DA 19-0067

IN THE SUPREME COURT OF THE STATE OF MONTANA

2020 MT 72

TAD BRENDEN,

 Plaintiff and Appellant,

 v.

CITY OF BILLINGS,

 Defendant and Appellee.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and For the County of Yellowstone, Cause No. DV 17-1664

Honorable Gregory R. Todd, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Tucker P. Gannett, Amanda Beckers Sowden, Gannettt Sowden Law, 

PLLC, Billings, Montana

For Appellee:

Gerry P. Fagan, Adam Warren, Moulton Bellingham PC, Billings, Montana

Submitted on Briefs: July 31, 2019

 Decided: March 31, 2020

Filed:

__________________________________________

Clerk

'ig-6---4c

03/31/2020

Case Number: DA 19-0067
2

Justice Dirk Sandefur delivered the Opinion of the Court. 

¶1 Appellant Tad Brenden (Brenden) appeals the judgment of the Montana Thirteenth 

Judicial District Court, Yellowstone County, granting summary judgment to the City of 

Billing (City) on his claims that the City is vicariously liable for the tortious acts of former 

City employee Michael Glancy (Glancy). The dispositive issue is:

Whether the District Court erroneously concluded as a matter of law that Glancy 

was not acting within the scope of his employment?

¶2 We reverse and remand for further proceedings.

PROCEDURAL AND FACTUAL BACKGROUND

¶3 The City twice employed Brenden as an air rescue firefighter/airfield maintenance 

worker at the Billings Airport—once from January 2004 to March 2006 and again from 

November 2012 until November 2016. Glancy was Brenden’s immediate supervisor

during both periods of employment. In December 2014, a disagreement arose between 

Brenden and Glancy about shift scheduling that resulted in Brenden filing a grievance 

against Glancy with the City human resources director. In subsequent depositions, Glancy 

and Brenden both described the shift scheduling disagreement as the breaking point in their 

professional relationship. After Brenden filed the grievance, Glancy continually 

documented perceived workplace problems with Brenden for nearly two years in an 

electronic log titled the “Brenden Log.” Glancy maintained the log during work hours on 

his city-owned office computer at the airport. Glancy also maintained copies on his office 

computer of corrective action forms he issued to Brenden, a negative annual performance 

review he issued to Brenden, and Brenden’s rebuttal thereto.
3

¶4 In October 2016, while still employed by the City, Brenden applied for a switchman 

trainee position with Montana Rail Link (MRL). Brendan’s job application listed Glancy 

as his City supervisor. MRL accordingly called Glancy at his airport office for a reference 

check on Brenden. Glancy confirmed Brenden’s city employment, gave him an 

unqualified “positive reference,”

1

and, in response to a specific question from MRL, stated 

that Brenden was a “safe” employee. After MRL hired Brenden, he resigned his city 

employment, effective November 6, 2016. His last day was Friday, November 4, 2016.

¶5 MRL maintains a “hotline” (EthicsPoint) on its internet website as a means for

employees and the public to submit anonymous complaints regarding MRL operations and 

employees. On Saturday, November 5, 2016, Glancy submitted an anonymous complaint

on the EthicsPoint hotline falsely alleging that Brenden had stolen City property. The

evidence conflicts as to whether Glancy submitted his complaint using his city-owned 

computer from his airport office or from home on his personal computer. In a subsequent 

deposition, the City’s human resources director testified that, upon investigation by city 

information technology staff, the City determined that Glancy accessed the MRL website 

from his city-owned office computer at the airport for ten minutes and three seconds on 

November 5, 2016. The City could not definitively determine, however, whether he 

specifically accessed the MRL hotline feature of the website during that time. Glancy 

subsequently admitted that he accessed the MRL website from his airport office computer 

on November 5, 2016, but claimed that he did so only for the limited purpose of 

1 See District Court order granting summary judgment to the City.
4

determining whether MRL had a website complaint hotline. He claimed that, after 

confirming that it did, he later submitted his anonymous hotline complaint from his 

personal computer at home. On that day, Glancy was on a paid, on-call duty status with 

the City. On the hotline complaint form, Glancy characterized the nature of the complaint 

as “[s]tealing items issued during [the] course of employment” and further elaborated that:

Tad was previously employed with the City of Billings. Upon his receipt of 

his two week notice he was instructed to return all airport/city issued items 

on his last day. Tad did not return uniform badges (2) valued at $200.

¶6 On November 9, 2016, MRL human resources officer Susan Twiford (Twiford)

telephoned Glancy and inquired about the anonymous allegation. MRL called Glancy 

based on its prior knowledge that he was Brenden’s city supervisor, had previously 

responded to MRL’s initial reference check inquiry, and was thus the person who could

best confirm or refute the truth of the allegation. During the call, Glancy told Twiford, 

inter alia, that Brenden had indeed stolen city property, was also involved in a violent 

incident in the workplace, had created a hostile working environment at the airport, and

that he was “an HR nightmare.” Glancy further stated that he had “tons of documentation 

that you’re welcome to” and that “I’ll send . . . to you.” Glancy subsequently sent two 

emails to MRL with copies of various employment records attached, including corrective 

action directives issued to Brenden, a negative annual performance evaluation, and 

Glancy’s “Brenden Log.” Glancy sent the email and attachments during the work day from 

his airport office using his city email account. The transmittal emails included a signature 

line identifying Glancy as the City “Airport Operations Supervisor.” 
5

¶7 On November 10, 2016, based on the information received from Glancy on 

November 9, MRL terminated Brenden’s employment on his second day on the job. 

Approximately two weeks later, Glancy sent Twiford an email stating that he had heard 

that their “mutual acquaintance ha[d] moved on” and that he hoped that the previously

“shared items [would] find the shredder or vault.” In April 2017, Glancy sent another email

to Twiford asking her to notify him if MRL received “any inquiries” regarding Brenden. 

After learning of Glancy’s post-employment communications with MRL regarding 

Brenden, the City terminated Glancy on June 22, 2017, on the ground that those 

communications violated City policy.

