In the Matter of a Petition for Clarification of an Appropriate Unit Independent School District No. 622, North St. Paul-Maplewood-Oakdale, North St. Paul, Minnesota v. North St. Paul-Maplewood-Oakdale Education Association, North St. Paul, Minnesota, Relator, Bureau of Mediation Services , 880 N.W.2d 383 ( 2016 )

STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1164
In the Matter of a Petition for Clarification of an Appropriate Unit
Independent School District No. 622,
North St. Paul-Maplewood-Oakdale,
North St. Paul, Minnesota,
Respondent,
vs.
North St. Paul-Maplewood-Oakdale Education Association,
North St. Paul, Minnesota,
Relator,
Bureau of Mediation Services,
Respondent.
Filed May 16, 2016
Affirmed
Johnson, Judge
Bureau of Mediation Services
File No. 15PCL0186
Kevin J. Rupp, Kristin Nierengarten, Rupp Anderson Squires & Waldspurger, PA,
Minneapolis, Minnesota (for respondent Independent School District No. 622)
Jess Anna Glover, David Aron, Education Minnesota, St. Paul, Minnesota (for relator)
Bureau of Mediation Services, St. Paul, Minnesota (respondent)
Considered and decided by Schellhas, Presiding Judge; Worke, Judge; and Johnson,
Judge.
SYLLABUS
The school district’s pre-kindergarten instructors are not required to be licensed by
the board of teaching or the commissioner of education because there is no licensure
requirement in state statutes governing pre-kindergarten school-readiness programs, no
licensure requirement in federal law governing pre-kindergarten programs receiving
federal Title I funds, and no licensure requirement imposed by the school district.
Accordingly, the school district’s pre-kindergarten instructors are not “teachers” for
purposes of the Public Employment Labor Relations Act and, therefore, are not included
in the teacher bargaining unit.
OPINION
JOHNSON, Judge
An association of public-school teachers petitioned the Bureau of Mediation
Services for clarification of its collective bargaining unit. The association sought a ruling
that instructors in the school district’s pre-kindergarten program are included in the teacher
bargaining unit. The bureau determined that the school district’s pre-kindergarten
instructors are not included in the teacher bargaining unit because they are not required to
hold a teaching license. We affirm.
FACTS
Independent School District No. 622 operates public schools within the Twin Cities
metropolitan area. The North St. Paul-Maplewood-Oakdale Education Association is the
exclusive bargaining representative of certain employees of the school district, including
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teachers, for purposes of the Public Employment Labor Relations Act (PELRA), Minn.
Stat. §§ 179A.01-.60 (2014).
In 2010, the school district established a pre-kindergarten program. The school
district initially required each instructor in the pre-kindergarten program to hold a teaching
license. Accordingly, the instructors in the pre-kindergarten program were included in the
teacher bargaining unit from 2010 to 2014.
In 2014, the school district made changes to its pre-kindergarten program. The
school district decided to operate two pre-kindergarten programs: Stepping Stones, a
program funded in part with money received from the state government, and PreK, a
program funded in part with money received from the federal government. At the same
time, the school district decided to change the minimum qualifications of the pre-
kindergarten instructor position by eliminating the requirement of a teaching license.
When the school district advertised an open position in 2014, the posting required
applicants to have a “[b]achelor’s degree in early childhood education/related field” and
indicated a preference for an “Early Childhood/Prekindergarten teaching license” but did
not require a teaching license. The school district employed six persons as pre-
kindergarten instructors during the 2014-15 academic year: four in Stepping Stones and
two in PreK. Five of the pre-kindergarten instructors had teaching licenses. The sixth
instructor, who taught in Stepping Stones, did not have a teaching license but had a master’s
degree in family studies.
In September 2014, the association petitioned the Bureau of Mediation Services
(BMS) for clarification as to whether the school district’s pre-kindergarten instructors are
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included in the teacher bargaining unit. In January 2015, a BMS hearing officer conducted
a hearing on the petition. The association called five witnesses: the director of educator
licensing for the Minnesota Department of Education (MDE), two of the school district’s
former pre-kindergarten instructors, the association’s member-rights representative, and a
member of the staff of Education Minnesota. The school district called three witnesses: its
supervisor of educational programs in its teaching and learning department, its early-
learning supervisor, and its human-resources director.
In January 2015, MDE published informal guidance stating that Early Childhood
Family Education (ECFE) programs, which are distinct from school-readiness programs in
their content, must be staffed by licensed teachers but that school-readiness programs do
not need to be staffed by licensed teachers. See Minn. Stat. §§ 124D.13-.135 (ECFE);
124D.15-.16 (school readiness).
In June 2015, the BMS hearing officer issued a ten-page order, which concluded
that the school district’s pre-kindergarten instructors are not included in the teacher
bargaining unit because they are not required to hold a teaching license. The association
appeals by way of a writ of certiorari.
ISSUE
Are the school district’s pre-kindergarten instructors within the teacher bargaining
unit?
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ANALYSIS
The association argues that the BMS hearing officer erred by concluding that the
pre-kindergarten instructors in the school district are not within the teacher bargaining unit
because they are not required to hold teaching licenses.
This court’s task is to review the BMS decision to determine whether “it reflects an
error of law,” whether “the determinations are arbitrary and capricious,” or whether “the
findings are unsupported by the evidence.” In re Petition for Clarification of Appropriate
Unit, 660 N.W.2d 467, 469 (Minn. App. 2003) (Rosemount), review denied (Minn. July 15,
2003). In conducting that review, we generally “defer to the agency’s expertise and special
knowledge in the field of its technical training, education, and experience.” Id. at 470
(quotation omitted). But to the extent that the BMS hearing officer’s decision is based on
an interpretation of a statute, it “is clearly a question of law” that is “fully reviewable” by
an appellate court. Hibbing Educ. Ass’n v. Public Emp’t Relations Bd., 369 N.W.2d 527,
529 (Minn. 1985); see also Schwanke v. Minnesota Dep’t of Admin., 851 N.W.2d 591, 594
n.1 (Minn. 2014) (stating that appellate courts “owe no deference to an agency’s
interpretation of an unambiguous statute”).
PELRA governs public-sector labor-management relations in Minnesota. See
Minn. Stat. § 179A.01. The act recognizes the right of public-sector employees to form
and join unions and to collectively bargain with their employers. Minn. Stat. § 179A.06,
subds. 2, 5. The act applies to the relationship between school districts and their
employees. Rosemount, 660 N.W.2d at 470. Furthermore, the act specifies that the
appropriate bargaining unit for a school district is “all teachers in the district.” Minn. Stat.
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§ 179A.03, subd. 2. The term “teacher” is defined within the act to mean, in relevant part,
“any public employee other than a superintendent or assistant superintendent, principal,
assistant principal, or a supervisory or confidential employee, employed by a school district
. . . in a position for which the person must be licensed by the Board of Teaching or the
commissioner of education.” Minn. Stat. § 179A.03, subd. 18(1) (emphasis added); see
also Hibbing, 369 N.W.2d at 529.
In light of PELRA’s definition of the term “teacher,” the central issue in this appeal
is whether pre-kindergarten instructors in the school district are required to “be licensed by
the Board of Teaching or the commissioner of education.” See Minn. Stat. § 179A.03,
subd. 18(1). If so, “they belong in the bargaining unit represented by” the association; if
not, they “belong not in the teachers’ unit, but in a separate bargaining unit.” See Hibbing,
369 N.W.2d at 529. The association contends that the school district’s pre-kindergarten
instructors are required to be licensed for four reasons.
A.
The association first contends that the school district’s pre-kindergarten instructors
are required to be licensed because of state statutes that govern pre-kindergarten
instruction. The association’s argument implicates issues of statutory interpretation. We
begin interpreting a statute by asking “whether the statute’s language, on its face, is
ambiguous.” American Tower, L.P. v. City of Grant, 636 N.W.2d 309, 312 (Minn. 2001).
A statute is unambiguous if it is susceptible to only one reasonable interpretation. Lietz v.
Northern States Power Co., 718 N.W.2d 865, 870 (Minn. 2006). If a statute is
unambiguous, we “interpret the words and phrases in the statute according to their plain
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and ordinary meanings.” Graves v. Wayman, 859 N.W.2d 791, 798 (Minn. 2015). A
statute is ambiguous, however, if it has “more than one reasonable interpretation.” Lietz,
718 N.W.2d at 870. If a statute is ambiguous, we apply “the canons of statutory
construction to determine its meaning.” County of Dakota v. Cameron, 839 N.W.2d 700,
705 (Minn. 2013).
The association relies on the statutes governing school-readiness programs. See
Minn. Stat. §§ 124D.15-.16 (2014). Under these statutes, a school district is permitted to
“establish a school readiness program . . . to prepare children to enter kindergarten.” Minn.
Stat. § 124D.15, subd. 1. If a school district’s school-readiness program satisfies certain
requirements, the school district may receive aid from the state. Minn. Stat. § 124D.16,
subd. 2. A school-readiness program must satisfy eight specified program requirements,
Minn. Stat. § 124D.15, subd. 3, including a requirement that the program “have teachers
knowledgeable in early childhood curriculum content, assessment, native and English
language development programs, and instruction,” id., subd. 3(8) (emphasis added).
The association contends that the word “teachers” in section 124D.15, subdivision
3(8), means licensed teachers. The term “teacher” is not defined within chapter 124D. See
Minn. Stat. § 124D.01 (2014) (incorporating definitions in section 120A.05); Minn. Stat.
§ 120A.05 (2014) (defining 16 terms but not defining “teacher”). Generally, if “a statute
is ‘completely silent on a contested issue,’ we do not look beyond the statutory text to
discern its meaning unless there is an ‘ambiguity of expression’ — rather than a ‘failure of
expression.’” State Farm Mut. Auto. Ins. Co. v. Lennartson, 872 N.W.2d 524, 532 (Minn.
2015) (quoting Rohmiller, 811 N.W.2d at 590). “[W]e look beyond the statutory text only
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if its ‘silence renders the statute susceptible to more than one reasonable interpretation.’”
Id. In this case, however, no ambiguity is created by the absence of the word “licensed”
before the word “teachers.” Thus, we interpret the statute according to its plain meaning.
American Tower, L.P., 636 N.W.2d at 312.
The common definition of the word “teacher” is simply “[o]ne who teaches,
especially one hired to teach.” The American Heritage Dictionary of the English Language
1786 (5th ed. 2011); see also Webster’s New International Dictionary 2588 (2d ed. 1934)
(“One who teaches, or instructs; esp., one whose occupation is to instruct; an instructor;
tutor.”). In other words, the plain and ordinary meaning of the word “teacher” is not limited
to a teacher who holds a teaching license. We note that other provisions in chapter 124D
require teachers to be licensed in certain situations by so stating in express terms. For
example, a school-readiness program “must be supervised by a licensed early childhood
teacher, a certified early childhood educator, or a licensed parent educator.” Minn. Stat.
§ 124D.15, subd. 10 (emphasis added). In addition, an ECFE program “must employ
necessary licensed teachers for its early childhood family education programs.” Minn.
Stat. § 124D.13, subd. 11 (2014) (emphasis added); see also Minn. Stat. §§ 124D.231,
.454, .59 (2014). These provisions suggest that the legislature could have used language
to expressly indicate that a teacher in a school-readiness program must be licensed, if the
legislature had so intended. But the legislature did not do so. The association essentially
asks this court to insert the word “licensed” into section 124D.15, subdivision 3(8), before
the word “teacher.” “Because ambiguity is not created by the statute’s silence, we ‘are not
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free to substitute amendment for construction and thereby supply the omissions of the
Legislature.’” Id. (citing Rohmiller v. Hart, 811 N.W.2d 585, 590 (Minn. 2012)).
Thus, the school district’s pre-kindergarten instructors are not required by the
school-readiness statutes to be licensed by the board of teaching or the commissioner of
education.1
B.
The association next contends that the school district’s pre-kindergarten instructors
are required to be licensed because of federal law. Federal law is relevant because the
school district’s PreK Program employs two pre-kindergarten instructors using federal
funds appropriated pursuant to a federal law commonly known as Title I. See 20 U.S.C.
§§ 6301-6578 (2012); see also Pub. L. No. 114-95, 129 Stat. 1801-2192. The Minnesota
Supreme Court has implicitly acknowledged that an employee working in a program that
receives Title I funds would be in a teacher bargaining unit if federal law were to require
recipients of Title I funds to employ licensed teachers in that program. Hibbing, 369
N.W.2d at 529.
