Leissring v. Department of Industry, Labor and Human Relations, s. 82-1409

• Decision Date: 30 November 1983
• Docket Number: Nos. 82-1409,82-1913,s. 82-1409
• Citation: 340 N.W.2d 533,115 Wis.2d 475
• Parties: , 14 Ed. Law Rep. 793 Avonelle F. LEISSRING, Plaintiff-Appellant, v. DEPARTMENT OF INDUSTRY, LABOR AND HUMAN RELATIONS, Defendant-Respondent, Hamilton School District, Defendant. Richard C. FREY, Plaintiff-Respondent, v. DEPARTMENT OF INDUSTRY, LABOR AND HUMAN RELATIONS, Defendant-Appellant, Juda School District, Defendant.
• Court: Wisconsin Supreme Court

Page 533

340 N.W.2d 533

115 Wis.2d 475, 14 Ed. Law Rep. 793

Avonelle F. LEISSRING, Plaintiff-Appellant, v. DEPARTMENT OF INDUSTRY, LABOR AND HUMAN RELATIONS,

Defendant-Respondent,

Hamilton School District, Defendant.

Richard C. FREY, Plaintiff-Respondent, v. DEPARTMENT OF INDUSTRY, LABOR AND HUMAN RELATIONS, Defendant-Appellant, Juda School District, Defendant.

Nos. 82-1409, 82-1913.

Supreme Court of Wisconsin.

Argued Oct. 31, 1983.

Decided Nov. 30, 1983.

Bruce Meredith, staff counsel for the Wisconsin Educ. Ass'n Council, Madison, for plaintiff-appellant and plaintiff-respondent.

Earl G. Buehler, Madison, for defendant-respondent and defendant-appellant.

WILLIAM A. BABLITCH, Justice.

This is a consolidation of two cases. In case no. 82-1409, Avonelle Leissring appeals from a judgment of the circuit court for Waukesha county that Leissring is ineligible for unemployment compensation benefits in weeks 24 through 34 (summer) of 1979. In case no. 82-1913, the Labor and Industry Review Commission (LIRC) appeals from a judgment of the circuit court for Rock county that Richard Frey was eligible for unemployment compensation benefits in weeks 23 through 34 (summer) of 1981. The holdings in these cases were based on differing interpretations of sec. 108.04(17)(a), Stats. The court of appeals certified both cases, and we accepted the certifications.

The issue is whether a fulltime public school teacher who is laid off at the end of the school year and is then offered for the following year either a place on a substitute teaching list with no guaranteed wages or hours (Leissring), or a contract to teach only one hour per day for substantially reduced wages (Frey), has a "reasonable assurance that [he or she] will perform services in any such capacity" within the meaning of sec. 108.04(17)(a), Stats., so as to be ineligible for unemployment compensation benefits during the intervening summer period.

We hold that neither Leissring nor Frey had a "reasonable assurance that [he or she] will perform services in any such capacity" within the meaning of sec. 108.04(17)(a), Stats., and they are therefore not disqualified under that provision from receiving unemployment compensation benefits during the intervening summer period.

Avonelle Leissring was employed by the Hamilton School District as a fulltime elementary school teacher from January 3, 1979 to June 9, 1979. Under the terms of a contract Leissring had signed in December, 1978, she received a base salary of $8,023.05 for 105 days.

In February, 1979, the Hamilton School Board notified Leissring pursuant to sec. 118.22(3), Stats., ¹ that it was considering nonrenewal of her contract for the 1979-80 school year. On March 12, 1979, the board voted not to renew Leissring's contract. On March 13, the district informed Leissring that her contract would not be renewed because of declining enrollment, and indicated that the nonrenewal should be considered a layoff under the terms of the collective bargaining agreement in effect between the school district and the union representing Leissring.

Leissring received a letter from the district administrator on May 11, 1979, stating that she would be laid-off. The letter also indicated that although no contracted staff openings existed, "... [w]e [the school district] expect to offer you the opportunity to perform services in some instructional capacity in the fall school term." The school principal and superintendent subsequently told Leissring that her only possibility for employment in the fall would be as a substitute teacher. The record indicates that in the Hamilton School District, substitute teachers do not sign a contract but are placed on a list and called as needed. Although Leissring was notified that she would be placed on a substitute teaching list, she was not informed how often she might be called to substitute or the rate of compensation she would receive.

