Hanson v. VERMILLION SCHOOL DISTRICT 13-1

#24014-r-DG

2007 SD 9

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

SHARON HANSON, Petitioner and Appellee,

v.

VERMILLION SCHOOL DISTRICT
#13-1 and BOARD OF EDUCATION, Respondent and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE SIXTH JUDICIAL CIRCUIT
HUGHES COUNTY, SOUTH DAKOTA

* * * *

HONORABLE MAX A. GORS
Judge

* * * *

ANNE CROWSON PLOOSTER
General Counsel
South Dakota Education Association
Pierre, South Dakota Attorney for petitioner
and appellee.

JAMES E. McCULLOCH
McCulloch Law Office
Vermillion, South Dakota Attorney for respondent
and appellant.

* * * *
CONSIDERED ON BRIEFS
ON OCTOBER 2, 2006

OPINION FILED 01/17/07
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GILBERTSON, Chief Justice

[¶1.] On March 22, 2004, the Vermillion School District Board of Education

(Board) voted to non-renew Sharon Hanson’s professional employee contract with

the Vermillion School District (District). The Vermillion Education Association

(Association) filed a grievance on her behalf with the District that was rejected by

the Board. The Association appealed the Board’s decision to the South Dakota

Department of Labor, Division of Labor and Management (DOL). An

administrative law judge (ALJ) heard the appeal and affirmed the District’s

decision to non-renew Sharon Hanson’s contract. The Association then filed an

appeal with the South Dakota Sixth Judicial Circuit, which reversed. The District

and Board now appeal. We reverse.

FACTS AND PROCEDURE

[¶2.] Due to a revenue shortfall and the voters’ subsequent rejection of an

opt-out proposal, the District eliminated several staff positions for the 2004 – 2005

term. The District applied its reduction-in-force (RIF) policy to determine which

positions to eliminate. The RIF policy was part of the overall Negotiated

Agreement for 2003 – 2004 (Agreement) 1 between the District and the Association,

the collective bargaining group on behalf of teachers working for the District.

1. The RIF policy was included in the Agreement under “STAFF
REDUCTION” and provided as follows:

Whenever, in the judgment of the Vermillion School Board it is advisable to
reduce staff in the district, the following procedure will be used:

(continued . . .)
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[¶3.] Among the positions the Board voted to eliminate at its March 8,

2004 meeting was high school computer education. This position was held by

Cheryl Lessmann (Lessmann). Lessmann had taught for the District for over 30

years. At the time, she taught four sections of high school computer classes. The

________________________
(. . . continued)
1. The school board, or its designee, will through the use of a verbal
communication with the teaching staff, explain the situation
confronting the district and allow the Association a reasonable
opportunity, not to exceed ten (10) days from the date of the
communication to present possible alternatives.

2. The school board hereby states that the following areas are the overall
guidelines for any staff reduction:

A. Balanced cuts as to grade level and curriculum area to be
determined by the student population and the pressure this
population places on grade level or on subject area.

B. The superiority of academic areas over extracurricular
activities.

3. The board may consider the following, not necessarily in order of
priority, any of which may be used in determining which staff
members will be nonrenewed for staff reduction purposes: student
needs, financial condition of the district, priority of programs, program
elimination, recommendations of administrative staff, evaluation
records, competency, qualifications, certification, education
background, continuing contract status, federal mandates, and any
other relevant considerations. Seniority shall have priority in making
staff reduction: (1) provided the teacher has the necessary certification
stated on his/her certificate that is on file in the Administrative
Services Building and, (2) provided the teacher has taught in one or
more of the grades and certification of the respective level of education
(Early Childhood – 5, 6 – 8, 9 – 12, or support services; i.e. K – 12 art,
K – 12 music, K – 12 computer, EC – 12 special education, K – 12
library, K – 12 counselors, K – 12 P.E., and respective K – 12 foreign
language) during the last seven years in the Vermillion School District.

(Emphasis added).

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District determined that Lessmann met the RIF policy requirements necessary to

invoke seniority, thus enabling her to “bump” into the position of a teacher with less

seniority. See note 1 supra (setting out two requirements in paragraph three that

must be met to invoke seniority). In order to allow her an opportunity to exercise

the prerogative, the District delayed action to non-renew Lessmann’s contract until

March 22, 2004.

[¶4.] The District reached its determination that Lessmann was eligible to

use seniority based on her certification 2 and the courses she had taught during the

preceding seven years. Though Lessmann was certified to teach in subject areas

other than computer science, she had not taught under these certifications during

the preceding seven years. Therefore, Lessmann could only use her seniority to

“bump” into another computer science position.

