PHILLIPS v CITY OF LIVINGSTON
Annotate this Case
Download PDF
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. APPEAL FROM: CL JLitlz CCaRK~F~~~REMECO R~ s~~~~ OF MONTANA 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. Do the city of Livingston's termination hearing procedures supersede statutory termination procedures for firefighters established by the state legislature? 2. Is Phillips entitled to the relief provided by a writ of mandamus? The city of Livingston (Livingston) employed Phillips as a full time firefighter beginning October lG, 1989. 1993, On October 6, 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, discussed. 1993 because two additional allegations would be These allegations were that Phillips had misappro- 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, extending the hearing date to October 14, 1993. added an The hemostats, notice allegation that Phillips stole 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 § 7-33-4124, MCA, which requires firefighters ' termination hearings to be held before the city council or commission. objection and, on October 18, formal notice of termination. Griffin 1993, overruled Phillips' Griffin sent Phillips his Griffin, acting as the Livingston city manager, unilaterally decided to terminate Phillips. On October 22, 1993, Phillips petitioned the District Court for a writ of mandamus to command his firefighter. On January 12, 1994, denying Phillips' petition. reinstatement as a the court issued its order Phillips moved for reconsideration. On January 24, 1994, the court reaffirmed its previous decision. From these orders, Phillips appeals. I Do the city of Livingston's termination hearing procedures supersede statutory termination procedures for firefighters established by the state legislature? For clarity, we note at the outset that although Livingston has adopted the commission-manager form of government, Livingston's city commission refers to itself as the Livingston city council. Livingston's policy and procedures manual, which the Livingston city council adopted by resolution number 2175 on June 18, 1990, states that the city manager shall hold a termination hearing prior to any discharge, and that only the city manager may discharge an employee. This procedure conflicts with a Montana statute regarding the discharge of firefighters which provides: Suspension procedure. (1) In all cases of suspension the person suspended must be furnished with a copy of the charge against him, in writing, setting forth reasons for the suspension. Such charqes must be presented to the next meeting of the council or commission and a hearinq had thereon, when the suspended member of the fire department may appear in person or by counsel and make his defense to said charges. (2) Should the charges not be presented to the next meetins of the council or commission after the suspension or should the charges be found not proven by the council or commission, the suspended person shall be reinstated and be entitled to his usual compensation for the time so suspended. (3) If such charges are found proven by the council or commission, the council or commission, by a vote of a majority of the whole council or commission, may impose such penalty as it shall determine the offense warrants, either in the continuation of the suspension for a limited time or in the removal of the suspended person from the fire department. Section 7-33-4124, MCA, (emphasis added). We examined a city's attempt to supersede Montana statutes dealing with municipal fire departments in Billings Firefighters Local 521". City of Billings (1985), 214 Mont. 481, 694 P.2d 1335. In that case, the city of Billings passed an ordinance which purported to supersede almost all of Title 7, Chapter 33, Part 41, MCA, regarding municipal fire departments. 694 P.2d at 1337. Billinqs Firefighters, We examined § 7-1-114(f), MCA, which states that 4 local government powers are limited by any law requiring local government to carry out a function or provide any service. Billings Firefiqhters, 694 P.2d at 1339-40. We held that the Billings ordinance was deficient because the ordinance did not require the city to provide an essential service; specifically, the ordinance did not provide for the mandatory creation of a municipal fire department which is required of every city in 5 7-33-4101, MCA. Billinss Firefiqhters, 694 P.2d at 1339-40. In reaching our conclusion that the Billings ordinance was void, we expressly noted that we were not ruling upon other possible conflicts between the ordinance, other sections of Title 7, Chapter 33, Part 41, MCA, and § 7-1-114(f), MCA. Billinas Firefiahters, 694 P.Zd at 1340. We