*1
387
room,
an informer
they had received from
in the
The criminal activities
“drug” party held at the
continuing
there was to be
even as the officers entered
apartment
room,
Caron Waterville
Peggy
coupled
re
with the information
evening,
a search warrant
obtained
ceived from the informant that LeClair was
police
premises.1
ar-
search her
When
Miss
drug
frequenter
user and
known
they
execute the search warrant
drug parties
physical
rived to
his
con
Caron’s
needles,
cap-
hypodermic
syringes,
i.e.,
dition,
found
obviously under the influence
sules,
spoons
powdery
probable
substances and
readi- drugs,
certainly gave
most
rise to
ly apparent
plain
apart-
and in
in the
view
the arrest.
cause for both the search and
ment.
time
point
The officer testified that
pockets
he
before he
searched LeClair’s
lying
men
ap-
Two
were
on a
Both
bed.
arrest, although
him he
under
formed
was
peared to have fresh needle marks on their
single
acts were done in a
transac-
two
A young girl
arms.
hovering
was
over
important
ar-
tion.
It is not
whether the
them.
her hand was a hypodermic sy-
preceded
pre-
rest
the search or the search
ringe with needle. The
appeared
two men
ceded the arrest because
were contem-
to the officers
asleep
to be either
or under poraneous.
Simpson,
Holt
experienced police officers he was under
the influence of drugs, intoxicating liquor
being ruled out since there was no odor of By CITY OF BIDDEFORD its BOARD liquor on his breath. OF EDUCATION v. pockets police also noticed his BIDDEFORD TEACHERS ASSOCIA- bulging. They thereupon gave were et TION al. warning searched “Miranda” so-called con- person. quantity his A substantial TEACHERS BIDDEFORD ASSOCIATION pockets. in his drugs traband was found v. then He was arrested. OF EDUCATION OF CITY BOARD BIDDEFORD et al. OF knew Mr. Le- testified that An officer he investigations; previous drug Clair from Supreme Judicial Court of Maine. and from April 30, the informant known from had drug that he was personal his observation frequented Miss Caron’s
user and that he reported informer
apartment where the parties held.
drug were validity not here issue.
1. The warrant
gust parties the ar- resorted to process bitration found in 965(4). section hearing on three arbitrators held provisions proposed the various con- September dispute tract which were in on *3 23, given 22 and 1971. Both sides were opportunity testimony to offer and docu- mentary present argument evidence and to Later, disputed on the issues. on Novem- 17, panel ber 1971 the arbitration issued a find- unanimous decision which it made ings disputed and determinations as to sec- parties to tions and directed the enter into agreement Sep- a (retroactive written tember which included each Sanborn, Moreshead & Rich- Schade their determinations. Sanborn, plaintiffs. ard Augusta, B. refused to enter into the The Board Locke, Campbell Chapman by & Frank G. agreement and on December
Chapman, Augusta, for defendants. complaint brought an 80B Association Superintendent against the Board and the DUFRESNE, J., and WEB- Before C. asking the Defendants be of Schools POMEROY, WEATHERBEE, BER, comply the determination ordered to ARCHIBALD, WERNICK JJ. panel enjoined of the arbitration continuing to do so. to refuse WEATHERBEE, Justice. On December 1971 the Board brought complaints complaint an 80B against These necessitate our two the As- (and sociation provisions surviving the two then first examination arbi- alleging Municipal Employees trators) Relations that the award Labor contained 9-A, rulings erroneous Law, Chap. which was of law and 26 M.R.S.A. fact and was invalidated partiality Legislature the Maine of an enacted arbitrator by prejudicial only to conduct of the complaints hearing. The direct our attention statute to teachers application The two schools. actions were consolidated for and, appeal parties’ agreement, fall of the Board of Educa- the consolidated actions were ordered re- City rep- tion of the of Biddeford and the ported complaints, to us answers Teachers As- resentatives of Biddeford stipulation “for such final decision as negotiations in an sociation entered into at- rights parties may require”. tempt profes- to effect contract for the stipulation presents study for our sional services of in the Biddeford teachers contract, contract, 1970-1971 the 1971-1972 year schools for the school 1971- the Determinations and Recommendations 1972.1 the Board and the Associa- When of the Arbitration Tribunal and agreed agreement, tion unable to reach an were fact “David Bustin W. the ar- [one procedures provided in fact-finding employed full time bitrators] section were 965(3) play called into but Maine Teachers Association with which they proved Finally, unsuccessful. in Au- the Biddeford Teachers Association is af- parties negotiating year
1. The had in. succeeded contract for the 1970-1971. policies participated advisor on be- educational shall not include filiated and hours, wages, working half of the latter association various conditions or con- arbitration;” process prior grievance times in the tract arbitration.” Secondly, the parties if unable Municipal purpose Public agree negotiation they after may jointly is stated Employees Labor Relations Law agree upon procedures. Thirdly, mediation by 26 follows: M.R.S.A. 961 as § procedures if mediation are omitted or are unsuccessful, either one or both re- public policy “It is declared to be quest fact-finding parties and the are then purpose of this is the State obligated present contending posi- chapter improvement of promote the will, fact-finding tions to the board which public employ- relationship between hearing, findings after submit its to the by providing employees ers and their *4 parties. 30-day period If a of ef- further right recognizing basis for uniform fort controversy to resolve the is unsuc- employees organi- labor public of to join party may findings cessful either make the choosing and to be zations of their own public. days Fifteen are al- more then represented in col- organizations such permit good lowed effort to further faith and condi- bargaining for terms lective controversy. to Fourth, resolve employment.”
