NO. 91-578 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

APPEAL FROM: District Court of the Tenth Judicial District, 

In and for the County of Fergus, 

The Honorable Peter L. Rapkoch, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Frederick F. Sherwood; Reynolds, Motl, Sherwood and 

Wright, Helena, Montana 

For Respondent: 

Monte J. Boettger, Attorney at Law, Lewistown, 

Montana 

Filed: 

submitted on Briefs: May 21, 1992 

Decided: 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

Dale Duane Link alleges that the City of Lewistown failed to 

hire him as a firefighter in violation of the Montana Human Rights 

Act and the Governmental Code of Fair Practices. The District 

Court for the Tenth Judicial District, Fergus County, granted 

partial summary judgment for the City. We reverse. 

The issue is whether the District Court erred in ruling that, 

as a matter of law, 5 7-33-4107, MCA, prohibits the City from 

hiring as a full-time firefighter an applicant over thirty-four 

years of age who had been serving as a part-paid firefighter and 

member of the Firefighters' Unified Retirement System for the City 

since before he was thirty-four years of age. 

Dale Duane Link began working as a part-paid firefighter for 

the City of Lewistown in 1981. Under the City's personnel rules, 

regulations, and requirements, part-paid firefighters are appointed 

by the fire chief and must serve a six-month probationary period. 

They receive a monetary fee for hours or fractions thereof served 

in fighting fires and in training. 

In 1988, Link applied for a position as a full-time firefighter for the City. The position was not initially publicly 

advertised beduse the Fire Chief viewed the pool of qualified 

applicants to be the part-paid firefighters. Appointment to this 

position required approval by the Mayor and City Council. After 

testing and interviews, the Fire Chief sought approval of Link for 
the full-time position at the regular Lewistown City Council 

meeting of September 19, 1988. 

At the meeting, Council members expressed concern with the 

interpretation of 5 7-33-4107, MCA, which states that firefighters 

"shall not be more than 34 years of age at the time of original 

appointment." The statute does not define ttoriginal appointment." 

Link had served as a part-paid firefighter since he was thirty-one 

years old, but he was thirty-nine when he applied for the full-time 

position. It is undisputed that he met all other qualifications 

for the job. After discussion, the City Council directed that the 

full-time position be publicly advertised. 

Link contacted an attorney who advised the City Council that 

a complaint was being filed with the Montana Human Rights Commission. The matter came before the City Council again at its October 

17, 1988 meeting. The Fire Chief informed the Council that he had 

publicly advertised the position and that he still recommended that 

Link be approved for the position. 

After discussion, the Council tabled the matter pending review 

by the City Attorney. At a meeting the following month, Council 

members agreed to seek the opinion of the Montana Attorney General 

on the applicability of the age limitation in 9 7-33-4107, MCA. 

The effort to obtain an Attorney General opinion was abandoned 

when Link filed a complaint before the Montana Human Rights Commission in November 1988. In January 1990, that complaint was 
dismissed and Link was authorized to file a complaint in District 

Court pursuant to 55 49-2-509 and 49-3-312, MCA. 

Link's complaint in District Court alleges that the City 

discriminated against him on the basis of age, political beliefs, 

and retaliation. The court originally denied cross-motions for 

summary judgment. However, on the parties' joint request for 

reconsideration, it granted partial summary judgment to the City on 

the age discrimination issue. It relied on the City's argument 

concerning the effect of the following language in 5 7-33-4106, 

MCA : 

The mayor . . . shall nominate and, with the consent of 

the council or commission, appoint . . . all firefighters. 

The court reasoned that because the Mayor and City Council did not 

have input into Link's appointment as a part-paid firefighter, his 

appointment to that position was not an "original appointment" 

under 5 7-33-4107, MCA. The partial summary judgment was certified 

to this Court pursuant to Rule 54(b), M.R.Civ.P. 

In this case, the ordinances and personnel rules of Lewistown, 

which were approved by the Mayor and City Council, provide that 

part-paid firefighters shall be appointed by the Fire Chief. We 

conclude that, having delegated its authority to appoint part-paid 

firefighters, the City is now estopped from denying the validity of 

that delegation of authority. 
As a part-paid firefighter, Link has contributed to the 

Firefighters' Unified Retirement System (FURS) since 1981. The 

legislative history of S 7-33-4107, MCA, shows that concern about 

the retirement and disability system was a key reason for setting 

a maximum age for original appointment as a firefighter. Because 

part-paid firefighters participate in FURS, it is reasonable to 

conclude that the legislature intended the maximum age provision to 

apply to part-paid firefighters as well as full-time firefighters. 

