The former chief of law enforcement for Montana Fish, Wildlife & Parks has lost a second court case appealing his 2017 reassignment to the position of investigator.
In a Sept. 9 order, Lewis and Clark County District Court Judge James Reynolds ruled that former FWP chief Tom Flowers had not exhausted his administrative appeals before taking his case to court. At the request of FWP’s legal counsel, Reynolds dismissed Flowers’ case.
It was the second time Flowers lost in court in what has been a lengthy and circuitous appeals process. The first time was in 2018 before District Court Judge Michael McMahon.
Flowers had been appointed chief of law enforcement for FWP in 2015, holding the post for two years before reassignment after current FWP chief Dave Loewen successfully appealed the hiring process that led to Flowers’ promotion. The Board of Personnel Appeals, which considered Loewen’s complaints that he was the more qualified candidate, ruled that FWP hadn’t followed its own hiring process and said Loewen should be given his choice of jobs. He had also applied for the assistant chief’s position.
Reynolds wrote in his order to dismiss, “The Court joins Judge McMahon in its sincere sympathy for Flowers in this administrative morass. This Court shares Judge McMahon’s assessment that Flowers’ opportunity for due process was either through intervention in the other employee’s (Loewen’s) grievance, which resulted in his loss of the coveted chief’s position, or by filing his own grievance. He failed to take either step to protect his own personal employment rights. His failure to do so is fatal to his case before this Court.”
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After losing the first case, Flowers attempted to revisit his administrative appeals only to be denied by FWP who said the grievance had not been filed in a timely manner. He then took his case to the Board of Personnel Appeals which also rejected his case saying it was untimely. He appealed and BOPA transferred the issue to the Office of Administrative Hearings where Flowers was again denied, based on the appeal coming too late after the transfer to his new investigator position.
However, Flowers did not appeal the Office of Administrative Hearings ruling to BOPA, instead taking the issue to court in February. FWP moved to dismiss arguing that he had not exhausted his “administrative remedies” by making that next appeal to BOPA.
Flowers’ attorney, Palmer Hoovestal, had argued that there was no requirement that he file a request for review with BOPA, noting that the paperwork Flowers had received from the hearing officer specifically stated the “order shall become the Final Order of this Board unless written exceptions are filed.”
FWP’s legal counsel, Aimee Hawkaluk, had also argued the case should be dismissed because Flowers was seeking a judicial ruling on a case that he had already presented to McMahon in 2018. Reynolds agreed with the department on that point, as well, “By his present petition, Flowers is seeking a second bite of the apple. The administrative/judicial processes do not allow for that second opportunity once a final decision has been issued.”
Calls to Flowers and his attorney for comment were not returned.