No. 87-07 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

HERB BELCHER, 

Plaintiff and Appellant, 

-vsDEPARTMENT OF STATE LANDS, a 

political subdivision of the State 

of Montana, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Douglas Harkin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Datsopoulos, MacDonald & Lind; Edward A. Murphy, 

Missoula, Montana 

For Respondent: 

John Bobinski, Dept. of Administration, Helena, 

Montana 

Submitted on Briefs: July 1, 1987 

Decided: September15, 1987 

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

Court. 

Herb Belcher appeals from an order of the Fourth 

Judicial District Court, Honorable Douglas G. Harkin 

presiding, that granted summary judgment under Rule 56(c), 

M.R.Civ.P., for the defendant, Department of State Lands. 

Because our review of the record shows that there were no 

material issues of fact and because the law is squarely 

behind the defendant, this Court will affirm the judgment of 

the District Court. 

Belcher filed suit against the Department on February 

19, 1985, alleging that the Department had acted without just 

cause when it dismissed him from employment on April 3, 1984. 

He also claimed that the dismissal was not in accordance with 

Department policies on discipline and discharge, that the 

Department breached its contract of employment with Belcher, 

and by doing so, had breached the covenant to deal fairly 

with Belcher. In its defense, the Department denied the 

charges and answered that Belcher had failed to exhaust the 

grievance procedures available to him. 

The Department moved for summary judgment. It asserted 

that the causes for Belcher's dismissal were not disputed and 

that Belcher merely sought to have a jury reconsider his 

firing. The District Court considered two sets of briefs and 

also heard oral arguments on the motion. The District Court 

specifically requested Belcher to set out the public policies 

that he alleged his firing violated. Belcher failed to 

respond to this request of the court. 

The District Court determined that traditional public 

policy violations were not at issue here. It ruled also that 

Belcher did not claim he was fired for a reason that violated 

good faith. 
The basic cause for termination is not in 

dispute. The court's role is to 

determine whether the Department's 

procedural handling of this case complied 

with its written personnel policies. If 

the termination is in compliance with 

procedures; the termination is proper. 

(Emphasis in original.) 

District Court Order and Memorandum of October 28, 1986, p. 

2, citing Nye v. Department of Livestock (1982), 196 Mont. 

222, 639 P.2d 498. The District Court concluded that the 

Department, not the courts, had the responsibility to 

evaluate Belcher's performance and to discipline or terminate 

Belcher. Thus, it granted summary judgment for the 

Department on October 28, 1986. 

In September 1980, Belcher joined the Department as the 

communications engineer for the Fire Suppression Bureau in 

Missoula. Later memorandums indicate that as much as 60 

percent of the communications engineer's time was to be spent 

repairing and installing radios and devising a statewide 

communications system and design. The remainder of the 

communications engineer's time was to be spent with licensing 

matters, preparation of bid specifications and budget 

estimates as well as travel and firefighting activity. All 

of these duties were listed in the position description that 

was issued in June 1980. 

Belcher's supervisor, Jack Peters, began receiving 

complaints about Belcher's work in 1982. The substance of 

these complaints was that Belcher was not designing radio 

systems adequately; that he was shirking his responsibility 

of setting up radio stations by having regional officers do 

the legwork that he was better qualified for; that the 

statewide communication plan he had been assigned to write 

was short, weak, ineffective, incomplete and incomprehensible 

to the layman; that he had consistently failed to file for 
the needed licenses with the Federal Communications 

Commission; and that he had used a state vehicle (on work 

time) in private projects for profit. A memorandum of 

punitive discipline requiring Belcher to compensate the state 

for private use of a state vehicle was issued to Belcher on 

January 17, 1983. Belcher noted that he reserved the right 

to respond at a later date and signed the document. 

In April 1983, Peters removed Belcher from other work 

activities so that he could devote full time to preparing the 

plan. Belcher was told that the communication plan had top 

priority and that it was essential since Department employees 

depended on the radios for their lives in emergencies. 

Peters also began filing memoranda on Belcher's performance. 

In a two-month period in late 1983, three separate field 

officers complained to Peters about incompetence on the part 

of Belcher in setting up and licensing a communications 

system near Miles City; in setting up a base station in 

southwestern Montana that did not allow for a remote control 

specificiation; and devising a system near Kalispell that 

allowed for two radio channels, but since each canceled out 

the other only one could be used at a time. 

These last complaints served as the basis of a notice 

of corrective discipline issued to Belcher on January 12, 

1984. This notice complied with state disciplinary rules by 

identifying the grounds for the disciplinary action, listing 

the improvements anticipated, and noting the consequences of 

failure to comply, including the possibility of termination. 

The notice required the performance deficiencies be rectified 

within 60 days and that Belcher submit to weekly evaluations. 

