Miske v. DNRC ( 2023 )

12/12/2023
DA 23-0231
Case Number: DA 23-0231
IN THE SUPREME COURT OF THE STATE OF MONTANA
2023 MT 241CARYN MISKE,
Plaintiff and Appellant,
v.
MONTANA DEPARTMENT OF NATURAL
RESOURCES AND CONSERVATION,
Defendant and Appellee.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis And Clark, Cause No. CDV 2019-216
Honorable Kathy Seeley, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Anne E. Sherwood, Frederick F. Sherwood, Morrison, Sherwood,
Wilson & Deola, PLLP, Helena, Montana
For Appellee:
Aislinn W. Brown, Agency Legal Services Bureau, Helena, Montana
Submitted on Briefs: September 13, 2023
Decided: December 12, 2023
Filed:
Vir--
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Caryn Miske appeals an April 21, 2022 District Court order granting the Department
of Natural Resources and Conservation (DNRC or Department) summary judgment on all
of Miske’s claims arising from her termination by DNRC from the Flathead Basin
Commission. We affirm.
¶2 We restate the issues on appeal as follows:
Issue One: Did the District Court err in granting summary judgment to DNRC on
Miske’s claim of intentional interference with contractual relations?
Issue Two: Did the District Court err in granting summary judgment to DNRC on
Miske’s discrimination claims?
Issue Three: Did the District Court err in granting summary judgment to DNRC on
Miske’s wrongful discharge claims?
FACTUAL AND PROCEDURAL BACKGROUND
¶3 The 1983 Legislature established the Flathead Basin Commission (Commission) to
“protect the existing high quality of the Flathead Lake aquatic environment; the waters that
flow into, out of, or are tributary to the lake; and the natural resources and environment of
the Flathead basin.” Section 75-7-302, MCA.
¶4 According to the job description for its executive director, the Commission “works
to accomplish its statutory mandate in a consensus-building manner, stressing education,
cooperation, broadly based community involvement, partnerships with agencies and
nonprofit groups, and the voluntary participation of Basin residents.”
¶5 The Commission has statutory authority to “make recommendations to the
legislature and the governor and to federal, tribal, provincial, and local agencies for
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maintenance and enhancement of the quality of natural resources of the Flathead basin,”
and to “receive and expend donations, gifts, grants, and other money necessary to fulfill its
duties.” Section 75-7-305(1), (2), MCA.
¶6 The Commission is attached to DNRC for “administrative purposes only,” meaning
DNRC has the authority to “direct and supervise the budgeting,” and to “transfer
employees between positions, remove persons appointed to positions, and change the
duties, titles, and compensation of employees” within the Commission. Sections
2-15-121(2)(a), -112(2)(a), MCA. The Commission has independent authority when
acting in “quasi-judicial, quasi-legislative, licensing, and policymaking roles.” Section
2-15-121(1)(a)(i), MCA.
¶7 Caryn Miske was hired as Executive Director of the Commission in 2006 by its own
hiring committee. The position was advertised by DNRC, as a DNRC position, and the
hiring process proceeded through DNRC channels; this included her “onboarding,” during
which Miske signed paperwork acknowledging she was a DNRC employee and agreeing
to DNRC public information policies and rules of conduct. Miske’s job description was
approved by DNRC Director Mary Sexton.
¶8 There was never a clear delineation of primary responsibility for staffing decisions
between DNRC and the Commission. In 2007, DNRC’s Chief Legal Counsel sought to
clarify the scope of the Commission’s attachment to DNRC in a memorandum to Sexton,
which provided: “Commissions attached for administrative purposes cannot hire their own
personnel unless otherwise specifically provided for by statute. Where commissions are
allowed to hire their own personnel, State of Montana hiring procedures must be followed.”
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A signed 2008 Memorandum of Understanding (MOU) provided the Commission with
supervision over the Executive Director, but there was no clear language in the MOU
regarding responsibility for staffing decisions.
¶9 DNRC and the Commission revisited the MOU in 2009 in an attempt to clarify
responsibility for staffing decisions. A revised MOU was never signed because the parties
disagreed about language specific to staffing. DNRC determined the language proposed
by Miske and the Commission departed significantly from the Department’s interpretation
of statute, and Sexton instructed staff that the Department would proceed under DNRC’s
unsigned draft MOU in all dealings with the Commission.