now have reason to make such a ruling regarding Livingston's policy and procedures manual. In the present case, Livingston attempted to supersede the statutory duty of the city council to hold a hearing before it decides to terminate a suspended firefighter. We hold that this violates § 7-l-114, MCA, which states in relevant part: (1) A local government with self-government powers is subject to the following provisions: . . . (f) Any law directinq or requiring a local government o r any officer or employee of a local government v out anv function or provide any to carr service . . . . (2) These provisions are a prohibition on the selfgovernment unit acting other than as provided. [Emphasis added.] Section 7-33-4124, MCA, clearly requires the Livingston city council to hold a hearing at its next meeting following the 5 suspension of a municipal perform this function. firefighter. The council failed to Livingston's policy and procedures manual essentially has the city manager perform the council's function. As applied to firefighters, this policy violates the limitations placed on local governments' powers by § 7-1-114(f), MCA. Thus, as the policy is applied to city firefighters, it is void. Livingston argues that the termination procedures provided in the city manual validly supersede those provided in § 7-33-4124, MCA, because Livingston's those termination procedures were collective bargaining support of its position, which states in part: agreement with included in the union. In Livingston cites § 39-31-306(3), MCA, "An agreement between the public employer and a labor organization must be valid and enforced under its terms when entered into in accordance with the provisions of this chapter. . . .'I Livingston also cites a Kansas case in support of argument. its In Gorham v. City of Kansas City (Kan. 1979), 590 P.Zd 1051, 1056, the Kansas Supreme Court held that terminated policemen waived their due process rights to a pre-termination hearing because their union had entered into agreement with a grievance procedure. a collective bargaining We note that Phillips was provided with notice of the charges. against him before the city manager conducted the termination hearing. this case does not process. However, the issue in involve the denial of constitutional due Gorham is distinguishable because there was no specific statutory right to a termination hearing at issue, and the bargaining agreement here is different from that in Gorham. We have not addressed the issue of whether a laborer waives the right to due process, or a statutorily mandated hearing, by entering into a collective bargaining agreement; nor do we need to A today. thorough examination of the collective bargaining agreement makes it possible to give effect to both § 7-33-4124, MCA, and § 39-31-306(3), MCA. relevant part that "[w]here particulars, Section l-Z-101, MCA, states in there are several provisions or such construction is, if possible, to be adopted as will give effect to all." Livingston's policy and procedures manual provides that the city manager shall hold a termination hearing prior to any discharge, and that only the city manager may discharge an employee. Article V of the collective bargaining agreement is and Procedures." Section 5.1 of the agreement entitled "Policy states: "The Union agrees to adopt the City of Livingston[']s Policy and Procedures manuals where not in conflict with this Agreement." Article XIII of the collective bargaining agreement is entitled "Discipline and Discharge." Section 13.3 states: "The employer may suspend an employee with pay pending the final decision as to the appropriate discipline or the overturning of the discipline bv the appropriate authority" (emphasis added). The appropriate authority for administering discipline in this case was the city council, pursuant to § 7-33-4124, MCA. Thus, the section of Livingston's policy and procedures manual which vests the city manager with the power to discharge firefighters conflicts 7 with § 13.3 of the collective bargaining agreement. Therefore, in accordance with § 5.1 of the collective bargaining agreement, Phillips' union did not adopt Livingston's policy and procedures manual where employees. it deals with discipline and discharge of city We hold that the city of Livingston's termination hearing procedures do not validly supersedes those procedures established by the state legislature for the termination of firefighters. II Is Phillips entitled to the relief provided by a writ of mandamus? A district court's denial of a writ of mandamus is a matter of legal interpretation; we review district interpretations as to whether they are correct. courts' Rocky legal Mountain Timberlands, Inc. v. Lund (Mont. 1994), 877 P.2d 1018, 1020-21, 51 St.Rep. 653, 654: citing Steer, Inc. v. Dep't of Revenue (1990), 245 Mont. 470, 803 P.2d 601. Section 27-26-102, MCA, provides as follows: (1) A writ of mandamus may be issued by the supreme court or the district court or any judge of the district court to any lower tribunal, corporation, board, or person to compel the performance of an act that the law specially enjoins as a duty resulting from an office, trust, or station or to compel the admission of a party to the use and eniovment of a risht or office to which the party is entitled and from which the party is unlawfully precluded by the lower tribunal, corporation, board, or person. (2) The writ must be issued in all cases in which there is not a plain, speedy, and adequate remedy in the ordinary course of law. [Emphasis added.] We have stated that the writ of mandamus will lie where, in 8 addition to there being ordinary course of law, no plain and adequate remedy in the the party seeking to invoke the writ is entitled to the performance of a clear legal duty against whom the writ is directed. 253 Mont. 296, Galloway v. State ex rel. Neuhausen v. Nachtsheim (1992), 299, 833 P.2d 201, 203; citing State ex rel. City of Great Falls (1984), 211 Mont. 354, 358, 684 P.2d 495, 497. Here, there is no question that a clear legal duty exists. Under § 7-33-4124, MCA, the Livingston city council is directed to conduct a termination hearing at its firefighter's suspension. specifically provided by next meeting following a Since they failed to do so, the relief § 7-33-4124(2), MCA, is Phillips' reinstatement to his former position. "As a general rule, before mandamus will issue to a public officer, board or municipality, a demand for the performance of the act sought to be compelled is required." (1984) I Liebman v. Brunell 212 Mont. 459, 460, 689 P.2d 248; citing State ex rel. School District No. 29, Flathead County v. Cooney (1936), 102 Mont. 521, 59 P.2d 48. Phillips has demanded the Livingston city council to hold a termination hearing since the city manager first presided over Phillips' termination hearing. Thus, he has met the demand requirement. Livingston argues that mandamus is inappropriate because Phillips has not exhausted his avenues of remedy under the grievance agreement. procedure contained in the collective bargaining In support of its position, Livingston cites Lueck v. 9 United Parcel Lueck, we dismissal Service affirmed of a the former discharge claim procedures available with UPS. Lueck did not Further, there body take to remedy duty to a firefighter. Finally, Phillips an a clear was there that a council's to his is have the a 7-33-4124(l), provides not termination suspension, for the District to issue the term Court the that firefighter incorrectly writ is of duty and after MCA, of mandamus. a for legislative mandatory the interpreted mandamus. 10 just to statutory has suspension as hold 7-33-4124(l), clearly such a the of a provides hearing is position. in adequate, remedy MCA, city is for law because the or remedy. denial of Section the 7-33- commission does a firefighter's reinstatement and pay that the suspended. the case speedy clear. following to this and council entitled was the remedy proceeding firefighter the if writ Lueck -* council Phillips' provided 4124(2), MCA, from city plain, process a agreement 5 proper MCA. hold and grievance Here, former 27-2G-102(2), § the employee. failure Section in In retaliatory bargaining for clear hearing for not utilize statutory 7-33-4124(2), does employee's Livingston the termination mandamus 1041. judgment distinguishable application discharged the summary collective is the reinstatement to P.2d 1044-45. Section remedy Phillips' failed however, establishes 851 Service at neither for 2, court ' s union's P.2d case, was hold the his action, nor clearly that in Mont. Parcel he involve provided MCA, United 851 present 258 district because Lueck, The (1993), We and hold erred by failing For the reasons previously stated, we reverse the judgment of the District Cour.t and remand for proceedings consistent with this opinion. / We concur: 11 1 - Justike November 29, 1994 CERTIFICATE OF SERVICE I hereby certify that the following certified order was sent by United States mail, prepaid, to the foIlowing named: William F. Frazier, Jr. SWANDAL, DOUGLASS, FRAZIER & COLE 206 East Callender Livingston, MT 59047 Robert L. Jovick Attorney at Law P. 0. Box 1245 Livingston, MT 59047 Matthew Flanick Attorney at Law 414 East Callender Livingston, MT 59047 ED SMITH CLERK OF THE SUPREME COURT STATE OF MONTANA
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
