NO. 88-44 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

J. L. HAMNER, 

Petitioner and Appellant, 

-vsBUTTE/SILVER BOW COUNTY, a Political 

Subdivision of the State of Montana 

and TIM CLARK, Butte/Silver Bow Personnel 

Director, 

Respondents. 

APPEAL FROM: District Court of the Second Judicial District, 

In and for the County of Silver Bow, 

The Honorable Arnold Olsen, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John Leslie Hamner, Butte, Montana 

For Respondent: 

Robert McCarthy, County Attorney, Butte, Montana 

Brad Newman, Deputy County Attorney, Butte 

Submitted on Briefs: June 30, 1988 

Decided: August 18, 1988 

Filed: %u8 1 8 1988 

Clerk 
Mr. Justice R.C. McDonough delivered the Opinion of the 

Court. 

This appeal from the Second Judicial District questions 

the validity of the District Court's declaratory judgment. 

Appellant Hamner claims that the lower court erred in 

declaring his rights under Montana laws relating to veteran's 

preferences and procurement of public defender legal 

services. We affirm. 

ISSUES 

Respondent Butte-Silver Bow County's (County's) brief 

provides a more workable listing of issues than Hamner's 

brief. Hamner's brief provides several contentions which may 

be addressed under the issues presented by the County. Those 

issues are: 

(1) Did the District Court err in holding that the 

contract in question herein, calling for the provision of 

certain legal services to the Butte-Silver Bow local 

government, created an independent contractor relationship? 

(2) Did the District Court err in holding that 5 

39-30-103 (7) (g) , MCA, exempted the contract in question 

herein from the statutory employment preference claimed by 

Hamner? 

(3) Did the District Court err in holding that even if 

Hamner were entitled to claim statutory public employment 

preference, his qualifications to provide the legal services 

in question herein were not substantially equal to those of 

the law firm to which the contract was awarded? 

The relevant facts are as follows: The County 

advertised for proposals to provide legal services as 

follows: 
REQUEST FOR PROPOSAL 

The Butte-Silver Bow Local Government is 

currently accepting written proposals 

from qualified individuals and firms for 

the provision of certain legal services. 

These services are associated with the 

requirements imposed upon counties to 

provide for Juvenile Defender and the 

representation of the Butte-Silver Bow 

Welfare Department in legal proceedings 

(53-2-303 MCA.) In addition to the above 

two areas, Butte-Silver Bow also requires 

legal representation in certain personnel 

management functions. 

This request for proposals requires 

qualified respondents to adequately 

provide for the representation of 

inidigent [sic] youths in Youth Court 

representation of the Butte-Silver Bow 

Welfare Department in such proceedings as 

required by law, and representation of 

the local government as deemed necessary 

or appropriate in areas such as grievance 

and arbitration matters, labor 

negotiations, police and fire commission 

proceedings, and other similar matters. 

Hamner submitted a proposal, and informed the County 

that he qualified for a veteran's preference in County 

hiring. The County rated Hamner's proposal ninth out of nine 

proposals, and contracted the services to a Butte law firm. 

The County refused to consider Hamner's veteran's preference 

status. Hamner objected and filed this action. 

In the lower court, the County contended that the 

veteran's preference provided by Montana law does not apply 

to hiring independent contractors. Hamner contended that 

there was no independent contract. 

The County also argued that Hamner could not claim 

veteran's preference because his proposal for the position 

was not substantially equal to the proposal of Henningsen and 
Purcell, the law firm which received the contract. Hamner 

responded that the advertisement provided the criteria for 

judging whether an applicant's qualifications were 

substantially equal. The same arguments are made on appeal. 

The District Court found that the express language 

the contract provided independent contractor status for 

Henningsen and Purcell. The District Court also concluded 

that: the County had no right to control the firm, the firm 

is customarily engaged in an independent practice, and that 

the contract to provide legal services for the County was 

unnecessary for the firm to continue its business. These 

facts led the District Court to conclude that the County 

awarded an independent contract. 

Hamner attacks these findings arguing that the contract 

provision calling for monthly payments establishes an 

employment relationship. We disagree. The fact that payment 

occurs in monthly installments does not necessarily establish 

an employment relationship. We hold that the District Court 

correctly considered the facts relevant to determining the 

issue. See Standard Chemical Manufacturing v. Employment 

Security Division (1980), 185 Mont. 233, 605 P.2d 610. Thus, 

Hamner's argument on this issue fails. 

