No. 91-176 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

IN THE MATTER OF THE TERMINATION 

OF WILLIAM WONG, 

WILLIAM WONG, 

Petitioner and Respondent, 

-vsCITY OF BILLINGS AND 

BILLINGS POLICE COMMISSION, 

Respondents and Appellants. 

APPEAL FROM: District Court of the Thirteenth Judicial Dhtrict, 

In and for the County of Yellowstone, 

The Honorable G. Todd Baugh, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Bonnie J. Sutherland, Assistant City Attorney, 

Billings, Montana 

For Respondent: 

David W. Stiteler, Montana Public Employees 

Association, Helena, Montana 

Submitted on Briefs: August 15, 1991 

Decided: February 21, 1992 

Filed: 2 1 1992 

+.& 

Cuerk 
Justice Karla M. Gray delivered the Opinion of the Court. 

The City of Billings appeals from an order of the District 

Court of the Thirteenth Judicial District, Yellowstone County, 

reversing the decision of the Billings Police Commission and 

remanding for another hearing. We reverse. 

The dispositive issue before this Court is whether the 

District Court erred in reversing the decision of the Police 

Commission (Commission) and remanding for another hearing, based on 

the Commission's failure to grant a continuance. One other issue, 

whether the discharged police officer received sufficient notice of 

the charges against him, is addressed herein. 

Pamela and William Wong separated in 1983; their marriage was 

dissolved in 1987. During 1987, William Wong (Wong), a police 

officer for eighteen years with the Billings Police Department, 

began visiting his ex-wife Pamela at her residence, usually in 

uniform, and threatening her with various harmful actions. From 

1987 through 1989, Wong continued his on-duty and off-duty 

surveillance and harassment of Pamela Wong. 

Pamela feared her ex-husband during his visits to her home 

because he threatened her with physical violence, with verbally 

abusive and denigrating language, and with the authority he 

possessed as a police officer. On one occasion Wong told her he 

knew that her car registration and insurance were running out and 

that he would make certain she was pulled over to have them 

checked. On another occasion, Wong threatened to kill her. During 

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many of these intimidating episodes, Wong wore his police revolver. 

Wong also began a series of visits and calls, usually while in 

uniform, to Pamela's babysitters during this time. These visits 

frightened the babysitters and several of them quit because of the 

intimidation. Most encounters with the babysitters occurred at 

Pamela's residence. Neighbors corroborated that on some of these 

occasions, Wong pulled his police cruiser into Pamela's driveway, 

flashed the cruiser's lights, honked the horn and waited for his 

children to leave the house and come out to the car. He would then 

speak to the babysitter. 

Pamela attempted to stop the unannounced visits to her home by 

obtaining a restraining order against Wong. This failed to stop 

him. When the one-year restraining order lapsed and the visits 

continued, Pamela called Chief Ellis E. Kiser, Wong's supervisor, 

to complain. On November 2, 1988, Chief Kiser issued Wong a 

written order to cease visiting his ex-wife's home while on duty. 

Wong violated Chief Kiser's order on numerous occasions between the 

time it was issued and his termination on May 11, 1990. 

Wong harassed Pamela's friends, Wally and Sandy Persoma and 

their children, by making rude gestures to them on numerous 

occasions while they were in public. The Persomas telephoned 

Chief Kiser to complain of Wong's continued harassment: their calls 

prompted Chief Kiser to issue a written reprimand and warning to 

Wong . 

In December of 1988 and March of 1989, Wong filed charges 

against Pamela alleging neglect of their children. Caseworkers for 

3 
the Department of Family Services investigated the charges. No 

neglect was found. 

In August of 1989, Wong initiated a police report against 

Pamela regarding her "harassment" of him while she worked in her 

official capacity as a detention officer. Pamela's supervisor 

determined that these allegations were without merit, but Wong 

persisted in pressuring Pamela's superiors to take action, 

threatening to go to the sheriff and possibly the police commission 

if Pamela did not receive at least a reprimand. 

Pamela filed a citizen's complaint with the police department 

against her former husband in August of 1989. A copy of this 

complaint was sent to Wong on August 14, 1989. The complaint 

alleged an ongoing pattern of harassment against herself, her 

babysitters, certain friends and others. Most of the actions 

complained of occurred while Wong was on duty and in uniform. 

Pamela's complaint prompted an internal investigation by the 

Billings Police Department during which it was discovered that Wong 

also had been using police department property for his own 

purposes. Because the allegations lodged against Wong were of a 

serious nature, Wong was advised in November of 1989 that a 

Commission hearing would be held. 

Wong contacted Montana Public Employees Association counsel 

Dave Stiteler (Stiteler) in November, 1989, with regard to the 

upcoming Commission hearing. Stiteler told Wong that he would 

provide representation if scheduling permitted. 

A formal complaint alleging thirty-nine charges was served on 

4 
Wong March 27, 1990, twenty-two days before the Commission hearing 

was scheduled to begin on April 18. Wong contacted Stiteler 

immediately upon receiving the complaint, but he did not provide 

Stiteler with a copy of the complaint for approximately a week 

thereafter. Stiteler mailed a request for postponement on Wongls 

behalf to the Commission on April 5, 1990. The Commission denied 

the request on April 10, 1990, one day after receiving it. 

Stiteler then referred Wong to private counsel in Billings. 

Wong consulted with counsel on or about April 12, 1990, and was 

informed that counsel would represent him upon payment of a 

retainer. Wong declined. Two days prior to the start of the 

hearing, Wong contacted the same Billings attorney and requested 

representation at the hearing. Counsel declined to undertake the 

representation at that point on the basis that, at that late date, 

there was insufficient time for him to prepare Wongls case. 

The hearing was held April 18, 1990 through May 2, 1990. 

Bonnie Sutherland represented the City of Billings; Wong presented 

his own defense. The Commission assisted Wong with hearing 

procedures. Wong subpoenaed witnesses, admitted exhibits, and 

cross-examined witnesses. 

The Commission ultimately concluded that Wong was guilty of 

thirty-five of the thirty-nine charges, thirty-one of which 

represented conduct which bore no relationship to legitimate 

activities of a police officer and required disciplinary action. 

Wong was permanently discharged from his position as police officer 

on May 11, 1990. The Commission concluded that "Police Officer 

5 
William Wong repeatedly violatedthe Law Enforcement Code of Ethics 

by permitting his personal feelings and animosities to influence 

his personal and professional decisions toward Pam Wong and other 

citizens" and that the proven incidents constituted "Conduct 

Unbecoming a Police Officer, Misconduct in Office, and Conduct 

bringing Reproach Upon the Police Department." City Administrator 

Alan Tandy issued an order affirming Wong's discharge on May 15, 

1990. 

The District Court reviewed the entire record and the briefs 

of the parties and concluded that the evidence before the 

Commission was sufficient to support Wong's discharge. The court 

then concluded that the notice Wong received was statutorily 

sufficient, butthat the Commissions's denial of Wong's request for 

a continuance was arbitrary, capricious and an abuse of discretion 

which denied Wong procedural due process. As a result, the 

District Court reversed the decision of the Commission and the 

order of the City of Billings discharging Wong, and remanded the 

matter to the Commission for a new hearing. The City of Billings 

appeals. 

The police commission has the responsibility to hear and 

decide all charges against police officers. Section 7-32-4155, 

MCA. Charges must be in writing and served upon the police officer 

at least fifteen days before the time fixed for the hearing. 

Section 7-32-4156, MCA. Following the police commission hearing, 

the mayor or city manager may either approve, modify or veto the 

decision of the police commission. Sections 7-32-4153, 7-32-4160, 

6 
7-32-4161, MCA. The district court has jurisdiction to review all 

questions of fact and law decided by a police commission. Section 

7-32-4164, MCA. 

The City of Billings contends that the District Court erred in 

holding that the formal complaint should have been served on Wong 

prior to March 27, 1989. We note that, while the court expressed 

its concern over the lack of service at an earlier date, it 

concluded that the service was statutorily sufficient. We agree 

that the service was timely under 5 7-32-4156, MCA, which requires 

service of the charges at least fifteen days prior to the time 

fixed for hearing. Wong was served twenty-two days in advance of 

the hearing. The statutory notice and service requirement having 

been met, the Commission was empowered to proceed. Gentry v. City 

of Helena (1989), 237 Mont. 353, 773 P.2d 309. 

The dispositive issue is whether the District Court erred in 

reversing the decision of the Police Commission and remanding for 

another hearing, based upon the Commission's failure to grant a 

continuance. 

The City of Billings contends that the Police Commission's 

denial of Wong's request for a continuance was within its 

discretion and, therefore, that the District Court erred in 

concluding that the Commission's denial was "arbitrary, capricious 

and an abuse of discretion which resulted in denying petitioner 

procedural due process. . . .I' Wong sought the continuance on the 

grounds that his preferred legal representative was not available 

for the hearing dates, that he did not have sufficient preparation 
time, and that the formal charges against him included several new 

charges in addition to those contained in Pamela's initial 

complaint of August, 1989. In denying the continuance, the 

Commission determined that good cause for the postponement was not 

shown in that Wong was given more than the statutorily required 

notice, he waited more than a week after receiving the complaint to 

mail his request, and he had sufficient time to prepare his case. 

An administrative agency possesses broad discretion in 

deciding whether to grant or deny a motion for continuance. 

Bickham v. Selcke (I11.App. 1 Dist. 1991), 576 N.E.2d 975. Thus, 

our standard of review for the Police Commission's denial of the 

continuance at issue is whether the Commission's decision to deny 

the continuance was "arbitrary or capricious or characterized by 

abuse of discretion or clearly unwarranted exercise of discretion. 

. . .'I Section 2-4-704(2)(a)(vi), MCA. In addition, because the 

District Court also based its conclusion regarding the Commission's 

denial upon procedural due process grounds, we will review the 

Commission's decision under 5 2-4-704(2)(a)(i), MCA, to determine 

whether it violated this constitutional guarantee. 

The City of Billings argues that the Police Commission's 

denial of the continuance was not an abuse of discretion. Wong 

argues that the City of Billings overlooks the hardship that the 

denial of the continuance caused him. Seeking a continuance due to 

lack of representation does not ensure the grant of a continuance. 

Grunewald v. Missouri Pacific Railroad Co. (8th Cir. 1964), 331 

F.2d 983; M.D. Rutledge v. Electric Hose and Rubber Co. (9th Cir. 

a 
1975), 511 F.2d 668. In making its decision on a requested 

continuance due to lack of counsel, a court or agency must assess 

whether the party petitioning for continuance has acted diligently 

in seeking counsel. 17 Am.Jur.2d 5 23. If the party has not acted 

diligently in procuring representation, a tribunal does not abuse 

its discretion in denying the continuance. 

Here, Wong knew that his preferred representative would 

represent him only if scheduling permitted. He was served with the 

formal complaint on March 27 but did not forward a copy to Stiteler 

for a week thereafter. His request for postponement was not mailed 

until April 5 nor received by the Commission until April 9; by that 

time, more than half of Wong's preparation time had elapsed. The 

Commission's April 10 denial of Wong's request was received by 

Stiteler on April 12, 1990. 

On receipt of the denial of the postponement, Wong sought the 

representation of a private attorney. The private attorney told 

Wong that he would represent him if Wong paid an advance retainer. 

While Wong claims he did not have the money for the retainer and, 

therefore, could not retain counsel, the record reflects that two 

days before the hearing, Wong sought the representation of the same 

private attorney who then refused to represent Wong as insufficient 

time remained to prepare Wong's defense. For these reasons, the 

City of Billings contends that Wong's own conduct brought about his 

lack of legal representation and asserted lack of preparation time. 

In Weston v. Denny (Ariz. 1971), 480 P.2d 24, the Arizona 

Court of Appeals found that the plaintiff's lack of counsel was due 

9 
to the plaintiff's own actions and, therefore, the trial court did 

not abuse its discretion in denying the continuance. Wong argues 

that Weston is not applicable as he did nothing which obstructed 

procuring representation. The record, however, does not support 

Wong's position. Wong was aware as early as November of 1989 that 

the charges filed against him would be heard by the Police 

Commission and that he would need the assistance of counsel. He 

was aware that Stiteler's possible representation was conditioned 

on scheduling considerations. When Wong received the formal 

complaint, he delayed in forwarding it to Stiteler. The request 

for postponement was not mailed until nearly half of Wong's 

preparation time had elapsed. Finally, counsel clearly was 

available to Wong even after the denial of his request for a 

continuance. We conclude that Wong's own actions, or lack thereof, 

prevented him from obtaining counsel. Therefore, the Commission 

did not act arbitrarily or capriciously in denying the request for 

continuance. 

The City of Billings further contends that the charges which 

were formally served upon Wong on March 27, 1990, were essentially 

the same as those contained in Pamela Wong's August 1989 citizen's 

complaint. Wong claims that the formal charges included several 

which were not contained in the initial complaint and that the new 

charges hampered his ability to prepare for the hearing in the time 

provided. The record reflects that following an internal 

investigation subsequent to Pamela's original complaint, several 

charges were added to those brought against Wong by his ex-wife; 

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forthe most part, these additional charges related to unauthorized 

use of police department property in his campaign of harassment 

against Pamela. We conclude that the formal charges filed against 

Wong in March of 1990 were essentially the same as those contained 

in Pamela's initial citizen's complaint, that they were minimal 

when compared to the totality of the charges and, therefore, that 

they did not adversely impact on the sufficiency of the preparation 

time available to Wong. The commission did not act arbitrarily or 

abuse its discretion in denying the requested postponement in light 

of the new charges. 

Finally, the City of Billings and Wong agree that when an 

employee has a property interest in his or her employment, certain 

due process protections are mandated. The United States Supreme 

Court has decided that an employee with a property interest in his 

employment must be given notice and an opportunity to respond. 

Cleveland Board of Education v. Loudermill (1985), 470 U.S. 532, 

542, 105 S.Ct. 1487, 1496, 84 L.Ed.2d 494, 504. The Montana 

statutory safeguards for police officers direct that all charges 

must be in writing and served upon the police officer at least 

fifteen days before the required hearing; in addition, officers 

have a right to be present at the hearing in person and by counsel 

and to be heard and furnish evidence in their defense. Sections 7- 

32-4155, et seq., MCA. 

The City of Billings argues that the Commission met both the 

Loudermill standard and the Montana statutory safeguards for police 

officers in providing due process to Wong. We agree. Wong was 

11 
provided the notice required by both Loudemill and the Montana 

statutes. A hearing was held at which he appeared and presented 

witnesses in his own defense. That Wong appeared without counsel 

was due to his own actions. Therefore, we hold that the District 

Court erred in its evaluation of the Police Commission's denial of 

Wong's continuance; the Commission's denial was not arbitrary, 

capricious or an abuse of discretion and it did not violate Wong's 

due process rights. 

We reverse the District Court's order and direct that the 

final decision of the Commission and the order of the City of 

Billings enforcing that decision be reinstated. 

Reversed. 

Just ices 

12 
Justice Fred J. Weber dissents as follows: 

After a review of the entire record, the District Court 

concluded that the Commission's denial of Mr. Wong's request to 

continue the hearing was arbitrary, capricious and an abuse of 

discretion. I agree with that conclusion. 

The record discloses that Pam Wong and the City of Billing5 

Police Department signed the complaint filed against Mr. Wong on 

November 27, 1989. While the complaint was filed with the Billings 

Police Commission on February 10, 1990, Mr. Wong was not served 

with a copy of the complaint until March 27, 1990, some six weeks 

after its filing and just three weeks prior to the hearing. 

On April 4, 1990, Mr. Stiteler, as attorney for Mr. Wong, 

requested a continuance, stating that Mr. Stiteler had prior 

commitments which conflicted with the scheduled hearing dates, and 

due to the nature of the charges in the complaint, Mr. Wong needed 

additional time to prepare an adequate defense. The Commission 

denied Mr. Wong's request for continuance claiming that Mr. Wong 

failed to show good cause for the postponement: however, the 

Commission does not challenge Mr. Stiteler's unavailability on the 

hearing dates. The Commission's order stated: 

Police Officer Wong was served with a copy of the Notice 

of Hearing and a copy of the Complaint filed against him 

on March 27, 1990. On April 2, 1990, the City Attorney's 

office provided Officer Wong with copies of statements 

and information pertinent to the charges pending against 

him. Officer Wong's Attorney David Stiteler, did not 

mail his Request for Postponement until April 5, 1990, 

more than one week after service of the complaint. 

Officer William Wong has been given more than the 

statutorily required 15 days notice of hearing. He has 

sufficient time to prepare his case... 

13 
In this case, the Commission's denial of a continuance effectively 

prohibited Mr. Stiteler from representing Mr. Wong. 

Here, the complaint charging Mr. Wong contained 39 counts. 

The hearing on the complaint was held on April 18, 19, 20, 24, and 

25, 1990, and lasted over twenty-three hours. Thirty-four 

witnesses appeared on behalf of the parties. Yet, despite the 

complexity of this hearing, Mr. Wong represented himself pro se 

without the assistance of an attorney. 

In considering the complexity of the charges, the number of 

witnesses, the unavailability of counsel chosen by Mr. Wong, and 

the City's six week delay in serving Mr. Wong with the complaint 

after its filing; the Commission's refusal to continue the hearing 

adversely effected Mr. Wong's ability to prepare an adequate 

defense. The fact that the Commission complied with the statutory 

fifteen day notice does not eliminate the potential prejudice. I 

therefore agree with the District Court's conclusion that the 

decision of the Commission was arbitrary, capricious and an abuse 

of discretion. I would affirm the District Court. 

14 
February 21, 1992 

CERTIFICATE OF SERVICE 

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

named: 

Bonnie J. Sutherland 

Asst. City Attorney 

P.O. Box 1178 

Billings, MT 59103 

David W. Stiteler 

Montana Public Employees Assoc 

1426 Cedar 

Helena, MT 59601 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA