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U.S.D. No. 352 v. NEA-GOODLAND

January 19, 1990.

NEA-GOODLAND, Appellant.

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

[246 Kan. 138]

      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 Improvement Plan.

  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 negotiations.

  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 concluded:

  "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 managerial decision.

[246 Kan. 139]


"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 practice occurred."
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 are located.
"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 ...

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