Phillips v. City of Livingston

• Decision Date: 29 November 1994
• Docket Number: No. 94-084,94-084
• Citation: 885 P.2d 528,268 Mont. 156
• Parties: In the Matter of Howard Larry PHILLIPS, Petitioner and Appellant, v. CITY 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.
• Court: Montana Supreme Court

Page 528

885 P.2d 528

268 Mont. 156

In the Matter of Howard Larry PHILLIPS, Petitioner and Appellant, v. CITY 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.

No. 94-084.

Supreme Court of Montana.

Submitted on Briefs Sept. 15, 1994.

Decided Nov. 29, 1994.

William F. Frazier, Jr., Swandal, Douglass, Frazier & Cole, Livingston, for appellant.

Robert L. Jovick, Livingston, for respondent.

Michael J. San Souci, Bozeman, for amicus curiae, Montana State Council of Professional Firefighters, Intern. Ass'n of Firefighters and Local No. 630, IAFF.

HARRISON, Justice.

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 16, 1989. On October 6, 1993, 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 discussed. These allegations were that Phillips had misappropriated a flashlight and carabiners.

Phillips objected to having the hearing on such short notice 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. The notice 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 § 7-33-4124, MCA, which requires firefighters' termination hearings to be held before the city council or commission. Griffin overruled Phillips' objection and, on October 18, 1993, Griffin sent Phillips his formal notice of termination. 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 reinstatement as a firefighter. On January 12, 1994, the court issued its order denying Phillips' petition. 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 charges must be presented to the next meeting of the council or commission and a hearing 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 meeting 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 v. 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. Billings Firefighters, 694 P.2d at 1337. We examined § 7-1-114(f), MCA, which states that local government powers are limited by any law requiring local government to carry out a function or provide any service. Billings Firefighters, 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 § 7-33-4101, MCA. Billings Firefighters, 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. Billings Firefighters, 694 P.2d 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 § 7-1-114, MCA, which states in relevant part:

(1) A local government with self-government powers is subject to the following provisions:

. . . . .

(f) Any law directing or requiring a local government or any officer or employee of a local government to carry out any function or provide any service....

(2) These provisions are a prohibition on the self-government 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 suspension of a municipal firefighter. The council failed to perform this function. 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 those termination procedures were included in Livingston's collective bargaining agreement with the union. In support of its position, Livingston cites § 39-31-306(3), MCA, which states in part: "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...."

Livingston also cites a Kansas case in support of its argument. In Gorham v. City of Kansas City (1979), 225 Kan. 369, 590 P.2d 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 a collective bargaining agreement with a grievance procedure. We note that Phillips was provided with notice of the charges against him before the city manager conducted the termination hearing. However, the issue in this case does not involve the denial of constitutional due process. 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 today. A 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. Section 1-2-101, MCA, states in relevant part that "[w]here there are several provisions or particulars, such construction is, if possible, to be adopted as will give effect...