                                NO. 88-44
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1988



J. L. HAMNER,
                Petitioner and Appellant,
       -vs-
BUTTE/SILVER BOW COUNTY, a Political
Subdivision of the State of Montana
and TIM CLARK, Butte/Silver Bow Personnel
Director,
              Respondents.




APPEAL FROM:    District Court of the Second Judicial District,
                In and for the County of Silver Bow,
                The Honorable Arnold Olsen, Judge presiding.
COUNSEL OF RECORD:
       For Appellant:
                John Leslie Hamner, Butte, Montana
       For Respondent:
                Robert McCarthy, County Attorney, Butte, Montana
                Brad Newman, Deputy County Attorney, Butte



                                  Submitted on Briefs:   June 30, 1988
                                    Decided: August 18, 1988

Filed: %u8 1 8 1988



                                  Clerk
Mr. Justice R.C.   McDonough delivered   the Opinion   of the
Court.

      This appeal from the Second Judicial District questions
the validity of the District Court's declaratory judgment.
Appellant Hamner claims that the lower court erred in
declaring his rights under Montana laws relating to veteran's
preferences and procurement of public defender legal
services. We affirm.

                           ISSUES
      Respondent Butte-Silver Bow County's (County's) brief
provides a more workable listing of issues than Hamner's
brief. Hamner's brief provides several contentions which may
be addressed under the issues presented by the County. Those
issues are:
      (1) Did the District Court err in holding that the
contract in question herein, calling for the provision of
certain legal services to the Butte-Silver Bow local
government, created an independent contractor relationship?
      (2)   Did the District Court err in holding that 5
39-30-103 (7)(g), MCA, exempted the contract in question
herein from the statutory employment preference claimed by
Hamner?
      (3) Did the District Court err in holding that even if
Hamner were entitled to claim statutory public employment
preference, his qualifications to provide the legal services
in question herein were not substantially equal to those of
the law firm to which the contract was awarded?
      The relevant facts are as follows:        The County
advertised for proposals to provide legal services as
follows:
           REQUEST FOR PROPOSAL
           The Butte-Silver Bow Local Government is
           currently accepting written proposals
           from qualified individuals and firms for
           the provision of certain legal services.
           These services are associated with the
           requirements imposed upon counties to
           provide for Juvenile Defender and the
           representation of the Butte-Silver Bow
           Welfare Department in legal proceedings
           (53-2-303 MCA.) In addition to the above
           two areas, Butte-Silver Bow also requires
           legal representation in certain personnel
           management functions.
           This request for proposals requires
           qualified   respondents   to   adequately
           provide   for   the   representation   of
           inidigent [sic] youths in Youth Court
           representation of the Butte-Silver Bow
           Welfare Department in such proceedings as
           required by law, and representation of
           the local government as deemed necessary
           or appropriate in areas such as grievance
           and     arbitration    matters,     labor
           negotiations, police and fire commission
           proceedings, and other similar matters.

      Hamner submitted a proposal, and informed the County
that he qualified for a veteran's preference in County
hiring. The County rated Hamner's proposal ninth out of nine
proposals, and contracted the services to a Butte law firm.
The County refused to consider Hamner's veteran's preference
status. Hamner objected and filed this action.
      In the lower court, the County contended that the
veteran's preference provided by Montana law does not apply
to hiring independent contractors.    Hamner contended that
there was no independent contract.
      The County also argued that Hamner could not claim
veteran's preference because his proposal for the position
was not substantially equal to the proposal of Henningsen and
Purcell, the law firm which received the contract. Hamner
responded that the advertisement provided the criteria for
judging   whether   an  applicant's   qualifications   were
substantially equal. The same arguments are made on appeal.



       The District Court found that the express language
the contract provided independent contractor status for
Henningsen and Purcell.     The District Court also concluded
that: the County had no right to control the firm, the firm
is customarily engaged in an independent practice, and that
the contract to provide legal services for the County was
unnecessary for the firm to continue its business.       These
facts led the District Court to conclude that the County
awarded an independent contract.
       Hamner attacks these findings arguing that the contract
provision calling for monthly payments establishes an
employment relationship. We disagree. The fact that payment
occurs in monthly installments does not necessarily establish
an employment relationship. We hold that the District Court
correctly considered the facts relevant to determining the
issue.    See Standard Chemical Manufacturing v. Employment
Security Division (1980), 185 Mont. 233, 605 P.2d 610. Thus,
Hamner's argument on this issue fails.



      Hamner contends that the District Court erred by
failing to interpret the intent and effect of the words
"employment", "employ", and      "salaried", as   used   in
§ 7-5-2107, MCA,    7-4-2708, MCA, and § 46-8-202, MCA, in
conjunction with veteran's preference and funding of public
defenders under § 3-5-901, MCA. See also 5 7-6-2351, MCA; §
7-6-2511, MCA.
      Section 7-5-2107, MCA, states that a board of county
commissioners may "employ such persons as it deems necessary
to assist the board in the performance of its duties".
Section 7-4-2708, MCA, gives contracting authority to county
commissioners, upon consent of the county attorney, to
"employ any other attorney licensed in Montana to perform any
legal service in connection with the civil business of the
county." Section 46-8-202, MCA, gives counties the authority
to create a public defenders office, and S 3-5-901, MCA,
directs funding, to the extent money is appropriated, for
indigent defense. S 7-6-2351, MCA, and § 7-6-2511, MCA, also
concern district court funding.
      Hamner claims that the District Court failed to provide
a proper declaratory judgment by not addressing these
statutes in its memorandum.      Hamner also contends that
legislative intent, as well as the combined effect of these
statutes, mandates application of veteran's preference laws
for the position at issue. We disagree.
      First, in regard to the contention that the District
Court inadequately addressed these statutes, we note that the
lower court concluded that:

         Section 46-8-202, MCA 1985, does not require
    that the contract for provision of the legal
    services at issue herein be a "salaried office of
    public employment."
     ...
         Pursuant to Section 7-1-102, MCA         1985,
    Butte-Silver Bow County may provide any services or
    perform any functions not expressly prohibited by
    state law.     Butte-Silver Bow County's power and
    authority must be liberally construed.
             -                   -              Section
    7-1-106, MCA 1985. There is no express prohibition
    under    Montana   law   precluding or   preventing
    Butte-Silver Bow county from entering- into an
    independent contractor relationship for provision
    of the legal services at issue herein.    (Emphasis
    added. )
This conclusion adequately addresses the contentions made by
Hamner as to the meaning of the words in the statutes cited
by Hamner. The import of the conclusion is that the statutes
do not provide Hamner with the relief he requested.
      Second, we agree with the District Court that neither
the legislative intent nor the combined effect of the
statutory words singled out by Hamner constitutes an express
prohibition of independent contracts to provide public
defender services. Under the facts of this case, Hamner's
claim in regard to these statutes fails without such a
conclusion.   See S 39-30-103(7) (g), MCA; 5 7-1-106, MCA.
      A further argument by Hamner is that funding for the
contract pursuant to 5 46-8-202, MCA, mandates an employment
relationship.    The funding under the statute is for a
salaried public defender.   We also agree with the District
Court on this point, and hold that the language in the
statute does not constitute an express prohibition of
independent contracts.
      In summary, the statutes cited by Hamner provide
discretion to the County to establish employee positions.
They do not mandate that the positions be established to the
exclusion of independent contracts.
      We also reject Hamner's contention that the existence
of prior identical contracts which created employment rather
than   independent   contractor   relationships   proves  an
employment relationship here.     The mere existence of the
prior relationships is not enough under the facts of this
case to sustain the contention.

                            111.
      Moreover, we agree with the District Court that even if
Hamner could validly claim a veteran's preference, Hamner's
proposal was not substantially equal. The County provided
evidence showing that Henningsen and Purcell's proposal
better matched the requirements of the position.
      Hamner contends, however, that the criteria for judging
applicants for the position at issue is contained solely in
the advertisement (set out above) soliciting 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 contract. Thus, this contention fails.
      Hamner also argues that the lower court's adoption of
the County's proposed findings and conclusions in this case
constitutes error.     We disagree.     Under the facts and
applicable law of this case, we hold that the District Court
did not act improperly in adopting the findings and
conclusions proposed by the County.
      Thus, we affirm all issues and contentions.
