Rooney v. City of Cut Bank

• Decision Date: 10 July 2012
• Docket Number: No. DA 11–0344.,DA 11–0344.
• Citation: 365 Mont. 375,286 P.3d 241,2012 MT 149
• Parties: Arthur F. ROONEY, Plaintiff, Appellant, and Cross–Appellee, v. CITY OF CUT BANK, Defendant, Appellee, and Cross–Appellant.
• Court: Montana Supreme Court

365 Mont. 375
286 P.3d 241

2012 MT 149

Arthur F. ROONEY, Plaintiff, Appellant, and Cross–Appellee,
v.
CITY OF CUT BANK, Defendant, Appellee, and Cross–Appellant.

No. DA 11–0344.

Supreme Court of Montana.

Submitted on Briefs April 5, 2012.
Decided July 10, 2012.

[286 P.3d 242]

For Appellant: Linda Deola; Morrison, Motl & Sherwood, PLLP; Helena, Montana.

For Appellee: Kevin C. Meek, Jordan Y. Crosby; Ugrin, Alexander, Zadick & Higgins, P.C.; Great Falls, Montana.

Justice BETH BAKER delivered the Opinion of the Court.

¶ 1 The Ninth Judicial District Court, Glacier County, entered judgment for the City of Cut Bank on Arthur F. Rooney's complaint that he was wrongfully terminated from employment as a City police officer. Rooney appeals the court's decision that his termination did not violate Montana's Wrongful Discharge From Employment Act (WDEA). The City cross-appeals the District Court's earlier interlocutory order denying the City's motion to dismiss the WDEA claim. Because we reverse the interlocutory ruling, we do not reach the issues raised by Rooney, but affirm the District Court's judgment in favor of the City on this alternative ground.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 2 Rooney worked for eight years with the City's police department, where he attained the rank of captain and senior officer. In the early morning hours of December 1, 2007, two junior officers observed Rooney apparently sleeping in his patrol car while on duty. They notified the City's Chief of Police of what they had observed. After investigating, the Chief recommended to the City's Mayor that Rooney's employment be terminated. The Mayor terminated Rooney's employment.

¶ 3 Rooney then appealed to the City's Police Commission pursuant to § 7–32–4155, MCA. The Police Commission held an evidentiary hearing at which Rooney represented himself. The Commission took judicial notice that sleeping on duty is considered neglect of duty under the Cut Bank Police Department Rules of Conduct and that violations of Cut Bank Police Department policies and procedures, with which officers are required to be familiar, may result in disciplinary action up to and including termination of employment.

¶ 4 The two junior officers who reported observing Rooney sleeping testified that they saw him sitting in his patrol car parked on a city street, with his head laid back against the headrest, his eyes shut, and his mouth partly open. They circled around the block and proceeded back to Rooney's location, sounding their patrol car's air horn as they approached. They then pulled up adjacent to Rooney's car, where he appeared still to be sleeping. They did not stop. Several minutes later, they heard Rooney checking in with dispatch on his police radio and saying he was going home.

¶ 5 Cut Bank Chief of Police Jason Abbott testified that he conducted an internal investigation of the two junior officers' report. During that investigation, Rooney admitted to Abbott that he may have dozed off a little, as a result of taking sinus medication that night and also running the patrol car's heater.

[286 P.3d 243]

Abbott testified that Rooney had not previously reported being sick or any problems with the police car or its heater. Another deputy told Abbott he had observed Rooney dozing on duty the evening after the two junior officers observed him. Prior to these incidents, Rooney had seven unrelated disciplinary actions for deficiencies such as not responding to calls and spending time at home while on assigned duty shifts.

¶ 6 Both Chief Abbott and the Mayor of the City of Cut Bank testified that termination was an appropriate disciplinary action for Rooney's sleeping on the job, taking into consideration Rooney's personnel history and his supervisory role in a police department in which the majority of the officers were rookies. Abbott testified that, in light of those factors, he did not view demotion or suspension as viable disciplinary alternatives. Rooney's entire personnel file, which also included twelve letters of commendation, was introduced into evidence.

¶ 7 Two Bell Motor Company employees testified on Rooney's behalf. They told the Police Commission that, on January 11, 2008, they serviced the patrol car Rooney had used before he was terminated and discovered an exhaust leak in it. Their last prior servicing of the vehicle had been in November of 2007. Both Bell Motor Company employees testified they could not say whether the leak would have resulted in exhaust fumes in the car.

¶ 8 Rooney also presented testimony by Cut Bank Police Officer Tim Seifert, who had used Rooney's patrol car after Rooney was terminated. Seifert testified there were several mornings when he had trouble staying awake while using the car, during which he could smell a slight odor of exhaust.

¶ 9 The Police Commission concluded substantial evidence supported the Mayor's decision to terminate Rooney's employment. In its written findings, conclusions, and order, the Police Commission stated it would have preferred a more incremental approach to discipline of Rooney, such as a suspension from duty, education or counseling, or an improvement plan. However, the Police Commission concluded there was substantial evidence that Rooney committed acts that constituted neglect of duty as a Cut Bank police officer and that substantial evidence had been provided to support the appropriateness of the disciplinary action taken against Rooney.

¶ 10 Rooney then filed the present, two-count action in the District Court. He asserted a claim of wrongful discharge under the WDEA and, in the alternative, sought judicial review of the Police Commission's decision by the District Court as allowed under § 7–32–4164(2), MCA. The judicial review claim proceeded first, following the filing of Rooney's opening brief in support of his appeal. The City filed a brief in which it argued (1) substantial evidence supported the Police Commission's findings and conclusions, which should therefore be affirmed, and (2) Rooney's discharge was statutorily exempt from the WDEA under § 39–2–912, MCA, because of the availability of the statutory police commission remedy. Rooney filed a response. The District...