Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
U.S.D. No. 352 v. NEA-GOODLAND
January 19, 1990.
BOARD OF EDUCATION, U.S.D. No. 352, GOODLAND, KANSAS, Appellee,
The opinion of the court was delivered by
In this appeal we address: (1) the standard of review for
teacher-board of education controversies arising under the
Professional Negotiations Act, K.S.A. 72-5413 et seq.; and (2)
whether teacher evaluation criteria are mandatorily negotiable
under the Act.
A resolution of these issues requires us to engage in statutory
construction. We seek the legislative intent within the interplay
of K.S.A. 72-9001 et seq. and K.S.A. 72-5413(l).
NEA-Goodland filed a prohibited practice charge against the
Board of Education, U.S.D. No. 352. The only issue raised was the
negotiability of professional employee evaluation criteria. The
designee of the Secretary of Human Resources found that the
criteria were subject to mandatory negotiation pursuant to the
Professional Negotiations Act. The Board of Education appealed to
the district court, which held that evaluation procedures are
mandatorily negotiable, but evaluation criteria are not. We
agree with the district court's analysis and affirm.
The facts of this case are not in dispute and, therefore, will
be summarized. In the fall of 1985, the Board of Education of
U.S.D. No. 352 (the Board) created a committee to study
evaluation procedures. The committee met on a monthly basis from
January to May of 1986. The purpose of this committee was to
assist the Board in adopting a written policy of personnel
evaluation as required by K.S.A. 72-9001 et seq. The policy
produced by the committee was referred to as the Professional
The Board and the NEA exchanged notices of items to be
negotiated for the 1986-1987 contract. Both sides noticed
proposals regarding professional employee evaluation procedures.
A dispute arose between the parties regarding the Professional
Improvement Plan. The Board refused to negotiate portions of the
Professional Improvement Plan regarding evaluation criteria,
but was willing to negotiate the portions of the plan regarding
evaluation procedures. The Board and the NEA were not able to
reach an agreement and the Board ultimately offered the teachers
a unilateral contract. The unilateral contract included the
Professional Improvement Plan, including the portions that had
not been negotiated by the parties during the 1986-1987 contract
The NEA filed a prohibited practice complaint against the
Board. A hearing was held before a representative of the
Secretary of the Department of Human Resources. An order was
entered by the examiner which stated in part:
"Based on all the foregoing, the examiner is
convinced that the legislature contemplated inclusion
of the criteria upon which one is evaluated in their
use of the words `employee appraisal procedures' when
defining those subjects listed at K.S.A. 72-5413(1)
as terms and conditions of employment over which
bargaining is mandatory."
The Board petitioned the district court for review of the
decision of the Department of Human Resources. The district court
"6. Professional employee appraisal procedures
involve the `mechanics' and the `how' and `when' of
employee evaluation and are mandatorily negotiable.
The professional employee evaluation criteria include
the `what' or `standard' used to evaluate areas of
performance by employees thus determining the quality
of work to be expected which is an exclusively
"7. There is nothing in Article 90 of the Kansas
statutes to indicate the legislature's intention that
any part of the criteria referred to in K.S.A.
72-9004 should be mandatorily negotiable.
"8. The Court should not put words in the mouth of
the legislature nor rewrite statutes that are clear
and concise as written.
"9. USD 352 is not required to negotiate teacher
evaluation criteria. Their refusal to do so was
appropriate under the law and thus no prohibitive
The Standard of Review
K.S.A. 1988 Supp. 72-5430a sets out the procedure for review of
controversies arising under the Professional Negotiations Act.
K.S.A. 1988 Supp. 72-5430a(b) provides in part:
"Any action of the secretary pursuant to this
subsection is subject to review and enforcement in
accordance with the act for judicial review and civil
enforcement of agency actions. Venue of the action
for review is the judicial district where the
principal offices of the pertinent board of education
"The action for review shall be by trial de novo
with or without a jury in accordance with the
provisions of K.S.A. 60-238 and amendments thereto,
and the court may, in its discretion, permit any
party or the secretary to submit additional evidence
on any issue."
The Act for Judicial Review and Civil Enforcement of Agency
Actions is set out at K.S.A. 77-601 et seq. Pursuant to K.S.A.
77-623, "[d]ecisions on petitions for judicial review of agency
action are reviewable by the appellate courts> as in other civil
cases." Under the provisions of K.S.A. 1988 Supp. 77-618, the
district court is usually limited to review of the agency record
and does not conduct a trial de novo. The district court's scope
of review is stated in K.S.A. 77-621, which contains the caveat,
"Except to the extent that this act or another statute provides
otherwise. . . ."
K.S.A. 1988 Supp. 72-5430a specifically provides for a trial de
novo to the district court in cases arising under ...
Buy This Entire Record For