This Court gives deference to interpretations of the Montana 

Human Rights Commission concerning the laws which it enforces. 

Harrison v. Chance (1990), 244 Mont. 215, 220, 797 P.2d 200, 203. 

The Commission has interpreted l'oriqinal appointment" under § 7-33- 

4107, MCA, to include appointment as a "part-time volunteer firefighter." Elliot v. City of Helena (1989), Montana Human Rights 

Commission Cause No. 8701003108. 

A 1991 opinion of the Montana Attorney General further 

supports the conclusion that appointment as a part-paid firefighter 

may constitute an "original appointmentw under 5 7-33-4107, MCA. 

The Attorney General, at 44 Op. ACt'y Gen. No. 8, pointed out that 

the limitation on age at the time of original appointment in 5 7- 

33-4107, MCA, is preceded by the following language: 

The state of Montana determines that age is a valid, bona 

fide occupational qualification for the position of 

firefighter because of the rigorous physical demands of 

the firefighting profession and the expectation of many 

years of emergency service. 
This provision clearly refers to the right under § 49-1-102, MCA, 

to be free from discrimination based on age, as part of the Montana 

Human Rights Act. The Attorney General further pointed out that 

the Ninth Circuit Court of Appeals has noted the inherent contradiction in a policy that establishes a maximum hiring age but makes 

no provision for hiring persons over that age with extensive 

similar experience. E.E.O.C. v. County of Los Angeles (9th 

Cir. l983), 706 F.2d 1039, 1043, cert. denied, 464 U.S. 1073. A 

statute should be interpreted to give a lawful result if possible. 

Grossman v. State Dept. of Natural Resources (1984), 209 Mont. 427, 

682 P.2d 1319; 5 1-3-232, MCA. The interpretation given to 3 7-33- 

4107, MCA, by the District Court results in the likelihood that the 

statute would violate laws prohibiting age discrimination. 

For all of the above reasons, we hold that Link's appointment 

as a part-paid firefighter was his "original appointment" under 

5 7-33-4107, MCA. Therefore, we reverse the partial summary 

judgment and remand to the District Court for further proceedings 

consistent with this Opinion. 

8- -. 

/MA 

-chief Justice 

6 
We concur: 

Justices 
Justice Karla M. Gray, dissenting. 

I respectfully dissent from the opinion of the majority. The 

issue before us requires a straightforward interpretation of the 

meaning of noriginal appointment,I1 as that phrase is used in 5 7- 

33-4107, MCA, for purposes of determining whether Mr. Link met the 

statutory qualifications for firefighters at the time he was 

considered and rejected for a position as a firefighter in the City 

of Lewistown Fire Department. It is my view that the answer is 

equally straightforward: Mr. Link had not been appointed as a 

firefighter pursuant to 5 7-33-4106, MCA, before he reached 34 

years of age; therefore, he did not meet the statutory 

qualifications for firefighters under 5 7-33-4107, MCA. 

The majority relies briefly on five different bases, each set 

forth in from one to four sentences, to support its result in this 

case; this almost complete absence of discussion or analysis 

reflects the inherent weakness of the majority's conclusion. An 

appropriate statutory analysis mandates a conclusion that the 

District Court did not err in granting summary judgment to the 

City. That analysis is set forth below, followed by a discussion 

of the flaws in the majority's approach. 

The statutes relating to municipal fire departments are 

contained in Title 7, Chapter 33, Part 41, Montana Code Annotated. 

Section 7-33-4101, MCA, authorizes and requires a fire department 

in every Montana city and town; those departments are to be 

organized and managed as mandated in part 41. The composition of 
municipal fire departments and the duties of the fire chief and 

assistant chief are set forth in 55 7-33-4103 and 7-33-4104, MCA. 

Section 7-33-4106, MCA, addresses the manner in which the 

chief, assistant chief and all firefighters of the department 

mandated by 5 7-33-4101, MCA, must be selected; it specifically 

requires the mayor, with the city council's consent, to appoint 

each of them to the position. Finally, 5 7-33-4107, MCA, sets out 

the qualifications for the position of firefighter; it includes a 

determination by the Montana legislature that age is a bona fide 

occupational qualification for the position and goes on to require 

that firefighters "shall not be more than 34 years of age at the 

time of original appointment[.]" 

It is the latter statutory requirement that is at issue in 

this case. The language is clear and plain. A person cannot be 

more than 34 years old when originally appointed to a firefighter 

position. Reading this language together with the preceding 

statutes governing municipal fire departments can produce only one 

result: the "original appointment" refers back to the only 

appointment process mentioned in the statutes--the appointment by 

the mayor and city council required by 5 7-33-4106, MCA. Applying 

this straightforward statutory interpretation mandates a holding by 

this Court that the District Court did not err in ruling that the 

City was prohibited from hiring a firefighter into its municipal 

fire department who was over 34 years old at the time he was being 

considered and who had not previously been appointed to a 

firefighter position in the manner required by 3 7-33-4106, MCA. 
The majority relies in part on § 7-33-4109, MCA, which 

specifically relates to supplementary volunteer fire departments, 

in reaching its result. Nothing in that statute permits, much less 

requires, such a conclusion. No statutory language mandates the 

manner in which such volunteers are to be selected. The majority 

does not seem to understand what appears so clear to me from the 

very construction and organization of these statutes; namely, the 

very fundamental differences between full-time, professional 

firefighters and fire departments mandated by §§ 7-33-4101through 

7-33-4107, MCA, and supplementary volunteer firefighters and fire 

departments authorized under 5 7-33-4109, MCA. The members of a 

volunteer fire department authorized by 5 7-33-4109, MCA, are 

"enrolled members" of such a department, in contrast to 

firefighters "appointedn to municipal fire departments. The 

volunteerst duties, by statute, are to assist paid fire 

departments. And, while it is true, as the majority suggests, that 

volunteers are "part-paid," they are not permanent part-time 

employees as we ordinarily think of such part-time workers. 

Indeed, under 5 7-33-4109, MCA, volunteers are paid only for such 

fires as they are called out to assist in fighting; that pay can be 

as little as $1 per hour of service. 

The majority begins its shotgun approach to this case by 

suggesting that because the City's rules and regulations require 

part-paid firefighters to be appointed by the fire chief, this 

"delegation of authorityn regarding part-paid firefighters estops 

the City from denying the validity of that delegation as to full- 
time firefighters. As discussed above, the two situations are not 

at all comparable. No statutory hiring requirements exist vis-avis part-paid firefighters; a specific statutory requirement-- 

appointment by the mayor and council--exists for hiring full-time 

firefighters. Furthermore, both the fire chief's affidavit in this 

case and the City's regulations make it clear that no delegation of 

authority exists regarding the hiring of full-time firefighters. 

In addition, contrary to the majority's suggestion in this 

regard, the City does not attempt to deny the validity of the rules 

and regulations regarding selection of part-paid firefighters by 

the fire chief with the approval of the full-time firefighters. As 

discussed, the two situations are entirely separate. Thus, there 

is nothing upon which the City can be estopped. Finally, the 

majority's shorthand presentation of the estoppel basis of support 

for its conclusion does not indicate whether collateral estoppel, 

judicial estoppel or equitable estoppel is being applied, much less 

how the required elements for the purported estoppel are met in 

this case. 

The majority next relies on the legislative history of § 7-33- 

4107, MCA, noting that concerns therein about the retirement and 

disability system formed part of the basis for the maximum age for 

original appointment as a firefighter. From this concern, and 

because part-paid firefighters like Mr. Link can contribute to the 

FURS, the majority states that it is reasonable to conclude that 

the legislature intended the maximum age to apply to part-paid and 

full-time firefighters. First, this conclusion seems to be a non 
sequitur. The question before us is not whether the age limitation 

applies to volunteers; the question is the meaning of "original 

appointmentt1 in $ 7-33-4107, MCA. In addition, it is not necessary 

to look to the legislative history to determine the meaning of that 

statutory language because the language is clear and plain and 

susceptible of only one meaning. 

