Butler v. Local 2033 American Federation of State, County and Municipal Emp.

• Decision Date: 06 February 1980
• Docket Number: No. 14883,BUTTE-SILVER,14883
• Citation: 606 P.2d 141,186 Mont. 28
• Parties: Donald E. BUTLER, Donald W. Davis et al., Intervening Plaintiffs and Appellants, v. LOCAL 2033 AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, et al., Petitioner and Counter-Respondent and Respondent, v.BOW et al., Respondents, Counter-Petitioners and Respondents.
• Court: Montana Supreme Court

Page 141

606 P.2d 141

186 Mont. 28

Donald E. BUTLER, Donald W. Davis et al., Intervening Plaintiffs and Appellants, v. LOCAL 2033 AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, et al., Petitioner and Counter-Respondent and Respondent, v. BUTTE-SILVER BOW et al., Respondents, Counter-Petitioners

and Respondents.

No. 14883.

Supreme Court of Montana.

Submitted Jan. 14, 1980.

Decided Feb. 6, 1980.

Knight, Dahood, Mackay & McLean, Anaconda, Bernard J. Everett, argued, Anaconda, for appellants.

M. F. Hennessey, argued, Butte, for petitioner and counter-respondent and respondent.

John G. Winston, County Atty., argued, Butte, Robert M. McCarthy, Deputy County Atty., argued, Butte, for respondents, counter-petitioners and respondents.

DALY, Justice.

This is an appeal from a summary judgment in favor of respondents Butte-Silver Bow and the "Union" issued by the District Court of the Second Judicial District, sitting in the County of Silver Bow.

On February 22, 1978, respondent Local 2033 American Federation of State, County and Municipal Employees, AFL-CIO (Union), filed a petition and complaint for declaratory judgment in the District Court of the Second Judicial District, in and for the County of Silver Bow, State of Montana. This action was brought against respondents Butte-Silver Bow, State of Montana, and sought a declaratory judgment interpreting certain provisions of the newly formed consolidated City and County government of Butte-Silver Bow, Montana, dealing with promotions in the Sheriffs Department prior to or during consolidation.

On May 17, 1978, Butte-Silver Bow filed its answer to the petition brought by the Union along with a counter-complaint.

On January 17, 1979, the Union and Butte-Silver Bow stipulated and agreed to declare null and void promotion to higher ranks within the Silver Bow County Sheriffs Department received by intervening plaintiffs/appellants, Donald E. Butler, Donald W. Davis, Fred E. Guay, Herbert R. Miller, Raymond W. Russell and Gale E. Wood ("Sheriff's Officers").

The District Court entered a proposed order based upon this stipulation declaring the promotions received by the Sheriff's Officers null and void and further ordering the Sheriff's Officers among others to appear before the court to show cause why the order should not become final.

The Sheriff's Officers moved the court pursuant to Rule 24(a)(2) M.R.Civ.P. to intervene in the action; this motion was granted and a complaint in intervention was filed.

On April 19, 1979, all the parties moved for summary judgment. The District Court issued its findings of fact and conclusions of law and order on June 11, 1979, declaring the Sheriff's Officers' promotions null and void. Appellant officers bring this appeal.

On April 12, 1977, Sheriff George Patrick Hagel, the duly elected, qualified and acting Sheriff of Silver Bow County promoted the six officers named herein to higher ranks within that Department. The promotions they received were either from deputy to sergeant or sergeant to lieutenant of the Silver Bow County Sheriffs Department.

On May 2, 1977, the City of Butte and County of Silver Bow consolidated their local governments into one unified government under one charter. The new government was to have the status of a county and incorporated municipality and was named Butte-Silver Bow, Montana. The charter had been adopted by the voters on November 2, 1976 and by its terms was not to become effective until May 2, 1977.

Section 5.05 of the Butte-Silver Bow Charter set forth the provisions governing the organization of the law enforcement department for the new government. The new law enforcement department was to be formed by combining the former City of Butte Police Department and the Sheriffs Department of Silver Bow County under the Sheriff of Butte-Silver Bow. Section 5.05(f) provides as follows:

"The sheriff shall so organize the new department as to recognize the Existing ranks attained by members of The existing police and sheriff departments." (Emphasis added.)

