Raines v. Independent School Dist. No. 6 of Craig County, No. 6

• Court: Supreme Court of Oklahoma
• Writing for the Court: HODGES; HARGRAVE; OPALA; KAUGER, Justice, with whom DOOLIN, Justice, and SUMMERS; Regulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts
• Citation: 1990 OK 68,796 P.2d 303
• Parties: 62 Ed. Law Rep. 724, 1990 OK 68 Louise RAINES, President of the Professional Educators Association of Ketchum; Marilyn Dixon; and the Professional Educators Association of Ketchum, an unincorporated association, Appellees, v. INDEPENDENT SCHOOL DISTRICT NO. 6 OF CRAIG COUNTY, Oklahoma; and Tommy McGlasson, Kenith McSpadden, Gary Carroll, Jerry Bogle, and Kenneth McCord, as Members of the Board of Education of Independent School Districtof Craig County, Oklahoma; and Ron Gurley, as Superintendent of Independent School Districtof Craig County, Oklahoma, Appellants.
• Decision Date: 17 July 1990
• Docket Number: No. 66036,No. 6

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796 P.2d 303 62 Ed. Law Rep. 724, 1990 OK 68 Louise RAINES, President of the Professional Educators
Association of Ketchum; Marilyn Dixon; and the
Professional Educators Association of
Ketchum, an unincorporated
association, Appellees,
v.
INDEPENDENT SCHOOL DISTRICT NO. 6 OF CRAIG COUNTY, Oklahoma;
and Tommy McGlasson, Kenith McSpadden, Gary Carroll, Jerry
Bogle, and Kenneth McCord, as Members of the Board of
Education of Independent School District No. 6 of Craig
County, Oklahoma; and Ron Gurley, as Superintendent of
Independent School District No. 6 of Craig County, Oklahoma,
Appellants. No. 66036. Supreme Court of Oklahoma. July 17, 1990.
As Corrected July 26, 1990.

Appeal From the District Court of Craig County; William J. Whistler, Trial Judge.

Trial court issued writ of mandamus compelling school district to comply with binding grievance arbitration provision in collective bargaining agreement with its teachers REVERSED.

Oklahoma Educ. Ass'n by Richard B. Wilkinson, Oklahoma City, for appellees.

Rosenstein, Fist & Ringold by J. Douglas Mann and Jerry A. Richardson, Tulsa, for appellants.

HODGES, Justice.

This appeal requires resolution of the following question: Does a binding grievance arbitration provision in a collective bargaining agreement between a school board and a teachers' organization impermissibly delegate the school board's

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authority to reprimand a teacher? We answer in the affirmative and reverse the judgment of the trial court.

Appellees in this matter are a school teacher, Marilyn Dixon, and her bargaining agent, the Professional Educators Association of Ketchum (PEAK). Appellants are the Ketchum School Board (Board), its individual members and its superintendent.

The dispute centers around a binding grievance arbitration provision in a collective bargaining agreement between the Board and its teachers. Binding arbitration is the last step in the four-stage teacher grievance procedure. In the first three stages the grievant attempts to resolve the grievance with a school administrator, the superintendent and the Board.

Dixon's grievance resulted when she was reprimanded by the school superintendent and a copy of the reprimand was placed in her personnel file. Unsatisfied with the result in the first three stages of the grievance procedure, Dixon filed a request for arbitration. The Board refused to participate in the final stage unless the arbitrator's decision would be advisory only. Dixon and PEAK obtained a writ of mandamus from the district court compelling the Board to submit to binding arbitration. The trial court rejected the argument that the arbitration provision impermissibly delegated the Board's authority.

The recent decision in Mindemann v. Independent School District No. 6, 771 P.2d 996 (Okla.1989), resolves this controversy. Mindemann recognized two major limitations on a school board's ability to include certain terms in a collective bargaining agreement. First, a school board's managerial prerogative cannot be bargained away. Id. at 1002. Second, a school board may not "negotiate a term in a collective bargaining agreement which involves the delegation of a statutory duty or the surrender of discretion vested in the board by statute." Id. at 1000. In Mindemann both limitations prevented binding arbitration of a school board's decision not to reemploy a probationary teacher and its decision to discontinue a teacher's extra-duty coaching assignment. Id. at 1001-02. Both limitations also prevent a school board from delegating its authority to reprimand a teacher.

The authority to discipline an employee lies at the heart of the managerial prerogative. To subject disciplinary decisions to binding arbitration would seriously interfere with a school board's ability to maintain adequate standards and discipline among its teachers. Management decisions would be placed in the hands of non-elected arbitrators rather than principals and superintendents who are supervised by an elected school board.

Further, under title 70, sections 6-103 through 6-103.4, the power to admonish, suspend, dismiss or not reemploy a teacher is vested in a school board or an administrator under the board's supervision. A school board's abdication of these responsibilities, by its agreement to submit these decisions to binding arbitration, is repugnant to the statutory policy implicit in those sections. See Mindemann, 771 P.2d at 1002.

The authority to discipline a teacher is nondelegable and not bargainable. The trial court erred in requiring the Board to comply with the binding arbitration provision. The decision of the trial court is REVERSED.

HARGRAVE, C.J., OPALA, V.C.J., and LAVENDER and SIMMS, JJ., concur.

DOOLIN, ALMA WILSON, KAUGER and SUMMERS, JJ., dissent.

OPALA, Vice Chief Justice, concurring.

I concur in the court's opinion and in its judgment. I write separately to counsel once again against facile safe-harbor assumptions by voicing my genuine concern over the constitutional efficacy of a promise-based arbitration clause here in contest. It appears to offend Oklahoma's constitutional prohibition against express or implied contractual waiver of benefits conferred

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by the state's fundamental law. ¹ Art. 23 § 8, Okl. Const. ² Unlike other forms of waiver known to law, the contractual waiver interdicted by this section is one in the form of a promise to surrender a state constitutional benefit that may become one's due in the course of the parties' contractual dealings. ³

A general provision in a contract that all or some differences between the parties arising under its terms are to be settled by arbitration must surely be acknowledged as the promisor's express or implied "waiver" of his/her constitutionally conferred benefit of reasonably unimpeded access to court for dispute resolution in accordance with the ordinary course of law. See Art. 2, §§ 6, 7 ⁴ and 19, ⁵ and Art. 5 § 46, Okl. Const. ⁶ All these provisions of our state's fundamental law, when construed together, unmistakably establish a "benefit" of equal treatment, under the applicable legal process, for resort to courts by all persons with litigable disputes. The other sections of our constitution--cited in the dissent as evidence of the drafters' unqualified imprimatur for arbitration as a method of dispute settling--Art. 5 § 46, ⁷ Art. 6 § 21 ⁸ and Art. 9 § 42, ⁹ --are not inconsistent with

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Art. 23 § 8's invalidation of promises to surrender one's fundamental-law benefits. Section 8 strikes not at arbitration as a lawful or desirable method of dispute resolution, but solely at enforceability of private executory (or promissory) commitments to forgo the constitutionally conferred benefit of forensic process for contract-generated disputes. ¹⁰

The terms of Art. 23 § 8 clearly do not target the validity of all acts by which forensic access is renounced nor all forms of arbitration; their sweep is confined to promise-based surrender of a constitutional benefit that may arise in the course of a party's contractual dealings. Nothing in § 8 precludes a waiver in praesenti ¹¹ or one that is effected by conduct ¹² (waiver in pais ) ¹³ or by declaration. ¹⁴ In short, Art. 23 § 8 nullifies executory (or promissory) waivers--promises to surrender any benefit conferred by our constitution. ¹⁵

To summarize my view, § 8 makes legally unenforceable promises to relinquish the benefit of conducting litigation in ordinary courts for resolution of differences that may arise in the course of the parties' contractual dealings. ¹⁶ Constitutional benefits may be waived in praesenti, by conduct or by intraforensic declaration, without offending the § 8 ambit of interdiction.

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KAUGER, Justice, with whom DOOLIN, Justice, and SUMMERS, Justice, join dissenting.

I.

INTRODUCTION

In approximately the year 972 B.C., King Solomon served as an arbitrator. In 1798, George Washington provided in his will for arbitration of any disputes over the distribution of his estate. ¹ In 1856, Scott v. Avery, All E.R. 1, 7, was decided and the House of Lords Court ruled that under common law principles it would enforce agreements to arbitrate future disputes. ² In 1907, the delegates for the Constitutional Convention provided in the Oklahoma Constitution for arbitration not once but three times in separate articles, art. 5, § 46, art. 6, § 21, and art. 9, § 42. ³

As recently as May 22, 1990, this Court blithely affirmed grievance arbitration. The City of Yukon v. International Ass'n, 792 P.2d 1176 (Okla.1990), encompasses the law as we viewed it in Voss v. City of Oklahoma City, 618 P.2d 925 (Okla.1980), and in all our previous cases. Long v. DeGeer, 753 P.2d 1327 (Okla.1987); Taylor v. Johnson, 706 P.2d 896 (Okla.1985); Garner v. City of Tulsa, 651 P.2d 1325 (Okla.1982); City of Midwest City v. Harris, 561 P.2d 1357 (Okla.1977). With this abrupt departure from our earlier precedents the Court undermines not only its settled jurisprudence, but also the expectations of thousands

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of public employees that our past decisions mean what they say.

In Mindemann v. Independent School Dist. No. 6, 771 P.2d 996 (Okla.1989), in which I concurred in result, we held that where the Legislature has provided a detailed and comprehensive statutory scheme for the dismissal of non-tenured teachers, a local school district is preempted from negotiating a more expansive set of employment rights to those teachers via grievance arbitration. Today, the majority utilizes Mindemann as a springboard to conclude that a local school district may--indeed must--repudiate a contractual agreement with its employees to submit disputes about the meaning and application of terms of a collective bargaining agreement to a neutral arbitrator. The Court reaches this result for two identified policy reasons. First, a school district cannot "bargain away" its "managerial prerogative;" and second, it may not negotiate a term in...