tions of lastly, if, days they after another ten have procedure, agreed as to an arbitration Unquestionably the Board of Edu party may writing request either City public cation is a of Biddeford their differences be arbitrated in ac- shall Act, employer defined and the procedure cordance with described composed of teachers in the Association 4. subsection public among are Biddeford schools who public employees to are entitled who brief, procedure requires this each authority the benefit of the The Act. party to choose an arbitrator and the two represent the Association to the teachers as so shall name a “neutral” chosen arbitra- is not bargaining agent disput their chosen pro- shall tor. The three arbitrators then ed. subject ceed If the to hear matter. salaries, controversy pensions has been obligation The makes it Act insurance, the arbitrators shall recom- public employer bargaining agent and the mend terms of settlement which are advi- bargain collectively pro- to meet and findings sory may make of fact. only and consisting four-step procedure vides a dispute As the arbitra- to other matters jointly negotiation, (when mediation re- tors which are shall make determinations finding fact and arbitration.2 quested), parties and parties “the parties negotiate first to obligated are will or take what- agreement enter into hours, “wages, good concerning faith appropriate bemay ever other action that grievance working and contract conditions carry out effectuate exception— arbitration”-—with are determinations”. The determinations “ subject with M.R. employers to review in accordance public [T]hat C.P., but, in the absence Rule 80B but not teachers shall meet and consult upon ques- fraud, decisions the arbitrators’ respect negotiate poli- to educational tions of are paragraph, fact final.4 purpose cies for the of this public employees paragraph” prohibits intended to be this was 2. The Act separate strike, stoppage, beginning engaging slow- of a sentence. in a work blacklisting. down or Act 4.Within the areas covered require party printing that a error doubt- either is entitled We consider language participate interest arbi- here other in both less distorted is, concerning disputes phrase purpose (that “for the tration PART general I “A diffusion of the advan- tages essential to the being of education obviously represents ap- Act a fresh preservation rights and liberties proach municipal public employee labor important people; promote problems relations and enters an area as authorized, Legislature object, the yet unexplored here. In the field of edu- duty require, and it shall cation, particularly, appears to clash with provision, several towns to make suitable concepts traditional of school control and expense, support at their own for the management. result, As a members of the schools; public and maintenance of Board here—as several school boards other jurisdictions protest done— Legislature promptly The first acted if the members proposed entered into the Chap.. 117) this directive (P.L.1821 contract, as the arbitration award has or- by (sec. requiring the 1) various towns dered them to would be surren- do— money raise public maintenance dering their authority as officers to (sec. by giving schools5 and local persons who are in way responsible no responsibility school committees as to the the electorate. qualification teachers, the books to be used and the conduct of the local educa Traditionally, the control of the process.6 tional Although the nature schools has been entrusted to the local *5 changed educational units with school boards since our earliest State’s days. growth through our adopted When Constitution our was communities 29, 1819, on October Article read: years,7 VIII responsibility manage for the making employment volved in the duty it shall be the of such committee to contract) grievance (con- and inspect visit and in schools their re- cerning disputes arising employ- spective out of plantations, towns and and contract). quire ment under regulations discipline into the and thereof, proficiency and the of the scholars 5. “Sec. 1. Be it enacted the Senate and therein, and use their influence best Representatives, Legislature House of in endeavours, youth in the several assembled, every planta- That town and regularly schools; districts attend the annually expend tion shall raise and for power the said committee shall have the to support the maintenance and of schools any dismiss school master or mistress who therein, taught by to be school masters incapable, shall be found or unfit to teach duly qualified, money including a sum of any school, notwithstanding having any incorporated the income of school fund procured requisite certificates; but forty not less than cents inhabi- for each plantations the towns and shall be bound tant, computed the number to be accord- pay to such instructors for the time preceding to the next census of the employed; superin- have been tending and the representation State which the there- committee shall have apportioned: Provided, of has been That direct what school books shall in be used part, exceeding a money one third of the respective schools; meeting and at the any may, district, allotted to if officers, for the choice of town there shall determine, applied the district so agent be chosen an for each school dis- support taught by of a school a mis- trict, duty be, whose it shall to hire the tress, or when the sum so allotted to a masters, school or mistresses for their re- any year, district shall not exceed spective districts, provide thirty the neces- dollars, five the whole be ex- sary pended in and utensils the same fuel for the schools. manner.” enacted, 6. “Sec. 3. Be it further That 7.During early history there shall be state, chosen ballot of our our meeting, plan- permitted annual in each town and statutes areas within town or tation, superintending committee, composed parts school areas of two more consisting of not than less three nor more towns to form semi-autonomous school duty persons, be, than seven agents whose it shall districts and to choose school masters, mistresses, superintending examine school share with the town school proposing responsibility to teach school therein. And committees the main- for ment public of local systems educational taught12 studies be and that the school remained, has substantially unchanged, appoint