No. 88-405 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

PATRICK GENTRY, THOMAS DAMON, 

and ROBERT GLEICH, 

Petitioners and Appellants, 

-vsCITY OF HELENA and THE POLICE 

COPMISSION OF THE CITY OF HELENA, 

Respondents and Respondents. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of ~ewis & Clark, 

The Honorable Henry Loble, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Charles A. Graveley argued, Helena, Montana 

Gregory A. Jackson argued; Jackson & ice, Helena, 

Montana 

For Respondent: 

David Hull argued, City Attorney, Helena, Montana I' 

.A 

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r .-... Submitted: March 9, 1989 

Decided : May 11, 1989 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Appellants patrick Gentry, Thomas Damon and Robert 

Gleich, police officers for the city of Helena, appeal from a 

decision of the District Court, First Judicial District, 

Lewis and Clark County, which upheld on judicial review the 

decision of the Helena Police commission and the modification 

of its findings by the Helena City Manager which resulted in 

appellants' termination. 

Charges of misconduct against each of the three officers 

before the police Commission of the city of Helena were 

reduced to writing and timely served upon the officers in 

accordance with S 7-32-4156, MCA. A subsequent trial was 

held before the Commission pursuant to 5 7-32-4162, MCA. 

After trial, the majority of the Commission determined that 

Officer Gleich should be suspended from the Helena Police 

Department for 30 days without pay; that Sergeant Damon 

should be demoted to the rank of patrolman; and that 

Patrolman Gentry should be suspended without pay for a period 

of 90 days and that a letter of reprimand be permanently 

placed in his personnel file. One member of the Commission 

dissented, agreeing that Officer Gleich was the least 

culpable of the three officers involved and agreeing with his 

punishment as determined by the Commission, but disagreeing 

as to Officer Gentry and Sergeant Damon. It was the minority 

member's opinion that the latter two officers should be 

terminated. 

Under the statutes providing for procedures before the 

Police Commission, the decision of the Police Commission is 

subject to modification or veto by the mayor. Section 

7-32-4160 (2) , MCA. The term "mayor" includes the city 
manager. Section 7-32-4153, MCA. When a charge against a 

member of the police force is found proven by the Police 

commission and is not vetoed by the mayor, the mayor (or city 

manager) must make an order enforcing the decision of the 

Board or the decision as modified by the mayor (city 

manager). Section 7-32-4161, MCA. In this case, the city 

manager of Helena modified the Helena police Commission 

decision by permanently terminating the employment of 

Officers Damon, Gleich and Gentry from the Helena Police 

Department, effective immediately. 

Decisions of the Helena Police Commission, as modified 

by the mayor or city manager, are subject to review in the 

~istrict Court. Section 7-32-4164, MCA. In this case, the 

officers petitioned for review before the District Court, 

~irst ~udicial District, ~ewis and Clark County. The 

District Court affirmed the decision, opinion and order of 

the Helena Police commission and the modification thereof by 

the city manager of June 1, 1988. The decision of the 

~istrict Court on review is now appealed by the officers to 

this Court. On consideration, we affirm. 

We find the principal issue, raised directly by the 

attorney for Gleich, and indirectly by the attorney for the 

others, is whether substantial evidence supports the decision 

of the police commission as modified by the city Manager. To 

avoid an unnecessary recitation of facts, we will set out 

only those facts found by the Police omm mission as requiring 

discipline. The Police Commission found that Officer Gentry 

was properly charged by two citizens' complaints and for 

dishonesty; that Sergeant Damon was properly charged under a 

citizens' complaint and for dishonesty; and, that Officer 

Gleich was properly charged with dishonesty. The Commission 

reported on dishonesty and the citizens' complaints as 

follows: 
DISHONESTY 

It is undisputed that Gentry and Damon were at the 

Hofbrau from 12:OO p.m. on July 31 until at least 

4:30 p.m. Capt. Morley testified that when Gentry 

and Damon left the Hofbrau, they were "under the 

influence." Given Capt. Morley's years of 

admirable experience with the Helena Police 

Department, the Commission yields to his 

determination as to Gentry and Damon's condition. 

~ollowing the Hofbrau, the two officers went to the 

Red Meadow, where they stayed for several hours, 

and then O'Toole's, Glen's Western Bar, back to the 

Red Meadow, down to Jester's, and back to the Red 

Meadow again. 

Mrs. ~eating, whose testimony the Commission finds 

credible, testified that both Gentry and Damon were 

intoxicated during their conversation with her the 

evening of July 31. During his telephone 

conversations with the police dispatcher, Gentry 

stated that he was drunk and also later stated that 

Damon was drunk. 

