AN ACT AMENDING THE VETERANS' PUBLIC EMPLOYMENT PREFERENCE LAW; PROVIDING FOR THE APPLICATION OF VETERANS' PREFERENCE BY AN EMPLOYER USING A NONSCORED PROCEDURE WHEN APPLICANTS HOLD SUBSTANTIALLY EQUAL QUALIFICATIONS; REQUIRING A PUBLIC EMPLOYER TO APPLY VETERANS' PREFERENCE WHEN NO APPLICANT MEETS THE MINIMUM QUALIFICATIONS AND THE PUBLIC EMPLOYER FILLS A TRAINING POSITION; 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, must have added to the applicant's score the following percentage points of the total possible points that may be granted in the scored procedure:

(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) meets the minimum qualifications required for the position. If no applicant meets the minimum qualifications and the public employer fills a training position, veterans' preference must be applied.

(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 public employer shall give preference to a disabled veteran, eligible relative, or veteran, in that order, over any nonpreferred applicant holding substantially equal qualifications, as defined in 39-30-103."

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 preference provided in 39-29-102.

(2) A job applicant who believes that the applicant is eligible to receive a preference shall claim the preference in writing before the time for filing applications for the position involved has passed. Failure to make a timely preference claim for a position is a complete defense to an action instituted by an applicant under 39-29-104 with regard to that position.

(3) If an applicant for a position 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 that the applicant is entitled to but has not been given the 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 the application was received by the public employer. The petition must state facts that on their face entitle the applicant to a 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 public employer applied the 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 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."

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I hereby certify that the within bill,

SB 0090, originated in the Senate.

Secretary of the Senate

President of the Senate

Signed this	day

of	, .

Speaker of the House

Signed this	day

of	, .

SENATE BILL NO. 90

INTRODUCED BY S. STANG

BY REQUEST OF THE JOINT INTERIM SUBCOMMITTEE ON VETERANS' NEEDS

AN ACT AMENDING THE VETERANS' PUBLIC EMPLOYMENT PREFERENCE LAW; PROVIDING FOR THE APPLICATION OF VETERANS' PREFERENCE BY AN EMPLOYER USING A NONSCORED PROCEDURE WHEN APPLICANTS HOLD SUBSTANTIALLY EQUAL QUALIFICATIONS; REQUIRING A PUBLIC EMPLOYER TO APPLY VETERANS' PREFERENCE WHEN NO APPLICANT MEETS THE MINIMUM QUALIFICATIONS AND THE PUBLIC EMPLOYER FILLS A TRAINING POSITION; AND AMENDING SECTIONS 39-29-102, 39-29-103, AND 39-29-104, MCA.