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. It would change a single "shall" to "may" in Idaho Code § 33-1271, making negotiations appear optional. The stated drafter intent 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.

The AG said the proposal would make negotiations appear optional, but § 33-1273 would still make the majority-selected local education organization the only representative if negotiations occurred. If a district declined to negotiate with that organization, the procedure would be unclear: § 33-1273 suggested the district might still be forced to negotiate with it by de facto operation of law. The AG recommended amending § 33-1273 or the § 33-1272(2) definition of "local education organization," or both, to allow more than one group to represent employees.

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, the AG reviews an initiative petition and gives advisory comments on form, style, and substantive import. The petitioner may accept or reject those recommendations. This certificate identified a drafting problem without taking a position for or against the proposed initiative.

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

Because the school-bargaining law has multiple interlocking sections. The initiative would change § 33-1271 from "shall" to "may," while § 33-1273 would still designate the local education organization as the exclusive representative. The AG said a district's refusal to negotiate would leave the procedure unclear and that § 33-1273 might still force negotiation with that organization in practice.

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?

The opinion analyzes only the proposed change from "shall" to "may" in § 33-1271 and its interaction with the existing exclusive-representative rule. It does not analyze union-security clauses or other right-to-work laws.

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 provision intact. The AG said the resulting procedure could be unclear if a district declined to negotiate, and the change might fail to achieve the drafters' stated objective. The certificate recommended further amendment to address representation by more than one group.

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.