Indianapolis Education Association and President Elden Wolting v. Indianapolis Public Schools

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
Jan 27 2012, 9:21 am
collateral estoppel, or the law of the
case.
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEE:
ERIC M. HYLTON HUDNALL A. PFEIFFER
JAMES B. CHAPMAN, II JON LARAMORE
Benesch Friedlander Coplan & JOHANE J. DOMERSANT
Aronoff, LLP Baker & Daniels, LLP
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
INDIANAPOLIS EDUCATION ASSOCIATION )
And PRESIDENT ELDEN WOLTING, )
)
Appellants, )
)
vs. ) No. 49A02-1101-PL-27
)
INDIANAPOLIS PUBLIC SCHOOLS, )
)
Appellee. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Theodore M. Sosin, Judge
Cause No. 49D02-0907-PL-34845
January 27, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
DARDEN, Judge
STATEMENT OF THE CASE
Indianapolis Education Association and its president, Elden Wolting, (collectively
“IEA”) appeal the trial court’s order setting aside the Indiana Education Employment
Relations Board’s (“IEERB”) decision that Indianapolis Public School (“IPS”) had
engaged in an unfair labor practice when IPS failed to collectively bargain the addition of
twenty-five instructional days to the school calendar for four IPS schools.
We dismiss this appeal as moot.
ISSUE
Whether this appeal should be dismissed as moot.
FACTS1
The relevant facts, as stipulated by the parties before the IEERB, are as follows:
1. [IEA] is a “school employee organization” as that term is
defined in Ind. Code § 20-29-2-14 and is located at 6910 North Shadeland
Avenue, Suite 100, Indianapolis, Indiana 46220.
*****
3. [IPS] is a “school employer” as that term is defined in Ind.
Code § 20-29-2-15 and is located at 120 East Walnut Street, Indianapolis,
Indiana 46204.
*****
5. IEA is the “exclusive representative” of the IPS school
employees as that term is defined in Ind. Code § 20-29-2-9.
6. Dr. Eugene White is a “supervisor” for IPS as that term is
defined in Ind. Code § 20-29-2-19 and is employed as the Superintendent
of IPS as defined in Ind. Code § 20-29-2-18.
7. Dr. Jacqueline Clency is a “supervisor” for IPS as that term is
defined in Ind. Code § 20-29-2-19 and is employed as the Assistant
Superintendent, Middle School Education for IPS.
*****
1
We heard oral argument on November 30, 2011. We commend counsel on their written advocacy and
oral presentations.
2
9. The Professional Relations Group (“PRG”) is composed of
representatives of IPS and IEA and is scheduled to meet monthly to talk
about issues and concerns of both parties. The topics on the agenda may be
referred for “meaningful” discussion. Other topics may be noted as topics
for bargaining. Other topics are for information only.
10. The School Improvement Plan/Superintendent’s Advisory
Group (“SIP/SAG”) is composed of representatives of IPS and IEA and is
scheduled to meet monthly for the purpose of “meaningful discussion” on
the topics listed in Ind. Code § 20-29-6-7.
11. In the 2006-2007 school year, John Marshall Middle School
(“Marshall”) and Emma Donnan Middle School (“Donnan”) were at Year
three of School Improvement under No Child Left Behind (“NCLB”),
meaning that they had not made Adequate Yearly Progress (“AYP”) for
four consecutive years. In addition to school choice, school improvement
planning/technical assistance, and professional development, IPS
implemented new curriculum, decreased management authority, and
appointed an outside expert.
12. In the 2006-2007 school year, Henry Wadsworth Longfellow
Middle School (“Longfellow”) was at Year six of School Improvement,
meaning that it had not made AYP for more than six consecutive years. In
addition to school choice, school improvement planning/technical
assistance, professional development, and supplemental educational
services, IPS implemented restructuring and an alternative calendar with
additional voluntary intercession days.
13. In the 2006-2007 school year, Riverside Elementary #44
(“Riverside”) was in Year four of School Improvement, meaning it had not
made AYP for five consecutive years. In addition to school choice, school
improvement planning/technical assistance, professional development, and
supplemental educational services, IPS replaced the principal, implemented
new curriculum, and appointed an outside expert.
*****
15. For the 2007-2008 school year, Marshall, Donnan,
Longfellow, and Riverside moved to the next level of school improvement.
