In an unusual labor settlement, Montana Fish, Wildlife and Parks has been ordered to remove its chief law enforcement officer, Thomas Flowers, and replace him with a 2015 competitor for the job.
Flowers' promotion in 2015 was successfully challenged by one of his officers, Region 3 warden Sgt. David Loewen of Helena, who had filed a grievance with the Board of Personnel Appeals. In its findings the board told FWP to appoint Loewen to "his position of choice," according to a Jan. 2 FWP email to staff explaining the situation. Loewen is now scheduled to assume Flowers' job as FWP chief of law enforcement beginning Jan. 9. Flowers is on paid administrative leave.
Becky Docktor, FWP's chief legal counsel, said she's never seen such a ruling by the board before. More often it will direct the agency to redo its hiring process.
The board told FWP that it had "erred in its implementation of the hiring processes associated with the July 2015 hiring of the Chief of the Enforcement Division and the September 2015 hiring of the Assistant Chief of the Enforcement Division," according to the FWP email. "The Board found that the department violated provisions of Montana Rules, FWP’s Recruitment and Selection Policy, and the Veteran’s Employment Preference Act and Rules.”
Loewen had filed three grievances with the board, centered on the fact that he wasn’t hired for three different positions in the department, according to David Scrimm, chief administrative law judge for the Department of Labor and Industry. The three positions were law enforcement division chief, Region 3 warden captain and enforcement division assistant administrator.
The Region 3 warden captain is Adam Pankratz. The assistant administrator is Ron Jendro. Both of those men were also promoted to their positions in 2015.
Although FWP could appeal the ruling, Dustin Temple, chief of administration — in consultation with Paul Sihler, chief of staff, and Mike Volesky, chief of operations — chose to abide by the decision after "extensive discussions," Sihler said. The men are filling in for FWP director Jeff Hagener who retired last month. No replacement has yet been named by Gov. Steve Bullock.
"We'll do everything we can to make him as whole as we can, recognizing there's only one chief position," Sihler said.
The administrators' stance riled Flowers, who has no standing in the case.
"The most disappointing thing was not to have backing from the department," Flowers said.
In response, he has talked to an attorney about petitioning in District Court for reinstatement. For now he's on paid administrative leave.
Flowers said he found the department's decision especially irritating considering that the agency plans to appeal a $1,500 fine by the Department of Political Practices over FWP's loaning a trailer to a trapping group.
"Maybe I should register myself at (the Department of Motor Vehicles) as a trailer and I would be treated a little better," he joked. "I've got to figure out a way to attach a license plate to my backside."
The FWP email to staff said Loewen and Flowers were both "well qualified finalists" for the chief's position. Because of that, it was “a very difficult issue that the director’s office has been struggling with during the last month.” The memo was co-authored by Sihler, Temple and Volesky.
“The director’s office regrets these mistakes, and apologizes to those directly affected by the consequences,” the email said, and also noted that it is the department’s intent to keep Flowers employed in FWP enforcement in a “meaningful capacity.” What that means Flowers isn't sure, since there's no lateral move from chief of enforcement.
The issue erupted less than a month after the same interim directors dismissed Montana State Parks director Chas Van Genderen over what was termed a personnel issue.
Flowers is a 28-year veteran with FWP. Prior to being hired as chief of law enforcement he worked as FWP’s Region 6 supervisor in Glasgow. He took that position in 2013 after previously working as a criminal investigator based in Choteau. He started with FWP as a warden in Miles City in 1988.
A voice message left for Loewen and his attorney were not returned by press time. They requested attorney fees be paid as part of the settlement, but the hearing officer denied that request, which they are appealing to the board.
FWP and the Montana Department of Transportation are the only two agencies in the state to use the Board of Personnel Appeals to rule on complaints. “The Board of Personnel Appeals is a five-member quasi-judicial board charged with providing appellate-level review for matters involving the Collective Bargaining Act for Public Employees,” according to the Department of Labor and Industry’s website.
Other agencies have their own internal processes, Scrimm said.
“We don’t see a lot of them — 10 to 15 a year” for all state agencies, Scrimm said of such cases. “Most are resolved at a lower level so they don’t make it this far.”
According to its website, “The Office of Administrative Hearings, formerly known as the Hearings Bureau, holds impartial administrative hearings and provides dispute resolution services in unemployment insurance cases, wage and hour claims, public employee collective bargaining and unfair labor practices cases, state employee classification appeals and grievances, uninsured employer regulatory matters, professional and occupational licensing appeals, and human rights complaints.”
In the wake of the ruling and change in duties, FWP’s administrators said in their letter to staff, “We are taking steps to add additional rigor to department hiring practices to ensure these mistakes are not repeated.”