, and Elsenpeter's suspension
occurred in April of 1995, the CBA's provisions cannot be considered in this case. We
disagree.
¶29. The first mention of the CBA in this case was contained in the Firefighters'
complaint. Indeed, specific provisions of the CBA which the Firefighters now assert
are not applicable were set forth in their complaint in detail. The Defendants' answer
reiterated portions of the CBA.
¶30. Moreover, in their brief in support of their motion for summary judgment, the
Firefighters referred to--and attached--the 1995 CBA. They argued that the CBA did
not prohibit the Defendants from submitting charges against a suspended firefighter
to the city council and having a hearing, all as contemplated by § 7-33-4124, MCA.
The Defendants responded that the CBA procedures were the Firefighters' exclusive
remedy. Only in their summary judgment reply brief did the Firefighters first
advance the question of whether the CBA provisions applied. In that regard, the
District Court expressly determined that "[t]he parties have furnished the collective
bargaining agreement applicable in this case between the City of Billings and the
Billings Firefighters."
¶31. In order to preserve an issue not raised by an appellant, a respondent must file a
notice of cross appeal. Gabriel v. Wood (1993), 261 Mont. 170, 178, 862 P.2d 42, 47
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(citation omitted). Here, the Defendants have not challenged the District Court's
determination that the applicable CBA was before it and the Firefighters did not
cross appeal. As a result, we will not address the Firefighters' threshold issue
regarding the applicability of the CBA.
¶32. We turn, then, to the matters properly before us regarding whether certain
portions of the CBA are consistent with § 7-33-4124, MCA. We must give effect to
both the statute and the CBA if it is possible to do so. See Phillips, 268 Mont. at 160-
61, 885 P.2d at 531.
¶33. Article VIIIG(2)(c) of the CBA provides that a hearing must be held on charges
brought against a firefighter no sooner than three days after the firefighter is notified
of the charges but "[p]rior to the imposition of suspension without pay. . . ." Section
7-33-4124, MCA, on the other hand, provides in pertinent part:
(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 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.
(2) Should the charges not be presented to the next meeting 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.
The District Court determined that, because Article VIIIG(2)(c) does not specify where
the referenced hearing is to be held, it could refer to the city council hearing and thereby
be read consistently with the hearing requirement contained in § 7-33-4124, MCA. The
Defendants contend that the District Court erred because the hearing required by Article
VIIIG(2)(c) must occur prior to a suspension without pay, while the § 7-33-4124, MCA,
hearing occurs after such a suspension.
¶34. It is clear from a plain reading of the two different hearing requirements that
the District Court erred in determining that the Article VIII hearing could be a
reference to the city council hearing. Article VIIIG(2)(c) expressly requires a pre-
suspension hearing and § 7-33-4124, MCA, requires a post-suspension hearing.
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Nonetheless, the District Court's conclusion that the two requirements are not
inconsistent is correct.
¶35. Under the CBA, a firefighter being considered for serious disciplinary action
such as suspension without pay must receive notice of the charges and a hearing
prior to imposition of the discipline. After a firefighter has been suspended, § 7-33-
4124, MCA, requires a hearing by the city council. These two hearings, which occur
at different stages of the disciplinary process, inarguably provide significant
protection to a firefighter facing serious disciplinary action. They also are somewhat
duplicative. Duplication does not equate to inconsistency, however. We conclude,
therefore, that the CBA's pre-suspension hearing requirement is not inconsistent
with the § 7-33-4124, MCA, post-suspension hearing requirement.
¶36. Although the District Court's rationale in determining that the two hearing
requirements are not inconsistent was incorrect, the court reached the correct result.
We affirm district court decisions which are correct regardless of the court's
reasoning in reaching the decision. Clark v. Eagle Systems, Inc. (1996), 279 Mont.
279, 286, 927 P.2d 995, 999 (citation omitted). Thus, we hold that the District Court
did not err in determining that Article VIIIG(2)(c) is not inconsistent with § 7-33-
4124, MCA.
¶37. The Defendants also contend that the grievance provisions contained in Article
IIID of the CBA are inconsistent with § 7-33-4124, MCA, and, as a result, the District
Court's general conclusion that the CBA can be interpreted consistently with § 7-33-
4124, MCA, is erroneous. We disagree.
¶38. The applicable grievance and arbitration procedures are set forth in Article III
of the CBA. Article IIIA defines a grievance, in part, as a dispute between an
employee or Local 521 and the City over matters covered by the CBA. Article IIID
provides for a 3-step grievance procedure. In Step 1, an employee notifies the Fire
Chief and Local 521 of a grievance in writing within 10 business days of the
occurrence of the grievance. Local 521 investigates the grievance and may, within 20
business days, present the grievance to the Fire Chief for resolution. The Fire Chief
attempts to resolve the grievance and reports the adjustment in writing to Local 521
within 5 days of receipt of the grievance. If the grievance remains unresolved, Local
521 may proceed to Step 2 by presenting the written grievance, together with its
reasons for not accepting the Fire Chief's attempted resolution, to the City
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Administrator. The City Administrator attempts to resolve the grievance and must
respond in writing within 20 days. If the grievance still remains unresolved, Local
521 may proceed to Step 3, the arbitration procedure before a Board of Arbitration,
which results in final and binding arbitration.
