No. 85-570 INTHE SUPREME COURT OF THE STATEOF MONTANA 1986

GALEWOOD, PlaintiffandAppellant,

ROBERT BUTOROVICH, SHERIFF OF BUTTESILVERROW COUNTY,et al., Defendantsand Respondents.

APPEAL FROM: District Court of the Second Judicial District, In and for theCounty of SilverBow, TheHonorableMark Sullivan,Judgepresiding.

COUNSELOF RECORD:

ForAppellant: Leonard J. Haxby,Butte,Montana

For Respondent: RobertM. McCa.rthy,CountyAttorney, Butte,Montana

Submitted onBriefs: Jan. 30, 1986 Decided: April 3, 1986

ClerkMr. 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 DistrictCourt 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 appellantpolice officer. Appellantwas a police officer of the Butte-Silver Bow LawEnforcementDepartment. At the timehewasdismissed,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 inviolation 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 commissionwere 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 enteredfindings 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 inhis employmentas apolice officer. The Butte-Silver Bow LawEnforcement Department is controlled by the Metropolitan Police Act. That Act provides for a three-member commissionwith 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 commissionersbecause 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 fourmembers, R. C. Lemm,whowas the acting chairman, and Rev. RobertA. Craver,were not duly appointed as commissioners at the time ofhis hearing. Appellant argues therefore that of the four members trying the case, two of the subject memberswho 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 objectionof appellant at thehearing. 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 termswere 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 anymanner howhis substantial rights were prejudiced by a five-member commission rather than a three-member commission as provided for in Metropolitan PoliceAct. 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 homebecause ofhis condition,buthe returned toduty onhis 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 fourmembers, 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 thehearingbefore theDistrictCourt,neither party could find the documentation to show that R. C. Lemm had beenreappointed to hisposition,which shouldhave 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 confirmationof the appointment incorrectly refer toRev. 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 theywere not properly appointed. He notes that since there is no record of their appropriate and proper appointment, the commissionwas 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 aninterpretation of this provision, which is not now part of the 1972Constitution. Stafford also involved interpretation of a constitutional mandate concerning the appointmentof the office of the CommissionerofAgriculture. 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 termofoffice of adistrict judgewho 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 1972Constitution. Respondents' position concerning R. C. Lemm is that he

was properly reappointed and acting in his official capacity at the time of the hearing. Itwas uncontested that Lemmwas 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 sincehis 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 officerwas found to be a de facto officer of the county

or city. In State v. Miller (Kan. 1977), 565 P.2d 228, acoroner 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 courtheld.he had a colorof right or title to the office at the time hemade an autopsyby reason ofhis 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 thathewas 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 theseare the classic characteristics of a de facto officer,noting: A person who assumes and performs the duties of a public office under colorof authority and is recognized a.ndaccepted as a rightfulholder of the officeby all who deal with him is a de facto officer, even though there may be defects in the manner of his appointment,or hewas 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 Willv. City ofHerington (Kan. 1968), 443 P.2d 667;Statev. Roberts (Kan. 19301, 288 P. 761. We agree with the Kansas court that a de facto officer's acts are valid insofaras they involve the interestof the public and a thirdperson. Here, R. C. Lemm, at the least, was acting as a de factocommissionerat the time of the hearing and his actions

were valid. We agree with the District Court in its Conclusionof LawNo. 6which 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 appointmentof 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 thevacancy leftby 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. Thiserrorwaspointed out to the District Court. The court found that Rev. Craver was properly appointed andwe agree. The decisionof the District Court isaffirmed.

We Concur: