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
.2 S Y L L A B U S 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 requirem ent 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 Pub lic Employment Labor Relations Act and, therefore, are not included in the teacher bargaining unit. O P I N I O N JOHNSON , Judge An association of public

- school teachers petitioned the Bureau of Mediation Services for clarification of its collective bargaining unit. T he 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 teach ing license. We affirm. FACTS Independent School District No. 622 operates public schools with in the Twin Cities metropoli tan area
. The North St. Paul

- Maplewood

- Oakdale Education Association is the exclusive bargaining representative of certain employees of the school district , including3

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. T he school district initially required each instructor in the pre - kindergarten program to hold a teaching license
. Accordingly, t he instructors in the pre - kind ergarten 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, t he school district de cided 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]achelo r ’ 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 du ring the 2014

- 15 academic year : four in Stepping Stones and two in PreK. Five of the pre

- kindergarten instructors had teaching license s . The sixth instructor, who taught in Stepping Stones, did not have a teaching license but had a master ’ s degree in fam ily studies. I n September 2014, the association petition ed the Bureau of Mediation Services (BMS) for clarification as to whether the school district ’ s pre - kindergarten instructors are4

included in the teacher bargaining unit
. I n January 2015, a BMS hea ring officer conducted a hearing on the petition. The association called five witnesses: the d irector of e ducator l icensing for the Minnesota Department of Education ( MDE ) , two of the school district ’ s former pre

- kindergarten instructors , the association ’ s m ember

- r ights r epresentative , and a member of the staff of Education Minnesota. The school district called three witnesses: its
s upervisor of e ducation al p rograms in its t eaching and l earning d epartment , its e arly

l earning s upervisor , and its h uman - r esources d irector. 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

- r eadiness programs do not need to be staffed by licensed teachers
. See Minn. Stat. §§ 124D.13

- .135 (ECFE); 124D.15

- .16 (school readiness). I n June 2015, the BMS hearing officer issued a ten
- page order, which concluded that the school district ’ s pre - kind ergarten instructors a r e not included in the teacher bargaining unit because they are not require d to hold a teaching license
. T he association appeal s by way of a writ of certiorari. ISSUE Are the school district ’ s pre - kindergarten instructors within the teacher bargaining unit?5 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 the y are not required to hold teachi ng license s . 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 a n 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 relation ship 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 teacher s in the district. ” Minn. Stat.6

§ 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 instructor s in the s chool d istrict 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 a ssociation conten d s that t he school district ’ s pre - kindergarten instructors are required to be licensed for four reasons . A. T he 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 plain7

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
. ” L ietz , 7 18 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 requireme nts, the sch o ol 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 wor d “teachers” in section 124D.15, subdivision 3(8), means licensed teachers. T he term “ teacher ” is not defined within chapter 124D. See Minn. Stat. § 124D.01 (2014) (incorporating definitions in section 1 20A.05); Minn. Stat. § 120A.05 (2014) (defining 16 t erms 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 only8

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 1 786 (5th ed. 2011) ; see also Webster ’ s New International Dictionary 2588 (2d ed. 19 3 4) ( “ On e who teaches, or instructs ; esp., one whose occupation is to instruct; an instructor; tutor. ” ). In other words, t he 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 pa rent 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 legislatur e 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 not9

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 instructor s are not required by the school

- readiness statute s to be licensed by the b oard of t eaching 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 t he
s chool district ’ s PreK Program employs two pre

- kindergarten instructors using federal funds appropriated pursuant to a federal law commonly known as Title I
. See 2 0 U.S.C. §§ 6301

- 6578 (201 2 ) ; see also Pub. L. No. 114

- 95, 129 Stat. 1801

- 2192. The Minnesota S upreme C ourt has implicitly acknowledged that a n 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 progr am . 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 fed eral law, a state educational agency

1 We note that our interpretation of the school

- readiness statute s 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 c ourt. ” 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) )
.10

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 ‘ c ore academic subjects ’ means English, reading or lan guage arts , mathematics, science, foreign languages, civics and government, economics, arts, history, and geography. ” 34 C.F.R. § 200.5 6
. To be “ highly qualified , ” a teacher who teach es 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 distric t ’ s pre - kindergarten instructors are “ teachers teaching in core academic subjects. ” See 20 U.S.C. § 6319(a)(2). T he U nited S tates Department of Education has addressed this issue in informal guidance
. U.S. Dep’t of Educ., Serving Preschool Children Thro ugh 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 educati on 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 164.11

United States Department of Education ’ s informal guidance in its own informal guidance, which was presented to the BMS hearing officer and i s in the appellate record. 3 Minnesota is not “ a State that considers preschool to be part of public elementary education
. ” See id. I n Minnesota, school attendance is compulsory only for children between the ages of seven and seventeen , Minn. Stat. § 12 0A.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 i d. , 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 regulation s on which the federal guidance is based, and because MDE has day

- to
- day responsibility for enforcing and administering the federal regulation s , we treat the federal regul ation s as if they were MDE ’ s own regulation s . 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 r e Reichmann Land & Cattle, LLP , 876 N.W.2d 502, 506 (Minn. 2015). We believe that MDE ’ s interpretation of the federal regulations, which effectively mirr ors the federal agency ’ s own interpretation of the federal regulations, is reasonable.12

Thus, the school district ’ s pre - kindergarten inst ructors are not required by federal law to be licensed by the b oard of t eaching 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 a n employee working in a pre - kindergarten program is in cluded 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 re levant 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 license d. I t is undisputed that the school district does not formally require its pre - kindergarten instructors to hold teaching license s . T he association nonetheless contends that, notwithstanding the lack of a formal license requirement, the school district eff ectively 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, t he association relies on the testimony of two persons who were employed by the school district as pre - kindergarten13

instructors between 2 01 0 and 2 014 . Th ey testified that, based on their review of the revised position description, the school district did not change the assigned duties of the posit ion in a significant way when the school district removed the licens e require ment
. 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 scho ol 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 instructor s are not required by the school district to be licensed by the b oard of t eaching or the commissioner of ed ucation.14 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 inconsist ent 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, “ w e are not in a position to choose between public policy choices when [a statut e] 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 st ate 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 b oard of t eaching or the commissioner of educa tion. D E C I S I O N The BMS hearing officer did not err by determining that the school district ’ s pre kindergarten instructor s are not require d to be license d by the board of teaching or the commissioner of education and, thus, are not included in the te acher bargaining unit
. Affirmed.