No. 88-69 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

BRIAN S. OLSON, 

Petitioner and Appellant, 

-vsSTATE OF MONTANA, DEPARTMENT OF REVENUE, 

and JOHN NICOLAY, Supervisor, 

Respondents. 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of Beaverhead, 

The Honorable Thomas Olson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Kozakiewicz Law Office; Vincent J. Kozakiewicz argued, 

Dillon, Montana 

For Respondent: 

Larry Schuster argued, Dept. of Revenue, Helena, 

Montana 

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Submitted: September 12, 1988 

Decided: December 1, 1988 

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Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Mr. Olson filed a petition in the District Court for the 

Fifth Judicial District, Beaverhead County, alleging that the 

Department of Revenue (DOR) denied him his right to veterans' 

and handicapped persons' preference in employment. After a 

hearing, the court determined that Mr. Olson was not entitled 

to application of the preference because he was not substantially equally qualified with the successful job applicant. 

Mr. Olson appeals. We affirm. 

We restate the issues as 1) whether the DOR erred in 

considering application of the preference only after using 

its objective scoring system to evaluate the applicants, and 

2) whether the DOR and the District Court properly concluded 

that Mr. Olson was not substantially equally qualified with 

the successful applicant. 

Mr. Olson applied for a job as an appraisal clerk with 

the DOR in Dillon, Montana, claiming a preference in hiring 

under the Montana Veterans' and Handicapped Persons' Employment Preference Act (Act). Mr. Olson's right to claim a 

preference has not been questioned. The DOR used an extensive objective scoring system for rating the 56 applicants 

for the position. The scoring system had three subsections: 

the applications, written examinations, and oral interviews. 

The applicants who received the top 17 point scores based on 

their applications were asked to sit for written examinations. Mr. Olson was one of these. Then the persons with 

the top 12 point scores on the written exams were orally 

interviewed. Mr. Olson was orally interviewed. The candidates were given point scores by each of the three interviewers and the three scores were averaged. These scores 

were added to the scores on the applications and the written 

exams. The scoring system awarded up to 97 points for the 
applications, up to 78 points for the written examinations, 

and up to 90 points for the oral interviews. 

The applicant with the highest total score had a total 

of 219 points. The second-place applicant had a total score 

of 213.2 and Mr. Olson's total score was 201.6. After the 

point scores were totaled, the DOR determined that there was 

no tie or close grouping of applicants justifying application 

of the veterans' and handicapped persons' preference on Mr. 

Olson's behalf. When the job was given to the top-scoring 

applicant, Mr. Olson went to District Court, arguing that the 

rating system used by the DOR denied him his right to a 

preference in hiring. He now appeals the District Court's 

determination that he was not entitled to preference in 

hiring. 

I 

Did the DOR err in considering application of the preference only after using its objective scoring system to 

evaluate the applicants? 

Mr. Olson contends that the scoring procedure used by 

the DOR did not give proper effect to the preference to which 

he was entitled. He argues that the preference should have 

been considered prior to use of the scoring system, and that 

consideration of the preference only after applying the 

scoring system renders the preference statute void. 

In 1983, this Court defined the nature of Montana's 

veterans' and handicapped persons' preference under the 

statutes then in effect. Crabtree v. Montana State Library 

(1983), 204 Mont. 398, 665 P.2d 231. The Court adopted the 

lower court's opinion that the then-existing statute gave 

"Montana veterans and disabled civilians who meet the minimum 

qualifications for a state, county or municipal job an absolute preference over all other non-veterans or non-disabled 

civilians." Crabtree, 665 P.2d at 234. 
In December of 1983, the Montana Legislature met in 

special session. During that session, it amended the employment preference statutes to their present form. In introducing this legislation, its sponsor set forth a statement of 

intent which included the following: 

A statement of intent is provided to address 

the nature of the employment preference granted in 

the bill. The legislature intends that public 

employers seek and hire the most qualified persons 

for positions in public employment. It is also the 

intent of the legislature that the nature of the 

preference is a relative one in that it is to be 

applied as a "tie-breaker" among two or more applicants for a position who have substantially equal 

qualifications. Substantially equal qualifications 

does not mean a situation in which two or more 

applicants are exactly equally qualified. It means 

a range within which two applicants must be considered to be substantially equal in view of the 

qualifications set for the job. Qualifications 

should include job-related knowledge, skill, and 

abilities. The legislature recognizes that public 

employers use a variety of scored and unscored 

selection procedures such as conventional written 

examinations, training and experience requirements, 

performance tests, structured oral interviews, or 

combinations of these. The legislature does not 

intend to specify the type of selection procedure 

to be used by a public employer. 

