Costs of paying deputies still uncertain

Sheriff's deputies owed back pay after their wages were miscalculated are willing to settle their lawsuit against Flathead County before a final judgment is issued in the coming months, according to the deputies' attorney.

"We've been willing to settle this case since 2006," said Missoula attorney Karl J. Englund, who represents 29 former and current sheriff's deputies involved in the suit.

While Flathead County District Court Judge Katherine R. Curtis ruled last month that the deputies are entitled to past wages, a dollar amount has yet to be reached.

By statute, deputies earn a percentage of the salary paid to the sheriff. In November, Curtis issued a partial summary judgment finding that $2,000 added by the state to the sheriff's base pay must be included in that calculation. It previously had been left out.

Curtis, who ordered the county to pay deputies three years of past wages based on their recalculated salaries, plus penalties and attorney's fees, won't issue a final judgment until accountants calculate how much is owed each deputy.

"Somebody who works as a deputy is entitled to receive the pay the Legislature has set," Englund said. "That's only fair. And that's all that the deputies have asked for here."

Deputy Flathead County Attorney Jonathan Smith had unsuccessfully argued that the same method was used to calculate deputies' wages for decades and that the deputy sheriff's union gave implicit consent to the calculation by approving numerous labor contracts with the county.

According to officials, deputies approached Flathead County in 2006 with a request for past wages after a court in Lewis and Clark County ruled on a similar pay dispute in that jurisdiction. Flathead County agreed to begin paying its deputies a salary recalculated to include the $2,000 added by the state to the sheriff's wage, but declined to pay past wages or penalties.

As the statute of limitations to recover the past wages approached and Flathead County officials stalled while waiting to see how the Montana Supreme Court would rule on the Lewis and Clark County case, deputies were forced to file suit to protect their standing, Englund said.

"These guys do … an increasingly tough job made even more difficult in the Flathead because they're understaffed. They're out there risking their lives every day," Englund said. "Because the county was unwilling in the course of the 2006 negotiations to talk to us about trying to resolve this, these guys had no choice but to file suit."

Preliminary estimates indicate that after past wages, penalties and attorney's fees are paid the county is "likely looking at a million-dollar hit," Flathead County Commissioner Joe Brenneman said.

But Englund believes the actual cost may be much lower. Calculations in December 2007 put the figure to pay the 29 deputies who filed suit nearer to $280,000, he said.

However, approximately double the number of deputies named in the lawsuit eventually may receive back pay. Everyone affected who has money coming will be compensated, Flathead County Sheriff Mike Meehan said.

The length of time it takes the county to pay the deputies and attorney's fees assessed also will impact how much it costs. Curtis levied a 15 percent penalty against the county if the deputies are paid in under two years, but the penalty jumps to 55 percent if payment takes longer.

The decision not to include the $2,000 paid by the state to the sheriff when calculating deputies' salaries occurred more than two decades ago - long before the current sheriff and commissioners took office, according to Montana Association of Counties personnel services administrator and attorney Jack Holstrom.

When the Montana Sheriffs and Peace Officers Association asked a Helena attorney to interpret the 1981 statute, the attorney concluded that the additional $2,000 paid to the sheriff should not be used to calculate deputies' longevity pay.

The executive director of the Montana Association of Counties at that time thought the attorney's interpretation of the statute was reasonable and passed the recommendation along to county governments, Holstrom said.

Since the pay statutes were passed, the Montana Attorney General has issued four or five conflicting opinions on sheriff's and deputies' pay, said Holstrom, who has worked with counties on law enforcement salary issues for the last 12 years.

"It's really difficult to try and figure out what the Legislature did," he said.

And it may take even further court action to clarify the controversy.

The Montana Supreme Court's decision in the Lewis and Clark County wage dispute didn't address whether or not the $2,000 paid to the sheriff by the state should be included when calculating deputies' longevity because the county had already conceded that pay to deputies when the case reached the state's high court, Holstrom said.

"And I'm frankly not certain that that concession is proper," Holstrom said.

Also, prior to Curtis' ruling, longevity payments for Flathead County deputies had been based on the minimum base salary a deputy could receive - 74.1 percent of the sheriff's salary - rather than on the minimum base salary corresponding to a deputy's rank. By statute, corporals receive 84.5 percent and sergeants receive 86.5 percent of the sheriff's salary.

Former Flathead County Sheriff and Commissioner-elect Jim Dupont has received some flak for including the $2,000 when calculating pay for the Sheriff's Office's higher-ranking administrative positions but not when calculating the pay for ranks below sergeant.

But administrators, who cannot be paid for overtime work and are not part of the collective bargaining process, were in some cases earning less than lower-ranking deputies, Dupont said.

During contract negotiations, administrators and deputies' union representatives had considered adding the additional $2,000 into deputies' salary calculations in lieu of cost-of-living raises, Dupont said.

"There was a lot of controversy as to what the statute meant," Dupont said. "It's a poorly written law because it's not clear."

Dupont, who takes office as commissioner in January, said he would prefer to pay the expected judgment out of existing county funds.

Brenneman has said that county commissioners have considered increasing property taxes or using an approximately $800,000 payment from the federal government due the county for untaxable lands under federal ownership.

Reporter Nicholas Ledden can be reached at 758-4441 or by e-mail at nledden@dailyinterlake.com