The former chief of law enforcement for Fish, Wildlife & Parks filed an appeal on Monday to the Montana Supreme Court seeking to have his removal from that state office overturned, or to at least have the issues surrounding the unusual actions behind his replacement considered in court.
“It’s sort of the last option,” said Tom Flowers, who is still employed by FWP as a license fraud investigator.
“That’s my next option and I’m going to take it.”
An FWP spokesman said the agency was aware of the appeal and is reviewing the matter but had no comment.
A 29-year veteran in FWP’s law enforcement division, the 60-year-old Flowers has twice taken his case to Lewis and Clark County District Court, where two different judges declined to hear his arguments saying he had not exhausted all of the internal administrative appeals available to him. The paradox of his situation is that Flowers cannot now appeal administratively because the clock for that has run out.
Flowers had been appointed chief of enforcement for FWP in 2015. Two years later, Helena warden Sgt. Dave Loewen, who had applied for a captain’s position in Bozeman and the assistant chief and chief’s position, won his appeal to the Board of Personnel Appeals regarding the hiring process.
In an unprecedented ruling, the BOPA hearing officer ruled that Loewen was the more qualified candidate and told FWP to give Loewen his choice of jobs. Loewen chose the chief of enforcement position, which he has now held since 2017.
Initially, Flowers said FWP’s legal counsel told him it would challenge the BOPA hearing officer’s decision. But after FWP’s then-director Jeff Hagener retired, the agency’s trio of acting directors chose to stand by Loewen’s appointment. Hagener heard from "various people in the agency" that one of those directors, chief of operations Mike Volesky, had a "perceived bias" toward Loewen, Hagener testified, according to recordings of the BOPA hearing provided to The Billings Gazette.
Hagener also testified that Flowers was his choice to "try to bring that division back together."
“There are relationships and friendships involved here that influenced what happened,” Flowers said. “That’s not uncommon, it happens everywhere, but that doesn’t make it right.”
Another interim director told Flowers when he was still chief to appoint Loewen as assistant chief of enforcement, Flowers claimed. Instead, he chose Ron Jendro after a representative from the governor’s office stepped into the decision-making process and advised against Flowers’ first choice, then Great Falls warden Bryan Golie who had backed leaving the Montana Public Employees Association union, a move that had been unpopular with the governor and the Democratic Party. That assertion is part of Flowers' testimony under oath during the BOPA hearing.
“Mike (Volesky) was clearly not comfortable with that selection” of Golie, Flowers testified. “And he said, ‘Oh no. You can’t hire Bryan or you shouldn’t hire Bryan. You have to hire Dave, meaning Dave Loewen.’ And I said, ‘That’s not who I’m selecting. My process, my person and I want to offer it to Bryan.’ And again he said, “That would be a mistake. You need to hire Dave.’”
When Flowers ignored Volesky’s advice, Gov. Steve Bullock's then chief of staff, Tracy Stone-Manning, phoned him and said there was a “personnel issue” with Golie that should remove him from consideration.
“I talked to Jeff again because I was a bit confused,” Flowers testified. “It was my hire, so why am I dealing with Mike Volesky and the governor’s office? It was sort of a rhetorical question.”
In the end, Flowers conceded and hired Jendro. Flowers said he didn’t hire Loewen because, “I was really concerned about Mr. Loewen’s attitude and whether he and I could work that well together. I think we have very different personalities and we come across to people very differently.”
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Looking back now, Flowers said, "It just seems like we have an internal leadership problem that we can’t get our arms around.
“Something needs to change, I think,” he added. “It’s not just sour grapes.”
A Helena resident, Flowers said he’s proceeding with his lawsuit despite his previous setbacks not so much for himself as to make sure a similar incident doesn’t affect a fellow FWP employee in the future.
“Personally, I find it disappointing that something of this nature gets elevated when it didn’t have to,” he said.
Should the state’s highest court rule against him, or decide not to hear the case, the final legal remedy available to Flowers is to sue the department in civil court. That would be a route for him to present information publicly about what has taken place.
In the past legal proceedings, when trying to introduce information about the process that led to his removal, FWP has successfully argued that the information is not pertinent to the case at hand. The issue instead has been the process available for Flowers to appeal and the timing behind those steps.
The two-year legal fight has often left Flowers anxious, stressed and led to many sleepless nights. It’s also been a drain on his bank account.
“It’s not where I wanted to be at this time of my life,” he said. “Prior to this I was a pretty positive person.”
But he remains determined.
“I still have support in the department, and that’s helpful,” he said.
Yet still working in an agency that he is battling in court can prove uncomfortable at times.
“My particular situation now is challenging at best,” he said. “I guess that’s to be expected.
Although he was reassigned to a different position within FWP, Flowers has maintained his chief’s pay. In effect they are paying him to sue them, he said.
“It’s a little difficult to give up on a career when you’ve done nothing wrong, and you’ve been told that,” Flowers said.