dissenting:
I cannot agree with the majority’s handling of the bad faith issue. I do not feel that the evidence presented in this case justified a finding of bad faith on the part of the school board.
A negotiations agreement is not a final contract of employment. Buhl Education Ass’n v. Joint School Dist. No. 412, 101 Idaho 16, 607 P.2d 1070 (1980). However, under the facts of this case, the school board probably did bind itself to provide a cost of living increase measured by the Consumer Price Index. The wording of this particular negotiations agreement is specific enough, regarding the expression of an intent to give a cost of living increase based upon the Consumer Price Index, to justify that finding by the trial court, even though the agreement is rendered somewhat ambiguous by the last portion of the provision in question, as set out below. Where a written contract is ambiguous, the trial court is entitled to determine the intent of the parties, and I believe there is sufficient evidence here to sustain the trial court’s finding that the teachers were entitled to an 11.1% increase, and I would affirm the trial court’s decision if that were the full extent of the decision. However, the trial court went beyond that point and found the board acted in bad faith. I cannot agree with this finding, or with approval given by the majority.
There are three major factors present in this case that contribute to my refusal to join with the majority on the bad faith issue. The first factor appears in the negotiations agreement itself. It says that a cost of living adjustment will be granted:
“as a part of the economic benefits that will be determined pursuant to this agreement. Such cost of living adjustment shall be based upon the consumer price index for the previous twelve month period as determined from March 1 to the last day of February, or such other index as mutually agreed upon. It is further understood and agreed that the Board will in good faith provide the cost of living adjustment for each year that this agreement is in effect, together with oth*149er financial matters to be negotiated, so long as such adjustment, when considered with all economic demands of the Association, shall be in accordance with sound fiscal management and in conformance with statutory responsibilities and responsible budgeting processes.” (Emphasis added.)
The trial court continually referred to the emphasized language as “weasel words.” To the trial judge, the presence of this wording in the negotiations agreement seemed to constitute bad faith on the part of the board. This conditional language, inserted in and agreed to by both parties in the negotiations agreement, was intended to give the board an “out”, but such an “out” is necessary if we are to leave to individual school boards the responsibility for determining their own school budgets.
Another factor present here is that the teachers themselves recognized that the school board might have to give them a lower increase than they felt they were entitled to. An agreement was reached between the teachers and the board on August 28, with the teachers agreeing to an 8.72% cost of living increase, subject to their right to file this lawsuit to interpret the language of the negotiations agreement.
The third and most important factor was the budget of the school district itself. During the negotiations, everyone, including the school board, assumed that a cost of living increase would be granted. One teacher indicated that Mr. Yost, negotiating for the board, said that “there was room to negotiate toward a cost of living adjustment; there were parameters to move within, but, it did not equal the cost of living.” The same teacher also testified that Mr. Burns, an assistant superintendent of the school district, told the teachers that if a 7-mill override levy were passed the salary proposed near 11% with no additional step increase could be granted. This indicates that the board was proposing salary increases that would fit within the budget of the school district.
The teachers and the trial judge seemed very willing to tell the school board how it could balance its own budget in order to give the teachers their full cost of living increase. The teachers’ suggestions ranged from eliminating programs (not staffing a building already built, elimination of resource teachers whose salaries had previously been funded by federal grant, etc.) to delaying purchase of a building to house district headquarters, and even to reducing the school week to four days.
The trial judge noted that money to fund a cost of living increase could be found by “reductions in budget for non-essential items, elimination of budget items having lower priority than the priority for cost of living increases .... ” The majority opinion then condones the trial court’s method of second guessing the board in holding that the money for the increase was available if the board had eliminated or reduced non-essential items in the budget. If this opinion is allowed to stand, then the courts will be running the school districts. The authority to determine what items should be included in a school district’s budget is by law granted to the school board, and district courts (and teachers) should not be able to rule, in hindsight, that the board “could have” granted the cost of living increase if they had only reduced or eliminated some other program.
The majority opinion also attempts to second guess the board on the amount of funding that would be available to it for that budget year. It is clear that the board did not have available to it the full amount of budget moneys until after an agreement with the teachers had been entered into (when a 6.3 mill levy passed). This Court, or a district court, should not be allowed to second guess, in hindsight, a board of trustees as to the amount of funding available to them to grant budget increases.
My objection in this case is similar to the objection made in School Dist. No. 351 Oneida County v. Oneida Education Ass’n, 98 Idaho 486, 567 P.2d 830 (1977). In a dissent in that case I wrote:
*150“This effectively means that the final arbiters in wage negotiations between teachers and school districts are going to be the courts who must decide whether the parties are negotiating in good faith, imposing or withholding the court’s injunctive powers based upon the outcome of that finding. I doubt the wisdom of placing the courts in such a position. It is not every social ill which can be resolved by the courts. It is my considered view that, in the absence of legislation holding otherwise, our society would be better served in most instances by a rule which permitted teachers to strike and school boards to negotiate within the statutory framework, whether in good or bad faith, letting economic and other social factors finally forge the conclusion of that conflict, rather than interjecting the courts into the fray where the threat of an injunction dangles over the head of teachers, but only if, in the opinion of the court, the school board has negotiated in good faith.”
If the majority opinion is allowed to stand as written, district courts will be allowed to substitute their judgment for that of the school board in determining the amount of funding available to a particular school district, in deciding what essential or non-essential programs to cut, and in determining what priority each program should be given. District courts, in intervening in this manner, will effectively be running the school districts. As I indicated in the Oneida case, there is little wisdom in placing the courts in such a position. Consequently, I would reverse the trial court in its finding on the bad faith issue.