STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

December 11, 1975

Mr. Thomas C. Todd, State Superintendent
Elementary and Secondary Education
Department of Education and Cultural Affairs
New State Office Building
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 75-193

SDCL 13-10-11 is negotiable under SDCL 3-18-3

Dear Mr. Todd:

You have requested an official opinion from this office based upon the following factual situation:

SDCL 13-10-11 reads as follows:

All school boards shall establish a written policy for teacher staff reductions.

SDCL 13-10-11 was enacted by chapter 152, Session Laws of 1975 and was introduced as HB 788. HB 788 as introduced reads as follows:

FOR AN ACT ENTITLED, An Act relating to teacher staff reductions by school boards.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:

Section 1. All school boards shall establish a policy for teacher staff reductions, prior to January 1, 1976.

Section 2. Where exclusive representatives have been designated or selected for an appropriate unit pursuant to chapter 3-18 which includes teachers employed by a school district, the school board of the district shall negotiate a policy for staff reductions.

Section 4. All provisions of chapter 3-18 shall apply to negotiation of staff reductions between the school board and the teacher unit.

HB 788 as passed by the Legislature as chapter 152, Session Laws of 1975 reads as follows:

ENTITLED, An Act relating to teacher staff reductions by school boards.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:

All school boards shall establish a written policy for teacher staff reductions, prior to January 1, 1976.

Based upon the above factual situation you have requested an opinion on the following question:

Due to the legislative history of SDCL 13-10-11 is it necessary for a school board to negotiate a staff reduction policy with teachers or their representatives?

The legislative actions in regard to HB 788 can be interpreted as either: 1) an indication that the Legislature intended the matter to not be negotiable since they took out language related to negotiation or 2) the question of negotiability was not intended to be specifically provided for here, but should instead be construed under SDCL 3-18 and the general principles thereunder enacted as to whether or not it is negotiable.

SDCL 3-18-2 and 3 provide for rates of pay, wages, hours of employment, grievance procedures, and other conditions of employment of public employees being matters which the government agency and the employee representatives are required to meet and negotiate upon. These provisions of law must, in my view, be seen and interpreted together with the final version of HB 788 (SDCL 13-10-11) cited above. Speculation about legislative history in this instance is not the final determining factor. We must look instead to SDCL 3-18 and SDCL 13-10-11 to see if the subject matter of SDCL 13-10-11 is within the area of negotiations covered by SDCL 3-18.

The case of Aberdeen Education Association v. Aberdeen Board of Education Independent School District, 215 N.W. 2d 837 (1974) is important for determining the proper answer to the question raised above. In this case, the South Dakota Supreme Court was faced with the question of whether or not elementary conferences, teachers aids, elementary planning, class size, audio-visual expansion, budget allowances, school wide guidance and counselling, and mandatory retirement of administrators, were subject to negotiation under SDCL 3-18-3. The Court concluded that they were not, saying in part:

It is our opinion that the term "other conditions of employment" as used in SDCL 3-18-3 means conditions of employment which materially affect rates of pay, wages, hours of employment and working conditions, and quoting from the Attorney Generals Opinion, supra, "school boards should concern themselves with items affecting wages or hours, but not those other items which are petty, which can be used for harassment purposes, or which are inapplicable to the bargaining process." In our opinion the items appealed by the association are not material items to working conditions or wages and hours, but rather are items belonging wholly to the discretion of the board.

The question as to whether or not policies for teacher staff reductions are negotiable under SDCL 3- 18 appears to me to be different from the factual questions determined in the Aberdeen Education Association case. SDCL 13-10-11 involves the very basic question of teacher staff reduction, of whether or not a teacher is going to have a job, whether a given teacher presently employed will be cut off from employment due to staff reductions. I t seems to me that such a basic policy does materially affect pay, wages and hours of employment of teachers and as such is within the purview of SDCL 3-18-3 negotiations.

The answer to your question therefore is YES, but not for the reasons of legislative history you refer to.

Respectfully submitted,

William Janklow
Attorney General

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