No. 85-461 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

BRUCE W. PHILLIPS, et al., 

Plaintiffs and Appellants, 

-vsLAKE COUNTY, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Twentieth Judicial District, 

In and for the County of Lake, 

The Honorable C. B. McNeil, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Christian, McCurdy & Wold; Douglas J. Wold argued, 

Polson, Montana 

Manley & Smith; Brian J. Smith, co-counsel, Polson, 

Montana 

For Respondent: 

French, Mercer, Grainey & Duckworth; Edward K. 

Duckworth argued, Polson, Montana 

For Amicus Curiae: 

Michael G. Alterowitz, Carbon County Attorney, 

Red Lodge, Montana 

Wm. Nels Swandal, Park County Attorney, Livingston, 

Montana 

Richard Simonton, Dawson County Attorney, Glendive, 

Montana 

Submitted: April 11 1986 

Decided: June 10, 1986 

Filed : JUN 1 0 1986 

Clerk 
Mr. Justice John C. Harrison delivering the Opinion of the 

Court. 

Appellants are deputy sheriffs ("Deputies") of Lake 

County, Montana. Each Deputy separately filed a complaint 

stating, among other things, a wage claim against respondent 

Lake County ("Lake County") seeking payment for overtime 

hours worked. Their individual claims were consolidated by 

the Lake County District Court. The Deputies seek 

$1,389,021.60 in overtime, penalties, interest and attorney's 

fees from Lake County. An agreed statement of facts was 

submitted and both the Deputies and Lake County filed motions 

for partial summary judgment on the issues of: (1) whether 

deputy sheriffs are entitled to compensation for overtime 

hours worked in excess of 40 hours per week or 2,080 hours 

per year, (2) whether a "year of service" for calculating 

longevity benefits should be based on a calendar year or 

2,080 hours, a.nd (3) whether the Deputies are entitled to 

the statutory penalties, interest, costs and attorney's fees. 

The Honorable C. R. McNeil, District Judge, denied the 

Deputies motion for partial summary judgment and granted 

summary judgment in favor of Lake County. The Deputies filed 

a Motion for Reconsideration. A hearing was held and the 

summary judgment in favor of Lake County was affirmed. The 

Deputies appeal from the order denying their motion for 

partial summary judgment and granting summary judgment to 

Lake County. We affirm the judgment of the District Court. 

The facts relevant to the disposition of this appeal 

are basically undisputed by the parties. 

Each of the appellant Deputies was a duly appointed and 

acting deputy sheriff of Lake County, Montana. The 
respondent is the Lake County Board of Commissioners. At all 

times relevant to this appeal it was the policy of the Lake 

County Sheriff's Department to schedule its road Deputies, 

including the complaining Deputies, to work in excess of 

2,080 hours per year (40 hours X 52 weeks=2,080). Their 

routine work schedule was to work six days each week and 

often more than eight hours per day. Each Deputy has at all 

times been paid a monthly salary. Since October 1, 1981, the 

Deputies were paid longevity pay at the rate of 1% for each 

calendar year of employment beginning on their employment 

anniversary date following October 1, 1981. Lake County 

never established, by resolution, that any undersheriff or 

deputy sheriff who worked in excess of his regularly 

scheduled work period would be compensated for his overtime. 

Part-time employees of the Lake County Sheriff's Department, 

who were not deputy sheriffs, were paid overtime. 

As of July 1, 1984, Lake County by resolution began 

paying each deputy sheriff the additional sum of $300 per 

month as compensation for overtime. On April 15, 1985, the 

United States Supreme Court conclusively decided the case of 

Garcia v. San Antonio Metropolitan Transit Authority (1985), 

U.S. , 105 S.Ct. 1005, 83 L.Ed.2d 1016, which made 

overtime compensation for the Deputies mandatory. In June 

1985, Lake County paid all Deputies overtime retroactive to 

April 15, 1985, pursuant to the requirements of Garcia and 

the federal Fair Labor Standards Act. The County subtracted 

from the retroactive overtime payments the amount of $300 per 

month for the months of April and May, 1985. Since June 1, 

1985, the Lake County deputy sheriffs were no longer working 

6 days per week. 
The Deputies present the following issues for review by 

this Court: 

(1) Whether the Deputies are entitled to overtime 

compensation after October 1, 1981? 

(2) Whether the Deputies are entitled to have 

longevity benefits calculated at the rate of 1% for every 

2,080 hours worked rather than 1% for each calendar yea.r? 

(3) Whether the Deputies are entitled to overtime 

benefits at the rate of time-and-a-half over 40 hours per 

week beginning April 15, 1985? 

(4) Whether the Deputies are entitled to compensation 

for "on-call" time? 

(5) Whether the Deputies are entitled to penalties, 

interest, attorney's fees and costs? 

The fundamental issue to be decided in this case is 

whether the Deputies are entitled to compensation for 

overtime hours worked in excess of 40 hours per week or 2,080 

hours per year from October 1, 1981, to April 15, 1985. At 

the outset this Court recognizes the potential importance the 

answer to this issue has for the State of Montana. For this 

reason we compliment counsel for both parties on presenting 

exhaustive and scholarly arguments on this importa.nt and 

complex question. We also note that after thoroughly 

analyzing this issue, we can find little fault with Judge 

McNeilrs reasoning found in his orders granting and affirming 

summary judgment for Lake County. Therefore, we basically 

adopt the rationale set forth in Judge McNeilrs decisions and 

offer the following opinion as a supplement and explanation 

to the same. 
Whether the Deputies are entitled to overtime 

compensation after October 1, 1981? 

The heart of this first issue centers around this 

Court's decision in City of Billings v. Smith (1971), 158 

Mont. 197, 490 P.2d 221. This case was decided immediately 

after the 1971 Montana Legislature adopted the Minimum Wage 

and Overtime Compensation Act ("MWOCA" ) which is codified in 

§ 39-3-401, et seq., MCA. In City of Billings this Court was 

basically asked to decide whether (1) the MWOCA itself was 

constitutional; and (2) whether policemen, firemen and deputy 

sheriffs were covered by the MWOCA. The Court found that the 

MWOCA was constitutional, and that policemen, firemen and 

deputy sheriffs were not covered by the Act. The Court held 

that policemen and firemen were both "professional employees" 

and thus exempt from the MWOCA under the professional 

employee exclusion. However, the Court did not find that 

deputy sheriffs were also "professional employees." Instead, 

the Court went in a totally different direction to exempt the 

deputy sheriffs from the MWOCA. The Court found that deputy 

sheriffs were exempt from the MWOCA by virtue of 

"particularized and special" statutory treatment within 

Montana's code. The particularized and special treatment 

which exempted the deputy sheriffs from the MF70CA was a 

statute which set their total compensation at 90% of the 

sheriff's salary (S 25-604, R.C.N., 1947). The Court 

reasoned in City of Billings that when a general statute 

(MWOCA) and a specific statute ($ 25-604, R.C.M., 1947) are 

inconsistent, the latter is paramount to the former. Thus, 

under this analysis, the deputy sheriffs were not entitled to 

overtime compensation under the MWOCA. As the Court 

explained in City of Billings: 
As to deputy sheriffs, an examination reveals 

particularized and special treatment by the 

legislature sufficient to remove them from the 

Minimum Wage Act. 

Where one statute deals with a subject in general 

and comprehensive terms, and another deals with a 

part of the same subject in a more minute and 

definite way, the latter will prevail over the 

former to the extent of any necessary repugnamcy 

between them. (Citations omitted). 

The provisions of section 25-604, R.C.M. 1947, and 

the provisions of the Minimum Wage Act of 1971 are 

in conflict. In such case the special act will 

prevail over the general provisions of the Minimum 

Wage Act. 

City of Billings, 490 P.2d at 228, 229, 230. 

The Deputies point out this statutory conflict between 

the MWOCA and § 25-604, R.C.M., 1947, existed until 1981 when 

the legislature enacted House Bill 558 as Chapter 603 of the 

1981 Session Laws (encoded in Title 7, Chapter 4, Part 25, 

MCA). The Deputies essentially argue that Chapter 603 of the 

1981 Session Laws struck down the "90% limitation" of 

§ 25-604, R.C.M., 1947. In doing so, the Deputies argue, 

Chapter 603 struck down the only obstacle in allowing them to 

receive overtime compensation under the MWOCA. The Deputies 

argue that since the reason for the rule denying them 

overtime compensation ceased to exist effective October 1, 

1981, overtime compensation should be allowed from that date 

forward. 

Lake County, on the other hand, argues that when the 

legislature struck down 5 25-604, R.C.M., 1947, by enacting 

Chapter 603 of the 1981 Session Laws, the Deputies were still 

excluded. from the MWOCA by this Court's holding in 

City of Billings. In other words, Lake County argues that 

the Deputies' compensation continued to be controlled by 
specific legislation thus exempting then: from the overtime 

provisions of the MWOCA. We agree. 

Lake County correctly points out that Chapter 603 of 

the 1981 Session Laws constitutes a specific statute 

governing all forms of compensation to which deputy sheriffs 

are entitled. The particular provisions of Chapter 603 

merely redefined the forms of compensation which were 

governed by the "90% limit" and § 25-604, R.C.M., 1947. The 

City of Billings case holds that such a specific statute, in 

and of itself, removes deputy sheriffs from coverage und.er 

the MWOCA. City of Rillings, 490 P.2d at 229. 

The resourceful argument of the Deputies cannot change 

the essential fact that Chapter 603 of the 1981 Session Laws 

remains to this date a "specific [provision] relating to [a] 

specific [office]," and thus controls the issue of 

compensation. City of Billings, 490 P.2d at 229. The 

City of Billinqs decision applies with equal vigor and force 

to Chapter 603 as it did to S 25-604, R.C.M., 1947. That is, 

the MWOCA deals with the subject of overtime in a "general" 

way, while Chapter 603 addresses the central topic of deputy 

sheriffs' compensation, including overtime, in a more 

"minute" and definite way. City of Billings, 490 P.2d at 

229. The specific, therefore, must prevail over the general. 

Consequently, the MFJOCA still does not apply to the Deputies. 

It is also apparent to this Court that the legislature 

intended the same result by enacting Section 7 of Chapter 

603. Section 7 has been codified as S 7-4-2507, MCA. This 

section holds that if there is a conflict between sections 2 

through 5 of Chapter 603 and any other law (which 

parenthetically must include the MWOCA) , that sections 2 
through 5 govern with respect to deputy sheriffs. Section 7 

of Chapter 603 provides: 

7-4-2507. Deputy sheriff and undersheriff 

provisions--construction. If there is a conflict 

between 7-4-2508 through 7-4-2510 and any other 

law, 7-4-2508 through 7-4-2510 govern with respect 

to undersheriffs and deputy sheriffs. 

After determining the MWOCA does not apply to the 

Deputies, the critical question now becomes whether Chapter 

603 of the 1981 Session Laws allows the Deputies to be 

compensated for their overtime. After carefully analyzing 

the arguments of the parties, we agree with the District 

Court and Lake County that the legislative history of the 

1981 Session clearly shows that the payment of overtime for 

the Deputies and the rate thereof is optional at the 

discretion of the Lake County Commissioners. 

Chapter 603 of the 1981 Session Laws (encoded in Title 

7, Chapter 4, Part 25, MCA) provides in section 3 that a 

sheriff's department may establish a work period other than 

the 40 hour workweek established by the MWOCA for determining 

when an employee may be paid overtime. Section 4 of Chapter 

603 provides that the county commissioners may, by 

resolution, establish that a deputy sheriff who works in 

excess of his regularly scheduled work period will be 

compensated for the hours worked in excess of the work period 

at a rate to be determined by the commissioners. Sections 3 

and 4 of Chapter 603 have been codified as S 7-4-2509(1) and 

(2) respectively: 

7-4-2509. Sheriff's department--work period in 

lieu of workweek--overtime compensation. (1) (a) 

A sheriff's department may establish a work period 

other than the workweek provided in 39-3-405 or 

7-32-2111 for determining when an employee may be 

paid overtime. 
(b) The aggregate of all work periods in a year, 

when expressed in hours, may not exceed 2,080 

hours. 

(2) The board of county commissioners may by 

resolution establish that any undersheriff or 

deputy sheriff who works in excess of his regularly 

scheduled work period will be compensated for the 

hours worked in excess of the work period at a rate 

tobedetermined by that board of county 

commissioners. (Emphasis added.) 

