*1
WELSH,
DENNIS P.
Aрpellant,
Plaintiff
v.
municipal
corp.
FALLS,
CITY
OF GREAT
Montana,
Respondent.
Montana,
the State
Defendant
No. 83-309.
Submitted Dec.
1983.
Decided Oct.
1984.
Rehearing Denied Nov.
Graybill, Crotty, Ostrem, Ostrem, Warner & Donald R. ar- gued, plaintiff appellant. Falls, Great for argued, City Atty.,
David V. Falls, Gliko Great for defend- respondent. ant and Opinion
MR. JUSTICE SHEA delivered the of the Court. appeals judgment Plaintiff, Welsh, Dennis P. from a County denying Cascade District Court him all relief on his complaint against wrongful of Grеat Falls for ter- alleged mination as a fireman. Welsh that his termination cause, to 1, 1980, had failed follow August was without firemen, statutory procedure for termination employment, in his he property that because had a interest by him the to hearing rights guaranteed he had been denied Montana Due the United States and Process clauses of statutory scheme Although hold that Constitutions. we to where apply not Welsh for terminаtion of firemen did termination, we also alleged for the bad health is the reason position his hold that Welsh did have a he could not be terminated fireman and therefore that impartial opportunity hearing for a before an without ter- question cause for his tribunal. do not reach the We only proper resolved after mination that can be because opportunity an properly waived after Wеlsh for another hearing. issue, is not separate we hold that Welsh
On a but related leave, as for of his sick payment entitled all accumulated contends, only set stat- amount but entitled (Section 2- sick leave ute —one fourth of his accumulated 18-618(5), MCA). now in order issue is This decided issue is raised possible appeal avoid a further where the again. once statutes did applicable
The trial court ruled that al- any rights Welsh where bad health give termination, meetings a series of leged reason for his health had be- superiors had after in- issue, exit come an with the together upon his termina- personnel department terview with the of due tion, the demands were sufficient to meet The trial court did not Amendment. under Fourteenth rights process under to due rule on Welsh’s claim that II, were vio- Art. Constitution the Montana *4 finding, the trial in all-inclusive Finally, lated. a bare-bones (Welsh) acknowledged his “the Plaintiff court ruled that hold that to retire.” We physical incapacity and consented Constitution, 17, II, Montana under Art. a hearing for right Welsh was denied his impartial before an lawfully tribunal before he could be ter- minated for health reasons.
Plaintiff Welsh began career a Great Falls fireman when he was appointed probationary period six-month 11, probationary pеriod, March 1963. After the Welsh was nominated appointed to serve as a full-time Great 1971, however, Falls fireman. In benign brain tumor was in temporal discovered Welsh’s left lobe. He underwent two operations removed, successful to have the tumor and was placed on medication to control seizure re- attacks. Welsh duty turned to layoff. after a six-month Welsh was an job office in the fire prevention year for аf- bureau the first return, ter his but was later firefighting returned to active In duties. passed Welsh the examination for the rank of captain promoted and was to that rank.
In Welsh suffered a severe seizure at the station shortly house after he had returned According from a fire. fireman, the testimony of a passed fellow Welsh out the cab of the fire it engine just pulling as was into the sta- incident, tion. After this Welsh’s in- dosage medication creased attempt to prevent further seizure attacks. Three years later, during 21, 1980, July drill on Welsh was hos- pitalized for what was diagnosed emergency room doctor as “heat burning exhaustion.” Welsh was inside a structure and apparently confused, became disoriented and eyes had glazed profusely. and was sweating July incident, After the meetings Welsh had three chief, the fire resulting final one the fire chief hand- ing August Welsh termination letter effective Welsh was also the personnel offered exit interview with department terminated, employment before his but de- clined the City argues interview. The did not fireman, have a position in his as a also that providing hearing rights statutes to firemen before their if apply, alleged termination do reason for physical incapacity. assuming termination But statutes apply physical incapacity, do to tеrmination for *5 408 exit together that with the
City argues meetings, the three declined, comply that sufficient interview Welsh were spirit of the statutes. with in fire office that place
The first took chiefs meeting 1980, in 21, July incident that resulted day after hospitalization for either a seizure temporary Welsh’s Welsh, fire chief Mike heat exhaustion. Present were Kalovich, The emer- Bright, operations and Lee officer. but fire chief gency room doctor had rеleased Welsh have ex- physical nonetheless told that he should Welsh permission The amination. fire chief asked and obtained doctor, Dr. Bren- Douglas Welsh to speak from to Welsh’s in They from officer report ton. also discussed the drill, from other charge July 21 fire well as letters as who and observed firefighters present were at the drill had physical during Welsh’s reactions the drill. 31, (on place days July later meeting
The seсond took 1980) met in the fire office the fire chiefs after chief Welsh, chief, doctor, Dr. and with Welsh’s Brenton. fire present The chief con- operations again. officer were fire ac- Welsh Dr. letter Welsh fronted with Brenton’s were knowledged that had suffered more seizures than he that suggested to the When the fire chief known fire chief. retire, in he Welsh that if he were the fire chiefs replied position The thing.” City he the same relies “would do statement consented to retire. proving Welsh later, meeting days August
The third and five final was let- when the Welsh his termination fire chief handed date containing August ter effective resignation an At the Welsh testified District Court he not consent when he was his termination letter did right that he never told he had his retirement and was he had hearing. concedes Welsh was not told The to a right hearing. final, of- Finally, was before the dismissal became Welsh personnel before the fered the traditional exit interview board, interview. but declined the Apart process argument, argues from gives right 7-33-4124, MCA, Section him a to a City argues before termination. The that this statute does apply firefighter’s health, ato termination for bad alternatively, apply, that if it does Welsh was familiar department regulations all of the fire because he training right officer, and therefоre that Welsh waived any hearing provided by the statute. relies, statute on which Welsh conjunction MCA, must be read with Sections 7-33-4122 *6 provides 7-33-4123, 7-33-4122, and MCA. for Section the appointment firefighter firefighter of a the states that appointment good during shall hold the behavior and as long physically perform job. as he is able to the The follow- ing statute, 7-33-4123, Section authorizes the fire chief to suspend firefighter “neglect duty a for of of оr violation any department. of statute, the rules” of the The next the simply proce- provides one on relies, which Welsh for the suspended neglect dures to be used where fireman is for duty violating department of for or fire rules. provides part: 7-33-4124, in
“(1) suspension suspended person In all cases of the must copy against charge be him, furnished with a of the in writ- ing, setting suspension. charges forth reasons for the Such presentеd meeting must be next the of the council or suspended hereon, commission and a when the department may appear person member of the fire in or charges counsel and make his ...” defense said Clearly, provides hearing remedy this statute no physical disability. Reading one who is terminated for the together, they apply only must, three statutes as we to situ neglect duty ations where or rules the violation of аl leged notwithstanding However, reason for termination. statutory deficiency, 7-33-4122, we hold that Section property positions creates a as interest such that of fire probationary period satisfied, man once and therefore being that Welsh could be terminated without first impartial for a before tribunal. applicable to
Contrary City’s the statutes argument, to the at will terminable employment Welsh do not crеate an MCA, 7-33-4101, seq., control employer. Sections et municipal appointment employment continued Section 7- city as Great Falls. firefighter in a first class such 33-4122, MCA, firefighter provides appointed once an pe- probationary his successfully completed six-month riod, mayor city manager shall nominate or “. . shall firefighter . thereaf- firefighter for service and (his her) appointments during good respectivе ter hold or ability per- they physical have the behavior and while neglects his Clearly, firefighter form their duties.” unless rules, physi- or becomes duty department or violates fire disabled, be terminated. cally employment cannot appoint- hold their firefighters Under Section long as they physically as and as long ments are able the rules. Absent they neglect do not their duties or violate conduct, disability, ap- neglect duty, physical bad pointment voluntary lasts termination firefighter of a until or until retirement. holding firefighter
Our has a *7 of con position the clause our state insofar as concerned, State ex by the case of presaged stitution is was (1910), 577, 41 111 rel. v. Anaconda Mont. City Driffill of P. in interpreting where this Court Section 7-33-4113, MCA, 1947, a predecessor R.C.M. to every paid to fireman stated that the statute “does secure added.) 41 580- right (Emphasis Mont. at position.” to his 581, 111 in the Court’s Although P.345. this statement arose brought propriety the of mandamus action discussion of who discharged, wrongfully a fireman who stat reinstatement, 1910 the sought it is clear that even position.” ute “a his The firefighter right secured to to must, then, civil service status recognized Court as we the to firemen a holding of firemen in the statute secured that Here, position. his to “right” “right” to there is also a the position, subject the to conditions of the stаtute. City’s arguments
Nor do the us that the convince hearing requirement was or somehow satisfied right waived argument his to a The the meet hearing. ings operations between Welsh and fire chief and officer the satisfied hearings requirement be seri cannot taken ously. fire operations Neither chief nor the officer was tribunal, part impartial of an they part and in fact were accusatory process seеking confrontational Welsh’s regardless they of whether cause. good termination — Nor does City the offer of the to inter give Welsh an exit personnel view before the any board kind of constitute hearing opportunity. The exit interview could not have given any Welsh, redress to but at most been would have forum present before which he grievances. could his This in way no constitutes a fair hearing required by our due procеss clause.
Finally, City argues rights that Welsh waived his hearing. to a Although City’s arguments are directed more to the statutory provisions for hearing, which Court has suspension found inapplicable to a for health rea sons, we City’s nonetheless discuss the arguments waiver context constitutional requirement. City could prevail on the only proved waiver issue if it had that Welsh knew he had a right constitutional and that voluntarily right being waived that waiver —a Gerard v. relinquishment intentional right. of a known Sanner, et al. (1940), Although 110 Mont. P.2d a waiver express conduct, can be implied by in either case it City’s was the prove burden to Welsh waived right his a hearing. Here the admits that it did not advise right Welsh of his a hearing, and there is no evi dence to prove independent knowledge that Welsh had right a hearing. City’s For these waiver reasons argument must fail.
Welsh argues also that he was full allotment *8 required by statute, of sick leave and that these benefits as property right him sick leave benefits was denied are a Upon given case. one- his termination Welsh requires fourth his accrued sick statute leave benefits. employee upon employment, the termination of (Sec- leave benefits entitled to one-fourth his accrued sick MCA). 2-18-618(5), argues, however, tion Welsh voluntarily speaks only one statute to the situation where employment to who is termi- terminates his rather than one employer. argues statute nated He that because the situation, his full accu- does not cover his entitled to mulated sick leave and that he right been denied given if not his full allotment. normally of our
We this issue because would discuss disposition primary requires to issue that give to Welsh on exists terminate whether cause ex- However, him if it that cause for bad health. is decided Welsh, is enti- ists of whether Welsh to terminаte issue one-fourth of tled to his sick leave total accumulated leave, must be de- sick one that accumulated is still ruling if on the cided. This an adverse is true even after proper appeal. then, issue, It is main decided not to Welsh to decide the issue now. misplaced argument on on reliance
Welsh’s is based 2-16-621, MCA, construction Section and on a strained 2-18-618(5), relying MCA. Section In expressly argues him allows MCA, statute Welsh that the payment However, the stat for all accumulated sick leave. pro applies only It vacation benefits. ute to accumulated by the em vides in that where one is terminated substance employee ployer employer pay must relying 2- on Section vacation And in accumulated benefits. 18-618(5), places construction a most unreasonable meaning the statute the failure of on the tо be gives involuntary one- The statute mention termination. employee pay fourth of sick leave the accumulated employment retires, does not but it who or who terminates involuntary mention the case conten- retirement. Welsh’s *9 payment tion that he is for therefore entitled full accu- in- mulated sick leave because the does not statute mention voluntary termination, A at best. more upon strained goаl reasonable construction of statute’s is that employment termination of reason, for whatever the em- ployee is entitled to one-fourth of his accumulated sick voluntary leave. The statute makes no distinction between involuntary termination. judgment We vacate the of the District Court and City remand with directions that the case be sent to the they may necessary steps Great Falls so that take the for a process rights. that accords Welsh his due clearly improperly ef terminated. It is no force and pay fect, therefore, void. He is therefore entitled to full and benefits from the time of his termination until the final disposition of this case. City authority
We do not hold that the has no suspend firefighter for health reasons. do hold But we firefighter’s employment done, that when it is does not given hearing terminate until such time as he is in either рrocess requirements accordance with due or he waives right hearing. to Neither of those situations here. exists judgment
We vacate the of the District Court and remand with directions.
MR. CHIEF JUSTICE HASWELL and MR. JUSTICES MORRISON and SHEEHY concur. dissenting:
MR. HARRISON, JUSTICE respectfully I dissent.
I would first hold that there was sufficient cause to termi- appellant physical impairment. nate the due to his Given my opinion, condition, had, admitted an un- right 7-33-4107, restricted him terminate under Section (which applies qualificаtions MCA, to the for the office that held), opinion, my 7-33-4122, and MCA. In Sec- apply tions 7-33-4121 and MCA do ter- mination, duty only neglect or vio- suspension to the I department lation of fire would find that rules. provided by appellant for a by law him. our and it was waived opinion, principal question As noted majority in his appellant property here whether the had a interest such he can job only by complying be terminated Reiter v. Yellowstone process requirements, citing due County, Montana (1981), Rep. 627 P.2d 38 St. appellant Here the District found that volunta- Court rily retired, my of a opinion so the issue issue need not be discussed. necessity I to discuss the
Having so found would find no second issue raised herein. uphold finding
I would of the District Court. *10 joins foregoing MR. in the JUSTICE GULBRANDSON dissent of JUSTICE MR. HARRISON. WEBER, dissenting:
MR. JUSTICE opinion which respectfully majority I from dissent the in violation of plaintiff concludes that was terminated opinion correctly сon- process rights. majority due The by the right protected cludes a plaintiff property However, contains process majority opinion clause. the due cir- analysis plaintiff under the process no of what competing this and to balance cumstances of case fails rights plaintiff of and defendant. plain- majority appears
The to conclude because he is automati- employment, in his property right tiff has to a cally entitled under the Montana Constitution contrary to fed- This pretermination hearing. conclusion may this Court this While point. eral constitutional law on pro- providing more interpret Constitution the Montana Constitution, majority tection the United States than applying explain its reasons completely has failed to case, pay and a requiring rule back stricter opinion cites no au- The pretermination hearing. majority
415 thority for this conclusion. Supreme
The United States
anal
applies
two-part
Court
ysis
process
to resolve due
first
issues.
Court
deter
governmental
entity
mines whether
involved
de
prived the
constitutionally
recognized
individual
of a
Regents
Board
See,
liberty
or
e.g.,
interest.
State Colleges
v. Roth
(1972),
564,
2701,
408 U.S.
92 S.Ct.
Perry
548;
33
v. Sindermann
(1972),
593,
L.Ed.2d
408 U.S.
2694,
92 S.Ct.
33 L.Ed.2d
If
the individual has been
deprived
liberty
interest,
of a
or property
must
the Court
then determine
process
what
is due under
the circum
Goldberg
Kelly
v.
See,
(1970),
stances.
e.g.,
254,
397 U.S.
90
Mathews v. Eldridge
287;
S.Ct.
(1976),
L.Ed.2d
U.S.
96 S.Ct.
“.
prior
. . our
decisions indicate that
identification of the
specific dictates of due process generally requires considera-
tion of
first,
three distinct
private
factors:
will
second,
be
action;
affected
the official
the risk of
deprivation
erroneous
through
proce-
of such interest
used,
dures
probable value,
and the
any,
if
of additional
procedural
substitute
safeguards;
finally,
the Govern-
interest,
ment’s
including the function involved and the fis-
*11
cal and administrative
burdеns that
the additional
sub-
v.
procedural
entail.” Mathews
requirement
stitute
would
Eldridge (1976),
334-35,
The majority only has considered the first these three factors. all
Considering analysis, three the it is that factors of clear requirements the process of due would be satisfied 416 plaintiff by post-termination hearing. While
case the stake, risk of errone- a substantial interest at the deprivation through procedures ous the by nearly is nonexistent. usеd the defendant in this case plaintiff the dispute parties There was no between the firefighter. physically working was to continue as a unable own doctor. Under Section That was the conclusion of his ap- MCA, plaintiff, as a holds firefighter, ability pointment City physical the the “while [he has] dispute, no perform plaintiff duties.” Without [his] his duties. For physical ability perform longer the City public, and the protection firefighters, of fellow the if itself, plaintiff required was to terminate defendant under these resign voluntarily. he did not It obvious that facts, safeguards” procedural or substitute “additional would no value.” “probable have had interests of majority not considered the opinion has imposed City in burdens the fiscal and administrative in this case. by pretermination hearing requirement physically though undisputed plaintiff Even it is opinion re- firefighter, majority unable to work as plaintiff pay from quires City grant full benefits disposition of the the date of the termination to the final hearing, City required provide case. The will be majority in the requirements specified not which are already determined opinion, an issue that to determine administrative bur- beyond dispute. places fiscal and This in this case. City simply justified dens on the which are hear- pretermination I disagree process requires that due (1974), Kennedy v. U.S. Arnеtt 416 ing in this case. Cf. (no process pretermina- 94 S.Ct. L.Ed.2d due employee under government tion requirement case). requirements of facts of that I would hold that which procedure served process due would best be follows: parties fairly balances the interests rights, (1) hearing, A with all post-termination could fireman the defendant plaintiff at which the *12 present all the facts. If my conclusion that the termina- tion was proper inсorrect, then an properly award could be made the plaintiff granting pay him back from date of termination.
(2) If the termination is proper, found have been then penalized would not be compen- the payment of plaintiff sation to the from the date of termination. procedure This fully would protect the interests of the plaintiff. I would remand the application case for of this procedure.