### No. 13129 IN

### THE SUPREME COURT OF THE 

### STATE OF MONTANA

M. 

### J. 

### STEER, Plaintiff and Appellant,



### CITY OF 

### MISSOULA, MONTANA, a 

### municipa

### 1Corporation, THE 

### POLICE COMMISSION OF 

### THE 

### CITY

### OF MISSOULA and themembers thereof intheir officialcapacity as Police Commissioners etal., Defendants and Respondents.

Appeal from: District Court of the Fourth Judicial District, Honorable JackL. Green, Judge presiding. Counsel of Record: For Appellant: C. 

### W. Leaphart argued, Helena, Montana For Respondents: Root and Valgenti, Missoula

# ,Montana Victor F. 

### Valgenti argued, Missoula, Montana

Submitted: March 

### 3, 1976 Decided : 

## l!Ihl? 26

## 1976 Filed: 

## M&E8

## 66916Mr. JusticeWesley Castles delivered the Opinion of the Court. This appeal is from 

### a judgment of the districtcourt, Missoula County, affirming the decision of the Missoula Police Commission whereby plaintiff 

### was dismissed from his employment

as a police officer. On September 27, 1971, the City of Missoula hired appellant, M. J. Steer, 

### as a probationary patrolman. Upon successful completion of the probationary period, appellant

### was confirmed

as

### a patrolman on March 28, 1972. On April 16, 1973, the then Chief of Police Gilbert Hansen, believing appellantguilty of misconduct, gave him the choice of being fired outright or submitting his resignation. Appellant submitted his resignation. Thereafter appellant filed indistrict court an application for a 

### writof mandate alleging his dismissal 

### wascontrary tothe Metropolitan Police Law, Chap. 18, Title 

### 11, R.C.M. 1947, in that he was denied the right to answer preferred charges in

### a hearing before the police commission prior tohisdismissal. Following

a continuance, the districtcourt on April 8, 1974, issued a 

### writof mandate ordering appellant's reinstatement. Whereupon the new Chief of Police Ray Roehl by letter to appellant acknowledged hisreinstatement, but announced his immediate suspension pending resultsof a hearing before the police commission on charges of misconduct, dishonesty, and failure toobey a lawful order of a superior officer. The 

### statement of charges came on for hearing on May 

### 2, 1974, and after presentation of evidence the hearing 

### was continued without date. On July 15, 1974, Chief Roehl sent another letter toappellant containing a statement of two additional charges concerning false information inhis employment application and stating that since appellant 

### was on vacation statusno suspension was deemed necessary. The police commission reconvened on August 13, 1974, and

### after the presentation of further evidence, found appellant guilty of failure to obey a lawful order of a superior officer,

one charge of conduct unbecoming an officer and falsification of his application for employment. Pursuant to sections 11-1805 and 11-1806(5), R.C.M. 1947, the police commission, with the approval of Mayor Robert E. 

### Brown, ordered appellant's dismissal from the Missoula Police Department effective August 13, 1974. Until the time of his final dismissal, appellant received full salary and benefits. In October 1974,appellant filed the complaint involved in thisproceeding seeking review of the police commission order, pursuant to section 11-1806(7), (8),R.C.M. 1947. On May 29, 1975, the district court affirmed the decision of the Missoula Police Commission. Steer appeals from that order and judgment. The one issue presented on appeal iswhether or not in discharging appellant, the chief of police and the police commission of the City of Missoula denied appellant procedural due process of law. Appellant's main argument in this regard centers around the contention that once he was summarily fired the first time, "thedie had been cast"because the decision to fire had already been made final. Therefore, in appellant's view, all administrative actions subsequent to his reinstatement were mere ex post facto attempts to provide due process so as to justify his discharge and as such they were procedurally defective. Upon review of the facts and case law cited by appellant,

we cannot agree with this contention. Appellant relies on several

cases for his position that a procedurally improper firing cannot be cured by any kind of subsequent action of the dismissing authority. Opheim v. Fish & 

### Game Comm., 133 Mont. 362, 323 P.2d 1116; State ex rel. Ford v. Fish & 

### Game Cornm'n, 148 Mont. 151,418 P.2d 300; State ex rel. Lease v. Wilkinson, 59 Mont. 327, 196 P. 878; State ex rel. Nagle v. Sullivan, 98 Mont. 425, 40 P.2d 995. However 

### we find the cases so cited aredistinguishable from the case 

### atbar. In those cases, none of the illegally dismissed employees actually received reinstatement and 

### restitution of benefits prior to institution of formal charges through proper channels. In the instant case, following the procedurally improper dismissal, appellant secured reinstatement and apparently enjoyed vacation with pay statuspending the outcome of 