2. Lessmann’s “Teacher Certificate” had been issued by the South Dakota
Department of Education and Cultural Affairs (DECA). The certificate had
the following endorsements:

Education Staff Assignment Endorsements
204 Secondary School Teacher
210 Office Occupations Teacher
212 Librarian

Teaching Majors
520 Business Education

Additional Subjects/Assignments
6400 Library/Media (K – 12)
6700 Computer Science
2001 Lang. Arts – Mid. Sch./Jr. High

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[¶5.] Besides Lessmann, the District employed three other individuals who

taught computer courses. Sharon Hanson (Hanson) had taught for the District for

17 years. At the time, she was the elementary and middle school computer

teacher. 3 Marlys Larson (Larson) had taught for the District for 10 years. At the

time, she was a part-time high school business teacher and part-time elementary

computer teacher, who also taught a middle school computer class during the

second semester of the 2003 – 2004 term. 4 Erik Van Laecken (Van Laecken) was in

his first year of teaching with the District. He was a part-time elementary

computer teacher, part-time middle school science and technology modules

instructor, middle school technology coordinator and head cross-country track

coach. In addition to these duties Van Laecken also performed middle school

Website work. 5

3. Hanson had the following class schedule for the 2003 – 2004 term:
1st period 8th grade Computer Lit.
2nd period 8th grade Computer Lit.
3rd period 7th grade Computer Applications
4th period Lunch duty
5th period Lunch
6th period 6th grade keyboarding
7th period 3rd grade computers

4. Larson had the following class schedule for the 2003 – 2004 term including
the second semester middle school computer class:
1st period 4th and 5th grade computer
2nd period Marketing and Business
3rd period Accounting
4th period 8th grade Computer Lit.

5. Van Laecken had the following class schedule for the 2003 – 2004 term:
1st period 1st and 2nd grade computers
2nd-7th periods 6th, 7th and 8th grade Tech Modules and Building
Tech Coordinator
(continued . . .)
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[¶6.] The District determined that Lessmann could not “bump” either

Larson or Van Laecken. Lessmann would have been able to “bump” in to teach

Larson’s middle school and elementary computer courses, but she could not “bump”

into Larson’s high school, business oriented courses. Although Lessmann had the

certification required for teaching marketing & business and accounting by virtue of

her business education teaching major, she had not taught in the high school

business curriculum during the preceding seven years. Therefore with respect to

the business courses in Larson’s schedule, Lessmann satisfied the first RIF policy

requirement to invoke seniority—certification. However, she could not satisfy the

second requirement—recent teaching experience at the corresponding grade level

under the applicable certification.

[¶7.] Lessmann was not able to satisfy either of the seniority requirements

with respect to Van Laecken’s position. The technology modules taught by Van

Laecken were heavily weighted on math and science. 6 Lessmann had neither the

________________________
(. . . continued)

In addition to his $26,471.00 annual base salary as Technology Modules
instructor, Van Laecken also received $1,175.00 for middle school Website
work, $1,175.00 for middle school technology coordination, and $2,350.00 for
head cross-country coaching duties. His total contract compensation for the
2003 – 2004 term came to $31,171.00.

6. Van Laecken’s “Teacher Certificate” was issued by the South Dakota
Department of Education (DOE) on May 7, 2002 following the reorganization
of teacher certification and school accreditation that had formerly been
administered by DECA. The certificate had the following endorsements:

Education Staff Assignment Authorization:
202 K – 8 Elementary Education

(continued . . .)
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certification nor the teaching experience, in math or science, for her to exercise

seniority under the RIF policy to “bump” into a position teaching those disciplines.

Neither did Lessmann have any coaching experience or qualifications. Therefore,

she was unable to “bump” into Van Laecken’s cross-country coaching duties.

________________________
(. . . continued)
Degree Program Authorization:
460 Elementary Education
671 K – 12 Educational Technology Education

Endorsement Program Authorization:
2001 5 – 8 Middle Level Education – Language Arts
2002 5 – 8 Middle Level Education – Social Science
2003 5 – 8 Middle Level Education – Natural Science
7011 Basketball
7012 Football
7017 Track/Cross Country
7021 7 – 12 Assistant Varsity Coach
7022 Middle/School Junior High Coach
7023 K – 8 Elementary Coach

Although Van Laecken’s certificate did not include a stand-alone math
endorsement, his certification to teach elementary math arose from his K – 8
elementary education endorsement. ARSD section 24:16:08:05 states in
pertinent part:

A K – 8 elementary education program shall comply with
all standards in general education and professional
education and require coursework sufficient to constitute
a major, which includes demonstrated competence in the
following professional development areas and completion
of the following subjects:

...
(5) Nine semester hours in mathematics, to include algebra or an
equivalent;
...
(8) Methodology of . . . mathematics, . . . ;
....

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[¶8.] Lessmann was able to “bump” into Hanson’s position because she was

able to satisfy both of the RIF policy seniority requirements with respect to

Hanson’s schedule. Hanson taught computer science courses exclusively.

Lessmann was certified to teach those courses, thereby satisfying the first

requirement. She had also taught courses under the computer science certification,

within the grade span taught by Hanson, during the last seven years. This satisfied

the second requirement. Lessmann notified the District that she intended to

exercise her seniority to “bump” into Hanson’s position. On March 23, 2004, the

District gave Hanson notice that her contract would be non-renewed for the 2004 –

2005 term.

[¶9.] On April 12, 2004, the Association filed a grievance with the District

on Hanson’s behalf. The Association requested that Hanson’s contract be renewed

because she too should have been able to exercise seniority to “bump” into a

different position. The Association argued that Hanson’s certification 7 and

seniority qualified her to “bump” into either Larson’s or Van Laecken’s position.

