Prairie Lights: Time for the city to admit it lost again


Ed Kemmick

The good news is that the Billings City Council intends to debate in a public meeting whether to appeal a District Court ruling in a pay dispute with the city’s police officers.

The bad news is that the council will be taking advice from the city legal department, which should have been able to read the plain language in the police contract to begin with, and which foolishly prolonged a court fight over that language, all the while running up a higher and higher tab—which now stands at about $3 million.

This is the same legal department that failed to catch problematic language in a pay dispute with city firefighters, then foolishly prolonged that case, too, ultimately costing taxpayers $4.3 million.

In both cases, the city hired outside law firms to represent it, but key decisions on whether to fight the cases at all and later to pursue appeals were made by the City Council.

And the City Council reached those decisions after closing its public meetings and having private discussions of “litigation strategy,” which is one of the few allowable exceptions to Montana open meetings laws. At those closed sessions, apparently, council members were listening to the advice of City Attorney Brent Brooks or someone from his office, as well as to the advice of City Administrator Tina Volek.

This case has involved many, many bad decisions that cannot be undone. Let’s hope the City Council doesn’t make one more bad decision and appeal the ruling in the police-pay case to the Montana Supreme Court.

I don’t know what council members were told in some of those closed sessions, but here is what the judges have had to say about the police contract dispute.

The lawsuit was moved to Park County District Court in Livingston because the lead plaintiff, now-retired police detective Ernie Watters, was married to a Yellowstone County district judge, Susan Watters, now a U.S. District Court judge.

The first Livingston judge to preside over the case was Nels Swandal. Way back in 2011, two years after the suit was filed, Swandal said in a ruling that the city’s contract with the police union was “clear, unambiguous, and easily understandable.”

Swandal agreed with the plaintiffs that the city had failed, going back years, to add officers’ longevity pay to their base salary each year, resulting in a miscalculation of their annual salary.

The private law firm representing the city—one of three private firms that has handled the case—argued that the city and the union, during contract talks, never intended to have the longevity pay added to base salary.

Swandal had to point out an elementary legal consideration, that when contract language is clear, questions of intent are immaterial. In this case, he said, the language was “not ambiguous nor reasonably subject to two different interpretations. The court must apply the language as written.”

Swandal retired before the case went to trial, a trial basically held to determine how much the city owed, not whether it had wronged the police officers. The new judge, Brenda Gilbert, issued her ruling earlier this month, and there is nothing in it that offers the city a shred of hope on appeal.

She ruled that the 142 officers were owed $932,960 in back wages, and she imposed a penalty of 110 percent, or another $1,026,256, which also goes to the officers. The 110 percent penalty was required by state law “if the employer has previously violated similar wage and hour statutes within three years prior to the date of filing the wage claim”—which the city did in the case of its firefighters.

The judge also awarded the officers’ lawyers $653,072, based on a fairly standard contingency fee of 33.3 percent of damages. If the City Council, in a delusionary fit, were to vote to appeal this case to the Supreme Court, that contingency fee would probably rise to about 40 percent for work on the appeal, according to Randy Bishop, one of the attorneys for the officers.

Costs to the city would also mount. As of last January, the city had already paid $330,000 to those three outside law firms.

The city was also ordered to pay $126,000 in incidental costs, most of it for work done by CPA John Myers, hired by the plaintiffs to determine how much was owed to each of the 142 officers. It was extremely complicated, time-consuming work.

It could have been done by the city for much less than that, but as in every other aspect of this case this city dug in its heels and refused to cooperate. It then had the gall to challenge how much was awarded to Myers. Judge Gilbert, probably with some pleasure, ruled that the challenge “appears disingenuous under the circumstances and is expressly rejected.”

City Administrator Volek told the Gazette that city attorneys and staff “believe significant errors of fact and law were made” in the police compensation decision. I seem to recall that the City Council was told the same thing about the firefighter decision—which was then upheld on appeal by a unanimous Supreme Court.

There is absolutely no reason to believe that the Supreme Court won’t slap down the city again, if the City Council is misguided enough to appeal the police case. How many times will the city legal team and administrative staff be allowed to waste taxpayer money on compounded errors?

The city hasn’t said when this issue will come up for a public debate and a public vote, but let’s hope that enough outraged taxpayers show up and urge the council to stop heeding bad advice and, for a change, to do the right thing.

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