House Bill No. 410
Introduced By _______________________________________________________________________________
A Bill for an Act entitled: "An Act Amending the Veterans' Preference Law; requiring a public employer to administer a new test to applicants or to reopen the selection process under certain conditions; requiring proof of the use of a substantially equivalent selection procedure to apply veterans' preference whenever a scored procedure is not used; requiring that veterans' preference be applied in the selection procedure for any position or promotion; and amending sections 39-29-102, 39-29-103, and 39-29-104, MCA."
Be it enacted by the Legislature of the State of Montana:
Section 1. Section 39-29-102, MCA, is amended to read:
"39-29-102. Point preference or alternative preference in
initial hiring for certain applicants -- substantially
equivalent selection procedure. (1) Subject to the restrictions in subsections (2) and (3), whenever a public employer uses
a scored procedure, an applicant for an initial hiring, as defined in 39-30-103, for any position or promotion must have
added to his the applicant's score the following percentage points of the total possible points that may be granted in the
(a) 5 percentage points if the applicant is a veteran; and
(b) 10 percentage points if the applicant is a disabled veteran or an eligible relative.
(2) A veteran, disabled veteran, or eligible relative may not receive the percentage points provided for in subsection (1) unless the person:
(a) is a United States citizen; and
(b) received 70 or more percentage points of the total possible points that may be granted in the scored procedure. A public employer shall either administer a new test or reopen the selection process if no applicant receives the required minimum score of 70 percentage points.
(3) A disabled veteran who receives 10 percentage points under subsection (1)(b) may not receive an additional 5 percentage points under subsection (1)(a).
(4) Whenever a public employer uses a selection procedure other than a scored procedure, the employer shall provide proof that the procedure used to apply veterans' preference for any position or promotion was substantially equivalent to the scored procedure. As used in this subsection, "substantially equivalent" means a procedure under which an applicant receives from the employer a weighted preference factor similar to the percentage points provided for in subsection (1)."
Section 2. Section 39-29-103, MCA, is amended to read:
"39-29-103. Notice and claim of preference. (1) A public employer shall, by posting or on the application form, give
notice of the
point preference provided in 39-29-102.
(2) A job applicant who believes
he that the applicant is eligible to receive a point preference shall claim the preference in
writing before the time for filing applications for the position or promotion involved has passed. Failure to make a timely
preference claim for a position or promotion is a complete defense to an action instituted by an applicant under 39-29-104
with regard to that position or promotion.
(3) If an applicant for a position or promotion makes a timely written preference claim, the public employer shall give written notice of its hiring decision to the applicant claiming preference."
Section 3. Section 39-29-104, MCA, is amended to read:
"39-29-104. Enforcement of preference. (1) An applicant who believes
he that the applicant is entitled to but has not
been given the point preference provided in 39-29-102 may, within 30 days of receipt of the notice of the hiring decision
provided for in 39-29-103, submit to the public employer a written request for an explanation of the public employer's
hiring decision. Within 15 days of receipt of the request, the public employer shall give the applicant a written explanation.
(2) After following the procedure described in subsection (1), the applicant may, within 90 days after receipt of notice of
the hiring decision, file a petition in the district court in the county in which
his the application was received by the public
employer. The petition must state facts that on their face entitle the applicant to a point preference.
(3) (a) Upon filing of the petition, the court shall order the public employer to appear in court at a specified time not less
than 5 or more than 10 days after the day the petition was filed and show cause why the applicant was not hired for the
position. At the hearing, the public employer has the burden of proving by a preponderance of the evidence that the
employer applied the
points preference under 39-29-102 and made a reasonable hiring decision. The applicant has the
burden of proving by a preponderance of the evidence that he the applicant is a preference-eligible applicant.
(b) The time to appear provided in subsection (3)(a) may be waived by stipulation of the parties. If a time to appear has been specified pursuant to subsection (3)(a), the court may, on motion of one of the parties or on stipulation of all of the parties, grant a continuance.
(c) If the public employer does not carry its burden of proof under subsection (3)(a) and the court finds that the applicant is a preference-eligible applicant, the court shall order the public employer to comply with the provisions of 39-29-102. In addition, the court shall, upon proper proof, grant an award of backpay, reasonable attorney fees, and costs.
(4) Failure of an applicant to file a petition under subsection (2) within 90 days bars the filing of a petition. If a public employer fails to provide an explanation under subsection (1) within 15 days and a petition is filed under subsection (2), the court shall order the public employer to comply with the provisions of 39-29-102.
(5) The Montana Rules of Civil Procedure apply to a proceeding under this section to the extent that they do not conflict with this section."