7. Hanson’s “Teacher Certificate” issued by DECA on June 27, 2000 included
the following endorsements:

Education Staff Assignment Endorsements
204 Secondary School Teacher
216 Middle School/Jr High Experience

Teaching Majors
520 Business Education
630 Health/Phys Ed (K – 12)

Additional Subjects/Assignments
2001 Lang. Arts – Mid. Sch./Jr. High
6700 Computer Science (K – 12)

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This argument was based in part on the claim that Hanson, Lessmann, Larson &

Van Laecken all possessed the same experience because they all had been teaching

computers within the K – 12 grade span during the past seven years and had served

on computer or technology committees. The Association also argued that no special

qualifications were required to teach Van Laecken’s technology modules and that

the RIF policy was not being followed in the manner previously applied.

[¶10.] On April 14, 2004, the District formally rejected Hanson’s grievance.

The District pointed out several factors in making its determination. The vast

majority of Van Laecken’s responsibilities comprised teaching technology modules

for which Hanson lacked sufficient qualifications. Hanson was not certified to take

over Van Laecken’s coaching duties. Though Hanson was certified to take over

Larson’s middle school computer and high school business courses, she had not

taught business courses within the last seven years. Consequently, the District

determined that Hanson could not satisfy the seniority requirements of the RIF

policy.

[¶11.] Hanson appealed the District’s decision to the DOL. On September 14,

2004 an ALJ heard the appeal. Hanson took the position that Van Laecken’s

position should have been “reduced-in-force” or “RIFed.” Hanson supplemented her

previous arguments in regard to “bumping” into Van Laecken’s position by calling

his coaching duties a “non-issue” since coaching certifications were no longer

administered by the DOE. 8

8. Prior to the 2001 – 2002 school term, coaching endorsements were
administered by DECA. Since the 2001 – 2002 term, high school coaching
(continued . . .)
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[¶12.] Hanson argued in the alternative that she should be able to partially

“bump” into the positions of both Larson and Van Laecken. Hanson reasoned that

if she could not teach Larson’s business courses and was unqualified to teach Van

Laecken’s technology modules, she should be able to “bump” into the rest of their

respective schedules. The District’s policy was not to allow “partial bumping.” The

District asserted that Hanson could not “cherry-pick” classes she was qualified to

teach because the responsibilities within a position were not severable. The District

further noted that the purpose of the RIF was to save money by reducing staff. If

“partial bumping” was allowed, optimum savings could not be achieved.

[¶13.] The ALJ issued a memorandum decision on April 20, 2005, affirming

the District’s decision to non-renew Hanson’s contract. On May 18, 2005 the ALJ

issued an order, together with findings of fact and conclusions of law, incorporating

the earlier memorandum decision. The order dismissed Hanson’s grievance with

prejudice. The ALJ found that Hanson had not taught high school business courses

during the previous seven years and therefore could not “bump” into Larson’s

position. The ALJ also found that the technology modules taught by Van Laecken

and his coaching duties precluded Hanson from “bumping” into his position.

________________________
(. . . continued)
requirements have been administered by the South Dakota High School
Athletics Association (SDHSAA). The requirements for coaching
authorization under SDHSAA are the same for both head coaching and
assistant coaching. An individual seeking authorization to coach must first
complete two courses, Coaching Principals and Sports First Aid. This
information is available at http://www.sdhsaa.com (last visited January 2,
2007).

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[¶14.] The ALJ found Van Laecken’s 671 K – 12 educational technology

teaching major, coupled with his 5 – 8 middle level science qualifications and K – 8

elementary education endorsement (qualifying Van Laecken to teach elementary

math), certified him to teach technology modules. See note 6 supra. Conversely, the

ALJ found that Hanson was not certified to teach technology modules because she

only possessed a 6700 computer science certification and did not possess math or

science qualifications. The ALJ noted the parties stipulated that coaching

requirements still exist, albeit through SDHSAA rather than DECA. Since Hanson

possessed no coaching credentials, the ALJ found she could not assume Van

Laecken’s coaching duties.

[¶15.] With regard to Hanson’s alternative “partial bumping” proposal, the

ALJ concluded that the District’s RIF policy was clear and unambiguous and did

not address that possibility. The ALJ also concluded that “partial bumping” was

not permitted because teaching contracts are not severable and “all teaching

contracts are an equal part and parcel of an entire contract.” In addition, the ALJ

concluded that the dollar saving objective of the RIF could not be accomplished by

“partial bumping.”

[¶16.] Hanson appealed the ALJ decision to the South Dakota Sixth Judicial

Circuit, where on December 7, 2005, the circuit court heard oral arguments. At the

conclusion of argument, the circuit court reversed the ALJ. On January 5, 2006,

the circuit court issued its order with findings of fact and conclusions of law. The

order directed the District to reinstate Hanson’s contract for the 2004 – 2005 term.

Agreeing with the District, the circuit court concluded there was no provision in the

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RIF policy for “partial bumping” and that it should not otherwise be allowed.

However, the circuit court discovered a new interpretation of the seniority

provisions of the RIF policy that the court concluded “clearly and unambiguously”

enabled Hanson to “bump” Van Laecken from his position.