### a nearing

on formal charges. Such reinstatement and restitutionof benefits is the controlling factor indisposing of appellant's ex post facto argument because where such administrative action has occurred the effects of any prior illegal procedure stand corrected and can have no influence on futureprocedural actions. Thus, the initial illegaldischarge becomes irrelevant tothe issue athand. Turning tothe proceedings instituted against appellant after reinstatement, thisCourt has recognized that a decision favorable toa discharged public employee because of procedural deficiencies inhis dismissal 

### willnot insulate that employee, after reinstatement, from further public employer action if appropriate statutoryprocedures are employed. This Court inState

ex 

### rel. Ford v. Fish & Game Comm'n, 148 Mont. 151, 165, 418 P.2d 300, said: 

### " 

## * * * Weexpress no opinion astowhether cause exists or does not exist for relator's removal and discharge. Our decision herein is strictly limited tothe illegalmanner inwhich relator's discharge

### was accomplished. Nor 

### is thisdecision tobe interpreted or construed as any limitation whatever on any future action thatmay be taken eitherby the Director or the Commission inthe premises concerning relator and his employment statuswith the Department so long as such future action is taken in themanner provided by law." Our final inquiry thus focuses on the question of whether appropriate statutoryprocedures 

### were followed in the finaldismissalof appellant. Appellant makes several allegations of due process violations during the proceedings which culminated inhis final discharge. These allegations

### willbe discussed inturn. Appellant alleges the suspension immediately following reinstatement 

### was contra totheMetropolitan Police Law inthat the chief of police did not secure the approval of themayor. Section 11-1806(10), R.C.M. 1947, 

### states: "The mayor or chief of police, subject to the approval of themayor, shall have the power in allcases, to suspend 

### a policeman, or any officer, for a period of not exceeding ten (10) days in any one 

### (1)month, such suspension tobe with or without pay asthe order of suspension may determine." Nowhere in

### its brief or oral argument did the respondent specificallyanswer this allegation. However, after examining the district court file, 

### it appears appellant was not on suspension, but rather paid vacation status. True the 

### letter of April 9, 1974 from the chief of police toappellant concerning reinstatement mentioned the word "suspension" and the authority to so suspend under 

### section 11-1806. But 

### a later 

### letter from the chief of police to appellant inreference tonew charges, dated July 15, 1974, stated appellant was 

### " 

# * * * currently on vacation status

## * * *."and would not be suspended atthat 

### time. Thus it would 

### seem that any violation of statutory directiveswas rendered harmless 

### by subsequent placement on vacation statuswith fullpay until the time of final discharge. Appellant next contends the police commission should have been equitably estopped from preferring charges inreference to false statements on appellant's employment application three years after such application 

### was submitted and two years threemonths after he had completed his probationary period. We find no 

### merit inthis contention. Section 11-1805, 

### R.C.M. 1947, inpertinent part, 

### states: "Any applicant who shallmake any false statementto the police commission as to his age or other qualificationsrequired, athis examination before the police commission, shall be subject to suspension ordismissal from the police force, after trial.

### " No mention ismade in this section of any statute of limitations

as to actions stemming from false information inthe employment application. Finally, appellant contends that inthe interest of fairness, rules of criminal procedure should guide the filing of charges and under such rules the police commission should be precluded from filing additional charges concerning the employment application, once proceedings against appellant had been initiated. Helpful toour consideration 

### isBailey v. Examining and Trial Board, 45 Mont. 197, 199, 122 P. 572. Though ~ailey standsmerely for the rule that the sufficiency of charges asto details, designation of offenses, etc. inpolice commission proceedings arenot tobe tested by the rigid rules of criminal procedure, 

### we believe the rationale offered inthat decision 

### is of persuasive value in the instant case. In Bailey thisCourt said: 

### " 

## * * * The only requirement of the statute is that the charge shall be reduced towriting

## * * * and if in substance it makes out any one of the triable offensesmentioned, 

### it is sufficient. And even indetermining thisquestion the courts 

### willapply themost liberalrules of construction, and necessarily so. The members of the Police Trial Board arenot required tobe learned in the law of pleading and practice; in factmany board members are laymen entirelyunfamiliar with court procedure. Neither 

### is it demanded nor contemplated that the person preferring charges against a policeman shall specify the details of the charge, give a particular designation to the offense, or employ an attorney todraft the complaint. To insistupon strictness inconstruing a written charge of this character would defeat the purpose of the 

### lawand render members of the police force immune from discipline. 

## * * 

## *." Recognizing the limited, noncriminal nature of such police commission hearings and the understandable lack of legal expertise on the part of themembers of the police commission, this Courtdoes not impose rules of criminal procedure toa hearing of this type. The judgment of the districtcourt is affirmed.

n\We concur:

Justices

sitting inplace of Mr. Chief Justice 

### James T. Harrison.