No. 81-65 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

HELEN L. LOVELL, 

Plaintiff and Appellant, 

VS. 

JOSEPH G. WOLF, City-County 

Manager for Anaconda-Deer Lodge County; 

and ANACONDA DEER LODGE COUNTY, a 

political subdivision, 

Defendants and Respondents. 

leal from: District Court of the Third Judicial District, 

In and for the County of Deer Lodge, Montana 

Honorable Robert Boyd, Judge presiding. 

Counsel of Record: 

For Appellant: 

Michael J. McKeon argued, Anaconda, Montana 

For Respondents: 

John Radonich, County Attorney, argued, Anaconda, 

Montana 

Submitted: February 24, 1982 

rp- '\ 

Filed: APR 1 

Decided : #&i% $@ 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

This is an appeal fro~rl a judgment of the District 

Court; of the Third Judicial District, in and for the County 

of Deer Lodge, denying Helen Lovell reinstatement and backpay resulting from her discharge from county employment. 

The appellant, Helen Lovell, is a sixty-five-year-old 

woman, who was elected to three, four-year terms as the 

clerk and recorder of Deer Lodge County, Montana, Her first 

elected term began on January 3, 1967. She then was elected 

for a term begining in January 1971, and another beginning 

in January 1975, The last term was to run until January 

1979, but on May 2, 1977, a county form of government, 

consolidating the city and county governments, was put into 

effect, That charter had certain provisions which are 

important to the decision in this case. The charter 

provides: 

"Article IV, Section 3, Duties. 

"1. The Anaconda-Deer Lodge County Manager 

shall be the chief administrative officer of 

the local government and shall be responsible 

for all administrative functions of AnacondaDeer Lodge County, unless otherwise provided 

by this Charter. 

"2. The Manager's responsibilities shall be 

to: . . . c. appoint and remove department 

heads with the approval of the Commission. 

"Article V, Section 2. Administrative Code. 

"1. The Administrative Code shall provide 

the complete plan of organization and structure of Anaconda-Deer Lodge County. 

"2. The Administrative Code shall include: 

"a. the departmental organization of the 

government, the nature and scope of each 

department and rules and procedures for 

department operation . . . 
"Article V, Section 3. Personnel System. 

"1. The Anaconda-Deer Lodge County Personnel System shall provide for hiring on the 

basis of merit and shall include a salary 

schedule, provisions for vacations, sick 

leaves, insurance and other benefits for all 

employees in accordance with provisions of 

this Charter; procedures for employees to 

have an opportunity to be heard upon their 

request pending discharge, suspension or any 

designated disciplinary action and shall 

provide for such other procedures as necessary for an equitable Personnel System 

including honoring of all collective 

bargaining agreements. 

"Article X, Section 2. Continuity. 

"5. All Anaconda and Deer Lodge County officials or employees, except the Mayor, City 

Council members, and County Commissioners, 

may continue in the performance of their 

duties according to existing personnel 

procedures or until their positions are 

terminated by the Administrative Code. 

Employees whose positions are terminated by 

provisions of the Administrative Code shall 

be given first consideration for other 

Anaconda-Deer Lodge County employment. 

"Article X, Section 4. Manager, Administrative Code, and Personnel System. 

"1. The Commission shall appoint the Manager 

on or before August 1, 1977. 

"2. Within nine (9) months of the appointment of the Manager, the Manager shall 

prepare and submit an Administrative Code and 

Personnel System to the Commission for 

review, amendment, and adoption by ordinance. 

The Code and Personnel System shall not be in 

violation of any union collective bargaining 

contract in force at the time of adoption of 

said Code and System. 

"3. The Commission shall adopt the Administrative Code and Personnel System by ordinance as submitted or amended within three 

(3) months of the date of submission by the 

Manager . 
"4. The method a11d schedule for implementation of the Administrative Code and Personnel 

System shall be provided in the ordinances 

adopting them . . ." 

At the time of the institution of the new form of 

government, May 2, 1977, the Board of County Commissioners 

of Anaconda-Deer Lodge County passed a resolution providing 

for a personnel system pursuant to Article V, Section 3, 

which in effect appointed Helen L. Love11 supervisor, clerk 

and recorder's office, and provided as follows: 

". . . be it further resolved that the above 

named individuals serve in the above entitled 

capacities until such time as the charter of 

the Anaconda-Deer Lodge County is implemented 

and the various offices and departments are 

merged and consolidated and until further 

resolution of the Anaconda-Deer Lodge County 

Commission." 

The effect of the resolution as to Helen Love11 was to make 

her position one of appointment rather than election. 

In July 1977, the defendant-respondent, Joseph G, 

Wolf, was appointed manager of the Anaconda-Deer Lodge 

County. In February 1978, after six months in office, Wolf 

informed the appellant that she was to record and help 

Regina Connor, who had been moved at the time of the consolidation from the city clerk's job to the office of clerk 

and recorder. Wolf testified that sometime at the end of 

1977 he called the city and county employees to a meeting in 

the courtroom of the county courthouse to discuss the job 

situation and the combining of the city and county offices, 

He also testified that at this time he informed county 

employees that Connor was to be the clerk and recorder after 

the first of the year. 

The appellant testified that she was not told she was 

no longer clerk and recorder but simply was assigned to 
other jobs in the office and told to assist Connor and show 

her around the office. At no time was there any resolution 

by the board of commissioners terminating appellant's job or 

transferring her to a lesser job in the city-county setup. 

The appellant testified that sometime in mid-February she 

was called to Wolf's office where he informed her he was not 

satisfied with her work. At that time he asked her if she 

had considered retiring, and she informed him she was unable 

financially to retire. On March 15, 1978, Wolf again 

suggested that appellant retire. He told her that her work 

was unsatisfactory and that he had had complaints from 

abstractors. He then informed her she would be terminated 

as of March 17. 

Wolf testified that at the time he went to work in 

August 1977 he was familiar with the Resolution No. 1, 

passed by the commissioners making appellant the supervisor 

of the clerk and recorder's office. He also testified he 

was familiar with the charter which created the AnacondaDeer Lodge County government and that he was aware of the 

administrative code to be provided by the commissioners. 

In addition, Wolf was aware that the charter directed 

the Anaconda-Deer Lodye county commission to adopt a personnel system within nine to twelve months. During that period 

no personnel or administrative code was adopted by the 

commission nor was any personnel system adopted or in effect 

when Wolf demanded the appellant1 s resignation. He 

testified that while no changes had been made officially, 

"in his mind" Connor became the clerk and recorder as of the 

first of the year, 1978. However, it was not until March 9, 

1978, several months later, that Connor was appointed the 
supervisor of the clerk and recorder's office. During this 

period, from January 1 to March 17, in spite of a change of 

duties, the appellant was paid the same salary she was paid 

as clerk and recorder. Wolf's recommendation and the 

commissioners' act on March 9, 1978, were several weeks 

after Wolf had his first conversation with the appellant and 

just a couple of days before the termination of her job in 

the clerk and recorder's office. 

Wolf testified that following the Resolution No. 1, 

dated May 2, 1977, there was no resolution changing the 

appellantf s status until March 1978. Wolf also testified 

that prior to that time, he had given appellant a verbal 

warning but had not given her any written notification that 

she was under consideration for suspension or termination. 

Appellant testified that during the time she was 

clerk and recorder of Deer Lodge County, as an elected 

official, she could not join a union because of her elective 

status. Some question is raised by the respondents alleging 

that when appellant was demoted from clerk and recorder to a 

lesser position in January or February she was required to 

join the union and, having failed to do so, she has waived 

her rights to a collective bargaining hearing. However, 

testimony of both the appellant and the courthouse union 

shop steward indicates that the appellant made an effort to 

join the union but was either denied membership or told that 

the union would look into the matter for her. Her 

termination came before anything could be done in her 

capacity as a nonofficial employee of the Anaconda-Deer 

Lodge County o f f i c e . 

Three issues are presented for review: 
1. Whether the plaintiff-appellant was denied due 

process when she was discharged from her position as clerk 

and recorder of Anaconda-Deer Lodge County without a hearing 

to determine if there was cause for her termination. 

2. Whether the plaintiff-appellant was denied due 

process rights when a new supervisor of clerk and recorder's 

office of Anaconda-Deer Lodge County was appointed while the 

appellant had never been removed officially as clerk and 

recorder of Deer Lodge County, as required by statute and 

the local government charter. 

3. Whether the plaintiff-appellant is precluded from 

maintaining this action if she failed to exhaust the 

adrninistrative remedies which may have been available to 

her. 

In view of the fact that issues one and two, 

concerning the due process question, are controlliny in this 

case and require reversal of the District Court's judgment, 

the two will be combined for discussion. 

The respondents argue that the issues of due process 

were not raised at the trial court level and, therefore, 

cannot be considered on appeal. Chadwick v. Giberson 

(1980) t Mont. , 618 P.2d 1213, 37 St.Rep. 1723. We 

do not agree. 

Here, the due process issue ran through the entire 

trial and was brought to the attention of the District Court 

by the appellant's proposed findings of fact. There was a 

specific charge that the county's failure to adopt a 

"personnel systen~" providing for a hearing before discharges 

was a "violation of . . . due process.'' The case was tried 

as a due process question in spite of the fact that the 
words "due processn do not appear in either the pleadings or 

the trial transcript and the due process concern is the 

pivotal issue presented in this appeal. 

From the city-county manager's first transfer of 

appellant's duties to his final termination of her employment, appellant's rights under the charter were neither 

recognized nor protected. The charter dictated how each 

appointed department head was to be rernoved, and it required 

any removal to be approved by the commission. The charter 

provisions were never followed in the transfer of appellant's duties after her appointment as supervisor of the 

clerk and recorder's office, and they were not followed in 

removii~g her from her job until early March. The record 

indicates that the notary public seal obtained by appellant 

during the time she was clerk and recorder was still being 

used up until the time she was fired. In addition, appellant was paid the same salary throughout the entire period 

until she was terminated. 

In her capacity as clerk and recorder before the 

consolidation, the appellant was the general supervisor of 

her office and did not perform the specific jobs within the 

off ice which required special skills. Rather, she was 

always available to the board of county commissioners as 

their clerk and carried out other duties of the office which 

did not require the specialization called for under the new 

form of government. Following her transfer to records clerk 

she was called upon to do technical jobs within the office 

for which she had no expertise. One of the reasons given by 

Manager Wolf for her termination was that he had complaints 

from two abstractors in town that appellant did not properly 
record instruments and her writing was so bad mistakes were 

being made in the recording. However, the record is also 

clear that Wolf did not call this to her attention until the 

day he notified her that she was no longer employed, nor was 

any effort made to train her for the skills necessary to 

stay on the job. 

In considering the due process protection argument of 

the appellant, we look to three recent cases of this Court: 

Reiter v. Yellowstone County (1981) , - Mont. - 

, 627 P.2d 

845, 38 St.Rep. 686; Gates v. Life of Montana Insurance 

Company (1982), - Mont. - , 638 P.2d 1063, 39 St.Rep. 16; 

and Nye v. Department of Livestock (1982), Ivlon t . 1 

639 P.2d 498, 39 St.Rep. 49. See: Love, Damages: A Remedy 

for the Violation of Constitutional Rights, 67 Cal. Law Rev. 

This Court held in Reiter, supra, that to show a 

property interest or liberty interest in his job, and thus 

be entitled to claim due process protection, an ernployee 

must be able to point to an independent source such as state 

law or an understanding between the employer and the 

employee. Here, we find three sources by which appellant 

can establish a due process protection: (1) the charter; 

(2) the statute, section 16-5115.12, R.C.M. 1947; and (3) 

the collective bargaining agreement which we find 

unnecessary to consider in deciding this case. 

We note that neither Gates nor - Nye had been decided 

when the parties in this case filed their briefs so they 

were not discussed there. However, in addition to Reiter, 

this Court's holding in - Nye adds strength to appellant's 

cause in this matter. There, this Court held on the 
plaintiff's claim of wrongful discharge that administrative 

rules may become the source of a public policy which would 

support a claim of wrongful discharge. In - Nye, as in this 

case, there was no showing of "just cause" for removal from 

her status as permit clerk. She was, as the appellant here, 

entitled to a proper hearing before termination from her 

permanent position. 

We reverse the judgment of the District Court denying 

appellant reinstatement in her position as clerk and 

recorder. The cause is remanded to the District Court with 

the following instructions: that appellant be reinstated to 

her position as clerk and recorder; that she be paid backpay 

for the period from March 1978 to present, subject to any 

offsets; and that hearings be held to determine her future 

status as an employee of the City of Anaconda-County of Deer 

Lodge. 

We concur: P-- Justice 

-- -- ,Chief Justice r, 
Mr. Chief Justice Frank I. Haswell. specially concurring: 

I concur in the result on the basis that appellant 

Love11 was denied due process because there was no valid 

change in her status and she was discharged without a 

hearing . 

aAt~%&- P 

Chief Justice