The word "tie-breaker" was deleted in committee. However, 

the minutes of the committee meetings of the Judiciary Committees of both the Senate and the House demonstrate considerable dissatisfaction with the absolute preference accorded 

under Crabtree. 

Title 39, Chapter 30, MCA, the resulting Act, provides 

at S 39-30-201, MCA, that a job applicant who is a veteran or 

handicapped person and claims the right to a preference is 

entitled to be hired "over any other applicant with substantially equal qualifications who is not a preference eligible 
applicant." The term "substantially equal qualifications" is 

defined at S 39-30-103 (9), MCA: 

"Substantially equal qualifications" means the 

qualifications of two or more persons among whom 

the public employer cannot make a reasonable determination that the qualifications held by one person 

are significantly better suited for the position 

than the qualifications held by the other persons. 

We must presume that in amending the preference laws, the 

Legislature intended to make some change in the existing law. 

Mont. Dept. of Rev. v. Am. Smelting & Refining (1977), 173 

Mont. 316, 325, 567 P.2d 901, 906. We conclude that in 

amending the veterans' preference statutes, the Montana 

Legislature meant to abolish the absolute employment preference for veterans and handicapped persons who possess the 

minimum qualifications for a job. Being minimally qualified 

for the job is no longer enough. 

Additionally, the Legislature did not limit the hiring 

authority to any particular method of assessing job applicants' relative qualifications. The assertion that the DOR 

never took a look at the relative qualifications of Mr. Olson 

and the successful applicant ignores the comparison by use of 

the point system. We conclude that the DOR gave proper 

effect to the statutes in first determining applicants' point 

scores, then considering whether the preference should be 

applied. 

I1 

Did the DOR and the District Court properly conclude 

that Mr. Olson was not substantially equally qualified with 

the successful applicant? 

Section 39-30-207 (3) (a), MCA, sets forth the burden of 

proof in an action such as this one: 

Upon filing of the petition, the court shall order 

the public employer to appear in court . . . and 
show cause why the applicant was not hired for the 

position. At the hearing, the public employer has 

the burden of proving by a preponderance of the 

evidence that the employer made a reasonable determination [of substantial equal qualifications] . . 

The specific objections made hy Mr. Olson to the point 

score he was awarded relate to the application portion of the 

scoring procedure. The applications of Mr. Olson and the 

successful applicant were in evidence before the District 

Court. The job they were applying for was a clerical position in the county appraisal office. The successful app1i.- 

cant had. worked for 10 years as an operations assistant for 

an agricultural lender and for 4 years as a bank teller. As 

the District Court found, "clerical work is not the central 

theme of [Mr. Olson's] work experience. " Mr. Olson's application shows that he has worked as a surveyor aide for the 

U.S. Forest Service and a private engineering firm, a crew 

leader for a scout section of the National Guard, a maintenance worker, a ranch hand, a boiler operator, a logger, a 

board edger, and a warehouseman. 

In view of Mr. Olson's argument that the DOR acted 

unreasonably in scoring his application for employment, we 

quote from parts of the trial transcript. Mr. Nye, who was 

responsible for scoring the applications testified as 

follows: 

Q. Now, Mr. Nye, what I would like to do is 

to take you through your analysis of Mr. Olson's 

employment application, if I may. . . . 

Would you explain for the Court how you determined that Mr. Olson should have sixteen points for 

education? 

A. Because he had a high school diploma, 

which gave him eight points; and he had four years 
of college, which gave him another eight, for a 

maximum of sixteen. 

Q. The third column is entitled "clerical 

office experience". Would you explain to the Court 

why Mr. Olson was given six points for that? 

A. He was given six points based on two 

points per year for his time in the military in 

which his application indicated he had clerical 

experience all three years. 

Q. Mr. Olson was awarded four points for 

deeds and property description experience. Why did 

he get four points for that? 

A. He had some surveying experience and we -- 

from his application it indicated that he had about 

a year's experience on that in which he would be 

working with deeds and legal property descriptions. 

Q. Mr. Olson received twelve points for 

typing experience; am I reading that correctly? 

A. No. 

Q. For mapping experience. Why did he receive that? 

A. In his years as a surveyor he would receive the points for one year at least there. And 

he'd had some mapping experiences indicated in 

locating mining claims and various private properties, so I gave him extra points for that. 

Q. Mr. Olson was afforded four points for 

typing experience. Would you explain that? 

A. Four is all I could get out of his application, which would be four points per year would 

be about one year was all I could find on his 

application that indicated he was doing actual 

typing. 

Q. And with respect to calculator experience, 

have you given him any credit for that? 
A. Yes, I've given him four points for calculator experience based on the fact that he was 

probably using a calculator during his surveying. 

Q. And then there's a column entitled "other 

office machine experience"; do you see that? 