¶10 Miske’s duties included financial administration, overseeing expenditures and
meeting reporting timelines for the Commission’s various funding sources, and
coordinating and facilitating the Commission’s extensive program work, including
monitoring legislation at the Montana Legislature. Every aspect of Miske’s job description
was intertwined in some respect with DNRC. She received extensive support from DNRC
staff with financial administration, and she had a clear responsibility to coordinate with
and report to DNRC on the impacts of proposed legislation.
¶11 During her tenure, Miske established a record of poor financial management and a
reputation for contributing to a “mutual distrust” between the Commission and DNRC,
particularly over differences of opinion regarding the aquatic invasive species program.
¶12 Miske was formally reprimanded by DNRC in 2011 for failures to meet financial
and grant reporting requirements, mismanagement of contracts and grant funding, and
failures to timely submit statements for her state-issued credit card. Although she
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responded positively to that warning at first, Miske’s supervisors continued to remark in
performance evaluations about issues with leadership and coordination with DNRC on the
aquatic invasive species program.
¶13 Issues resulting from Miske’s financial mismanagement resurfaced in 2014 and
persisted through the remainder of her employment. Emails show that there was extensive
back-and-forth between DNRC financial administrators, Miske’s direct reports, and Miske
regarding deficiencies with reporting obligations and repeated failures to provide DNRC
staff with state-issued credit card statements.
¶14 On December 5, 2017, Miske received notice of a personnel investigation and was
placed on administrative leave. Miske then received a Notice of Results of Personnel
Investigation and Opportunity to Respond on January 10, 2018.
¶15 The investigation found that Miske “demonstrated a consistent unwillingness to
comply with agency protocol regarding financial management, reporting, and
communication.” Further, Miske failed to comply with DNRC cash-handling policies, and
“on at least two occasions,” Miske solicited donations for the Commission but diverted the
funds to accounts that were not administered by DNRC. The “crux” of DNRC’s concerns
was that Miske was “unwilling and consistently resistant to conducting [her]self as an
employee of the department.”
¶16 Miske disputed the results of the investigation, but she was ultimately terminated
by DNRC on February 26, 2018, after finding Miske’s responses “unpersuasive.”
¶17 On February 26, 2020, Miske filed an eight-count amended complaint alleging
claims arising from her termination by DNRC. On August 12, 2020, the First Judicial
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District Court, Lewis and Clark County, dismissed three counts. On April 21, 2022, the
District Court granted DNRC summary judgment on all of Miske’s remaining claims.
Miske appeals the District Court’s grant of summary judgment.
STANDARD OF REVIEW
¶18 We review a district court’s summary judgment decision de novo, for conformity
with M. R. Civ. P. 56. MEA-MFT v. McCulloch, 2012 MT 211, ¶ 10, 366 Mont. 266, 291
P.3d 1075. A district court’s interpretation of statutory language is also reviewed de novo,
as a question of law. McCulloch, ¶ 10.
DISCUSSION
¶19 The threshold issue is whether Miske was a DNRC or Commission employee. The
Commission is administratively attached to DNRC, therefore their roles in the
administration of the Commission are fundamentally intertwined by statute and the
Montana Constitution. We thus approach this discussion with the requisite historical
backdrop.
Executive Reorganization
¶20 Prior to the 1970s, accountability in Montana’s Executive Branch was spread across
188 different state agencies. Exec. Reorganization: Rep. to the Mont. Legis. Assemb.,
12-1970, Mont. Comm’n on Exec. Reorganization at 41 (1970) [hereinafter Exec.
Reorganization Comm’n Rep.]. Forrest Anderson campaigned for governor in 1968 on a
platform to bring agency functions into a smaller orbit so the Executive Branch would
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operate more efficiently.1 Following Anderson’s election, the Legislature established the
Montana Commission on Executive Reorganization. 1969 Mont. Laws ch. 293. The
Commission was tasked with assessing the then-existing structure of the Executive, and it
spent the following two years developing, then implementing its 300-page report at the
Montana Legislature. See generally Exec. Reorganization Comm’n Rep. The Montana
Legislature passed the Executive Reorganization Act in 1971. 1971 Mont. Laws ch. 272.
¶21 Shortly after the passage of the Executive Reorganization Act, delegates to the
Constitutional Convention of 1972 met to enshrine Montana’s collective values in law. A
central objective of the delegates was to re-establish the “fundamental concept of checks
and balances by separate branches of government.” Bullock v. Fox, 2019 MT 50, ¶ 18, 395
Mont. 35, 435 P.3d 1187 (quoting Montana Constitutional Convention, Committee
Proposals, February 17, 1972, Vol. I, pp. 449-50). The Constitutional Convention’s
emphasis on executive reorganization reflected the Commission’s goals, and in 1972, the
newly ratified Constitution thus provided: “[A]ll [agencies] . . . and their respective
functions, powers, and duties, shall be allocated by law among not more than 20 principal
departments so as to provide an orderly arrangement in the administrative organization of
state government. . . .” Mont. Const., art. VI, § 7.
¶22 As a result of executive reorganization and the 1972 Constitution, 16 departments,
including DNRC, are established under § 2-15-104(1)(n), MCA. Each has a “department
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“[Anderson] proposed that the 100 state boards, bureaus, and commissions made it
virtually impossible for a governor and legislature to be effective. His resounding slogan
became ‘Twenty is Plenty!’” Ted Schwinden, Political Evolution – Political Revolution,
43 Pub. Land & Resources L. Rev. 27, 30 (2020).
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head” with the authority to “transfer employees between positions, remove persons
appointed to positions, and change the duties, titles, and compensation of employees within
the department.” Section 2-15-112(2)(a), MCA. Although dozens of executive agencies
were eliminated altogether during executive reorganization, many were attached to the
Departments so the essential functions of more than 100 agencies could be subsumed.
See § 2-15-121(1)(a)(i), MCA.
¶23 The Commission was a model for the adaptability of the Executive Branch. The
Legislature recognized an unaddressed need for regional water quality management in the
Flathead basin, and in 1983 it established the Commission accordingly. 1983 Mont. Laws
ch. 424, § 4. The Commission was originally attached to the Office of the Governor “for
administrative purposes only,” and its Executive Director was a member of the Governor’s
staff. Section 2-15-213(4), (2)(a), MCA (1983) (recodified at § 2-15-3330, MCA). At
first, the Commission’s Executive Director was thus appointed by the governor. The 1999
Legislature removed the requirement that the Executive Director be a member of the
Governor’s staff and provided the Commission statutory authority to hire “sufficient and
appropriate” staff. 1999 Mont. Laws ch. 243, § 2. The 2003 Legislature then transferred
the Commission’s attachment from the Governor’s Office to DNRC. 2003 Mont. Laws ch.
537, § 1.
DNRC and the Commission
¶24 Miske’s claims rely on an undercurrent premise that DNRC does not have statutory
authority to make staffing decisions on behalf of the Commission. DNRC counters that its
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statutory authority is clear. We address this dispute first, then turn to Miske’s specific
claims below.
¶25 We interpret a statute first by looking to its plain language. Mont. Sports Shooting
Ass’n v. State, 2008 MT 190, ¶ 11, 344 Mont. 1, 185 P.3d 1003. We will not insert
language into a statute that was omitted or omit that which was inserted. Section 1-2-101,
MCA; Clark Fork Coal. v. Tubbs, 2016 MT 229, ¶ 20, 384 Mont. 503, 380 P.3d 771. When
a statute is unclear or ambiguous, we then strive to implement the Legislature’s objectives.
Wangerin v. State, 2022 MT 236, ¶ 17, 411 Mont. 1, 521 P.3d 36. When ascertaining the
Legislature’s intent, we presume the Legislature does not pass meaningless legislation, and
we harmonize statutes relating to the same subject to give as much effect as possible to
each. Oster v. Valley Cnty., 2006 MT 180, ¶ 17, 333 Mont. 76, 140 P.3d 1079.
¶26 Miske argues that the Commission’s independent authority to “hire staff for the
purpose of carrying out its duties,” under § 2-15-3332(1), MCA, clearly implies a
legislative intent to prohibit DNRC from terminating Commission staff. As the District
Court appropriately noted, however, other statutes give DNRC authority to “provide staff
for the agency,” § 2-15-121(2)(d), MCA, and to “remove persons appointed to positions.”
Section 2-15-112(2)(a), MCA. Even though § 2-15-121(2)(d), MCA, separately provides
that attached agencies like the Commission “may not hire personnel” “[u]nless otherwise
indicated in this chapter,” this provision does not somehow operate inversely to restrict
DNRC’s authority under §§ 2-15-112(2)(a) and -121(2)(d), MCA, as Miske contends. We
will not construe the statute to give effect to Miske’s interpretation when the plain language
does not support her conclusions. Clark Fork Coal., ¶ 20.
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¶27 While the Legislature may limit DNRC’s authority over staffing within attached
agencies when it finds it prudent, it has done so expressly. Like the Commission, the
implementing provisions for the Board of Oil and Gas Conservation provide that it is
attached to DNRC “for administrative purposes only.” Section 2-15-3303(3), MCA. They
also provide, however, that “the board may hire its own personnel, and 2-15-121(2)(d) does
not apply.” Section 2-15-3303(3), MCA (emphasis added). Read together, the omission
of similar language restricting DNRC’s authority over Commission personnel decisions
indicates the Legislature did not intend to limit it at all. Otherwise, the statutory restriction
of DNRC’s role in Board of Oil and Gas Conservation personnel decisions would be
meaningless. Section 2-15-3303(3), MCA; see Oster, ¶ 17.
¶28 Harmonizing the statutes in this way comports with the clear purpose of
administrative attachment, which was to focus administrative power in—rather than
expand it from the Departments. DNRC’s authority to make personnel decisions at the
Commission does not restrict the Commission’s independent power to exercise
“quasi-judicial, quasi-legislative, licensing, and policymaking functions.” Section
2-15-121(1)(a)(i), MCA.
¶29 The plain language and structure of the statutes governing the Commission, and
agency attachment generally, indicate the Legislature intended the Commission and DNRC
to have concurrent authority over Commission staffing decisions. The District Court
correctly ruled that Miske was a DNRC employee. We thus approach the issues on appeal
accordingly.
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¶30 Issue One: Did the District Court err in granting summary judgment to DNRC on
Miske’s claim of intentional interference with contractual relations?
¶31 DNRC is not liable to Miske for the intentional tort of interference with contractual
relations because DNRC was not a stranger to her relationship with the Commission.
¶32 Intentional interference with contractual relationship occurs when a “stranger to the
contractual or business relationship at issue” intentionally and improperly “interfere[s]
with the performance of a contract . . . between another and a third person, by preventing
the other from performing the contract or causing his performance to be more expensive
and burdensome.” Wagner v. MSE Tech. Appl. Inc., 2016 MT 215, ¶ 19, 384 Mont. 436,
383 P.3d 727 (citation omitted).
¶33 Miske contends that even if DNRC and the Commission shared authority in
Commission staffing decisions, the Commission’s “ultimate authority over her position”
made DNRC a “stranger” to her employment with the Commission. Although she
illustrates the comprehensive role the Commission played in her employment, Miske does
not articulate a cogent argument illustrating how DNRC was a “stranger.” A Commission
hiring committee hired Miske, but the process certainly was not independent of DNRC
oversight. On the contrary—Miske’s job description was signed and approved by the
Department head, Miske agreed to and signed onboarding paperwork indicating she was a
DNRC employee, and ultimately, DNRC had administrative oversight over most of her
work. Regardless of the Commission’s authority, Miske was clearly a DNRC employee,
and DNRC’s involvement in her work and relationship with the Commission was its
prerogative.
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¶34 The District Court did not err in granting summary judgment to DNRC on this claim
because DNRC was not a stranger to Miske’s relationship with the Commission.
¶35 Issue Two: Did the District Court err in granting summary judgment to DNRC on
Miske’s discrimination claims?
¶36 Further, Miske’s lobbying efforts on behalf of the Commission were not protected
under Montana’s Human Rights Act or the Governmental Code of Fair Practices because
she was acting in her official capacity as a DNRC employee when she lobbied on behalf of
the Commission.
¶37 The Montana Human Rights Act (MHRA) provides “[i]t is unlawful discriminatory
practice for the state or any of its political subdivisions . . . to refuse employment to a
person . . . because of that person’s political beliefs.” Further, the Governmental Code of
Fair Practices requires that “State and local government officials and supervisory personnel
shall . . . evaluate . . . personnel on the basis of merit and qualifications without regard
to . . . political ideas.” Section 49-3-201(1), MCA. However, “when a public employee
speaks out not as a citizen upon matters of public concern, but instead as an employee upon
matters of only personal interest, the courts will not review the wisdom of a personnel
decision taken by a public agency.” Taliaferro v. State, 235 Mont. 23, 29, 764 P.2d 860,
864 (1988) (citing Connick v. Myers, 461 U.S. 138, 103 S. Ct. 1684 (1983)).
¶38 We have previously ruled that when an individual lobbies on a matter of public
interest in her personal capacity, her speech is protected by the First Amendment.
Taliaferro, 235 Mont. at 30, 764 P.2d at 865. Prior to interviewing for a job with Social
and Rehabilitative Services (SRS), Taliaferro lobbied on legislation concerning SRS
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long-term care ombudsmen that SRS did not support. Taliaferro, 235 Mont. at 25-26, 764
P.2d at 862. A jury determined SRS had later denied a full-time position to Taliaferro
because of her position on the ombudsmen issue. Taliaferro, 235 Mont. at 27, 764 P.2d at
863. We affirmed the District Court, upholding the discrimination verdict because
Taliaferro’s speech was protected by the First Amendment. Taliaferro, 235 Mont. at 30,
764 P.2d at 865. Conversely, Miske engaged in lobbying efforts that caused “mutual
distrust” between the Commission and DNRC while she was a DNRC employee, in her
capacity as the Commission’s Executive Director. Unlike Taliaferro, Miske was not
lobbying in her personal capacity.
¶39 Miske contends that because the Commission has authority under § 75-7-305(1),
MCA, to make recommendations to the Legislature and federal agencies, she acted within
the scope of that authority when lobbying crosswise to DNRC’s position on aquatic
invasive species issues. Notwithstanding the Commission’s authority to lobby, however,
Miske’s speech was not protected political speech because she was lobbying in her capacity
as a DNRC employee.
¶40 The District Court correctly granted DNRC summary judgment on Miske’s
discrimination claims.
¶41 Issue Three: Did the District Court err in granting summary judgment to DNRC on
Miske’s wrongful discharge claims?
¶42 Finally, DNRC had good cause to terminate Miske’s employment because of her
repeated failures to comply with DNRC’s state-issued credit card expense reporting
policies.
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¶43 The Wrongful Discharge from Employment Act (WDEA) forbids termination of a
non-probationary employee without “good cause.” Section 39-2-904(b), MCA. “Good
cause” can mean “any reasonable job-related grounds for an employee’s dismissal” based
on a “failure to satisfactorily perform job duties,” “disruption of the employer’s operation,”
or “other legitimate business reasons . . . .” Section 39-2-903(5), MCA. Further, a
“legitimate business reason” may be one that is not “false, whimsical, arbitrary or
capricious and . . . must have some logical relationship to the needs of the business.”
Baumgart v. State, 2014 MT 194, ¶ 35, 376 Mont. 1, 332 P.3d 225.
¶44 In WDEA claims, after an employer satisfies the burden to present evidence of
“good cause” for a termination, the burden shifts to the employee “to show specific facts
upon which to reasonably conclude that the given reason for discharge was: (1) not a job
or business related reason; (2) false; (3) not the true reason for discharge; or (4) arbitrary,
capricious, or whimsical.” Buckley v. W. Mont. Cmty. Mental Health Ctr., 2021 MT 82,
¶ 16, 403 Mont. 524, 485 P.3d 1211. “Mere denial or speculation will not suffice” to show
that a fact is a pretext and not the honest reason for a discharge. Baumgart, ¶ 37.
¶45 When ruling on a summary judgment motion in WDEA claims, any facts
establishing “good cause” are sufficient to find for an employer, even if other disputed facts
remain. Davis v. State, 2015 MT 264, ¶ 14, 381 Mont. 59, 357 P.3d 320. In making this
determination, “All reasonable inferences which can be drawn from the evidence presented
must be drawn in favor of the non-moving party.” Vettel-Becker v. Deaconess Med. Ctr.
of Billings, 2008 MT 51, ¶ 27, 341 Mont. 435, 177 P.3d 1034 (citation omitted).
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¶46 Miske argues DNRC did not have a “legitimate business reason” for her termination.
She contends the sole undisputed factual basis for awarding DNRC summary judgment on
her wrongful discharge claims is that “three months of ProCard receipts were late.”
Further, Miske disputes the reason the receipts were late, arguing that other work priorities
prevented her from timely turning them in to DNRC. However, the record shows that
Miske was late on submitting substantially more than just three state-issued credit card
statements. In addition to the violations for which she was reprimanded in 2011, Miske
was notified about three delinquent statements in 2014, five in 2016, and six more in 2017.
There was substantial back-and-forth about Miske’s delinquent statements, and the record
clearly depicts a pattern of failures to adhere to DNRC policy.
¶47 DNRC has authority to “direct and supervise the budgeting” of the Commission.
Section 2-15-121(2)(a), MCA. One facet of administering that directive is to ensure that
state-issued credit card reporting policies are followed by its employees. Miske established
a pattern of violating that policy, which is a legitimate reason to terminate her employment.
Miske has not adequately shown facts that would demonstrate her termination was false,
pretextual, not business-related, or that it was otherwise arbitrary, capricious, or whimsical.
Buckley, ¶ 16; Davis, ¶ 14. To the contrary, Miske argues pretext may be found in record
evidence—emails and statements from her supervisor—that actually supports a finding of
Miske’s poor financial management. Even viewing the evidence in a light most favorable
to Miske, there is no evidence that indicates DNRC used Miske’s failures to timely report
credit card statements as a pretext for other reasons it had for terminating her.
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¶48 Miske argues her claim is distinguishable from Baumgart, where an administrator
for the Montana Tourism and Promotion Division of the Department of Commerce
(Division) was similarly terminated for financial mismanagement. Baumgart, ¶ 7. There,
the District Court determined, and we agreed, that Baumgart was terminated with good
cause because she risked losing over $4 million by carrying that amount in the Division’s
fund balance. Baumgart, ¶¶ 33, 39. Legislative appropriations can “sweep” certain fund
balances into the general fund, which Baumgart was well aware of because she experienced
a legislative appropriation just after she took over as the Division administrator. Baumgart,
¶¶ 4, 33. Baumgart was lawfully terminated even though she had never received a
performance-based warning, write-up, or reprimand. Baumgart, ¶ 44. Here, Miske
accurately points out that her failure to timely submit state-issued credit card statements is
disproportionate to risking the loss of more than $4 million.2 Miske, however, was warned,
written-up, and reprimanded. Different factors carried more weight in Miske’s termination
than in Baumgart’s, and vice-versa, but the outcome is appropriately the same. “An
employer has broad discretion to terminate a person in an executive position.” Shepherd
v. State, 2023 MT 99, ¶ 18, 412 Mont. 330, 529 P.3d 1285 (internal quotation omitted).
The Department lawfully exercised its broad discretion to terminate the Executive Director
of the Commission here.
2
The record is well-developed regarding other reasons DNRC may have had for terminating
Miske’s employment. We decline to address those facts here, however, because they are disputed,
and as the District Court found, DNRC properly established good cause around at least one
undisputed fact, which is sufficient to award it summary judgment. Davis, ¶ 14.
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¶49 The District Court properly granted DNRC summary judgment on Miske’s
wrongful discharge claims.
CONCLUSION
¶50 Montana law provides DNRC with clear authority in personnel decisions within the
Commission, which aligns with the purpose and legislative intent for agency attachment.
Miske was a DNRC employee, thus DNRC was not a stranger to Miske’s relationship with
the Commission, and it did not unlawfully interfere with their contractual relations.
Further, Miske’s lobbying efforts on behalf of the Commission were made in her capacity
as a DNRC employee; therefore, her political speech is not protected First Amendment
speech. Finally, DNRC had good cause to terminate Miske because repeated failures to
provide DNRC with state-issued credit card statements constitute a legitimate business
reason for her termination, and there is no evidence that it was a pretextual or dishonest
reason.
¶51 We affirm the District Court on all of Miske’s claims.
/S/ MIKE McGRATH
We Concur:
/S/ JAMES JEREMIAH SHEA
/S/ INGRID GUSTAFSON
/S/ DIRK M. SANDEFUR
/S/ JIM RICE
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