The District Court correctly points out in its order 

affirming summary judgment that by use of the permissive word 

may the legislature made it perfectly clear that payment of 

overtime for deputy sheriffs and the rate thereof is optional 

at the sole discretion of the county commissioners. The 

legislative history of House Bill 558 (enacted a.s Chapter 

603) and Senate Bill 375 supports the same conclusion. 

As originally introduced, House Bill 558 was to provide 

that restrictions imposed upon the compensation of deputy 

sheriffs does not apply to payment for hours worked overtime. 

Senate Bill 375, as originally introduced, provided that a 

sheriff's department may establish a work period other than a 

40 hour workweek for determining when an employee must be 

paid overtime and further provided that any deputy sheriff 

who works in excess of his work period must be compensated at 

a rate not less than 1% times his hourly rate. Senate Bill 

375 specifically provided: 

NEW SECTION. Section 3. Option to establish 

workperiod in lieu of workweek. (1) A sheriff's 

department may establish a workperiod other than 

the workweek provided in 39-3-405 for determining 

when an employee must be paid overtime. 

(2) The aggregate of all workperiods in a year, 

when expressed in hours, may not exceed 2,080 

hours. 

NEW SECTION. Section 4. Compensation for hours 

worked overtime. Any undersheriff or deputy 

sheriff who works in excess of his regularly 

scheduled workperiod must be compensated for the 

hours worked in excess of the workperiod at a rate 
of not less than 1% times the hourly rate at which 

he is employed. (Emphasis added. ) 

As reported out of the Committee on State 

Administration on Second Reading, the caption of House Bill 

558 had been amended to read: "An Act to Revise the 

Compensation Provisions Relating to Deputy Sheriffs and 

Undersheriffs" and. contained the mandatory provisions 

incorporated from Senate Bill 375 set forth above. 

As passed in its final form, section 3 

(5 7-4-2509 (1) (a)) was amended by changing the phrase "when 

an employee must be paid overtime" to "when an employee may 

be paid overtime." Furthermore, section 4 (5 7-4-2509(2)) 

was amended by deleting the provision that a deputy sheriff 

must be compensated for overtime at a rate of 1% times his 

hourly rate and substituting the provision as set forth above 

that the commissioners may, by resolution, provide for 

overtime and the ra.te thereof. 

We conclude, as does the District Court, that by the 

permissive language in the law passed by the 1981 legislature 

and by the legislative history set forth above, that payment 

of overtime for deputy sheriffs and the rate thereof is 

optional at the discretion of the county commissioners. As 

the District Court succinctly stated: 

It is painfully clear that the legislature 

considered the issue head-on, fully considered 

mandating the payment of overtime hours for deputy 

sheriffs at the same rate as the Minimum Wage Act 

and decided to make such overtime payment and the 

rate thereof optional at the discretion of the 

county commissioners.. . . It would be an insult 

to the legislature to question their intent in 

amending the legislation from the mandatory "must" 

as introduced, to the permissive, discretionary 

"may" as passed by tha.t body. - 

As applied to the instant case, the Lake County 

Commissioners exercised their discretion beginning October 1, 
1981, by their failure to adopt a resolution providing for 

the payment of overtime compensation to the Deputies under S 

7-4-2509 (2), MCA. This means the Deputies received no pay 

for hours worked in excess of a 40 hour workweek. As the 

District Court points out, this result may seem unfair, but 

it was not unlawful. 

As pointed out in the facts section of this opinion, 

the Lake County Commissioners have now adopted a resolution 

providing for the payment of overtime compensation to the 

Deputies retroactive to April 15, 1985. This new resolution 

was based on the United State Supreme Court decision of 

Garcia v. San Antonio Metropolitan Transit Authority (1985), 

U.S. , 105 S.Ct. 1005, 83 L.Ed.2d 1016, which 

basically held that the minimum wage and overtime 

compensation provisions of the Fair Labor Standards Act 

("FLSA") are now to be enforced against states and their 

political subdivisions. Therefore, overtime compensation for 

the Deputies is now mandatory. 

Whether the Deputies are entitled to have longevity 

benefits calculated at the rate of 1% for every 2,080 hours 

worked rather than 1% for each calendar year? 