¶8 On November 8, 2017, Brenden sued the City in district court, asserting claims for 

tortious interference with business relations and negligent misrepresentation. On May 30, 

2018, Brenden asserted two additional claims—defamation and breach of the Montana 

constitutional right to privacy. Brenden asserted that the City was vicariously liable for 

Glancy’s tortious conduct under the common law doctrine of respondeat superior. On 

November 5, 2018, the City filed a motion for summary judgment on Brenden’s claims on 

the asserted ground that Glancy engaged in the alleged tortious conduct outside the scope 

of his employment. The City asserted that it did not authorize Glancy’s tortious conduct, 

did not benefit from it, and that it was the conduct of a rogue employee acting entirely for 

his own benefit. Brenden opposed the motion on the asserted ground that genuine issues 

of material fact precluded summary judgment as to whether Glancy committed the alleged 

tortious acts within the scope of his city employment.
6

¶9 On December 21, 2018, the District Court granted the City summary judgment on 

the stated ground that Glancy engaged in the alleged tortious conduct outside the scope of 

his employment. Citing Restatement (Second) of Agency § 228 (Am. Law Inst. 1958), the 

court essentially concluded that it was beyond genuine material dispute on the Rule 56 

record that the City did not authorize Glancy to disclose Brenden’s personnel information 

and records to MRL, and that the disclosures “did not ‘grow out of’” his earlier response, 

within the scope of his employment, to MRL’s initial refence check. The court reasoned 

that Glancy did not have any employment-related need or obligation to provide MRL 

further information regarding Brenden, much less false information. Citing Restatement 

(Second) of Agency § 228(1)(c) (tortious conduct in scope of employment must be 

“actuated, at least in part, by a purpose to serve the [employer]”), the court noted that 

Glancy’s tortious conduct was of no benefit to the City after Brenden resigned and that its 

subsequent termination of Glancy for “violat[ing] . . . workplace guidelines show[s] that 

he went beyond the scope of employment and was in no part actuated by a purpose to serve 

the [City].” Brenden timely appeals.

STANDARDS OF REVIEW

¶10 Summary judgment is proper only when there is no genuine issue of material fact, 

and a party is entitled to judgment as a matter of law. M. R. Civ. P. 56(c)(3). Whether a 

genuine issue of material fact exists or whether a party is entitled to judgment as a matter 

of law are conclusions of law reviewed de novo for correctness. Winslow v. Mont. Rail 

Link, Inc., 2000 MT 292, ¶ 38, 302 Mont. 289, 16 P.3d 992. We must view the Rule 56 
7

factual record in the light most favorable to the non-moving party and draw all reasonable 

inferences in favor of that party. Weber v. Interbel Tel. Coop., 2003 MT 320, ¶ 5, 

318 Mont. 295, 80 P.3d 88; Gamble Robinson Co. v. Carousel Props., 212 Mont. 305, 

311-12, 688 P.2d 283, 286-87 (1984).

DISCUSSION

¶11 Whether the District Court erroneously concluded as a matter of law that Glancy 

was not acting within the scope of his employment? 

¶12 Brenden asserts that genuine issues of material fact precluded summary judgment 

as to whether Glancy engaged in the alleged tortious conduct within the scope of his

employment. He asserts that the Rule 56 record could conceivably support findings that 

Glancy’s unauthorized conduct “grew out of” the authorized scope of his employment and 

that he was at least in part motivated by an interest to serve the City. The City contrarily 

asserts that Brenden’s assertion of respondeat superior fails as a matter of law because there 

is no evidence that the City benefitted from Glancy’s tortious conduct or that Glancy acted 

in furtherance of the City’s interest. 

¶13 Distinct from direct liability for an employer’s own tortious conduct, the common 

law doctrine of respondeat superior imposes vicarious liability on employers for the 

tortious conduct of employees committed while acting within the scope of their

employment. Kornec v. Mike Horse Mining & Milling Co., 120 Mont. 1, 7, 180 P.2d 252, 

256 (1947); Keller v. Safeway Stores, 111 Mont. 28, 35, 108 P.2d 605, 610 (1940); 
8

Restatement (Third) of Agency §§ 2.04, 7.03(2)(a), and 7.07 (Am. Law Inst. 2006).2 “The 

doctrine establishes a principle of employer liability for the costs that work-related torts 

impose on third parties.” Restatement (Third) of Agency § 2.04 cmt. b. It recognizes, inter 

alia, that the “ability to exercise control over . . . employees’ work-related conduct 

enables[,] [and provides incentive for,] the employer to take measures to reduce the 

incidence of tortious conduct.” Restatement (Third) of Agency § 7.07 cmt. b. See also

Billig v. S. Pac. Co., 209 P. 241, 243 (Cal. 1922) (noting that respondeat superior depends 

on employer’s power and duty of control over the employee). However, the elemental 

limitations of the doctrine protect employers from becoming “insurer[s] against all harm 

suffered by third parties with whom [their] employees may interact.” Restatement (Third) 

of Agency § 7.07 cmt. b. 

¶14 For purposes of respondeat superior, a tortious act occurred within the scope of

employment if the act was either expressly or implicitly authorized by the employer or was

incidental to an expressly or implicitly authorized act. See Kornec, 120 Mont. at 8-12, 180 

2 Section 28-10-602, MCA, embodies the common law doctrine of respondeat superior. See

Keller, 111 Mont. at 35-36, 108 P.2d at 610 (citing §§ 7965-66 RCM (1935)); Restatement (Third) 

of Agency § 2.04 Reporter’s Notes cmt. a. Section 28-10-602 is an 1895 Montana adoption of 

California’s adaptation of §§ 1253-54 of David Dudley Field’s proposed but never enacted New 

York Civil Code (1865). The Montana doctrine is generally in accord with the formulation set 

forth in Restatement (Third) of Agency §§ 2.04, 7.03(2)(a), and 7.07, and the predecessor sections 

of the Restatement (Second) of Agency. See Saucier ex rel. Mallory v. McDonald’s Rests. of 

Mont., Inc., 2008 MT 63, ¶ 64, 342 Mont. 29, 179 P.3d 481; Maguire v. State, 254 Mont. 178, 

182-83, 835 P.2d 755, 758 (1992); Kornec, 120 Mont. at 8-10, 180 P.2d at 256-57; Keller, 111 

Mont. at 36-38, 108 P.2d at 610-11; Restatement (Third) of Agency § 7.07 Reporter’s Notes cmt. 

a. (characterizing Restatement (Third) formulation as essentially a “consolidated treatment of” the

Restatement (Second) formulation). In Montana, governmental entities are subject to vicarious 

liability in respondeat superior like private parties. Kenyon v. Stillwater County, 254 Mont. 142, 

146, 835 P.2d 742, 745 (1992) (citing § 2–9–102, MCA). 
9

P.2d at 256-58; Keller, 111 Mont. at 36-40, 108 P.2d at 610-12; Restatement (Third) of 

Agency § 7.07(2) cmt. b. See also Restatement (Second) of Agency § 228(1)(a), (c). 

Expressly authorized acts include, inter alia, acts the employer specifically directed or 

authorized the employee to perform. See § 28-10-402, MCA (“[a]ctual authority is 

authority that the principal intentionally confers upon the agent or intentionally or

[negligently] allows the agent to believe that the agent possesses”).

¶15 Implicitly authorized acts include acts reasonably necessary or customary under the 

circumstances to the performance of specifically authorized acts or functions and other acts 

“of the same general nature.” Restatement (Second) of Agency § 229(1) cmt. a. See also 

Kastrup v. Yellow Cab & Baggage Co., 282 P. 742, 747 (Kan. 1929) (cited in Kornec—

“[e]xpress authority to do an act carries with it authority to do those subordinate and 

incidental acts which may be reasonably necessary and proper to be done, or which are 

usually and ordinarily done, in order effectively to do the main thing”). Accord

§ 28-10-405(1), MCA. However, even though a “means of accomplishing an authorized 

result,” an act, or the manner in which the employee performed it, may yet be “so 

outrageous or whimsical” to be beyond the scope of what the employer implicitly 

contemplated under the circumstances. Restatement (Second) of Agency § 229 cmt. b. 

Relevant factors in determining whether an act or conduct was implicitly authorized by the 

employer include, inter alia: (1) whether the act was of a type such employees commonly

perform; (2) “the time, place and purpose of the act”; (3) whether the employer had reason 

to expect that the employee might so act under the circumstances; (4) the extent, if any, to 
10

which the act departed from a normal or typical means of accomplishing an authorized task 

or function; and (5) whether the employer furnished the instrumentality the employee used 

to harm the third party at issue. Keller, 111 Mont. at 36-37, 108 P.2d at 610; Restatement 

(Second) of Agency § 229(2).

3

 The finder of fact may infer that an employee performed 

an expressly or implicitly authorized act in furtherance of the interest of the employer. See

Restatement (Second) of Agency § 235 cmt. a. 

¶16 Even an act or conduct not expressly or implicitly authorized by the employer is 

nonetheless within the scope of employment if the act was incidental to the performance 

of an expressly or implicitly authorized act and at least partially motivated by the 

employee’s intent or purpose to serve the employer’s interest. Keller, 111 Mont. at 36-40, 

108 P.2d at 610-12. Accord Kornec, 120 Mont. at 9-10, 180 P.2d at 256-57; Restatement 

(Third) of Agency § 7.07(2) cmt. b; Restatement (Second) of Agency §§ 228(1)(a), (c), 

and 229(1). “An act may be incidental to an authorized act,” even though “an entirely 

different kind of an act.” Restatement (Second) of Agency § 229 cmt. b. However, the 

incidental act:

must be . . . subordinate to or pertinent to an act which the [employee] [was]

employed to perform. . . . The fact that a particular employer ha[d] no reason 

to expect the particular [employee] to perform the act is not conclusive. . . . 

[For example,] [a]n assault by one employed to recapture a chattel, while 

entirely different from the act which he was employed to do, which was 

3

See also Restatement (Third) of Agency § 7.07 cmt. b (Restatement (Third) of Agency phrases 

its scope-of-employment standard in more general terms than Restatement (Second) to reflect the 

modern “working circumstances of many managerial and professional employees and others 

whose work is not so readily cabined by temporal or spatial limitations”—“[m]any employees in 

contemporary workforces interact [with third parties] on an employer’s behalf” despite that “the 

employee is neither situated on the employer’s premises nor continuously or exclusively engaged 

in performing assigned work”). 
11

merely to take possession of the chattel, may be within the scope of 

employment, unless committed with such violence that it bears no relation to 

the simple aggression which was reasonably foreseeable.

Restatement (Second) of Agency § 229 cmt. b. Thus, the fact that the employer did not 

authorize the tortious conduct, the employee was disobedient, or the employee disregarded 

the employer’s instruction or rule does not necessarily preclude a finding that the employee 

was acting in furtherance of the employer’s interest. Kornec, 120 Mont. at 9-10, 180 P.2d 

at 256-57; Keller, 111 Mont. at 38-40, 108 P.2d at 611-12; Restatement (Third) of Agency 

§ 7.07(2) cmt. c; Restatement (Second) of Agency § 230. Though itself unauthorized or 

disobedient, an act was incidental to expressly or implicitly authorized conduct if it “arose 

out of” and was closely related to the performance of an expressly or implicitly authorized 

act or function. Kornec, 120 Mont. at 9-10, 180 P.2d at 256-57. Thus, depending upon the 

circumstances, an employer may be vicariously liable in respondeat superior for negligent, 

willful, and malicious acts of employees committed within the scope of their employment. 

Kornec, 120 Mont. at 7-8, 180 P.2d at 256; Keller, 111 Mont. at 38, 108 P.2d at 611.

4

 

¶17 The fact that an employee’s predominant motive was self-interest does not preclude 

an act from the scope of employment if the employee was motivated by any purpose or 

intent to serve the employer’s interest “to any appreciable extent.” Restatement (Second) 

of Agency § 236 cmt. b. Thus, a dual or mixed motive does not preclude a finding that the 

4 But see Maguire, 254 Mont. at 182-85, 835 P.2d at 758-59 (finding a criminal act (rape) outside 

the scope of employment for purposes of respondeat superior and declining to extend 

non-delegable duty doctrine to make institutional caretaker entity vicariously liable for crime 

committed against an incapacitated ward by the caretaker’s employee).
12

employee was acting in furtherance of the employer’s interest unless the employee was 

engaged in “an independent course of conduct not intended . . . to serve any purpose of the 

employer.” Restatement (Third) of Agency § 7.07(2) cmt. b (emphasis added). Accord

Keller, 111 Mont. at 37, 108 P.2d at 611 (personal motive does not take the act beyond the 

scope of employment “unless it clearly appear[s] that the [employee] could not have been 

directly or indirectly” acting in furtherance of the employer’s interest in any regard); 

Webster v. Mountain States Tel. & Tel. Co., 108 Mont. 188, 198-99, 89 P.2d 602, 604-05 

(1939); Restatement (Second) of Agency § 230 cmt. c (“[c]onduct is not within the scope 

of employment if it has no connection with the act which the employee is required to 

perform”); Restatement (Second) of Agency § 235 (an act is not within the scope of 

employment if performed “with no intention to perform it as a part of or incident to a 

service on account of which he [or she] is employed”). 

