                             No. 14226
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                1979


STATE OF MONTANA ex rel.
STATE TAX APPEAL BOARD,
                Relator and Respondent,
        -vs-
MONTANA BOARD OF PERSONNEL APPEALS,
                Respondents and Appellants.


Appeal from:    District Court of the First Judicial District,
                Honorable Gordon R. Bennett, Judge presiding.
Counsel of Record:
    For Appellants:
        Jerry L. Painter argued, Helena, Montana
    For Respondent:
        Smith and Harper, Helena, Montana
        Charles A. Smith 111, argued, Helena, Montana




                                Submitted:    February 9, 1979
                                  ~ecided:APR2   5 1979
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

     On an appeal from a job classification by the Montana
Department of Administration, the Personnel Division of
that department determined the employee, Vernon Miller, was
entitled to a classification of his position as Grade 14.
Miller's employing state agency is the State Tax Appeal
Board (STAB). A formal order directed to STAB requiring

Miller's reclassification was issued by the Board of
Personnel Appeals (BPA) on March 30, 1977.   On April 1,
1977, STAB petitioned BPA for a hearing.   BPA refused STAB a
hearing on the ground that it was not a party to the pro-
ceeding before BPA.    STAB made application to the District
Court for a writ of mandamus to vacate BPA's order, and to
require BPA to grant STAB a hearing.   On January 23, 1978,

the District Court, First Judicial District, Lewis and Clark
County, entered its order in accordance with the prayer of
STAB, requiring that the Montana Board of Personnel Appeals
conduct a hearing in which STAB would be a necessary party
and vacating BPA's order of May 24, 1977 reclassifying the
employee's position.
     The parties agree in briefs that the following are the

facts in the case:

     On November 4, 1976, Vernon B. Miller, an employee of
the Montana State Tax Appeal   Board, filed a grievance with
the Montana Board of Personnel Appeals, alleging that he was
misclassified as an Administrative Officer I, Grade 13, and
that he should be reclassified as an Executive Secretary 11,
Grade 15.   He filed his grievance under the authority of
section 82A-1014, R.C.M.   1947, now sections 2-15-1705, 2-
18-1011, 1012, 1013 MCA and section 24.26.403 M.A.C.
     In accordance with the grievance procedure of section
24.26.403 M.A.C.    (then sectiqn 24.3.8B(lO)S8710 M.A.C.)    two
of the STAB members denied Miller's appeal and one supported
his appeal. Miller then proceeded to step two of the grievance
procedure and presented his appeal to Jack Crosser, Depart-
ment Director.     Crosser neither supported nor denied Miller's
appeal, but merely recited the relationship that exists
between STAB and the Department of Administration, was as an
administratively attached body.
     Miller then proceeded to step three of the grievance
procedure, which is before the Personnel Division, Department
of Administration.     The Personnel Division audited the
position, talking to the individual staff members and to
Miller.   It determined that Miller was indeed misclassified
although in its final determination it found that Miller
should be classified as an Executive Secretary I, Grade 14.
Miller agreed to this classification.     STAB, however, refused
to comply with the Personnel Division's instruction to
submit the necessary papers for the reclassification, where-
upon Miller requested that the Board issue an order.     On
March 30, 1977, the Board issued an order to STAB finding
that since Miller and the Personnel Division were in agree-
ment as to Miller's classification, that Miller had been
aggrieved by the operation of Title 59, Chapter 9, R.C.M.
1947, and was entitled to be reclassified.
     On April 1, 1977, STAB wrote the Board protesting the
BPA order of March 30, 1977, and demanded a hearing on
Miller's proper classification.
     On April 7, 1977, the administrator of BPA denied by
letter the demand of STAB for a hearing on the ground that
section 82A-1014, R.C.M. 1947, now sections 2-15-1705, 2-18-
1011, 1012, 1013 MCA, the controlling statute, did not
provide for an employer grievance as to the operation of
Title 59, Chapter 9.
                            -3-
     Thereafter, a hearing was set up for BPA to reconsider
whether STAB should be given a hearing.      This hearing was
conducted on May 10, 1977 but no representative of STAB was
present.   The BPA after considering the matter, voted not to

give STAB a hearing. On May 24, 1977, an order was issued by

BPA denying STAB'S petition for a hearing and ordering the
upgrade of the position held by Vernon Miller.
     On June 16, 1977, STAB filed its application for a writ
of mandamus in District Court which resulted in the January
23, 1978 order.
     Basically the issue in this cause is whether the Board

of Personnel Appeals was required to grant STAB, the employer,
a hearing on its employee's proper job classification.
     BPA contends the extraordinary relief granted by the
District Court was not proper in this case because there was
no duty owed STAB.   BPA argues that within the statutory
scheme for resolving wage classification disputes of state

employees there is no statutory allowance for representation
by STAB as employer.   Thus BPA has no power to entertain

respondent's objections to the classification at a hearing.
     STAB in essence contends the Montana Administrative
Procedure Act (MAPA) applies to the proceedings before the
BPA, and that STAB has a right to be heard as a "party" in a
"contested case" under MAPA.    See section 82-4209, R.C.M.

1947, now section 2-4-601, 612 (1), 603, 614, 623 (2) MCA.
     Mandamus is an extraordinary remedy which lies to
compel only a "clear legal duty".       Butte Youth Service
Center v. Murray (1976),       Mont .       , 551 P.2d 1017,
1019, 33 St-Rep. 610; Burgess v. Softich (1975), 167 Mont.
70, 535 P.2d 178; section 93-9102, R.C.M.      1947, now section
27-26-102(1) MCA.    The essential question raised by this

appeal thus becomes whether BPA had a clear legal duty to
hold a hearing at which STAB would be a party.     An analysis
of the statutes and regulations involved constrains this
Court to hold it did not.
     In 1973, the legislature enacted section 59-903, et
seq., R.C.M.   1947 (now section 21-8101 et seq., MCA) giving

the Department of Administration the authority and duty to
develop a wage and personnel classification plan for all
state employees in order to provide uniformity in wages for
state employment.    Within the Department of Administration,
the Personnel Division, Classification Bureau, is charged
with maintaining "a uniform job classification program for
all classified employees of the State of Montana" and with

assigning "appropriate grade levels for each position."
Section 2-2.1-0100 (2)(i)(1) M.A.C.   Generally, the employing
agency initiates action for the reclassification of a position
and is afforded the opportunity by the Personnel Division to
have input into the division's decision.     Should the employee

be dissatisfied with the classification or reclassification
received, the employee may commence a grievance procedure

before BPA pursuant to section 82A-1014(4) (a-d), R.C.M.
1947, now sections 2-18-1011, 1012, 1013 MCA and section
24.26.403 M.A.C.
     The grievance procedure is composed of four steps.      The
first two steps involve consideration of the employee's
grievance within his department or agency.    Section 24.26.403
(I),(2) M.A.C.     If the employee remains dissatisfied he
submits his appeal to the Personnel Division as the third
step of the procedure.    Section 24.26.403(3) M.A.C.   The
Personnel Division then reviews the matter, again accepting
input from the employing agency, and renders a decision.      If
the employee agrees with the Personnel Division the matter
is ended.   If the employee is still not satisfied the matter
is submitted to the Board of Personnel Appeals for resolution.
                            -5-
Section 24.26.403(4) M.A.C.        The board then conducts an in-
vestigation or inquiry and makes a preliminary determination.
       If the employee rejects this preliminary determination,
the board is directed to conduct a hearing in accordance
with the MAPA (Title 82, Chapter 42, R.C.M.      1947, now sections
2-4-101, et seq., MCA).     The regulations are clear that the

interests of the state in this hearing are represented by

the Classification Bureau, Personnel Division, Department of
Administration.    Section 2-2.1-0100 (2)(i)(1), M.A.C.
       The board can, once it finds the employee aggrieved,
order the appropriate agency to take action to resolve the
grievance. Section 82A-1014 (4)(c), now section 2-18-1012
MCA.   The board or the employee may petition the District

Court for enforcement of the board's order.       Section 82A-
1014 (4)(d), now section 2-18-1013 MCA.
       This review of the statutory framework and the regulations
adopted to flesh out that framework makes plain that no
clear legal duty existed on the part of the Board of Personnel
Appeals to provide a hearing at which STAB would be a party.
The dispute in this matter did not reach the point where a
hearing was necessary according to the regulations.       The

employee and the Personnel Division agreed upon a classification,
thus under the regulations the appeal was ended.       Furthermore,
even if this appeal could be construed as a "contested case"
requiring a hearing under the MAPA, STAB could not participate
as it is not a "party" within the meaning of MAPA.        A con-
tested case means any proceeding before an agency in which a
determination of legal rights, duties, or privileges of a
party is required by law to be made after an opportunity for
hearing.    Section 82-4203(3), now section 2-4-102 MCA.     A

"party" is a person or agency (1) named or admitted as a
party or (2) properly seeking and entitled as of right to be

admitted as a party.      Section 82-4203(6), now section 2-4-
102 MCA.    STAB has not been named or admitted as a party.

The dispute initially arose due to the employee's reclassification

                             -6-
by the Fersonnel Division.     Thus, the only way STAB can
be considered a "party" is ifSZFE3 is properly seeking and
entitled as of right to be a party.    But the statutes and
regulations governing the classification procedure do not
contemplate participation by the employing agency other
than the opportunity for input into the Personnel Division's
decision.   If and when the dispute reaches step four of the
formal appeals procedure, the employee represents his in-
terests and the personnel Division through its Classification
Bureau represents the interests of the state including,
theoretically, those of the employing state agency.      There-
fore the ~ o a r d Fersonnel Appeals had no clear legal duty,
                  of
and no authority, to hear the objections of STAB.       This
Court has made clear administrative agencies are bound by
the terms of the statutes or regulations granting them their
powers and are required to act accordingly.    State ex rel.
Anderson v. State Board of Equalization (1957), 133 Mont.
8, 319 P.2d 221.    Thus, there was no "clear legal duty" to
hold a hearing at which STAB would be a party.
     STAB may have a legitimate concern about the classification
of its employees.    Its remedy, however, is not in the courts
under the present statutes.    It is within the legislative
prerogative either to require the Personnel Division to give
greater consideration to STAB'S opinion, or to change the
statutes to allow STAB input at a panel hearing should STAB
not agree on a classification with the Personnel Division.
     Therefore, the order of the District Court remanding
this action back to BPA for a hearing is hereby vacated and
the District Court is instructed to grant BPA's motion to
dismiss the mandamus action.    No costs are allowed.



                                            Justice
We Concur:



      Chief Justice   \
