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                                                              No. 99-177


                   IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                           2000 MT 108N

                                                        JACK HAMNER,

                                                   Petitioner and Appellant,

                                                                      v.

                                          BUTTE-SILVER BOW COUNTY,

                                A Political Subdivision of the State of Montana,

                                 and TIM CLARK, Butte-Silver Bow Personnel

                                                                Director,

                                              Respondents and Respondents.



                    APPEAL FROM: District Court of the Second Judicial District,

                                     In and for the County of Butte-Silver Bow,

                               The Honorable James E. Purcell, Judge presiding.

                                                  COUNSEL OF RECORD:

                                                           For Appellant:

                                         John Leslie Hamner, Butte, Montana


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                                                           For Respondent:

  Robert M. McCarthy, Silver Bow County Attorney, Eileen Joyce, Deputy Butte-Silver
                        Bow County Attorney, Butte, Montana



                                        Submitted on Briefs: November 4, 1999

                                                     Decided: April 27, 2000

                                                                   Filed:


                              __________________________________________

                                                                    Clerk

Justice William E. Hunt, Sr. delivered the Opinion of the Court.


¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating
Rules, the following decision shall not be cited as precedent but shall be filed as a public
document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.

¶2 Jack Hamner (Hamner) appeals from the order and memorandum of the Second
Judicial District Court, Silver Bow County, denying his motion for enforcement of a
disability preference in public employment against Butte-Silver Bow County (the County).
We affirm.

¶3 Although Hamner fails to state any issues in his appellate brief, we agree with the
County that this appeal raises two questions:

¶4 (1) Did the District Court properly find and conclude that the County carried its burden
of proof that Hamner did not have substantially equal qualifications for the position?

¶5 (2) Did the District Court err in determining that the selection process was not tainted,

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unfair, or biased against Hamner?

                                           Factual and Procedural Background

¶6 On December 18, 1997, the County began to publicly solicit applications for the newly
created position of Director of Land Records. Hamner was one of seventeen applicants for
the position. A five-member selection committee, consisting of four officials for the
County and Delores Cooney, Regional Administrator for the Montana Department of
Revenue (Cooney), reviewed the qualifications of the seventeen applicants.

¶7 After reviewing the applications individually, each selection committee member
categorized the applicant pool according to three separate "lists": (1) the "A" list
represented those applicants that the selection member determined were the most qualified
for the position; (2) the "B" list represented those applicants that the selection member
determined were the second most qualified for the position; and (3) the "C" list
represented those applicants the selection member determined were the least qualified for
the position.

¶8 The criterion developed by the County for selecting applicants for interviews consisted
of the following: any applicant who was placed on the "A" or "B" lists of at least four
selection committee members was granted an interview. Based on that criterion, seven
applicants were granted interviews by the County. Hamner failed to make the "A" or "B"
lists of any of the selection members and, therefore, was not granted an interview.

¶9 On April 4, 1998, Hamner filed a Petition in the District Court pursuant to § 39-30-207
(2), MCA (1997). Based on that petition, the court scheduled a "Show Cause Hearing,"
ordering the County to appear and show cause why Hamner was not hired for the position
of Director of Land Records. A show cause hearing was conducted on June 5, 1998,
during which the District Court heard testimony from the five members of the selection
committee. During the hearing, pursuant to agreement of the parties, the court also
conducted an "in camera" inspection of all the applications submitted for the position of
Director of Land Records. Following the hearing, the parties filed briefs. On January 22,
1999, the District Court issued an "Order Denying Plaintiff's Motion for Enforcement of
Preference." From that order, Hamner appeals. Other facts will be set forth as necessary.

                                                               Discussion



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¶10 (1) Did the District Court properly find and conclude that the County carried its
burden of proof that Hamner did not have substantially equal qualifications for the
position?

¶11 Hamner filed his Petition under the "Montana Persons with Disabilities Employment
Preference Act," §§ 39-30-101 to -207, MCA (1997) (the Act). In determining whether a
public employer has violated a disabled person's rights, the Act provides that the
"employer has the burden of proving by a preponderance of the evidence that the
employer made a reasonable determination pursuant to 39-30-103(7) . . . ." Section 39-30-
207(3)(a), MCA (1997).

¶12 In turn, § 39-30-103(7), MCA (1997), sets forth the following definition:

        "Substantially equal qualifications" means the qualifications of two or more persons
        among whom the public employer cannot make a reasonable determination that the
        qualifications held by one person are significantly better suited for the position than
        the qualifications held by the other persons.

Section 39-30-103(7), MCA (1997).

¶13 Finally, the Act furnishes the following employment preference in initial hiring:

        Except as provided in 10-2-402, in an initial hiring for a position, if a job applicant
        who is a person with a disability or eligible spouse meets the eligibility requirements
        contained in 39-30-202 and claims a preference as required by 39-30-206, a public
        employer shall hire the applicant over any other applicant with substantially equal
        qualifications who is not a preference-eligible applicant.

Section 39-30-201(1)(a), MCA (1997).

¶14 It is undisputed that Hamner has a disability making him a preference-eligible
applicant under the Act and that he claimed such a preference in applying for the position
of Director of Land Records. None of the other applicants selected for an interview by the
County possessed a preference-eligible disability. Thus, we must address whether the
County carried its burden of showing that its system of ranking the relative qualifications
of the applicants for the position of Director of Land Records according to three "lists"
constituted a reasonable determination that Hamner did not have substantially equal


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qualifications to any of the other applicants who were selected for an interview. If Hamner
was not substantially equally qualified, then he is not entitled to enforcement of a
preference in public employment pursuant to the Act. In answering that question, we are
guided by the decision in Olson v. State, Dep't of Revenue (1988), 235 Mont. 31, 765 P.2d
171.

¶15 In Olson, the petitioner alleged that the Montana Department of Revenue (DOR) had
denied him his right to application of a veterans' and handicapped persons' preference in
public employment. Specifically, the petitioner argued that the preference should have
been considered prior to application of the "scoring system" utilized by the DOR, "and
that consideration of the preference only after applying the scoring system" was invalid.
See Olson, 235 Mont. at 32-33, 765 P.2d at 171-72. This Court disagreed and upheld the
lower court's finding that the petitioner was not entitled to application of the preference
because he was not substantially equally qualified with the successful job applicant.

¶16 In reaching this conclusion, the Olson Court discussed at what point in the hiring
process the public employment preference is required to be given consideration. Noting
that the Montana Legislature had met in special session in December of 1983, during
which time it had amended the employment preference statutes to their present form, we
quoted at length from the statement of intent accompanying that legislation:

        "The legislature intends that public employers seek and hire the most qualified
        persons for positions in public employment. It is also the intent of the legislature
        that the nature of the preference is a relative one in that it is to be applied as a 'tie-
        breaker' among two or more applicants for a position who have substantially equal
        qualifications. . . . Qualifications should include job-related knowledge, skill and
        abilities. The legislature recognizes that public employers use a variety of scored
        and unscored selection procedures . . . . The legislature does not intend to specify
        the type of selection procedure to be used by a public employer."

Olson, 235 Mont. at 34, 765 P.2d at 172-73.

¶17 Although the Olson Court also noted that the word "tie-breaker" had been deleted
from the statement of intent in committee, it determined that the legislative changes were
driven by "considerable dissatisfaction with the absolute preference" accorded under the
law existing prior to the amendments. Olson, 235 Mont. at 34, 765 P.2d at 173. This Court
therefore held that in amending the employment preference statutes, "the Montana


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Legislature meant to abolish the absolute employment preference for veterans and
handicapped persons who possess the minimum qualifications for a job. Being minimally
qualified for the job is no longer enough." Olson, 235 Mont. at 35, 765 P.2d at 173.
Additionally noting that the Legislature did not intend to "limit the hiring authority to any
particular method of assessing job applicants' relative qualifications," the Olson Court
further held that the DOR "gave proper effect to the statutes in first determining
applicants' point scores, then considering whether the preference should be applied."
Olson, 235 Mont. at 35, 765 P.2d at 173.

¶18 Hamner attempts to distinguish Olson by arguing that since the County's classification
system failed to utilize an objective "point system" and since the County did not grant him
an interview as was the petitioner in Olson, the County's selection procedures were not
"reasonable" under § 39-30-207(3)(a), MCA (1997). Notwithstanding Hamner's attempts
to distinguish Olson, we agree with the County that Olson closely parallels this case. Here,
as in Olson, the County devised a reasonable classification system for assessing the
applicants' relative qualifications for the position. In applying this classification system,
the selection committee determined that Hamner was not "substantially equally qualified"
with several other applicants and, for that reason, did not select him for an interview.
Therefore, we agree with the County that, under Olson, Hamner's disability preference did
not come into play.

¶19 This case is controlled by Olson. Hamner insinuates that the County's selection
method is the consummation of former Justice Sheehy's prophetic "blueprint" dissent to
the Olson majority, which this author joined. See Olson, 235 Mont. at 39-40, 765 P.2d at
175-76 (Sheehy, J., dissenting). However, the Olson decision is the current state of the law
and is binding upon everyone in Montana, including this author. Under Olson, public
employers are effectively given carte blanche authority in choosing the type of selection
procedures to be employed in filling a position of public employment. They may utilize a
" 'scored' " system, such as the point system employed by the DOR in Olson, or they may
utilize an " 'unscored' " system, such as the committee selection method employed by the
County here. See Olson, 235 Mont. at 34, 765 P.2d at 172-73.

¶20 At the hearing below, each committee member testified that he or she was able,
through review of the seventeen applications, to make a reasonable determination that the
qualifications held by the applicants selected for an interview were significantly better
suited for the advertised position than the qualifications held by the other applicants,
including Hamner, who were not selected for an interview. And although Hamner cross-

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examined the selection committee members in an attempt to show that he possessed the
qualifications set forth in the advertised job description, the County points out that this
Court has already rejected the argument that the advertisement alone sets forth the criteria
for judging applicants. See Hamner v. Butte/Silver Bow County (1988), 233 Mont. 271,
276, 760 P.2d 76, 79-80 (holding that an "analysis" of the applicant's abilities, rather than
the advertisement itself, "constitutes the criteria for judging an applicant's qualifications
for the position").

¶21 The District Court heard testimony from each of the selection committee members as
to their assessment of Hamner's qualifications relative to the other applicants. Hamner has
provided this Court with no reason for second guessing the District Court's conclusion that
Hamner, though perhaps minimally qualified for the position, was not substantially
equally qualified to the other applicants selected for an interview in terms of job-related
knowledge, skills, and abilities. We hold that the County carried its burden of proving by a
preponderance of the evidence that Hamner did not possess substantially equal
qualifications to any of the applicants placed on the "A" or "B" lists in its classification
scheme.

¶22 Hamner also makes reference to several other laws in his brief on appeal, including
the Americans with Disabilities Act of 1990, the Age Discrimination Act, the Civil Rights
Act of 1991, the Age Discrimination in Employment Act, and the Montana Human Rights
Act. However, Hamner failed to raise these issues in his pleadings before the District
Court. This Court generally will not address an issue that was not presented to the trial
court, nor will we permit a party to change its legal theory on appeal. See Unified Indus.,
Inc. v. Easely, 1998 MT 145, ¶ 15, 289 Mont. 255, ¶ 15, 961 P.2d 100, ¶ 15. Furthermore,
the County correctly indicates that since Hamner filed this action pursuant to the
"Montana Persons with Disabilities Employment Preference Act," §§ 39-30-101 to -207,
MCA (1997), enforcement of the disability preference is his exclusive "remedy" under the
Act. See § 39-30-207(3)(c), MCA (1997). Therefore, we will not consider Hamner's other
claims.

¶23 (2) Did the District Court err in determining that the selection process was not tainted,
unfair, or biased against Hamner?

¶24 Hamner also alleges that the County's selection procedure was "tainted, unfair, biased
and illegal" due to the fact that during the hiring process, one of the committee members,
Cooney, withdrew from the selection committee. Cooney is presently employed as the


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Regional Administrator for the Montana Department of Revenue (DOR). Hamner's
allegations, which might make even a conspiracy theorist envious, appear to suggest that
the DOR somehow controlled the selection process for the County's position of Director of
Land Records and, therefore, that Cooney's participation "tainted" the hiring process.

¶25 Cooney testified at the show cause hearing. She explained that she was selected as a
member of the committee because of her extensive experience in dealing with land
records. She also stated that she was not surprised that several of the applicants for the
County's position were DOR employees, since each would have the necessary
qualifications for the position by virtue of having worked in the rather "limited field" of
land records. Cooney testified that she had withdrawn after each selection member had
reviewed the seventeen applications and categorized the applicants according to the three
"lists." She had withdrawn because, after classifying the applicants, Cooney had
discovered that one of the individuals who had been selected for an interview was the
same person who was currently performing Cooney's duties for the DOR while Cooney
was working on a special project in Helena. Cooney realized that if this person were to
receive the County's advertised position, it would disrupt the operation of her office.
Because of this conflict of interest, Cooney's reason for withdrawing from the selection
process was to avoid any potential prejudice against this particular applicant.

¶26 Although Hamner cross-examined Cooney in an attempt to support his DOR
conspiracy theory, her testimony did not support his theory in any way. Moreover, we
agree with the County that Cooney's conflict of interest did not taint the selection process
or prejudice Hamner. Cooney was only one of the five selection committee members. As
mentioned previously, each selection committee member individually categorized the
seventeen applicants according to the three "lists." An applicant had to be placed on at
least four "A" or "B" lists to warrant an interview. Hamner was not placed on any of the
selection committee members' "A" or "B" lists. It was only following such classification
that Cooney developed the conflict of interest. Hamner, however, was not affected by this
conflict because the individualized review of applications had already occurred and the
selection committee had already collectively determined that Hamner was not
substantially equally qualified to the other applicants selected for an interview. Put simply,
Hamner has failed to show that the selection process was biased against him. Thus, we
hold that the District Court did not err in rejecting Hamner's claim that the County's
selection process was unfair.

¶27 Affirmed.

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/S/ WILLIAM E. HUNT, SR.

We Concur:

/S/ TERRY N. TRIEWEILER

/S/ KARLA M. GRAY

/S/ W. WILLIAM LEAPHART

/S/ JAMES C. NELSON




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