Yo. 13166 IN rHE 

### 3UPKdME I:OUK'.C ilF THE STkrE OF PlONTANA 1976

riaintiff and Appellant,

JOHN

### M. THORSON, Mayor, of the City of Whitefish, Xontana, Defendant and Respondent.

:jppeal from; ')istrict Court of theEleventh Judicial District, Honorable Robert 

### Keller, Judge presiding. Counsel of Record

### : ForAppellant: Astleand Astle, Kalispell, Montana VilliamAstleargued, Kalispell, Montana For Respondent: Leo Fisher argued, Whitefish, Montana

Submitted: March 

### 3, 1976

~ec ided:

## MAY

## 7 !g)gMr. JusticeJohn Conway Harrison delivered the Opinion of the Court. This isan appeal from an order issued in the eleventh judicial district, Flathead County, dismissing petitioner's request forwritof mandamus made pursuant to section 93-9102, R.C.M. 1947. Atthe time the petitionwas filed, appellant Terry Schend was a probationary full-time police officer for the cityof Whitefish, and respondent John M. Thorson was the mayor. The matter was heard indistrictcourt on April 17, 1975, and judgment for the respondent was entered several months later. In lieu of a transcript, the record on appeal has been transmitted tothe Court as an "Agreed Statement of Evidence" inaccordancewith Rule 9(c),Montana Rules of Appellate Procedure. From thisdocument, it appears that the appellant was appointed tothe position of police officer for the cityof Whitefish on October 8, 1974. The cityof Whitefish is a third class cityinthe stateof Montana within themeaning of section 11-1824 etseq., R.C.M. 1947, the "Metropolitan Police Law." As such, and pursuant tothe authority contained therein, the community of Whitefish has placed itself within thepurview of the Metropolitan Police Law through the adoption of Chapter 2.44.010, Whitefish Municipal Code, which provides as follows: "From and after thepassage and approval of the ordinance codified herein, and from and after the effective date of the ordinance ascodified herein, and the police department of the city, shallbe under and within the provisions of the Metropolitan Police Law of the state. The police department of the city shall be organized, managed, conducted and controlled as inthe state lawand this chapter provided." Chapter 2.44.040 of theWhitefish Municipal Code, provides that allapplicants for the position of police officer must be appointed by themayor and confirmed by the citycouncil, but only after the applicant has successfullypassed an examination, and acertificateof qualification has been filed with themayor. The applicant is then eligible to serve a "probationary period"

asa police officer which may not exceed sixmonths. Chapter 2.44.040 alsoprovides themeans by which an appointmentmay be revoked by themayor: 

### " 

## * * * Atany timebefore the end of such probationary period themayor may revoke such appointment. After the end of such probationary period, and within thirtydays thereafter, the appointment of such applicant must be submitted tothe citycouncil, and if such appointment 

### isconfirmed by the citycouncil, such applicantbecomes a member of the police forceof the city, and shall hold suchposition during good behavior, unless suspended ordischarged asprovided by law." The above-cited section is almost identical to section 11-1803, R.C.M. 1947, except that the state law was amended in 1973 to extend themaximum possible probationary term from sixmonths toone year. The parties are incomplete agreement thatunder the statuteand code section cited above, and under the rule followed by a majority of jurisdictions, that the legislature may validly authorize the removal of a probationary public employee or officer ina summary fashion, without necessity of

cause orhearing. Stateex rel. Nagle v. Sullivan, 98 Mont. 425, 40 P.2d 995. On February 28, 1975, almost fivemonths sincehis appointment, Schend received a letter from respondent Thorson placing him on notice that his appointment tothepolice force would be revoked as of March 15, 1975. The letter alsocontained certain statements regarding the appellant's performance asa police officer: "Due toyour performance of duty, attitude towards and lack of desire tocooperate with those in charge

## * * * your serviceswillno longer be required or desired inyour capacity as a member of theWhitefish Police Department." The appellant, pursuant to section 11-1806, R.C.M. 1947, requested a hearing before theWhitefish Police Commission. This

### requestwas denied. From this summary of stipulated facts emerges but one single issue of constitutional law. Does the mayor of a city, which is subject to the provisions of a Metropolitan Police Law, and which grants the authority to discharge a police officer summarily during his period of probation, violate the due process clause of the Fourteenth Amendment to the United States Constitutionwhen the notice of termination is accompanied by a statement of reasons for letting him go and no opportunity to dispute this statement is provided? We answer this question negatively. A 

### similar question has been treated by the United States Supreme Court in Board of Regents v. Roth, 408U.S. 564, 570, 573, 577, 92 

