No. 13129 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

M. J. STEER, 

Plaintiff and Appellant, 

CITY OF MISSOULA, MONTANA, 

a municipa 1 Corpora tion, THE 

POLICE COMMISSION OF THE CITY OF 

MISSOULA and the members thereof 

in their official capacity as 

Police Commissioners et al., 

Defendants and Respondents. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable Jack L. 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? 2 6 1976 

Filed : 

M&E 8 6 6916 
Mr. Justice Wesley Castles delivered the Opinion of the Court. 

This appeal is from a judgment of the district court, 

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 appellant guilty of 

misconduct, gave him the choice of being fired outright or submitting his resignation. Appellant submitted his resignation. 

Thereafter appellant filed in district court an application 

for a writ of mandate alleging his dismissal was contrary to the 

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 to his dismissal. Following 

a continuance, the district court on April 8, 1974, issued a 

writ of mandate ordering appellant's reinstatement. 

Whereupon the new Chief of Police Ray Roehl by letter to 

appellant acknowledged his reinstatement, but announced his 

immediate suspension pending results of a hearing before the 

police commission on charges of misconduct, dishonesty, and 

failure to obey 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 to appellant 

containing a statement of two additional charges concerning false 

information in his employment application and stating that since 

appellant was on vacation status no 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 this proceeding 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 is whether 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, 

"the die 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 are distinguishable 

from the case at bar. 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 status pending the outcome of a nearing 

on formal charges. Such reinstatement and restitution of benefits 

is the controlling factor in disposing 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 future procedural actions. Thus, the 

initial illegal discharge becomes irrelevant to the issue at hand. 

Turning to the proceedings instituted against appellant 

after reinstatement, this Court has recognized that a decision 

favorable to a discharged public employee because of procedural 

deficiencies in his dismissal will not insulate that employee, 

after reinstatement, from further public employer action if appropriate statutory procedures are employed. This Court in State 

ex rel. Ford v. Fish & Game Comm'n, 148 Mont. 151, 165, 418 P.2d 

300, said: 

" * * * We express no opinion as to whether 

cause exists or does not exist for relator's 

removal and discharge. Our decision herein is 

strictly limited to the illegal manner in which 

relator's discharge was accomplished. Nor is 

this decision to be interpreted or construed 

as any limitation whatever on any future action 

that may be taken either by the Director or the 

Commission in the premises concerning relator 

and his employment status with the Department so 

long as such future action is taken in the manner 

provided by law." 

Our final inquiry thus focuses on the question of whether 

appropriate statutory procedures were followed in the final dismissal 
of appellant. Appellant makes several allegations of due process 

violations during the proceedings which culminated in his final 

discharge. These allegations will be discussed in turn. 

Appellant alleges the suspension immediately following 

reinstatement was contra to the Metropolitan Police Law in that 

the chief of police did not secure the approval of the mayor. 

Section 11-1806(10), R.C.M. 1947, states: 

"The mayor or chief of police, subject to the 

approval of the mayor, shall have the power in 

all cases, to suspend a policeman, or any officer, 

for a period of not exceeding ten (10) days in 

any one (1) month, such suspension to be with or 

without pay as the order of suspension may determine." 

Nowhere in its brief or oral argument did the respondent specifically answer 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 to appellant 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 in reference to new charges, dated July 15, 1974, stated 

appellant was " * * * currently on vacation status * * *." and 

would not be suspended at that time. Thus it would seem that 

any violation of statutory directives was rendered harmless by 

subsequent placement on vacation status with full pay until the 

time of final discharge. 

Appellant next contends the police commission should have 

been equitably estopped from preferring charges in reference to 

false statements on appellant's employment application three years 

after such application was submitted and two years three months 

after he had completed his probationary period. We find no merit 

in this contention. Section 11-1805, R.C.M. 1947, in pertinent 

part, states: 

"Any applicant who shall make any false statement 
to the police commission as to his age or other 

qualifications required, at his examination before 

the police commission, shall be subject to suspension or dismissal from the police force, after 

trial. " 

No mention is made in this section of any statute of limitations 

as to actions stemming from false information in the employment 

application. 

Finally, appellant contends that in the 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 to our consideration is Bailey v. Examining 

and Trial Board, 45 Mont. 197, 199, 122 P. 572. Though ~ailey 

stands merely for the rule that the sufficiency of charges as to 

details, designation of offenses, etc. in police commission 

proceedings are not to be tested by the rigid rules of criminal 

procedure, we believe the rationale offered in that decision is 

of persuasive value in the instant case. In Bailey this Court 

said : 

" * * * The only requirement of the statute is 

that the charge shall be reduced to writing * * * 

and if in substance it makes out any one of the 

triable offenses mentioned, it is sufficient. 

And even in determining this question the courts 

will apply the most liberal rules of construction, 

and necessarily so. The members of the Police 

Trial Board are not required to be learned in the 

law of pleading and practice; in fact many board 

members are laymen entirely unfamiliar 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 to draft the complaint. To insist upon strictness in construing 

a written charge of this character would defeat 

the purpose of the law and 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 the members of the police commission, this Court 
does not impose rules of criminal procedure to a hearing 

of this type. 

The judgment of the district court is affirmed. 

n\We concur: 

Justices 

sitting in place of Mr. Chief Justice 

James T. Harrison.