STATE OF MONTANA
BEFORE THE BOARD OF PERSONNEL APPEALS

IN THE MATTER OF FISH,L WILDLIFE, AND PARKS GRIEVANCE NO. 1-2001:

LENNIE BUHMANN, CHRIS WRIGHT,
 )
Case No. 646-2001
BRUCE KNUTSON, CHRIS ANDERSON, RON
 )  
JENDRY, KEVIN NICHOLS & HAROLD GUSE,
 )  
STATE GAME WARDENS,
 )  
Grievants,
 )
FINDINGS OF FACT;
)
CONCLUSIONS OF LAW;
vs.
)
AND RECOMMENDED ORDER
MONTANA DEPARTMENT OF
)  
FISH, WILDLIFE AND PARKS,
)  
Defendant,
 )  

* * * * * * * * * * * * *

I. INTRODUCTION

     Lennie Buhmann, Chris Wright, Bruce Knutson, Chris Anderson, Ron Jendry, Kevin Nichols, and Harold Guse, State Game Wardens, filed a grievance contesting the hiring of Frank Bowen as Region 1 Warden Sergeant. In the grievance they stated that :

7/1/00 was the date that the Kalispell Warden Sergeant position was filled. Laws and policies were broken during the hiring process for the position and these include: the hiring of a game warden who has not passed an examination as required in §87-1-501, MCA; the hiring of a person who did not meet minimum requirements specified in the position announcement; the hiring of a person who improperly obtained POST certification while in a Conservation Specialist position that is not defined as a peace officer in §7-32-303, MCA; and the lack of a Helena enforcement staff person serving on the hiring committee - which has been established as a procedure in the past.
The grievants' desired resolution and remedy is as follows:
The Kalispell Warden Sergeant position should be vacated, the position be re-opened, and the hiring process done over. Conservation specialists that apply for the Kalispell Warden Sergeant position after it is re-opened should not receive credit for the years of experience as a game warden based on the years of law enforcement duties performed as a Conservation Specialist.

     Grievants are members of the Montana Public Employees Association bargaining unit and chose to pursue these matters through the statutory grievance mechanism rather than under the collective bargaining agreement.
     Michael T. Furlong conducted the hearing in this matter on June 5 and 6, 2001, in Helena, Montana. Carter Picotte, Montana Public Employees Association staff attorney, represented the grievants. Jack Lynch, staff attorney for Montana Department of Administration, represented the defendant. Chris Anderson, Thomas Bivins, and Daniel Vincent appeared as witnesses for the grievants. A final grievant witness gave testimony who was designated for the record as "John Doe" in order to protect his identity as an undercover operative for the defendant. The procedure was stipulated and agreed to by both parties. John Ramsey, Rich Clough, Doug Denler, Ed Kelly, and Frank Bowen testified for the defendant.
     Grievants' exhibits 1 through 21 and defendant's exhibits A through II had been stipulated into evidence by both sides during a pre-hearing conference on June 1, 2001.

II. RULINGS ON MOTIONS
     The defendant moved to dismiss the grievance contending the grievants lacked standing to bring this case. Defendant alleged that since none of the grievants had applied for or been denied the position, they had not suffered a loss or demonstrated standing.
     The grievants argued that as a group, wardens were denied the opportunity for logical career progression by the defendant's hiring of an individual who is not a warden. Therefore, grievants argued, the case should not be dismissed and should proceed to a contested case hearing pursuant to § 87-1-205, MCA.
     The Hearing Officer reserved ruling on the motion.
     In Borough of Naugatuck, 100 LA 774 (1993), an arbitrator held that a union did not have standing to challenge a police department's unilateral change of promotional rules in filling a deputy police chief position. However, in Cypress Emerald Resources Corp., 101 LA 1053 (1993), the arbitrator found that a union had standing to file a grievance over job postings as a class action since there was an effect on a significant portion of the bargaining unit. The process for promotions among game wardens does affect the wardens as a group. Further, even though they did not grieve, two wardens did apply for the position. Therefore, the grievants have standing to file and pursue this grievance. The motion to dismiss for lack of standing is denied.
     On May 31, 2001, the defendant filed a motion to dismiss the case on the basis that there is no fact or law for the grievance, and that there is no contract or statutory provision to limit the defendant's right to select an individual for promotion. The Hearing Officer reviewed the motion and response to the motion offered by the grievants. The Hearing Officer denied the motion to dismiss on the basis that the questions of law involving §§ 87-1-501 and 87-1-503, MCA, should be addressed in a contested administrative hearing.
     At the hearing, the grievants filed a motion in limine to exclude testimony related to whether Frank Bowen met certain fingerprint, background check, and psychological testing requirements. It is their argument that the defendant failed to produce the documentation to support these facts requested by grievants during discovery because it could not find the documents. Grievants assert that due to the absence of the records, the department cannot prove that he had met the mandatory requirements to qualify for peace officer certification. Therefore, those certificates, necessary for the warden sergeant position, had not been issued at the time of the hiring in question, and testimony regarding those records should be inadmissible. The defendant countered the motion and contended the testimony was admissible.
     The Hearing Officer reserved ruling and ordered that the parties present arguments to the motion in post-hearing briefs, specifically the significance of § 26?1?602, MCA, which addresses the issue of disputable presumption concerning evidence. Both parties filed their arguments as ordered for the hearing officer to make a ruling on the motion.
     Defendant argues Rule 1004 of the Montana Rules of Evidence is controlling. This rule states:

The original is not required, and other evidence of the contents of a writing, recording or photograph is admissible if:

(1) Originals Lost or Destroyed. Originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith.

The evidence is inconclusive as to the reason that the records are not available. Nothing in the record shows that the defendant lost or destroyed the documents in bad faith. Therefore, testimony regarding the matter is admissible. The motion in limine is denied.

III. ISSUE
     Whether the Department of Fish, Wildlife and Parks violated the law and department policies during the hiring process which resulted in Frank Bowen being appointed to the Region 1 warden sergeant position.

IV. FINDINGS OF FACT

  1. The Department of Fish, Wildlife and Parks supervises and regulates all wildlife, fish, game, game and non-game birds, waterfowl, and the game and fur-bearing animals in the state, and also implements programs to encourage hunting access on private lands and promoting harmonious relations between land owners and the hunting public. In its enforcement capacity, it employs approximately 70 game wardens in addition to regional warden sergeants and captains. The wardens are members of the Montana Public Employees Association. The department also appoints ex-officio wardens to assist the wardens in enforcement activities.
  2. The warden sergeant position is a management position and is not part of a bargaining unit. Warden sergeants serve as first line supervisors over appointed wardens assigned to the region.
  3. Education and experience requirements are described in the warden sergeant position description as follows:
    Education and Experience:
    Education required to perform the duties of this position is typically acquired through the completion of a Bachelors Degree in Wildlife Biology or closely related field, completion of Peace Officer Standards Training (POST) basic certification, law enforcement experience with continued in service training through schools and seminars. Experience is acquired through at least three years as a field warden demonstrating leadership skills with progressive responsibilities.
  4. On April 19, 2000, the department posted a job vacancy announcement for the position of Fish and Game Warden Sergeant, grade 15 (Region 1 - Kalispell area). The vacancy announcement for the warden sergeant position called for the following education/experience:

    Experience is acquired through at least three years as a field warden demonstrating leadership skills and progressive responsibilities.

(1) Bachelor's degree in Wildlife Management;
(2) Completion of Peach Officer Standing Training (POST) basic certification;
(3) Law enforcement experience with continued training through schools and training;
(4) Experience is acquired through at least 3 years as a field warden demonstrating leadership skills with progressive experience.