¶39. These CBA provisions are readily and easily integrated, and not inconsistent,
with the requirements of § 7-33-4124, MCA. Section 7-33-4124(1), MCA, requires
that, when a firefighter has been suspended, the city council must hold a hearing on
the charges against the firefighter. If the charges are not timely presented to the city
council or if the charges are found not proven, the suspended person must be
reinstated and compensated for the time suspended. Section 7-33-4124(2), MCA.
Clearly, under the latter circumstances, the firefighter employee likely would not
have a grievance--that is, a "dispute"--to present pursuant to Article III of the CBA
and no inconsistency between the statute and the CBA would arise.
¶40. In the event the city council finds the charges against the firefighter to be
proven, the city council imposes the penalty it deems warranted, either continuing
the suspension for a limited time or removing the firefighter from his or her position.
Section 7-33-4124(3), MCA. In that event, a firefighter might well feel aggrieved by
the city council's decision and, at that point in time, a grievance--that is, a "dispute"--
between the firefighter and the City would arise. Thus, in terms of the language used
in Article IIID of the CBA, a grievance would "occur" when the city council decided
that the charges had been proven and imposed the penalty deemed appropriate. The
employee then would be required to initiate the grievance procedure set forth in
Article IIID within 10 business days and, in the event the grievance continued
through Step 3, it would culminate in final and binding arbitration.
¶41. As we observed above in discussing the pre-suspension hearing required by the
CBA and the post-suspension hearing required by § 7-33-4124, MCA, meshing the
requirements of the CBA and the statute may result in some duplication. Here, for
example, the Fire Chief might suspend a firefighter pursuant to the CBA and § 7-33-
4123(2), MCA, and, in the event the city council upheld that decision after its hearing
on the charges, the Fire Chief might again review the matter during Step 1 of the
CBA's grievance procedure. The Defendants contend that this scenario results in a
"convoluted mire of craziness and potential inconsistencies." While it is true that the
Fire Chief would play a role at two different stages of the proceedings, that
circumstance already exists pursuant to the CBA and § 7-33-4123, MCA, which
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authorizes a fire chief to suspend a firefighter. In other words, the Fire Chief's
potential dual role exists without regard to the city council hearing by virtue of the
Fire Chief's authority to first suspend a firefighter and then attempt to resolve any
resulting grievance under Step 1 of the CBA's grievance procedure. Thus, this dual
role is not impacted by the city council hearing and cannot create an inconsistency
with that hearing. We conclude that the requirements of § 7-33-4124, MCA, and the
grievance and arbitration provisions set forth in Article IIID of the CBA are not
inconsistent.
¶42. Finally, the Defendants rely on Article IIIF of the CBA, which provides that "[t]
he use of the [grievance and binding arbitration] procedure is exclusive and shall
constitute a waiver of recourse through any other procedure, except for recognized
Civil procedures." They contend that, because Article IIIF provides for final and
binding arbitration as the exclusive process for resolving disputes between
firefighters and the City, it is inconsistent with the statutory requirement for a city
council hearing. Again, we disagree.
¶43. We concluded above that the § 7-33-4124, MCA, hearing can be integrated with
the grievance and arbitration procedures of the CBA and, as a result, that no
inconsistency exists between the two. Our interpretation does not provide--or leave
room--for a remedy other than final and binding arbitration for a grievance under
the CBA. Nor does it provide for a final decision by some authority other than the
Board of Arbitration required by Step 3 of the CBA's grievance procedure. Thus, the
integrity of the final and binding arbitration for which Local 521 and the City
contracted is fully protected and arbitration remains the exclusive remedy for
disputes arising under the CBA.
¶44. Furthermore, the Defendants' largely undeveloped argument that integrating
the city council hearing is inconsistent with the Article IIIF language providing that
use of the grievance procedure constitutes a waiver of "recourse" through any other
procedure is without merit for similar reasons. Firefighters are still required to
utilize the contractual grievance procedures culminating in binding arbitration for
disputes with the City involving matters covered by the CBA. No "recourse" through
any other procedure--which can only mean some alternative procedure which would
provide the ultimate remedy or decision--is substituted for the final and binding
arbitration required by the CBA and, as a result, the "waiver" language contained in
Article IIIF does not apply here. We conclude, therefore, that the integration of the
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No
city council hearing mandated by statute into the contractual grievance procedures is
not inconsistent with--or violative of--Article IIIF of the CBA.
¶45. We hold that the District Court correctly concluded that the provisions of the
CBA are consistent with the requirements of § 7-33-4124, MCA.
¶46. Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ J. A. TURNAGE
/S/ JIM REGNIER
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
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