[¶17.] The circuit court determined that the term “necessary certification,” as

it was used in the first part of the RIF policy seniority requirement, applied to the

position that was RIFed rather than the position that a teacher was attempting to

“bump” into. Based on this interpretation, no other certifications were relevant for

satisfying the first requirement. 9

[¶18.] The circuit court also had a different interpretation for the second

requirement of the RIF policy. It determined that the list referenced in this

requirement was exclusive. See note 1 supra (referencing a parenthetical list in

paragraph 3 that includes certifications (K – 12 art, K – 12, K – 12 computer, etc.)

in regard to the second requirement to invoke seniority—experience teaching course

within a certification during the preceding seven years). The circuit court’s

determination was based on the fact that the list was preceded by the abbreviation

“i.e.” or “that is.” The circuit court decided that to satisfy the second seniority

9. Under the circuit court’s interpretation, the first requirement of the RIF
policy seniority qualifier became a comparison test. A teacher whose position
had been RIFed could “bump” into any other position utilizing the same
certification as the RIFed position providing the second requirement could
also be satisfied.

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requirement a teacher had to have taught within one or more of the certifications

listed during the preceding seven years. 10

[¶19.] Contrary to the District’s contention, the circuit court also found there

had been a past practice of RIFing on a departmental basis. In the circuit court’s

view, the District’s past practice had been to RIF within a certification without

specifying the position to be RIFed. The RIF would then be applied to eliminate the

position of the lowest seniority person within a group of like certified persons.

[¶20.] The circuit court reasoned that Hanson’s reinstatement was justified

because the District had not correctly applied its RIF policy. Under the circuit

court’s interpretation of the RIF policy, Hanson had satisfied the first requirement

of the seniority provision. By this interpretation, K – 12 computer science was the

only certification relevant since the RIFed position was Lessmann’s computer

science course. The circuit court also concluded that under its interpretation,

Hanson also satisfied the second seniority requirement because she had taught a

course within the preceding seven years under a certification that was among those

included on the “exclusive list,” K – 12 computer science.

[¶21.] The District asserted that the middle school technology modules

taught by Van Laecken were not computer science courses. Rather, they were math

10. Under the circuit court’s interpretation, this “exclusive list” in the second
requirement essentially became a limiting factor. In order for a teacher to
“bump” into a position with the same certification as the RIFed position
(established under the first requirement), the teacher had to have taught
within one of the certifications on the “exclusive list” during the preceding
seven years. This list comprised K – 12 art, K – 12 music, K – 12 computer,
EC – 12 special education, K – 12 library, K – 12 counselors, K – 12 P.E., and
respective K – 12 foreign languages.

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and science technology courses that integrated technology for instructional

purposes. 11 The circuit court dismissed the District’s position. It found that there

was no difference between Van Laecken’s K – 12 education technology endorsement

and Hanson’s K – 12 computer science endorsement. The circuit court then

concluded that the technology modules were merely another form of “computer

science/technology department” course that Hanson was certified to teach given her

K – 12 computer science endorsement.

[¶22.] The District had also averred that Hanson could not “bump” into Van

Laecken’s position because she lacked the requisite coaching credentials required

for her to take over Van Laecken’s entire contract. The circuit court in dismissing

the relevance of the coaching duties cited the District’s RIF policy that gave priority

to academic areas over extracurricular when making staff reduction decisions. See

note 1 supra, paragraph 2(B). The circuit court also disagreed with the District in

finding that Hanson was qualified to perform Van Laecken’s middle school

technology coordinator and Website maintenance duties. In reversing the decision

of the ALJ, the circuit court determined that Hanson could invoke her seniority to

“bump” into Van Laecken’s position, concluding it was a computer

science/technology department position.

[¶23.] The District raises two issues on appeal:

1. Whether the circuit court erred by its interpretation of the
District’s RIF policy.

11. Middle school principal Pat Anderson testified at the ALJ hearing that the
sixth grade math and measurements module taught by Van Laecken did not
utilize the computer at all.

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2. Whether the circuit court erred in determining Hanson could
“bump” into Van Laecken’s position.

STANDARD OF REVIEW

[¶24.] Interpretation of contracts is a question of law, reviewed de novo.

Prunty Const., Inc. v. City of Canistota, 2004 SD 78, ¶10, 682 NW2d 749, 753 (citing

Fenske Media Corp. v. Banta Corp., 2004 SD 23, ¶8, 676 NW2d 390, 393). This

Court reviews the circuit court’s conclusions of law de novo. Parmely v. Hildebrand,

2001 SD 83, ¶6, 630 NW2d 509, 512 (citing Arnold Murray Constr., LLC v. Hicks,

2001 SD 7, ¶6, 621 NW2d 171, 174). We treat mixed questions of law and fact,

requiring the application of a legal standard, as questions of law subject to de novo

review. Bayer v. PAL Newcomb Partners, 2002 SD 40, ¶8, 643 NW2d 409, 411

(citing Permann v. South Dakota Dep’t of Labor, Unemployment Ins. Div., 411

NW2d 113, 119 (SD 1987)). We review the circuit court’s findings of fact under the

clearly erroneous standard. Franklin v. Forever Venture, Inc., 2005 SD 53, ¶7, 696

NW2d 545, 548 (citing Block v. Drake, 2004 SD 72, ¶8, 681 NW2d 460, 463).

ANALYSIS AND DECISION

[¶25.] 1. Whether the court erred by its interpretation of the
District’s RIF policy.

[¶26.] The District argues that the circuit court’s interpretation of the RIF

policy’s two seniority requirements will bring about a result unintended by either

the District or the Association. The District believes that both it and the

Association intended the RIF policy to result in the replacement of a less senior, but

qualified teacher with a more senior, qualified teacher. The District contends the

upshot of following the circuit court’s interpretation will result in the undesirable

and unintended effect of replacing qualified but less senior teachers with more
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senior teachers who are less qualified. The District also argues that many teachers

will simply not be able to exercise their seniority under the circuit court’s

interpretation because they are not endorsed for one of the certifications on the

“exclusive list.”

[¶27.] Trade agreements or collective bargaining agreements are contracts

under South Dakota law. Council of Higher Educ. v. South Dakota Bd. of Regents,

2002 SD 55, ¶10, 645 NW2d 240, 243-44. Contracts negotiated between teachers

and public school districts are like any other collective bargaining agreement. Id.

(citing Wessington Springs Educ. Ass’n v. Wessington Springs Sch. Dist. No. 36-2,

467 NW2d 101, 104 (SD 1991)). Disputes over collective bargaining agreements

negotiated between school districts and teachers are settled by application of

general contract principles. Id. Disputes over the meaning of terms in teacher

contracts are settled by applying general principles of contract law. Gettysburg

Sch. Dist. No. 53-1 v. Larson, 2001 SD 91, ¶11, 631 NW2d 196, 200 (resolving an

issue over interpretation of a RIF policy in a school district’s collective bargaining

agreement with teachers) (citing Wessington Springs Educ. Ass’n, 467 NW2d 101,

104 (SD 1991)).

[¶28.] “When the terms of a negotiated agreement are clear and

unambiguous, and the agreement actually addresses the subjects that it is expected

to cover, ‘there is no need to go beyond the four corners of the contract.’ ”

Wessington Springs Educ. Ass’n, 467 NW2d at 104 (quoting AFSCME Local 1922 v.

State, 444 NW2d 10, 12 (SD 1989) (citing MEA/AFSCME Local 519 v. City of Sioux

Falls, 423 NW2d 164, 168 (SD 1988)). When the language of the collective

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bargaining agreement is ambiguous, we may go outside the four corners of the

contract to interpret its meaning. AFSCME Local 1922, 444 NW2d at 12 (clarifying

the general proposition cited in MEA/AFSCME Local 519, 423 NW2d at 168 (SD

1988)).

[¶29.] Hanson cites Estate of Fischer v. Fischer, to support her position that

the circuit court’s interpretation of the RIF policy must be affirmed because to do

otherwise would render the seniority provision meaningless. 2002 SD 62, ¶14, 645

NW2d 841, 846 (noting that a contract should not be interpreted so as to render

part of it meaningless) (citing Bowen v. Monroe Guar. Ins. Co., 758 NE2d 976, 980

(IndApp 2001)). Hanson offers nothing more specific to support this general

position.

[¶30.] Applying the facts of this case to the seniority provision of the RIF

policy, as negotiated by the District and the Association, it is true that Hanson’s

seniority in this factual setting is meaningless. However, this is only because she

has neither the certification nor recent experience of the less senior teacher whose

position she is trying to assume. Hanson overlooks the fact that the seniority

provision, as negotiated, was not meaningless to Lessmann who was able to exercise

her seniority. What renders seniority truly meaningless for all but a select few staff

members is the circuit court’s interpretation of the RIF policy, now supported by

Hanson.

[¶31.] The practical effect of interpreting the term “necessary certification” in

the first seniority requirement to refer to the RIFed position is to render

meaningless any other certification under which a teacher may be endorsed to

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teach. For example, suppose a teacher was RIFed out of a K – 12 computer certified

course position, but also carried another certification from the “exclusive list,” such

as K – 12 PE. Even if the teacher had taught under the K – 12 PE certification

during the preceding seven years, the teacher still could not exercise seniority to

“bump” into the position of a less senior K – 12 PE teacher because the position that

had been RIFed was a K – 12 computer certified course. Further under the circuit

court’s interpretation, any teacher RIFed out of a course for which he or she is

certified would always satisfy the first seniority requirement with respect to that

certification.

[¶32.] Perhaps even less meaningful is the status that seniority is relegated

to under the circuit court’s interpretation of the second seniority requirement.

Seniority becomes irrelevant within a certification like the RIFed position, if the

teacher whose position was RIFed does not carry one of the certifications on the

“exclusive list.” In addition to the eight certifications on the “exclusive list,” the

DOE lists 46 other teacher certifications under ARSD chapters 24:15:06 and

24:16:08. 12 Based on the interpretation of the circuit court, none of these

certifications would qualify a teacher to invoke seniority.