Officer Zaharko, both in his statement and in his 

testimony before the Commission, indicated that 

Damon was "intoxicated" to the point where he was 

passing out and waking up in the front seat of 

Gentry's vehicle. The Commission finds it very 

difficult to believe that these officers, after 

being at the party and later to a number of bars 

for a total of eight or nine hours, were sober. 

But, in fact, that is exactly what the officers 

have asked the Commission to believe. All credible 

evidence is to the contrary and the Commission 

finds the officers' testimony in this regard not 

worthy of belief. 

Not only did the officers misrepresent the 

condition of Gentry and Damon to their superiors 

during the investigation, they continued this 

misrepresentation under oath before the Commission. 

For the charges of dishonesty, therefore, the 

Commission finds the charges proven. 

CITIZEN'S COMPLAINTS 

Turning then to the citizen's complaint lodged by 

Kathy Keating concerning the July 31, 1987, 
incident, the Commission finds that the credibility 

of the officers' version is again highly suspect. 

Mrs. Keating was returning from a church music 

festival at the lake when she encountered Damon and 

Gentry. She testified that she was not personally 

acquainted with either officer, and had to identify 

them from a department photograph during the 

investigation. She further testified that the 

officers' intoxicated condition caused her concern. 

Phil Keating, Kathy's husband, testified that she 

relayed the same version of the events to him 

immediately after the incident. He further 

testified that he had no grudge against the Helena 

Police Department. 

The officers, on the other hand, have a great deal 

to lose in this proceedings. They could be subject. 

to discipline up to and including termination. 

While the officers' attempted "cover up'' of their 

activities that evening, from their point of view, 

may be understandable, it is certainly not 

excusable. 

The omm mission therefore finds that the testimony 

of Mrs. eating is credible, and believes that 

Officer Gentry represented that he and Sgt. Damon 

were "undercover" during their conversation on the 

evening of July 31. The Commission further finds 

that such a statement, made by an intoxicated 

police officer, even though off-duty, certainly 

constitutes conduct such as to bring reproach upon 

the Helena Police Department. 

In regard to the second citizen's complaint 

concerning Patrolman Gentry confronting Mrs. 

Keating on August 9, 1987, and telling her that 

"we" could lose our jobs over her complaint--the 

Commission again finds that Mrs. Keating's version 

is the more credible version. his conduct on the 

part of officer Gentry was again conduct such as to 

bring reproach upon the Helena police Department. 

The findings of the Commission concerning the charges 

against Officer ~leich are as follows: 

The Commission finds that Officer Gleich, although 

guilty of covering up his fellow officers' 

misdeeds, is the least culpable of the three 
officers involved. Officer Gleich was not involved 

in the citizen's complaint, and at worst he merely 

went along with his fellow officers' version of the 

night's events. 

In doing so, however, officer Gleich has not only 

misrepresented the facts to his superior officers, 

he has misrepresented them to the Commission while 

under oath. The Commission finds that such conduct 

cannot be condoned and therefore has determined 

that Officer Gleich be suspended from the Helena 

police Department for 30 days without pay. 

The written report of the Helena Police Commission 

recited a number of other facts which supported its findings 

of fact foregoing. We do not set those out in this Opinion 

in full because it is unnecessary for our review and it would 

be painful to detail the day's progress of these three 

officers following their attendance at a luncheon in honor of 

a retiring police officer. 

The District Court noted that the standard of review of 

a decision of the police commission in the ~istrict Court is 

whether the findings of the Commission are supported by 

substantial evidence. ~iskovich v. City of Helena (1976) , 

170 Mont. 138, 143, 551 P.2d 995-998; In the Matter of Raynes 

(1985), 215 Mont. 484, 493, 698 P.2d 856, 862. The findings 

of the Commission are final and conclusive if supported by 

substantial evidence. ~ailey v. City of Helena (1910), 42 

Mont. 216, 218, 112 P.2d 69, 70; Raynes, 698 P.2d at 862, 42 

St.Rep. at 576. The ~istrict Court, sitting as an appellate 

court, is not authorized to determine penalties, sanctions or 

disciplinary measures that may be taken against a police 

officer. City of Helena v. ~istrict Court (1975), 166 Mont. 

74, 77, 530 P.2d 464, 465-466. When the decision on review 

by a district court of proceedings before a Police Commission 

is conducted under § 7-32-4164, MCA, and the District Court 

decision is appealed to us, we adopt the standard of review 
set forth in the Montana Administrative Procedure Act, S 

2-4-704(2) (el, MCA, to the effect that the administrative 

findings, inferences and conclusions and decisions will not 

be reversed or modified unless they are "clearly erroneous in 

view of the reliable, probative and substantial evidence on 

the whole record. " 

We determine that substantial evidence on the whole 

record does support the findings and conclusions of the 

Helena police omm mission, and the decision as modified by the 

City Manager. 