¶18 The question of whether an employee was acting at least partially in furtherance of 

the employer’s interest does not depend on whether the employer actually profited or 

benefitted from the act. Taber v. Maine, 67 F.3d 1029, 1036 (2nd Cir. 1995) (noting “hasty

[modern] retreat” from that aspect of the “older conception of respondeat superior” 

articulated in Restatement (Second) of Agency § 228); Perez v. Van Groningen & Sons, 

Inc., 719 P.2d 676, 680 (Cal. 1986). The state of mind of the employee is determinative—

the issue is whether the employee was at least partially motivated to serve the employer’s 

interest “to some extent.” Restatement (Second) of Agency § 235 cmt. a. 

Accord Restatement (Third) of Agency § 7.07 cmt. b (“employee’s intention severs the 
13

basis for treating” an “act as that of the employer”). The question of whether an employee 

was at least partially motivated by an intent or purpose to directly or indirectly further the 

employer’s interest is a question of fact for consideration under the totality of the 

circumstances. Denke v. Shoemaker, 2008 MT 418, ¶¶ 73-74, 347 Mont. 322, 198 P.3d 

284; Kornec, 120 Mont. at 10, 180 P.2d at 257; Keller, 111 Mont. at 36, 38, 108 P.2d at 

610-11; Restatement (Second) of Agency § 235 cmt. a.

¶19 In Keller, we considered, inter alia, whether the trial evidence was sufficient to 

support a jury finding that the store manager of a grocery store corporation (Safeway) was

acting within the scope of his employment when he personally traveled from the Butte 

Safeway store to the home of the plaintiff’s mother and made a slanderous allegation that 

the plaintiff deceitfully paid for groceries with a forged or otherwise bad check. Keller,

111 Mont. at 39-41, 108 P.2d at 611-12. Based on evidence that Safeway discouraged its 

managers from accepting personal checks from customers (by holding managers personally 

liable for customer checks that did not clear) and that a Safeway supervisor had specifically 

told that particular manager not to accept personal checks from customers (like the 

plaintiff) he did not know, the employer asserted in defense of the ensuing slander claim 

that the store manager acted on his own, outside the scope of his employment. Keller, 111 

Mont. at 39-40, 108 P.2d at 612. Even assuming, arguendo, that Safeway had not expressly 

or implicitly authorized the manager to accept a personal check from the plaintiff, we noted 

that a fact question still remained as to whether the manager made the slanderous statement 

incidental to the performance of an authorized act and at least partially in furtherance of 
14

the employer’s interest. Keller, 111 Mont. at 40, 108 P.2d at 612. Acknowledging that 

Safeway had not expressly or implicitly authorized its managers to make slanderous 

statements about customers, we held that the jury could nonetheless have reasonably found 

that the manager’s personal trip to the mother’s home, and ensuing slanderous statement,

were “so closely intermingled with” his authorized employment duties that the “slander 

was a wrong committed, if not in furtherance of his employment, at least as an incident 

thereto.” Keller, 111 Mont. at 40, 108 P.2d at 612. We thus held that the evidence was 

sufficient to support the jury’s finding that the manager made the slanderous statement to 

the plaintiff’s mother within the scope of his employment. Keller, 111 Mont. at 40, 108 

P.2d at 612.5 

¶20 Similarly, in Kornec, after a jury found a mining company vicariously liable for an 

employee’s intentional assault and battery of the plaintiff, we considered whether the trial 

evidence was sufficient to support the jury finding that the employee was acting within the 

scope of his employment, as a miner and general laborer, when he physically assaulted the

third-party plaintiff. Kornec, 120 Mont. at 10, 180 P.2d at 257. Though accounts of the 

events varied, the employee was in the process of effecting repairs to a diversionary dam 

on company property adjacent to the plaintiff’s property when the plaintiff appeared and

challenged him about water backing up from the dam onto the plaintiff’s property. Kornec, 

120 Mont. at 6-7, 180 P.2d at 255-56. According to the plaintiff’s version of events, the 

5 We ultimately reversed the jury verdict for retrial based on an excessive damages award not 

supported by the evidence. Keller, 111 Mont. at 41-44, 108 P.2d at 612-14.
15

mining company employee, in response to the plaintiff’s “remonstrat[ion] . . . and 

complain[t]” about the dam, walked onto the plaintiff’s property and then threatened and 

repeatedly beat him with a shovel. Kornec, 120 Mont. at 7, 180 P.2d at 255. The employee 

contrarily asserted that the plaintiff attacked him and that he acted only in self-defense. 

Kornec, 120 Mont. at 7, 180 P.2d at 255. In its defense, the company asserted that the 

employee was acting outside the scope of his employment because his assault of the 

plaintiff “was a personal and independent act . . . not binding” on the employer. Kornec, 

120 Mont. at 4, 180 P.2d at 254. 

¶21 Despite conflicting evidence, we held that there was sufficient evidence upon which 

the jury could have reasonably concluded that the employee was “carrying out the duties 

for which he was employed at the time and place assigned” when the verbal and resulting 

physical altercation occurred between the employee and the plaintiff. Kornec, 120 Mont. 

at 10-11, 180 P.2d at 257. Noting further that there was no evidence that the employee 

“held any personal grudge or ill will against the plaintiff,” we affirmed the jury verdict, 

holding: 

The question as to whether [the employee] was acting within the scope of his 

employment was a question for the jury under proper instruction. Under the 

facts disclosed there was evidence presented from which a jury could find 

that the act complained of was within the scope of the actor’s employment 

and done while engaged in his masters’ business and “in furtherance of that 

business and the masters’ interest.”

Kornec, 120 Mont. at 11, 180 P.2d at 257. 

¶22 Similarly here, Glancy was employed by the City as an airport supervisor. His 

authorized duties included, inter alia, supervising Brenden and other airport rescue and 
16

maintenance personnel. Inter alia, the City authorized him to assign work to Brenden and

to direct and supervise his performance of that work. As Brenden’s immediate supervisor, 

Glancy was authorized to, and did in fact, document perceived performance deficiencies

or misconduct, take and document any corrective or disciplinary action deemed necessary, 

and conduct regular periodic evaluations of Brenden’s performance and conduct. The City 

correctly points out that there is substantial evidence that Brenden was aware of an 

unwritten city rule prohibiting supervisors from giving prospective employers any

information regarding current or former employees. However, there is also evidence upon 

which the finder of fact could reasonably infer that, in the absence of a written policy,

Glancy’s response to MRL’s initial reference check regarding Brenden (verifying his city 

employment, dates of employment, and stating that he was a “safe” employee) was at least 

implicitly authorized by the City as of a type that an immediate supervisor might typically

provide in response to reference checks from prospective third-party employers.6 

¶23 The Rule 56 record is similarly ambiguous regarding Glancy’s conduct on 

November 5 and 9, 2016. On one hand, Glancy submitted his anonymous November 5 

“hotline” complaint to MRL on a Saturday, a day off from his regularly scheduled work. 

