Wood v. Butorovich , 220 Mont. 484 ( 1986 )

No. 8 5 - 5 7 0
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
GALE WOOD,
Plaintiff and Appellant,
ROBERT BUTOROVICH, SHERIFF OF BUTTE-
SILVER ROW COUNTY, et al.,
Defendants and Respondents.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable Mark Sullivan, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Leonard J. Haxby, Butte, Montana
For Respondent:
Robert M. McCa.rthy, County Attorney, Butte, Montana
Submitted on Briefs: Jan. 30, 1986
Decided: April 3, 1986
Clerk
Mr. Justice John C. Harrison, delivered. the Opinion of the
Court.
This is an appeal from the decision of the District
Court of the Second Judicial District of the State of Mon-
tana, in and for the County of Silver Bow, involving the
firing of a policeman. Following a hearing before the
Butte-Silver Bow Law Enforcement Commission, appellant filed
a petition in District Court seeking a review of the commis-
sion's order. The District Court, after consideration,
affirmed the order of the Law Enforcement Commission. We
affirm.
The sole issue on appeal is whether the Butte-Silver
Bow Law Enforcement Commission was properly empaneled when,
following a hearing pursuant to § 7-32-4155, MCA, it decided
to discharge the appellant police officer.
Appellant was a police officer of the Butte-Silver Bow
Law Enforcement Department. At the time he was dismissed, he
had served just short of twelve yezrs as a police officer.
On August 11, 1983, appellant was suspended from duty.
Shortly thereafter a complaint was filed against him by the
Sheriff of Butte-Silver Bow asking for his dismissal and
charging him with several offenses, basically of conduct
unbecoming an officer in violation of § 7-32-4155 (1) (b), MCA,
and of Section 1lA of Butte-Silver Bow Ordinance No. 14.
A hearing was held before the Butte-Silver Bow Law
Enforcement Commission on September 27, 1983. Members sit-
ting on the commission were R. C. Lemm, chairman; John Lynch,
secretary; Rev. Robert A. Craver, member; and F. L.
Stradinger, member. On September 28, 1983, all four members
of the Butte-Silver Bow Law Enforcement Commission entered
findings of fact and conclusions of law, terminating appel-
lant and recommending that the Chief Executive of
Butte-Silver Bow carry the termination into effect. On that
same date, the Chief Executive permanently terminated appel-
lant in his employment as a police officer.
The Butte-Silver Bow Law Enforcement Department is con-
trolled by the Metropolitan Police Act. That Act provides
for a three-member commission with each member to hold office
for three years, one member to be appointed annually. The
Butte-Silver Row Ordinance creating its Law Enforcement
Cormnission is Ordinance No. 12. This Ordinance mandates a
Law Enforcement Commission of five members, holding office
for three years each, with at least one member elected
annually at their first meeting in January of each year.
Appellant notes that at the time of his hearing, there
were only four commissioners because one of the commissioners
had moved to Helena and could not act as he was no longer a
resident of Butte-Silver Bow. He then argues that, of the
other four members, R. C. Lemm, who was the acting chairman,
and Rev. Robert A. Craver, were not duly appointed as commis-
sioners at the time of his hearing. Appellant argues there-
fore that of the four members trying the case, two of the
subject members who tried the case and voted for his dismiss-
al were not properly appointed members of the Butte-Silver
Row Law Enforcement Commission and they acted over the
objection of appellant at the hearing.
Respondent argues that Butte-Silver Bow is a local
government with self-governing powers. Pursuant to the
authority given to self-governing entities, Butte-Silver Bow
enacted legislation creating a Law Enforcement Commission
with five members, each serving three years. These terms
were staggered so that each year one or more of the commis-
sioners' terms would be concluded. It is important to note
here that appellant on this appeal does not contest the
authority of Butte-Silver Bow to enact its five-member com-
mission, nor the commission's authority to act. Further,
appellant has not demonstrated in any manner how his substan-
tial rights were prejudiced by a five-member commission
rather than a three-member commission as provided for in
Metropolitan Police Act.
The evidence at the hearing before the commission
consisted of testimony by supervising officers that they
found the appellant in an intoxicated condition at a private
residence, behind which he had concealed his patrol vehicle.
In addition, appellant had failed to report his location to
the dispatch center as required by police regulations.
Following discovery of the appellant, he was allowed to go
home because of his condition, but he returned to duty on his
next regularly assigned shift. Thereafter a complaint was
filed against him which found him guilty of neglect of duty,
misconduct in office, and of conduct unbecoming an officer.
The sole argument of appellant centers around the
validity of the appointment of two members of the
Butte-Silver Bow Law Enforcement Commission, R. C. Lemm and
Rev. Robert Craver. As noted previously, at the time of the
hearing only four members of the five-member commission
participated because one member had moved outside the
Butte-Silver Bow area. Of the other four members, R. C. Lemm
was appointed to the commission on May 17, 1977. He was
properly appointed and confirmed at that time. At the time
of the hearing before the District Court, neither party could
find the documentation to show that R. C. Lemm had been
reappointed to his position, which should have taken place in
1979 and again in 1982. It was agreed, however, that R. C.
Lemm had acted as a commissioner since he was appointed in
1977 in all matters that the commission dealt with during
that period. His present term was due to expire in January
1986.