### S.Ct. 2701, 33 

### L ed 548. The courtheld in that

case that the claimed right 

### of a state teacher to a hearing prior to the nonrenewal of his employment agreementdid not comewithin the purview of the concept of dueprocesswhen that teacher has not achieved the status of tenure. In rendering its decision, the United States Supreme Court devoted a considerableportion of its opinion to discussing what frame of reference isproperly employed in determining issues of procedural due process. In Roth, the federal district court committed error when it reduced the issue to a mere balancing or weighing of the interests involved --that is the employer's interest in denying reemployment summarily, as opposed to the employee's interest in reemployment. The court was careful to point out thatwhile the balancing process is essential to the determination of what form a required hearing must take in a particular situation, the question of whether or not due process requirements are applicable at all demands a different type of analysis: 

### " 

## * * * But, to determine whether dueprocess requirements apply in the first place, we must looknot to the 'weight'but to the nature of the interest at stake. 

## * * 

## * We must look to see if the interest is within the Fourteenth Amendment's protection of liberty and property." See also Boddie v. Connecticut, 401U.S. 371, 91 S.Ct. 780, 28 L.Ed, 113. This essential distinction in analysis is one which cannot be ignored by this Court in light of the question presented. The dueprocess right to hearing was intended to provide

an opportunity for a person to vindicate only those claims to which they are legitimately entitled. In Roth, the United States Supreme Court could not sustain the teacher's Fourteenth Amendment claim, because he failed to show how the decision not to rehire, deprived him of an interest in "liberty" despite his lack of tenure or formal contract. Perry v. Sindermann, 408 U.S. 593, 

### 92 S.Ct. 2694, 

### 33 L.Ed. 570. In doing so,however, the court, in Roth, left no doubt as to the possibility that such a showing could be made in a future case: "The State, in declining to rehire the respondent, did notmake any charge against him thatmight seriouslydamage his standing and associations in his community. 

## * * 

## * Had it done so, this would be a different case. For '[wlherea person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.'

[Citingcases.] In such a case, due process would accord an opportunity to refute the charge before University officials. 

## * * *" (Emphasisadded.) We take judicial notice that there is no substantial difference between the status of a nontenured teacher and that of a probationary police officer. Due process adjudication involves typically two analytically distinct issues--whether the right of due process is applicable in the first instance;and if so,what specific procedures are "due" in each case. The right itself only becomes applicable where ones "property"or "liberty" interests within the meaning of the Fifth or FourteenthAmendment are at stake. Whether an

### individual's "entitlement to employment" is sufficient to give rise to a Constitution's claim becames the threshhold question in these types of cases. In Roth, the courtheld: 

### " 

## * * * To have a property interest in a benefit, a person clearlymust havemore than an abstract need or desire for it. He must have more than a unilateral expectation of it. Hemust, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarilyundermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims. "Property interests,of course,are not created by the Constitution. Rather, they are created and their dimensionsare defined by existing rules or understandings that stem from an independent source such as state law--rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. 

## * * *" Here the nature of the interest is the right to a job

as a policeman. Can this be said to be encompassedwithin the terms "liberty"or "property"? We think not. Thevery nature of the concept of property is not and was not intended to be static. Board of Regents v. Roth, supra,

(proceduraldue process as extended beyond the actual ownership of real estate, chattels or money); Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L ed 2d9OI(driver'slicense); Goldberg

v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L ed 2d 287 (welfare benefits); Connell v. Higginbotham, 403 U.S. 207, 91 S.Ct. 1772, 29 L 

### ed 2d 418, (publicemp1oyment);and Stanford v. Gas Service Company, 346 F.Supp. 717, (Kan. 1972) (utilityservices)

# . HOW

### ever, the guide furnished by Roth clearly indicates that it is only a vested right which cannotbe taken away except by due 16 Am 

### Jur 2d, 8365,p. 694. process of law,/ A 

### probationary police officer under Montana law enjoys no property or vested right. His status is that of a temporary employee and until confirmationhe has no possibleproperty interest. Mr. JusticeHolmes wrote inMcAuliffe v. Mayor, Etc. of City of New Bedford, 155Mass. 216, 29 N.E. 517: 

### " 

## * * * There are few employments for hire in which the servant does not agree to suspend his constitutional rights of free speech aswell as of idleness by the implied termsof his contract. The servant cannot complain, ashe takes the employment on the termswhich areoffered him. On the same principle the citymay impose any reasonable condition upon holding offices within itscontrol. 

## * * *" See 41U. of Chicago Law Review 297; 26 Stanford Law Review 335. Federal cases have recognized the distinctionbetween probation and nonprobation employees. Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L ed 2d 15; Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L ed 2d 166. Here the appellant's interest ismore one of expectancy of employment than any property interest. Leek v. Theis, 217 Kan. 784, 539 P.2d 304; Wheeler v. School District #20, inCounty of ElPaso, (Colo. 1975), 535 P.2d 206; Tupper v. Fairview Hospital & Training Ctr., M.H.D., (0re.App. 1975), 540 P.2d 401; Turner v. Board of Trustees, Calexico U. Sch. Dist., 121Cal.Rptr. 715, 535 P.2d 1171. Therefore, because the controlling statute gave the Mayor the right toterminate the probationary officerwithout

cause and without a hearing 

### we find no violation of any accused right of such prohibiting policies and no violation of due process. /---'.. \ 

# -'. '-

# i Justice We concur: 

# ./

## .................................... Justices

sitting in place of Mr. Chief Justice James T. Harrison.Mr. Justice Gene B. Daly dissenting: 

### I dissent. The appellant-officer appeals from an adverse ruling of the district court and his principal issueon appeal 

### is that the "~etropolitan Police ~aw" establisheshis right to a hearing,

as a probationary full-time officer, when charges have been made against him. As a secondary consideration appellant argues that these charges reflect on his good name and reputation, etc., in the community and therefore he 

### is entitled to a hearing as

a matter of procedural due process under the Fourteenth Amendment tothe Constitution of the United States. He does not declare that the City published the charges but that in seeking employment thereafter he 

### willbe subject topublication of the alleged misconduct which has never been explained.

It Respondent argues that the mayor gave reasons" not

II

chargecupondismissal. This 

### isnot tobe argued before this Court as thematter comes tous without a record upon an "Agreed Statement 

### of ~vidence". In the agreed statement of evidence in two separate places it isagreed that these are "charges" against the officer. Somehow the majority has completely avoided any treatment of the principal issueraised by appellant. Then it has through some syllogisticmethod, not disclosed, arrived atthe

I I conclusion that from the facts emerges but one single issue of constitutional law." From there themajority gets into ajungle

I I of "vested rights" attached to "liberty" or property" and declares

none exist. The authority being the Roth case, supra, which holds that a "property right" iscreated from statelaws not the Constitution and a hearing is essentialwhen "good name, reputation, honor or integrity isat stakebecause of what thegovernment isdoing tohim+< 9: 9:.

## " --

### Roth does support the principal argument on the statute made by the appellant, who draws his constitutional and property right from the State law. The language of section 11-1806(1), R.C.M. 

### 1947, is clear and unambiguous; the police commission shallhear, try and decide allchargesbrought by anyperson against any member

or officer of the police department. The three factors (1) charges,(2) brought by any person, and (3) against an officer, exist inappellant's case. The districtcourt found in its 

### order of May 29, 1975, that plaintiff's petition "paragraphs I 

### through X 

### area fairrecitation of the facts in this case +i

# * +<.I1 

### Paragraphs 

### I, 111 

### and VIII

### of plaintiff's petition setforth that Officer Schend was a "full-time Police Officer atthe time of his removal" and that themayor alleged "charges" against Officer Schend concerning Officer ~chend' s "performance of duty, attitude towards his superiors and lack of cooperation with his superiors". In addition, the fact that appellantwas a "full-time Police officer", and that the mayor alleged "charges", ispart of the agreed statement of evidencebefore this Court. Clearly, appellant inhis capacity asan officer, was accused of charges by the mayor. On thebasis of this court's decision in Stateex rel. 0'~eiII.v. Mayor of City of Butte, 96 Mont. 403, 30 P.2d 819, wherein the Court held that the mayor has the authority during the probationary period to terminate the officer, without cause
orhearing, the districtcourt here reasoned that untilonce confirmed by the citycouncel asrequired by section 11-1803, R.C.M. 

### 1947, theprobationary appointee isnot a member of the police force. Thus, concluded the district court inthe memorandum to its 

### order of May 29, 1975, the mayor had the authoricy toterminate the employment of Officer Schend ashe had no standing

or protection under the provisions of section 11-1806, R.C.M. 

### 1947, requiring a hearing. Therein the district court erred.

### There isno conflict in the statutes as found by the district court. The mayor can atany time during an officer's probationary period terminate the appointment. However, when the mayor or anyone else selects to filecharges against "any officer ormember of the police department", the police commission not only has "jurisdiction" but a "duty" imposed by statute to hear, tryand decide "all charges". The judgment of thedistrictcourt should be reversed; the officer-appellant reinstated to his position on the police force.