After June 9, 1979, Leissring's last day of work under her contract, she applied for unemployment compensation benefits. The Department of Industry, Labor and Human Relations (DILHR) initially determined that Leissring was eligible for such benefits during weeks 24 through 34 of 1979, which was the summer period. The Hamilton School Board appealed that decision to the appeal tribunal of DILHR. The appeal tribunal found that because Leissring had been placed on a substitute teaching list for the 1979-80 academic term, she had a reasonable assurance of performing services in the second academic term and was therefore ineligible for unemployment compensation benefits for weeks 24 through 34 of 1979 under sec. 108.04(17)(a), Stats. It reversed the initial eligibility determination.

Leissring appealed to LIRC, which affirmed the appeal tribunal's decision denying her benefits. Leissring sought review of LIRC's decision in the circuit court pursuant to secs. 108.09(7) and 102.23, Stats. The court affirmed the decision. Leissring appealed to the court of appeals, which certified the case to this court.

Richard Frey was employed for five years by the Juda School District as a high school teacher until June 1, 1981. During the 1980-81 academic term, Frey taught social studies and driver education, and was employed fulltime plus one extra hour per day of behind the wheel driver training. Under the terms of his 1980-81 contract, Frey received approximately $19,000 in salary plus substantial fringe benefits.

In February, 1981, Frey received preliminary notification that his contract might not be renewed for the 1981-82 academic term due to declining enrollment. Frey received a final notice of nonrenewal of his contract in March, 1981. In May, the district offered Frey a contract for a one-eighth time position teaching driver education during the 1981-82 academic term. The contract specified that he would teach for one hour per day, and would receive $2,166.25 in salary plus payment by the district of one-eighth the premium cost of his hospital, medical and dental insurance. The contract also provided for a forfeiture of $300.00 as liquidated damages if Frey breached the contract.

In order to fulfill his duties under the proposed contract, Frey would have had to travel a distance of 60 miles round trip to work the required one hour per day. Because of this factor, his dissatisfaction with the liquidated damages provision, and his desire to obtain fulltime employment, Frey did not accept the contract. After June 1, 1981, Frey's last day of work under his 1980-81 contract, he applied for unemployment compensation benefits.

DILHR made an initial determination that Frey was ineligible for benefits under sec. 108.04(17)(a), Stats., for weeks 23 through 34 of 1981. Frey appealed the decision to the appeal tribunal, which affirmed the initial determination. Frey appealed to LIRC, which affirmed the appeal tribunal's decision. Frey subsequently sought review in the circuit court, pursuant to secs. 108.09(7) and 102.23. The court reversed, holding that Frey did not have a "reasonable assurance" of a teaching position within the meaning of sec. 108.04(17)(a), and remanded to LIRC. LIRC appealed to the court of appeals, which certified the case to this court.

The issue in both cases involves the interpretation of sec. 108.04(17)(a), Stats., which is a question of law. Although the reviewing court will give weight to the interpretation of a statute by the agency charged with its application, we are not bound by that interpretation. See Nottelson v. DILHR, 94 Wis.2d 106, 115-17, 287 N.W.2d 763 (1980). We have the power in the first instance to determine whether the standard or policy choice used by the agency comports with the statutory purpose. Milwaukee Transformer Co. v. Industrial Commission, 22 Wis.2d 502, 511, 126 N.W.2d 6 (1964).

Section 108.04(17)(a), Stats. 1981-82, provides:

"EMPLOYES OF EDUCATIONAL INSTITUTIONS. (a) An employe of a nonprofit or public educational institution who performs services in an instructional, research or principal administrative capacity is ineligible for benefits based on such services for any week of unemployment which occurs during a period between 2 successive academic years or 2 regular terms, whether or not successive, if such employe performed such services in the first such academic year or term and if there is a contract or a reasonable assurance that such employe will perform services in any such capacity as an employe of a nonprofit or public educational institution in the 2nd such academic year or term."

LIRC contends that the statutory language is unambiguous, and that the statute clearly denies unemployment compensation benefits to teachers over the summer period between academic years if they have a reasonable assurance of performing any amount of services in an instructional, research or principal administrative capacity during the following year. LIRC argues that sec. 108.04(17)(a), does not require that the amount or terms of the offered employment be the same as or even substantially similar to those of the preceding year.

Leissring and Frey contend that sec. 108.04(17)(a), Stats., is ambiguous, and should be interpreted to deny benefits over an intervening summer period only if a teacher who is employed full-time during the first year is offered employment during the second year having wages, hours, and conditions that are substantially or reasonably similar to those of the preceding year. Leissring asserts that under this interpretation, the school district's offer to place her on a substitute teaching list with no guarantee that she would work any hours or receive any wages does not constitute a reasonable assurance of performing services under sec. 108.04(17)(a). Similarly, Frey contends that he did not have a reasonable assurance of performing services within sec. 108.04(17)(a) because an offer to teach only one hour per day is not similar to the terms and conditions of his prior fulltime...