Following their promotions the six appellant Sheriff's Officers assumed the duties of their new ranks under the Silver Bow County Sheriffs Department. On May 2, 1977, the effective date of the Butte-Silver Bow Charter, the new law enforcement department was organized and the six appellant Sheriff's Officers retained their ranks pursuant to section 5.05(f) of the new charter.

On May 4, 1977, the Commissioners of the newly formed government of Butte-Silver Bow met and passed Emergency Ordinance No. 2 to govern the method of selection, examination and confirmation of all appointments and promotions within the new law enforcement agency. Section 15 of the Emergency Ordinance provided it would become effective upon passage and approval. It was approved by Chief Executive Mario Micone on May 10, 1977.

The District Court declared the promotion received by the six appellant Sheriff's Officers null and void.

The following issues have been presented to this Court for review:

1. Did the District Court err in ruling that under Section 5.05(f) of the Butte-Silver Bow Charter, the promotions of appellants on April 11, 1977 were null and void?

2. Did the District Court err in ruling that Sheriff Hagel did not have authority to promote the appellant Sheriff's Officers on April 11, 1977?

The first step in resolving this case is to determine the date the charter became operative. Then it becomes necessary to determine what effect this operative date has on the language in section 5.05 of the charter.

Section 10.02 of the Butte-Silver Bow Charter provides that "(t)his charter shall become effective on May 2, 1977." This language is straightforward and leaves little room for doubt as to its meaning.

Section 5.05 deals with the Chief Law Enforcement Officer and provides:

"The Sheriff shall be the chief law enforcement officer of the government and shall have the duties and powers provided by this charter, law, ordinance or resolution subject to the following provisions:

"(a) The Existing police department of the City of Butte and The sheriff's department of Silver Bow shall be combined into one department under the control and supervision of the sheriff. The present chief of police of the City of Butte shall be the undersheriff and shall be paid at least the same salary received at the time of the adoption of this charter.

"(b) The Present members of the City of Butte police department and the deputy sheriffs of Silver Bow County shall be members of the new department and have the same tenure rights provided by state law.

"(c) The Present members of both Existing departments shall receive the same compensation, including base pay and longevity allowances, as they now receive until such time as the council of commissioners adopts a salary schedule for members of the new department.

"(d) All appointments to the new department shall be made pursuant to the Metropolitan Police Law of the state, (Chapter 18, Title 11, Revised Codes of Montana, 1947) except:

"(1) That the sheriff shall have the powers therein given to the mayor in a mayor-council form of municipal government, the council of commissioners shall have the powers of the city council, and the clerk and recorder shall have the powers of a city clerk, and;

"(2) members of the department may be candidates for any elected office and may participate in political activities notwithstanding the provisions of the Metropolitan Police Law of the state.

"(e) The council of commissioners shall establish by ordinance a Law Enforcement Commission consisting of five (5) members which shall have the powers and perform the duties required of police commissions by the Metropolitan Police Law and such other duties as the ordinance may provide.

"(f) The sheriff shall so organize the new department as to recognize the Existing ranks attained by members of the existing police and sheriff departments.

"(g) All pension rights presently provided by state law to members of the Existing City of Butte police department and the members of the sheriff's department of the County of Silver Bow shall continue in full force and effect, provided that the council of commissioners may be ordinance increase the pension benefits, and may in the future provide for a uniform pension system if the same is permitted by state law.

"(h) When a vacancy occurs in the position of the undersheriff after the adoption of this charter, the sheriff may fill such vacancy by appointing a person, qualified by training and experience, to fill such position without the approval of the police commission or council of commissioners but such appointee shall acquire no tenure rights except those established tenure rights he has at the time of his appointment. If such appointed undersheriff shall have been a member of the department prior to his appointment and not continued in such position by the sheriff he shall revert to the former rank he held within the...