As part of the 1981 Legislature's program to redefine 

the forms of compensation for deputy sheriffs, section 5 of 

Chapter 603 (codified as § 7-4-2510, MCA) was enacted 

providing as follows: 

7-4-2510. Sheriff's department--longevity 

payments. Beginning on the date of his first 

anniversary of employment with the department and 

adjusted annually, a deputy sheriff or undersheriff 

is entitled to receive a longevity payment 

amounting to 1% of the minimum base annual salary 

for each year of service with the department. This 

payment shall be made in equal monthly 

installments. 
The Deputies correctly point out that the language of 

this statute is simple. Beginning on October 1, 1981, a 

deputy sheriff is entitled to additional compensation of 1% 

of the minimum base salary "for each year of service with the 

department." The Deputies argue that the term "year of 

service" means 2,080 hours as specifically defined by the 

Attorney General. See, 39 Op. Att'y Gen. 78 (1982). Lake 

County, on the other hand, argues the term "year of service" 

means 365 days or a calendar year. 

We hold the term "year of service" as used in 

S 7-4-2510, MCA, should be given its ordinary meaning--365 

days or a calendar year. We agree with Lake County and the 

District Court that had the legislature intended that the 

term "year of service" to mean 2,080 hours they would have 

explicitly said that in the statute. Therefore, the Deputies 

are entitled to longevity payments for each calendar year of 

service with the department. 

111. 

Whether the Deputies are entitled to overtime benefits 

at the rate of time-and-a-half over 40 hours per week 

beginning April 15, 1985? 

As noted above, the District Court found that the 

United States Supreme Court case of Garcia mandated overtime 

compensation for the Deputies effective April 15, 1985. The 

net effect of the Garcia decision was to apply the federal 

Fair Labor Standards Act ("FI,SAff) , 29 U.S.C. 5 201 et seq. to 

the Deputies. Section 207 (k) of the FLSA provides basically 

that the overtime threshold for the Deputies is the lessor of 

216 hours per 28 day work period or the average number of 

hours determined in a study done by the Secretary of Labor. 

The results of the study done by the Secretary of Labor 
provided the lesser figure of 171 hours per 28 day work 

period (approximately 43 hours per 7 day work period). It is 

this 171 hour threshold that is currently being applied to 

the Deputies by Lake County and which was found to be 

appropriate by the District Court. 

The Deputies argue the proper threshold for 

commencement of overtime in the state of Montana is 160 hours 

under the MWOCA (40 hours per 7 day work period), not 171 

hours. It must be observed, the Deputies stress, that the 

holding of the Garcia case was simply that the FLSA applied 

to governmental employees, including deputy sheriffs. It is 

also true, the Deputies concede, that the maximum number of 

hours that can be worked under the requirements of 5 207 (k) 

of the FLSA is 171 hours per 28 days. However, the Deputies 

point out, the FLSA also includes 5 218 (a) which provides as 

follows: 

Section 218. Relation to other laws. 

(a) No provision of this Act or of any order 

thereunder- shall excuse noncompliance with any 

Federal or State law or municipal ordinance 

establishing a minimum wage higher than the minimum 

wage established under this Act or a maximum 

workweek lower than the maximum workweek 

established under this Act . . . The Deputies argue the purpose of 5 218 is to provide 

the employee with a benefit of the lower maximum work week 

established either by federal law (171 hours) or state law 

(160 hours). Since the MtJOCA establishes a maximum workweek 

lower than the maximum workweek established under the FLSA, 

the Deputies argue there is no excuse for noncompliance with 

the MWOCA. 

The argument set forth by the Deputies may be 

theoretically sound., but it is fundamentally flawed for one 

very important reason--the MWOCA does - not apply to the 
Deputies. As explained under Issue I, the MWOCA does not 

apply to the Deputies because of "particularized and special" 

statutory treatment by the legislature. Therefore, because 

the MF70CA does not apply to the Deputies, federal law (FSLA) 

is the only law left to establish the payment of overtime for 

the Deputies. Consequently, the Deputies are entitled to 

compensation for overtime (retroactive to April 15, 1985) 

pursuant to the requirements of Garcia and the FLSA, and Lake 

County to date has been properly compensating the Deputies 

based on this standard. 

IV. 

Whether the Deputies are entitled to compensation for 

"on-call" time? 