It required also that Belcher submit a complete Radio 

Communications Plan and a manual on maintaining and 

installing radios. Belcher was advised of his right to file 

a rebuttal; he chose not to file the rebuttal. 
Peters met with Belcher on March 5, 1984. He warned 

Belcher that his progress was not sufficient. He conducted a 

review of Belcher's actions on March 16 and determined that 

Belcher's work remained inadequate. The Radio Communications 

Plan, which the Department had been expecting from Belcher 

since he had been hired, was submitted on March 14, 1984. It 

consisted of 26 pages, eight of them blank forms. It did not 

include some material that Peters had specifically requested. 

On March 19, 1984 and at Peters' request, Belcher filed a 

memorandum "of things done during the past 60 day [s] . " It 

lists nine tasks, several of which Belcher conceded at 

deposition would have taken a matter of hours to do. Also 

listed was revision of the radio plan and revision for the 

communication plan. The Department, however, still found the 

plans to be deficient. 

On April 3, 1984, Belcher was told by Dennis Hemmer, 

Commissioner of State Lands, that he was being dismissed. He 

was notified that he had a right to have an attorney at the 

meeting and that he had a right to file a grievance. He did 

not call his attorney, although he had retained legal counsel 

believing this result was imminent, and did not file the 

grievance. 

This extensive review of the record is necessary since 

the first question this Court faces is whether the District 

Court erred in granting summary judgment. Summary judgment 

under Rule 56(c), M.R.Civ.P., is intended to encourage 

judicial economy by eliminating unnecessary trials in which 

no genuine issue of fact is presented. Cereck v. Albertson's 

Inc. (1981), 195 Mont. 409, 411, 637 P.2d 509, 510. This 

Court will uphold summary judgments when the complaining 

party cannot point to material and substantial facts that 

would alter the District Court's decision. If a factual 

controversy exists, disposition by summary judgment will not 
suffice. Dare v. Montana Petroleum Marketing Co. (~ont. 

1984), 687 P.2d 1015, 1019, 41 St.Rep. 1735, 1738. In the 

midst of a four-day deposition of Belcher, this exchange 

occurred: 

Q. [By Ms. Mitchell] The allegations of 

your Complaint says [sic] your 

termination was without just cause. Why 

do you think your termination was without 

just cause? What do you mean? 

A. I believe that I was under such a 

strain I was unable to perform my duties 

properly. 

Q. Are you stating that you failed to 

perform your duties properly? 

A. Under the conditions, yes. 

Q. How do you think the Department of 

State Lands violated its policy on 

discharge? 

A. Under the Montana--they call it the 

MOM manual. I think it is specified a 

corrective memo is not just cause for 

termination. I believe it has got to be 

a disciplinary memo. I think that's 

stated in the manual. 

Q. Do you consider, under the Department 

of State Lands policies, a failure to 

properly perform the duties of your 

position just cause for discharge? 

A. Not necessarily. 

Q. But it is a reason for discharge, 

isn't it? 

A. Yes. 

Q. Your Complaint says that the 

Department of State Lands violated a 

contract of employment. What contract of 

employment did you have with State Lands? 
A. It is an unwritten contract. I 

believe in the--for any new employee 

there is a 6 months' probationary period 

and it is more or less understood after 6 

months it is a permanent position. I 

believe that is a common belief of the 

majority of the people that work for the 

State. 

Q. Permanent employees can be discharged 

for failure to properly perform their 

duties, can't they? 

A. You can be terminated for any reason. 

(2. Yes or no. 

A. Yes. 

This exchange indicates that no underlying dispute of 

facts is present. Belcher was not doing his job; he had 

received notice that his work was not adequate; he failed to 

rectify the situation, and he was subsequently discharged. 

It appears to us that no basic question of fact exists for 

jury determination and Belcher does not raise any specific 

fact question. 

Instead, he raises three issues of law: 

1. Did the District Court err when it 

held no action for wrongful discharge or 

breach of the covenant of good faith 

would lie if the employer followed proper 

procedure? 

2. Does termination of state employment 

without just cause constitute a violation 

of public policy sufficient to be a 

wrongful discharge? 

3. Does an employer who has promulgated 

rules saying that employees will not be 

discharged except for just cause violate 

the covenant of good faith and fair 

dealing if he discharges an employee 

without just cause? 
Section 39-31-303, MCA, guarantees the Department 

certain rights: 

Public employees and their 

representatives shall recognize the 

prerogatives of public employers to 

operate and manage their affairs in such 

areas as, but not limited to: 

(1) direct employees; 

(2) hire, promote, transfer, assign, and 

retain employees; 

(3) relieve employees from duties because 

of lack of work or funds or under 

conditions where continuation of such 

work be inefficient and nonproductive; 

(4) maintain the efficiency of 

government operations; 

This statute was held valid where a school district demoted 

an administrator and reassigned her to classroom activities. 

Sorlie v. School District No. 2 (Mont. 1983), 667 P.2d 400, 

404, 40 St.Rep. 1070, 1075. 

Because terms of Belcher's employment contract included 

the development of a Radio Communications Plan and a Radio 

Manual, because Department managers instructed him as to what 

subjects should be included in the manual and plan, because 

Belcher failed to promptly and properly complete those items, 

and because Belcher proved to be incompetent in other aspects 

of his job, the Department exercised its right to dismiss 

Belcher. Supervisors had issued reprimands, notices of 

corrective discipline and notices of punitive discipline 

throughout Belcher's 43 months of employment. He had the 

chance to rebut these charges, but chose not to do so. He 

had the right of grievance, but failed to exercise it. 

Furthermore, Relcher was unable to show the District Court 
what public policies were affected by his dismissal other 

than his own belief that just cause was violated. 

There are many public policy concerns that will trigger 

a wrongful discharge claim. Examples were discussed in one 

recent case: dismissal of employee for not perjuring himself; 

dismissal of employee who files for workers' compensation; or 

dismissal of the employee who refuses sexual relationships 

with employer. Keneally v. Orgain (1980), 186 Mont. 1, 6, 

606 P.2d 127, 129. In order to find a public policy concern 

that would permit Belcher to collect for wrongful 

termination, this Court would need to add another 

proscription, the dismissal of state employees who are not 

performing their duties. In order to constitute a public 

policy violation, Belcher's claims would have to "further a 

state interest in protecting the general public which 

transcends the employment relationship." Brinkman v. State 

of Montana (Mont. 1986), 729 P.2d 1301, 1308, 43 St.Rep. 

2163, 2171, (emphasis in original). Relcher's claim does not 

state a public concern; it is a personal matter. 

Belcher asserts that S 2.21.6503(6), A.R.M., in effect 

when he was dismissed, supports his claim that his dismissal 

violated public policy. Section 2.21.6503 (6) , A. R.M. read, 

"When punitive discipline is necessary, just cause, 

documentation of facts, and due process are required." 

Section 2.21.6507(6) defines just cause as "reasonable, 

job-related grounds for taking a disciplinary action based on 

failure to satisfactorily perform job duties . . . " This 

Court has held that administrative rules "may - be the source 

of a public policy," Q, 639 P.2d at 502 (emphasis added); 

but that public policy is not derived solely from 

administrative rules. "Public policy violations may 

conceivably arise on other facts or theories." Dare, 687 

P.2d at 1019. 
The facts that Belcher disagreed with his discharge 

does not mean that the Department's decision was wrong, 

Belcher's right to grievance proceedings under 

S 2.21.6503 (I), A.R.M., (now found at S 2.21.6515, A.R.M. 

provided his remedy. He failed to use that remedy. In such 

circumstances, the courts should not interfere. "Whether an 

employee has performed satisfactorily is to be determined by 

the employer and not by the courts." Percival v. General 

Motors (8th Cir. 1976), 539 F.2d 1126, 1129; see also, Pierce 

v. Ortho Pharmaceutical Corp. (N.J. 1980), 417 A.2d 505, 

510-11. This Court will not interfere with the Department of 

State Lands1 right to manage its affairs and hire employees 

who will perform their jobs so long as there is a standard 

for discipline and the Department has abided by it. Summary 

judgment for the Department on Belcher's wrongful discharge 

claim was properly granted. 

It is clear from the record, the deposition of Belcher, 

and Belcher's own conduct that he knew his job was in 

jeopardy. The Department repeatedly attempted to help him 

until the situation was out of control. These particulars 

represent notice to Belcher that he had to improve or risk 

discharge. The Department recognized the duty to act in good 

faith and abided by it. Gates v. Life of Montana (Mont. 

1983), 668 P.2d 213, 215, 40 St.Rep. 1287, 1289. 

In Nordlund v. School District No. 14 (Mont. 19871, 

P.2d , 44 St.Rep. 1183, 1186, the covenant of good 

faith and fair dealing was not breached where the employer 

school district gave the administrator proper notice his 

contract would not be renewed, and complied with statutory 

requirements dealing with school contracts set out in 

S 20-4-401, MCA. It was held that "because no breach of the 

employment contract occurred, it cannot be said that the 
school board breached the implied covenant of good faith and 

fair dealing." Nordlund, 44 St.Rep. at 1186. 

The case before this Court is similar. The Department 

of State Lands assigned Belcher to conduct specific duties. 

Belcher's work was not adequate and he was warned that it 

must improve or he would face the prospect of termination. 

His work performance did not improve and he was discharged. 

Because the Department followed administrative regulation in 

warning Belcher about his work, and attempted to assist him, 

it cannot be said that the Department violated the covenant 

of good faith and fair dealing when it discharged Belcher. 

Consequently, Belcher's claims for breach of the covenant of 

good faith is deficient and summary judgment for the 

Department was proper. 

We affirm the judgment of the District Court. 

We concur: /