No. 83-309 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

DENNIS P. WELSH, 

Plaintiff and Appellant, 

THE CITY OF GREAT FALLS, 

MONTANA, a municipal corp. 

of the State of Montana, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable John M. McCarvel, Judge presiding. 

COUNSEL OF %CORD: 

For Appellant: 

Graybill, Ostrem, Warner & Crotty; Donald R. Ostrem, 

argued, Great Falls, Montana 

For Respondent: 

David V. Gliko argued, City Attorney, Great Falls, 

Montana 

Submitted: ~ecember 8, 1963 

Decided: October 1, 1984 

Filed: 

Clerk 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court . 

Plaintiff, Dennis P. Welsh, appeals from a judgment of 

the Cascade County District Court denying him all relief on 

his complaint against the City of Great Falls for wrongful 

termination as a fireman. Welsh alleged that his termination 

on August 1, 1980, was without cause, had failed to follow 

the statutory procedures for termination of firemen, and that 

because he had a property interest in his employment, he had 

been denied hearing rights guaranteed to him by the Due 

Process clauses of the United States and Montana 

Constitutions. Although we hold that the statutory scheme 

for termination of firemen did not apply to Welsh where bad 

health is the alleged reason for the termination, we also 

hold that Welsh did have a property interest in his position 

as a fireman and therefore that he could not be terminated 

without the opportunity for a hearing before an impartial 

tribunal. We do not reach the question of cause for his 

termination because that can only be resolved after a proper 

hearing or after Welsh has properly waived an opportunity for 

another hearing. 

On a separate but related issue, we hold that Welsh is 

not entitled to payment for all of his accumulated sick 

leave, as he contends, but is entitled only to the amount set 

by statute--one fourth of his accumulated sick leave (section 

2-18-618(5), MCA). This issue is decided now in order to 

avoid a possible further appeal where the issue is raised 

once again. 

The trial court ruled that the applicable statutes did 

not give Welsh any hearing rights where bad health is the 
alleged reason for termination, that a series of meetings 

Welsh had had with his superiors after his health had become 

an issue, together with the opportunity for an exit interview 

with the personnel department upon his termination, were 

sufficient to meet the demands of due process under the 

Fourteenth Amendment. The trial court did not rule on 

Welsh's claim that his rights to due process under Art. 11, 5 

17, to the Montana Constitution were violated. Finally, in a 

bare-bones a 11-inclusive finding, the trial court ruled that 

"the Plaintiff (We1 sh) acknowledged his physical incapacity 

and consented to retire." We hold that under Art. 11, S 17, 

of the Montana Constitution, Welsh was denied his right to 

opportunity for a hearing before an impartial tribunal before 

he could be lawfully terminated for health reasons. 

Plaintiff Welsh began his career as a Great Falls 

fireman when he was appointed to a six-month probationary 

period on March 11, 1963. After the probationary period, 

Welsh was nominated and appointed to serve as a full-time 

Great Falls fireman. In 1971, however, a benign brain tumor 

was discovered in Welsh's left temporal lobe. He underwent 

two successful operations to have the tumor removed, and was 

placed on medication to control seizure attacks. Welsh 

returned to duty after a six-month layoff. Welsh was given 

an office job in the fire prevention bureau for the first 

year after his return, but was later returned to active 

f iref ighting duties. In 1973, Welsh passed the examination 

for the rank of captain and was promoted to that rank. 

In 1977, Welsh suffered a severe seizure at the station 

house shortly after he had returned from a fire. Accord-ing 

to the testimony of a fellow fireman, Welsh passed out in the 

cab of the fire engine just as it was pull-ing into the 
station. After this incident, Welsh's medication dosage was 

increased to attempt to prevent further seizure attacks. 

Three years later, during a drill on July 21, 1980, Welsh was 

hospitalized for what was diagnosed by the emergency room 

doctor as "heat exhaustion." Welsh was inside a burning 

structure and apparently became disoriented and confused, had 

glazed eyes and was sweating profusely. 

After the July 21 incident, Welsh had three meeti~qs 

with the fire chief, the final one resulting in the fire 

chief handing Welsh a termination letter effective August 1, 

1980. Welsh was also offered an exit interview with the 

personnel department before his employment terminated, but he 

declined the interview. The City argues that Welsh did not 

have a property interest in his position as a fireman, and 

also that the statutes providing hearing rights to firemen 

before their termination do not apply, if the alleged reason 

for termination is for physical incapacity. But assuming the 

statutes do apply to termination for physical incapacity, the 

City argues that the three meetings, together with the exit 

interview that Welsh declined, were sufficient to compl-y with 

the spirit of the statutes. 

The first meeting took place in the fire chief's office 

that day after the July 21, 1980, incident that resulted in 

Welsh's temporary hospitalization for either a seizure or 

heat exhaustion. Present were Welsh, fire chief Mike 

Kal-ovich, and Lee Bright, the operations officer. The 

emergency room doctor had released Welsh but the fire chief 

nonetheless told Welsh that he should have a physical 

examination. The fire chief asked and obtained permission 

from Welsh to speak to Wel-sh's doctor, Dr. Douglas Brenton. 

They also discussed the report from the officer in charge of 
the July 21 fire drill, as well as letters from other 

firefighters who were present at the drill and had observed 

Welsh's physical reactions during the drill. 

The second meeting took place 10 days later (on July 31, 

1980) in the fire chief's office after the fire chief had met 

with Welsh's doctor, Dr. Brenton. Welsh, the fire chief, and 

the operations officer were present again. The fire chief 

confronted Welsh with Dr. Brentonrs letter and Welsh 

acknowledged that he had suffered more seizures than were 

known to the fire chief. When the fire chief suggested that 

he retire, Welsh replied that if he were in the fire chief's 

position he "would do the same thing." The City relies on 

this statement as proving that Wel-sh consented to retire. 

The third and final meeting was five days later, August 

5, 1980, when the fire chief handed Welsh his termination 

letter containing an effective resignation date of August 1, 

1980. At the hearing in District Court Welsh testified that 

when he was given this termination letter he did not consent 

to his retirement and that he was never told he had a right 

to a hearing. The City concedes Welsh was not told he had a 

right to a hearing. 

Finally, before the dismissal became final., Welsh was 

offered the traditional exit interview before the personnel 

board, but he declined the opportunity for an interview. 

Apart from his due process argument, Welsh argues that 

section 7-33-4124, MCA, gives him a right to a hearing before 

termination. The City argues that this statute does not 

apply to a firefighter's termination for bad health, and 

alternatively, that if it does apply, Welsh was familiar with 

all of the fire department regulations because he was a 
training officer, and therefore that Welsh waived his right 

to any hearing provided by the statute. 

The statute on which Welsh relies, section 7-33-4124, 

MCA, must be read in conjunction with sections 7-33-4122 and 

7-33-4123, MCA. Section 7-33-4122, provides for the 

appointment of a firefighter and states that the firefighter 

shall hold the appointment during good behavior and as long 

as he is physically able to perform the job. The following 

statute, section 7-33-4123, authorizes the fire chief to 

suspend a firefighter for "neglect of duty or a violation of 

any of the rules" of the department. The next statute, the 

one on which Welsh relies, simply provides for the procedures 

to be used. where a fireman is suspended for neglect of duty 

or for violating fire department rules. 

Section 7-33-4124, provides in pa.rt: 

l8 (1) In all cases of suspension the person 

suspended must he furnished with a copy of the 

charge against him, in writing, setting forth 

reasons for the suspension. Such charges must be 

presented to the next meeting of the council or 

commission and a hearing had thereon, when the 

suspended member of the fire department may appear 

in person or by counsel and make his defense to 

said charges . . ." 

Clearly, this statute provides no hearing remedy for one 

who is terminated for physical disability. Reading the three 

statutes together, as we must, they apply only to situations 

where neglect of duty or violation of rules is the alleged 

reason for termination. However, notwithstanding this 

statutory deficiency, we hold that section 7-33-4122, creates 

a property interest in positions such as that of fireman once 

the probationary period is satisfied, and therefore that 

Welsh could not be terminated without first being given the 

opportunity for a hearing before an impartial tribunal. 
Contrary to the City's argument, the statutes applicable 

to Welsh do not create an employment terminable at the will 

of the employer. Sections 7-33-4101, et seq. , MCA, control 

the appointment and. continued employment of a municipal 

firefighter in a first class city such as Great Falls. 