Assuming arguendo that resort to the legislative history is 

appropriate, it is my opinion that that history supports a result 

opposite from that reached by the majority. The concern relating 

to the firefighter's retirement and disability situation found in 

the legislative history is that, due to the stamina and agility 

required and the very hazardous and stressful nature of 

firef ighting, it is important for firefighters to be able to retire 

at a relatively young age--for the sake of both themselves and 

their colleagues. In connection with the amendment raising the 

maximum hiring age to 34 from 31, professional firefighters 

expressed concern that the amendment would move in the wrong 

direction, by preventing firefighters from retiring at an earlier 

age and keeping them working into more advanced years. These 

concerns are not applicable to part-paid firefighters. 

The result reached by the majority in this case produces 

exactly the result over which concern is expressed in the 

legislative history; it allows volunteer firefighters to be hired 

on as full-time firefighters at any age, Under the majority's 

result, as long as a volunteer firefighter has been selected for 

that duty before reaching 34 years of age, he or she qualifies for 
appointment as a full-time professional firefighter at age 40, 45, 

50 or even later, notwithstanding the statutory maximum age. This 

total gutting of the maximum age qualification clearly is not what 

the Montana legislature intended. 

The majority next relies on the Human Rights Commission's 

Elliott decision. The problem in this regard is that the issue 

presently before the Court is not the same issue addressed by the 

Commission in Elliott. 

The issue in Elliott was whether the age limit for time of 

original appointment meant when appointed to a specific fire 

department (that is, the one most recently being applied to) or to 

any fire department in Montana. The Commission essentially 

concluded that "original appointment" under 5 7-33-4107, MCA, means 

any fire department in Montana as opposed to the fire department to 

which one currently is applying for a position. The Commission did 

not address, presumably because it was not raised, the issue before 

us here; namely, the meaning of "original appointment" under § 7- 

33-4107, MCA, in relation to the "appointment by mayor" requirement 

of 5 7-33-4106, MCA. 

Elliott involved a person who had been a part-paid firefighter 

elsewhere attempting to be hired as a full-time firefighter in the 

City of Helena Fire Department when he was more than 34 years old. 

Helena asserted that "originally appointed" meant, in that case, 

first hired as a firefighter (including as a part-paid firefighter) 

by the City of Helena. Elliott asserted, and the Commission 

concluded, that the phrase meant first hired by any fire department 
in Montana. The Commission was correct in ruling that the original 

appointment language is not location specific and, if the same 

issue were before us in this case, I would give that conclusion 

deference. But the two issues are not the same; therefore, Elliott 

is not applicable here. 

The majority next states that an Attorney General's opinion 

supports a conclusion that appointment as a part-paid firefighter 

'9nay1' constitute an original appointment under 9 7-33-4107, MCA. 

The Attorney Generalfs opinion provides no support for such a 

conclusion. Neither the Attorney General's opinion nor the factual 

situation on which it is based relates in any way to part-paid 

firefighters. 

The fifth and final basis for the majority's conclusion 

relates to age discrimination. As with its estoppel position, the 

majority's conclusion that the District Court's interpretation of 

§ 7-33-4107, MCA, results in the lllikelihoodfl that the statute 

would violate ltlawsll prohibiting age discrimination is, at best, 

shorthand. The majority does not indicate which laws would be 

violated or provide any analysis as to how the facts of Mr. Link's 

case would result in such a violation. 

In this regard, it should be noted that the situation before 

us does not violate the federal Age ~iscrimination in Employment 

Act. Under the ADEA, it is not unlawful for a political 

subdivision employer to refuse to hire an individual because of the 

individual's age if the refusal to hire is (1) with regard to 

employment as a firefighter and the individual has attained the 
maximum hiring age in effect under applicable state law on March 3, 

1983, and (2) pursuant to a bona fide hiring plan that is not a 

subterfuge to avoid the purposes of the ADEA. 29 U.S.C. 5 623(j). 

The maximum hiring age of 34 years was in effect in Montana on 

March 3, 1983, and nothing in this case suggests that the 

limitation is a subterfuge. 

In summary, it is my view that Mr. Link was not appointed as 

a firefighter pursuant to § 7-33-4106, MCA, before he reached the 

maximum hiring age for that position. As a result, he did not meet 

the statutory qualifications for a full-time firefighter. I would 

affirm the District Court. 

Justice Fred J. Weber joins in the foregoing dissent of 

Justice Karla M. Gray.