file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-826%20Opinion.htm




                                                               No. 00-826

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                             2001 MT 166


                                                         DAVID J. WOLNY,

                                                                Appellant,

                                                                      v.

                                                       CITY OF BOZEMAN,

                                                              Respondent.

                        APPEAL FROM: District Court of the Eighteenth Judicial District,

                                                In and for the County of Gallatin,

                                      The Honorable Mike Salvagni, Judge presiding.

                                                    COUNSEL OF RECORD:

                                                             For Appellant:

                                    Bill Hanson, Attorney PLLC, Bozeman, Montana

                                                            For Respondent:

                   Timothy A. Cooper, Staff Attorney, City of Bozeman, Bozeman, Montana

                                              Submitted on Briefs: April 19, 2001
                                                  Decided: August 23, 2001

                                                                   Filed:

                                   __________________________________________



file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-826%20Opinion.htm (1 of 11)1/18/2007 10:30:32 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-826%20Opinion.htm

                                                                    Clerk



Justice Terry N. Trieweiler delivered the Opinion of the Court.

¶1 Police Officer, David J. Wolny, was terminated from the police department on May 29,
1998. Wolny appealed his termination to the Bozeman Police Commission which affirmed
the City's decision. Wolny then appealed to the District Court for the Eighteenth Judicial
District in Gallatin County. The District Court upheld the Commission's Findings of Fact
and Conclusions of Law. Wolny appeals the opinion and order of the District Court. We
affirm the order of the District Court.

¶2 The following issues are raised on appeal:

¶3 (1) Did the District Court err when it upheld the Commission's finding that Wolny
received adequate notice of his alleged false or misleading statements?

¶4 (2) Did the District Court err when it concluded that the Police Commission properly
considered the testimony of Carolyn Thomas?

¶5 (3) Is the Police Commission's finding that Wolny was insubordinate supported by
substantial evidence?

¶6 (4) Did the District Court err when it concluded that the Commission properly excluded
the disciplinary history of other officers?

¶7 (5) Does sufficient evidence exist to support the Commission's finding that the City
complied with its progressive discipline policy when the City did not offer Wolny's
personnel file at the hearing?

                                                FACTUAL BACKGROUND

¶8 On October 10, 1997, at 1:40 a.m., several Bozeman police officers responded to a
possible assault and trespass in the area of Babcock and South 8th Avenue. Officer David
J. Wolny was among the officers who responded to the call. While the officers were
investigating, a two car collision occurred in this same intersection. Officer Wolny
approached the cars to assist the drivers. William Hurley, a bicyclist, started to ride

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-826%20Opinion.htm (2 of 11)1/18/2007 10:30:32 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-826%20Opinion.htm


towards the accident scene while shouting at the policemen and the onlookers. Despite
orders to stop, Hurley continued riding toward Officer Wolny. They collided and Hurley
was thrown off his bike, hit his head on the pavement and sustained severe injuries.

¶9 Several eyewitnesses who saw the accident filed written complaints with the police
department about Officer Wolny's actions towards Hurly. As a result, the incident was
referred to the Criminal Investigations Bureau of the Department of Justice to determine
whether Wolny pushed Hurley off of the bike, or whether they simply collided causing
Hurley to fall off his bicycle. CIB investigators conducted interviews with Officer Wolny
and several other eyewitnesses. The investigators noticed several discrepancies between
Wolny's account of the accident and the other witnesses. Furthermore, after a second
interview, Wolny's story changed substantially from his first version.

¶10 The CIB investigators finished their investigation and sent their report to the County
Attorney who declined to file any charges against Wolny. Mark Murphy, Assistant
Attorney General, recommended that the file be sent to Mark Tymrak, Chief of the
Bozeman Police Department, for a determination of whether Wolny's actions violated the
Department's Use of Force and Personnel Policies. Thereafter, a three-member Use of
Force review board convened to evaluate the incident. The review board concluded that
the use of force by Wolny was not justified or appropriate based upon the totality of the
circumstances.