As a condition of their employment, the Deputies argue 

they are required to be "on-call" at various times by Lake 

County. The Deputies now argue they are entitled to be 

compensated by Lake County for this "on-call" time. The term 

"on-call" as used in this case means time which is after 

regularly scheduled work hours for the Deputies, or a day off 

when the Deputies are out of uniform. The Deputies claim the 

on-call policy of Lake County severely restricts their 

off-duty time because they are required to either remain at 

home or in a patrol car in anticipation of being sum~oned 

back to work. The current policy of Lake County is not to 

compensate the Deputies for on-call time. 

We agree with the District Court that payment, if any, 

and the rate to be paid, if any, for "on-call" time was 

entirely discretionary with Lake County prior to the 

effective date of the Garcia case, April 15, 1985. The 

Deputies claim for on-call time prior to Garcia is simply 

another overtime claim which was addressed by this Court 
under Issue I. Since the Lake County Commissioners did not 

exercise their discretion and pass a resolution providing for 

the compensation of on-call time, the Deputies are not 

entitled, as a matter of law, to any such compensation. 

With regard to compensation for on-call time since 

April 15, 1985, we adopt the argument set forth by Lake 

County that on-call time for the Deputies is not compensable 

as work time. Lake County has provided this Court with a 

practical test to gauge just what constitutes "work. l1 The 

United States Supreme Court, as Lake County explains, has 

laid down a three-part standard to define work or employment: 

[Wle cannot assume that Congress [in the Fair Labor 

Standards Act] here was referring to work or 

employment other than as those words are commonly 

used--as meaning [I] physical or mental exertion 

(whether burdensome or not) [2] controlled or 

required by the employer and [3] pursued 

necessarily and primarily for the benefit of the 

employer and his business. 

Tennessee Coal, Iron and Railroad. Co. v. Muscoda Local No. 123 

(1944), 321 U.S. 590, 598, 64 S.Ct. 698, 703, 88 L.Ed 949, 

956. 

Tennessee Coal was a case decided by the Supreme Court 

under the FLSA. The high Court, in announcing this test, was 

interpreting S 203 (g) of the FLSA which reads "'employ' 

includes suffer permit work. l1 U.S.C. 

As Lake County points out, this is exactly the same 

definition of "employ" that the Montana Legislature has 

adopted in S 39-3-201(2), MCA, ("'employ' means permit or 

suffer to work") . We therefore adopt the Supreme Court's well-reasoned 

definition of work or employment as used in interpreting 

Montana's identical statutory language. 
Further, as Lake County points out, the tenor of 

federal law in this circuit supports the conclusion that 

on-call time is to be distinguished from work time. The 

Ninth Circuit Court of Appeals states: 

The Act [FLSA] does not require payment of wages to 

an employee merely because he is away from home. 

Nor d.oes the Act undertake to regulate or restrict 

reasonable and bona fide agreements whereby an 

employee agrees to be available if needed. 

'Working' is not synonymous with availability for 

work. 

Fox v. Summit King Mines (9th Cir. 1944), 143 F.2d 926, 932. 

We agree with Lake County that the Deputies claim under 

this issue does not stand up under the Tennessee Coal test. 

On-call time for the Deputies requires no physical or mental 

exertion. At best, the Deputies may claim they are making 

themselves available for work. The mere availability for 

work does not automatically translate into compensable "work" 

time under any common understanding of that term. 

Furth.ermore, Lake County, pursuant to Garcia and the FLSA, is 

currently paying the Deputies overtime compensation. And, as 

noted by Lake County, in those occasional emergency 

situations where a Deputy is called back for extra duty, he 

will be fully compensated for any overtime actually worked. 

We hold that the Deputies on-call time since October 

15, 1985, is not compensable as work time, and therefore 

should not be entered into any calculation for overtime 

compensation. 

v. 

Whether the Deputies are entitled to penalties, 

interest, attorney's fees and costs? 

As a result of this litigation, the Deputies point out, 

the District Court ruled they were entitled to overtime 

compensation retroactive to April 15, 1985, pursuant to the 
Garcia decision. The Deputies argue the effect of the 

District Court's order is a finding in their favor that Lake 

County failed to pay its employees as required by law. That 

finding, the Deputies argue, entitles them to a mandatory 

penalty ($ 39-3-206, MCA) , interest ($ 27-1-211, MCA) , 

attorney's fees and costs (S 39-3-214, MCA) under state law. 

