                                   NO.    95-206
              IN THE SUPREMECOURT OF THE STATE OF MONTANA
                                         1995


DALE THOMASKLOCK, d/b/a
TOM'S FOOD TOWN, a/k/a
TOM'S IGA,
              Petitioner    and Appellant,
         v.
DEPARTMENT LABOR AND INDUSTRY,
           OF
EX REL., JAMES F. MARSHALL,
              Respondent    and Respondent.




APPEAL FROM:         District  Court of the Eighth Judicial   District,
                     In and for the County of Cascade,
                     The Honorable Thomas M. McKittrick,  Judge presiding.


COUNSEL OF RECORD:
              For Appellant:
                     John Keith,   Attorney     at Law, Great   Falls,   Montana

              For Respondent:
                     Melanie Symons, Legal Counsel, Department           of
                     Labor & Industry, Helena, Montana



                                    Submitted      on Briefs:   August   31, 1995
                                                     Decided:   September     14, 1995
Filed:
Justice            Karla      M. Gray delivered                the Opinion         of the Court.

           Pursuant           to Section         I,    Paragraph         3(c),     Montana Supreme Court
1995 Internal                Operating         Rules,        the following          decision         shall     not be
cited         as precedent            and shall        be published            by its     filing         as a public
document with                the Clerk      of the Supreme Court                   and by a report             of its
result          to     Montana         Law Week,            State      Reporter         and West Publishing
Company.
         Dale Thomas Klock                 (Klock)           appeals      from an order            of the Eighth
Judicial               District           court,              Cascade          County,          affirming            an
administrative                 order     awarding           James F. Marshall                (Marshall)         wages
for     overtime             worked for        Klock,         d/b/a     Tom's Food Town, a/k/a                  Tom's
IGA (IGA).              We affirm.
         We restate             the issues            on appeal         as follows:
           1.        Was the Department                of Labor         and Industry's             letter      to the
District             Court    while      the decision              was pending       an improper             ex parte
contact            under      § 2-4-613,        MCA?
         2.             IS      the     hearing          examiner's              decision          supported         by
substantial                credible      evidence?
         Marshall            began working            for     IGA on September              30, 1991,         earning
$4.50 per hour.                   He recorded           his     hours     in a time         book and was paid
for     all     hours recorded.                On January             17, 1992, Marshall            was promoted
to store             manager and received                a pay raise           of fifty        cents        per hour.
The time             book previously            used by Marshall                 to record         his      hours   was
given         to      another         employee.          According          to     Marshall,         after      being
promoted             he recorded         his     overtime           hours      on a calendar             he kept     at
home and a notebook                      he carried            with     him.       Marshall         was paid        for
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forty       hours       a week at $5.00                  per       hour with           one exception.             He was
paid       for   ten hours             of overtime             for       the pay period           ending       February
2,      1992.           Marshall          quit         his      job        with        IGA     on May       14,        1992.
         Marshall           filed        a wage claim                   with    the     Montana       Department           of
Labor       and Industry                (DLI)      on August               7,     1992.         He contended            that
Klock        owed him            for     683 hours             of       uncompensated            overtime         in     the
amount of $5,122.50.                      However,            since Marshall              owed Klock         $1,042.63
for     grocery         bills,         he reduced            his       claim      to $4,079.87.
         A contested              case hearing               was held on January                  15, 1993, before
a DLI          hearing       examiner.                 The hearing                examiner        determined            that
Marshall          was        entitled             to      $2,328.32               in     wages,       $1,164.16            in
penalties,          and $.51 per day in interest                                on the unpaid         wages.           Klock
appealed         this      decision         to the Board of Personnel                            Appeals        (Board).
After       reviewing            the record            and considering                 the parties'         briefs       and
oral       arguments,            the Board adopted                     the hearing           examiner's        Findings
of     Fact,     Conclusions              of Law and Order                      in an order         dated     July       22,
1993.
         On August               20,     1993,         Klock           petitioned         the     Eighth       Judicial
District         Court       for       judicial         review           of the Board's           order.          The DLI
successfully             moved to intervene                    as the real             party     in interest.            The
District         Court       issued        an order           dated March 20, 1995, affirming                            the
administrative               order        awarding            Marshall            overtime       wages,      penalties
and interest.                Klock       appeals.
           1. Was the Department of Labor and Industry's    letter                                                to
           the District  Court while the decision    was pending                                                  an
           improper ex parte contact under § 2-4-613,    MCA?
           On March 10, 1995, the DLI sent a letter                                       to the District              Court

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requesting           that     it     expedite          its     determination                   of this            case.        Klock
argues       on appeal              that     DLI's           sending          of       the     letter            was improper
because the letter                   included         extraneous                  matter       which was unrelated,
irrelevant           and prejudicial                  to his          case.
          The letter          at      issue       refers           generally                to articles             printed             in
the      Great       Falls         Tribune           but      does       not          specify             the      allegations
against           Klock     contained          in      those          articles.                DLI's            letter        stated
that       Marshall          was concerned                    that,          if        the     Board's              order          were
affirmed,           he would be unable                     to collect               the amount Klock                     owed him.
As      a result,           DLI       requested              the      District               Court,         on Marshall's
behalf,           to render         its    decision           expeditiously.
          Section         2-4-613,         MCA, prohibits               ex parte              consultations                between
the      decision-maker               and a party               in connection                      with     an issue               in        a
contested           case unless            the other          party       has notice                and an opportunity
to      participate.                  Assuming             arguendo                that       §     2-4-613,              MCA,          is
applicable            to     this         judicial           review           stage           of     a contested                   case
proceeding,            it    was not violated                   here.              A copy of DLI's                   letter         was
sent      to Klock's          attorney,           but no response                          was made.              In addition,
the letter           did not address                 an issue           of fact             or law in the case;                         it
merely       reminded         the District                 Court      that          a Notice         of Issue             had been
filed       and requested                  an expeditious                 decision.                   Therefore,               DLI's
letter       was not prohibited                   by § 2-4-613,                      MCA.
          Klock      also      contends           that        the     letter               influenced            the      District
Court's           decision.                He presents                 no          evidence               supporting               this
assertion,           however,         and the record                  does not suggest                     in any way that
the      letter       influenced            the      court's           decision               on the         merits           of     the

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case.         Nor does anything                     in     the       letter's         reference          to        articles

printed        in the Great              Falls       Tribune          prejudice          Klock.
         We conclude              that     DLI's          letter          was not        an improper            ex parte
contact        under       5 2-4-613,             MCA.
          2.    Is the hearing                      examiner's               decision        supported               by
          substantial  credible                    evidence?
             Klock's         Petition             for      Judicial             Review       asserted           that           the
evidence         presented             at the contested                    case hearing           did     not        support
the      hearing         examiner's           decision              and that          the     Board          erred            as a
matter        of     law        by      failing           to       reverse        the       hearing          examiner's
decision.           Klock        argues      on appeal              that     the District           Court          erred        in
concluding          that        the hearing              examiner's             decision         was supported                  by
substantial          credible            evidence.
         A    rebuttable               presumption                 exists        in      favor      of        an        agency
decision;          the     party         challenging               that      decision        has the           burden           of
establishing             that     it     is erroneous.                Trustees,          Missoula            County Sch.
Dist.      1 v. Anderson               (1988),          232 Mont.           501, 503, 757 P.2d 1315, 1317
 (citation         omitted).               Moreover,                the     Montana         Rules       of     Appellate
Procedure          require           the submission                of a record           sufficient            to enable
this     Court     to properly             review         the issues            raised      and citation                to the
record        and to       legal         authority             in support         of arguments               presented.
Rules        9 and 23, M.R.App.P.                        Klock       has failed          to meet his               burden.
          We note at the outset                    that        Klock included             no transcript                 of the
contested          case hearing            with         the record           on appeal.           Nor does he make
even a single              reference          to the tape                 recordings         of that         proceeding
in arguing          that        substantial             credible           evidence       does not support                     the
hearing        examiner's              decision.           Moreover,            while       Klock       argues          that     a
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summary of          Marshall's            hours         worked         was improperly                 admitted       into
evidence          and     relied          on      by     the         hearing             examiner,       he    neither
establishes           that    he properly              preserved            that     issue on the record                 nor
cites      to    any legal            authority            in       support         of     his    argument       that       a
failure         to provide         the     "best        evidence"            undermines            the credibility
of the party          to a point           where we would be justified                             in substituting
our     judgment        for    that      of the fact-finder                        on the critical            question
of credibility.
          Klock has simply               failed        to present            any record           or legal       support
for     his     argument         that       the        hearing             examiner's            decision     was not
supported         by substantial                  credible            evidence.              On that        basis,        we
cannot        ascribe         error       to      either            that      decision           or   the     District
Court's          determination                 that        the         decision             was       supported           by
substantial           credible         evidence.
          Affirmed.




We concur:




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