The association contends that pre-kindergarten instructors funded by Title I are
required by federal law to be “highly qualified” and that, in Minnesota, a “highly qualified”
teacher must have a teaching license. Under federal law, a state educational agency
1
We note that our interpretation of the school-readiness statutes is consistent with
the interpretation of the MDE, as reflected in the informal guidance that it issued in January
2015. “Administrative interpretations [as to the construction of a statute] are entitled to
great respect, but they are not binding on the court.” Rosemount, 660 N.W.2d at 470
(alteration in original) (quoting Independent Sch. Dist. No. 621 v. Public Emp’t Relations
Bd., 268 N.W.2d 410, 412 n.5 (Minn. 1978)).
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receiving Title I funds (such as MDE) must ensure that “all teachers teaching in core
academic subjects” are “highly qualified.” 20 U.S.C. § 6319(a)(2). “The term ‘core
academic subjects’ means English, reading or language arts, mathematics, science, foreign
languages, civics and government, economics, arts, history, and geography.” 34 C.F.R.
§ 200.56. To be “highly qualified,” a teacher who teaches a “core academic subject” must
have a teaching license. 34 C.F.R. § 200.55-.56; accord Minn. Stat. § 122A.16 (2014)
(defining “highly qualified teacher,” for purposes of federal law, as “one who holds a valid
license under this chapter”).
To resolve the association’s argument, we must determine whether the school
district’s pre-kindergarten instructors are “teachers teaching in core academic subjects.”
See 20 U.S.C. § 6319(a)(2). The United States Department of Education has addressed
this issue in informal guidance. U.S. Dep’t of Educ., Serving Preschool Children Through
Title I: Part A of the Elementary and Secondary Education Act of 1965, as Amended (Oct.
2012), http://www2.ed.gov/policy/elsec/guid/preschoolguidance2012.pdf.2 The guidance
states that the highly-qualified teacher requirements “apply only to elementary and
secondary school teachers.” Id. at 11. With respect to pre-kindergarten programs, the
guidance states that “only teachers working in a Title I preschool program in a State that
considers preschool to be part of public elementary education must meet the Title I
requirements for ‘highly qualified teachers.’” Id. at 9. The MDE essentially adopted the
2
As a matter of federal law, a federal agency’s informal guidance is not binding on
a court but may be given deference. See Skidmore v. Swift & Co., 323 U.S. 134, 139-40,
65 S. Ct. 161, 164 (1944). We have considered the relevant Skidmore factors and conclude
that the guidance is owed substantial deference. See id. at 140, 65 S. Ct. at 164.
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United States Department of Education’s informal guidance in its own informal guidance,
which was presented to the BMS hearing officer and is in the appellate record.3
Minnesota is not “a State that considers preschool to be part of public elementary
education.” See id. In Minnesota, school attendance is compulsory only for children
between the ages of seven and seventeen, Minn. Stat. § 120A.22, subd. 5(a) (2014), and
for children under the age of seven who have “enrolled in kindergarten or a higher grade,”
id., subd. 6(a). But school attendance is not compulsory in Minnesota for children who
have not yet enrolled in kindergarten and have not yet reached the age of seven. See id.,
subds. 5, 6. Because pre-kindergarten education is not compulsory, it is not considered
part of public elementary education on a state-wide basis. The association concedes that
“pre-kindergarten programs are not compulsory in Minnesota” but contends that, if a
particular school district elects to provide a pre-kindergarten program, the “highly qualified
teacher” requirement applies to that school district. But that contention is inconsistent with
the federal guidance, which refers to state law, not local practice. Accordingly, the
requirement in federal law that certain teachers be “highly qualified” does not apply to pre-
kindergarten instructors in Minnesota.
3
Because MDE is charged with enforcing and administering the federal regulations
on which the federal guidance is based, and because MDE has day-to-day responsibility
for enforcing and administering the federal regulations, we treat the federal regulations as
if they were MDE’s own regulations. See In re Cities of Annandale & Maple Lake, 731
N.W.2d 502, 511-13 (Minn. 2007). Because the federal regulations are “unclear or
susceptible to different reasonable interpretations,” we will give deference to MDE’s
interpretation so long as it is reasonable. Id. at 515; see also In re Reichmann Land &
Cattle, LLP, 876 N.W.2d 502, 506 (Minn. 2015). We believe that MDE’s interpretation of
the federal regulations, which effectively mirrors the federal agency’s own interpretation
of the federal regulations, is reasonable.
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Thus, the school district’s pre-kindergarten instructors are not required by federal
law to be licensed by the board of teaching or the commissioner of education.
C.
The association next contends that the school district’s pre-kindergarten instructors
are required to be licensed because of the job requirements imposed on them by the school
district. This court has recognized that an employee working in a pre-kindergarten program
is included in a teacher bargaining unit if the school district requires the employee to be
licensed. In re Petition for Clarification of Appropriate Unit, 529 N.W.2d 717, 719 (Minn.
App. 1995), review denied (Minn. June 14, 1995) (Hopkins).
The BMS hearing officer noted in his statement of the relevant facts that, since 2014,
the school district has not required its pre-kindergarten instructors to be licensed teachers.
The school district presented evidence that supports the BMS hearing officer’s factual
statement. As noted above, the school district’s position description does not require a
teaching license. At the hearing, three school district employees with first-hand knowledge
of the matter testified that the school district does not require its pre-kindergarten
instructors to be licensed. It is undisputed that the school district does not formally require
its pre-kindergarten instructors to hold teaching licenses.
The association nonetheless contends that, notwithstanding the lack of a formal
license requirement, the school district effectively requires its pre-kindergarten instructors
to be licensed because the duties of the position are such that an instructor would need to
be licensed to adequately fulfill those duties. For this contention, the association relies on
the testimony of two persons who were employed by the school district as pre-kindergarten
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instructors between 2010 and 2014. They testified that, based on their review of the revised
position description, the school district did not change the assigned duties of the position
in a significant way when the school district removed the license requirement. The
association also makes a related contention, that the school district has a de facto license
requirement because five of the school district’s six pre-kindergarten instructors have a
teaching license and because the one instructor without a license is employed only part
time.
The association may not establish a license requirement indirectly based on the
nature of the pre-kindergarten instructors’ duties if the school district does not have a
formal license requirement. In Hibbing, a nearly identical argument was rejected by the
supreme court. The teachers’ association in that case argued that BMS had failed to
consider certain employees’ “job duties,” thereby “ced[ing] to the employing school
district sole discretion in defining the bargaining unit.” 369 N.W.2d at 530. The supreme
court refused to entertain the argument on the ground that it is “not the function of the
courts” to do so but, rather, a matter that is within “the jurisdiction and the expertise” of
the board of teaching or the board of education. Id. Consistent with Hibbing, this court
may not consider the association’s evidence that is intended to contradict the school
district’s evidence that it does not require its pre-kindergarten instructors to be licensed.
See id.
Thus, the school district’s pre-kindergarten instructors are not required by the school
district to be licensed by the board of teaching or the commissioner of education.
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D.
The association last contends that the school district’s pre-kindergarten instructors
should be required to be licensed because such a requirement would be good public policy.
This court is not empowered to decide a case in a manner inconsistent with the plain
language of a statute merely because we believe that the result of our decision would be
good public policy. In a recent opinion, the supreme court stated, “we are not in a position
to choose between public policy choices when [a statute] unambiguously addresses the
question before us.” Auto-Owners Ins. Co. v. Second Chance Invs. LLC, 827 N.W.2d 766,
773 n.3 (Minn. 2013). In another recent opinion, the supreme court reiterated the
fundamental principle that “[t]he public policy of a state is for the legislature to determine
and not the courts.” Dukowitz v. Hannon Sec. Servs., 841 N.W.2d 147, 151 (Minn. 2014)
(quoting Mattson v. Flynn, 216 Minn. 354, 363, 13 N.W.2d 11, 16 (1944), in parenthetical).
Likewise, the association’s public-policy arguments should be directed to the legislature.
Thus, persons occupying the position of pre-kindergarten instructor are not required
by a general sense of public policy to be licensed by the board of teaching or the
commissioner of education.
DECISION
The BMS hearing officer did not err by determining that the school district’s pre-
kindergarten instructors are not required to be licensed by the board of teaching or the
commissioner of education and, thus, are not included in the teacher bargaining unit.
Affirmed.
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