No. 87-297 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

FRED EASY, 

Plaintiff and Appellant, 

THE STATE OF MONTANA DEPARTMENT 

OF NATURAL RESOURCES AND 

CONSERVATION and THE STATE OF MONTANA, 

Defendants and Respondents. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis And Clark, 

The Honorable Gordon R. Bennett, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Robert T. Cummins, Helena, Montana 

W. William Leaphart, The Leaphart Law Firm, 

Helena, Montana 

For Respondent: 

John H. Maynard, Tort Claims Division, Department of 

Administration, Helena, Montana 

Filed: MAR 3 1 1988 

Submitted on Briefs: February 25, 1988 

Decided: March 31, 1988 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This case arose in the First Judicial District Court, 

Lewis and Clark County, Montana. Fred Easy, hereafter the 

plaintiff, appeals from the District Court's instruction to 

the jury that a laid-off state employee is entitled to a 

"tie-breaker" preference in rehiring by state agencies. The 

plaintiff argues that the state employment policy affords him 

an absolute preference in rehiring by the State. The State 

contends that the intent, interpretation, and constant 

application of the policy has been as a tie-breaker 

preference, i.e. giving laid-off state workers a preference 

if they are as qualified as other finalists. The District 

Court accepted the State's argument and issued its proposed 

instruction. We affirm. 

The parties have submitted an agreed statement of the 

record, pursuant to Rule 9(e), M.R.App.P., in lieu of the 

complete transcript. That statement of the record reflects 

that plaintiff lost his job with the Department of Natural 

Resources and Conservation (DNRC) during a reduction in 

force. His position never was reopened and consequently he 

never was offered reinstatement. He applied for various 

other positions at DNRC and other state agencies but never 

was offered any of those jobs. He then filed a wrongful 

discharge action in the First Judicial District Court, Lewis 

and Clark County, alleging that DNRC and other state agencies 

failed to abide by his preferred re-employment status as a 

former state employee under state policy on reduction in 

force. The relevant portion of that policy reads: 

E. Each agency shall make a concerted 

effort to make other agencies aware of 

both the names of persons laid off and 

their job classifications, and agencies 

with vacancies shall give reinstatement 

preference to those employees laid off by 

other agencies when recruiting for a 
specific skill if compatible with their 

Affirmative Action Plan and EEO goals. 

At trial, the District Court refused to give 

plaintiff's proposed instruction number 15. That instruction 

read : 

If Plaintiff applied for a position with 

the State of Montana and met the minimum 

qualifications for that position, he was 

entitled to an absolute reinstatement 

preference for that position and was 

entitled to the job. 

Instead the court's instruction number 20, originally offered 

by the State, read: 

If Plaintiff applied for a position with 

the State of Montana and met the 

qualifications for that position, he was 

entitled to a tie-breaker preference for 

that position. 

The agreed statement of the record indicates that the 

Department of Administration's Personnel Division, which had 

drafted the policy, intended it to be a tie-breaker 

preference and had consistently applied the policy as a 

tie-breaker preference. 

On appeal, plaintiff analogizes the State's rehiring 

policy to the Veteran's Preference Act, 5 10-2-201, et seq., 

MCA (1983) . We do not consider that analogy entirely proper 

and do not subscribe to the plaintiff's contention that our 

decision in Crabtree v. Montana State Library (1983), 204 

Mont. 398, 665 P. 2d 231, controls. In Crabtree, this Court 

held that a statute, since repealed, that said veterans, 

their spouses and dependents, and handicapped civilians 

"shall be preferred for appointment and [state] employment" 

constituted an absolute preference. Crabtree, 665 P.2d at 

234. 

The history and application of that statute, as set 

forth in the District Court's ruling and adopted by this 

Court on review, irrefutably indicated that the veteran's 
preference "was born in the wake of World War I . . . [and] 

it was clear the preference was intended to be absolute." 

Crabtree, 665 P. 2d at 234. The section was later amended to 

include handicapped civilians, but had remained substantially 

unchanged despite nine legislative reviews. The District 

Court also noted that this Court in 1941 ruled the veteran's 

preference required that a city mayor hire a veteran if the 

veteran were qualified for the position. The intent, 

history, and application of the statute mandated a ruling 

that the preference was absolute. Crabtree, 665 P.2d at 234, 

citing Horvath v. Mayor of Anaconda (1941), 112 Mont. 266, 

116 P.2d 874. 

No such intent, history, or application of the state 

hiring policy is evident in this case. In fact, the 

statement of the record before us states unequivocally that 

the Department of Administration has treated the policy as a 

tie-breaker preference. The plaintiff points out that the 

agency's interpretation is not binding on the courts. 

However, the interpretation of an administrative rule is a 

question of law, and thus, one for the court. Montana Power 

Co. v. Environmental Protection Agency (9th Cir. 1979), 608 

F.2d 334, 344; Culligan Water Conditioning v. State Board of 

Equalization (Cal. 1976), 550 P.2d 593, 596; ~orkowski v. 

Snowden (Alaska 1983), 665 P.2d 22, 27. 

The agency's interpretation of its rule is afforded 

great weight, Culligan Water, 550 P.2d at 596, and the court 

should defer to that interpretation unless it is "plainly 

inconsistent" with the spirit of the rule. Des Moines School 

District v. Job Service (Iowa 1985), 376 N.W.2d 605, 609. 

The agency's interpretation of the rule will be sustained so 

long as it lies within the range of reasonable interpretation 

permitted by the wording. Joint Board of Control of the 

Flathead, Mission and Jocko Irrigation District v. United 

States (D. Mont. 1986), 646 F.Supp. 410, 415. 
The hiring policy does not clearly preclude the notion 

that it was intended only to resolve situations in which two 

persons, one of whom has been laid off from state work, are 

equally qualified for a state job. It imposes three 

qualifications. First, the agency must know of the laid-off 

employee; second, that laid-off employee must have the skills 

or training needed for the position; and third, the laid-off 

employee is not entitled to the job if he or she would not be 

compatible with the agency's affirmative action goals. Those 

qualifications preclude any notion of an absolute privilege. 

The District Court's interpretation of the policy and its 

jury instruction were not in error. 

Affirmed. 

We concur: