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No. 84-85

IN THE SUPREME COURT OF THE STATE OF MONTANA

1984

E. ROY HUTCHIN,

Petitioner and Appellant,

THE STATE OF MONTANA, acting
by and through its Deptartment
of Fish, Wildlife and Parks,

Respondent and Respondent,

APPEAL FROM: District Court of the Eleventh JudZcial District,
In and for the County of Flathead,
The Honorable J. M. SaLansky, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Murphy, Robinson, Heckathorn & Phillips; Donald R. Murray, Kalispell, Montana
For Respondent:

James E. Gardner, Board of Personnel Appeals,
Helena, Montana
Stan Bradshaw, Dept. of Fish, Wildlife & Parks,
Helena, Montana

Submitted on Briefs: May 17, 1984

Decided: October 16, 1984

OCS 1. .I 1384
Filed:

F
- fv, ~/Lwy ------"
Clerk

Mr. Justice John C. Sheehy delivered the 0pi.nion of the
Court.

E. Roy Hutchin appeals from a final order of the
District Court, Eleventh Judicial District, Flathead County,
affirming the final order of the Board of Personnel Appeals
respecting an employment dispute between Hutchin and the
Department of Fish, Wildlife and Parks.

Prior to November 2, 1978, Hutchin had been employed by
the Department as a Park Manager I employee. His job
included some duties as ex officio game warden in the
Blackfoot River area, and he was housed in the accommodations
in the Luhrecht Forest headquarters.

On November 2, 1978, Hutchin was discharged from his
employment because he and a fell-ow employee used a
state-owned vehicle to transport. the fellow employee to a
hunting area, and to carry back to the Lubrecht Forest
headquarters an elk which the fellow employee had killed.
Hutchin's discharge was reviewed by the Department, which
approved the discharge. Thereupon, Hutchin sought relief
from other state agencies and eventually filed a grievance
with the Board of Personnel Appeals.

A hearing examiner for the Board of Personnel Appeals
determined that the discharge was proper. Hutchin appealed
this determination to the Board itself which reversed the
recommendation of the hearing examiner. The Board found that
although the Department had discharged Hutchin by reason of
the provisions of section 2-17-423, MCA, which forbids
personal use of state-owned property, nevertheless, the
Department had never adopted regulations nor advised Hutchin
as to what constitutes authorized or official use of a
vehicle as opposed to unauthorized or unofficial use thereof.

The Board further found that the Department had not
consi-stently interpreted and enforced section 2-17-423,
because of other instances of unauthorized use of state
vehicles in which the perpetrators were not punished by the
Department.

The order of the Board of Personnel Appeals of February
23, 1981, directed that Hutchin "be reinstated as of the date
of this final order to the position he held with the
department" at the time of his termination.

The Department advised that the position which Hutchin
had formerly held had been filled and wa.s not available, and
asked for a clarification of the order. In the meantime,
Hutchin had appealed the decision of the Board of Personnel
Appeals to the District Court. On January 21, 1.981, the
District Court remanded the matter to the Board of Personnel
Appea 1s for further determinations. Accordingly, the Boa-rd
of Personnel Appeals, in an order dated March 17, 1982,
determined to amend its earlier order to provide that the
petitioner was not entitled to back pay from and after
November 2, 1978, nor to retroactive application of benefits,
nor to advancement of grade and seniority as would have
accrued if it had not been for his discharge; and further to
state that its reason for such determination was that
although the empl-oyee's action was a technical violation of
state law, the departmental policy was so ambiguously stated
that the employee was not given full notice thereof.

In addition, the Board of Personnel Appeals amended its
earlier order to provide that Hutchin be reinstated as of the
date of the amended order, May 28, 1981, "to his former or
substantially equivalent position."

Hutchin appealed the final order of May 28, 1981, to the
District Court. On November 18, 1983, the District Court
adopted verbatim the proposed opinion and judgment submitted
by the Department, and affirmed the final order of the Board
of Personnel Appeals as amended. It is from the order of
November 18, 1983, that Hutchin here appeals.

Hutchin raises these issues:

1.
Hutchin should have been awarded Sack pay and lost
employment benefits as a result of his wrongful discharge.


2.
Hutchin should receive additional wages from the
date of the final order until the time he was finally
reemployed by the Department.


3.
The Department failed to restore Hutchin to a
substantially equivalent position.


4.
The District Court erred in holding that under
section 2-4-702, MCA, it could not "expand the relief"
granted by the Board of Personnel Appeals.


5.
The District Court erred in failing to conduct an
evidentiary hearing to compare the positions, or to remand
the question to the Board of Personnel Appeals for an
evidentiary hearing.
BACK PAY



Hutchin contends that once it was determined that his
discharge was wrongful, he was entitled to back pay for the
time of his wrongful discharge, and all the benefits that
would ordinarily accrue to him.

Any aggrieved employee of the Department of Fish,
Wildlife and Parks who has exhausted the administrative
remedies within the Department, is entitled to a hearing
before the Board of Personnel Appeals, and any order of the

Board is bindinq upon the Department. Section 87-1-205, MCA;
section 87-1-403, MCA.

Under section 87-1-205, MCA, proceedings before the
Board. of Personnel Appeals are governed by sections
2-18-1011, -1012, -1013, MCA. In effect the Board of
Personnel Appeals may issue an order to the appropriate
agency "requiring such action as will resolve the employee's
grievance," section 2-18-1012, and either the Board or the
employee may petition for the enforcement of the Board's
order in District Court. Section 2-18-1013, MCA.

It is apparent from section 2-18-1012, MCA, that if the
Board of Personnel Appeals determines that. the employee is
aggrieved, it has full discretion to resolve the employee's
grievance.

In this case the Board determined not to sustain the
discharge of Hutchin because the Department of Fish, Wildlife
and Parks had not articulated regulations respecting the use
of state-owned vehicles, and had permitted personal use of
such vehicles by others. The Board of Personnel Appeals
obviously determined that Hutchin had violated state law in
the personal use of the state-owned vehicle but that under
the circumstances, it was inequitable to require his
discharge. Instead the Board of Personnel Appeals determined
that he should be reinstated without back pay. It was the
determination of the Board of Personnel Appeals that
Hutchin's grievance could be resolved simply by reinstating
him to his same or equivalent position. The District Court
and this Court are bound by that determination, lawfully
within the power of the Board of Personnel Appeals. See
section 2-18-1013, MCA, infra.

RACK PAY FOR THE INTERIM PERIOD

Hutchin further contends that he is entitled to hack pay
from the date of the final order of the Board of Personnel
Appeal-s, to the date that he was finally reemployed. In a
proper case, this would seem to be the proper result, but
here, as we shall show, there was a continuing dispute
between Hutchin and the Department of Fish, Wildlife and
Parks as to what constituted an equivalent position. We
decline to determine that Hutchin is entitled to pay for the

interim  period  between  the  final  order  of  the  Eoard  of  
Personnel  A.ppeals and  his  eventual  reemployment by  the  
Department of Fish, Wildlife and Parks.  
COMPLIANCE BY THE DEPARTMENT WITH THE ORDER OF THE BOARD  

OF PERSONNEL APPEALS

The principal issue in this case is whether the
Department of Fish, Wildlife and Parks did in fact comply
with the directive of the Board of Personnel Appeals to give
Hutchin an equivalent position.

The parties entered into a stipulation of facts
regarding what occurred following the final amended order of
May 28, 1981, of the Board of Personnel Appeals. From that
stipulation, these facts emerge:

On June 3, 1981, the Department offered Hutchin a grade
11 position in its Helena office, described as a. graphic art
technician 11. On June 10, 1-981, Hutchin rejected the
position as not being within his expertise.

On June 19, 1981, the Department offered Hutchin a job
as Parks Manager I in Miles City, Montana. Hutchin requested
an extension of time to decide. The time for his response
was extended to July 6, 1981. On July 4, 1981, Hutchin asked
the Department to hold the position in Miles City open until

the District Court rendered its decision. On July 8, 1981, the Department, through its attorney, extended the time for response to July 22, 1981. On July 19, 1981, Hutchin requested more information on the Parks Manager I position in Miles City. On July 23, the Department responded by supplying to Hutchin's attorney a second copy of the job classification for the position and extended Hutchin's response date to August 1, 1981-.
On September 10, Hutchin, j.n a letter, stated that he
would accept the Miles City position if it was determined to
be substantially equivalent to the position in which. he was
terminated. The parties further stipulated that the Parks
Maria-ger I position at the time of Hutchin's termination and
the class specification of the Miles City position were the
same. Eventually, Hutchin accepted the Parks Manager I
position because of a take-it-or-leave-it letter from the
Department.

The stipulation of facts indicates tha.t the Department
acted reasonably swiftly in following the order of the Board
of Personnel Appeals after it had been affirmed by the
District Court. There is no reason to a-ward interim back pay
to Hutchin in this cause. The stipulation of facts shows
that the Department complied with the order of the Board. of
Personnel Appeals by restoring Hutchin to an equivalent
position.
REVIEW BY THE DISTRICT COURT

Hutchin contends that the District Court in reviewing
the cause pursuant to section 2-4-702, MCA, erred in holding
that it was without authority to "expand the relief" granted
by the Board of Personnel Appeals. This contention arose

because Hutchin contended that the District Court could award
back pay in its own discretion.

The District Court, in its opinion accompanying the
iudgment of which is appealed from, indicated that its
judicial review of the a.gencyfs decision was pursuant to the
Yonta-na Administrative Procedure Act, section 2-4-701, et
seq., MCA. The court in this instance erred in its
determination of the source of its power of judicial review.
It was 1.ed into the error by its adoption verbatim of the
proposed opinion and judgment of the Department of Fish,
Wildlife and Parks.

The grievance procedure for an employee of the
Department of Fish, Wildlife and Parks is governed. by section
87-1-205, MCA. Under that statute, after the employee has
exhausted the administrative remedies within a department, he
is entitled to a hearing before the Board of Personnel
Appea1.s as provided for in section 2-15-1705, MCA, and
subject to the provisions of sections 2-18-1011 thru
2-18-1-013, MCA. It is further provided in that statute that
any order of the Board of Personnel Appeals is binding upon
the Department.

Once the Board of Personnel Appeals has reached its
decision, the power of a district court to review grievance
decisions of the Board. of Personnel Appeals arises under
section 2-18-1013, MCA.

As we have indicated earlier, the power of a district
court to review grievance decisions of the Board of Personnel
Appeals arises under section 2-18-1013, MCA. That section
reads as follows:

"The Board or the employee may petition for the
enforcement of the Board's or3er and for
appropriate temporary relief and it shall file in

the District Court the record of the proceedings. Upon the filing of the petition, the District Court shall have iurisdiction of the proceeding. Thereafter the District Court shall set the matter for hearing. After the hearing, the District Court shall issue its order wanting 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 evjdence on the record considered as a whole, shall be conclusive."
The foregoing section determines the power of the District Court with respect to judicial review of grievance decisions by the Board of Personnel Appeals for employees of the Department of Fish, Wildlife and Parks. It is clear from the statute thzt the Court is bound as to questions of fact determined by the agency, but the Court has power to "grant such temporary or permanent relief as it considers just and proper."
Unfortunately here, the procedure provided in section
2-18-1013, MCA, was not followed in District Court. The
matter here was not set for hearing. The court made no
findings of fact as such. We determine, however, that in any
event, the result must be the same and. that the District
Court, if in error in its proceedings, reached the proper
result. The stipulation of facts entered into between the
parties here require the result that the Department of Fish,
Wildlife and Parks, had indeed offered Hutchin a substantially
eau.ivalent position. Under the stipulation, the job
specifications for each position was the same.
EVIDENTIARY HEARING

The final contention of Hutchin is that the District
Court shoul-d either have conducted an evi.d.entiary hearing on
its own or remanded the proceedings to the Board of Personnel

Appeals for an evidentiary hearing to determine if an
equivalent position was offered. In the Light of the
stipulation, however, that would. have been an empty and
useless act. The pa.rties have stipulated that the job
specifications for each position are the same. The District
Court cou1.d come to no other result in its determination.

The final order of the District Court, dated November
18, 1983, is therefore affirmed.

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I Justice '1

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