NO. 94-084

IN THE SUPREME COURT OF THE STATE OF MONTANA

1994

IN THE MATTER OF

HOWARD LARRY PHILLIPS,

Petitioner and Appellant,

-vsCITY OF LIVINGSTON, a Municipal

Corporation, BILL R. DENNIS, RUTH

EGGAR, LYLE GILLARD, LEE HARRIS,

and PATE MIKESELL, as member of

and constituting the City Council

of the City of Livingston, Montana,

Respondents and Respondents. CL JLitlz

CCaRK~F~~~REMECO”R~

s~~~~ OF MONTANA

APPEAL FROM: District Court of the Sixth Judicial District,

In and for the County of Park,

The Honorable Byron L. Robb, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

William F. Frazier, Jr.; Swandal, Douglass, Frazier

& Cole, Livingston, Montana

For Respondent:

Robert L. Jovick, Attorney at Law, Livingston,

Montana

For Amicus Curiae:

Michael J. San Souci, Bozeman, Montana, Attorney

for Montana State Council of Professional

Firefighters, International Association of

Firefighters and Local No. 630, IAFF

Filed:

Submitted on Briefs: September 15, 1994

Decided: November 29, 1994
Justice John Conway Harrison delivered the Opinion of the Court.

This is an appeal from an order of the District Court for the

Sixth Judicial District, Park County, denying Howard Larry

Phillips' (Phillips) petition for a writ of mandamus. We reverse.

We restate the issues raised as follows:

1 . Do the city of Livingston's termination hearing procedures

supersede statutory termination procedures for firefighters

established by the state legislature?

2 . Is Phillips entitled to the relief provided by a writ of

mandamus?

The city of Livingston (Livingston) employed Phillips as a

full time firefighter beginning October lG, 1989. On October 6,

1993, Kenton G. Griffin, Livingston's city manager, sent Phillips

notice that there would be a termination hearing the next day

regarding Phillips' employment. The notice informed Phillips that

he was suspended with pay because of allegations that he contrived

to steal $20 from the local Firefighters Association. The notice

stated that the alleged theft would be addressed at the termination

hearing. Later the same day, Griffin sent Phillips an addendum

stating that the termination hearing would be postponed until

October 8, 1993 because two additional allegations would be

discussed. These allegations were that Phillips had misappropriated a flashlight and carabiners.

Phillips objected to having the hearing on such short notice

2
and requested a continuance. On October 8, 1993, Griffin sent

Phillips a letter stating that his request for a continuance of the

hearing was granted, extending the hearing date to October 14,

1993. The notice added an allegation that Phillips stole

hemostats, and informed him that this allegation would also be

considered at the hearing.

The termination hearing was held on October 14, 1993. Griffin

presided at the hearing. Phillips' counsel objected to the hearing

because it did not conform to the mandates of § 7-33-4124, MCA,

which requires firefighters ' termination hearings to be held before

the city council or commission. Griffin overruled Phillips'

objection and, on October 18, 1993, Griffin sent Phillips his

formal notice of termination. Griffin, acting as the Livingston

city manager, unilaterally decided to terminate Phillips.

On October 22, 1993, Phillips petitioned the District Court

for a writ of mandamus to command his reinstatement as a

firefighter. On January 12, 1994, the court issued its order

denying Phillips' petition. Phillips moved for reconsideration.

On January 24, 1994, the court reaffirmed its previous decision.

From these orders, Phillips appeals.

I

Do the city of Livingston's termination hearing procedures

supersede statutory termination procedures for firefighters

established by the state legislature?

For clarity, we note at the outset that although Livingston

has adopted the commission-manager form of government, Livingston's
city commission refers to itself as the Livingston city council.

Livingston's policy and procedures manual, which the Livingston

city council adopted by resolution number 2175 on June 18, 1990,

states that the city manager shall hold a termination hearing prior

to any discharge, and that only the city manager may discharge an

employee. This procedure conflicts with a Montana statute

regarding the discharge of firefighters which provides:

Suspension procedure. (1) In all cases of suspension the

person suspended must be furnished with a copy of the

charge against him, in writing, setting forth reasons for

the suspension. Such charqes must be presented to the

next meeting of the council or commission and a hearinq

had thereon, when the suspended member of the fire

department may appear in person or by counsel and make

his defense to said charges.

(2) Should the charges not be presented to the next

meetins of the council or commission after the suspension

or should the charges be found not proven by the council

or commission, the suspended person shall be reinstated

and be entitled to his usual compensation for the time so

suspended.

(3) If such charges are found proven by the council

or commission, the council or commission, by a vote of a

majority of the whole council or commission, may impose

such penalty as it shall determine the offense warrants,

either in the continuation of the suspension for a

limited time or in the removal of the suspended person

from the fire department.

Section 7-33-4124, MCA, (emphasis added).

We examined a city's attempt to supersede Montana statutes

dealing with municipal fire departments in Billings Firefighters

Local 521". City of Billings (1985), 214 Mont. 481, 694 P.2d 1335.

In that case, the city of Billings passed an ordinance which

purported to supersede almost all of Title 7, Chapter 33, Part 41,

MCA, regarding municipal fire departments. Billinqs Firefighters,

694 P.2d at 1337. We examined § 7-1-114(f), MCA, which states that

4
local government powers are limited by any law requiring local

government to carry out a function or provide any service.

Billings Firefiqhters, 694 P.2d at 1339-40. We held that the

Billings ordinance was deficient because the ordinance did not

require the city to provide an essential service; specifically, the

ordinance did not provide for the mandatory creation of a municipal

fire department which is required of every city in 5 7-33-4101,

MCA. Billinss Firefiqhters, 694 P.2d at 1339-40. In reaching our

conclusion that the Billings ordinance was void, we expressly noted

that we were not ruling upon other possible conflicts between the

ordinance, other sections of Title 7, Chapter 33, Part 41, MCA, and

§ 7-1-114(f), MCA. Billinas Firefiahters, 694 P.Zd at 1340. We

now have reason to make such a ruling regarding Livingston's policy

and procedures manual.

In the present case, Livingston attempted to supersede the

statutory duty of the city council to hold a hearing before it

decides to terminate a suspended firefighter. We hold that this

violates § 7-l-114, MCA, which states in relevant part:

(1) A local government with self-government powers

is subject to the following provisions:

. . .

(f) Any law directinq or requiring a local

government o r any officer or employee of a local

government to v out carr anv function or provide any

service . . . .

(2) These provisions are a prohibition on the selfgovernment unit acting other than as provided. [Emphasis

added.]

Section 7-33-4124, MCA, clearly requires the Livingston city

council to hold a hearing at its next meeting following the

5
suspension of a municipal firefighter. The council failed to

perform this function. Livingston's policy and procedures manual

essentially has the city manager perform the council's function.

As applied to firefighters, this policy violates the limitations

placed on local governments' powers by § 7-1-114(f), MCA. Thus, as

the policy is applied to city firefighters, it is void.

Livingston argues that the termination procedures provided in

the city manual validly supersede those provided in § 7-33-4124,

MCA, because those termination procedures were included in

Livingston's collective bargaining agreement with the union. In

support of its position, Livingston cites § 39-31-306(3), MCA,

which states in part: "An agreement between the public employer

and a labor organization must be valid and enforced under its terms

when entered into in accordance with the provisions of this

chapter. . . .'I

Livingston also cites a Kansas case in support of its

argument. In Gorham v. City of Kansas City (Kan. 1979), 590 P.Zd

1051, 1056, the Kansas Supreme Court held that terminated policemen

waived their due process rights to a pre-termination hearing

because their union had entered into a collective bargaining

agreement with a grievance procedure. We note that Phillips was

provided with notice of the charges. against him before the city

manager conducted the termination hearing. However, the issue in

this case does not involve the denial of constitutional due

process. Gorham is distinguishable because there was no specific

statutory right to a termination hearing at issue, and the
bargaining agreement here is different from that in Gorham.

We have not addressed the issue of whether a laborer waives

the right to due process, or a statutorily mandated hearing, by

entering into a collective bargaining agreement; nor do we need to

today. A thorough examination of the collective bargaining

agreement makes it possible to give effect to both § 7-33-4124,

MCA, and § 39-31-306(3), MCA. Section l-Z-101, MCA, states in

relevant part that "[w]here there are several provisions or

particulars, such construction is, if possible, to be adopted as

will give effect to all."

Livingston's policy and procedures manual provides that the

city manager shall hold a termination hearing prior to any

discharge, and that only the city manager may discharge an

employee. Article V of the collective bargaining agreement is

entitled "Policy and Procedures." Section 5.1 of the agreement

states: "The Union agrees to adopt the City of Livingston[']s

Policy and Procedures manuals where not in conflict with this

Agreement." Article XIII of the collective bargaining agreement is

entitled "Discipline and Discharge." Section 13.3 states: "The

employer may suspend an employee with pay pending the final

decision as to the appropriate discipline or the overturning of the

discipline bv the appropriate authority" (emphasis added).

The appropriate authority for administering discipline in this

case was the city council, pursuant to § 7-33-4124, MCA. Thus, the

section of Livingston's policy and procedures manual which vests

the city manager with the power to discharge firefighters conflicts

7
with § 13.3 of the collective bargaining agreement. Therefore, in

accordance with § 5.1 of the collective bargaining agreement,

Phillips' union did not adopt Livingston's policy and procedures

manual where it deals with discipline and discharge of city

employees. We hold that the city of Livingston's termination

hearing procedures do not validly supersedes those procedures

established by the state legislature for the termination of

firefighters.

II

Is Phillips entitled to the relief provided by a writ of

mandamus?

A district court's denial of a writ of mandamus is a matter of

legal interpretation; we review district courts' legal

interpretations as to whether they are correct. Rocky Mountain

Timberlands, Inc. v. Lund (Mont. 1994), 877 P.2d 1018, 1020-21, 51

St.Rep. 653, 654: citing Steer, Inc. v. Dep't of Revenue (1990),

245 Mont. 470, 803 P.2d 601.

Section 27-26-102, MCA, provides as follows:

(1) A writ of mandamus may be issued by the supreme

court or the district court or any judge of the district

court to any lower tribunal, corporation, board, or

person to compel the performance of an act that the law

specially enjoins as a duty resulting from an office,

trust, or station or to compel the admission of a party

to the use and eniovment of a risht or office to which

the party is entitled and from which the party is

unlawfully precluded by the lower tribunal, corporation,

board, or person.

(2) The writ must be issued in all cases in which

there is not a plain, speedy, and adequate remedy in the

ordinary course of law. [Emphasis added.]

We have stated that the writ of mandamus will lie where, in

8
addition to there being no plain and adequate remedy in the

ordinary course of law, the party seeking to invoke the writ is

entitled to the performance of a clear legal duty against whom the

writ is directed. State ex rel. Neuhausen v. Nachtsheim (1992),

253 Mont. 296, 299, 833 P.2d 201, 203; citing State ex rel.

Galloway v. City of Great Falls (1984), 211 Mont. 354, 358, 684

P.2d 495, 497.

Here, there is no question that a clear legal duty exists.

Under § 7-33-4124, MCA, the Livingston city council is directed to

conduct a termination hearing at its next meeting following a

firefighter's suspension. Since they failed to do so, the relief

specifically provided by § 7-33-4124(2), MCA, is Phillips'

reinstatement to his former position.

"As a general rule, before mandamus will issue to a public

officer, board or municipality, a demand for the performance of the

act sought to be compelled is required." Liebman v. Brunell

(1984) I 212 Mont. 459, 460, 689 P.2d 248; citing State ex rel.

School District No. 29, Flathead County v. Cooney (1936), 102 Mont.

521, 59 P.2d 48. Phillips has demanded the Livingston city council

to hold a termination hearing since the city manager first presided

over Phillips' termination hearing. Thus, he has met the demand

requirement.

Livingston argues that mandamus is inappropriate because

Phillips has not exhausted his avenues of remedy under the

grievance procedure contained in the collective bargaining

agreement. In support of its position, Livingston cites Lueck v.

9
United Parcel Service (1993), 258 Mont. 2, 851 P.2d 1041. In

Lueck, we affirmed the district court ' s summary judgment and

dismissal of a former United Parcel Service employee's retaliatory

discharge claim because he failed to utilize the grievance

procedures available in his union's collective bargaining agreement

with UPS. Lueck, 851 P.2d at 1044-45.

The present case, however, is distinguishable from Lueck -*

Lueck did not involve an application for writ of mandamus.

Further, there was neither a clear statutory duty for a legislative

body to take action, nor was there a clear and mandatory statutory

remedy provided for the discharged employee. Here, 5 7-33-4124(l),

MCA, clearly establishes that the Livingston city council has the

duty to hold a termination hearing after the suspension of a

firefighter. Section 7-33-4124(2), MCA, just as clearly provides

that the remedy for the council's failure to hold such a hearing is

Phillips' reinstatement to his former position.

Finally, mandamus is the proper remedy in this case because

Phillips does not have a plain, adequate, and speedy remedy.

Section 27-2G-102(2), MCA. Phillips' remedy for the denial of the

process provided in § 7-33-4124(l), MCA, is clear. Section 7-33-

4124(2), MCA, provides that if the city council or commission does

not hold a termination proceeding following a firefighter's

suspension, the firefighter is entitled to reinstatement and pay

for the term the firefighter was suspended. We hold that the

District Court incorrectly interpreted the law and erred by failing

to issue the writ of mandamus.

10
For the reasons previously stated, we reverse the judgment of

the District Cour.t and remand for proceedings consistent with this

opinion.

1

/ - Justike

We concur:

11
November 29, 1994

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the

foIlowing named:

William F. Frazier, Jr.

SWANDAL, DOUGLASS, FRAZIER & COLE

206 East Callender

Livingston, MT 59047

Robert L. Jovick

Attorney at Law

P. 0. Box 1245

Livingston, MT 59047

Matthew Flanick

Attorney at Law

414 East Callender

Livingston, MT 59047

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA