Would changing 'shall' to 'may' in Idaho's teacher-negotiation statute actually let teachers pick their own bargaining representative?

Plain-English summary

Petitioner Laird Maxwell filed an initiative in June 1997, identical to one the AG had previously reviewed in July 1995. The substantive change was minimal: substitute "may" for "shall" in Idaho Code § 33-1271, making it optional rather than mandatory for school districts to enter into negotiation agreements with the local education organization representing professional employees. The petitioner's stated intent was to "allow teachers in Idaho to have a negotiating agency of their choice represent their interests."

The AG saw no constitutional or statutory bar to the change. But the AG also flagged that the change would not accomplish the stated intent. Idaho Code § 33-1273 makes the local education organization (defined in § 33-1272(2) as the organization "duly chosen and selected by a majority of the professional employees as their representative organization for negotiations") the "exclusive representative" of professional employees for negotiations. So even if the school district could opt not to negotiate, when negotiations did happen, the exclusive-representative rule still kicked in.

If the district chose not to negotiate, the procedure would be unclear. On one reading, the district could negotiate with each individual teacher, since § 33-1271 no longer required negotiating with the local organization. But § 33-1273's "exclusive representative" language seemed to forbid that, because any negotiation would have to flow through the LEO, regardless of whether negotiation was mandatory or permissive. So the district might still have to negotiate with the LEO whenever it negotiated at all, by de facto operation of § 33-1273. The change to § 33-1271 alone would not give individual teachers a choice of representatives.

To accomplish the petitioners' stated goal, the AG recommended also amending Idaho Code § 33-1273, the definition of "local education organization" in § 33-1272, or both, to provide that more than one group can represent the interests of professional employees.

Currency note

This opinion was issued in 1997. 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.

Idaho's teacher-bargaining framework has been amended substantially since 1997. Major reforms enacted in subsequent legislative sessions changed the scope of bargaining and the procedural rules. Anyone advising on current Idaho school district negotiation rules should consult the current versions of Title 33.

Common questions

Q: What is an "exclusive representative" in collective bargaining?
A: A model imported from federal labor law, where one organization is selected as the bargaining agent for an entire group of employees. The employer must negotiate only with that organization, and the organization owes a duty of fair representation to all employees in the unit, members and non-members alike. Idaho Code § 33-1273 imported the exclusive-representative concept into school district bargaining.

Q: Why didn't shall-to-may accomplish the petitioners' goal?
A: Because the petitioners wanted to break the exclusive-representative monopoly so teachers could pick their own bargaining group. But the exclusive-representative rule sat in § 33-1273, not § 33-1271. Changing § 33-1271 from "shall" to "may" made bargaining optional but did not change who represents teachers when bargaining does happen. The petitioners would have needed to amend § 33-1273 (or the definition in § 33-1272(2)) to actually open up the representation question.

Q: Could the school district negotiate with individual teachers under the proposed initiative?
A: Probably not, even with the change. § 33-1273's "exclusive representative" language could be read to require any negotiation to go through the local education organization, regardless of whether negotiation was mandatory. So under the change, the district could refuse to negotiate at all, but if it chose to negotiate, it might still have to do so with the LEO, not with individual teachers.

Q: What was the AG's role here?
A: Idaho Code § 34-1809 requires the AG to review every initiative within twenty working days for matters of substantive import. The recommendations are advisory; petitioners can accept or reject them.

Background and statutory framework

Idaho's teacher-bargaining statutes at Idaho Code §§ 33-1271 to 33-1276 (as of 1997) created a framework similar to public-sector collective bargaining laws in many states. Section 33-1271 authorized and required school districts to enter into negotiation agreements with the local education organization. Section 33-1272(2) defined "local education organization" as the organization chosen by a majority of professional employees. Section 33-1273 made that organization the exclusive representative for negotiations.

Initiative review under Idaho Code § 34-1809 is the AG's twenty-day advisory mechanism. The AG's role is to flag form, style, and substantive concerns, and the recommendations are advisory.

Citations and references

Statutes: Idaho Code §§ 33-1271, 33-1272(2), 33-1273, 34-1809.

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C071697.pdf

Original opinion text

July 16, 1997
The Honorable Pete T. Cenarrusa
Secretary of State
HAND DELIVERED

Re: Certificate of Review
Initiative Regarding Teachers' Freedom to Negotiate

Dear Mr. Cenarrusa:

An initiative petition was filed with your office on June 30, 1997. 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 succinctly state the purpose of the measure without being argumentative and without creating prejudice for or against the measure.

MATTERS OF SUBSTANTIVE IMPORT

This office previously prepared a certificate of review for an identical initiative proposal on July 14, 1995. See 1995 Idaho Att'y Gen. Ann. Rpt. 169. Neither the law nor the circumstances surrounding the proposed initiative have changed appreciably since the issuance of this office's previous certificate.

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:

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 provides 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) (emphasis added).

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.

CONCLUSION

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 of 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 Laird Maxwell by mailing him a copy of this certificate of review.

Sincerely,
ALAN G. LANCE
Attorney General

Analysis by:
MATTHEW J. MCKEOWN
Deputy Attorney General