The Deputies contend that although they specifically 

raised their demands for penalties, interest, attorney's fees 

and costs to the District Court, the court ruled these 

damages were not applicable. The Deputies argue this was 

error since the court ruled in their favor as to part of 

their claim for overtime compensation. Therefore, the 

Deputies request that this Court order Lake County to pay a 

penalty, interest, attorney's fees and costs on the 

post-Garcia overtime which the District Court found to be due 

and unpaid. 

We hold that the Deputies claim for the above mentioned 

damages must fail. Although the District Court ruled that 

the Deputies were entitled to overtime compensation from 

April 15, 1985, forward, this finding does not entitle the 

Deputies to damages under state law. As the Deputies readily 

admit, their award of overtime compensation was based on the 

United States Supreme Court's decision in Garcia. In relying 

on the Garcia decision, the Deputies are not contending that 

their post-April 15, 1985, overtime was awarded under color 

of state law. Rather, the District Court's award must be 

traced directly to the Deputies federal claims under Garcia 

and the FLSA. Therefore, because the Deputies did - not 

receive their overtime compensation award under state law, a 

state law award of a penalty, interest, attorney's fees and 
costs is entirely inappropriate. Consequently, the Deputies 

claim for these damages under Montana law must fa.il. 

The Deputies in their briefs and during oral argument 

failed to assert that Lake County might also be liable for 

damages under federal law because of their post-Garcia 

overtime entitlement. This Court must assume that because 

the Deputies failed to discuss any possible damages against 

Lake County under federal law, they are conceding that Lake 

County is not liable for any penalties, interest, attorney's 

fees or costs under the FLSA. After reviewing the applicable 

law in this a-real we agree with the Deputies tacit 

conclusion. 

The judgment of the District Court is affirmed. 

Justices 
Mr. Justice Frank B. Morrison, Jr., dissenting: 

7: respectfully dissent from the majority opinion and 

would hold that the deputies are entitled to the overtime 

provisions of 5 39-3-405, MCA, which provides that no 

employer shall employ any employees for workweek longer than 

40 hours unless that employer pays one and one-half times the 

hourly wage rate. 

The majority opinion assumes that the Lake County Sheriff established a work period in compliance with the provisions of S 7-4-2509, MCA. Judge McNeil apparently made the 

same assumption. The record conclusively shows that no such 

election was made. 

Section 7-4-2509(1), MCA, states: 

Sheriff's department--work period in lieu of 

workweek--overtime compensation. (1) (a) A sheriff's 

department may establish a work period other than 

the workweek provided in 39-3-405 or 7-32-2111 for 

determining when an employee may be paid overtime. 

(b) The aggregate of all work periods in a year, 

when expressed in hours, may not exceed 2080 hours. 

(emphasis supplied. ) 

Deputy sheriffs work irregular hours. Some weeks they 

may work more than 40 hours per week because of working 

special events. Some weeks they might work less. Counties 

did not want to be subject to paying time and a half under 

the minimum wage law, $ 39-3-405, MCA, where deputies work 

more than 40 hours in one week but less than 40 hours in 

another week. This situation led to the enactment of 

$ 7-4-2509, MCA. If a county wished, it could elect to 

escape the provisions of 5 7-4-2509, MCA, by establishing set 

work periods where the total hours in a year would not exceed 

2,080, which is 40 hours per week times 52 weeks. 
Lake County did not ever establish work periods pursuant 

to 5 7-4-2509, MCA. Therefore, under the clear terms of the 

statute, 5 39-3-405, MCA, applies. 

The majority opinion mistakenly states that the heart of 

this issue "centers around the Court's decision in City of 

Billings v. Smith (1971), 158 Mont. 197, 490 P.2d 221." The 

Billings case has no application because in 1981 the legislature enacted § 7-4-2509, MCA. 

The majority opinion correctly points out that the 

specific controls over the general. Section 7-4-2509, MCA, 

is the specific statute which controls the disposition of 

this case. Under that statute, Lake County failed to 

establish a work period and, by virtue of the statute, is 

subject to the payment of overtime wages pursuant to the 

mandate of § 39-3-405. 

This case should be reversed and remanded for proceedings in accordance with the views expressed in this dissent.