The vacancy announcement also stated that, "other combinations of education and experience which could provide the knowledge, skills, and abilities when evaluated on an individual basis" could qualify an applicant for the position. (Exhibit G).

5. There were more than 10 applicants, including 2 grade 14 game wardens employed by the department. In addition, Frank Bowen, a grade 11 department conservation specialist, applied for the position. None of the grievants applied for the position.

6. The department's recruitment and selection policy, effective 2/15/99, states:
Selection Committee - a group of people, including the hiring authority, that works collaboratively to complete the recruitment and selection process. The hiring authority is the chair of the committee. Committees shall include representation from multiple programs/divisions. Hiring authorities are encouraged to include subordinates to vacant supervisory positions or members who are not FWP employees, as appropriate.

7. A regional selection committee, which included the Region 1 and Region 2 captains, a Region 1 warden, the regional information officer and a U.S. Forest Service officer, conducted interviews for the position.

8. The selection committee did not include a member of the department's Helena enforcement staff. In previous selections, the department has included a member of the Helena enforcement staff on the hiring committees for job interviews. However, there is no policy or regulatory authority that requires a Helena department staff member to serve on the selection committee.

9. The committee interviewed only the two wardens and Bowen. The interviews consisted of oral and written examinations. Evaluation score sheets were used by the committee to determine the successful candidate.

10. Bowen has a bachelor's degree in Liberal Arts/Biology. The department initially hired him in 1988 as a park maintenance worker, grade 10. He worked in that capacity until October 1992, when he was selected for a position as a conservation specialist, grade 11. He worked in that capacity until his assignment to the warden sergeant position in July 2000. On May 6, 1988, the department director appointed Bowen as an ex?officio game warden. Thereafter, he worked as an ex-officio warden in addition to his other job duties as a conservation specialist until July 1, 2000.

11. The evaluation score sheets show that the selection committee gave Bowen credit for having at least three years experience as a field warden. The selection committee concluded that Bowen's education and experience including his years of service as a conservation specialist and authorized ex-officio warden beginning in 1988 met the minimum qualifications needed to satisfy the requirement of field warden experience. The committee also found that Bowen had acquired the equivalent knowledge, skills, and abilities necessary for the position from his 8 years of military experience, on-going training, and certification while employed with the department.

12. During the application and evaluation process, the department considered Bowen to have completed the required Peace Officer Standards Training (POST) to qualify for the warden sergeant position.

13. During the course of his employment with the department, Bowen participated in continuing law enforcement training. He obtained training and received certifications issued and documented by the POST council as follows:

MONTANA PEACE OFFICERS STANDARDS AND TRAINING ADVISORY COUNCIL
Official Training, Certification and Education Report
FISH, WILDLIFE AND PARKS
FRANK BOWEN
TRAINING
COURSE CODE DESCRIPTION HRS START DATE END DATE
Basic Course/83rd Session 488 Hours 0 02/28/93 05/07/93
LET07301RT970214 WEAPONLESS DEFENSIVE
TACTICS/PRESSURE POINT
INSTRUCTOR		 40 02/10/97 02/14/97
LET03108OT970320 CAREERDEVELOPMENT/NAT'L
BOATING INSTRUCTOR COURSE		 64 03/10/97 03/20/97
LET04151LT991015 LEGAL UPDATE/LEGAL &
LEGISLATIVE UPDATE		 4 10/15/99 10/15/99
LET07303PT000114 SPRAY/GAS/OC SPRAY
INSTRUCTOR		 20 01/13/00 01/14/00
LET07301PT000119 WEAPONLESS DEFENSIVE
TACTICS/PPCT INSTRUCTOR
CLASS		 40 01/15/00 01/19/00
LET07301PT000122 WEAPONLESS DEFENSIVE
TACTICS/PPCT EDGED
WEAPON INST CLASS		 16 01/20/00 01/22/00
TOTAL CERTIFICATION HOURS: 184
CERTIFICATION
Certification Type Certification Number Instructor Type Date Issued Expiration Date
Basic 2460   01/20/94  
Instructors 710 PRESSURE POINT CONTROL TACTIC 10/23/97 10/23/99
Instructors 1173 DEFENSIVE TACTICS 11/18/99 11/18/01
Intermediate 1454   05/18/00  
 

14. Following the interview process, the selection committee gave Bowen the highest evaluation score of the three applicants. As a result, the department director selected him for appointment to the warden sergeant position effective July 1, 2000. He has continued to work in that capacity since July 1, 2000.

15. Sometime after reporting for duty as a warden sergeant, Bowen took the constitutional oath of office.

16. Following his appointment as an ex-officio warden, Bowen's primary responsibility continued to be performing maintenance tasks related to his park maintenance position. During the hunting season that year, he spent a significant amount of his work time in his ex-officio capacity assisting the wardens with enforcement. Thereafter, the department assigned Bowen more tasks in his ex-officio warden capacity each year. He spent a significant amount of time performing duties typically assigned to wardens prior to his appointment to warden sergeant.

17. The department's ex-officio game warden policy provides:
Acceptance into this program does not allow an ex-officio warden to bypass normal screening and hiring procedures for a game warden or park ranger. (Grievants Exhibit 6, p. 6A)

18. In recent years, department conservation specialists have increasingly assumed functions that in the past had been assigned exclusively to game wardens. The department's current "position description" for conservation specialists lists duties that at one time were assigned only to game wardens. The conservation specialist position description that Bowen worked under since December 1996 is similar to the warden position description concerning essential law enforcement duties. (Exhibit FF, Exhibit 2).

19. The department's enforcement administrator certified on November 3, 1993, that Frank Bowen met all the statutory requirements and qualifications to be a peace officer for the State of Montana. The department filed a recommendation with the POST council for awarding peace officer certification to Bowen. The POST council is an advisory board to the Montana Board of Crime Control and administratively attached to the Department of Justice.

20. On January 20, 1994, the POST council signed and issued a basic certificate to Frank Bowen, awarding him peace officer status under Montana law. The POST council grants such status upon finding that the recipient has fulfilled the requirements of character, education, training, and experience as prescribed in the minimum standards and training regulations for peace officers in Montana.

21. The POST council also awarded Bowen the intermediate certificate for peace officers on May 18, 2000 and professional instructor certificates on October 23, 1997, and November 18, 1999.

22. On August 6, 2000, the POST council confirmed Bowen's basic certification award upon conducting a review after the grievants in this case challenged Bowen's qualifications for certification.

23. The Department of Fish Wildlife and Parks does not have records showing that Bowen had taken the Minnesota MultiPhasic Personality Inventory (MMPI) exam or successfully completed finger print and background checks, required for an individual to be considered a law enforcement officer. The department conducted an inquiry and found that its records documenting the statutory testing results were missing from the files of many of the field wardens.

24. Bowen recalls that he completed the MMPI exam in February of 1993 but cannot account for disappearance of exam results. Bowen recalls that he had also completed the statutory fingerprinting and background investigation required to receive peace officer certification.

25. For more than 20 years the department has had a "warden test," which it administers to prospective wardens, to determine their fitness to hold the position. There are no records to show that Bowen ever received a certificate indicating that he had passed this test, nor did he have any records to indicate that he had ever taken the test. Bowen recalls taking and passing the "warden test" in February 1993.

V. DISCUSSION/RATIONALE
     Montana law provides that employees of the department who are aggrieved by a serious matter of their employment based upon work conditions, supervision, or the result of an administrative action, are entitled to a grievance hearing before the Board of Personnel Appeals. § 87-1-205, MCA. The grievants in this case claim to be aggrieved by the selection process utilized by the department to fill a warden sergeant position.
     Defendant argues that the warden sergeant is not a true warden position, but a management position. As such, filling the position is solely within the authority of the department and there are no statutory mandatory minimum qualifications for a warden under § 87-1-501, MCA. The defendant further points out that there is no employment contract provision in the instant case which in any way limits the department from selecting persons for appointment to warden sergeant.
     An authoritative book on employment and labor law, How Arbitration Works, Elkouri and Elkouri, (BNA 1985, 4th Ed.), is instructive on the discretion of management in making promotions:

Management's general right to control promotions, except as limited by a collective bargaining agreement, was elaborated by arbitrator Whitley P. McCoy as follows:

When there is no contract provision at all limiting the company's rights in selecting men for promotion, the company's rights, of course, are unlimited. If the only contract restriction is one against discrimination for union activity, then that is the only restriction. In other words, absent a contract right in favor of the employees, or contract restriction on a company, the latter may ignore not only seniority but even skill, ability and physical fitness. The employee must obtain benefits at the bargaining table, not from arbitrators. Arbitrators are bound by the contract under which they are arbitrating.

However, because this is a statutory grievance rather than grievance arbitration under the contract, the relevant inquiry is whether the department violated the law, the state policies applicable to executive branch agencies generally, or its own policies in the selection process, rather than a contract provision.

The grievance concerning the warden sergeant selection process is based on four contentions:

1. Requirement that a field warden sergeant pass the field warden selection process.

     Grievants allege that the defendant's hiring process for the warden sergeant position was flawed in that all of the former standards applicable to this position, including the requirement of the law and the policies, have been ignored. The grievants contend that a warden sergeant is, in fact, a game warden with an overlay of supervisory duties and that the position descriptions of both positions are indistinguishable except for the added supervisory element in the warden sergeant position. Therefore, they contend, the department must use screening criteria required for wardens in any warden sergeant selection, including passing the warden examination. Grievants refer to the warden sergeant position description and job announcement which include identical educational requirements to those of a warden and include a mandatory three or more years experience as a game warden, while demonstrating leadership qualities. Grievants allege because the warden and warden sergeant positions and qualifications are based on §§ 87-1-501 and 87-1-502, MCA, the department may not ignore mandatory experience requirements in the hiring process.
     For Frank Bowen to qualify for appointment to warden sergeant, the grievants contend he had to have first met all the requirements set forth for field wardens under § 87-1-501, MCA. They assert there is no credible evidence to show Frank Bowen satisfactorily completed those statutory requirements.
     Regardless of whether the positions of field warden and field warden sergeant are essentially identical, there is no requirement that field warden sergeants pass the same selection process as field wardens. The only relevant statutory provision, § 87?1-501, MCA, provides that "wardens shall be selected from applicants who have passed such an examination as may be required according to the rules adopted and promulgated by the department." This statute gives the department discretion to establish an examination. It does not set forth the form of the examination or require the department to administer the same examination to every class of applicant. The oral interview process utilized by the department for the position of field warden sergeant may satisfy the requirement of an "examination," and grievants have provided no authority to the contrary.

2. Requirement that a field warden sergeant have three years of field warden experience.

     The grievants also maintain that the position description and job announcement for warden sergeant require that the individual serve for three years as a field warden in order to meet the minimum qualifications. Frank Bowen was not a warden at the time he was hired as the Region I warden sergeant, nor had he ever been appointed to the position of warden. They also allege that Frank Bowen's service in an ex-officio warden capacity, provided for under § 87-1-503, MCA, does not constitute actual field warden experience. The sentence requiring "at least three years as a field warden" is found in both the warden sergeant position description and job vacancy announcement. Both documents indicate that a successful warden sergeant candidate must have served as a warden for three years.
     Grievants also point to § 87-1-502 (1), MCA, which states that field wardens must "devote all of their time for which they are appointed to their official duties." Under that provision, grievants argue that Bowen's activities as a conservation specialist and ex-officio warden cannot be substituted as warden experience in order to qualify for the position. Therefore, they contend, he did not meet the minimum qualifications.
     Again, there is no law or policy requiring that field warden sergeants have field warden experience. The only departmental statements that might be construed as statements of policy in this regard are the vacancy announcement and position description. Assuming for the sake of argument that these documents represent department policy, they too accord the department the discretion to construe the experience requirements broadly: "Other combinations of education and experience . . . could provide the knowledge, skills, and abilities when evaluated on an individual basis." The department was free to consider Bowen's ex-officio warden experience, his experience as a conservation specialist, or any other experience he had that the department deemed relevant.

3. Requirement of POST certification.

     The grievants further challenge the validity of the POST certifications from the Montana Department of Justice, Board of Crime Control, issued to Frank Bowen pursuant to § 7-32-303, MCA. They base this charge on the fact that neither Bowen nor the department have any records to show that he completed the requirements for obtaining the POST certification. However, the record shows that the POST council reconsidered its certification to Bowen following the filing of the grievance in this case and found no merit to the contention that it was improperly or unlawfully issued. POST certification requires that an individual be deemed a law enforcement officer or peace officer under § 7-32-303, MCA. To be considered a peace officer, an individual is required to take the MMPI and pass certain fingerprinting and background checks. Grievants contend that in Bowen's case, this was never done, and he therefore could not qualify for POST certification.
     Bowen's sworn testimony indicates that he recalls being fingerprinted and completing the MMPI test, background check, and fingerprint check required under § 7-32-303, MCA. Further, the record shows that the department's inability to produce any of Frank Bowen's records is not an isolated instance. The department admitted, following an investigative inquiry, that it has not consistently maintained accurate records in the past for these types of documents for numerous employees who have received the POST certification for peace officer status. Bowen's sworn testimony that he had completed the statutory requirements for peace officer certification was credible. The grievants did not provide any convincing proof that Bowen's testimony was not credible. Bowen's testimony from memory is the most reliable evidence on the question.
     Further, the department is not responsible for the issuance of the certification. The Department of Justice made the decision to issue Frank Bowen Basic and Intermediate certificates based on his achievements. Therefore, even assuming that the requirement of POST certification was a department policy giving rise to a grievance, Bowen met the requirement.

4. Composition of the selection committee.

     The grievants' contention that defendant violated standard procedures by not involving a Helena enforcement staff person on the recruitment committee for the Region I warden sergeant position is similarly without merit. Although in the past the Defendant has generally used a selection committee member from Helena enforcement personnel, there is no statutory requirement or policy for the inclusion of Helena-based personnel on the committee. The department recruitment and selection committee only requires that the committee members shall represent individuals from multiple programs and divisions. Although having Helena enforcement personnel on selection committees may have represented past practice, the department had the discretion to vary its practice. The department did not violate any regulation or statutory provision in the composition of the committee.

Summary
     The grievants failed to establish that the defendant abused its authority in its appointment of Frank Bowen to warden sergeant when considering his prior work experience and qualifications. The department had broad discretion and management rights in determining how to fill the position. Grievants failed to demonstrate that the defendant did not comply with the laws and policies during the hiring process of Frank Bowen to the warden sergeant position. They failed to establish they are aggrieved by a serious matter of their employment.

VI. CONCLUSIONS OF LAW

1. The Board of Personnel Appeals has jurisdiction in this Fish, Wildlife, and Parks employee grievance pursuant to § 87-1-205, MCA, and ARM 24.26.403 (3).
2. Grievants carry the burden of proving that they were aggrieved by a serious matter of their employment because the Department of Fish, Wildlife, and Parks violated state law or policy in the circumstances surrounding the hiring process of Frank Bowen in his appointment to warden sergeant.
3. Grievants were not aggrieved by a serious matter of their employment.

VII. RECOMMENDED ORDER
The grievance is hereby DISMISSED.

DATED this 29th day of March, 2002.

BOARD OF PERSONNEL APPEALS

By: /s/ Michael T. Furlong
Michael T. Furlong,
Hearings Officer
Department of Labor and Industry

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