                                No. 85-527
                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1.986




BICHARD WALCH,
                 Petitioner and A.ppellant,
         -vs-
UNIVERSITY OF MONTANA,
                 Respondent and Respondent.




APPEAL FROM:     District Court of the Fourth Judicial District,
                 In and for the County of Missou.la,
                 The Honorable John S. Henson, Judge presiding.

COUNSEL OF RECORD:

         For Appellant:
                 Datsopoulos, MacDonald     &   Lind; Edward A. Murphy,
                 Missoula, Montana

         For Respondent:
                 Kary Elizabeth Kurz, U of M Legal Counsel, Missoula,
                 Montana
                 Jayne pl/litchell, Personnel Division-Dept. of Admin.,
                 Helena, Montana




                                    Submitted on Briefs: Jan. 30, 1986
                                      Decided: April 17, 1986


Filed:   APR 1 :1986
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.

         Richard Fla.lch petitioned the District Court      for the
enforcement of an order of the Board of Personnel Appeals.
The District Court dismissed his petition with prejudice for
failure to state a claim for which relief can be granted.
Walch appeals this dismissal.
        The University of Montana (University) hired Walch in
May, 1978, as a Maintenance Superintendent V, Grade 16.         The
IJniversity's Physical Plant. was reorganized on Janua-ry 19,
1982, and     Wa.lchls position   was   split    into two   separate
positions.     As a result, Walch's classification was changed
to Maintenance Superintendent IV, Grade 15.           However, his
salary remained exactly the same as it had been under the
Grade 16 classification.     The reason for this was because the
University had been granted a pay plan exception which allows
it to use a formula to maintain a differential between the
craft salaries and the salaries of the management staff in
the Physical Plant.      Walch appealed t.he reclassification to
the Board of Personnel Appeals (Board)    .
        The Hearing Examiner for the Board conducted a hearing
on November 8, 1982, pursuant to ",-18-1011,           MCA and in
accord.ance with the Administrati~re Procedure Act, Title 2,
Chapter 4, MCA, to determine whether Walch had been aggrieved
by the reclassification of his position.        The examiner issued
a Recommended Order on April 18, 1983, which stated that
Walch's responsibilities and position fell within the Grade
16 range rather than Grade 15.       Thus, he had been aggrieved
by    the reclassification and was entitled to relief under
§    2-18-1012, MCA.   The Board then ordered:
                            Recommended Order
               Commencing with the receipt of this
               Order,     the     Personnel    Division,
               Department    of    Administration,   its
               officers, agents, and representatives
               shall   change    Richard    A.   Walch's
               classification       from     Maintenance
               Superintendent IV, class code 189006,
               grade   15, to     Maintenance   Services
               Manager I, class code 899022, grade 16.
               They will conti~ue to pay Mr. Walch in
               accordance with the formula designed for
               the management staff in the University
               of Montana's Physical Plant, making
               whatever adjustments are required by
               this change in his classification title
               and pay grade level.
                                Notice
               Exceptions to these Findings of Fact,
               Conclusions of Law, and Recommended
               Order ma.y be filed within twenty days
               service thereof.   If no exceptions are
               filed within such time, this Recommended
               Order shall become the Final Order of
               the Board   ...
Neither Walch nor the University filed any exceptions to the
Recommended! Order which resulted in that order becoming the
Final Order of the Board.
         The University continued to pay Walch under the formula
established     for the management     staff which was       the   same
amount it ha.d been paying him before the Final Order.              In
March,     1984,   Walch   requested   an   interpretation    of   the
Recommended Order from the Board.           He contended that the
Order required the University to pay him in accord.ance with
the pay matrix for state employees under the Grade 16 level,
rather than the formula set up for the management staff at
the University.
         The    original    hearing     examiner    conducted       an
investigation and issued an interpretation of the Recommended
Order.     In the report, she asserted that the intent of the
order was that the University pay Walch in accord.ance with
the pay plan exception formula, not in accordance with the
pay matrix for state employees.       Walch then filed exceptions
to the Investigative Report.
         The Board held a hearing on the matter and. issued a
Final Order on January 8, 1985.         The Order stated that if
Walch's     request   for   interpretation   is   deemed   to   be   an
exception to the Recommended Order, such exception was filed
too late.      Rut, if the request for interpretation is deemed.
to be a request to enforce the Recommended Order, then the
District Court is the proper forum for such action, not the
Board.
         Walch then filed a petition to enforce in the District
Court.     The court found that the Recommended. Order clearly
required the University to pay Walch in accordance with the
pay plan exception. formula.      Since Walch did not allege that
the University was not paying him in accordance with this
formula, the court dismissed the petition with prejudice for
fa.il.ure to state a claim for which relief can be granted.
         The   sole issue raised by    appellant is whether the
District Court erred in interpreting the Recommended Order as
requiring the University to pay appellant according to the
pay plan exception formula.       However, in order to reach this
issue, we must first determine whether the District Court had
jurisdiction over the case since no timely exceptions to the
Recommended Order were filed, nor did appellant file a timely
appeal from the Final Order.
         Appellant brought an action in the District Court to
enforce the original order of the Board.            This action is
allowed by 5 2-18-1013, MCA, which provides:
               The board or the employee may petition
               for the enforcement of the board's order
               and for appropriate temporary relief and
               shall file in the district court the
               record of the proceedings.     Upon the
            filing of the petition, the district
            court shall have jurisdiction of the
            proceeding.    Thereafter, t-he district
            court shall set the matter for hearing.
            A-fter the hearing, the district court
            shall issue its order granting such
            temporary or permanent relief as it
            considers just and proper. No objection
            that has not been raised before the
            board shall be considered by the court
            unless the failure or neglect to raise
            the objection is excused because of
            extraordinary    circumstances.      The
            findings of the board with respect to
            questions of fact, if supported by
            substantial evidence on the record
            considered   as   a   whole,   sha.11 be
            conclusive.
It is apparent that this statute places no time restraints
upon the filing of ar? action to enforce.         The action may be
brought anytime after the Board's order has been issued,
provided it is brought within the statute of limitations
period which is genera.11~applicable to the filing of civil
a-ctions.   Section 27-2-215, MCA.       Thus, the District Court
did have jurisdiction to hear the petition.
       However, an action to enforce under 5 2-18-1013 is to
be distinguished from an action for judicial review of a.
contested case under    §   2-4-702, MCA.     The latter action must
be brought within thirty days after service of a final agency
d.ecision, and. the petitioner may contest the final decision
of the agency.        In an action to enforce, the petitioner
cannot contest the agency decision.         Therefore, appellant can
prevail only if the University is not paying him according to
the order as it was written.
       Respondent contends that this action is being used as a
means of circumventing the time requirements imposed by the
Recommended Order and should not be allowed.           Although that
may have been appellant's intention, circumvention of the
time   requirements    is   impossible   in    this   case   since   no
objection to the order can be raised.                   The inquiry is limited
solely to the question of what the Recommended Order required
the University to do--either to pay according to the formula
or to pay according to the state pay matrix.                            The action is
one to enforce the order as it is written; appellant cannot
question    the     correctness         of    the     order       in    this     action.
Therefore,        there     is     no        circumvention             of     any     time
requirements, statutory or administrative.
      Having       found    that     this      action        is   proper,        we    now
determine what the Recommended Order required.                              Although the
language of the order is somewhat ambiguous, a close reading
of the words used. and the reasoning supplied in the order
indicates    that     the    University             should     pay      appellant       in
accordance with the pay plan exception formula.                                The last
sentence of the Recommended Order required the University to
"continue" to pay appellant j.n accordance with the formula
designed for the ma.na.gement sta.ff. Had. the Hearing Examiner
meant for the University to pay appellant under the state pay
matrix,     she    certainly       wou1.d       not     have       used       the     word.
"continue," since appellant was already being paid under the
formula set up for the management staff prior to the Order.
      Appellant           contends           that      the        Order         required
"adjustments" in his pay.               However, what the Order required
was adjustments in his "cl-assification title" and "pay grade
level."    The fact that these adjustments were not meant to be
an a.djustment in pay is made clear in the paragraph preceding
the   Recommended         Order.         The        examiner      recognized          that
appellant could be aggrieved by a reclassification of his
position even though his pay was not decreased.                              She stated:
             First of all, classification and grade
             level assignment are major components of
             the classification system.    Changes in
             these components, even if they do not
             result in a change in salary, constitute
             potential bases for appeal.      Secondly,
             there are no guarantees of permanence
             for either the pay plan exception or the
             formula by which Mr. Walch's pay is
             calculated.    Should either of these
             variables     change,      Mr.     Walch ' s
             classification     title and   grade level
             would resume being of primary importance
             in the determination - - salary.
                                       of his
             (Emphasis added. )
This    indicates that          appellant's   classification title and
grade     level     are     not     of   primary    importance    in   the
determination of          his    salary now.       Instead, the   formula
designed for the management staff was contemplated as being
of primary importance in this determination.              Moreover, the
interpretation given by the original hearing examiner in the
investigative report also makes clear that she intended for
appellant to be paid according to the pay plan exception
formula.
        Therefore, since appellant is being paid in a.ccordance
with the Order of the Board, and since he has not alleged
that    the University          is not paying him. according to the
formula, we affirm the District Court's dismissal of the
petition for failure to state a claim for which relief can be
granted.     Any objection to the Roard's Final Order or to
being paid under the formul-a comes too late to be noticed on
appeal.
        Affirmed.




We concur:
