If a 1995 ballot initiative changed one word in Idaho's school-bargaining statute (from 'shall' to 'may'), would Idaho teachers actually get to choose their own bargaining representatives?

Plain-English summary

John Slack filed a "Teachers Right to Work Act" initiative petition with the Idaho Secretary of State in June 1995. The substance was small in word count: change a single "shall" to "may" in Idaho Code § 33-1271, the school-bargaining statute. The change would let school district trustees negotiate with a teachers' association if they chose to, rather than being required to negotiate when the association requested it. The stated drafter intent, per the petition, was to "allow teachers in Idaho to have a negotiating agency of their choice represent their interests."

Deputy AG (acting under AG Alan Lance's signature) reviewed the petition under Idaho Code § 34-1809, which requires the AG to provide "advisory only" comments on form, style, and substantive import within a strict statutory timeframe. The AG noted no constitutional or statutory bar to the proposed amendment. The substantive flag was different: the single-word change would not actually achieve what the drafters said they wanted. The reason was § 33-1273, which the initiative did not touch. § 33-1273 declares that the local education organization "shall be the exclusive representative for all professional employees in that district for purposes of negotiations." § 33-1272(2) defines "local education organization" as the organization chosen by a majority of the professional employees.

Under the initiative as drafted, a school district could decide not to negotiate with the local education organization (because § 33-1271's requirement became permissive). But if the district chose to negotiate, § 33-1273 still made the local education organization the only entity allowed at the table. So teachers would not get a "negotiating agency of their choice" in any practical sense. They would either have one, the existing local education organization, or none at all (if the district declined to negotiate). The AG recommended that the drafters also amend § 33-1273 or the § 33-1272(2) definition of "local education organization" to allow more than one group to represent professional employees, if the goal was actually to give teachers a choice of representative.

The opinion footnoted that an identical change to § 33-1271 had been introduced in the 1995 Idaho Senate as S.B. 1025 by Senator Rod Beck but was killed in committee. The initiative was the proponents' second attempt at the same change.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is a "certificate of review" and what does it do?

Under Idaho Code § 34-1809, when an initiative petition is filed with the Secretary of State, the Attorney General has a fixed window to issue a "certificate of review" with advisory comments on form, style, and substantive import. The recommendations are explicitly "advisory only." The petitioner can accept or reject them. The certificate is not a constitutional or substantive ruling; it is an early-warning tool for drafters. Petitioners who ignore well-founded comments often see their initiatives challenged in court.

Why didn't a one-word change accomplish what the drafters wanted?

Because the school-bargaining law has multiple interlocking sections. § 33-1271 is the duty to negotiate. § 33-1273 is the exclusivity rule. The initiative changed § 33-1271 from "shall" to "may," making negotiation optional from the district's side. But § 33-1273 still designated the local education organization as the exclusive representative. So teachers would not gain the ability to bring in a competing organization; they would just gain the possibility that the district would refuse to negotiate at all.

Could the initiative have been redrafted to do what its proponents said they wanted?

Yes, the AG outlined how. Either § 33-1273 needed amendment to remove the exclusivity rule, or § 33-1272(2)'s definition of "local education organization" needed broadening so that more than one organization could carry that label. Either change, combined with the original "shall" to "may" amendment in § 33-1271, would have allowed teachers to choose competing representatives, which is what the initiative title and stated purpose suggested.

Is this a "right to work" law in the conventional sense?

Not in the standard sense. Conventional "right to work" laws prohibit union-security clauses (e.g., requirements that employees pay agency fees as a condition of employment). The Idaho proposal was narrower: it changed only the duty-to-negotiate rule. Idaho was already a right-to-work state for the union-security purpose; this initiative was about something different, namely whether the existing exclusive-representative model would continue to work the way it had.

Did the initiative ever reach the ballot?

The certificate of review records do not say. AG certificates are advisory and do not control whether an initiative qualifies for the ballot, only the form-and-style comments are inputs to that process. The certificate's purpose is to flag drafting issues, not to gatekeep.

Background and statutory framework

Idaho Code § 33-1271 (the version in effect in 1995) required school district trustees to "enter into a negotiation agreement" with the local education organization when the trustees acted on their own initiative or when the local education organization requested it. § 33-1273 made that organization "the exclusive representative for all professional employees in that district for purposes of negotiations." § 33-1272(2) defined the local education organization as "any local district organization duly chosen and selected by a majority of the professional employees as their representative organization for negotiations under this act."

The initiative would have replaced "shall" with "may" in § 33-1271, leaving the exclusivity provisions intact. This produced what the AG described as a half-measure: the substantive outcome would not match the drafters' stated objectives. The AG's role under § 34-1809 was to flag this drafting gap, not to opine on the underlying labor policy.

Citations

• Idaho Code §§ 33-1271, 33-1272(2), 33-1273, 34-1809
• 1995 Idaho Senate Bill 1025 (Sen. Rod Beck)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C071495.pdf

Original opinion text

July 14, 1995
The Honorable Pete T. Cenarrusa
Secretary of State
HAND DELIVERED
Re:

Certificate of Review;
Initiative Entitled “The Teachers Right to Work Act”

Dear Mr. Cenarrusa:
An initiative petition was filed with your office on June 26, 1995. Pursuant to
Idaho Code § 34-1809, this office has reviewed the petition and has prepared the
following advisory comments. It must be stressed that, given the strict statutory
timeframe in which this office must respond and the complexity of the legal issues raised
in this petition, our review can only isolate areas of concern and cannot provide in-depth
analysis of each issue that may present problems. Further, under the review statute, the
Attorney General’s recommendations are “advisory only,” and the petitioners are free to
“accept or reject them in whole or in part.”
BALLOT TITLE
Following the filing of the proposed initiative, our office will prepare short and
long ballot titles. The ballot titles should impartially and straightforwardly state the
purpose of the measure without being argumentative and without creating prejudice for
or against the measure. While our office prepares the titles, if petitioners would like to
propose language with these standards in mind, we would recommend that they do so and
their proposed language will be considered.
MATTERS OF SUBSTANTIVE IMPORT
The substantive provision of the proposed initiative is brief and straightforward.
The initiative would change Idaho Code § 33-1271 by substituting the word “may” for
“shall” as indicated below.1
33-1271. School districts—Professional employees—Negotiation
agreements.—The board of trustees of each school district, including
specially chartered districts, or the designated representative(s) of such
district, is hereby empowered to and shall may upon its own initiative or
upon the request of a local education organization representing professional
employees, enter into a negotiation agreement with the local education
organization or the designated representative(s) of such organization and

negotiate with such party in good faith on those matters specified in any
such negotiation agreement between the local board of trustees and the
local education organization. A request for negotiations may be initiated
by either party to such negotiation agreement. Accurate records or minutes
of the proceedings shall be kept, and shall be available for public inspection
at the offices of the board of education during normal business hours. Joint
ratification of all final offers of settlement shall be made in open meetings.
Importantly, there is no constitutional or statutory prohibition against the
amendment of § 33-1271 as contemplated by the initiative. However, for practical
purposes, such an amendment would leave the negotiating process between school
districts and professional employees unclear, and may not fulfill the stated intent of the
initiative drafters to allow teachers in Idaho “to have a negotiating agency of their choice
represent their interests.”
The Attorney General’s statutory duty to review proposed initiatives includes the
obligation to “recommend to the petitioner such revision or alteration of the measure as
may be deemed necessary and appropriate.” Idaho Code § 34-1809. As stated above,
because of other statutes, the single word change in Idaho Code § 33-1271 from “shall”
to “may” may not accomplish the “legislative intent” of the proposed change, i.e. that
through the amendment, “teachers in Idaho will be allowed to have a negotiating agency
of their choice represent their interests.”
Idaho Code § 33-1273 states that the local education organization “shall be the
exclusive representative for all professional employees in that district for purposes of
negotiations.” “Local education organization” is defined to mean:
any local district organization duly chosen and selected by a majority of the
professional employees as their representative organization for negotiations
under this act.
Idaho Code § 33-1272(2).
It is clear that the initiative would make negotiations with a local education
organization optional. However, if such negotiations were to occur, the local education
organization approved by a majority of the professional employees would still be the
representative of such employees, because of the language of § 33-1273. Under the
initiative, teachers would not be allowed to have a negotiating agency of their choice
represent their interests as contemplated. Rather, the school district would have the
option to negotiate with a local education organization, but if such negotiations occurred,
only one representative of such professional employees would be allowed to engage in
such negotiations.

If the school district chose not to negotiate with such a group, the procedure would
be unclear. On its face, it would appear that the school district could negotiate with each
individual professional employee. However, § 33-1273 states that the local education
association is the “exclusive” representative of professional employees of the school
district for purposes of negotiation. Such language suggests that any negotiations would
have to occur through such a group, rather than on the individual level, regardless of
whether the school district was required by law to negotiate with them. In other words, if
the language in Idaho Code § 33-1273 remains intact, the school district would still be
forced to negotiate with a local education organization by de facto operation of law.
In conclusion, in order for the initiative to accomplish the stated intent, we would
recommend that Idaho Code § 33-1273 or the definition of “local education organization”
found in Idaho Code § 33-1272, or both, also be amended to more specifically provide
that more than one group can represent the interests of professional employees. This
recommendation is made solely for the purpose of assisting the petitioner as required by
Idaho Code § 34-1809, and is not meant to reflect a position either in favor or against the
proposed initiative by the Office of the Attorney General.
I HEREBY CERTIFY that the enclosed measure has been reviewed for form, style
and matters of substantive import and that the recommendations set forth above have
been communicated to petitioner John Slack by deposit in the U.S. Mail of a copy of this
certificate of review.
Sincerely,
ALAN G. LANCE
Attorney General

1

An identical change to Idaho Code § 33-1271 was introduced in the Senate as S.B. 1025 during the last
legislative session by Senator Rod Beck, but was killed in the Senate Education Committee.