A. Yes, sir. 

Q. And would you tell the Court what that 

pertains to, please? 

A. Either they would have experience along 

some sort of computer or other office machine. 

None was indicated on his application; and therefore, I could give him no points. 

Q. Now, did you screen the initial employment 

application form for Ms. Cindy Doering? 

A. Yes, I did. 

Q. And I'd like t.o have you go through your 

examination and scoring of her employment application form in the same fashion that we did for Mr. 

Olson. . . . Why was Ms. Doering given ten points 

for education? 

A. She had her high school diploma plus one 

year at Western Montana College. 

Q. And she received six points for clerical 

office experience. Why did she receive that? 

A. She was employed in a clerk and secretary 

position both with the -- well, with the Federal 

Land Bank, which was the maximum I could give her. 

Q. And she has twelve points for deeds and 

property experience. How did you achieve that 

rating? 

A. She had eight to ten years of experience 

with the Land Bank in which she was doing deeds and 

property descriptions in there as well. And I was 

able to give her the maximum, which was twelve 

points. 
Q. And why was she afforded twelve points for 

mapping experience? 

A. It would be the same program. She'd had 

the experience over there at the Land Bank. 

Q. Why did she receive eight points for 

typing experience? 

A. Because in her job at the Land Bank she 

was also typing up all these descriptions and doing 

the secretarial work there. And she had more than 

the two years experience. 

Q. And would you tell the Court why she was 

given eight points for calculator experience? 

A. Because in her figuring of acreages and so 

forth in all the years that she was at the TAand 

Rank she had a maximum there. 

&. And finally, why was she afforded six 

points for other office machine experience? 

A. There was two other machines that she 

indicated in her application that she was using at 

the Land Bank office for which she was allowed the 

six points. 

Based on our review of the record, we hold the District Court 

did not abuse its discretion in concluding that the DORIS 

scoring procedure was reasonable. 

Mr. Olson argues that this position was advertised as 

entry-level with possible on-the-job-training and that he was 

substantially equally qualified for a position of that description with the successful applicant. But the determination of substantially equal qualifications is not limited to 

the qualifications set forth in the position advertisement: 

Hamner contends, however, that the criteria for 

judging applicants for the position at issue is 

contained solely in the advertisement . . . 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 v. Butte-Silver Bow County (Mont. 1988), 760 P.2d 76, 

79-80, 45 St. Rep. 1481, 1485. We conclude that where Mr. 

Olson's total point score was 201.6 and the successful applicant's was 219 and where the record supports that difference 

in scores, the District Court did not err in ruling that the 

DOR met its burden of proving that Mr. Olson and the successful applicant were not substantially equally qualified. This 

is not to say, as Mr. Olson claims, that in order to be 

eligible for the preference, he would have to have been the 

top-scoring applicant. We hold that the conclusion that Mr. 

Olson was not substantially equally qualified with the successful applicant does not represent an abuse of discretion. 

Affirmed. 

We Concur: -4 _k Chief Justice 
Mr. Justice John C. Sheehy, dissenting: 

The majority has given the statehouse gangs a blueprint 

on how to avoid the veterans1 preference in job hiring. 

Simply parse the experience of the favored non-veteran into 

as many segments as needed, and award each segment the 

maximum points. 

The successful applicant here was employed for ten years 

as an "operations assistant" at the local office of the 

Federal Land Bank. She did clerical and stenographic work. 

For that experience her job was segmented as follows: 

Clerical office experience 6 points 

Deeds and property descriptions 12 points 

Mapping 12 points 

Typing 8 points 

Calculators 8 points 

Other machines 6 points 

Total 52 points 

Olson had done work as a surveyor, had successfully 

completed a real estate training course, held a current real 

estate license for the state of Idaho, and had computer 

experience. Witness his comparable scoring: 

Deeds and property descriptions 4 points 

Calculators 4 points 

Other machines 0 points 

The "other machines" for which the successful applicant 

got maximum points were a bank proof machine, a bank posting 

machine, and a copy machine. The scorers did not include the 

water cooler, but probably would have if needed. None of 

these machines is used by an appraisal clerk except the copy 

machine, the technical difficulty of which can be mastered by 

a first-grader. The scorers ignored Olson's computer 

experience. 
Having rigged the scores for the successful applicant, 

the scorers then ignored the law, which declares that if the 

applicants are substantially equally qualified, the veterans' 

preference is decisive. Olson could not be hired under the 

scorers' view unless he had the highest score, but then he 

would not have to call on his preference rights. Thus is the 

veterans' preference emasculated. 

Olson is not only a Viet Nam veteran, but is also a 

certified handicapped person. He was entitled to the job on 

both counts. We should make sure he A ot it. 

I concur in the foregoing dissent of Justice Sheehy.