Hamner contends that the District Court erred by 

failing to interpret the intent and effect of the words 

"employment", "employ", and "salaried", as used in 

§ 7-5-2107, MCA, 7-4-2708, MCA, and § 46-8-202, MCA, in 

conjunction with veteran's preference and funding of public 

defenders under § 3-5-901, MCA. See also 5 7-6-2351, MCA; § 

7-6-2511, MCA. 
Section 7-5-2107, MCA, states that a board of county 

commissioners may "employ such persons as it deems necessary 

to assist the board in the performance of its duties". 

Section 7-4-2708, MCA, gives contracting authority to county 

commissioners, upon consent of the county attorney, to 

"employ any other attorney licensed in Montana to perform any 

legal service in connection with the civil business of the 

county." Section 46-8-202, MCA, gives counties the authority 

to create a public defenders office, and S 3-5-901, MCA, 

directs funding, to the extent money is appropriated, for 

indigent defense. S 7-6-2351, MCA, and § 7-6-2511, MCA, also 

concern district court funding. 

Hamner claims that the District Court failed to provide 

a proper declaratory judgment by not addressing these 

statutes in its memorandum. Hamner also contends that 

legislative intent, as well as the combined effect of these 

statutes, mandates application of veteran's preference laws 

for the position at issue. We disagree. 

First, in regard to the contention that the District 

Court inadequately addressed these statutes, we note that the 

lower court concluded that: 

Section 46-8-202, MCA 1985, does not require 

that the contract for provision of the legal 

services at issue herein be a "salaried office of 

public employment." . . . Pursuant to Section 7-1-102, MCA 1985, 

Butte-Silver Bow County may provide any services or 

perform any functions not expressly prohibited by 

state law. Butte-Silver Bow County's power and 

authority - must be liberally construed. - Section 

7-1-106, MCA 1985. There is no express prohibition 

under Montana law precluding or preventing 

Butte-Silver Bow county from entering- into an 

independent contractor relationship for provision 

of the legal services at issue herein. (Emphasis 

added. ) 
This conclusion adequately addresses the contentions made by 

Hamner as to the meaning of the words in the statutes cited 

by Hamner. The import of the conclusion is that the statutes 

do not provide Hamner with the relief he requested. 

Second, we agree with the District Court that neither 

the legislative intent nor the combined effect of the 

statutory words singled out by Hamner constitutes an express 

prohibition of independent contracts to provide public 

defender services. Under the facts of this case, Hamner's 

claim in regard to these statutes fails without such a 

conclusion. See S 39-30-103(7) (g), MCA; 5 7-1-106, MCA. 

A further argument by Hamner is that funding for the 

contract pursuant to 5 46-8-202, MCA, mandates an employment 

relationship. The funding under the statute is for a 

salaried public defender. We also agree with the District 

Court on this point, and hold that the language in the 

statute does not constitute an express prohibition of 

independent contracts. 

In summary, the statutes cited by Hamner provide 

discretion to the County to establish employee positions. 

They do not mandate that the positions be established to the 

exclusion of independent contracts. 

We also reject Hamner's contention that the existence 

of prior identical contracts which created employment rather 

than independent contractor relationships proves an 

employment relationship here. The mere existence of the 

prior relationships is not enough under the facts of this 

case to sustain the contention. 

111. 

Moreover, we agree with the District Court that even if 

Hamner could validly claim a veteran's preference, Hamner's 

proposal was not substantially equal. The County provided 
evidence showing that Henningsen and Purcell's proposal 

better matched the requirements of the position. 

Hamner contends, however, that the criteria for judging 

applicants for the position at issue is contained solely in 

the advertisement (set out above) soliciting proposals, and 

that the only criteria in the advertisement for judging 

applicants is that they be attorneys. We disagree. The 

advertisement solicits proposals demonstrating the 

applicant's ability to provide extensive legal services for 

the County. An analysis of that ability, rather than the 

advertisement itself, constitutes the criteria for judging an 

applicant's qualifications for the position. Here, 

substantial evidence supports the District Court's finding 

that the County correctly determined that Hamner's 

qualifications were not substantially equal to the firm 

awarded the contract. Thus, this contention fails. 

Hamner also argues that the lower court's adoption of 

the County's proposed findings and conclusions in this case 

constitutes error. We disagree. Under the facts and 

applicable law of this case, we hold that the District Court 

did not act improperly in adopting the findings and 

conclusions proposed by the County. 

Thus, we affirm all issues and contentions.