Aside from the substantial evidence issue, the officers 

raise other issues which they contend require a reversal. 

They are: 

(1) The Police Commission's findings of dishonesty 

cannot be supported as a matter of fact or law; 

(2) The testimony that Mrs. eating had taken a 

polygraph examination was improperly admitted; 

(3) The police commission unduly prolonged the hearing 

by requiring the officers to begin their case in chief at 

9:30 after the case had already been in progress for 114 

hours ; 

(4) The City Manager should not have testified before 

the police Commission because of his veto authority over the 

actions of the Police Commission; and, 

(5) That the citizens' complaints should not have been 

considered because no citizen had signed any complaint 

against any officer. 

The officers also complained, without listing the 

subjects as issues, that Officer Gentry had not been advised 

prior to the formal filing of charges of any administrative 

or disciplinary proceedings against him; that the officers 

should not have been suspended in excess of 10 days; that the 

"modification of findings" made by the City Manager was not 
an "order" required by the statute; and that the punishment, 

that is the termination of employment of the officers, was 

disproportionate to the misconduct charged. 

DISHONESTY FINDINGS 

This issue involves whether the Police Commission bras 

correct in determining that all these officers lied during 

the investigation and under oath to the police Commission 

when they denied that officers Damon and Gentry denied being 

drunk but admitted to drinking from 12:30 in the afternoon 

until late the same evening at several bars in Helena. 

Gleich testified that both officers were sober when he 

transported them in a city police car from the Red Meadow bar 

in Helena to the parking lot of the Hofbrau, another bar, 

where the officers had left their car. 

Several witnesses who met or observed Damon and Gentry 

during the course of the afternoon and evening testified that 

they were intoxicated or that they exhibited strong evidence 

of drinking by their actions. An audiotaped telephone record 

of Gentry's call for a ride in a police car are revealingly 

stark about his condition. The amount of liquor they admit 

drinking over the period of time militates against their 

sobriety. Very substantially, the record supports the Police 

Commission that these officers were in fact intoxicated, and 

that they were dishonest in denying it, especially under 

oath. 

The appellants, especially Gleich, maintain that when 

they testified that Damon and Gentry were sober, and not 

impaired by their drinking, they were merely expressing a 

matter of their judgment or opinion, not fact, and thus 

cannot be guilty of dishonesty. The officers cannot escape 

the tenor of their testimony this easily. heir statements 

were intended to state facts, and for the Commission to 
accept their statements as facts. The evidence supports the 

Commission's findings of dishonesty. 

The police Commission did find that Officer Gleich was 

"less culpable." He undoubtedly was torn between loyalty to 

his brother officers and his duty to state the facts openly. 

He apparently chose the wrong course, and the Commission and 

the City Manager set the consequences. 

EVIDENCE -- OF A POLYGRAPH EXAMINATION 

Before the Police Commission, witness Kathy Keating 

answered the following questions: 

Q. Now, Kathy, subsequent to all this, were you 

asked to take a lie detector test? 

A. Yes. 

Q. And did you take a test? 

A. Yes I did. 

Under S 37-62-302, MCA, "results" of a polygraph 

examination may not be introduced into or admitted as 

evidence in a court of law. Here the "resultsw were not 

admitted into evidence, but the fact that Mrs. eating took a 

polygraph examination was admitted. There was no objection, 

however, and the chairman of the omm mission later admonished 

the other members that evidence of taking the polygraph 

examination was not to be considered by them in determining 

the credibility of Mrs. Keating. The District Court, in 

examining this issue, found no prejudice to the officers from 

the admission of this testimony so as to be reversible. We 

agree. 

LENGTH - OF HEARING 

The hearing before the Commission began early in the 

morning, October 8, 1987, and, approximately 114 hours 

thereafter, at 9:15 p.m., the City finished presenting its 

case. The chairman of the Commission told counsel that he 
wanted to finish the case and that they were to proceed with 

their presentation. At 12:30 p.m., October 9, 1987, the 

chairman informed counsel for the appellants that the matter 

could be continued until Tuesday of the following week. 

However, the appellants decided to go forward and the hearing 

was completed after about 204 hours. The session was 

inordinately long, and undoubtedly a wearying one for the 

Commission, and all the counsel for all parties. However, as 

the District Court noted, again one cannot put a finger upon 

any prejudice as to the officers as a result of the long 

hearing. There is no reversible error in the manner which 

the hearing was conducted. 

