                                        No. 84-85
                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                1984



E. ROY HUTCHIN,

                 Petitioner and Appellant,


THE STATE OF MONTANA, acting
by and through its Deptartment
of Fish, Wildlife and Parks,

                 Respondent and Respondent,




APPEAL FROM:     District Court of the Eleventh JudZcial District,
                 In and for the County of Flathead,
                 The Honorable J. M. SaLansky, Judge presiding.

COUNSEL OF RECORD:
     For Appellant:

                 Murphy, Robinson, Heckathorn                  &   Phillips; Donald R.
                 Murray, Kalispell, Montana

     For Respondent:
                 James E. Gardner, Board of Personnel Appeals,
                 Helena, Montana
                 Stan Bradshaw, Dept. of Fish, Wildlife & Parks,
                 Helena, Montana



                                        Submitted on Briefs:             May 17, 1984
                                                             Decided:    October 16, 1984



Filed:
         OCS 1. .I 1384

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                                        Clerk
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Mr. Justice John C.             Sheehy delivered the 0pi.nion of the
Court.

       E.   Roy    Hutchin       appeals     from   a   final order    of     the
District Court, Eleventh Judicial District, Flathead County,
affirming the final order of the Board of Personnel Appeals
respecting an employment dispute between Hutchin and the
Department of Fish, Wildlife and Parks.
       Prior to November 2, 1978, Hutchin had been employed by
the Department as           a    Park Manager        I employee.       His    job
included     some duties         as    ex    officio    game warden     in    the
Blackfoot River area, and he was housed in the accommodations
in the Luhrecht Forest headquarters.
       On November 2, 1978, Hutchin was discharged from his
employment        because       he    and    a   fell-ow employee      used    a
state-owned vehicle to transport. the fellow employee to a
hunting     area, and       to carry back           to the Lubrecht Forest
headquarters an elk which the fellow employee had killed.
Hutchin's discharge was reviewed by the Department, which
approved the discharge.               Thereupon, Hutchin sought relief
from other state agencies and eventually filed a grievance
with the Board of Personnel Appeals.
      A hearing examiner for the Board of Personnel Appeals
determined that the discharge was proper.                  Hutchin appealed
this determination to the Board itself which reversed the
recommendation of the hearing examiner.                 The Board found that
although the Department had discharged Hutchin by reason of
the   provisions      of     section        2-17-423,   MCA,   which   forbids
personal     use    of     state-owned       property,    nevertheless,       the
Department had never adopted regulations nor advised Hutchin
as    to what      constitutes authorized            or official use of a
vehicle as opposed to unauthorized or unofficial use thereof.
The     Board   further    found    that        the   Department    had    not
consi-stently interpreted          and    enforced      section    2-17-423,
because of other       instances of unauthorized use of                   state
vehicles in which the perpetrators were not punished by the
Department.
      The order of the Board of Personnel Appeals of February
23, 1981, directed that Hutchin "be reinstated as of the date
of    this   final order    to     the position        he   held   with    the
department" at the time of his termination.
      The Department advised that the position which Hutchin
had formerly held had been filled and wa.s not available, and
asked for a clarification of the order.                  In the meantime,
Hutchin had appealed the decision of the Board of Personnel
Appeals to the District Court.              On January 21, 1.981, the
District Court remanded the matter to the Board of Personnel
Appea 1s for further determinations.              Accordingly, the Boa-rd
of Personnel Appeals, in an order dated March                      17, 1982,
determined to amend its earlier order to provide that the
petitioner was not entitled to back pay                     from and after
November 2, 1978, nor to retroactive application of benefits,
nor to advancement of grade and seniority as would have
accrued if it had not been for his discharge; and further to
state    that   its   reason     for     such    determination was        that
although the empl-oyee's action was a technical violation of
state law, the departmental policy was so ambiguously stated
that the employee was not given full notice thereof.
       In addition, the Board of Personnel Appeals amended its
earlier order to provide that Hutchin be reinstated as of the
date of the amended order, May 28, 1981, "to his former or
substantially equivalent position."
      Hutchin appealed the final order of May 28, 1981, to the
District Court.        On November 18, 1983, the District Court
adopted verbatim the proposed opinion and judgment submitted
by the Department, and affirmed the final order of the Board
of Personnel Appeals as amended.              It is from the order of
November 18, 1983, that Hutchin here appeals.
      Hutchin raises these issues:
      1.    Hutchin should have been awarded Sack pay and lost
employment benefits as a result of his wrongful discharge.
      2.    Hutchin should receive additional wages from the
date of     the   final order until          the time he was         finally
reemployed by the Department.
      3.     The Department failed to restore Hutchin to a
substantially equivalent position.
      4.    The District Court erred in holding that under
section 2-4-702,       MCA,    it     could not     "expand the   relief"
granted by the Board of Personnel Appeals.
      5.    The District Court erred in failing to conduct an
evidentiary hearing to compare the positions, or to remand
the   question    to   the    Board    of    Personnel Appeals       for an
evidentiary hearing.
BACK PAY
      Hutchin contends that once it was determined that his
discharge was wrongful, he was entitled to back pay for the
time of his wrongful discharge, and all the benefits that
would ordinarily accrue to him.
      Any   aggrieved    employee       of   the   Department   of    Fish,
Wildlife    and   Parks who     has     exhausted    the administrative
remedies within the Department, is entitled to a hearing
before the Board of Personnel Appeals, and any order of the
Board is bindinq upon the Department.              Section 87-1-205, MCA;
section 87-1-403, MCA.
      Under    section    87-1-205, MCA, proceedings before                 the
Board.   of    Personnel       Appeals    are      governed   by     sections
2-18-1011, -1012,        -1013, MCA.          In    effect the      Board    of
Personnel     Appeals may       issue an order to the appropriate
agency "requiring such action as will resolve the employee's
grievance," section 2-18-1012, and either the Board or the
employee may petition           for the enforcement of the Board's
order in District Court.         Section 2-18-1013, MCA.
      It is apparent from section 2-18-1012, MCA, that if the
Board of Personnel Appeals determines that. the employee is
aggrieved, it has full discretion to resolve the employee's
grievance.
      In this case the Board determined not to sustain the
discharge of Hutchin because the Department of Fish, Wildlife
and Parks had not articulated regulations respecting the use
of state-owned vehicles, and had permitted personal use of
such vehicles by others.            The Board of Personnel Appeals
obviously determined that Hutchin had violated state law in
the personal use of the state-owned vehicle but that under
the   circumstances,       it    was     inequitable     to    require      his
discharge.     Instead the Board of Personnel Appeals determined
that he should be reinstated without back pay.                     It was the
determination     of     the    Board    of     Personnel     Appeals    that
Hutchin's grievance could be resolved simply by reinstating
him to his same or equivalent position.                The District Court
and   this Court are bound by that determination, lawfully
within the power of the Board of Personnel Appeals.                         See
section 2-18-1013, MCA, infra.
RACK PAY FOR THE INTERIM PERIOD
     Hutchin further contends that he is entitled to hack pay
from the date of the final order of the Board of Personnel
Appeal-s, to the date that he was finally reemployed.                    In a
proper case, this would seem to be the proper result, but
here,   as we   shall    show, there was        a continuing dispute
between Hutchin and       the Department of Fish, Wildlife and
Parks as to what constituted an equivalent position.                       We
decline to determine that Hutchin is entitled to pay for the

