Olson v. State, Department of Revenue

765 P.2d 171, 235 Mont. 31, 1988 Mont. LEXIS 344, 49 Empl. Prac. Dec. (CCH) 38,777
CourtMontana Supreme Court
DecidedDecember 1, 1988
Docket88-069
StatusPublished
Cited by7 cases

This text of 765 P.2d 171 (Olson v. State, Department of Revenue) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Olson v. State, Department of Revenue, 765 P.2d 171, 235 Mont. 31, 1988 Mont. LEXIS 344, 49 Empl. Prac. Dec. (CCH) 38,777 (Mo. 1988).

Opinions

MR. JUSTICE 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 substantially 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’ Employment Preference Act (Act). Mr. Olson’s right to claim a preference has not been ques[33]*33tioned. The DOR used an extensive 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 examinations. 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 candidates were given point scores by each of the three interviewers 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 preference 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 [34]*34job an absolute 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 employment preference statutes to their present form. In introducing 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 applicants 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 range within which two applicants must be considered 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 Committees of both the Senate and the House demonstrate considerable dissatisfaction with the absolute preference accorded under Crabtree.

Title 39, Chapter 30, MCA, the resulting Act, provides at Section 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 substantially equal qualifications who is not a preference eligible applicant.” The term “substantially equal qualifications” is defined in Section 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 determination 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. [35]*35Dept. 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 preference 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 applicants’ 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.

II

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:

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Bluebook (online)
765 P.2d 171, 235 Mont. 31, 1988 Mont. LEXIS 344, 49 Empl. Prac. Dec. (CCH) 38,777, Counsel Stack Legal Research, https://law.counselstack.com/opinion/olson-v-state-department-of-revenue-mont-1988.