TESTIMONY --- OF THE CITY MANAGER 

The appellants argue that because the City Manager has 

veto and modification powers over the Commission's decision, 

there is an inherent conflict of interest in allowing his 

testimony. The District Court examined the record and found 

no specific incidence of a biased or prejudicial statement in 

the record, and his review of the City Manager's testimony 

did not reveal any such prejudicial statement. On appeal the 

petitioners have failed to demonstrate any prejudicial effect 

of this witness's testimony and there is no rule otherwise 

which prevents the testimony of the City Manager before the 

police Commission even though subsequently he will make a 

decision which may modify or reverse the findings of the 

Police Commission. 

- NO SIGNATURE - ON COMPLAINT 

The complaint lodged by Mrs. Keating was not signed by 

her. Appellants rely on § 7-32-4156, MCA, which states that 

any charge brought against a member of the police force must 

be in writing. There is however no statutory requirement 

that the complainant sign the charge and so no error occurred 

in the lack of her signature on the formal complaint filed. 
SUSPENSION ----- FOR MORE THAN TEN DAYS 

Section 7-32-4163, MCA, provides that the mayor or the 

chief of police subject to the approval of the mayor has the 

power to suspend the policeman for a period not exceeding ten 

days in any one month with or without pay. The statute 

further provides that any officer suspended with or without 

pay is entitled to appeal that suspension to the Police 

commission. In this case the officers were suspended with 

pay from September 4 to November 30, 1987. They did not 

appeal the suspension to the police Commission as allowed by 

$ 7-32-4163, MCA. The record shows no prejudice to the 

officers by their suspension pending the disposition of the 

charges against them. 

MODIFICATION - OF FINDINGS 

The objection of appellants here to the modification 

made by the city Manager is that it is not an "order" 

required by S 7-32-4161, MCA. The tenor of the instrument as 

modified by the City Manager is certainly an order because it 

was the subject of review before the Helena police commission 

and before this Court on appeal. We do not find the issue to 

be substantive. 

-- LACK OF NOTICE 

Under this issue, the appellant Gentry contends that he 

had not been advised prior to the formal filing of charges of 

any administrative or disciplinary proceedings against him. 

He had received two notices but neither one referred to an 

"incident" which occurred on August 9, 1987. However, our 

examination of the procedures leading up to the hearing 

before the Police Commission shows that the charges against 

the officers were in writing and copies served upon them 15 

days before the time fixed for hearing of such charge. The 

provisions of 5 7-32-4156, MCA, were complied with and on 
that basis the Police Commission was empowered to proceed in 

the matter. 

PROPORTIONALITY - OF DISCIPLINE 

We find no merit in this issue which would require a 

reversal of the District Court's review or of the findings 

and conclusions of the Helena Police Commission, as modified 

by the City Manager. The extent of the penalty to be levied 

against a police officer or officers for proven charges of 

misconduct, absent a constitutional violation, are generally 

matters for determination by the police Corrmission and 

subject to the modification of the mayor or city manager. 

They are thus empowered by statute. If the city of Helena 

determines, as it did in this case, that officers who are 

dishonest under oath are not trustworthy enough to serve as 

police officers for the city of Helena, that kind of decision 

relating to the personnel of the city is beyond our reach and 

jurisdiction. City of Helena v. ~istrict Court, supra, 166 

Mont. at 77. Section 7-32-4155, MCA, gives the Police 

Commission the power to decide all charges of misconduct. 

brought against any police officer who has been guilty of 

misconduct in his office, or of conduct unbecoming a police 

officer, or whose conduct has been such as to bring reproach 

upon the police force. If the charges are proven, the 

Commission, and thereafter the mayor or city manager are 

empowered to discipline, suspend, remove or discharge any 

officer who has been found guilty of the charge filed against 

him. Section 7-32-4160, MCA. In this case, it appears that 

the Commission, and the City Manager, acted within the powers 

given to them by statute. We find no reversible error in 

their decisions. Affirmed. -- ._ 
We Concur: /C 
Mr. ~ustice John C. Harrison, dissenting. 

I would concur with this Court's opinion finding no 

reversible error in the termination of the two officers, 

Patrick Gentry and Thomas Damon, but would hold contrary to 

this Court's opinion regarding Robert Gleich who I feel 

should be reinstated. His contact with the other two 

off-duty officers was when he brought the patrol car to the 

Red Meadow bar's parking lot at approximately 9:30 p.m. on 

the evening in question and drove them home. In arriving at 

my decision it is important to note that the Police 

Commission recommended that Gleich be suspended from the 

Department for 30 days without pay. I would follow the 

recommendation of the omm mission as to Officer ~leich and not 

that of the City Manager who set all the findings of the 

Police Commission aside and made his own decision. 

While I agree that the City Manager has set a high 

standard of honesty for police officers, which standard will 

undoubtedly be well-drilled into the Department, I feel that 

that ~leich was somewhat of an innocent bystander in this 

matter and I believe he was salvageable and should have been 

eventually kept on the force. 

A