physician, committees a school the local school primarily Legislature single etc.13 In 1868the made a authorities — 8— local superintending school major committees inroad into local school committee exception developments. authority of two when it created the office of The Legislature, having originally delegat Superintendent State and em Schools ed to local school responsi bodies the powered entire general that officer “to exercise a bility for the conduct public primary supervision of all the schools and secondary education, soon began taking back advise and direct the town committees portions selected authority Later, enact discharge of their duties”.14 ing specific parcels legislation this official became the Commissioner of imposed various requirements upon the and, reorganization Education under the conduct of process. local education became the Commissioner of Educa Examples of this are tion and Cultural Resources.15 still re today found He stat supervisory powers, tains somewhat now utes which create holidays,9 certain school detailed, more local sessions,10 over conduct of establish a minimum number of education. subsections require M.R.S.A. study offered,11 § hygiene 1 and health, 7.16 safety physical education pow- Although spoken in terms of we See, tenance of the schools. superintending school commit- example, Chap. ers of the R.S.1871, 16-51. §§ principles apply tees, time, di- permitted the same For a towns were to elect Districts Administrative supervisor super- rectors of School in lieu schools of a 219), (20 committees intending R.S.1871, § M.R.S.A. school committee. supervisory (20 Chap. 11, unions M.R.S.A. P.L.1897, Chap. 332, § 10. § § community required superintending and to school committees. first school com- super- M.R.S.A. 356. § mittees to choose towns to elect intendents of schools who succeeded 801. Now 20 M.R.S.A. § formerly per- *6 some administrative duties by superintending formed the school com- 10. 20 M.R.S.A. 855. § Now mittees. 473(3). period 11. Now 20 M.R.S.A. § For a brief to 1872—our —1871 appoint statutes directed the Governor to 12. 20 1011. § Now MR.S.A. county county supervisor to each public schools who “shall act as the offi- 13. Now 20 M.R.S.A. 1131. § cial advisor and constant assistant the county. 221, Chap. P.L.1868, 3(1). school officers and R.S.1871, Chap. 11, in his teachers 14. § This office §§ 75-80. 101; P.L.1971, Chap. 15. 20 by § M.R.S.A. P.L.1872, Chap. was abolished 67. P.L.1971, Special 1972, 492. Session Superintending 8.The the members of Chap. changed his title to Commis- (20 School Committee are elected officials sioner of Education and Cultural Services. 471) statutory M.R.S.A. and their du- § (20 473) supervision. 16. exercise a ties : “1. General To § include M.R.S.A. Management general supervision public “1. of all the schools. The management direct the town of the schools and the cus- schools and to advise and tody superintendents care of all committees and the ... school discharge property duties, in their administrative of their circular let- units conference, devoting personal ters and instruction; office; all his time to the duties his General course of [They [djirect textbooks. general shall] ap- taught. prescribe course of instruction and to be To 7. Studies system prove taught public uniform textbooks the studies to be private approved schools and schools They employ Superintendent purposes, for attendance and tuition re- (20 approve serving superintending school commit- Schools M.R.S.A. § charge disapprove tees, of his nomination of teach- or other officers trustees public private 161(5). They may, schools ers. 20 af- of such . § M.R.S.A. hearing, study prescribed ter notice and dismiss a teacher the course of 473(4). in all for unfitness. 20 M.R.S.A. commissioner shall be followed § legislature not for Municipal matters for the enactment Until ” Fantastic . State v. Law, local the Court. Employees Labor Relations Fair, Me. 186 A.2d responsi- all the school authorities retained public (1961). operation of bility for to the given not been schools which had decisions the few have examined We specifically Education or Commissioner of have dealt jurisdictions other The effec- Legislature.
assumed with these issues. limited, has been authority tiveness of their course, legisla- by the extent that local be- concept of collective made finances available. tive bodies municipal public and their tween officials ap- comparatively recent
employees is of present present actions country. While this pearance in the courts concerning areas of many issues various impossible concept this Many courts found award, first con we must princi- arbitrators’ accepted long to reconcile with Act in so constitutionality sider public ple are entitled that members of the boards, at requires school far as it local determined public service issues to have employees, to request teaching of the offi- according judgment best disputes aris submit re- entrusted the cials to whom have labor making of the both out of the jurisdictions In most of the sponsibilities. employment un and out of later contract has litigated it the issue been where has superintending der the contract. Can no municipal have been held that officers delegate constitutionally school committees collectively in the absence right bargain requir authority this arbitrators? authority legislation giving them so, con Legislature ing them to do can agree to bar- city officials and that when authority which stitutionally away take legislation collectively gain without traditionally exercised local officials had responsibilities re- abdicating the they are compose ad persons repose it in who posed in them the electorate.17 so, has If hoc boards of arbitration? accepted statutes appears It au delegation of there been such a valid general relating labor relations thority here ? public sector application to the uncertain “ legislature . All acts of the employees, as find that the courts presumed to be constitutional and welfare, occupy a servants ‘presumption this is great strength.’ of em- from that much different status *7 The is him burden who enterprises.18 private engaged ployees claims that the act is unconstitutional to recently of states unconstitutionality. a its number show While bar- permit collective legislation to law is enacted Whether enactment of the public not, in different forms gaining wise or and whether it is the best involving these laws sector, very cases few means to achieve the desired result are Teachers, public private Federation In Re Richfield and in schools schools all ; (1962) 21, by 682 approved 115 N.W.2d Minn. 263 the said commissioner City Upon Arkansas State purposes. v. of Fort Smith or tuition attendance 409, 38, Ark. 433 S.W.2d approval 245 No. said Council commissioner ; (1968) v. any arranged by superin- Ass’n. Teachers’ Norwalk 153 course of tending 269, Ed., A.2d any town, 83 138 Conn. committee of Board school (1951). 482 other officers of the trustees or any private school, said course shall City v. Manchester of Manchester 18. said town or the authorized course for 507, Guild, A.2d 131 N.H. ” 100 Teachers private school. . . . (1957) ; Em- Schools Public Wichita 59 Smith, ployees Union, Regents v. Local No. 513 Pack v. United Board of State (1964). 2, Workers, 194 Kan. P.2d 357 397 and Allied Local House Food (Iowa 1970) ; 1258, 110 No. 175 N.W.2d recognized was, Court that there last resort The even have reached courts of then, important an trend governmental current toward judicial concern over loss of power delegation of to administrative bod- disappeared. has When responsibility not statute, ies, said: but provided collective is said to have public officials cannot be delegation power “If the is to make legis- responsibility- abdicated ultimate —the law, which a discretion of involves them—but away lature has taken it be, power is what the law shall then the power legislature delegate nondelegable. authority If the conferred is- private persons determine discretion to is the or discretion to execute is essentially governmental sues which are already and circum- law determined free from doubt. not scribed, delegation unobjec- is then As- Pennsylvania In 1947 the General opinion, tionable. are of the We legislation which estab- sembly enacted therefore, makes that if of 1947 the Act procedure under which grievance lished conciliators findings panel disputes should employer-employee city far as the in so which, board be submitted to mediation municipal con- creation of ordinances findings and hearing, would make after cerned, of the Act portion then public officials. recommendations local so states is unconstitutional a dis- heard a mediation board Such proceeding.” in this cannot be enforced rec- and then pute firefighters Erie for the Firefighters v. Gard- Erie Local No. 293 enact an or- City Council ommended 395, ner, supra at at 695. 178A.2d plan which creating pension dinance had one of Wisconsin State re- interest found the mediators municipal laws comprehensive labor first quired. Rhinelander the nation Local Firefighters In Erie Local No. 293 v. Rhinelander, 35 City Employee’s City v. Gardner, 406 Pa. A.2d fre- 151 N.W.2d Wis.2d firefighters brought had mandamus to ju- representing modern cited quently compel City Council take this action. Their problem. as to this attitude dicial The Court chose to face the constitutional enter municipalities to authorized statute issue “assuming” did re- that the statute representatives into contracts with labor quire the City Council to take the action did but permitted The statute employees. the mediators recommended. The Court agree- require cities make that, construed, held as so was the statute arbitration. grievances to to submit ments unconstitutional delegation of non-labor held in a had earlier (Wisconsin discretion to the mediators. may submit bind- city that a dispute case arising out con- claims ing arbitration An article in Pennsylvania Constitu- tract.19) tion contained this language: “ City entered a labor contract into Assembly ‘The General shall not del- grievances to ar- agreed to submit
egate any special commission, private *8 it arbitrate association, Later refused to corporation bitration. any or to make, do so contending required to supervise any be or interfere with infringement an unlawful municipal improvement, would be money, property effects, legislative power City. the The the of or whether in trust or oth- held erwise, levy perform any City, having agreed Court held that or to or taxes ” arbitrate, carry out now forced to municipal could be function whatever.’ Erie however, necessary, is Firefighters Gardner, agreement. It Local 293 v. its No. opinion to appreciation of supra 395, at 178 at the Court’s A.2d 695. 361, Lloyd Wright Foundation, (1963). City 19. of v. 20 122 400 Madison Frank Wis.2d N.W.2d
395
which,
added,
by law,
performing a function
distinguishing
note that
between
be
it
is,
responsibility
is
the council.”
(that
disputes
interests arbitration
121,
Washington
supra at
making
Johnson,
v.
contract)
volved in the
of the labor
arising
at
grievance
(disputes
arbitration
P.2d
employment
out of
under a
contract
The
of a
absence
state statute authoriz-
already
made):
has
been
ing binding
appear
did not
arbitration
city
arguments
of its
“Yet
all
reasoning in
control the Court’s
Johnson
talking
arbitration in
collective
about
expressed
and the same
in Fel-
rationale is
to set
bargaining context—arbitration
LaTronica,
300,
lows
377 P.2d
v.
151 Colo.
bargaining
terms of
collective
where
(1962)
Court
Colorado
case,
agreement.
is not this
Such
rule”
found that another “home
charter
griev-
resolve a
involves
city
amendment which authorized
officials
arising
existing agreement
under an
ance
municipal
disputes
to submit
labor
to bind-
city is a
Local
party.”
to which the
ing arbitration constituted an unconstitu-
v.
1226,
City Employee’s
Rhinelander
delegation
authority.
tional
Rhinelander,
220,
City
supra
8,
N.W.2d at 36.
City
School District No.
Joint
Madison v. Wisconsin Employment Rela-
acceptance
any
While the
collective
Board,
tions
37 Wis.2d
155 N.W.2d
municipal employment
af-
80-81
Court examined the lan-
fairs doubtless dilutes the absolute discre- guage
pro-
of Wisconsin statute which
formerly
tion which
officials had
“municipal employees
vided that
shall
enjoyed,
acutely present-
the issue becomes
‘
right
represented
provide,
ed
or
as an
when statutes
charters
organizations
labor
of their own choice
step,
right
party
ultimate
of either
to in conferences and in
with their
negotiations
have issues settled
arbitration which is municipal
representa-
employers or their
binding upon municipality.
questions
hours,
wages,
tives on
”
employment.’
conditions
The Court
Washington
Johnson,
State of
v.
