                                No. 88-69
               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                   1988




BRIAN S. OLSON,
                Petitioner and Appellant,
       -vs-
STATE OF MONTANA, DEPARTMENT OF REVENUE,
and JOHN NICOLAY, Supervisor,

                Respondents.




APPEAL FROM:    District Court of the Fifth Judicial District,
                In and for the County of Beaverhead,
                The Honorable Thomas Olson, Judge presiding.
COUNSEL OF RECORD:

       For Appellant:

                Kozakiewicz Law Office; Vincent J. Kozakiewicz argued,
                Dillon, Montana
       For Respondent:

                Larry Schuster argued, Dept. of Revenue, Helena,
                Montana
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                                  Submitted: September 12, 1988
                                    Decided: December 1, 1988

                                            ...-
Mr. Justice Fred J. Weber delivered the Opinion of the Court.

     Mr. Olson filed a petition in the District Court for the
Fifth Judicial District, Beaverhead County, alleging that the
Department of Revenue (DOR) denied him his right to veterans'
and handicapped persons' preference in employment. After a
hearing, the court determined that Mr. Olson was not entitled
to application of the preference because he was not substan-
tially equally qualified with the successful job applicant.
Mr. Olson appeals. We affirm.
     We restate the issues as 1) whether the DOR erred in
considering application of the preference only after using
its objective scoring system to evaluate the applicants, and
2) whether the DOR and the District Court properly concluded
that Mr. Olson was not substantially equally qualified with
the successful applicant.
     Mr. Olson applied for a job as an appraisal clerk with
the DOR in Dillon, Montana, claiming a preference in hiring
under the Montana Veterans' and Handicapped Persons' Employ-
ment Preference Act (Act).    Mr. Olson's right to claim a
preference has not been questioned. The DOR used an exten-
sive objective scoring system for rating the 56 applicants
for the position. The scoring system had three subsections:
the applications, written examinations, and oral interviews.
The applicants who received the top 17 point scores based on
their applications were asked to sit for written examina-
tions. Mr. Olson was one of these. Then the persons with
the top 12 point scores on the written exams were orally
interviewed. Mr. Olson was orally interviewed. The candi-
dates were given point scores by each of the three inter-
viewers and the three scores were averaged.     These scores
were added to the scores on the applications and the written
exams.   The scoring system awarded up to 97 points for the
applications, up to 78 points for the written examinations,
and up to 90 points for the oral interviews.
     The applicant with the highest total score had a total
of 219 points. The second-place applicant had a total score
of 213.2 and Mr. Olson's total score was 201.6.     After the
point scores were totaled, the DOR determined that there was
no tie or close grouping of applicants justifying application
of the veterans' and handicapped persons' preference on Mr.
Olson's behalf.   When the job was given to the top-scoring
applicant, Mr. Olson went to District Court, arguing that the
rating system used by the DOR denied him his right to a
preference in hiring.   He now appeals the District Court's
determination that he was not entitled to preference in
hiring.
                              I
     Did the DOR err in considering application of the pref-
erence only after using its objective scoring system to
evaluate the applicants?
     Mr. Olson contends that the scoring procedure used by
the DOR did not give proper effect to the preference to which
he was entitled.   He argues that the preference should have
been considered prior to use of the scoring system, and that
consideration of the preference only after applying the
scoring system renders the preference statute void.
     In 1983, this Court defined the nature of Montana's
veterans' and handicapped persons' preference under the
statutes then in effect.   Crabtree v. Montana State Library
(1983), 204 Mont. 398, 665 P.2d 231. The Court adopted the
lower court's opinion that the then-existing statute gave
"Montana veterans and disabled civilians who meet the minimum
qualifications for a state, county or municipal job an abso-
lute preference over all other non-veterans or non-disabled
civilians." Crabtree, 665 P.2d at 234.
     In December of 1983, the Montana Legislature met in
special session. During that session, it amended the employ-
ment preference statutes to their present form. In introduc-
ing this legislation, its sponsor set forth a statement of
intent which included the following:

          A statement of intent is provided to address
     the nature of the employment preference granted in
     the bill.    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 appli-
     cants for a position who have substantially equal
     qualifications. Substantially equal qualifications
     does not mean a situation in which two or more
     applicants are exactly equally qualified. It means
     a range within which two applicants must be consid-
     ered to be substantially equal in view of the
     qualifications set for the job.      Qualifications
     should include job-related knowledge, skill, and
     abilities. The legislature recognizes that public
     employers use a variety of scored and unscored
     selection procedures such as conventional written
     examinations, training and experience requirements,
     performance tests, structured oral interviews, or
     combinations of these.    The legislature does not
     intend to specify the type of selection procedure
     to be used by a public employer.
The word "tie-breaker" was deleted in committee. However,
the minutes of the committee meetings of the Judiciary Com-
mittees of both the Senate and the House demonstrate consid-
erable dissatisfaction with the absolute preference accorded
under Crabtree.
     Title 39, Chapter 30, MCA, the resulting Act, provides
at S 39-30-201, MCA, that a job applicant who is a veteran or
handicapped person and claims the right to a preference is
entitled to be hired "over any other applicant with substan-
tially equal qualifications who is not a preference eligible
applicant."   The term "substantially equal qualifications" is
defined at S 39-30-103 (9), MCA:

     "Substantially equal qualifications" means the
     qualifications of two or more persons among whom
     the public employer cannot make a reasonable deter-
     mination that the qualifications held by one person
     are significantly better suited for the position
     than the qualifications held by the other persons.
We must presume that in amending the preference laws, the
Legislature intended to make some change in the existing law.
Mont. Dept. of Rev. v. Am. Smelting & Refining (1977), 173
Mont. 316, 325, 567 P.2d 901, 906.      We conclude that in
amending the veterans' preference statutes, the Montana
Legislature meant to abolish the absolute employment prefer-
ence for veterans and handicapped persons who possess the
minimum qualifications for a job. Being minimally qualified
for the job is no longer enough.
     Additionally, the Legislature did not limit the hiring
authority to any particular method of assessing job appli-
cants' relative qualifications. The assertion that the DOR
never took a look at the relative qualifications of Mr. Olson
and the successful applicant ignores the comparison by use of
the point system.    We conclude that the DOR gave proper
effect to the statutes in first determining applicants' point
scores, then considering whether the preference should be
applied.
                              I1
     Did the DOR and the District Court properly conclude
that Mr. Olson was not substantially equally qualified with
the successful applicant?
     Section 39-30-207 (3)(a), MCA, sets forth the burden of
proof in an action such as this one:
     Upon filing of the petition, the court shall order
     the public employer to appear in court    . . .and
     show cause why the applicant was not hired for the
     position. At the hearing, the public employer has
     the burden of proving by a preponderance of the
     evidence that the employer made a reasonable deter-
     mination [of substantial equal qualifications]  . .
     The specific objections made hy Mr. Olson to the point
score he was awarded relate to the application portion of the
scoring procedure.    The applications of Mr. Olson and the
successful applicant were in evidence before the District
Court. The job they were applying for was a clerical posi-
tion in the county appraisal office. The successful app1i.-
cant had. worked for 10 years as an operations assistant for
an agricultural lender and for 4 years as a bank teller. As
the District Court found, "clerical work is not the central
theme of [Mr. Olson's] work experience. " Mr. Olson's appli-
cation shows that he has worked as a surveyor aide for the
U.S. Forest Service and a private engineering firm, a crew
leader for a scout section of the National Guard, a mainte-
nance worker, a ranch hand, a boiler operator, a logger, a
board edger, and a warehouseman.
     In view of Mr. Olson's argument that the DOR acted
unreasonably in scoring his application for employment, we
quote from parts of the trial transcript. Mr. Nye, who was
responsible for scoring the applications testified as
follows:

         Q. Now, Mr. Nye, what I would like to do is
    to take you through your analysis of Mr. Olson's
    employment application, if I may.  ...
         Would you explain for the Court how you deter-
    mined that Mr. Olson should have sixteen points for
    education?
         A. Because he had a high school diploma,
    which gave him eight points; and he had four years
of college, which gave him another eight, for a
maximum of sixteen.


     Q. The third column is entitled "clerical
office experience". Would you explain to the Court
why Mr. Olson was given six points for that?
     A. He was given six points based on two
points per year for his time in the military in
which his application indicated he had clerical
experience all three years.
     Q. Mr. Olson was awarded four points for
deeds and property description experience. Why did
he get four points for that?
     A. He had some surveying experience and we --
from his application it indicated that he had about
a year's experience on that in which he would be
working with deeds and legal property descriptions.
     Q. Mr. Olson received twelve points for
typing experience; am I reading that correctly?
    A.   No.
     Q. For mapping experience.    Why did he re-
ceive that?
     A. In his years as a surveyor he would re-
ceive the points for one year at least there. And
he'd had some mapping experiences indicated in
locating mining claims and various private proper-
ties, so I gave him extra points for that.
     Q. Mr. Olson was afforded four points     for
typing experience. Would you explain that?
     A. Four is all I could get out of his appli-
cation, which would be four points per year would
be about one year was all I could find on his
application that indicated he was doing actual
typing.
     Q. And with respect to calculator experience,
have you given him any credit for that?
     A. Yes, I've given him four points for calcu-
lator experience based on the fact that he was
probably using a calculator during his surveying.
     Q. And then there's a column entitled "other
office machine experience"; do you see that?
    A.     Yes, sir.
     Q. And would you tell the Court what that
pertains to, please?
     A. Either they would have experience along
some sort of computer or other office machine.
None was indicated on his application; and there-
fore, I could give him no points.


     Q. Now, did you screen the initial employment
application form for Ms. Cindy Doering?
    A.     Yes, I did.
     Q. And I'd like t o have you go through your
                       .
examination and scoring of her employment applica-
tion form in the same fashion that we did for Mr.
Olson. .   . .Why was Ms. Doering given ten points
for education?
     A. She had her high school diploma plus one
year at Western Montana College.
     Q. And she received six points for clerical
office experience. Why did she receive that?
     A. She was employed in a clerk and secretary
position both with the -- well, with the Federal
Land Bank, which was the maximum I could give her.
     Q. And she has twelve points for deeds and
property experience.  How did you achieve that
rating?
     A.    She had eight to ten years of experience
with the   Land Bank in which she was doing deeds and
property   descriptions in there as well. And I was
able to    give her the maximum, which was twelve
points.
          Q. And why was she afforded twelve points for
     mapping experience?
          A. It would be the same program.     She'd had
     the experience over there at the Land Bank.
          Q. Why did she     receive   eight   points   for
     typing experience?
         A. Because in her job at the Land Bank she
    was also typing up all these descriptions and doing
    the secretarial work there. And she had more than
    the two years experience.
          Q. And would you tell the Court why she was
     given eight points for calculator experience?
          A. Because in her figuring of acreages and so
     forth in all the years that she was at the TAand
     Rank she had a maximum there.
          &.  And finally, why was she afforded         six
     points for other office machine experience?
          A. There was two other machines that she
     indicated in her application that she was using at
     the Land Bank office for which she was allowed the
     six points.
Based on our review of the record, we hold the District Court
did not abuse its discretion in concluding that the DORIS
scoring procedure was reasonable.
     Mr. Olson argues that this position was advertised as
entry-level with possible on-the-job-training and that he was
substantially equally qualified for a position of that de-
scription with the successful applicant. But the determina-
tion of substantially equal qualifications is not limited to
the qualifications set forth in the position advertisement:
     Hamner contends, however, that the criteria for
     judging applicants for the position at issue is
     contained solely in the advertisement     ...
                                                 solic-
     iting proposals, and that the only criteria in the
     advertisement for judging applicants is that they
     be attorneys.    We disagree.    The advertisement
     solicits proposals demonstrating the applicant's
     ability to provide extensive legal services for the
     County. An analysis of that ability, rather than
     the advertisement itself, constitutes the criteria
     for judging an applicant's qualifications for the
     position. Here, substantial evidence supports the
     District Court's finding that the County correctly
     determined that Hamner's qualifications were not
     substantially equal to the firm awarded the con-
     tract. Thus, this contention fails.
Hamner v. Butte-Silver Bow County (Mont. 1988), 760 P.2d 76,
79-80, 45 St. Rep. 1481, 1485. We conclude that where Mr.
Olson's total point score was 201.6 and the successful appli-
cant's was 219 and where the record supports that difference
in scores, the District Court did not err in ruling that the
DOR met its burden of proving that Mr. Olson and the success-
ful applicant were not substantially equally qualified. This
is not to say, as Mr. Olson claims, that in order to be
eligible for the preference, he would have to have been the
top-scoring applicant. We hold that the conclusion that Mr.
Olson was not substantially equally qualified with the suc-
cessful applicant does not represent an abuse of discretion.
     Affirmed.



We Concur:     -4



_k    Chief Justice
Mr. Justice John C. Sheehy, dissenting:


     The majority has given the statehouse gangs a blueprint
on how to avoid the veterans1 preference in job hiring.
Simply parse the experience of the favored non-veteran into
as many segments as needed, and award each segment the
maximum points.
     The successful applicant here was employed for ten years
as an "operations assistant" at the local office of the
Federal Land Bank.   She did clerical and stenographic work.
For that experience her job was segmented as follows:
     Clerical office experience         6 points
     Deeds and property descriptions   12 points
     Mapping                           12 points
     Typing                             8 points
     Calculators                        8 points
     Other machines                     6 points
                 Total                    52 points

     Olson had    done work   as a surveyor, had successfully
completed a real estate training course, held a current real
estate license for the state of Idaho, and had computer
experience. Witness his comparable scoring:
     Deeds and property descriptions   4 points
     Calculators                       4 points
     Other machines                    0 points

     The "other machines" for which the successful applicant
got maximum points were a bank proof machine, a bank posting
machine, and a copy machine. The scorers did not include the
water cooler, but probably would have if needed.      None of
these machines is used by an appraisal clerk except the copy
machine, the technical difficulty of which can be mastered by
a first-grader.      The scorers ignored Olson's computer
experience.
     Having rigged the scores for the successful applicant,
the scorers then ignored the law, which declares that if the
applicants are substantially equally qualified, the veterans'
preference is decisive. Olson could not be hired under the
scorers' view unless he had the highest score, but then he
would not have to call on his preference rights. Thus is the
veterans' preference emasculated.
     Olson is not only a Viet Nam veteran, but is also a
certified handicapped person. He was entitled to the job on
both counts. We should make sure he ot it.
                                  A




     I concur in the foregoing dissent of Justice Sheehy.
