Harms v. Independent School District No. 300

I respectfully dissent. I would have affirmed the trial court.

Strand and Westgard¹ mandate realignment,² but only when placing a teacher on unrequested leave of absence (ULA). As the trial court correctly observed, neither the Minnesota Supreme Court nor the legislature has specifically extended the principle of realignment to the reinstatement procedures used when staff are called back from ULA. *Page 526

There are substantial differences between placing a teacher on ULA, and calling one back. The decision to place staff on ULA is made and the people involved are given formal notice in the spring of each school year for the following year. Thus, when planning to lay off staff, there is time built into the system for juggling staff. That is not always true when previously laid-off staff are called back.³

Appellant argues on the specific facts of his case that there is time for respondent to "plan for realignment" as the position shifts, if any, would not take place until the following school year. While appellant's position as to time may be true on these narrow facts, the principle enunciated by the majority applies to all reinstatements from ULA. That is a broad extension of existing law which should not be made by this court.

Appellant's basic argument is that the requirement of realignment on recall is needed to protect seniority rights. I note that on recall, Minn.Stat. § 125.12, subd. 6b(e),⁴ does provide protection for seniority rights. The statute states that reinstatement from ULA "shall be in the inverse order of placement on leave of absence." Since the most senior⁵ teachers are generally laid-off last, reinstatement of the most recently laid-off teacher first gets the most senior teacher back to work ahead of others less senior. Yet, the majority speculates on the "strawman" of possible school board deception and manipulation, and then, to solve a problem not before us, creates new law.⁶

The trial court found fundamental differences between the statutory provisions which cover placement on unrequested leave of absence and those provisions which govern reinstatement from unrequested leave. I agree. Further, the trial court found that requiring school districts to realign, in addition to reinstating in the inverse order of placement of ULA when staff is recalled, could create an undue administrative burden. The trial court noted placement on ULA happens only at the close of a school year, but the need for reinstatement can happen any time in a school year.

Like the trial court, I find no statutory provision mandating realignment on recall. I find that Minn.Stat. § 124.12, subd. 6b(e), as presently written, adequately protects seniority rights on recall. I would have affirmed.

¹ Strand v. Special School District No. 1, 392 N.W.2d 881 (Minn. 1986); Westgard v. Independent School District No. 745,400 N.W.2d 341 (Minn.Ct.App. 1987), pet. or rev. denied (Minn. Apr. 17, 1987).

² In its simplest terms, realignment means taking a senior teacher who has more than one licensure and shifting that person around so that a less senior teacher can move into that now vacated licensure in order to avoid being placed on unrequested leave of absence. See Strand, 392 N.W.2d at 885-86.

³ The recall of teachers previously laid-off does not, like the decision to lay teachers off, always take place at precisely the same time in the school year. Deaths, unexpected retirements, sickness, mid-year vacancies, et cetera, render it impractical to require realignment which may occur in the midst of a school year.

⁴ Minn.Stat. § 125.12, subd. 6b(e) (1988) provides:

Teachers placed on unrequested leave of absence shall be reinstated to the positions from which they have been given leaves of absence or, if not available, to other available positions in the school district in fields in which they are licensed. Reinstatement shall be in the inverse order of placement on leave of absence.

⁵ Amicus curiae urges on this court the case of Sherek v.Independent School District No. 699, 435 N.W.2d 844 (Minn. Ct. App. 1989), pet. for rev. granted (Apr. 26, 1989) as controlling on the issue of "seniority." Amicus curiae argues that somehow Sherek mandates that Strand and Westgard be extended from realignment on layoffs to realignment on reinstatement. I merely note that Sherek involved a completely different fact situation. Sherek involved the interplay between Minn.Stat. § 122.541, the interdistrict cooperation statute, and Minn.Stat. § 125.12, subd. 6b. Sherek did not speak to the precise issue of "realignment on recall from ULA" and does not control this case.

⁶ I would agree with the idea that in an individual case, if a laid-off staff member could prove intentional manipulation to get around existing law, that an appropriate remedy should be fashioned. Here, although appellant at times "hints" about manipulation in the recall process, no proof was offered, and intentional manipulation was not an issue presented to the trial court. My disagreement with the majority lies in their conclusion that new law should be created, or at the least, existing law extended broadly, to cover the possibility of staff manipulation on recall. I find enough protection in Minn.Stat. § 125.12, subd. 6b(e), for contract rights.

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