Section 7-33-4122, MCA, provides that once an appointed 

firefighter has successfully completed his six-month 

probationary period, the mayor or city manager shall nominate 

the firefighter for service and the firefighter ". . . shall 

thereafter hold (his or her) respective appointments during 

good behavior and while they have the physical ability to 

perform their duties." Clearly, unless a firefighter 

neglects his duty or violates fire department rules, or 

becomes physically disabled, his employment cannot be 

terminated. Under section 7-33-4122, firefighters hold their 

appointments as long as they are physically able and as long 

as they do not neglect their d.uties or violate the rules. 

Absent neglect of duty, bad conduct, or physical disability, 

the appointment of a firefighter lasts until voluntary 

termination or until retirement. 

Our holding that a firefighter has a property interest 

in his positior! insofar as the due process clause of our 

state constitution is concerned, was presaged by the case of 

State ex rel. Driffill v. City of Anaconda (1910), 41 Mont. 

577, 111 P. 345, where this Court in interpreting section 

3327, R.C.M. 1947, a predecessor to section 7-33-4113, MCA, 

stated that the statute "does secure to every paid fireman - a 

right to his position." (Emphasis added.) 41 Mont. at 

580-581. Although this statement arose in the Court's 

discussion of the propriety of a mandamus action brought by a 

fireman who was wrongfully discharged, and who sought 
reinstatement, it is clear that even in 1910 the statute 

secured to a firefighter "a right to his position." The 

Court recognized then, as we must, the civil service status 

of firemen in holding that the statute secured to firemen a 

"right" to his position. Here, there is also a "right" to 

the position, subject to the conditions of the statute. 

Nor do the City's arguments convince us that the hearing 

requirement was somehow satisfied or that Welsh waived his 

right to a hearing. The argument that the meetings between 

Welsh and the fire chief and operations officer satisfied the 

hearings requirement cannot be taken seriously. Neither the 

fire chief nor the operations officer was part of an 

impartial tribunal, and in fact they were part of the 

accusatory and confrontational process seeking Welsh's 

termination--regardless of whether they had good cause. Nor 

does the offer of the City to give Welsh an exit interview 

before the personnel board constitute any kind of hearing 

opportunity. The exit interview could not have given any 

redress to Welsh, but at most would have been a forum before 

which he could present his grievances. This in no way 

constitutes a fair hearing as required by our due process 

clause. 

Finally, the City argues that Welsh waived his rights to 

a hearing. Although the City's arguments are d-irected more 

to the statutory provisions for hea.ring, which this Court has 

found inapplicable to a suspension for health reasons, we 

nonetheless discuss the City's waiver arguments in the 

context of the constitutional hearing requirement. The City 

could prevail on the waiver issue only if it had proved that 

Welsh knew h.e had a constitutional riqht to a hearing and 

that he voluntarily waived that riqht--a waiver being a.n 
intentional relinquishment of a known right. Gerard v. 

Sanner, et al. !1940), 110 Mont. 71, 103 P.2d 314. Although 

a waiver can be express or implied by conduct, in either case 

it was the City's burden to prove that Welsh waived his right 

to a hearing. Here the City admits that it did not advise 

Welsh of his right to a hearing, and there is no evidence to 

prove that Welsh had independent knowledge of his right to a 

hearing. For these reasons the City's waiver argument must 

fail. 

Welsh argues also that he was not given his full 

allotment of sick leave benefits as required by statute, and 

that these sick leave benefits are a property right that was 

denied him in this case. Upon his termination Welsh was 

given one-fourth his accrued sick leave benefits. The 

statute requires that upon the termination of employment, the 

employee is entitled to one-fourth his accrued sick leave 

benefits (section 2-18-618 (5) , MCA) . Welsh argues, however, 

that the statute speaks only to the situatjon where one 

voluntarily terminates his employment rather than to one who 

is terminated by the employer. He argues that because the 

statute does not cover his situation, he is entitled to his 

full accumulated sick leave and that he has been denied a 

property right if not given his full allotment. 