interim period    between    the    final order of          the Eoard      of
Personnel   A.ppeals and     his    eventual     reemployment       by    the
Department of Fish, Wildlife and Parks.
COMPLIANCE BY THE DEPARTMENT WITH THE ORDER OF THE BOARD
OF PERSONNEL APPEALS
    The     principal    issue     in    this   case   is    whether      the
Department of Fish, Wildlife and Parks did in fact comply
with the directive of the Board of Personnel Appeals to give
Hutchin an equivalent position.
    The     parties     entered    into     a   stipulation    of        facts
regarding what occurred following the final amended order of
May 28, 1981, of the Board of Personnel Appeals.               From that
stipulation, these facts emerge:
     On June 3, 1981, the Department offered Hutchin a grade
11 position in its Helena office, described as a. graphic art
technician 11.        On June 10, 1-981, Hutchin rejected                 the
position as not being within his expertise.
     On June 19, 1981, the Department offered Hutchin a job
as Parks Manager I in Miles City, Montana.             Hutchin requested
an extension of time to decide.            The time for his response
was extended to July 6, 1981.           On July 4, 1981, Hutchin asked
the Department to hold the position in Miles City open until
the District Court rendered its decision.                 On July 8, 1981,
the Department, through its attorney, extended the time for
response to      July    22,    1981.      On July    19, 1981, Hutchin
requested more information on the Parks Manager I position in
Miles    City.     On    July    23,     the   Department     responded   by
supplying to Hutchin's attorney a                second copy of the job
classification     for    the     position     and   extended      Hutchin's
response date to August 1, 1981-.
      On September 10, Hutchin, jn a letter, stated that he
                                 .
would accept the Miles City position if it was determined to
be substantially equivalent to the position in which. he was
terminated.      The parties further stipulated that the Parks
Maria-ger I position at the time of Hutchin's termination and

the class specification of the Miles City position were the
same.      Eventually, Hutchin          accepted the Parks Manager         I
position because of a take-it-or-leave-it                 letter from the
Department.
      The stipulation of facts indicates tha.t the Department
acted reasonably swiftly in following the order of the Board
of   Personnel Appeals         after    it had    been    affirmed by     the
District Court.     There is no reason to a-ward interim back pay
to Hutchin in this cause.               The stipulation of facts shows
that the Department complied with the order of the Board. of
Personnel Appeals        by    restoring Hutchin         to   an   equivalent
position.
REVIEW BY THE DISTRICT COURT
        Hutchin contends that the District Court in reviewing
the cause pursuant to section 2-4-702, MCA, erred in holding
that it was without authority to "expand the relief" granted
by the Board of Personnel Appeals.                This contention arose
because Hutchin contended that the District Court could award
back pay in its own discretion.
      The District Court, in              its opinion accompanying the
iudgment of      which      is    appealed      from, indicated          that    its
judicial review of the a.gencyfsdecision was pursuant to the
Yonta-na Administrative Procedure Act, section 2-4-701, et
seq.,    MCA.      The    court     in    this       instance    erred    in     its
determination of the source of its power of judicial review.
It was 1.ed into the error by its adoption verbatim of the
proposed    opinion and          judgment of the Department of Fish,
Wildlife and Parks.
      The    grievance      procedure          for    an   employee       of    the
Department of Fish, Wildlife and Parks is governed. by section
87-1-205, MCA.         Under that statute, after the employee has
exhausted the administrative remedies within a department, he
is   entitled    to    a hearing before              the Board    of   Personnel
Appea1.s    as   provided    for     in   section       2-15-1705, MCA,         and
subject     to   the     provisions       of     sections       2-18-1011       thru
2-18-1-013, MCA.       It is further provided in that statute that
any order of the Board of Personnel Appeals is binding upon
the Department.
      Once the Board of Personnel Appeals has reached its
decision, the power of a district court to review grievance
decisions of the Board. of Personnel Appeals arises under
section 2-18-1013, MCA.
      As we have indicated earlier, the power of a district
court to review grievance decisions of the Board of Personnel
Appeals arises under section 2-18-1013, MCA.                      That section
reads as follows:
        "The Board or the employee may petition for the
        enforcement of    the   Board's  or3er   and  for
        appropriate temporary relief and it shall file in
     the District Court the record of the proceedings.
     Upon the filing of the petition, the District Court
     shall   have   iurisdiction of    the   proceeding.
     Thereafter the District Court shall set the matter
     for hearing. After the hearing, the District Court
     shall issue its order wanting 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 evjdence on
     the record considered as a whole, shall be
     conclusive."
     The    foregoing   section   determines   the   power    of   the
District Court with respect to judicial review of grievance
decisions by the Board of Personnel Appeals for employees of
the Department of Fish, Wildlife and Parks.      It is clear from
the statute thzt the Court is bound as to questions of fact
determined by the agency, but the Court has power to "grant
such temporary or permanent relief as it considers just and
proper. "
     Unfortunately here, the procedure provided in section
2-18-1013, MCA, was not followed in District Court.                The
matter here was not set for hearing.           The court made no
findings of fact as such.    We determine, however, that in any
event, the result must be the same and. that the District
Court, if in error in its proceedings, reached the proper
result.     The stipulation of facts entered into between the
parties here require the result that the Department of Fish,
Wildlife and Parks, had indeed offered Hutchin a substantially
eau.ivalent position.       Under    the   stipulation,      the   job
specifications for each position was the same.
EVIDENTIARY HEARING
     The final contention of Hutchin is that the District
Court shoul-d either have conducted an evi.d.entiaryhearing on
its own or remanded the proceedings to the Board of Personnel
Appeals   for   an    evidentiary   hearing           to    determine   if   an
equivalent position       was   offered.          In       the   Light of    the
stipulation, however, that would. have been                      an empty and
useless act.         The pa.rties have       stipulated that the job
specifications for each position are the same.                    The District
Court cou1.d come to no other result in its determination.
    The final order of the District Court, dated November
18, 1983, is therefore affirmed.
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