OPINION
Gоrdon Bechard (“Bechard”) appeals the district court’s order granting summary judgment in favor of the Pondera County Commissioners and Pondera County (“defendants”) on his claims for wrongful termination under Montana law and for violation of his civil rights under 42 U.S.C. § 1983. We review de novo, Schultz v. Sundberg,
Bechard’s claims stem from defendants’ decision to terminate him from his position of administrative assistant to the Pondera County Commissioners (“Commissioners”). The district court granted summary judgment because it concluded that defendants were entitled to legislative immunity for their actions in terminating Bechard.
Bechard was employed as an administrative assistant to the Commissioners from May 1,1990, through March 15, 1996. He was terminаted three and one-half months before the end of the County’s fiscal year, and he was given severance pay equal to three and one-half months of salary. Upon termination, Bechard received a letter from the Commissioners stating that, although the termination was for “budgetary reason[s,] ... it [was] in the best interest of both parties to end [the] relationship immediately.”
Bechard received the letter at 4:00 p.m. on Friday, March 15, 1996. He was immediately escorted from the building and directed not to return. The Commissioners in their deposition testimony said that the termination was conducted in this way for security reasons. After his termination, Bechard’s duties were divided up between
No formal minutes were taken at the meeting or meetings at which thе Commissioners unanimously decided to terminate Bechard. An entry to the effect that his position had been terminated for budgetary reasons was made in the County’s Minute Book almost a week after the termination and not contemporaneously with it. The Commissioners indeed did not pass а resolution formally terminating the position until seventeen months after they had terminated Bechard.
The dispositive issue here is whether defendants are entitled to legislative immunity for their actions in terminating Bechard. In San Pedro Hotel Co. v. City of Los Angeles,
act[ed] in their legislative capacities, not in their administrative or executive capacities. In this circuit, we determine whether an act is legislative by considering two questions: (1) whether the act involves ad hoc decisionmaking, or the formulation of policy; and (2) whether the act applies to a few individuals, or to the public at large.
Id. at 476 (citations and internal quotation marks omitted). Additionally, in evaluating whether an act is lеgislative, we have been directed by the United States Supreme Court to look to whether the act is “formally legislative[in] character” and whether it bears “all the hallmarks of traditional legislation.” Bogan v. Scott Harris,
Although the decision to eliminate a position for budgetary reasons is clearly legislative, id., “[t]he decision to demote and to discharge a specific individual is an administrative act” that is not clothed in legislative immunity. Chateaubriand v. Gaspard,
We conclude that defendants’ actions in terminating Bechard, whether justified or actionable, were in any event not entitled to legislative immunity. The predominant circumstances surrounding Bechard’s termination suggest that it involved ad hoc decisionmaking rather than the formulation of policy and that it initially affected only Bechard rather than affecting a large number of people. Moreоver, the decision to terminate him neither was formally legislative in character, nor did it bear the hallmarks of traditional legislation.
We look, in part, to Montana law in evaluating these issues. In Montana, “[a]ll meetings of the board of county commissioners must be public,” Mont.Code Ann. § 7-5-2125, and the commissioners’ powers of self-government “may be exercised only by ordinance or resolution.” Mont. Code Ann. § 7-1-104. The commissioners must record “all orders and decisions made by them and the daily proсeedings had at all regular and special meetings” in a “ ‘Minute Book.’ ” Mont.Code Ann. § 7-5-2129(1).
5. That the Commissioners did not make the decision in aсcord with the legislative requirements of Montana law supports the conclusion that their termination of Bechard was the product of ad hoc decisionmaking rather than of policy formulation. Similarly, the fact that many of Bechard’s dutiеs continued to be performed by other County employees suggests that the termination decision was an ad hoc, administrative decision relating to Bechard rather than a policy decision that his position was no longer necessary because his duties were no longer required. Because the above facts suggest that Bechard’s termination was the product of ad hoc decision-making rather than of policy formulation, the termination does not meet San Pedro Hotel Co.’s first requirement for legislative immunity.
As for the second prong of San Pedro Hotel Co.’s test for lеgislative immunity, it is clear that the decision initially affected only Bechard rather than affecting a large number of people.
On the record before us, it is clear that neither of the factors that we used in San Pedro Hotel Co. to determine whether a party is entitled to legislative immunity supports the application of legislative immunity on summary judgment here. Before rejecting defendants’ claim to legislative immunity, however, we turn to the general standards regarding that doctrine that the Supreme Court put forth in Bo-gan.
As stated above, the Bogan Court looked to whether the action for which immunity is sought is formally legislative in character and whether it bears the hallmarks of traditional legislation. Bogan,
Because neither the Ninth Circuit’s test in San Pedro Hotel Co. nor the Supreme Court’s decision in Bogan supports granting defendants immunity for Bechard’s termination, we reverse the district court’s order granting summary judgment for defendants and remand for further proceedings. We stress that in rejecting legislative immunity on the record and procedural context of summary judgment before us, we do not imply any conclusion about whether the challenged conduct is aсtionable. We hold simply that it is not immune from challenge.
The summary judgment is REVERSED, and the case is REMANDED for further proceedings consistent with our opinion.
Notes
. Robert Hovde was deposed as follows:
Q. [D]o you recall whether any formal meeting was conducted by the board prior to [Bechard's] terminatiоn where his termination was discussed and approved by the board?
A. Well, certainly we met to determine his situation, yes.
Q. And do you know if any minutes were taken of any meetings with the commission about this subject?
A. That I could not say.
Q. Do you recall whether the decision ... was ... unanimous ?
A. Yes, it was.
Q. Do you recall whether any motion was madе ... to terminate his position?....
A. I couldn’t say that in all honesty.
Q. Do you recall whether there was any public meeting where the decision was made and a motion passed to terminate [Bechard's] employment?
A. Not to my knowledge there wasn’t.
. Defendants vigorously dispute this characterization and аrgue that Bechard's position was terminated immediately for budgetary reasons. Yet, in reviewing the summary judgment for the Commissioners, we must view the evidence in the light most favorable to Bechard as the nonmoving party. Leisek v. Brightwood Corp.,
. Additionally, the fact that Bechard was given three and one-half months of severance pay can be seen as belying defendants’ financial explanation for the termination, particularly in light of the odd timing of the termination, which occurred several months before the end of the fiscal year. In the context of the other evidence that suggests that the Commissioners made an administrative decision to terminate Bechard, the evidence regarding severance pay bolsters Bechard’s case against the application of legislative immunity.
. It is evident that a legislative decision could either be made (and recorded) before or contemporaneously with a purportedly legislative action to comply with Bogan's requirement that the challenged action bear the hallmarks of traditional legislation. However, a decision that is not recorded until nearly a week after the purportedly legislative action raises questions. The belatedness of the entry also casts doubt on the formally legislative character of the decision to terminate Bechard under Bogan, particularly in light of Montana’s requirement that the Commission keep daily records of its proceedings. See Mont.Code Ann. § 7-5-2129(1).