We normally would not discuss this issue because of our 

dispostion of the primary issue that requires the City to 

give Welsh a hearing on whether cause exists to terminate him 

for bad health. However, if it is decided that cause exists 

to terminate Welsh, the issue of whether Welsh is entitled to 

his total accumulated sick leave or to one-fourth of his 

accumulated sick leave, is still one that must be decided. 

This is true even if after an adverse ruling on the main 
issue, Welsh decided not to appeal. It is proper then, to 

decide the issue now. 

Welsh's argument is based on a misplaced reliance on 

section 2-16-621, MCA, and on a strained construction of 

section 2-18-618(5), MCA. In relying on section 2-16-621, 

MCA, Welsh argues that the statute expressly allows him 

payment for al.1 accumulated sick leave. However, the statute 

applies only to accumulated vacation benefits. It provides 

in substance that where one is terminated by the employer the 

employer must pay the employee for accumulated vacation 

benefits. And in relying on section 2-18-618 (5) , Welsh 

places a most unreasonable construction on the meaning to be 

given to the failure of the statute to mention involuntary 

termination. The statute gives one-fourth of the accumulated 

sick leave pay to an employee who terminates employment or 

who retires, but it does not mention the case of involuntary 

retirement. Wel-sh's contention that he therefore is entitled 

to full. payment for accumulated sick leave because the 

statute does not mention involuntary termination, is strained 

at best. A more reasonable construction of the statute's 

goal is that upon termination of employment for whatever 

reason, the employee is entitled to one-fourth of his 

accumulated sick leave. The statute makes no distinction 

between vol.untary or involuntary termination. 

We vacate the judgment of the District Court and remand 

with directions that the case be sent to the City of Great 

Falls so that they may take the necessary steps for a hearing 

that accords Welsh his due process rights. Welsh was clearly 

improperly terminated. It is of no force and effect, and 

therefore void. He is therefore entitled to full pay and 
benefits from the time of his termination until the final 

disposition of this case. 

We do not hold that the City has no authority to suspend 

a firefighter for health reasons. But we do hold that when 

it is done, the firefighter's employment does not terminate 

until such time as he is either given a hearing in accordance 

with due process requirements or he waives his right to a 

hearing. Neither of those situations exists here. 

We vacate the judgment of the Dictrict Court and remand 

with directions. 

We Concur: 

Justices 
Mr. Justice John Conway Harrison, dissenting. 

I respectfully dissent. 

I would first hold that there was sufficient cause to 

terminate the appellant due to his physical impairment. 

Given his admitted condition, the City had, in my opinion, 

an unrestricted right to terminate him under section 

7-33-4107, MCA, (which applies to the qualifications for the 

office that he held), and section 7-33-4122, MCA. In my 

opinion, sections 7-33-4121 and 71-33-4124, MCA do not apply 

to termination, only to the suspension for neglect of duty 

or violation of fire department rules. I would find that 

the appellant had an opportunity for a hearing as provided 

by our law and it was waived by him. 

As noted by the majority opinion, the principal 

question here is whether the appellant had a property 

interest in his job such that he can only be terminated by 

complying with due process requirements, citing Reiter v. 

Yellowstone County, Montana (1981), 627 P.2d 845, 38 St.Rep. 

686. Here the District Court found that the appellant 

voluntarily retired, so in my opinion the issue of a 

property interest and due process issue need not be 

discussed. 

Having so found I would find no necessity to discuss 

the second issue raised herein. 

I would uphold the finding of the District Court. 

I join in the foregoi Uissent of Mr. Justice John 

Conway Harrison. 
Mr. Justice Fred J. Weber dissents as follows: 

I respectfully dissent from the majority opinion which 

concludes that plaintiff was terminated in violation of his 

due process rights. The majority opinion correctly concludes 

that plaintiff had a property right protected by the due 

process clause. However, the majority opinion contains no 

analysis of what process is due plaintiff under the 

circumstances of this case a-nd fails to balance the competing 

rights of plaintiff and defendant. 

The majority appears to conclude that because the 

plaintiff has a property right in his employment, he is 

automatically entitled under the Montana Constitution to a 

pretermination hearing. This conclusion is contrary to 

federal constitutional law on this point. While this Court 

may interpret the Montana Constitution as providing more 

protection than the United States Constitution, the majority 

has completely failed to explain its reasons for applying a 

stricter rule in this case, requiring back pay and a 

pretermination hearing. The majority opinion cites no 

authority for this conclusion. 

The United States Supreme Court applies a two-part 

analysis to resolve due process issues. The Court first 

determines whether the governmental entity involved has 

deprived the individual of a constitutionally recognized 

liberty or property interest. See, e.g., Board of Regents of 

State Colleges v. Roth (1972), 408 U.S. 564, 92 S.Ct. 2701, 

33 L.Ed.2d 548; Perry v. Sindermann (1972), 408 U.S. 593, 92 

S.Ct. 2694, 33 L.Ed.2d 570. If the individual has been 

deprived of a liberty or property interest, the Court must 

then determine what process is due under the circumstances. 

See, e.g., Goldberg v. Kelly (1970), 397 U.S. 254, 90 S.Ct. 
1011, 25 L.Ed.2d 287; Mathews v. Eldridge (1976), 424 U.S. 

"Process" is not a clearly defined term and the nature 

and timing of the procedure required by the due process 

clause depends on many factors concerning the individual 

deprivation. J. Nowak, R. Rotunda and J. Young, 

Constitutional Law at 498 (1978). The Court uses a balancing 

test to determine what process is due and considers three 

factors in this analysis: 

". . . our prior decisions indicate that 

identification of the specific dictates of due 

process generally requires consideration of three 

distinct factors: first, the private interest that 

will be affected by the official action; second, 

the risk of an erroneous deprivation of such 

interest through the procedures used, and the 

probable value, if any, of additional or substitute 

procedural safeguards; and finally, the 

Government's interest, including the function 

involved and the fiscal and administrative burdens 

that the additional or substitute procedural 

requirement would entail." Mathews v. Eldridge 

(1976), 424 U.S. at 334-35, 96 S.Ct. at 903, 47 

L.Ed.2d at 33. 

The majority has considered only the first of these three 

factors. 

Considering all three factors of the analysis, j.t is 

clear that the requirements of due process would be satisfied 

in this case by a post-termination hearing. While the 

plaintiff has a substantial property interest at stake, the 

risk of erroneous deprivation of that interest through the 

procedures used by the defendant in this case is nearly 

nonexistent. There was no dispute between the parties that 

the plaintiff was physically unable to continue w0rkin.g as a 

firefighter. That was the conclusion of his own doctor. 

Under section 7-33-4122, MCA, plaintiff, as a firefighter, 

holds his appointment with the City "while [he has] the 

physi.ca1 ability to perform [his] duties. " Without dispute, 

plaintiff no longer had the physical ability to perform his 
duties. For the protection of fellow firefighters, the 

public, and the City itself, the defendant was required to 

terminate plaintiff if he did not resign voluntarily. It is 

obvious that under these facts, "additional or substitute 

procedural safeguards" would have had no "probable value." 

The majority opinion has not considered the interests of 

the City in the fiscal and administrative burdens imposed by 

the pretermination hearing requirement in this case. Even 

though it is undisputed that plaintiff was physically unable 

to work as a firefighter, the majority opinion requires the 

City grant plaintiff full and benefits from the date 

of the termination to the final disposition of the case. The 

City will be required to provide a hearing, the requirements 

of which are not specified in the majority opinion, to 

determine an issue that is already determined beyond dispute. 

This places fiscal and administrative burdens on the City 

which simply are not justified in this case. 

I disagree that due process requires a pretermination 

hearing in this case. Cf. Arnett v. Kennedy (1974), 416 U.S. 

134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (no due process 

pretermination hearing requirement for government employee 

under facts of that case). I would hold that the 

requirements of due process would best be served by a 

procedure which fairly balances the interests of the parties 

as follows: 

(1) A post-termination hearing, with all due 

process rights, at which the plaintiff fireman and 

the defendant City could present all of the facts. 

If my conclusion that the termination was proper is 

incorrect, then an award could properly be made to 

the plaintiff granting him back pay from the date 

of termination. 

(2) If the termination is found to have been 

proper, then the City would not be penalized by the 

payment of compensation to the plaintiff from the 

date of termination. 
This procedure would fully protect the interests of the 

plaintiff. I would remand the case for application of this 

procedure.