Reep v. Board of County Commissioners

622 P.2d 685, 191 Mont. 162, 1981 Mont. LEXIS 630
CourtMontana Supreme Court
DecidedJanuary 28, 1981
DocketNo. 80-44
StatusPublished
Cited by6 cases

This text of 622 P.2d 685 (Reep v. Board of County Commissioners) 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
Reep v. Board of County Commissioners, 622 P.2d 685, 191 Mont. 162, 1981 Mont. LEXIS 630 (Mo. 1981).

Opinions

LEONARD H. LANGE, District Judge,

sitting in place of MR. JUSTICE SHEEHY, delivered the opinion of the Court.

Petitioner, the Missoula County auditor, brought this action seeking a writ of mandate compelling respondent, county commissioners, to include in the final county budget funding for a larger staff for the auditor’s office than was proposed in the preliminary county budget. Following the quashing of petitioner’s original writ, and amended writ was filed and the cause heard by the court sitting without a jury in a trial which lasted five days. The District Court heard testimony from 13 witnesses, amounting to over 400 pages of transcript, admitted over 35 exhibits into evidence, and then made findings of fact and conclusions of law, the relevant portions of which are now set forth verbatim:

“FINDINGS OF FACT

“2. A majority of the commissioners determined that the auditor as conducting examinations of the books and records of the [164]*164county broader in scope than contemplated by the statutes defining the auditor’s duties.

“3. A majority of the commissioners objected to certain audits termed by them as ‘management’ audits, which the auditor defined as ‘compliance’ audits. These audits included opinions by the auditor or her staff on whether county policies were in compliance with applicable statutes or regulations, or whether these policies were in the best interest of the county in a financial sense. All opinions were delivered in connection with the procurement, investment or use of county funds.

“4. A majority of the commissioners as a matter of deliberate policy budgeted the auditor to prevent her from conducting audits they deemed overly broad in scope.

“5. Audits of the sort found improper by the commissioners are conducted by private auditors and accountants in the general and normal course of their business. These audits of necessity require the exercise of judgment and the statement of conclusions broaching on the rendering of legal opinions. These audits do not include studies of the management efficiency of administrative practices, and efficiency audits were not conducted by the auditor.

“6. A majority of the commissioners desired to limit the auditor’s examinations to bookkeeping and account balancing, and they budgeted the auditor accordingly.

“7. The budget amounts requested by the auditor attributable to all audits reasonably provides for their performance.

“8. The auditor was and is now qualified to conduct audits of the scope and type to which the commissioners have objected, and any audits customarily and usually conducted by a Certified Public Accountant. All the disputed audits were done in a regular manner consistent with these standards.

“9. The auditor has necessarily expended attorney fees and costs in this suit, the amount being not yet known.”

“CONCLUSIONS OF LAW

“2. The term ‘examination of the book and accounts . . .’ contained in MCA 7-6-2409(1) includes audits of broad scope con[165]*165ducted in the manner and to the extent countenanced by generally accepted accounting and auditing principles and methods applicable to an independent auditor. It is within the discretion of the auditor to determine the scope and extent of audits within the limits set by generally accepted auditing accounting principles and methods. Under MCA 7-6-2408(2) auditors have broad discretionary powers of investigation.

“3. The term ‘full and complete statement of the money received and disbursed . . .,’ MCA 7-6-2409(2), is a minimum requirement, not a limitation on the scope of the examinations by the auditor.

“4. The commissioners have a clear legal duty to fund the county auditor to carry on examinations of books and records, including audits of the scope and extent objected to.

“5. Failure to fund these audits was a failure to perform a clear legal duty and an abuse of discretion.

“6. Mandamus lies to compel the performance of a clear legal duty and to correct an abuse of discretion.

“7. The commissioners may either accept the budgeting requested by the auditor for the auditing functions they wished to prevent or hold further hearings and thereafter reasonably provide funds to allow their performance.

“8. The auditor should receive attorney’s fees in a reasonable amount and costs.”

Later the District Court made supplemental findings of fact and conclusions of law, the relevant portions of which are set forth verbatim:

“SUPPLEMENTARY FINDINGS OF FACT

“1. A majority of the commissioners caused funds to be subtracted from the budget of the auditor to limit her ability to conduct audits of any scope beyond that of bookkeeping and account balancing.”

“SUPPLEMENTARY CONCLUSIONS OF LAW

“2. An elected county auditor is an agent of the people, having important official duties for the faithful discharge of which she is [166]*166directly responsible to the people. Under MCA 7-6-2408(2) auditors have broad discretionary powers of investigation. In performing her duties, the auditor must have sufficient independence from the commissioners to permit her to determine which offices to audit, at what time, and what the scope of such audits should be, within the limits set by generally accepted auditing and accounting principles and methods.

“3. Failure to fund audits of scope and extent objected to was a failure to perform a clear legal duty and such an abuse of discretion as to amount to no exercise of discretion at all.

“4. Although the commissioners have discretionary powers to set budgets, and although they may set a budget limit for an official, they cannot use the budget to prevent another elected official from fulfilling a statutory duty. The commissioners may adopt a budget which has the incidental effect of causing a budgeted office to reduce its activity in some area, even if that activity is one necessary to a statutory duty; but, the commissioners may not single out an activity necessary to a statutory duty and preclude it by budgetary restriction.”

In accordance with the findings of fact and conclusions of law the District Court then ordered that mandamus issue. From that order the board of county commissioners appeals.

The proper standards to be met before issuance of a writ of mandamus are set forth in Cain v. Department of Health, etc. (1978), 177 Mont. 448, 582 P.2d 332, 334, 35 St.Rep. 1056, 1058:

“A writ of mandate will issue only where the person seeking to invoke it is entitled to have the defendant perform a clear legal duty and there is no speedy or adequate remedy in the ordinary course of law. State ex rel. Swart v. Casne (1977), 172 Mont. 302, 564 P.2d 983, 34 St.Rep. 347. Ordinarily mandamus will not lie to compel the performance of a discretionary function. State ex rel. Butte Youth Service Center v. Murray (1976), 170 Mont. 171, 551 P.2d 1017, 33 St.Rep. 610. However, if there has been such an abuse of discretion as to amount to no exercise of discretion at all, mandamus will lie to compel to proper exercise of powers granted.

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Cite This Page — Counsel Stack

Bluebook (online)
622 P.2d 685, 191 Mont. 162, 1981 Mont. LEXIS 630, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reep-v-board-of-county-commissioners-mont-1981.