12. The following certifications are included in ARSD chapters 24:15:06 and
24:16:08:

Birth through preschool education endorsement program, kindergarten
education endorsement, 5-8 middle level education endorsement, 5-8 middle
level education endorsements content areas (language arts, mathematics,
natural science and social science), 7-12 language arts education
endorsement, 7-12 mathematics education endorsement, 7-12 science
education endorsement, 7-12 social science education endorsement, 7-12
vocational-technical education endorsement, 7-12 business education
(continued . . .)
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[¶33.] The rationale of teacher certification under the circuit court’s

interpretation is not supported by other parts of the Agreement. The Agreement

also includes policies relevant to transfers and reassignments that take place due to

vacancy. A transfer is defined as the appointment of a teacher to a different school

within the District. A reassignment is a designation that a teacher will teach at a

different grade level and or class within the same school. Criteria evaluated in

reviewing teacher transfer and reassignment includes, “qualification of the teacher

as compared to the job criteria and any minimum requirements for the position to

be filled.” (Emphasis added). It is counterintuitive to conclude that the District and

________________________
(. . . continued)
endorsement, 7-12 marketing education endorsement, 7-12 technology
education endorsement, K-12 comprehensive school health education
endorsement, K-12 educational technology endorsement, K-12 adapted
physical education endorsement, K-12 South Dakota Indian studies
education endorsement, K-12 deaf or hearing impaired endorsement, birth
through preschool special education endorsement, K-12 English as a new
language education endorsement, K-12 gifted education endorsement, K-12
American sign language education endorsement, K-12 Braille education
endorsement, K-12 Lakota languages education endorsement, 7-12 driver
education endorsement, junior ROTC education endorsement, coach
education endorsement, birth to age 21 school psychological examiner
education endorsement, K-12 blind or visually impaired endorsement,
business official endorsement, K-12 mathematics specialist, K-12 science
specialist endorsement, grade K through grade 8 special education
endorsement, grade 7 through 12 special education endorsement, K-12
special education program, birth through age eight early childhood and birth
through age eight special education program, K-8 elementary education
program, K-8 elementary education/special education program, 7-12
secondary education program, 7-12 agriculture education program, 7-12 home
economics/family and consumer science education program, K-12 education
program, K-12 reading specialist program, 7-12 mathematics/science
composite program.

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Association would have intended the qualifications of a teacher seeking to fill a

vacant position to be considered more prominently than those of teacher seeking to

“bump” into a position presently occupied by a qualified teacher.

[¶34.] The record is devoid of any indication that the District or Association

intended to relegate seniority to a nearly ineffectual status by drafting a seniority

provision so limited in application as interpreted by the circuit court. Hanson,

below, never advocated the interpretation of the RIF policy adopted by the circuit

court. Her objections to the District’s decision to non-renew her contract were

always based on the claim that she was qualified/certified to assume the teaching

duties of Van Laecken’s position. This is evident in the following excerpt from the

brief she submitted to the ALJ:

Sharon testified [at the April 12, 2004, Board level grievance
hearing] that she was qualified/certified to teach technology
modules as of the date she was RIFed. She also testified
that she was qualified/certified to perform middle school
web site work and middle school technology coordinator
work. . . . There was no testimony [offered by the District
to show] Sharon could not perform Van Laecken’s coaching
duties.

Contrary to Hanson’s new position, the mandate of statute, other provisions in the

Agreement, and past practice reveal that the District and the Association intended

the provision to be interpreted so as to make seniority significant for the largest

possible number of teachers employed by the District.

[¶35.] The Agreement, under Scope of Negotiations – Professional

Negotiations Policy, Article I, “Recognition” provides: “The Vermillion School

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Board formally recognizes the Vermillion Education Association as the

representative of the certified personnel of the district.” Appendix H, “2003 – 2004

Negotiations Guidelines,” paragraph A, provides: “In accordance with SDCL

[chapter] 3-18, the board recognizes the Vermillion Education Association

/SDEA/NEA as the official representative of all employees as defined in Article I

paragraph one of the negotiated agreement.” (Emphasis added). Scope of

Negotiations, Professional Negotiations Policy, Article II, section C, “Subject of

Negotiation” further provides: “The negotiation teams shall consider policies, which

affect ‘rate of pay, wages, hours of employment, or other conditions of employment’

as spoken to in SDCL 3-18-3.” 13

[¶36.] The Agreement established the Association as the designated

representative of all the teachers in negotiations with the District over terms of the

Agreement. Both the applicable statutes and the Agreement itself recognize a duty

by the Association to fairly represent all teachers of the District. The position now

advocated by Hanson is not consistent with that obligation.

[¶37.] Hanson also contends that prior applications of the RIF policy support

the position that the District conducted RIFs on a departmental basis without

specifying a position. We disagree. The record indicates that the RIF policy was

13. SDCL 3-18-3 provides in pertinent part:

Representatives designated or selected for the purpose of formal
representation by the majority of the employees in a unit appropriate for
such purposes shall be the exclusive representatives of all employees in such
unit for the purpose of representation in respect to rates of pay, wages, hours
of employment, or other conditions of employment[.] (Emphasis added).

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applied on four occasions prior to Hanson’s non-renewal. On one occasion a K – 12

PE position was RIFed and the lowest seniority person was reduced from full time

to part time. On another occasion a K – 12 music position was RIFed and the least

senior person was slated for contract non-renewal. Another RIF involved a K – 12

counselor’s position in which the least senior counselor was non-renewed. These

prior RIFs are not informative because the record does not reveal whether the

effected parties held other certifications beside that of the positions that were

RIFed. There is also nothing in the record from which it can be determined

whether a specific position was RIFed or a departmental RIF occurred. Middle

school principal Pat Anderson (Anderson) testified at the ALJ hearing that the

District had established no departments and that Hanson’s RIFing resulted from a

positional RIF—a reduction in staff by elimination of the high school computer

science position. 14

14. Anderson’s testimony that staff reduction is conducted on a positional
basis is consistent with minutes from the March 8, 2004, Board meeting.
The minutes include the following entry:

Item #8-1904
Motion by Granaas, seconded by Merrigan, to eliminate the following
positions for the 2004 – 2005 school year due to reduction-in-force:
High school computer education
Elementary/middle school counselor
Elementary art
Part-time high school English
Second grade teaching position
Third grade teaching position
Music position below high school level
Part-time special education at middle school
High school math
Aye: Unanimous

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[¶38.] More informative is the prior K – 12 art RIF. An elementary art

teacher was RIFed. This teacher had more seniority than the high school art

teacher, but was unable to exercise her seniority because she only held a K – 8 art

certification. This indicates that prior RIFs were conducted on a positional basis

because the invocation of seniority was contingent upon satisfying the second

seniority requirement that references the position the teacher is attempting to

“bump” into.

[¶39.] The circuit court also misapplies paragraph 2(B) of the RIF policy

relating to the priority applied to academic areas over extracurricular areas when

considering staff reduction. See note 1 supra, paragraph 2(B). The circuit court’s

construction of this provision renders immaterial Van Laecken’s coaching

responsibilities thus permitting Hanson, who lacks any coaching credentials, to

“bump” into his position.

[¶40.] As we read this provision in context with the rest of the RIF policy we

conclude that it applies to the initial evaluation of which position(s) to eliminate.

Once positions slated for elimination due to RIF have been established through

application of the paragraph 2(B) criteria, determination of which staff members to

non-renew is made by applying paragraph 3, including consideration of seniority, if

the requisite certification provisions are satisfied.

[¶41.] We conclude that the term “certification” in the first seniority

requirement refers to the position that a teacher whose position has been RIFed is

attempting to “bump” into. The parenthetical list of eight certifications included in

the second seniority requirement is intended to be an example of the other 46

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certifications listed in the DOE regulations and refers to the certification

requirement of the position the RIFed teacher is attempting to “bump” into. We

reverse the circuit court on this issue.

[¶42.] 2. Whether the circuit court erred in determining
Hanson could “bump” into Van Laecken’s position.

[¶43.] The District argues that the circuit court’s finding, equating the

certifications of Hanson and Van Laecken, is clearly erroneous. The ALJ found that

the middle school technology modules taught by Van Laecken are math and science

based courses. Anderson testified at the ALJ hearing that the technology modules

are “an integrated format for teaching math skills and science skills.” The circuit

court’s conclusion that Hanson is qualified to teach this course is based on its

finding that Hanson and Van Laecken have equivalent certifications. We disagree

with this conclusion because the underlying finding is clearly erroneous.

[¶44.] Hanson’s 6700 computer science endorsement is not equivalent to Van

Laecken’s 671 educational technology endorsement. 15 According to the DOE, the

15. On its website at http://doe.sd.gov/oatq/teachercert/Changes/k12edtec.htm
(last visited January 2, 2007), the DOE publishes the following information
distinguishing the old 6700 endorsement from the current 671 endorsement:

24:02:01:09 (18) K – 12 Computer Endorsement
Requirements EFFECTIVE UNTIL 8/31/2000

24:02:01:09. Teaching assignment outside major areas of academic
preparation - Exceptions Teaching assignments outside major areas of
academic preparation require the following minimum preparation:

Eight semesters [hours] for a K – 12 computer science teacher,
including one course in programming language

24:16:08:36 K – 12 Educational Technology
(continued . . .)
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6700 endorsement is no longer issued having been replaced by 671. The 671

endorsement has expanded course requirements beyond those previously required

to obtain a 6700 endorsement. A teacher may continue to teach computer science

courses using the 6700 endorsement. If, however, the 6700 endorsement is allowed

________________________
(. . . continued)
EFFECTIVE 9/1/2000 and THEREAFTER

24:16:08:36. K-12 Educational Technology endorsement program. A K-12
educational technology endorsement program requires an educational
technology methodology course in addition to 12 semester hours of
coursework as follows:
(1) Demonstrated knowledge of basic computer technologies and networking
concepts, terminology tools, and applications;

(2) Study of designing, operating, and maintaining computer technologies and
networking systems;

(3) Development of skills with current productivity and multimedia tools for
education;

(4) Demonstrated competencies with integrating educational technology to
support teaching and learning;

(5) Study of equity and ethics associated with the use of educational
technology in schools.

Study in the developmental characteristics of K-12 learners and a practicum,
internship, or student teaching inclusive of K-12 learners is required in
addition to the 12 hours, if not previously completed.
Verified teaching experience in K-12 educational technology within the five-
year period immediately preceding application may be accepted in lieu of the
above field experiences at the equivalency of one year’s teaching experience
for one semester hour credit for a maximum of three semester hours of the
total credit hours required. (Emphasis in original omitted).

Note: the DOE website also explains that to be issued a 6700 K –12 computer
science endorsement, its requirements must be met by 9/1/2000. After
9/1/2000, the requirements for the 671 K – 12 educational technology
endorsement must be met because only it will be issued.

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to lapse, the teacher must recertify under the 671 endorsement with its more

expansive course prerequisites. Hanson and the District stipulated to these facts.

[¶45.] Notwithstanding the distinction between Hanson’s computer science

endorsement and Van Lacken’s education technology endorsement, Hanson has no

math or science certification. See note 7 supra. Van Laecken has both natural

science and social science endorsements. See note 6 supra. Van Laecken’s math

certification underlies his K – 8 elementary education endorsement. Id. We

conclude that the circuit court erred when it reversed the DOL and supplanted the

determination of the District with respect to Hanson’s qualifications to teach

technology modules.

[¶46.] The District also argues that Hanson possesses no coaching credentials

and thus cannot assume Van Laecken’s cross-country coaching responsibilities. The

circuit court concluded that Van Laecken’s coaching responsibilities are a non-issue

and as such should be disregarded. This Court has held otherwise. A teacher’s

coaching responsibilities are not severable from a teacher’s classroom

responsibilities, but are equal parts of the teacher’s entire contract. Lemmon Educ.

Ass’n. v. Lemmon School Dist. No. 52-2, 478 NW2d 821, 824 (SD 1991) (holding that

non-renewal of a teaching contract for deficient performance of an extracurricular

activity does not violate continuing contract law when the decision to non-renew is

not unreasonable, arbitrary or an abuse of discretion) (interpreting Reid v. Huron

Board of Education, 449 NW2d 240 (SD 1989)). Thus, even if we were to conclude

that Hanson was qualified to teach technology modules, she still could not “bump”

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into Van Laecken’s position since she lacks the prerequisite training to receive

SDHSAA coaching authorization. See note 8 supra.

[¶47.] The District also argues that Hanson does not possess the

qualifications to take over Van Laecken’s middle school website work and duties as

middle school technology coordinator. In addition to the broader base of technology

related courses that Van Laecken had to take to obtain the 671 K – 12 educational

technology endorsement, he has also completed at least 32 hours of post-bachelor

degree study in technology and website development since 2002. 16 During the same

period Hanson completed approximately four hours of training in technology. We

therefore conclude that Hanson is likewise not qualified to “bump” into Van

Laecken’s Website work or technology coordinator duties. The principle from

Lemmon Educ. Assoc., applies with equal relevance to Hanson’s attempt to “bump”

into this portion of Van Laecken’s contract. Even if Hanson was qualified to teach

technology modules and coach, she still could not “bump” into Van Laecken’s

position because she lacks adequate training in technology and website

development.

[¶48.] “No person may teach . . . in any of the public schools of this state or

draw wages as a teacher . . . who does not have a certificate issued by the secretary

of the Department of Education authorizing the person to teach . . . in the . . . field

for which he was employed.” SDCL 13-42-1 (emphasis added). A de novo hearing

conducted by a circuit court in a school board case, though it permits an

16. This information is from a report compiled by the District that was made
available at the April 12, 2004 board-level grievance hearing.

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independent inquiry into the facts, is limited to considering the legality of the school

board’s decision and may not substitute the judgment of the circuit court for that of

the board. Mortweet v. Ethan Bd. of Ed., Davison County, 90 SD 368, 372-73, 241

NW2d 580, 582-583 (1976). “This [C]ourt is cognizant of the great deference due to

school board decisions in determining whether to renew a teacher’s contract. As

long as the school board is legitimately and legally exercising its administrative

powers, the courts may not interfere with nor supplant the school board’s decision

making process.” Sutera v. Sully Buttes Bd. of Educ., 351 NW2d 457, 458-59 (SD

1984) (citing Schaub v. Chamberlain Bd. of Educ., 339 NW2d 307 (SD 1983);

Schnabel v. Alcester School Dist. No. 61-1, 295 NW2d 340 (SD 1980)). “Policies of a

school district especially those negotiated with bargaining representatives for the

protection of teachers, have the full force and effect of law, and legally bind the

school district.” Wessington Springs Educ. Ass’n., 467 NW2d at 104 (citing

Schnabel, 295 NW2d 340; Sutera, 351 NW2d 457).

[¶49.] The District is bound by statute to employ teachers who are certified to

teach in the positions for which they have been hired. The District was legally and

properly following the RIF policy. Therefore, the District’s decision to non-renew

Hanson’s contract due to her lack of qualification for Van Laecken’s position was

correct. As a result, the circuit court’s reversal of same was error. For the

foregoing reasons we reverse.

[¶50.] SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices,

concur.

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