Rev. Robert A. Craver was appointed commissioner in
1982 to replace an individual whose term was to expire in
1985. Appellant here raises the issue of the validity of
this appointment because the minutes which reflect the con-
firmation of the appointment incorrectly refer to Rev. Craver
as "Reverend Fargher." Rev. Craver, however, was in fact
properly appointed and empaneled at the time of appellant's
hearing.
Appellant argues that, in the absence of any consistent
records showing appropriate appointment of the two commis-
sioners during this period of time, they could not act at the
hearing in this case because they were not properly appoint-
ed. He notes that since there is no record of their appro-
priate and proper appointment, the commission was improperly
appointed and empaneled at the time of his hearing and. any
actions on behalf of the commission were a nullity and were
void. In support of this argument he cites several old
Montana cases: State ex rel. Rusch v. Bd. of County
Commissioners of Yellowstone County (1948), 121 Mont. 162,
191 P.2d 670; State ex rel. Nagle v. Stafford (1934), 97
,
Mont. 275, 34 P.2d 372; and Marcellus v. Wright 1 2 1 . ) 61
Mont. 274, 202 P. 381.
In Rusch, this Court's decision centered upon a now
defunct constitutional prohibition against extending the term
of a public officer. The Court's decision was based on an
interpretation of this provision, which is not now part of
the 1972 Constitution. Stafford also involved interpretation
of a constitutional mandate concerning the appointment of the
office of the Commissioner of Agriculture. In that case the
Court held that the present commissioner could "hold over"
until his successor was appointed. Finally, in Marcellus,
the Court considered a specific constitutional provision
regarding the term of office of a district judge who had left
office and then later filed an opinion. Each of these
decisions relied upon by appellant concerned specific
constitutional provisions that are no longer in the
Constitution of the State of Montana since our adoption of
the 1972 Constitution.
Respondents' position concerning R. C. Lemm is that he
was properly reappointed and acting in his official capacity
at the time of the hearing. It was uncontested that Lemm was
still acting in the position to which he had been properly
appointed in 1977 and that he had acted in this capacity
through the entire period of time since his original appoint-
ment. In addition, respondents note that appellant made no
objection to R. C. Lemm sitting in appellant's case at the
time of the commission hearing. Nor was any showing made
that appellant's substantial rights had been prejudiced (as
required by $ 2-4-704(2), MCA) by having R. C. Lemm sitting
as a de facto commissioner in this case. The trial judge so
found .
The Kansas Supreme Court addressed a similar situation
concerning de facto public officers where technical objec-
tions as to the legal status of an officer were raised and
the officer was found to be a de facto officer of the county
or city. In State v. Miller (Kan. 1977), 5 6 5 P . 2 d 228, a
coroner had been apparently appointed to the office in 1967
and had taken the oath of office at that time. His last
appointment was in January 1969 for a term of four years.
There, the court held. he had a color of right or title to the
office at the time he made an autopsy by reason of his origi-
nal appointment although his term had expired. The Court
found that he had acted as a coroner since 1967; that he had
qualifications for the office of coroner; and that he was in
possession of the office and exercising the duties thereof.
In addition, the general public and public authorities be-
lieved him to be the coroner and relied upon him as such
through his term even though his term had expired. The
Kansas court found that these are the classic characteristics
of a de facto officer, noting:
A person who assumes and performs the
duties of a public office under color of
authority and is recognized a.nd accepted
as a rightful holder of the office by all
who deal with him is a de facto officer,
even though there may be defects in the
manner of his appointment, or he was not
eligible for the office, or failed to
conform to some condition precedent to
assuming the office.
Miller, 565 P.2d at 235. See Olathe Hospital Foundation,
Inc. v. Extendicare, Inc. (Kan. 1975), 539 P.2d 1. Also see
Will v. City of Herington (Kan. 1968), 443 P.2d 667; State v.
Roberts (Kan. 19301, 288 P. 761.
We agree with the Kansas court that a de facto offi-
cer's acts are valid insofar as they involve the interest of
the public and a third person.
Here, R. C. Lemm, at the least, was acting as a de
facto commissioner at the time of the hearing and his actions
were valid. We agree with the District Court in its Conclu-
sion of Law No. 6 which held that:
Even assuming that it was improper for
Robert Lemm to sit on the Plaintiff's
hearing, that would not prejudice the
substantial rights of the Plaintiff
because the other three ( 3 ) members who
sat on the hearing were properly
appointed and impaneled, and as a
majority of the Commission the three (3)
of them voted to terminate the
Plaintiff's employment.
As to the objection of appellant to the appointment of
Rev. Robert A. Craver, we find no merit. As previously
pointed out, the minutes of the meeting of the Butte-Silver
Bow Law Enforcement Commission incorrectly reflect that the
"Reverend Fargher" was appointed to fill the vacancy left by
the resignation of Ron Ashabrenner. Rev. Fargher had, in
fact, previously served on the Law Enforcement Commission,
and common sense dictates that is why his name was inadver-
tently substituted for that of Rev. Robert A. Craver. There
was submitted at the hearing a letter from the Chief Execu-
tive of Butte-Silver Bow to the commissioners requesting the
appointment of Rev. Robert A. Craver to fill the vacancy
vacated by Ron Ashabrenner, whose term began February 1,
1982, and expired in 1985. This error was pointed out to the
District Court. The court found that Rev. Craver was
properly appointed and we agree.
The decision of the District Court is affirmed.
We Concur: