No. 90-067
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
SIDNEY BURGESS, we 1
Plaintiff and Appellant,
-v-
LEWIS AND CLARK CITY-COUNTY
t - :, - 1990
1
BOARD OF HEALTH,
Defendant and Respondent.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Thomas C. Honzel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Frederick F. Sherwood; Reynolds, Mot1 and Sherwood;
Helena, Montana
For Respondent:
K. Paul Stahl, Deputy County Attorney, Helena,
Montana
Submitted on briefs: July 13, 1990
Decided: September 4, 1990
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
The plaintiff-appellant, Sidney Burgess, brought a claim in
the District Court forthe First Judicial District, Lewis and Clark
County, alleging violation of the Wrongful Discharge from
Employment Act, breach of contract, and requesting enforcement of
an agreement to arbitrate. Defendant, Lewis and Clark City-County
Board of Health, made a motion to dismiss for failure to state a
claim based on the theory that acts of county commissioners are
immune under 5 2-9-111, MCA. The District Court granted the motion
to dismiss and plaintiff appeals. We affirm.
The issues presented on appeal are:
1. May an employee of a local government entity bring an
action under the Wrongful Discharge from Employment Act, S 39-2-
901, et seq., MCA, or is such an action prohibited by governmental
immunity under 5 2-9-111, MCA?
2. May an employee of a local government entity bring an
action to enforce an arbitration agreement pursuant to the Uniform
Arbitration Act, 5 27-5-111, et seq., MCA?
Mr. Burgess was employed at Scratch Gravel Sanitary Landfill
in April 1988. The Scratch Gravel Landfill District was created
by the Lewis and Clark County Board of County Commissioners
pursuant to 5 7-13-203, MCA. The Board of Directors of a landfill
district has the power and duty, with the approval of the county
commissioners, to employ personnel. Section 7-13-215, MCA.
On July 1, 1988, the defendant, Lewis and Clark City-County
Board of Health (Board) was designated by the Board of County
2
omm missioners as the Board of Directors of Scratch Gravel Sanitary
andf fill ~istrict,pursuant to 5 7-13-214, MCA.
On July 7, 1988, the Board sent a letter to Mr. Burgess
terminating his employment as a result of budget changes in the new
budget approved by the Board. In addition the letter encouraged
Mr. Burgess to apply for a vacant position as a landfill equipment
operator. The Board hired a different applicant for the equipment
operator position. Alleging this violated the Board's written
personnel policies, Mr. Burgess brought a claim for wrongful
discharge, breach of contract, and requesting enforcement of an
agreement to arbitrate. The District Court held that the Board is
immune from suit under 5 2-9-111, MCA, and dismissed all three
counts. Mr. Burgess appeals on the wrongful discharge and
arbitration claims.
May an employee of a local government entity bring an action
under the Wrongful Discharge from Employment Act, 5 39-2-901, et
seq., MCA, or is such an action prohibited by governmental immunity
under 5 2-9-111, MCA?
Section 2-9-111, MCA, provides:
Immunity from suit for legislative acts and
omissions.
(1) As used in this section:
(a) the term "governmental entitygr includes the
state, counties, municipalities, and school districts;
(b) ...
(2) A governmental entity is immune from suit for
an act or omission of its legislative body or a member,
officer, or agent thereof.
(3) A member, officer, or agent of a legislative
body is immune from suit for damages arising from the
lawful discharge of an official duty associated with the
introduction or consideration of legislation or action
by the legislative body.
Under this statute, acts of county commissioners are immune.
Bieber v. Broadwater County (1988), 232 Mont. 487, 489, 759 P.2d
145, 147. Section 2-9-111, MCA, provides immunity even when the
act is not legislative in nature. Peterson v. Great Falls School
Dist. No. 1 & A (1989), 237 Mont.376, 379, 773 P.2d 316, 318. The
statute also provides immunity where an agent performs an act which
is later ratified by the principal. Id. at 379-80, 773 P.2d at
318. Since 3 7-13-215, MCA, requires the County Commissioners to
approve the Board's act of hiring and firing personnel, the Board
was acting as an agent of the County Commissioners. Therefore, the
Board is immune from suit for wrongful discharge under 5 2-9-111,
MCA .
Mr. Burgess argues that the Wrongful Discharge from Employment
Act, 3 39-2-901, et seq., MCA, has limited the County's immunity
in the area of wrongful discharge, citing the principle that the
1987 Act was passed later than the 1977 immunity statute.
Careful analysis of the Wrongful Discharge from Employment Act
proves plaintiff's argument unpersuasive. The purpose of the Act
is to set limits on wrongful discharge claims by defining relevant
terms,listing the elements necessary to establish a claim, limiting
remedies available, and establishing a specific statute of
limitations. Section 39-2-913, MCA, eliminates common-law remedies
and provides that no claim is available except as outlined in the
Act. In substance, the Act establishes various statutory limits
for recovery upon claims for wrongful discharge. ~othingin the
Act suggests a legislative intent to grant recovery where immunity
statutes had previously denied recovery. Mr. Burgess has failed
to present any logical support for his contention.
We hold that under S 2-9-111, MCA, the Board is immune from
a wrongful discharge suit for terminating Mr. Burgess' position at
the Scratch Gravel Landfill.
May an employee of a local government entity bring an action
to enforce an arbitration agreement pursuant to the Uniform
Arbitration Act, S 27-5-111, et seq., MCA?
Mr. Burgess contends that he has a right to arbitration of his
termination under the Lewis and Clark City-County Health Department
Personnel Policies and Procedures Manual. Mr. Burgess1 affidavit,
with the Manual attached, shows Mr. Burgess would have a right to
arbitration only if he had completed the six-month probationary
period. He has not done so and is therefore prohibited from
seeking arbitration.
The ~istrictCourtls order granting dismissal on both counts
is affirmed.
We Concur:
-/ /4.7-,
.-- Chief Justice
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? & Justices