Education Minnesota-Chisholm v. Independent School District No. 695

LANSING, Judge

(dissenting).

I respectfully dissent. I agree with the majority’s analysis that the statutory language at issue, Minn.Stat. § 179A.03, subd. 14 (2000), is neither technical nor subject to an agency’s longstanding interpretation. But I disagree that subdivision 14, clause (i) of section 179A.03 unambiguously excludes parttime licensed teachers in the Early Childhood Family Education (ECFE) program from the definition of public employee.

It is undisputed that the Chisholm School District is a public employer, that ECFE is funded through community education, and that only licensed teachers may be employed for ECFE programs. Under Minn.Stat. § 179A.03, subd. 14, subject to specific exceptions, any person employed by a public employer is a public employee. One of the exceptions is parttime employees whose service does not exceed a minimum number of hours. Id., subd. 14(e). But this exception does not apply to

(i) [a]n employee hired by a school district or the board of trustees of the Minnesota state colleges and universities except at the university established in *481section 136F.13 or for community services or community education instruction offered on a noncredit basis: (A) .to replace an absent teacher or faculty member who is a public employee, where the replacement employee is employed more than 30 working days as a replacement for that teacher or faculty member; or (B) to take a teaching position created due to increased enrollment, curriculum expansion, courses which are a part of the curriculum whether offered annually or not, or other appropriate reasons[.]

Id., subd. 14, cl. (i).

The term “community education instruction offered on a noncredit basis” is ambig: uous both in text and context because elementary and early childhood education do not have a credit certification system. The word “noncredit” presupposes a credit-noncredit distinction that does not exist in elementary and early childhood education but does apply to secondary and postsec-ondary education.

When a statute speaks with clarity in limiting its application to specifically enumerated subjects, its application should not extend to other subjects. Martinco v. Hastings, 265 Minn. 490, 495, 122 N.W.2d 631, 637 (1963). But when the language of a statute is ambiguous, the appellate court must “determine the probable legislative intent and give the statute a construction that is consistent with that intent.” Tuma v. Comm’r of Econ. Sec., 386 N.W.2d 702, 706 (Minn.1986) (citations omitted).

Education-Minnesota Chisholm and the Chisholm School District do not disagree on the legislature’s purpose for adding “community education instruction offered on a noncredit basis” to subdivision 14. The phrase was part of an act with the stated purpose of expanding the definition of public employee to add certain postsec-ondary teachers to the other parttime teachers already included in the definition. 1983 Minn. Laws ch. 322, § 1. The accompanying restriction for “community education instruction offered on a noncredit basis” essentially excluded adult education courses that did not provide formal or institutional credit.

Consistent with the stated purpose for the amendment, the act inserted “faculty member” in two places, inserted references to the community college board and state university board in several places, and excluded “individuaos] hired to teach one course for up to four credits for one quarter in a year.” Id. The restriction for instruction offered oh a noncredit basis was not aimed at teachers in the preschool ECFE program and should not be applied to exclude those teachers from the teachers’ bargaining unit.

Finally, including the parttime ECFE teachers in the teachers’ bargaining unit is consistent with the statutory structure that permits teachers who teach parttime in the kindergarten and elementary school system to participate in the teachers’ bargaining unit without requiring a minimum number of service hours. It also achieves the logical result of allowing the parttime ECFE teachers to participate in the same bargaining unit with their fulltime ECFE counterparts. ' For all of these reasons, I dissent.