No. 85-570 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

GALE WOOD, 

Plaintiff and Appellant, 

ROBERT BUTOROVICH, SHERIFF OF BUTTESILVER ROW COUNTY, et al., 

Defendants and Respondents. 

APPEAL FROM: District Court of the Second Judicial District, 

In and for the County of Silver Bow, 

The Honorable Mark Sullivan, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Leonard J. Haxby, Butte, Montana 

For Respondent: 

Robert M. McCa.rthy, County Attorney, Butte, Montana 

Submitted on Briefs: Jan. 30, 1986 

Decided: April 3, 1986 

Clerk 
Mr. Justice John C. Harrison, delivered. the Opinion of the 

Court. 

This is an appeal from the decision of the District 

Court of the Second Judicial District of the State of Montana, in and for the County of Silver Bow, involving the 

firing of a policeman. Following a hearing before the 

Butte-Silver Bow Law Enforcement Commission, appellant filed 

a petition in District Court seeking a review of the commission's order. The District Court, after consideration, 

affirmed the order of the Law Enforcement Commission. We 

affirm. 

The sole issue on appeal is whether the Butte-Silver 

Bow Law Enforcement Commission was properly empaneled when, 

following a hearing pursuant to § 7-32-4155, MCA, it decided 

to discharge the appellant police officer. 

Appellant was a police officer of the Butte-Silver Bow 

Law Enforcement Department. At the time he was dismissed, he 

had served just short of twelve yezrs as a police officer. 

On August 11, 1983, appellant was suspended from duty. 

Shortly thereafter a complaint was filed against him by the 

Sheriff of Butte-Silver Bow asking for his dismissal and 

charging him with several offenses, basically of conduct 

unbecoming an officer in violation of § 7-32-4155 (1) (b) , MCA, 

and of Section 1lA of Butte-Silver Bow Ordinance No. 14. 

A hearing was held before the Butte-Silver Bow Law 

Enforcement Commission on September 27, 1983. Members sitting on the commission were R. C. Lemm, chairman; John Lynch, 

secretary; Rev. Robert A. Craver, member; and F. L. 

Stradinger, member. On September 28, 1983, all four members 

of the Butte-Silver Bow Law Enforcement Commission entered 
findings of fact and conclusions of law, terminating appellant and recommending that the Chief Executive of 

Butte-Silver Bow carry the termination into effect. On that 

same date, the Chief Executive permanently terminated appellant in his employment as a police officer. 

The Butte-Silver Bow Law Enforcement Department is controlled by the Metropolitan Police Act. That Act provides 

for a three-member commission with each member to hold office 

for three years, one member to be appointed annually. The 

Butte-Silver Row Ordinance creating its Law Enforcement 

Cormnission is Ordinance No. 12. This Ordinance mandates a 

Law Enforcement Commission of five members, holding office 

for three years each, with at least one member elected 

annually at their first meeting in January of each year. 

Appellant notes that at the time of his hearing, there 

were only four commissioners because one of the commissioners 

had moved to Helena and could not act as he was no longer a 

resident of Butte-Silver Bow. He then argues that, of the 

other four members, R. C. Lemm, who was the acting chairman, 

and Rev. Robert A. Craver, were not duly appointed as commissioners at the time of his hearing. Appellant argues therefore that of the four members trying the case, two of the 

subject members who tried the case and voted for his dismissal were not properly appointed members of the Butte-Silver 

Row Law Enforcement Commission and they acted over the 

objection of appellant at the hearing. 

Respondent argues that Butte-Silver Bow is a local 

government with self-governing powers. Pursuant to the 

authority given to self-governing entities, Butte-Silver Bow 

enacted legislation creating a Law Enforcement Commission 

with five members, each serving three years. These terms 
were staggered so that each year one or more of the commissioners' terms would be concluded. It is important to note 

here that appellant on this appeal does not contest the 

authority of Butte-Silver Bow to enact its five-member commission, nor the commission's authority to act. Further, 

appellant has not demonstrated in any manner how his substantial rights were prejudiced by a five-member commission 

rather than a three-member commission as provided for in 

Metropolitan Police Act. 

The evidence at the hearing before the commission 

consisted of testimony by supervising officers that they 

found the appellant in an intoxicated condition at a private 

residence, behind which he had concealed his patrol vehicle. 

In addition, appellant had failed to report his location to 

the dispatch center as required by police regulations. 

Following discovery of the appellant, he was allowed to go 

home because of his condition, but he returned to duty on his 

next regularly assigned shift. Thereafter a complaint was 

filed against him which found him guilty of neglect of duty, 

misconduct in office, and of conduct unbecoming an officer. 

The sole argument of appellant centers around the 

validity of the appointment of two members of the 

Butte-Silver Bow Law Enforcement Commission, R. C. Lemm and 

Rev. Robert Craver. As noted previously, at the time of the 

hearing only four members of the five-member commission 

participated because one member had moved outside the 

Butte-Silver Bow area. Of the other four members, R. C. Lemm 

was appointed to the commission on May 17, 1977. He was 

properly appointed and confirmed at that time. At the time 

of the hearing before the District Court, neither party could 

find the documentation to show that R. C. Lemm had been 
reappointed to his position, which should have taken place in 

1979 and again in 1982. It was agreed, however, that R. C. 

Lemm had acted as a commissioner since he was appointed in 

1977 in all matters that the commission dealt with during 

that period. His present term was due to expire in January 

1986. 

Rev. Robert A. Craver was appointed commissioner in 

1982 to replace an individual whose term was to expire in 

1985. Appellant here raises the issue of the validity of 

this appointment because the minutes which reflect the confirmation of the appointment incorrectly refer to Rev. Craver 

as "Reverend Fargher." Rev. Craver, however, was in fact 

properly appointed and empaneled at the time of appellant's 

hearing. 

Appellant argues that, in the absence of any consistent 

records showing appropriate appointment of the two commissioners during this period of time, they could not act at the 

hearing in this case because they were not properly appointed. He notes that since there is no record of their appropriate and proper appointment, the commission was improperly 

appointed and empaneled at the time of his hearing and. any 

actions on behalf of the commission were a nullity and were 

void. In support of this argument he cites several old 

Montana cases: State ex rel. Rusch v. Bd. of County 

Commissioners of Yellowstone County (1948), 121 Mont. 162, 

191 P.2d 670; State ex rel. Nagle v. Stafford (1934), 97 

Mont. 275, 34 P.2d 372; and Marcellus v. Wright 121.) , 61 

Mont. 274, 202 P. 381. 

In Rusch, this Court's decision centered upon a now 

defunct constitutional prohibition against extending the term 

of a public officer. The Court's decision was based on an 
interpretation of this provision, which is not now part of 

the 1972 Constitution. Stafford also involved interpretation 

of a constitutional mandate concerning the appointment of the 

office of the Commissioner of Agriculture. In that case the 

Court held that the present commissioner could "hold over" 

until his successor was appointed. Finally, in Marcellus, 

the Court considered a specific constitutional provision 

regarding the term of office of a district judge who had left 

office and then later filed an opinion. Each of these 

decisions relied upon by appellant concerned specific 

constitutional provisions that are no longer in the 

Constitution of the State of Montana since our adoption of 

the 1972 Constitution. 

Respondents' position concerning R. C. Lemm is that he 

was properly reappointed and acting in his official capacity 

at the time of the hearing. It was uncontested that Lemm was 

still acting in the position to which he had been properly 

appointed in 1977 and that he had acted in this capacity 

through the entire period of time since his original appointment. In addition, respondents note that appellant made no 

objection to R. C. Lemm sitting in appellant's case at the 

time of the commission hearing. Nor was any showing made 

that appellant's substantial rights had been prejudiced (as 

required by $ 2-4-704(2), MCA) by having R. C. Lemm sitting 

as a de facto commissioner in this case. The trial judge so 

found . 

The Kansas Supreme Court addressed a similar situation 

concerning de facto public officers where technical objections as to the legal status of an officer were raised and 

the officer was found to be a de facto officer of the county 

or city. In State v. Miller (Kan. 1977), 565 P.2d 228, a 
coroner had been apparently appointed to the office in 1967 

and had taken the oath of office at that time. His last 

appointment was in January 1969 for a term of four years. 

There, the court held. he had a color of right or title to the 

office at the time he made an autopsy by reason of his original appointment although his term had expired. The Court 

found that he had acted as a coroner since 1967; that he had 

qualifications for the office of coroner; and that he was in 

possession of the office and exercising the duties thereof. 

In addition, the general public and public authorities believed him to be the coroner and relied upon him as such 

through his term even though his term had expired. The 

Kansas court found that these are the classic characteristics 

of a de facto officer, noting: 

A person who assumes and performs the 

duties of a public office under color of 

authority and is recognized a.nd accepted 

as a rightful holder of the office by all 

who deal with him is a de facto officer, 

even though there may be defects in the 

manner of his appointment, or he was not 

eligible for the office, or failed to 

conform to some condition precedent to 

assuming the office. 

Miller, 565 P.2d at 235. See Olathe Hospital Foundation, 

Inc. v. Extendicare, Inc. (Kan. 1975), 539 P.2d 1. Also see 

Will v. City of Herington (Kan. 1968), 443 P.2d 667; State v. 

Roberts (Kan. 19301, 288 P. 761. 

We agree with the Kansas court that a de facto officer's acts are valid insofar as they involve the interest of 

the public and a third person. 

Here, R. C. Lemm, at the least, was acting as a de 

facto commissioner at the time of the hearing and his actions 

were valid. We agree with the District Court in its Conclusion of Law No. 6 which held that: 
Even assuming that it was improper for 

Robert Lemm to sit on the Plaintiff's 

hearing, that would not prejudice the 

substantial rights of the Plaintiff 

because the other three (3) members who 

sat on the hearing were properly 

appointed and impaneled, and as a 

majority of the Commission the three (3) 

of them voted to terminate the 

Plaintiff's employment. 

As to the objection of appellant to the appointment of 

Rev. Robert A. Craver, we find no merit. As previously 

pointed out, the minutes of the meeting of the Butte-Silver 

Bow Law Enforcement Commission incorrectly reflect that the 

"Reverend Fargher" was appointed to fill the vacancy left by 

the resignation of Ron Ashabrenner. Rev. Fargher had, in 

fact, previously served on the Law Enforcement Commission, 

and common sense dictates that is why his name was inadvertently substituted for that of Rev. Robert A. Craver. There 

was submitted at the hearing a letter from the Chief Executive of Butte-Silver Bow to the commissioners requesting the 

appointment of Rev. Robert A. Craver to fill the vacancy 

vacated by Ron Ashabrenner, whose term began February 1, 

1982, and expired in 1985. This error was pointed out to the 

District Court. The court found that Rev. Craver was 

properly appointed and we agree. 

The decision of the District Court is affirmed. 

We Concur: