No. 85-527 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1.986 

BICHARD WALCH, 

Petitioner and A.ppellant, 

-vsUNIVERSITY OF MONTANA, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missou.la, 

The Honorable John S. Henson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Datsopoulos, MacDonald & Lind; Edward A. Murphy, 

Missoula, Montana 

For Respondent: 

Kary Elizabeth Kurz, U of M Legal Counsel, Missoula, 

Montana 

Jayne pl/litchell, Personnel Division-Dept. of Admin., 

Helena, Montana 

Submitted on Briefs: Jan. 30, 1986 

Decided: April 17, 1986 

Filed: APR 1 : 1986 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the 

Court. 

Richard Fla.lch petitioned the District Court for the 

enforcement of an order of the Board of Personnel Appeals. 

The District Court dismissed his petition with prejudice for 

failure to state a claim for which relief can be granted. 

Walch appeals this dismissal. 

The University of Montana (University) hired Walch in 

May, 1978, as a Maintenance Superintendent V, Grade 16. The 

IJniversity's Physical Plant. was reorganized on Janua-ry 19, 

1982, and Wa.lchls position was split into two separate 

positions. As a result, Walch's classification was changed 

to Maintenance Superintendent IV, Grade 15. However, his 

salary remained exactly the same as it had been under the 

Grade 16 classification. The reason for this was because the 

University had been granted a pay plan exception which allows 

it to use a formula to maintain a differential between the 

craft salaries and the salaries of the management staff in 

the Physical Plant. Walch appealed t.he reclassification to 

the Board of Personnel Appeals (Board) . 

The Hearing Examiner for the Board conducted a hearing 

on November 8, 1982, pursuant to ",-18-1011, MCA and in 

accord.ance with the Administrati~re Procedure Act, Title 2, 

Chapter 4, MCA, to determine whether Walch had been aggrieved 

by the reclassification of his position. The examiner issued 

a Recommended Order on April 18, 1983, which stated that 

Walch's responsibilities and position fell within the Grade 

16 range rather than Grade 15. Thus, he had been aggrieved 

by the reclassification and was entitled to relief under 

§ 2-18-1012, MCA. The Board then ordered: 
Recommended Order 

Commencing with the receipt of this 

Order, the Personnel Division, 

Department of Administration, its 

officers, agents, and representatives 

shall change Richard A. Walch's 

classification from Maintenance 

Superintendent IV, class code 189006, 

grade 15, to Maintenance Services 

Manager I, class code 899022, grade 16. 

They will conti~ue to pay Mr. Walch in 

accordance with the formula designed for 

the management staff in the University 

of Montana's Physical Plant, making 

whatever adjustments are required by 

this change in his classification title 

and pay grade level. 

Notice 

Exceptions to these Findings of Fact, 

Conclusions of Law, and Recommended 

Order ma.y be filed within twenty days 

service thereof. If no exceptions are 

filed within such time, this Recommended 

Order shall become the Final Order of 

the Board . . . 

Neither Walch nor the University filed any exceptions to the 

Recommended! Order which resulted in that order becoming the 

Final Order of the Board. 

The University continued to pay Walch under the formula 

established for the management staff which was the same 

amount it ha.d been paying him before the Final Order. In 

March, 1984, Walch requested an interpretation of the 

Recommended Order from the Board. He contended that the 

Order required the University to pay him in accord.ance with 

the pay matrix for state employees under the Grade 16 level, 

rather than the formula set up for the management staff at 

the University. 

The original hearing examiner conducted an 

investigation and issued an interpretation of the Recommended 

Order. In the report, she asserted that the intent of the 

order was that the University pay Walch in accord.ance with 

the pay plan exception formula, not in accordance with the 
pay matrix for state employees. Walch then filed exceptions 

to the Investigative Report. 

The Board held a hearing on the matter and. issued a 

Final Order on January 8, 1985. The Order stated that if 

Walch's request for interpretation is deemed to be an 

exception to the Recommended Order, such exception was filed 

too late. Rut, if the request for interpretation is deemed. 

to be a request to enforce the Recommended Order, then the 

District Court is the proper forum for such action, not the 

Board. 

Walch then filed a petition to enforce in the District 

Court. The court found that the Recommended. Order clearly 

required the University to pay Walch in accordance with the 

pay plan exception. formula. Since Walch did not allege that 

the University was not paying him in accordance with this 

formula, the court dismissed the petition with prejudice for 

fa.il.ure to state a claim for which relief can be granted. 

The sole issue raised by appellant is whether the 

District Court erred in interpreting the Recommended Order as 

requiring the University to pay appellant according to the 

pay plan exception formula. However, in order to reach this 

issue, we must first determine whether the District Court had 

jurisdiction over the case since no timely exceptions to the 

Recommended Order were filed, nor did appellant file a timely 

appeal from the Final Order. 

Appellant brought an action in the District Court to 

enforce the original order of the Board. This action is 

allowed by 5 2-18-1013, MCA, which provides: 

The board or the employee may petition 

for the enforcement of the board's order 

and for appropriate temporary relief and 

shall file in the district court the 

record of the proceedings. Upon the 
filing of the petition, the district 

court shall have jurisdiction of the 

proceeding. Thereafter, t-he district 

court shall set the matter for hearing. 

A-fter the hearing, the district court 

shall issue its order granting such 

temporary or permanent relief as it 

considers just and proper. No objection 

that has not been raised before the 

board shall be considered by the court 

unless the failure or neglect to raise 

the objection is excused because of 

extraordinary circumstances. The 

findings of the board with respect to 

questions of fact, if supported by 

substantial evidence on the record 

considered as a whole, sha.11 be 

conclusive. 

It is apparent that this statute places no time restraints 

upon the filing of ar? action to enforce. The action may be 

brought anytime after the Board's order has been issued, 

provided it is brought within the statute of limitations 

period which is genera.11~ applicable to the filing of civil 

a-ctions. Section 27-2-215, MCA. Thus, the District Court 

did have jurisdiction to hear the petition. 

However, an action to enforce under 5 2-18-1013 is to 

be distinguished from an action for judicial review of a. 

contested case under § 2-4-702, MCA. The latter action must 

be brought within thirty days after service of a final agency 

d.ecision, and. the petitioner may contest the final decision 

of the agency. In an action to enforce, the petitioner 

cannot contest the agency decision. Therefore, appellant can 

prevail only if the University is not paying him according to 

the order as it was written. 

Respondent contends that this action is being used as a 

means of circumventing the time requirements imposed by the 

Recommended Order and should not be allowed. Although that 

may have been appellant's intention, circumvention of the 

time requirements is impossible in this case since no 
objection to the order can be raised. The inquiry is limited 

solely to the question of what the Recommended Order required 

the University to do--either to pay according to the formula 

or to pay according to the state pay matrix. The action is 

one to enforce the order as it is written; appellant cannot 

question the correctness of the order in this action. 

Therefore, there is no circumvention of any time 

requirements, statutory or administrative. 

Having found that this action is proper, we now 

determine what the Recommended Order required. Although the 

language of the order is somewhat ambiguous, a close reading 

of the words used. and the reasoning supplied in the order 

indicates that the University should pay appellant in 

accordance with the pay plan exception formula. The last 

sentence of the Recommended Order required the University to 

"continue" to pay appellant j.n accordance with the formula 

designed for the ma.na.gement sta.ff. Had. the Hearing Examiner 

meant for the University to pay appellant under the state pay 

matrix, she certainly wou1.d not have used the word. 

"continue," since appellant was already being paid under the 

formula set up for the management staff prior to the Order. 

Appellant contends that the Order required 

"adjustments" in his pay. However, what the Order required 

was adjustments in his "cl-assification title" and "pay grade 

level." The fact that these adjustments were not meant to be 

an a.djustment in pay is made clear in the paragraph preceding 

the Recommended Order. The examiner recognized that 

appellant could be aggrieved by a reclassification of his 

position even though his pay was not decreased. She stated: 

First of all, classification and grade 

level assignment are major components of 

the classification system. Changes in 
these components, even if they do not 

result in a change in salary, constitute 

potential bases for appeal. Secondly, 

there are no guarantees of permanence 

for either the pay plan exception or the 

formula by which Mr. Walch's pay is 

calculated. Should either of these 

variables change, Mr. Walch ' s 

classification title and grade level 

would resume being of primary importance 

in the determination - of - his salary. 

(Emphasis added. ) 

This indicates that appellant's classification title and 

grade level are not of primary importance in the 

determination of his salary now. Instead, the formula 

designed for the management staff was contemplated as being 

of primary importance in this determination. Moreover, the 

interpretation given by the original hearing examiner in the 

investigative report also makes clear that she intended for 

appellant to be paid according to the pay plan exception 

formula. 

Therefore, since appellant is being paid in a.ccordance 

with the Order of the Board, and since he has not alleged 

that the University is not paying him. according to the 

formula, we affirm the District Court's dismissal of the 

petition for failure to state a claim for which relief can be 

granted. Any objection to the Roard's Final Order or to 

being paid under the formul-a comes too late to be noticed on 

appeal. 

Affirmed. 

We concur: