No. 87-297
IN THE SUPREME COURTOF THE STATEOF MONTANA 1988

FRED EASY, PlaintiffandAppellant,

THE STATEOF MONTANA DEPARTMENT OF NATURAL RESOURCES AND CONSERVATIONand THE STATEOF MONTANA, Defendantsand Respondents.

APPEAL FROM: District Courtof the First JudicialDistrict, In and for theCounty of LewisAnd Clark, TheHonorable GordonR. Bennett, Judgepresiding.
COUNSELOF RECORD:
ForAppellant: Robert T. Cummins,Helena,Montana 

### W. William Leaphart,The LeaphartLaw Firm, Helena,Montana
ForRespondent: John H. Maynard, Tort Claims Division, Department of Administration, Helena, Montana

Filed:

## MAR3

### 11988 Submitted on Briefs: February 25, 1988 Decided: March 31, 1988

ClerkMr. Justice JohnConway 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 employmentpolicy affordshim
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 thatDNRC and other stateagencies 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 thatpolicy 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 offby other agencies when recruiting for aspecific skill if compatible with their Affirmative Action Plan and 

### EEO goals.
At trial, the District Court refused to give plaintiff's proposed instructionnumber 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, originallyoffered 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 thatposition. 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-breakerpreference. On appeal, plaintiff analogizes the State's rehiring policy to theVeteran's PreferenceAct, 

### 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'spreference "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 sectionwas 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 theveteran'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 thepreferencewas 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 Conditioningv. State Board of Equalization (Cal. 1976), 550 P.2d 593, 596; ~orkowskiv. Snowden (Alaska1983), 665P.2d 22, 27. The agency's interpretation of its rule is afforded great weight, CulliganWater, 550 P.2d at 596,and the court should defer to that interpretation unless it is "plainly inconsistent" with the spiritof the rule. Des Moines School District v. Job Service (Iowa 1985), 376 N.W.2d 605, 609. The agency's interpretation of the rulewill be sustained so long as it lieswithin the rangeof reasonable interpretation permitted by the wording. Joint Board of Control of the Flathead, Mission and Jocko Irrigation District v. United States (D. Mont. 1986), 646F.Supp. 410, 415.The hiring policy does not clearlypreclude the notion that it was intended only to resolve situations in which two persons, one of whom has been laid off from statework, are equally qualified for a state job. It imposes three qualifications. First, the agencymust 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 isnot entitled to the job ifhe or she would notbe 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: