                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A15-1164

             In the Matter of a Petition for Clarification of an Appropriate Unit

                           Independent School District No. 622,
                           North St. Paul-Maplewood-Oakdale,
                                North St. Paul, Minnesota,
                                       Respondent,

                                             vs.

                North St. Paul-Maplewood-Oakdale Education Association,
                                North St. Paul, Minnesota,
                                         Relator,

                               Bureau of Mediation Services,
                                       Respondent.

                                    Filed May 16, 2016
                                         Affirmed
                                     Johnson, Judge

                               Bureau of Mediation Services
                                   File No. 15PCL0186

Kevin J. Rupp, Kristin Nierengarten, Rupp Anderson Squires & Waldspurger, PA,
Minneapolis, Minnesota (for respondent Independent School District No. 622)

Jess Anna Glover, David Aron, Education Minnesota, St. Paul, Minnesota (for relator)

Bureau of Mediation Services, St. Paul, Minnesota (respondent)

         Considered and decided by Schellhas, Presiding Judge; Worke, Judge; and Johnson,

Judge.
                                      SYLLABUS

       The school district’s pre-kindergarten instructors are not required to be licensed by

the board of teaching or the commissioner of education because there is no licensure

requirement in state statutes governing pre-kindergarten school-readiness programs, no

licensure requirement in federal law governing pre-kindergarten programs receiving

federal Title I funds, and no licensure requirement imposed by the school district.

Accordingly, the school district’s pre-kindergarten instructors are not “teachers” for

purposes of the Public Employment Labor Relations Act and, therefore, are not included

in the teacher bargaining unit.

                                       OPINION

JOHNSON, Judge

       An association of public-school teachers petitioned the Bureau of Mediation

Services for clarification of its collective bargaining unit. The association sought a ruling

that instructors in the school district’s pre-kindergarten program are included in the teacher

bargaining unit.    The bureau determined that the school district’s pre-kindergarten

instructors are not included in the teacher bargaining unit because they are not required to

hold a teaching license. We affirm.

                                          FACTS

       Independent School District No. 622 operates public schools within the Twin Cities

metropolitan area. The North St. Paul-Maplewood-Oakdale Education Association is the

exclusive bargaining representative of certain employees of the school district, including




                                              2
teachers, for purposes of the Public Employment Labor Relations Act (PELRA), Minn.

Stat. §§ 179A.01-.60 (2014).

       In 2010, the school district established a pre-kindergarten program. The school

district initially required each instructor in the pre-kindergarten program to hold a teaching

license. Accordingly, the instructors in the pre-kindergarten program were included in the

teacher bargaining unit from 2010 to 2014.

       In 2014, the school district made changes to its pre-kindergarten program. The

school district decided to operate two pre-kindergarten programs: Stepping Stones, a

program funded in part with money received from the state government, and PreK, a

program funded in part with money received from the federal government. At the same

time, the school district decided to change the minimum qualifications of the pre-

kindergarten instructor position by eliminating the requirement of a teaching license.

When the school district advertised an open position in 2014, the posting required

applicants to have a “[b]achelor’s degree in early childhood education/related field” and

indicated a preference for an “Early Childhood/Prekindergarten teaching license” but did

not require a teaching license.      The school district employed six persons as pre-

kindergarten instructors during the 2014-15 academic year: four in Stepping Stones and

two in PreK. Five of the pre-kindergarten instructors had teaching licenses. The sixth

instructor, who taught in Stepping Stones, did not have a teaching license but had a master’s

degree in family studies.

       In September 2014, the association petitioned the Bureau of Mediation Services

(BMS) for clarification as to whether the school district’s pre-kindergarten instructors are


                                              3
included in the teacher bargaining unit. In January 2015, a BMS hearing officer conducted

a hearing on the petition. The association called five witnesses: the director of educator

licensing for the Minnesota Department of Education (MDE), two of the school district’s

former pre-kindergarten instructors, the association’s member-rights representative, and a

member of the staff of Education Minnesota. The school district called three witnesses: its

supervisor of educational programs in its teaching and learning department, its early-

learning supervisor, and its human-resources director.

        In January 2015, MDE published informal guidance stating that Early Childhood

Family Education (ECFE) programs, which are distinct from school-readiness programs in

their content, must be staffed by licensed teachers but that school-readiness programs do

not need to be staffed by licensed teachers. See Minn. Stat. §§ 124D.13-.135 (ECFE);

124D.15-.16 (school readiness).

        In June 2015, the BMS hearing officer issued a ten-page order, which concluded

that the school district’s pre-kindergarten instructors are not included in the teacher

bargaining unit because they are not required to hold a teaching license. The association

appeals by way of a writ of certiorari.

                                          ISSUE

        Are the school district’s pre-kindergarten instructors within the teacher bargaining

unit?




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                                         ANALYSIS

       The association argues that the BMS hearing officer erred by concluding that the

pre-kindergarten instructors in the school district are not within the teacher bargaining unit

because they are not required to hold teaching licenses.

       This court’s task is to review the BMS decision to determine whether “it reflects an

error of law,” whether “the determinations are arbitrary and capricious,” or whether “the

findings are unsupported by the evidence.” In re Petition for Clarification of Appropriate

Unit, 660 N.W.2d 467, 469 (Minn. App. 2003) (Rosemount), review denied (Minn. July 15,

2003). In conducting that review, we generally “defer to the agency’s expertise and special

knowledge in the field of its technical training, education, and experience.” Id. at 470

(quotation omitted). But to the extent that the BMS hearing officer’s decision is based on

an interpretation of a statute, it “is clearly a question of law” that is “fully reviewable” by

an appellate court. Hibbing Educ. Ass’n v. Public Emp’t Relations Bd., 369 N.W.2d 527,

529 (Minn. 1985); see also Schwanke v. Minnesota Dep’t of Admin., 851 N.W.2d 591, 594

n.1 (Minn. 2014) (stating that appellate courts “owe no deference to an agency’s

interpretation of an unambiguous statute”).

       PELRA governs public-sector labor-management relations in Minnesota.                 See

Minn. Stat. § 179A.01. The act recognizes the right of public-sector employees to form

and join unions and to collectively bargain with their employers. Minn. Stat. § 179A.06,

subds. 2, 5.    The act applies to the relationship between school districts and their

employees. Rosemount, 660 N.W.2d at 470. Furthermore, the act specifies that the

appropriate bargaining unit for a school district is “all teachers in the district.” Minn. Stat.


                                               5
§ 179A.03, subd. 2. The term “teacher” is defined within the act to mean, in relevant part,

“any public employee other than a superintendent or assistant superintendent, principal,

assistant principal, or a supervisory or confidential employee, employed by a school district

. . . in a position for which the person must be licensed by the Board of Teaching or the

commissioner of education.” Minn. Stat. § 179A.03, subd. 18(1) (emphasis added); see

also Hibbing, 369 N.W.2d at 529.

       In light of PELRA’s definition of the term “teacher,” the central issue in this appeal

is whether pre-kindergarten instructors in the school district are required to “be licensed by

the Board of Teaching or the commissioner of education.” See Minn. Stat. § 179A.03,

subd. 18(1). If so, “they belong in the bargaining unit represented by” the association; if

not, they “belong not in the teachers’ unit, but in a separate bargaining unit.” See Hibbing,

369 N.W.2d at 529. The association contends that the school district’s pre-kindergarten

instructors are required to be licensed for four reasons.

                                             A.

       The association first contends that the school district’s pre-kindergarten instructors

are required to be licensed because of state statutes that govern pre-kindergarten

instruction. The association’s argument implicates issues of statutory interpretation. We

begin interpreting a statute by asking “whether the statute’s language, on its face, is

ambiguous.” American Tower, L.P. v. City of Grant, 636 N.W.2d 309, 312 (Minn. 2001).

A statute is unambiguous if it is susceptible to only one reasonable interpretation. Lietz v.

Northern States Power Co., 718 N.W.2d 865, 870 (Minn. 2006).                  If a statute is

unambiguous, we “interpret the words and phrases in the statute according to their plain


                                              6
and ordinary meanings.” Graves v. Wayman, 859 N.W.2d 791, 798 (Minn. 2015). A

statute is ambiguous, however, if it has “more than one reasonable interpretation.” Lietz,

718 N.W.2d at 870.       If a statute is ambiguous, we apply “the canons of statutory

construction to determine its meaning.” County of Dakota v. Cameron, 839 N.W.2d 700,

705 (Minn. 2013).

       The association relies on the statutes governing school-readiness programs. See

Minn. Stat. §§ 124D.15-.16 (2014). Under these statutes, a school district is permitted to

“establish a school readiness program . . . to prepare children to enter kindergarten.” Minn.

Stat. § 124D.15, subd. 1. If a school district’s school-readiness program satisfies certain

requirements, the school district may receive aid from the state. Minn. Stat. § 124D.16,

subd. 2. A school-readiness program must satisfy eight specified program requirements,

Minn. Stat. § 124D.15, subd. 3, including a requirement that the program “have teachers

knowledgeable in early childhood curriculum content, assessment, native and English

language development programs, and instruction,” id., subd. 3(8) (emphasis added).

       The association contends that the word “teachers” in section 124D.15, subdivision

3(8), means licensed teachers. The term “teacher” is not defined within chapter 124D. See

Minn. Stat. § 124D.01 (2014) (incorporating definitions in section 120A.05); Minn. Stat.

§ 120A.05 (2014) (defining 16 terms but not defining “teacher”). Generally, if “a statute

is ‘completely silent on a contested issue,’ we do not look beyond the statutory text to

discern its meaning unless there is an ‘ambiguity of expression’ — rather than a ‘failure of

expression.’” State Farm Mut. Auto. Ins. Co. v. Lennartson, 872 N.W.2d 524, 532 (Minn.

2015) (quoting Rohmiller, 811 N.W.2d at 590). “[W]e look beyond the statutory text only


                                             7
if its ‘silence renders the statute susceptible to more than one reasonable interpretation.’”

Id. In this case, however, no ambiguity is created by the absence of the word “licensed”

before the word “teachers.” Thus, we interpret the statute according to its plain meaning.

American Tower, L.P., 636 N.W.2d at 312.

       The common definition of the word “teacher” is simply “[o]ne who teaches,

especially one hired to teach.” The American Heritage Dictionary of the English Language

1786 (5th ed. 2011); see also Webster’s New International Dictionary 2588 (2d ed. 1934)

(“One who teaches, or instructs; esp., one whose occupation is to instruct; an instructor;

tutor.”). In other words, the plain and ordinary meaning of the word “teacher” is not limited

to a teacher who holds a teaching license. We note that other provisions in chapter 124D

require teachers to be licensed in certain situations by so stating in express terms. For

example, a school-readiness program “must be supervised by a licensed early childhood

teacher, a certified early childhood educator, or a licensed parent educator.” Minn. Stat.

§ 124D.15, subd. 10 (emphasis added). In addition, an ECFE program “must employ

necessary licensed teachers for its early childhood family education programs.” Minn.

Stat. § 124D.13, subd. 11 (2014) (emphasis added); see also Minn. Stat. §§ 124D.231,

.454, .59 (2014). These provisions suggest that the legislature could have used language

to expressly indicate that a teacher in a school-readiness program must be licensed, if the

legislature had so intended. But the legislature did not do so. The association essentially

asks this court to insert the word “licensed” into section 124D.15, subdivision 3(8), before

the word “teacher.” “Because ambiguity is not created by the statute’s silence, we ‘are not




                                             8
free to substitute amendment for construction and thereby supply the omissions of the

Legislature.’” Id. (citing Rohmiller v. Hart, 811 N.W.2d 585, 590 (Minn. 2012)).

       Thus, the school district’s pre-kindergarten instructors are not required by the

school-readiness statutes to be licensed by the board of teaching or the commissioner of

education.1

                                             B.

       The association next contends that the school district’s pre-kindergarten instructors

are required to be licensed because of federal law. Federal law is relevant because the

school district’s PreK Program employs two pre-kindergarten instructors using federal

funds appropriated pursuant to a federal law commonly known as Title I. See 20 U.S.C.

§§ 6301-6578 (2012); see also Pub. L. No. 114-95, 129 Stat. 1801-2192. The Minnesota

Supreme Court has implicitly acknowledged that an employee working in a program that

receives Title I funds would be in a teacher bargaining unit if federal law were to require

recipients of Title I funds to employ licensed teachers in that program. Hibbing, 369

N.W.2d at 529.

       The association contends that pre-kindergarten instructors funded by Title I are

required by federal law to be “highly qualified” and that, in Minnesota, a “highly qualified”

teacher must have a teaching license. Under federal law, a state educational agency


       1
         We note that our interpretation of the school-readiness statutes is consistent with
the interpretation of the MDE, as reflected in the informal guidance that it issued in January
2015. “Administrative interpretations [as to the construction of a statute] are entitled to
great respect, but they are not binding on the court.” Rosemount, 660 N.W.2d at 470
(alteration in original) (quoting Independent Sch. Dist. No. 621 v. Public Emp’t Relations
Bd., 268 N.W.2d 410, 412 n.5 (Minn. 1978)).

                                              9
receiving Title I funds (such as MDE) must ensure that “all teachers teaching in core

academic subjects” are “highly qualified.” 20 U.S.C. § 6319(a)(2). “The term ‘core

academic subjects’ means English, reading or language arts, mathematics, science, foreign

languages, civics and government, economics, arts, history, and geography.” 34 C.F.R.

§ 200.56. To be “highly qualified,” a teacher who teaches a “core academic subject” must

have a teaching license. 34 C.F.R. § 200.55-.56; accord Minn. Stat. § 122A.16 (2014)

(defining “highly qualified teacher,” for purposes of federal law, as “one who holds a valid

license under this chapter”).

       To resolve the association’s argument, we must determine whether the school

district’s pre-kindergarten instructors are “teachers teaching in core academic subjects.”

See 20 U.S.C. § 6319(a)(2). The United States Department of Education has addressed

this issue in informal guidance. U.S. Dep’t of Educ., Serving Preschool Children Through

Title I: Part A of the Elementary and Secondary Education Act of 1965, as Amended (Oct.

2012), http://www2.ed.gov/policy/elsec/guid/preschoolguidance2012.pdf.2 The guidance

states that the highly-qualified teacher requirements “apply only to elementary and

secondary school teachers.” Id. at 11. With respect to pre-kindergarten programs, the

guidance states that “only teachers working in a Title I preschool program in a State that

considers preschool to be part of public elementary education must meet the Title I

requirements for ‘highly qualified teachers.’” Id. at 9. The MDE essentially adopted the


       2
         As a matter of federal law, a federal agency’s informal guidance is not binding on
a court but may be given deference. See Skidmore v. Swift & Co., 323 U.S. 134, 139-40,
65 S. Ct. 161, 164 (1944). We have considered the relevant Skidmore factors and conclude
that the guidance is owed substantial deference. See id. at 140, 65 S. Ct. at 164.

                                            10
United States Department of Education’s informal guidance in its own informal guidance,

which was presented to the BMS hearing officer and is in the appellate record.3

       Minnesota is not “a State that considers preschool to be part of public elementary

education.” See id. In Minnesota, school attendance is compulsory only for children

between the ages of seven and seventeen, Minn. Stat. § 120A.22, subd. 5(a) (2014), and

for children under the age of seven who have “enrolled in kindergarten or a higher grade,”

id., subd. 6(a). But school attendance is not compulsory in Minnesota for children who

have not yet enrolled in kindergarten and have not yet reached the age of seven. See id.,

subds. 5, 6. Because pre-kindergarten education is not compulsory, it is not considered

part of public elementary education on a state-wide basis. The association concedes that

“pre-kindergarten programs are not compulsory in Minnesota” but contends that, if a

particular school district elects to provide a pre-kindergarten program, the “highly qualified

teacher” requirement applies to that school district. But that contention is inconsistent with

the federal guidance, which refers to state law, not local practice. Accordingly, the

requirement in federal law that certain teachers be “highly qualified” does not apply to pre-

kindergarten instructors in Minnesota.


       3
        Because MDE is charged with enforcing and administering the federal regulations
on which the federal guidance is based, and because MDE has day-to-day responsibility
for enforcing and administering the federal regulations, we treat the federal regulations as
if they were MDE’s own regulations. See In re Cities of Annandale & Maple Lake, 731
N.W.2d 502, 511-13 (Minn. 2007). Because the federal regulations are “unclear or
susceptible to different reasonable interpretations,” we will give deference to MDE’s
interpretation so long as it is reasonable. Id. at 515; see also In re Reichmann Land &
Cattle, LLP, 876 N.W.2d 502, 506 (Minn. 2015). We believe that MDE’s interpretation of
the federal regulations, which effectively mirrors the federal agency’s own interpretation
of the federal regulations, is reasonable.

                                             11
       Thus, the school district’s pre-kindergarten instructors are not required by federal

law to be licensed by the board of teaching or the commissioner of education.

                                              C.

       The association next contends that the school district’s pre-kindergarten instructors

are required to be licensed because of the job requirements imposed on them by the school

district. This court has recognized that an employee working in a pre-kindergarten program

is included in a teacher bargaining unit if the school district requires the employee to be

licensed. In re Petition for Clarification of Appropriate Unit, 529 N.W.2d 717, 719 (Minn.

App. 1995), review denied (Minn. June 14, 1995) (Hopkins).

       The BMS hearing officer noted in his statement of the relevant facts that, since 2014,

the school district has not required its pre-kindergarten instructors to be licensed teachers.

The school district presented evidence that supports the BMS hearing officer’s factual

statement. As noted above, the school district’s position description does not require a

teaching license. At the hearing, three school district employees with first-hand knowledge

of the matter testified that the school district does not require its pre-kindergarten

instructors to be licensed. It is undisputed that the school district does not formally require

its pre-kindergarten instructors to hold teaching licenses.

       The association nonetheless contends that, notwithstanding the lack of a formal

license requirement, the school district effectively requires its pre-kindergarten instructors

to be licensed because the duties of the position are such that an instructor would need to

be licensed to adequately fulfill those duties. For this contention, the association relies on

the testimony of two persons who were employed by the school district as pre-kindergarten


                                              12
instructors between 2010 and 2014. They testified that, based on their review of the revised

position description, the school district did not change the assigned duties of the position

in a significant way when the school district removed the license requirement. The

association also makes a related contention, that the school district has a de facto license

requirement because five of the school district’s six pre-kindergarten instructors have a

teaching license and because the one instructor without a license is employed only part

time.

          The association may not establish a license requirement indirectly based on the

nature of the pre-kindergarten instructors’ duties if the school district does not have a

formal license requirement. In Hibbing, a nearly identical argument was rejected by the

supreme court. The teachers’ association in that case argued that BMS had failed to

consider certain employees’ “job duties,” thereby “ced[ing] to the employing school

district sole discretion in defining the bargaining unit.” 369 N.W.2d at 530. The supreme

court refused to entertain the argument on the ground that it is “not the function of the

courts” to do so but, rather, a matter that is within “the jurisdiction and the expertise” of

the board of teaching or the board of education. Id. Consistent with Hibbing, this court

may not consider the association’s evidence that is intended to contradict the school

district’s evidence that it does not require its pre-kindergarten instructors to be licensed.

See id.

          Thus, the school district’s pre-kindergarten instructors are not required by the school

district to be licensed by the board of teaching or the commissioner of education.




                                                13
                                             D.

       The association last contends that the school district’s pre-kindergarten instructors

should be required to be licensed because such a requirement would be good public policy.

       This court is not empowered to decide a case in a manner inconsistent with the plain

language of a statute merely because we believe that the result of our decision would be

good public policy. In a recent opinion, the supreme court stated, “we are not in a position

to choose between public policy choices when [a statute] unambiguously addresses the

question before us.” Auto-Owners Ins. Co. v. Second Chance Invs. LLC, 827 N.W.2d 766,

773 n.3 (Minn. 2013).      In another recent opinion, the supreme court reiterated the

fundamental principle that “[t]he public policy of a state is for the legislature to determine

and not the courts.” Dukowitz v. Hannon Sec. Servs., 841 N.W.2d 147, 151 (Minn. 2014)

(quoting Mattson v. Flynn, 216 Minn. 354, 363, 13 N.W.2d 11, 16 (1944), in parenthetical).

Likewise, the association’s public-policy arguments should be directed to the legislature.

       Thus, persons occupying the position of pre-kindergarten instructor are not required

by a general sense of public policy to be licensed by the board of teaching or the

commissioner of education.

                                      DECISION

       The BMS hearing officer did not err by determining that the school district’s pre-

kindergarten instructors are not required to be licensed by the board of teaching or the

commissioner of education and, thus, are not included in the teacher bargaining unit.

       Affirmed.




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