16. At the PRG meeting on Wednesday, March 14, 2007, at
approximately 8:30 a.m., Dr. White informed IEA of the action IPS
planned to implement under NCLB at Marshall, Donnan and Longfellow
middle schools. IPS, as the local education agency, planned to place the
schools on an alternative calendar, including adding an additional 25
3
instructional days of mandatory school attendance for students and
teachers. At Riverside, IPS informed IEA that it would be implementing
restructuring, including replacing the principal and all the certified staff and
placing the school on an alternative calendar, including adding an
additional 25 instructional days of mandatory school attendance for
students and teachers; the new certified staff who chose to work at this
school would also be mandated to work the additional 25 instructional days
a year.
17. Dr. White informed IEA that, immediately after school on
Wednesday, March 14, 2007, the teachers at Marshall, Donnan, and
Longfellow would be advised of their option to stay at their school and
work the additional 25 days or be involuntarily transferred to a school on
the traditional calendar.
18. Making the transfers involuntary meant that those teachers
would have a priority for reassignment. All teachers from Marshall,
Donnan, and Longfellow who sought reassignment were reassigned to
schools on the traditional calendar.
19. Dr. Clency presented a calendar during the March 14th PRG
meeting that showed the days that the teachers at the middle schools on the
alternative calendar would be required to work and that students would be
in attendance . . . .[2]
20. On March 14, 2007, IEA delivered a letter to Dr. White
objecting to IPS’[s] implementation of Level IV sanctions under NCLB
without having meaningful discussion with IEA . . . .[3]
21. On or about March 28, 2007, and March 29, 2007, the
teachers at Donnan, Marshall, and Longfellow received a letter from
IPS’[s] Human Resources division that stated, “I understand that by
choosing to teach at [name of school] during the 2007-2008 School Year I
am obligated to work the following alternative calendar schedule . . . .”
The letter also said, “I understand that I will receive no additional paid
personal or sick days in the alternative calendar schedule,” and, “I
understand that I will not be able to utilize paid personal or sick days during
the intercessions.” . . . .[4]
2
A copy of the calendar was attached as Exhibit 2 to the parties’ Stipulation of Facts.
3
A copy of the letter from the IEA president was attached as Exhibit 3 to the parties’ Stipulation of Facts.
4
A copy of the letter from IPS was attached as Exhibit 4 to the parties’ Stipulation of Facts.
4
22. The letter delivered to the three middle schools had places for
the teachers to sign and date their agreement to the terms and said, “Please
fax this completed form to 3650 by 3/30/07.”
23. On March 29, 2007, IEA delivered a letter to Dr. White,
which stated that IPS had violated P.L. 217 by failing to bargain the
number of days a teacher must work, by failing to discuss the change to the
Alternative Calendar, and by failing to bargain concerning leave days . . .
.[5]
24. IPS and IEA had previously discussed an alternative calendar
that was in effect for five (5) schools consisting of 190 mandatory teacher
days spread over the whole calendar year with voluntary intercession days
for the teachers and students.
25. IPS did not discuss the placement of the 25 additional days on
the Alternative Calendar for Marshall, Donnan, Longfellow, and Riverside
for the 2007-08 school year. IPS also did not discuss with IEA the
replacement of all certified staff at Riverside.
26. IPS did not bargain or discuss with IEA the addition of 25
days at the four schools, or additional sick or personal leave days for
teachers who teach the additional 25 days.
27. Also, prior to issuing the March 28/29 letter to teachers, IPS
did not bargain or discuss with IEA the use of sick or personal leave days
during the intercessions.
28. Ultimately, after conversations between representatives of
IPS and IEA, IPS agreed that teachers would be allowed to use sick days
and personal days during the intercessions in compliance with the parties’
collective bargaining agreement.
29. At its action session on May 15, 2007, the Board of School
Commissioners for the City of Indianapolis unanimously approved the
Superintendent’s recommendation to extend the school year for Donnan,
Marshall, Longfellow, and Riverside for the 2007-2008 school year. . . .[6]
5
A copy of the letter from the IEA president was attached as Exhibit 6 to the parties’ Stipulation of Facts.
6
A copy of the Agenda Item was attached as Exhibit 7 to the parties’ Stipulation of Facts.
5
(App. 26-30). Additionally, IPS and IEA had a collective bargaining agreement that was
in effect for the 2005-2006 and 2006-2007 school years and continued in effect for the
2007-2008 school year until a new agreement was reached.7 The collective bargaining
agreement contained the following provisions:
ARTICLE VII
SUMMER SCHOOL, INTERSESSION AND ADULT EDUCATION
Section 1: Teachers of summer school, intersession and adult education
classes shall be issued a Supplemental Services Teachers Contract. The
teachers shall be paid at an hourly rate which is computed by dividing the
teacher’s annual base salary by the number of contract days (190 contract
days). This equals the daily rate, which divided by six (6), equals the
teacher’s hourly rate.
*****
ARTICLE IX
PROFESSIONAL COMPENSATION
*****
Section 9: In the event that a member of the certified staff is required to
work on authorized IPS programs or activities beyond the regular school
calendar, such days of work shall be compensated at his/her daily rate
unless otherwise specified in this Agreement.
*****
ARTICLE XVI
HOURS
Section 1: The regular teacher workday shall be 7.5 hours with a
duty-free lunch of at least 30 minutes between 10:00 a.m. and 2:00 p.m.
Section 2[:] Beginning with the 2002-2003 school year, all
designated service agreements will be calculated on a 6-hour day of service,
except as otherwise required by law.
(App. 67, 69, 81).
7
A copy of the collective bargaining agreement was attached as Exhibit 8 to the parties’ Stipulation of
Facts.
6
On May 7, 2007, IEA filed with IEERB a complaint, alleging, in relevant part, that
IPS’s decision to add twenty-five instructional days to the four schools’ calendars was a
mandatory subject of collective bargaining under Indiana Code section 20-29-6-48 and
that IPS had engaged in an unfair labor practice by failing to collectively bargain the
addition of those twenty-five days to the schools’ calendars.9 The parties filed cross-
motions for summary judgment and stipulated to the facts as set forth above.
On March 27, 2008, the IEERB Hearing Examiner issued a report, in which she
determined, in relevant part, that IPS had engaged in an unfair labor practice by failing to
bargain with IEA the addition of twenty-five mandatory instructional days in violation of
the mandatory collective bargaining statute, Indiana Code section 20-29-6-4.
Specifically, the Hearing Examiner concluded that because “[t]he statute require[d]
bargaining of hours[,] [r]equiring teachers to work additional hours without bargaining
[was] a classic unfair labor practice.” (App. 137). The Hearing Examiner
8
At the time IEA filed its complaint, Indiana Code section 20-29-6-4 provided:
A school employer shall bargain collectively with the exclusive representative on the
following:
(1) Salary.
(2) Wages.
(3) Hours.
(4) Salary and wage related fringe benefits, including accident, sickness, health, dental, or
other benefits under IC 20-26-5-4 that were subjects of bargaining on July 1, 2001.
This statute, along with other statutes dealing with education and teacher collective bargaining, were
amended effective July 1, 2011. See P.L. 48-2011, § 14. The amended version of the statute removes
“hours” from the subjects of mandatory collective bargaining. See Ind. Code § 20-29-6-4 (2011).
9
IEA filed an amended complaint in which it asserted five allegations of unfair labor practices against
IPS. Appellant, however, has not included a copy of the amended complaint in its Appendix.
7
“recommend[ed] that IPS be ordered to return to the status quo ante as it existed prior to
the unfair practices.” 10 (App. 147).
Thereafter, IPS filed exceptions to the Hearing Examiner’s report, and the full
IEERB held a hearing on those exceptions on April 30, 2009. On June 26, 2009, the
IEERB unanimously affirmed the Hearing Examiner’s report and adopted her findings,
conclusions, and recommended order. The IEERB’s order provides, in part:
The Board seeks to avoid the possibility that the remedies available under
P.L. 217 [Indiana Code 20-29] might have the unintended consequence of
polarizing rather than enhancing the collective bargaining and discussion
relationship between the parties. We commend the parties for how they
achieved practical solutions in the interim two years for the ultimate benefit
of the students involved. Although this matter was decided unanimously by
the Board on April 30, 2009, the Board refrained from immediately issuing
its “final order” in accordance with 560 IAC 2-3-23(d) in the hope that the
parties shall fashion their own agreement as to remedies. We hope that we
shall receive confirmation of the parties’ agreement, such as in the form of
a Joint Motion for Modification of a Final Order.
(App. 114) (footnote omitted).
On July 24, 2009, IPS filed a petition for judicial review of the IEERB’s order
only on the conclusion that IPS had engaged in an unfair labor practice by failing to
bargain the addition of the twenty-five instructional days. The parties filed cross-motions
for summary judgment on the agency record, and the trial court held a hearing on
November 10, 2010. On December 23, 2010, the trial court issued a detailed order, in
which it ultimately set aside the IEERB’s order. In determining that IPS had not
10
The Hearing Examiner also determined that IPS had engaged in four additional unfair labor practices
by: (1) failing to bargain with IEA regarding benefits related to the addition of teacher instructional days
in violation of Indiana Code section 20-29-6-4; (2) failing to discuss with IEA changes to an alternative
calendar in violation of Indiana Code section 20-29-6-7; (3) failing to discuss with IEA reassignment and
transfer of teachers in violation of Indiana Code section 20-29-6-7; and (4) bypassing IEA by unilaterally
communicating with teachers in violation of Indiana Code section 20-29-7-1.
8
committed an unfair labor practice, the trial court concluded, in part, that: (1) the parties’
collective bargaining agreement reflected that the parties had bargained over “hours” and
“show[ed] that IPS can require teachers to work additional days beyond the regular
school calendar, but, if it does so, it must pay the teachers and permit them to use leave
days as bargained and set forth in the Agreement[,]” (tr. 12); (2) the collective bargaining
statutes, (sometimes referred to as the Certified Educational Employee Bargaining Act
(“CEEBA”)),11 provided the IPS school board with authority and responsibility to
11
The trial court cited to the following statutes, which at the time of the trial court’s order, provided as
follows:
20-29-1-1 Findings and intent
(4) The relationship between school corporation employers and certificated school
employees is not comparable to the relationship between private employers and
employees for the following reasons:
*****
(C) The general assembly has delegated the discretion to carry out this changing
and innovative educational function to the governing bodies of school
corporations, composed of citizens elected or appointed under applicable law, a
delegation that these bodies may not and should not bargain away.
20-29-6-2(3) Prohibited contract provisions
“A contract may not include provisions that conflict with . . . school employer rights set forth in
IC 20-29-4-3.”
20-29-4-3 School employers; responsibilities and authority
School employers have the responsibility and authority to manage and direct on behalf of
the public the operations and activities of the school corporation to the full extent
authorized by law, including but not limited to the following:
*****
(7) Take actions necessary to carry out the mission of the public schools as provided by
law.
20-28-6-2(a) Basic contract requirements
(a) A contract entered into by a teacher and a school corporation must:
(1) be in writing;
(2) be signed by both parties; and
(3) contain the:
(A) beginning date of the school term as determined annually by the
school corporation;
9
manage and direct operation of the schools and that these statutes, along with case law,12
indicated that the instructional calendar issue—including determining the total number of
school days in the school year—was an issue that fell within that authority and could not
be bargained away; and (3) the IEERB incorrectly interpreted the term “hours” contained
in the mandatory collective bargaining statute (Indiana Code § 20-29-6-4) to include
“days” and its interpretation “rendered meaningless the exclusive management authority
provisions of CEEBA . . . –as confirmed by case law – to determine [the] school
calendar, including [the] total number of instructional days.” (App. 19). IEA now
appeals.
DECISION
Collective Bargaining Statute
The Indiana legislature authorized collective bargaining for teachers in 1973 with
the passage of Public Law 217.13 At issue in this appeal is whether IPS committed an
unfair labor practice by violating the provisions of Indiana’s collective bargaining statute.
(B) number of days in the school term as determined annually by the
school corporation;
(C) total salary to be paid to the teacher during the school year; and
(D) number of salary payments to be made to the teacher during the
school year.
(Emphasis added).
12
The trial court relied on the following cases to support its determination that a decision regarding the
school calendar, including total number and placement of instructional days was a non-negotiable,
managerial decision: Eastbrook Cmty. Sch. Corp. v. Ind. Educ. Emp’t Relations Bd., 446 N.E.2d 1007(Ind. Ct. App. 1983), reh’g denied; Union Cnty. Sch. Corp. Bd. of Trustees v. Ind. Educ. Emp’t Relations
Bd., 471 N.E.2d 1191 (Ind. Ct. App. 1984), trans. denied; Northwestern Sch. Corp. of Henry Cnty. Bd. of
School Trustees v. Ind. Educ. Emp’t Relations Bd., 529 N.E.2d 847 (Ind. Ct. App. 1988), trans. denied.
13
Originally enacted under Indiana Code sections 20-7.5-1-1 to -14, the teacher collective bargaining
statutes are currently found at Indiana Code sections 20-29-1-1 to 20-29-9-5.
10
Specifically, the issue before us is whether IPS was required—under Indiana Code
section 20-29-6-4, the mandatory collective bargaining statute—to bargain with IEA
regarding the addition of instructional days to the 2007-2008 school calendars of four IPS
schools because that bargaining statute required bargaining on the subject of “hours.” As
noted above, at the time IEA filed its complaint with the IEERB, Indiana Code section
20-29-6-4 provided:
A school employer shall bargain collectively with the exclusive
representative on the following:
(1) Salary.
(2) Wages.
(3) Hours.
(4) Salary and wage related fringe benefits, including accident, sickness,
health, dental, or other benefits under IC 20-26-5-4 that were subjects of
bargaining on July 1, 2001.
The legislature, however, recently amended Indiana Code section 20-29-6-4 and
other teacher and collective bargaining statutes during last year’s legislative session, with
an effective date of July 1, 2011. See P.L. 48-2011, § 14. These amendments were not in
effect at the time the dispute in this appeal arose but will need to be considered when
determining whether this appeal is moot.
Under the recent amendment to the mandatory collective bargaining statute, the
subject of teachers’ “hours” is no longer included as one of the subjects of mandatory
collective bargaining. See I.C. § 20-29-6-4 (2011) (limiting bargaining to salary, wages,
and related fringe benefits including insurance, retirement, and time off). Instead, the
11
subject of “hours” is now included in the list of topics that the school employer and the
teachers’ representative “shall discuss.” See I.C. § 20-29-6-7(10). Another notable
change to Indiana Code section 20-29-6-7 is that the subject of “working conditions” is
no longer included in the list of topics that are required to be discussed. 14 Lastly, a new
section to the teacher collective bargaining statutes now provides that a school employer
“may not bargain collectively” with the teachers’ representative on the subject of “[t]he
school calendar.” See I.C. § 20-29-6-4.5 (new section added that applies to contracts
entered after June 30, 2011).15
Mootness
IPS argues that this court should dismiss this case because it is moot.
The long-standing rule in Indiana has been that a case is deemed moot
when no effective relief can be rendered to the parties before the court.
A.D. v. State, 736 N.E.2d 1274, 1276 (Ind. Ct. App. 2000). When a
dispositive issue in a case has been resolved in such a way as to render it
unnecessary to decide the question involved, the case will be dismissed. Id.The existence of an actual controversy is an essential requisite to appellate
jurisdiction. Bremen Public Schools v. Varab, 496 N.E.2d 125, 126 (Ind.
Ct. App. 1986). Although we prefer not to issue advisory opinions, we may
decide an arguably moot case on its merits if it involves questions of great
public interest. A.D., 736 N.E.2d at 1276. Nevertheless, this public interest
exception may only be invoked upon the existence of three elements: the
issue concerns a question of great public importance which is likely to recur
14
Also, the “grandfather clause” previously contained in Indiana Code section 20-29-6-7 has now been
removed from that statute. The grandfather clause provided that “items included in the 1972-1973
agreements between an employer school corporation and the school employee organization continue to be
bargainable.” I.C. § 20-29-6-7(c) (2010). The grandfather clause is not at issue in this appeal.
15
Additionally, Indiana Code section 20-28-6-2, which sets forth the basic teacher contract requirements,
still provides that a “contract entered into by a teacher and a school corporation must . . . contain the . . .
number of days in the school term as determined annually by the school corporation” but now also
specifies that the contract must contain “the number of hours per day the teacher is expected to work, as
discussed pursuant to IC 20-29-6-7.”
12
in a context which will continue to evade review. Haggerty v. Bloomington
Bd. of Public Safety, 474 N.E.2d 114, 116 (Ind. Ct. App. 1985).
DeSalle v. Gentry, 818 N.E.2d 40, 48–49 (Ind. Ct. App. 2004).
In arguing that this case is moot, IPS first points to the fact that the teachers will
not be able to gain any effective relief from this appeal because they have been paid, and
it contends that this case is neither of great public importance nor is it likely to recur and
evade review given the changes to the teacher collective bargaining statutes:
The Union claims that – in 2007 – IPS should have bargained over
the number of additional days it would require certain teachers to teach at
the four schools at issue. IPS did not bargain over that issue. Instead, the
teachers taught for the additional days, and they were paid at the daily rate
required by the [parties’ collective bargaining] Agreement. Even if this
Court rules that the trial court erred, the parties cannot unbreak the eggs in
this omelet.
This appeal is moot because the case is no longer live. The teaching
has been done, and the teachers have been paid. They do not seek any back
pay or other retrospective relief. No effective relief can be rendered to the
Union or its members through this appeal. . . .
Nor is this situation capable of repetition yet evading review because
the underlying statute has now been entirely changed. Because of the
change in the underlying law, this situation cannot arise again in IPS or any
other school district. . . .
The changes in teacher bargaining law that preclude this question
from arising again were enacted as part of comprehensive education law
reform in 2011, aimed at increasing school leaders’ authority to determine
how to educate children. This new legislation completely changed the
landscape of education and teacher collective bargaining. . . .
Because teacher collective bargaining law has changed
fundamentally, this matter is not capable of repetition, and it certainly is no
longer “a matter of great public importance.” . . .
With the[] statutory changes, an appellate decision in this case will
have no effect on the parties. An appellate decision cannot affect past
conduct regarding teaching time at the four schools at issue, nor can it
affect future bargaining between IPS and the Union because the General
Assembly has removed from bargaining precisely the issues in play in this
case. This Court should dismiss the appeal as moot.
13
IPS’s Br. at 22-26 (footnote omitted).
At oral argument, IEA acknowledged that the teachers worked the extra twenty-
five days at issue and were paid for those days and that there is essentially no effective
relief to be had as a result of this appeal. Instead, IEA contends that the collective
bargaining process between a school corporation and teachers’ representatives is a matter
that falls within the public interest exception to the mootness doctrine. IEA, however,
also acknowledged during oral argument that the question before us on appeal—whether
the subject of “hours” as contained in the bargaining statute, Indiana Code section 20-29-
6-4, required IPS to bargain the addition of days to the school calendar—is not likely to
recur in this same context given the removal of “hours” from the “bargaining” section of
statute (Indiana Code section 20-29-6-4). Nevertheless, IEA seeks to have this court
interpret the meaning of “hours” in the context of its inclusion in the “discussion” section
of the collective bargaining statute (Indiana Code section 20-29-6-7). IEA contends that
the interpretation of the term “hours” (and whether school “days” fall into that definition)
is still important for future cases because the term “hours” still exists in the collective
bargaining statute under Indiana Code section 20-29-6-7 and could still be a potential
issue that may arise under what subjects are required to be discussed under that section of
the statute.
Here, it is clear that—even if we were to address the question of whether IPS was
required under Indiana Code section 20-29-6-4 to bargain the addition of instructional
days with IEA—there is no effective relief that can be rendered in this appeal.
Accordingly, this appeal is moot. See DeSalle, 818 N.E.2d at 48-49. Furthermore, we
14
conclude that the public interest exception to the mootness doctrine does not apply here
because the issue of collective bargaining requirements between IPS and IEA in this
appeal is not a question of great public importance16 and the issue presented here is not
likely to recur in a context that will continue to evade review. See id. Furthermore,
IEA’s request that we interpret the term “hours” because it may potentially be at issue in
the future under the “discussion” section of the collective bargaining statutes essentially
amounts to a request for an advisory opinion, which we will not do. See Cooper v. State,
917 N.E.2d 667, 673 (Ind. 2009) (refusing to determine an issue that was not properly
before the Indiana Supreme Court). Accordingly, we dismiss this appeal.
Dismissed.
FRIEDLANDER, J., concurs.
VAIDIK, J., concurs in result with opinion.
16
We acknowledge that the issue is of importance to the parties involved, but we fail to see how the issue
amounts to an issue that concerns the greater general public. See Annexation Ordinance F-2008-15 v.
City of Evansville, 955 N.E.2d 769, 778 (Ind. Ct. App. 2011) (refusing to apply the public interest
exception where the issue did not involve a public interest to the greater general public beyond the
parties), trans. pending.
15
IN THE
COURT OF APPEALS OF INDIANA
INDIANAPOLIS EDUCATION ASSOCIATION )
AND PRESIDENT ELDEN WOLTING, )
)
Appellants, )
)
vs. ) No. 49A02-1101-PL-27
)
INDIANAPOLIS PUBLIC SCHOOLS, )
)
Appellee. )
)
VAIDIK, Judge, concurring in result.
I respectfully disagree with my colleagues’ conclusion that the issue in this case is
“not a question of great public importance.” Slip op. at 15. Rather, I think that teacher
collective bargaining is a question of great public importance. But because I believe that
the issue is not likely to recur given the Indiana General Assembly’s 2011 overhaul of the
teacher collective bargaining statutes, I concur in result.
Generally, an issue is deemed to be moot when the case is no longer live and the
parties lack a legally cognizable interest in the outcome of its resolution or where no
16
effective relief can be rendered to the parties. Lake Cnty. Bd. of Elections & Registration
v. Copeland, 880 N.E.2d 1288, 1291 (Ind. Ct. App. 2008), reh’g denied. Nonetheless,
even if an appeal is moot and no practical remedy is available to the parties, we can
review issues under the public-interest exception, which may be invoked when the case
involves a question of great public importance that is likely to recur. Id. There must be
some measure of certainty that the question will recur, not just a possibility. 2 I.L.E. §
237 (2011).
Here, it is undisputed that no effective relief can be rendered because the teachers
worked the extra twenty-five days at issue and were paid for those days. Accordingly,
IEA urges application of the public-interest exception. Although the majority
acknowledges that the issue is of importance to the parties involved, it “fail[s] to see how
the issue amounts to an issue that concerns the greater general public.” Slip op. at 15
n.16. I disagree. Alleged violations of teacher collective bargaining statutes are clearly
against the general public interest since they are inconsistent with the statutory goal of
encouraging harmonious and cooperative relationships between school corporations and
their certified employees and have a detrimental effect on public education. Ind. Code
Ann. § 20-29-1-1(1) (West 2008); Ind. Educ. Emp’t Relations Bd. v. Mill Creek
Classroom Teachers Ass’n, 456 N.E.2d 709, 712 (Ind. 1983). Our children’s education is
paramount, and essential to this is recruiting and retaining the highest quality teachers to
educate them. Disputes between school corporations and certified teachers concerning
things such as salary, benefits, hours worked in a day, days worked in a year, and other
quality-of-life issues impact not only the entire education field but also the children. As
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we should always strive for the best educational environment possible for our children, I
believe this is an issue of great public importance.
At the time of the events in this case, Indiana Code section 20-29-6-4 provided
that “hours” was a subject of mandatory collective bargaining:
A school employer shall bargain with the exclusive representative on the
following:
(1) Salary.
(2) Wages.
(3) Hours.
(4) Salary and wage related fringe benefits . . . .
Ind. Code Ann. 20-29-6-4 (West 2008) (emphasis added). IEA points out that for over
thirty years, IEERB interpreted this statute as requiring school corporations to bargain the
number of days that a teacher must work in a school year—and not just the hours in each
work day. The legislature, however, amended this statute and others in 2011 with an
effective date of July 1, 2011. As indicated by the majority, the subject of “hours” is no
longer a subject of mandatory collective bargaining under this recent amendment. See
Ind. Code Ann. § 20-29-6-4(a) (West Supp. 2011). Rather, “hours” is listed as a subject
that a school employer and exclusive representative of the teachers “shall discuss.” Ind.
Code Ann. § 20-29-6-7(10) (West Supp. 2011).
If this were the only reference to “hours” in the statute, then I believe that we
should interpret the meaning of that term. However, it is not the only reference.
Amended Indiana Code section 20-28-6-2 cross references Indiana Code section 20-29-6-
7(10) and designates what must be included in a contract entered into by a teacher and a
school corporation, including “(E) the number of hours per day the teacher is expected to
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work, as discussed pursuant to IC 20-29-6-7.” Ind. Code Ann. § 20-28-6-2(a) (West
Supp. 2011). Consequently, the legislature has spoken; there is no ambiguity as to the
meaning of the term “hours.” Despite this issue being of great public importance, I
believe that in light of the recent amendments to the teacher collective bargaining
statutes, it is not likely to recur absent legislative change.
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