No. 85-527 IN THE SUPREME COURT OF THE STATEOF MONTANA 1.986

BICHARD WALCH,Petitioner 

### and A.ppellant,

-vsUNIVERSITY OF MONTANA, Respondent and Respondent.

APPEAL FROM: District Court of the Fourth JudicialDistrict, In and for the County ofMissou.la, TheHonorable John S. Henson,Judgepresiding.

COUNSEL 

### OF RECORD:

ForAppellant: Datsopoulos,MacDonald & Lind; Edward A. Murphy, Missoula,Montana

For Respondent: Kary Elizabeth Kurz,U ofM Legal Counsel,Missoula, Montana Jayne pl/litchell,Personnel Division-Dept. ofAdmin., Helena,Montana

Submitted on Briefs: Jan. 30, 1986 Decided: April 17,1986

Filed:

## APR

## 1 :

## 1986Mr. 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 SuperintendentV, Grade 16. The IJniversity's Physical Plant.was reorganized on Janua-ry19, 1982, and Wa.lchlsposition 

### 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 apay plan exceptionwhich 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.hereclassification 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.ancewith the Administrati~reProcedure Act, Title 2, Chapter 

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

### by the reclassificationofhis 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~ueto pay Mr. Walch in accordancewith the formuladesigned 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 filedwithin such time, thisRecommended 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.dbeen 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.ancewith 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 investigationand issued an interpretationof the Recommended Order. In the report, she asserted that the intent of the order was that the University pay Walch in accord.ancewith 

### the pay plan exception formula, not in accordance with thepay matrix for state employees. Walch then filed exceptions to the InvestigativeReport. 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 exceptionwas 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 petitionwith prejudice for fa.il.ureto state a claim for which relief can be granted. The sole issue raised by appellant is whether the DistrictCourt erred in interpretingthe Recommended Order as requiring the University to pay appellant according to the pay plan exception formula. However, in order to reach this issue,wemust first determine whether the District Court had jurisdiction over the case since no timely exceptions to the Recommended Orderwere 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 enforcementof theboard'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-fterthe 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 tohear thepetition. 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 serviceof a finalagency 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 notpaying him according to the order as itwaswritten. Respondent contends that this action isbeing 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 canbe raised. The inquiry is limited solely to the questionofwhat the Recommended Order required the University to do--either to pay according to the formula

or to pay according to the statepay 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 somewhatambiguous, 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.gementsta.ff. Had.the Hearing Examiner meant for theUniversity topay appellant under the statepay matrix, she certainly wou1.d not have used the word. "continue," since appellantwas already being paid under the formula set up for themanagement 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-assificationtitle" and "pay grade level." The fact that these adjustmentswere notmeant tobe

an a.djustmentin pay ismade clear in theparagraph 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

### aremajor componentsof the classification system. Changes in

### these components, even if they do not 

### result ina change in salary,constitute potential bases for appeal. Secondly, there are no guarantees of permanence foreither thepay 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 resumebeing ofprimary importance in the determination 

### - of 

### - his salary. (Emphasisadded.) 

### 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 forwhich relief canbe 

### granted. Any objection to the Roard's Final Order or to being paid under the formul-acomes too late to be noticed on appeal. Affirmed.

We 

### concur: