No. 90-067 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

SIDNEY BURGESS, we 1 

Plaintiff and Appellant, 

-vt - :, -1 1990 LEWIS AND CLARK CITY-COUNTY 

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 

Filed: 

Submitted on briefs: July 13, 1990 

Decided: September 4, 1990 
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. ~othing in 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 ~istrict Courtls order granting dismissal on both counts 

is affirmed. 

We Concur: 

-/ .-- Chief /4.7-, Justice 
&?A& 

Justices