6 See Dep. Michael Glancy 21:21-22:12, 23:16-19, 25:1-4, and 101:6-102:15; Dep. Scott Trent

52:22-53:1 and 53:16-24; Dep. Karla Stanton 54:7-22 (noting lack of written City policy barring 

supervisors from responding to third-party reference checks). Based on the Rule 56 record, the 

City asserted on page 3 of the statement of facts section of its Brief in Support of Motion for 

Summary Judgment (Doc. 22) that it “does not allow supervisors . . . to provide any information” 

regarding current or former city employees to prospective employers “other than the verification 

of dates of employment and job titles.” (Emphasis added.) On appeal, the City did not contest the 

District Court’s conclusion that no genuine issues of material fact existed on the Rule 56 factual 

record that Glancy’s initial act of giving “MRL a positive reference check” regarding Brenden 

“was within the scope of his employment.”
17

He asserts that he submitted it at home from his personal computer. On the other hand, it 

is beyond genuine material dispute that, upon investigation, the City verified that Glancy 

used his city-owned office computer to access the MRL website for over ten minutes from

his city office on the same day he submitted his MRL “hotline” complaint through that

same website. It is further beyond genuine material dispute that, though not working on a 

regularly scheduled shift, Glancy was on a paid, on-call work status at the time. 

¶24 As to Glancy’s conduct on November 9, 2016, there is evidence upon which to 

reasonably conclude that, on November 9, 2016, MRL specifically contacted him, in his 

capacity as Brenden’s prior supervisor, to follow-up on his earlier “positive reference” 

regarding Brenden and verify or refute the truth of the subsequent anonymous allegations

against him. As before, MRL again contacted and spoke with Glancy at his city office 

telephone number during a workday while Glancy was in the office on the job. As his

former supervisor, Glancy told MRL that Brenden had indeed stolen City property and that 

he was further involved in a violent incident in the workplace, created a hostile working 

environment, and was “an HR nightmare.” During that conversation, Glancy told MRL 

that he had “tons of documentation that you’re welcome to” and which “I’ll send . . . to 

you.” Glancy subsequently sent two emails to MRL with copies of various employment 

records attached, including a corrective action directive issued to Brenden, a negative 

annual performance evaluation, and the “Brenden Log,” which Glancy created and kept 

while on the job as Brenden’s supervisor. Glancy sent the email transmittals from his 

airport office using his city-owned computer and city email account during the work day 
18

while on the job. Each email included a signature line identifying Glancy as the City 

“Airport Operations Supervisor.” The verbal and documentary information Glancy

provided to MRL on November 9, 2016, was work-related employee performance and 

conduct information gathered, noted, and documented by Glancy in the course of his

performance and function as Brenden’s immediate City supervisor. 

¶25 As noted by the District Court, it is beyond genuine dispute that the City did not 

expressly or implicitly authorize Glancy to anonymously provide personnel information, 

much less false information, to a third-party employer regarding a former city employee. 

Nor did the City authorize him to again make false and derogatory allegations, or disclose 

related performance and conduct records, regarding Brenden on November 9, 2016, in 

response to MRL’s follow-up inquiry. However, despite conflicting evidence, there is also 

evidence, as in Keller and Kornec, upon which the finder of fact could reasonably conclude 

that, as was the case with his earlier response to MRL’s initial inquiry, the City at least 

implicitly authorized Glancy to field and respond to MRL’s follow-up inquiry to some 

extent. At that time, the City had no written policy prohibiting supervisors from responding 

to employee reference checks from prospective employers. In subsequent testimony, 

Glancy indicated that he thought it was okay to provide additional information after 

Brenden had resigned. Despite conflicting evidence, there is sufficient evidence upon 

which to reasonably infer that Glancy’s statements to MRL on November 9, 2016, were of 

a type of the same general nature that a former supervisor might typically make in response 

to a follow-up inquiry from a prospective employer to whom the supervisor had previously 
19

given inconsistent or incomplete information. It is beyond genuine material dispute that 

the City furnished the instrumentalities (i.e., computer, office, phone, email account, 

internet access, and personnel records) by which Glancy caused the alleged harm to 

Brenden. Thus, despite conflicting evidence, there is sufficient evidence from which the 

finder of fact could reasonably infer that MRL contacted and spoke with Glancy on 

November 9, 2016, in his official capacity as Brenden’s former supervisor, that Glancy 

spoke with MRL in that capacity, and that he subsequently emailed formal and informal 

City performance or personnel records regarding Brenden to MRL, either in his official 

capacity or at least in direct relation and follow-up to his earlier response, within the scope 

of his employment, to MRL’s initial reference check. 

¶26 The evidence regarding Glancy’s motivation is similarly ambiguous. It is beyond 

genuine material dispute that Glancy had some degree of personal animus toward Brenden, 

and a resulting personal motive to wish or cause him harm, and that the City could not have

benefitted from Glancy’s disclosures to MRL after Brenden resigned. Thus, there is 

evidence upon which the factfinder could reasonably conclude that Glancy’s conduct on 

November 5 and 9 was an independent, personally motivated, course of conduct not 

intended to serve any City purpose or interest. However, based on Glancy’s subsequent 

disavowal of any animosity toward Brenden, and the circumstances under which he acted 

on November 9, there is evidence upon which the finder of fact could reasonably infer that

Glancy had no, or only an incidental, motive to harm Brenden and that his statements, and 

related email transmittals, to MRL on that date were at least partially motivated by an intent 
20

or purpose to correct the prior inaccurate “positive reference” he gave to MRL on behalf 

of the City. Whether the City actually benefitted from Glancy’s conduct is not 

determinative of Glancy’s subjective motivation on November 9, 2016.

¶27 Even if not authorized by the employer, and itself not motivated by any intent or 

purpose to serve the employer, an employee’s tortious conduct may still be incidental to 

expressly or implicitly authorized conduct if “closely intermingled [there]with” and at least 

partially intended as a means to accomplish an expressly or implicitly authorized task or 

purpose. Keller, 111 Mont. at 40, 108 P.2d at 612. Here, as in Keller and Kornec, a genuine 

issue of material fact exists on the Rule 56 record as to whether Glancy’s verbal statements, 

and related email transmittals, to MRL on November 9 were closely related and arose from 

implicitly authorized conduct, and were thus incidental thereto.

¶28 In the case of an unauthorized employee communication, an additional 

consideration may be a relevant, inter alia, in determining whether the employee’s conduct 

was incidental to expressly or implicitly authorized conduct for purposes of respondeat 

superior. Unauthorized statements by an employee to a third-party may be incidental to 

expressly or implicitly authorized conduct if the employee had apparent authority to make 

such statements and harm resulted from the third-party’s reasonable reliance thereon. See 

Restatement (Second) of Agency §§ 248, 265. See also Keller, 111 Mont. at 38-39, 108 

P.2d at 611 (noting effect of apparent authority in the context of respondeat superior); 
21

Restatement (Second) of Agency § 219(2)(d) cmt. e.

7

 If an employee causes harm “to [the] 

business relations [of a third party] . . . by defamation or other methods of untruthful 

publicity [to another], [an employee] with apparent authority to make [such] statements 

binds his employer, irrespective of . . . motive.” Restatement (Second) of Agency § 248 

cmt. b. 

¶29 Here, the District Court did not address Brenden’s assertions that Glancy acted 

within the scope of his apparent authority as a city supervisor and that MRL reasonably 

relied on his derogatory statements, and related email transmittals, to Brenden’s detriment. 

The City asserts that the court properly disregarded Brenden’s apparent authority theory 

because he did not separately plead it as a distinct claim. While generally a theory of 

vicarious liability distinct from respondeat superior, see § 28-10-606, MCA, and 

Restatement (Third) of Agency §§ 2.03 cmt. a-b, 7.03(2)(b), and 7.08 (vicarious liability 

for the tortious conduct of an agent acting outside the scope of actual authority but within 

the scope of the agent’s apparent or ostensible authority), apparent authority may also be 

relevant in considering whether an employee made tortious statements to another within 

7 Ostensible or apparent authority is the authority a principal intentionally or negligently causes or 

allows a third party to reasonably believe an agent has. Section 28-10-403, MCA. 

Accord Restatement (Third) of Agency § 2.03. “If the principal places a person in a position or 

office with specific functions or responsibilities, from which third parties will infer that the 

principal assents to acts by the person requisite to fulfilling the specific functions or 

responsibilities, the principal has manifested such assent to third parties.” Restatement (Third) of 

Agency § 1.03 cmt. b. “A third party who interacts with the person, believing the manifestation 

to be true, need not establish a communication made directly to the third party by the principal to 

establish the presence of apparent authority.” Restatement (Third) of Agency § 1.03 cmt. b. The 

scope of an agent’s apparent authority depends on the totality of the circumstances “surrounding 

the transaction” at issue. See Butler Mfg. Co. v. J & L Implement Co., 167 Mont. 519, 527, 540 

P.2d 962, 967 (1975) (quoting 2A C.J.S. Agency § 159 p. 795 (1973)). 
22

the scope of employment for purposes of respondeat superior. See Keller, 111 Mont. at 

38-39, 108 P.2d at 611; Restatement (Second) of Agency §§ 247-48. Because respondeat

superior “is not a free-standing or independent tort cause of action” but, rather, a common 

law agency theory of vicarious liability for the tortious conduct of another, Saucier, ¶ 64,

Brenden did not have to separately plead his apparent authority theory of respondeat 

superior as a distinct liability claim. The City does not dispute that he properly pled a 

number of distinct tort claims under which he asserts the City is vicariously liable. Thus, 

Brenden’s assertion of apparent authority, as a consideration relevant to whether Glancy’s 

tortious conduct was incidental to implicitly authorized conduct for purposes of respondeat 

superior, was not precluded by his failure to separately plead it as a theory of liability 

distinct from his properly pled claims.

¶30 The City’s assertion of unfair surprise is further undermined by the fact that, 

however inartfully, Brenden raised apparent authority as a respondeat superior 

consideration in opposition to the City’s motion for summary judgment. The City has not 

demonstrated that Brenden’s apparent authority theory is not factually supported by 

well-pled facts in his complaint, or on the Rule 56 record, viewed in the light most 

favorable to him. On the record in this case, apparent authority may thus be a relevant 

consideration, inter alia, in determining whether Glancy’s November 9 verbal statements, 

and related email transmissions, to MRL were incidental to implicitly authorized conduct. 
23

CONCLUSION

¶31 Genuine issues of material fact preclude summary judgment as to whether Glancy’s 

verbal statements, and related email transmittals, to MRL on November, 9, 2016, were 

incidental to implicitly authorized conduct, and thus within the scope of his employment. 

We hold that the District Court erroneously granted summary judgment to the City on 

Brenden’s claims. We reverse and remand for further proceedings in accordance with this 

Opinion. 

/S/ DIRK M. SANDEFUR

We concur: 

/S/ JAMES JEREMIAH SHEA

/S/ JIM RICE

/S/ INGRID GUSTAFSON

Justice Beth Baker, dissenting.

¶32 Whether an employee acted within the scope of his or her duties to the employer 

generally is a question of fact. Kornec, 120 Mont. at 5, 180 P.2d at 254. It is a question of 

law for the court, however, “when only one legal inference may reasonably be drawn from 

the facts.” Bowyer v. Loftus, 2008 MT 332, ¶ 8, 346 Mont. 182, 194 P.3d 92; Denke v. 

Shoemaker, 2008 MT 418, ¶ 74, 347 Mont. 322, 198 P.3d 284. “Where the record taken 

as a whole could not lead a rational trier of fact to find for the non-moving party, there is 

no ‘genuine issue for trial.’” Kerr v. St. Vincent Healthcare, 2016 U.S. Dist. LEXIS 38918 
24

at *2 (D. Mont. Feb. 29, 2016) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio 

Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986)). Applying our established 

precedent to the summary judgment record, I agree with the District Court that no rational 

juror could find that Mike Glancy was acting within the course and scope of his 

employment when he gave MRL false and confidential personnel information after 

Brenden had left his City employment. I would affirm the District Court’s grant of 

summary judgment to the City.

¶33 As the Court observes, we have considered numerous cases seeking to hold an 

employer liable for an employee’s actions as taken within the course and scope of 

employment; in some of those cases, depending on the circumstances involved, we have 

upheld an award of summary judgment to the employer. A few consistent rules emerge 

from our precedent. To impose liability upon an employer under the doctrine of respondeat 

superior,

[t]he servant or agent must have been acting in the “course of his 

employment,” in “furtherance of his employer’s interest,” or “for the benefit 

of his master,” “in the scope of his employment,” etc. But a servant who acts 

entirely for his own benefit is generally held to be outside the scope of his 

employment and the master is relieved of liability.

Kornec, 120 Mont. at 8, 180 P.2d at 256 (citing Harrington v. H. D. Lee Mercantile Co., 

97 Mont. 40, 59, 180 P.2d 553, 558 (1934)). To be within the scope of the employment, 

even if not expressly authorized, conduct must be of the same general nature as that 

authorized, or incidental to the conduct authorized. Keller v. Safeway Stores, 

111 Mont. at 36, 108 P.2d at 610. 
25

In determining whether or not the conduct, although not authorized, is 

nevertheless so similar to or incidental to the conduct authorized as to be 

within the scope of employment, the following matters of fact are to be 

considered: (a) Whether or not the act is one commonly done by such 

servants; (b) the time, place and purpose of the act; (f) [sic] whether or not 

the master has reason to expect that such an act will be done; and (i) [sic] the 

extent of departure from the normal method of accomplishing an authorized 

result.

Keller v. Safeway Stores, 111 Mont. at 36-37, 108 P.2d at 610 (quoting Restatement of the 

Law of Agency § 229) (Am. Law. Inst. 1933). 

¶34 Keller and Kornec make clear, as still recognized in the Restatement, that the 

employee’s “failure of duty” or disobeying an instruction of the employer is not the key 

inquiry—as respondeat superior exists to hold an employer liable for the employee’s 

wrongful acts. Keller, 111 Mont. at 35-36, 108 P.2d at 610; Kornec, 120 Mont. at 9, 

180 P.2d at 256 (citing Restatement of Agency § 230) (“An act, although forbidden or done 

in a forbidden manner, may be within the scope of employment.”). See also Denke, ¶ 79 

(because the doctrine of respondeat superior is designed to hold an employer liable for its 

employee’s wrongful conduct, it contemplates that conduct such as unlawful retaliation 

was committed within the scope of employment). 

¶35 But an agent’s or employee’s act is not within the scope of employment if it is a 

“frolic of the agent’s own” or an “act animated purely by personal motives.” 

Keller, 111 Mont. at 38, 108 P.2d at 611. Thus, what is key is whether the employee was 

“endeavoring to promote the principal’s business.” Keller, 111 Mont. at 37-38, 

108 P.2d at 611. Accord Roberts v. Pegasus Gold Corp., 273 Mont. 266, 270, 

903 P.2d 782, 784 (1995) (“In the law of respondeat superior, the harmful force is always 
26

an act of the servant . . . . The inquiry is whether the performance of that act was in 

furtherance of the master’s business.”) (quoting 1 Larson, Workmen’s Compensation Law

§ 14.00 4-1 to 4-2, and contrasting with the law of workers’ compensation). The Keller

jury thus could find the Safeway manager’s alleged slanderous comment to be within the 

scope of employment because, “taken at its face value, [the comment could] reasonably be 

said to have been an intended means by which [the employee] expected to obtain payment 

on the no good check.” Keller, 111 Mont. at 40, 108 P.2d at 612. 

¶36 We noted in Bowyer, on the other hand, that “summary judgment for the employer 

is proper if the employee’s activity is not related to the employer’s business.” ¶ 16. Despite 

the fact that the employee’s job duties included transporting his crew to the job site and 

back to the motel in his personal vehicle, we agreed with the district court that the 

employee, after dropping off the crew at the motel, was on a “non-work-related jaunt” for 

dinner and bar-hopping when the collision occurred. Bowyer, ¶ 16. The employer’s 

“culture of safety” policy did not support the plaintiffs’ argument that the employee’s acts 

in causing the collision were within the scope of his employment; the policy addressed 

off-duty activities of employees only insofar as those activities affected on-duty work 

performance. Bowyer, ¶ 15. Nothing in the summary judgment record indicated that the 

employee’s travel the evening of the collision “was at [the employer’s] request or even 

with its knowledge.” Bowyer, ¶ 16.

¶37 We upheld summary judgment for the employer in Roberts because its employee’s 

conduct of either throwing an explosive device out of his truck or intentionally causing the 
27

truck to backfire was not authorized by the employer or incidental to the employee’s

authorized conduct (of driving a company vehicle from the job site), and did not benefit 

the employer in any way. Roberts, 273 Mont. at 270-71, 903 P.2d at 784.

¶38 In contrast, we agreed that the employer in Rocky Mountain Enters. v. 

Pierce Flooring, 286 Mont. 282, 306, 951 P.2d 1326, 1341 (1997), was not entitled to 

summary judgment. We relied in part on evidence that the employee who vandalized the 

vehicles of the plaintiff—business competitors of his employer—knew his actions could 

harm the competitors’ business activities, raising a genuine issue of fact for the jury 

whether he acted in his employer’s interests and thus within the scope of employment. 

¶39 Applying Montana law, the United States District Court for the District of Montana 

awarded summary judgment to the employer in Kerr, 2016 U.S. Dist. LEXIS at *11 

(adopted by and summary judgment granted, 2016 U.S. Dist. LEXIS 37955 

(D. Mont. Mar. 23, 2016)). The federal court concluded that the employer hospital was 

not liable under respondeat superior for the alleged defamatory comment a nurse made to 

plaintiff’s sister that the plaintiff was “out of his mind” and needed to be committed to a 

mental hospital. The court relied on the lack of any evidence that the nurse’s statement 

was made for the hospital’s benefit “or in furtherance of its interest.” Rejecting the notion 

that the statement was incidental to the nurse’s authorized conduct, the court found that the 

plaintiff

failed to demonstrate the statement is one which is commonly made by 

St. Vincent Healthcare employees, that it does not constitute a departure from 

the normal, authorized tasks of a nurse, or that St. Vincent Healthcare would 

have had reason to expect the nurse would make the statement.
28

2016 U.S. Dist. LEXIS at *8.

¶40 A key part of our opinion in Kornec, in which we affirmed the jury’s finding of an 

employer’s liability, was the longstanding controversy between the plaintiff and the 

tortfeasor’s employer. 120 Mont. at 10, 180 P.2d at 257. Given that well-known 

controversy, officials of the defendant company “might reasonably have apprehended that 

[the employee] might become involved in an altercation with the plaintiff when they 

dispatched [the employee to the site where the assault then occurred.]” 

Kornec, 120 Mont. at 10, 180 P.2d at 257. “The test of the defendant company’s liability 

is not whether the assault was committed in accordance with the master’s instructions but 

whether the act complained of arose out of and was committed in prosecution of the task 

the servant was performing for his master.” Kornec, 120 Mont. at 9-10, 180 P.2d at 257.

¶41 The summary judgment record in this case reveals no evidentiary basis on which a 

rational jury could find that Glancy’s anonymous tip to the MRL EthicsPoint hotline or his 

unabridged disgorging of confidential personnel information to Susan Twiford when she 

predictably followed up with him by phone was in any respect in furtherance of the City’s 

interest or committed in prosecution of any task or authority the City conferred on him. 

First, Glancy obviously knew the City policy when he answered Twiford’s first phone call 

by giving brief, responsive answers to her factual questions and advising her to “talk to 

HR.” His authorized conduct—advising Twiford in response to specific questions that 

Brenden was punctual, had a good attendance record, and was a safe worker—was enough 

“to allow Mr. Brenden to proceed with his application with MRL.” Second, he waited until 
29

Brenden had resigned his City employment and was out of Glancy’s hands to report his

hotline tip—a tip that then grew into disclosure of prohibited information and outright 

falsehood about Brenden’s employment history. With the assumption that Brenden was 

no longer in the City’s employ and there being no evidence that he would be working on 

City-affiliated business in his new position, there is no indication that Glancy’s disclosures 

could serve the City’s purposes whatsoever. What’s more, his unauthorized hotline report, 

information disclosures, and statements to Twiford were not, by any rational inference, 

incidental to authorized conduct because they admittedly: were not disclosures commonly 

made by City employees; departed from the normal, authorized tasks of a City supervisory 

employee; and were beyond any statements that the City would have had reason to expect 

him to make if contacted for a reference check. Brenden submitted no evidence to suggest 

otherwise.

¶42 The application of our precedent to award judgment to the City as a matter of law is 

consistent with principles of the Restatement of Agency, which our case law reflects. The 

Court acknowledges that the Restatement generally aligns with our precedent. 

Opinion, ¶ 13 n.2. Stated generally, as the Restatement (Third) of Agency § 7.07 does, 

“An employee’s act is not within the scope of employment when it occurs within an 

independent course of conduct not intended by the employee to serve any purpose of the 

employer.” Restatement (Third) of Agency § 7.07(2). Under this principle,

[A]n employee’s tortious conduct is outside the scope of employment when 

the employee is engaged in an independent course of conduct not intended to 

further any purpose of the employer. An independent course of conduct 

represents a departure from, not an escalation of, conduct involved in 
30

performing assigned work or other conduct that an employer permits or 

controls. When an employee commits a tort with the sole intention of 

furthering the employee’s own purposes, and not any purpose of the 

employer, it is neither fair nor true-to-life to characterize the employee’s 

action as that of a representative of the employer. The employee’s intention 

severs the basis for treating the employee’s act as that of the employer in the 

employee’s interaction with the third party.

Restatement (Third) of Agency § 7.07(2) cmt. b. Applied to the undisputed record here, in 

which Glancy admitted under oath that he provided information to MRL not to “help[] out 

the City . . . as part of [his] job-related functions,” but “to let them know what kind of 

employee they were hiring[,]” there is no genuine issue of material fact. Glancy’s conduct 

was not intended to and did not further any purpose of his employer but was an independent 

course of conduct outside the scope of his City employment.

¶43 Finally, the City is correct that Brenden cannot rely on the doctrine of apparent 

authority to pursue his claims under these circumstances. “Apparent authority is the power 

held by an agent or other actor to affect a principal’s legal relations with third parties when 

a third party reasonably believes the actor has authority to act on behalf of the principal 

and that belief is traceable to the principal’s manifestations.” Restatement (Third) of 

Agency § 2.03. Quoting the earlier version of this principle from Restatement of the Law 

of Agency § 27, we held, “Apparent authority to do an act may be created by written or 

spoken words or any other conduct of the principal which, reasonably interpreted, causes 

a third person to believe that the principal consents to have the act done on his behalf by 

the person purporting to act for him.” Kraus v. Treasure Belt Mining Co., 146 Mont. 432, 

435, 408 P.2d 151, 152 (1965) (emphasis in original). There are two inquiries in analyzing 
31

apparent authority: “the exact extent to which the principal held the agent out or permitted 

him to hold himself out as authorized, and what a prudent person, acting in good faith, 

under the circumstances would reasonably believe the authority to be.” Bogle v. Ownerrent 

Rent to Own, 264 Mont. 515, 519, 872 P.2d 800, 803 (1994) (quoting Butler Mfg. Co. v. 

J & L Imp. Co., 167 Mont. 519, 527, 540 P.2d 962, 967 (1975)). “[B]oth parts of the test 

must be met for ostensible authority to exist.” Estate of Pruyn v. Axmen Propane, Inc., 

2009 MT 448, ¶ 54, 354 Mont. 208, 223 P.3d 845 (emphasis omitted) 

(citing Youderian Constr. v. Hall, 285 Mont. 1, 10, 945 P.2d 909, 914 (1997)). 

¶44 Brenden did not offer any evidence to suggest that a prudent person in good faith 

reasonably would have believed that Glancy had authority to disclose confidential 

personnel records and information about Brenden after he had resigned his City 

employment. The evidence in fact demonstrated that Scott Trent of MRL thought it 

surprising that Glancy would reveal so much information, as “typically, organizations are 

somewhat restrictive in what they are willing to share.” Indeed, Glancy already had 

advised MRL that he could not share additional information when Twiford contacted him 

for the reference check. This gets to the heart of Brenden’s apparent-authority problem. 

The doctrine exists to hold a principal accountable for a “manifestation that clothes the 

agent with the appearance of authority to act on the principal’s behalf and that induces the 

third party reasonably to believe that the agent acts with actual authority.” Restatement 

(Third) of Agency, § 7.08 cmt. b. The third party that would be in a position to make such 
32

a claim is MRL, not Brenden. It is not a party and has made no such claim. Brenden 

cannot assert Glancy’s apparent authority to take the City to trial in this case.

¶45 Only one legal inference reasonably may be drawn from the undisputed material 

facts on this record. The District Court’s award of summary judgment to the City should 

be affirmed.

/S/ BETH BAKER

Chief Justice Mike McGrath and Justice Laurie McKinnon join in the Dissent of 

Justice Baker.

/S/ MIKE McGRATH

/S/ LAURIE McKINNON