¶11 In response, Chief Tymrak wrote a letter to Wolny on April 9, 1998, and explained
that he was considering disciplinary action against Wolny up to and including discharge.
He referred to the examples of inconsistent statements in the letter and provided Wolny
with the CIB case file and the Use of Force Review Board report. Tymrak also provided
an opportunity for Wolny to respond both orally and in writing. On April 16, Wolny
responded by letter to Chief Tymrak and a disciplinary hearing was scheduled. At that
hearing, Wolny submitted a report and a sketch diagram. Wolny stated that Dr. Lang, an
accident expert, prepared the sketch. Dr. Lang also testified to his reconstruction of the
accident based on his conversations with Wolny.

¶12 On May 15, 1998, Tymrak wrote Wolny a second letter notifying him that additional
charges were being considered on the basis that he had provided false information
regarding the sketch diagram. Wolny responded to his letter on May 19, 1998. A second
disciplinary hearing was held. However, Wolny refused to answer any questions on the
advice of counsel. The meeting ended and Tymrak wrote Wolny a third letter, ordering


 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-826%20Opinion.htm (3 of 11)1/18/2007 10:30:32 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-826%20Opinion.htm


that he come to Tymrak's office on May 22 and be prepared to answer the questions that
Wolny had not answered during the hearing. Tymrak explicitly stated in the letter that this
was a direct order and failure to obey it would amount to insubordination. Although
Wolny arrived at his office with written answers, he refused to answer any questions
orally.

¶13 On May 29, 1998, Tymrak informed Wolny of his decision to discharge him. Wolny
appealed to the Police Commission. The Commission held a hearing that lasted for four
days in October 1998. After listening to the witnesses and reviewing the exhibits, the
Commission upheld the termination, finding that Wolny violated the Use of Force policy
and the personnel policy and that he committed insubordination when he refused to
answer Tymrak's questions. Wolny appealed this decision to the District Court. The Court
affirmed the decision of the Commission.

                                                  STANDARD OF REVIEW

¶14 A police commission is required to hear an appeal brought by a police officer
"according to the rules of evidence applicable to courts of record in the state." A final
decision of the police commission may be appealed to the district court which has
jurisdiction to review all questions of fact and all questions of law. The function of the
district court is to review the law to determine whether the rulings of the commission are
correct and to review the facts to determine that they are supported by substantial
evidence. Matter of Raynes (1985), 215 Mont. 484, 493, 698 P.2d 856; Abbey v. City of
Billings Police Commission (1994), 268 Mont. 354, 886 P.2d 922. However, the district
court should defer to the Commission unless findings of fact are clearly erroneous.

¶15 When the Supreme Court reviews such opinions, this court has applied the standard of
review set out in § 2-4-704, MCA. The court may not substitute its judgment for that of
the agency as to the weight of the evidence which supports findings of fact.

                                                            DISCUSSION

                                                              ISSUE ONE

¶16 Did the District Court err when it upheld the Commission's finding that Wolny
received adequate notice of his alleged false or misleading statements?



 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-826%20Opinion.htm (4 of 11)1/18/2007 10:30:32 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-826%20Opinion.htm


¶17 Wolny was terminated as a police officer based in part on the City's belief that Wolny
made false or misleading statements throughout the investigation. Wolny contends,
however, that the City failed to provide him with adequate notice of the statements that the
City considered false or misleading and, therefore, Wolny was unable to defend himself
against the City's accusations.

¶18 The termination of a police officer requires compliance with fundamental due process
rights which include notice to the employee and an explanation of the evidence against
him as well as an opportunity to respond. Boreen v. Christensen (1994), 267 Mont. 405,
420, 884 P.2d 761, 770. See also Cleveland Bd. of Ed. v. Loudermill (1985), 470 U.S. 532,
544, 105 S.Ct. 1487, 1494.

¶19 According to the record, Chief Tymrak wrote Wolny a letter on April 9, 1998,
notifying Wolny of the possible disciplinary actions and the charges that the City was
considering. Tymrak cited several examples of Wolny's inconsistent and misleading
statements and included the entire CIB file. On April 16, 1998, Wolny responded to
Tymrak's letter and provided detailed explanations for the alleged misrepresentations.

¶20 Wolny contends that Chief Tymrak was unable to specify the exact false or
misleading statements made and further contends that Tymrak's testimony during the
Commission hearings further substantiates his argument. During the hearing, Tymrak was
unable to identify particular statements that were false. However, it was clear from his
testimony as it has been throughout these proceedings that Chief Tymrak believed that
Wolny's account of his encounter with Hurley was inconsistent with the observations of
other witnesses and inconsistent with his own statements.

¶21 The District Court found that Tymrak's termination letter of May 29, 1998, set forth
his reasons for termination and referred to the April 9 and May 15 letters. The court
provided that "clearly these letters and attached documents gave Wolny notice of the
charges made against him."

¶22 We conclude that the District Court was correct in holding that the notice was
adequate.

                                                             ISSUE TWO

¶23 Did the District Court err when it concluded that the Police Commission properly


 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-826%20Opinion.htm (5 of 11)1/18/2007 10:30:32 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-826%20Opinion.htm


considered the testimony of Carolyn Thomas?

¶24 Wolny contends that the Police Commission discounted the testimony of Carolyn
Thomas because it was in the form of deposition testimony. Wolny claims this was
prejudicial to him because Thomas was in the best position to view the collision from her
car and, of the witnesses, her testimony was most favorable to him.

¶25 Wolny points to the statements made by Police Commissioner Jim Drummond as
evidence that the Commission did not give proper consideration to Thomas' testimony.
During the hearing, Drummond stated that "[t]he account of Mr. Wolny differs from the
four eyewitnesses but is similar to that of Miss Carol Thomas, who was closest to the
scene. Miss Thomas did not testify in person and was not available for cross-
examination." Drummond's statement is incorrect. Thomas was cross-examined during her
deposition and both attorneys were present.

¶26 However, we conclude there was no prejudice from Drummond's misunderstanding.
The other two of the three Commissioners stated their conclusions before Drummond
spoke and demonstrated no similar confusion. Moreover, Thomas' testimony was not
entirely helpful for Wolny's case. She testified that Wolny questioned both her and another
witness about the collision directly following the collision, which he denies. Furthermore,
her description of the incident differed from his description.

¶27 According to the District Court, the Commission did, in fact, give weight to Thomas'
testimony, citing their Findings of Fact numbered 6, 11, and 18 as based in part on her
testimony. The District Court also found that:

        Each of the Commissioners discussed their individual findings about the use of
        force issue before Commissioner Drummond made his comment about Thomas.
        Although Commissioner Drummond may have been mistaken about the cross-
        examination of Thomas, there is no indication from the Commissioners' comments
        that the mistake had any influence on the findings of each Commissioner concerning
        the use of force charge.

¶28 We therefore conclude that the District Court was correct in finding that the
Commission did not discount Carolyn Thomas' testimony.

                                                            ISSUE THREE


 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-826%20Opinion.htm (6 of 11)1/18/2007 10:30:32 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-826%20Opinion.htm


¶29 Is the Police Commission's finding that Wolny was insubordinate supported by
substantial evidence?

¶30 Wolny contends that insufficient evidence exists to support a finding of
insubordination. The charge of insubordination arose from Wolny's refusal to answer
Chief Tymrak's questions despite being warned in writing that any refusal to answer
questions would be a violation of his direct order. Wolny argues that Tymrak did not
articulate during the meeting that Wolny's failure to provide oral answers would result in a
violation of Tymrak's order.

¶31 The record shows that during the May 20 hearing, Wolny specifically refused to
answer any questions regarding Dr. Lang's sketch diagrams. Chief Tymrak wrote Wolny
and ordered him to come to his office on May 22 to answer certain questions. Tymrak
clarified in the letter that if Wolny should choose not to answer his questions, then Tymrak
would consider that to be a violation of a direct order and insubordination.

¶32 Insubordination has been described as a "constant and continuing intentional refusal to
obey a direct or implied order reasonable in nature and given by and with the proper
authority." Lockhart v. Board of Educ. (Colo.Ct.App. 1986), 735 P.2d 913.

¶33 Employers have the right to compel their employees to answer questions which
reasonably relate to the employee's fitness to perform duties or relate to their job
performance. Furthermore, determination that insubordination has occurred presents a
factual issue for the commission to decide. In Tymrak's letter to Wolny requesting his
presence, he wrote that:

        [t]his is not a criminal case and whatever information you provide me which may be
        incriminating to yourself will not be used against you in any criminal proceeding.
        The Officer's Bill of Rights requires you to answer any questions regarding non-
        criminal matters under investigation. You are hereby ordered to answer the above
        questions. You must report to my office at 10:30 a.m. on Friday, May 22, 1998 to
        answer these questions. If you choose not to answer, I will make my decision based
        upon the information provided to date and I will treat the refusal as insubordination
        and a violation of a direct order.

¶34 The District Court states "in this case there was no uncertainty regarding Tymrak's
order or the consequences of refusing that order . . . . There is sufficient evidence to

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-826%20Opinion.htm (7 of 11)1/18/2007 10:30:32 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-826%20Opinion.htm


support the Commission's finding that Wolny was insubordinate." We agree with the
District Court that Tymrak's intent was clear and that Wolny's refusal to answer questions
amounted to insubordination. If written answers were all that was being requested, it
would not have been necessary that Wolny report to Tymrak's office to provide them.

¶35 Therefore, we conclude that the District Court did not err in affirming the
Commission's finding of insubordination.

                                                             ISSUE FOUR

¶36 Did the District Court err when it concluded that the Commission properly excluded
the disciplinary history of other officers?

¶37 The Police Commission excluded any evidence of previous police officer discipline as
irrelevant to the hearing. Wolny objects to the exclusion of this evidence because the
Commission has the power to modify the discipline imposed and, therefore, he contends
that any evidence of previous disciplinary actions is relevant to the determination of
whether Wolny's discipline was too severe. The standard of review for evidentiary rulings
is whether the hearing officer abused his discretion. Seizure of $23,691 in U.S.
Currency (1995), 273 Mont. 474, 479, 905 P.2d 148, 152.

¶38 We have held previously that a "review of the pertinent precedent shows that past
conduct or action is never admissible as relevant in a case regarding a specific charge." In
the Matter of Raynes (1985), 215 Mont. 484, 492, 698 P.2d 856, 861. Evidence of other
disciplinary actions is not relevant to whether the actions of Officer Wolny justify the
termination of his employment.

¶39 We conclude that the District Court did not err when it excluded evidence of past
discipline of other officers.

                                                              ISSUE FIVE

¶40 Does sufficient evidence exist to support the Commission's finding that the City
complied with its progressive discipline policy when the City did not offer Wolny's
personnel file at the hearing?

¶41 Chief Tymrak stated that termination was the only possible remedy under the City's
progressive discipline policy. Wolny contends that there was insufficient evidence of this
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-826%20Opinion.htm (8 of 11)1/18/2007 10:30:32 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-826%20Opinion.htm


fact because the City did not offer Wolny's personnel file as evidence or prove its
adherence to the City's progressive discipline policy.

¶42 However, Wolny was not being terminated for his past actions, nor was the Police
Commission summoned in order to rule on these past actions. Wolny was terminated from
the police force based on his actions on October 10, 1997, and how he reacted once the
investigation began. In Tymrak's letter to Wolny, terminating his employment, Tymrak
stated that Wolny was being terminated for the following reasons: (1) Wolny was
insubordinate when he refused to respond orally to Tymrak's questions; (2) Wolny
violated the Use of Force Policy on October 10, 1997; (3) Wolny violated the Personal
Conduct Introductory Provision, the Incompetence Policy and the Misrepresentation
Policy of the Police Department Code of Conduct; and (4) Wolny violated the Employee
Handbook, specifically the Employee Misconduct section.

¶43 Furthermore, the City's progressive discipline policy was offered into evidence and
Wolny himself testified about prior disciplinary actions. Finally, failure to comply with the
discipline policy was never made an issue at the Commission hearing.

¶44 We conclude that sufficient evidence exists to uphold the termination of David
Wolny's employment with the City. We affirm the opinion and order of the District Court.

                                                /S/ TERRY N. TRIEWEILER

                                                              We Concur:

                                                         /S/ JIM REGNIER

                                                    /S/ JAMES C. NELSON

                                               /S/ W. WILLIAM LEAPHART

                                                    /S/ PATRICIA COTTER



Justice James C. Nelson specially concurs.

¶45 I concur in our opinion. I write separately as to one point only.

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-826%20Opinion.htm (9 of 11)1/18/2007 10:30:32 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-826%20Opinion.htm



¶46 In ¶ 38 we quote In the Matter of Raynes (1985), 215 Mont. 484, 492, 698 P.2d 856,
861, that "[a] review of the pertinent precedent shows that past conduct or action is never
admissible as relevant in a case regarding a specific charge." We did make precisely this
statement in Raynes, and, as in the case at bar, we made it in response to Raynes' argument
that he was entitled to obtain information concerning various disciplinary cases involving
police officers other than himself. Raynes, 215 Mont. at 492, 698 P.2d at 861.
Unfortunately, in Raynes we never cited the "pertinent precedent" which we had reviewed
to support this purported statement of the law. In fact, we did not cite any authority at all
in our discussion of this particular sub-issue.

¶47 That said, while it is true that in a disciplinary proceeding involving a particular police
officer, the disciplinary histories of fellow police officers are not often relevant as
                                                                    (1)
evidence as held in Raynes and in this case, I do not agree with the broad and imprecise
statement in Raynes that "past conduct or action is never admissible as relevant in a case
regarding a specific charge." Actually, the past conduct or actions of the officer being
disciplined may well be quite relevant to the specific charge for which he is being
prosecuted or disciplined, as was true in this case. Rule 404(b), M.R.Evid., in fact, allows
precisely this type of evidence for some purposes and under appropriate circumstances.

¶48 Accordingly, with that clarification of my vote, I concur.

                                                    /S/ JAMES C. NELSON

Justices Patricia O. Cotter, W. William Leaphart, and Jim Regnier concur in the foregoing
special concurrence.

                                                    /S/ PATRICIA COTTER

                                                         /S/ JIM REGNIER

                                              /S/ W. WILLIAM LEAPHART

1. I have not separately researched the issue of when employer conduct toward other, uninvolved
employees is relevant in a disciplinary proceeding, and do not, therefore, know when it is ever
admissible as evidence in such a proceeding. Disciplinary proceedings cannot be turned into wide
ranging investigations of agency practice and exposure of unrelated disciplinary actions against other
employees without some indication of relevance as required by the Montana Rules of Evidence. Rule


 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-826%20Opinion.htm (10 of 11)1/18/2007 10:30:32 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-826%20Opinion.htm

401, M.R.Evid. Therefore, I agree that the Police Commission and District Court did not abuse
discretion in excluding the evidence. In any event, Wolny did not cite any authority supporting his
argument that fellow police officers' disciplinary histories were relevant to his case, and the City relied
on Raynes. Thus, as far as I am concerned, Wolny did not meet his initial burden of persuasion on this
issue, nor did he rebut the City's argument. Rule 23(a)(4), M.R.App.P.




 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-826%20Opinion.htm (11 of 11)1/18/2007 10:30:32 AM
