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NO.

94-084

IN THE SUPREME COURT OF THE STATE OF MONTANA 1994 IN THE MATTER OF HOWARD LARRY PHILLIPS, Petitioner and Appellant, -vsCITY OF LIVINGSTON, a Municipal Corporation, BILL R. DENNIS, RUTH EGGAR, LYLE GILLARD, LEE HARRIS, and PATE MIKESELL, as member of and constituting the City Council of the City of Livingston, Montana, Respondents and Respondents. CL JLitlz
CCaRK~F~~~REMECO"R~ s~~~~ OF MONTANA

APPEAL FROM:

District Court of the Sixth Judicial District, In and for the County of Park, The Honorable Byron L. Robb, Judge presiding.

COUNSEL OF RECORD: For Appellant: William F. Frazier, Jr.; Swandal, Douglass, Frazier & Cole, Livingston, Montana For Respondent: Robert L. Jovick, Attorney at Law, Livingston, Montana For Amicus Curiae: Michael J. San Souci, Bozeman, Montana, Attorney for Montana State Council of Professional Firefighters, International Association of Firefighters and Local No. 630, IAFF

Submitted on Briefs: Decided: Filed:

September 15, 1994 November 29, 1994

Justice John Conway Harrison delivered the Opinion of the Court.

This is an appeal from an order of the District Court for the Sixth Judicial District, Park County, denying Howard Larry

Phillips' (Phillips) petition for a writ of mandamus. We reverse. We restate the issues raised as follows: 1. supersede Do the city of Livingston's termination hearing procedures statutory termination procedures for firefighters

established by the state legislature? 2. mandamus? The city of Livingston (Livingston) employed Phillips as a full time firefighter beginning October lG, 1989. 1993, On October 6, Is Phillips entitled to the relief provided by a writ of

Kenton G. Griffin, Livingston's city manager, sent Phillips

notice that there would be a termination hearing the next day regarding Phillips' employment. The notice informed Phillips that

he was suspended with pay because of allegations that he contrived to steal $20 from the local Firefighters Association. The notice

stated that the alleged theft would be addressed at the termination hearing. Later the same day, Griffin sent Phillips an addendum

stating that the termination hearing would be postponed until October 8, 1993 because two additional allegations would be These allegations were that Phillips had misappro-

discussed.

priated a flashlight and carabiners. Phillips objected to having the hearing on such short notice 2

and requested a continuance.

On

October

8,

1993,

Griffin

sent

Phillips a letter stating that his request for a continuance of the hearing was granted, 1993. The notice extending the hearing date to October 14, added an allegation that Phillips stole

hemostats,

and informed him that this allegation would also be

considered at the hearing. The termination hearing was held on October 14, 1993. Griffin

presided at the hearing. Phillips' counsel objected to the hearing because it did not conform to the mandates of

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Montana Law