in using
language
leg-
decided that
this
Wash.2d
Court v. board of arbi of Warwick Warwick state Association, Regular R.I. tration whose decision was to Firemen’s 106 be final 109, Tremblay binding. 256 A.2d (R.I.1969). 206 The Court v. Berlin Police Un ion, upheld principles legislature’s 416, (1968), the the 237 108 N.H. A.2d 668 power delegation delega arbi- as an propriety to was attacked unlawful municipal this language: authority. trators in tion of The New Hampshire said : Court concur in the conclusion of the “We justice preroga- trial is the that it within matter, it “If that were the end the administra- legislature tive of the to vest But, present question. a would serious boards or bodies or tive officers noted, as previously clause [of portion legislative pow- some with specifically was amended contract] necessary give er where such action is ‘shall sub- provide comply that it and be operative legis- the antecedent effect to This ordinate to N.H. Law’. State opinion lation. We that when are subjects grievance amendment legislature, in an exercise of its law- procedure arbitration to Laws making authority, a enacts statute arbitration 275:5 as well as state pub- purpose to the of which is to secure 273:12-27) contains (RSA which statute benefit, may right delegate lic some provision may give a no- party that appropriate agency an or officer some by the ar- writing tice not to be bound in power in legislative residuals of its order Berlin Tremblay decision.” v. bitrator’s permit agent to accom- the selected Union, supra at A.2d 237 Police origi- plish contemplated in the the ends 672. course, legislation. this is not to nal Of also contained the Union’s contract may its say legislature abdicate acceptance police fact de- that the legislate. purposes duty to Where operate budget as partment with its must enactment antecedent nothing in city set council and through accomplished the em- be best con- paragraph shall be the arbitration stead, in ployment acting its agent of an applicable strued so as to conflict with delegate legislature may to that The Court concluded state laws. its portion agent a sufficient delegation of an contract was not unlawful operative.” enable it to the statute make police authority to control city’s Regular City v. of Warwick Warwick opinion explained, the department.20 Thus Association, supra at 208-209. Firemen’s legislation approval of only an constitutes Following passage 1955 of New for municipalities contract permitting municipali- Hampshire permitting statute non-binding grievance arbitration “recognize employees ties to unions binding. necessarily not collective enter into make legal precedent, City there a little with such unions” While contracts subject on seem with the lo- some the writers a contract Berlin entered into police. is more city problem delegation A feel representing the that the cal union them- griev- easily if the provided for satisfied arbitrators section the contract re- impartial arbitrator It will be selves officials.21 ance arbitration Ass’n v. lamí Professional Fighters Legislature Fighters’ Fire 20. a Fire enacted Our Me., City (26 Rockland, A.2d 418 §§ Arbitration Law M.R.S.A. 980-992) provided constitution- the issue of its arbi- but grievance. ality tration, It raised. both interests was simultaneously repealed en- was Structuring Winter, Wellington Col- & under 21. of the Act now considera- actment Employment, Bargaining Chap. 424, P.L.1969, Public This § tion. lective ; interpret in 68 Comment was 79 Tale L.J. Court called (1969). For exam- features of the law Itock- Mich.L.Rev. *10 authorization, has which constitutional authorizes our statute that own membered de- that upheld. consider pri- finally been We who are appointment of arbitrators the in essential involving responsi- cisions arbitration any way and not in citizens vate private such industries in the sector decisions public although their the ble to us little hospitals public give utilities cost quantity, quality and affect might the problem. assistance as to public service. essential us, precedent guide With scant solid to statute, earlier dis- Rhode Island The find we return to our own situation. We cussed, delegation of authori- a authorized gave Legislature that our the such our Constitution of arbitrators a board ty to responsibility full matter subject over chosen arbitrator to be own—one public and em- two to se- schools education and those city, union one powered all are to be it to make reasonable laws third —whose decisions lect the City of reference to for the schools education was binding. It contended people “benefit of this state”. Regular Firemen’s Warwick v. Warwick Opinions Association, supra, Justices, contem- the statute Me. that delegation (1876). Except for the areas where the plated an unconstitutional Legislature private individu- time authority to has from to time seen fit governmental delegation impose except to requirements to its found own but the Court als however, reasoning, given employing authority later to the Com- proper, be Education, tautological. appears responsibilities missioner be pro- since the statute for operating that re- considered schools have Court as arbitrator person chosen mained in the local school vided that the boards. sovereign power portion receives has take Legislature now decided to be- necessarily state, person that from the boards au- school the ultimate perform- ishe public officer while comes thority they have exercised in areas certain duties. these is, management as to school —that then, appears, “hours, It most of the that cases working and con- conditions” holding agreements that submit grievance give tract arbitration —and to employee labor disputes to arbitra- to ad boards of arbitration.22 hoc attempts delegate tion are invalid offi- responsibility
cial
come from states that
beyond
that
question
It
is settled
legislation authorizing
agree-
had no
Legislature may
that
properly
conclude
hand,
ments. On the other
serious concern
purposes
legislation may
of its
best
problem apparent
over the
in all the de-
may
through agents
carried out
and that it
spoken
cisions and several of those often
pow
delegate
portion
its
agents
position urged
of as favorable to the
here
legis
functioning
er to facilitate the
holdings
the Association limit their
Barrows,
McGary
program.
lative
v.
grievance arbitration of contracts which
McKenney
(1960);
Me.
ties areas of can be doubt but that both There Legislature, is the mu- grievance, specific source of all interest and without ple, only recommend terms of settlement allows submission a Nebraska statute salaries, pensions public' disputes labor to a Court of controversies over Nebraska Public school boards’ Industrial Relations. insurance comply 19G5, Chap. the arbitrators’ awards Laws 390. subject binding arbi- matters existing other statu- will tration is limited It be remembered that school required only tory consult of the Com- and orders boards are as to enactments policy, Education. missioner of educational arbitrators *11 398
nicipal authority (Squires Inhabitants sought v. eluded that the benefits City Augusta, 155 Me. A.2d 80 statute can never be if an achieved (1959), power has impasse also the very beginning to take back occurs at the municipal portions relationship. officers au- This conclusion is not thority it has given earlier them. unreasonable. True, contemplate does statute Legislature It is clear that the recog- has delegation authority ad- nized that the maintenance aof satisfacto- agencies ministrative boards or but instead ry quality requires education har- gives panels it to ad hoc whose member- monious relations between school officials ships by govern- are not to be controlled teaching disagree- staffs and that opinion mental action. Here we are of the inevitably ments during arise the carrying Legislature, that mindful of denial out respective responsibilities. municipal employees of such economic The abrasive effect of the existence un- weapons stoppages as strikes and work grievances resolved is one of the threats to private employees which are available to harmonious relations Legislature which the employment, sought has the dis- avoid considers should be removed. ruptive feelings of resentment bitter- recognized The lawmakers pol- governmental ness result if icy making decisions should remain in the employee may only government look to the officials,
local
responsible
public,
to the
grievances.
redress of his
and that while the
may properly
citizens
dispute
Where the ultimate arbiter
subjected to moral suasion as to such mat-
representative
is a
of one side of the dis
wages
ters as
pensions,
the ultimate
pute, adverse decisions will be hard to ac
determination of such matters with such
cept
tendency
and the
toward alienation
heavy impact upon
by—
so limited
—and
strong.23
will be
municipal appropriations should be made
by local officials.
consider that
is a
rea-
We
there
rational
Legislature’s
son for the
that its
decision
Legislature
apparently
The
has
conclud-
purposes
if the
would be best effectuated
ed,
hand,
experience
on the other
has
parties
arbi-
are left to choose their own
taught
aspects
dynamic
that certain
of this
non-policy areas
trators
in the limited
complicated municipal employer-em-
subject
which are
to arbitration.
ployee relationship
longer
no
need remain
subject
employ-
arbitrary
decision
PART II
working
er and that in the area of
condi-
grievances
tions and hours
contract
and of
Legisla
we consider that the
While
employees
the interests
must in fair-
permit pri
may justifiably choose to
ture
impartial persons.
ness be examined
por
the limited
vate citizens
exercise
Legislature appears
to believe that this
it concerns
sovereign power (as
tions of its
disrup-
much can be done without serious
relations) which
labor
teacher-school board
balancing
operating
tion of the
costs
discussed, it is well estab
just
we have
municipal
against
appropriations.
legislative body cannot dele
lished that a
includ
providing
gate
legislative
We realize that
without
making process
contract
itself
af-
sufficient
(as
delegating
in the
statute
working
hours)
fects
in the exer
guide
agents
conditions
sub-
standards to
arbitration,
Legislature
authority.
v.
ject
our
cise of the
Small
by many
Registration
has moved
and Exami
into an area forbidden
Maine Board of
Me.,
Legislature
Optometry,
courts.
293 A.2d
must have con- nation in
Employment,
Disputes
Ringer, Legality
Propri-
in Public
James M.
Minor
ety
(1968).
Agreements
Major
to Arbitrate
54 Cornell L.Rev.
thus,
is,
greater
even
There
Corp. v. Board
Hotel
(1972); Waterville
there
than
specific standards
Me.,
need of
A.2d 50
Zoning- Appeals,
*12
ad-
a continuous
in the case of
would be
155 Me.
Justices,
the
Opinion of
(1968);
might gather
170,
body which
ministrative
30, 48,
Local
(1959);
they can totality be found in the legislative body give the arbitrators un- Act. discretionary power. controlled
We, agree hand, “primary on the We do not that other consider principle” that the standard” “intelligible constitutional is or unavoidably issue presented some of the federal cases have found question now. The suf whether there can ficient their situations necessarily be found in would the Act sufficient satisfy our own constitutional specific demand for generalized, explicit standards — However, standards in implicit- this case. protect we do the teachers and the —-to not believe that “primary even the stand possible arbitrary from and irre “intelligible principle” ard” or sponsible of which delegated exercise of this power States, supra Lichter v. United and Mr. by these ad hoc boards of arbitration. We opinion speak Wernick’s arrive at the conclusion that no such stand Justice —can totality legislative found here from the ards can be found. expression aspects in the several which are do not We concede that the fact that the opinion discussed in his and on which we Act has its primary effect the inter- respect wish to comment with full to the governmental nal employer-employee rela- points disagreeing our view of coll tionship makes the need for standards eagues.27 easily more satisfied. Neither do we find opinion As Mr. indi- Wernick’s Justice procedural in the safeguards Act or ade- cates, jurisdictions in some it has been quate techniques review which could make found policy that an Act’s statement the need for easily standards more satis- guidance furnishes sufficient assure fied. has individuals to whom delegated been un- are not free exercise recognize We that in an area such as la- authority according legislative restricted bor arbitration great variety where a is- Hospital their own discretions. Fairview expected sues presented to be Building Ass’n. v. Public and Hos- Service essential, where flexibility considerable pital Employees and Institutional Union it is not reasonable to that the ar- require Local 241 No. 64 N.W.2d Minn. options bitrators’ evaluations and be re- (1954). purpose 16 This stated is to Act’s rigidly. stricted promote improvement relationship in the “It necessary Congress sup- is not public employer employee between the ply specif- administrative officials with a by providing adequate for the machinery ic formula guidance employers representatives in a field of the em- Law, Note, (1972). Maine’s Public Labor Maine L.Rev. The arbitrators the need for standards. their disa- ployees to use in settlement of issues aspira- still left to act these Legislature’s It is the greements. unlimited undirected and discretion. availability and use of tion that the machinery will collective new agree cannot with Mr. Wer- We Justice employer-em- in a more harmonious result the Act’s exclusion of opinion nick’s can relationship purpose ployee but this policies consideration educational crite- meaningful as a hardly be considered negotiators, fact finders and arbitrators— determination, is- rion for the arbitrators’ authority as limiting the arbitrators’ or its issue, subject mat- of the individual sue salaries, pensions and to rec- insurance ters before them. finding fact ommendations and —constitute Board, Licensing City of In Kovak v. purpose an indication of Waterville, A.2d 554 157 Me. guide a criteria to can be considered be constitu- (1961) we ourselves found to in areas in their determinations arbitrators a statute which authorized munici- tional portions. cannot the excluded We outside pal licensing board to revoke victualer’s educa- The exclusion of construe it. so that the licen- license when it is “satisfied salaries, pensions and insur- policies, tional *14 is unfit to hold the license”. The see only defines binding arbitration ance from adequate found that the need for Court the ar- the area in which of the boundaries deter- guide criteria to in such Board binding effect—to may act with bitrators although in section absent working conditions and wit, of the area minations— which authorized revocation—was found in indicating the factors hours—without separate but related sections of the several entering as into should consider arbitrators chapter spe- certain same which mandated concerning working condi- their decisions part good cific on the of victu- conduct tions and hours. any are such aled. We unable discern considered Mr. Wer- We Justice legislation supplies related here which para- the last opinion’s reference to nick’s Court need for standards which the Kovak 965(1) reads: graph in section recognized required. to be any pay wages, rates “Whenever agree Legislature that the We contem- appropriation requiring other matter plated private that these individuals included municipality are money by any authority it given whom has over the bargaining con- matter of collective as a functioning public act education would is the chapter, this pursuant to ducted fairly reasonably. Unquestionably, agent bargaining obligation of expectation implicit every similar is request notice serve written delegates power adminis- statute which em- public on the bargaining collective unspoken trative bodies. The demand for con- days before ployer least 120 is, course, integrity a standard for the operating current fiscal clusion conduct, but it does not arbitrators’ furnish budget.” guide the crucial criteria to the arbitrators given factors should be consid- as to what in their examination of the issues requir-
eration as this paragraph construe’ We presented to them. a future timely whenever caveat parties
bargaining agreement by the or a may ne- While award the arbitrators we share disagreeing our col- appro- leagues’ expectations cessitate an increased or additional when the is- priation may antic- municipality so that the they sues reach the arbitrators will have ipate municipal budget. The preliminary it in the next sharply delineated been language being short of a directive to procedures of collective falls —a they give consid- the arbitrators that are to probable efficiency contribution to the municipality’s ability to the to meet process cannot obviate eration the arbitration —this the cost award in its other view of This Act—unlike those some other obligations responsibilities. provide states—does the arbitra- tors’ award is subject to be to existing apparent itWhile is that the draftsmen statutory restrictions the educational leg- care Act took to omit field, existing appropriations or future many given islation elements which have proper or to orders of the Commissioner of concern, greatest other we courts Although Education. in this decisions area consider Act that the absence from the disputes impacts upon can have serious any guide standards to and limit arbi- general, quality interest in ap- trators invalidates the Act as far its a municipality’s ability education and plicability arbitration of labor responsibilities, meet its other serious disputes is school area con- are completely ig- arbitrators left free to cerned. nore these use factors and to whatever cri- teria choose for their final determina- many There bill features of the tions. appear cumulative effect of which to us es- Although provision made for review pecially to demand that Legislature Superior questions law, Court on clude which will effectuate standards panels’ the arbitration determinations as to carrying purposes. out Act dis- of its final, questions of fact are in the absence tinguishes between the arbitrators’ authori- requirement of fraud. There is no ty disputes poli- involving educational fact, findings the arbitrators make even cy working con- those concerned with to matters which their determinations policy ditions but neither educational nor seriously are final and binding, which lim- working conditions defined Act. *15 ability appeal its the on courts Also, provides Act the arbitrators protect against unbridled discretion. likely dealing no criteria for with the situ- may single ations decision bear where a Finally, the arbitrators —like those dis- importance upon edu- with substantial both by cussed Chief in Vanderbilt Justice policies working cational and conditions. Telephone Traffic Workers’ Federation of public are The arbitrators not officials and Jersey putting opera- New be into —would required elector- are answer to the pattern tion a of social conduct which is representatives ate or to the elected entirely new to us. They completely free to electorate. suggest do not all of ele- We that these their application determine issues profitably ments can the sub- must—or —be political, social or economic theories. own Rather, specific ject say we standards. They permanent not members of a will be total, that, they emphasize the need for in panel be case but will chosen on a spe- has standards here. The Constitution against case basis militates an accu- Legislature reposed in full re- cifically develop- experience and mulation their sponsibility conduct of over the specifies ment of standards. The Act school education for “benefit of the the third shall be “neutral” and arbitrator people Legislature this state” strongly suggests legislative intention responsibility delegate has chosen to a final par- that the two arbitrators chosen important in hours and work- area of advocates, partisan following ties may so, however, It has conditions. done practice any clear as to what prevailing in in without indication labor arbitration consider in the arbitrators must factors private sector. Thus discretion making these final decisions. fact, being delegated may, reposed in in private one not even individual who attempt Legislature’s that the holdWe delegate be a resident of the to arbitrators determina- State. Opinions Justices, supra. (1876), Me. 582 appropri- parties might necessary make teachers and disputes between tion of labor for lack of ate. public employers is void their adequate standards. WERNICK, part in (Agreeing Justice opinion disagreeing part in with the provisions satisfied areWe WEATHERBEE, J.). sev- concerning arbitration are
of the Act the stat- the remainder erable from in I concur in the conclusions reached infirmity we find no constitutional ute and opinion Part of Mr. One of Justice upon teachers imposing Legislature’s in the Weatherbee. obli- employers the other their however, disagree, I with Part Two bargaining found gations of collective statutory provisions its conclusion the Act.29 arbitration must be nullified powers delegation unconstitutional divided being equally The Court My opinion is that nature. constitutionality, but question of on the legislature constitutionally has utilized Ar agreement that the being unanimous arbitration, judicial interference with statutory jurisdic exceeded bitrators legislative program is unwarranted. “Class as to determination in their tion Working size”, a Teacher’s “Length of delegation legisla- “Unconstitutional Length of “Scheduling and Day” and powers” given that in a tive connotes the Commence and of Vacations School legislature has transferred a stance the Year”, cases are ment of School portion legislative power its to another Superior Court remanded to ordered body principles derived contravention for action: vesting separation from constitutional polar categories sovereign of the three 2688-71, City of No. 1) In Docket power: legislative, judicial executive. v. of Education its Board Biddeford Association, als., the et fifty Biddeford Teachers “uncon- years For one hundred panel of No- has delegation” decision of stitutional doctrine been by strik- to be modified developed largely 1971is relation to the sover- vember *16 concern- determinations “police power” external- ing eign’s therefrom exercise of size”, a Teacher’s “Length private personal of ly regulate “Class to control “Scheduling and Day” rights. Working property of Vacations and Length of School ap- sovereignty instant statute In the Year”. of the School Commencement Here, its con- pears in a different role. fundamentally inward cerns are directed modification, Superior After such arising problems gov- meet internal should enter Court “employer” of functioning ernmental as providing “employees” in the “business” of affirming the decision of Judgment public. essential services to the panel, as modified. judi- is a of 2690-71, paucity In domain there Biddeford Docket In No. authority “delegation” questions. cial on Educa- of v. Board Teachers Association Biddeford, als., the decision of the instant case thus the Since City et of the tion pioneering, anal- large entails a measure of remanded, entry of case, is to await principles Thereafter, ysis should not assume that 2688-71. judgment in case No. “police “delegation” relative to formulated proceed in such Superior Court shall automatically power” problems applica- subsequent conduct as the manner validity opinion par- Act as to the holding confined to the Our employees. applied to other under teachers ticular situation any suggest not intend to do Act. We all, ble at scope, with full present only “facts were being found” or “de- Inquiry probe issues. should deeply in”, to as- tails being filled they had been sus- whether, sess which, and the extent taining, with increasing frequency, expan- “delegation” principles affecting the exer- grants power sive unquestionably “legis- cise of police powers government lative” in character. should transposed separate into the It apparent became that fiction must be realm sovereignty’s “employ- internal discarded to avoid confusion and A error. er-employee” relationships rendering in the approach new was necessary public services, essential both a gen- century twentieth needs could be met real- eral matter specifically and as crystallized istically yet consistently preserva- but with particular statutory program now tion of spirit the essential of the constitu- scrutiny.
under tional vesting separation polar categories power. of sovereign
I
Interestingly, in the mid-nineteenth cen-
Before American life had been substan-
tury
Court,
remarkably pro-
State
tially
political,
affected
social and
phetic insight,
provided
had
the root con-
complexities
economic
of the industrial
cept
undertaking.
for such
People
v.
revolution, the
vesting
constitutional
Reynolds,
10 Ill.
Illinois Court
“law-making” power
sovereignty
in a
had observed:
specific body, designated
“legislature”,
“
was
reflect,
conceived to
literally,
dog-
.
.
few
insist,
will be found to
ma of
Locke:
John
do,
legislature may
whatever the
it
do,
shall
go
or else it shall
undone.
Legislature
“The
neither must nor can
it
still authorize others to
power
transfer
making
laws to
things
those
it might properly,
do
else,
anybody
pass
it but where the
yet
understandingly
can not
or advanta-
people have.”
geously
do itself. Without this
Soon,
burgeoning
exigen-
needs and
legislation
oppressive,
would become
cies of
part
the latter
of the nineteenth
. but in
imbecile.
century caused enormous extension of the
doing
legislature]
this it
does
[the
scope
governmental
police power regula-
any
original pow-
divest itself of
of its
tion and necessitated that broad discretion-
possesses
authority
It
ers.
still
all the
ary authority
granted-
to bodies other
(pp.
ever
and 21)
had.”
legislature.
than the
In the face of this
later,
Seventy years
message,
more
development, adherence to
dog-
the Locke
heard,
frequently
amplified
was
—and
which,
first,
ma created a dilemma
another State Court.
In State v. Whit-
courts sought to
by giving lip-serv-
resolve
*17
man,
472,
(1928)
196
220
929
Wis.
N.W.
dogma
ice to
escaping
practi-
the
while
its
perceived
(1)
the Wisconsin Court
that
ne-
cal strictures with the
that
rationalization
cessity
required “delegation”,
had
and
delegate
to
body only
power
to another
a
“cross-delegation”,
powers
gov-
of
to “fill in details” or “find facts” is not
ernment;
courts,
(2)
accomplish
it the
really
“legislative” power.
to transfer
Il-
another”,
pretext
up-
“one
had been
approach
lustrative of this earlier
are cases
holding
delegations
legislative
extensive
of
such as
Appeal,
(1873);
Locke’s
491
72 Pa.
power;
(3) avoidance of “confusion and
Clark,
649,
495,
Field v.
143
12
U.S.
S.Ct.
error”,
“logical
symmetrical
and a
de-
Maine,
36
(1892);
L.Ed. 294
and in
State
velopment”
law,
of administrative
demand-
Butler,
91,
v.
105
(1909).
Me.
405
“primary
a
standard”
appro-
pie’s delegate, of
delegation under
permissible of
ally
delegate.
legislature’s
confine the
against abuse—
priate limitations to check
legisla-
is the
potent
most
of which
the
devel-
States
Hampton & Co. v. United
power
revise or with-
ture’s retention
principle:
the full-blown
oped this into
prospec-
power
if
granted;
(4)
draw the
lay
by legisla-
Congress
“If
shall
down
used as
legislative “standard” is to be
tive
principle
intelligible
tive
to which
act
authori-
administrative
a device to confine
person
body
authorized to
the
subject-matter
regulation will
ty, the
under
conform,
directed
generalized
only a
"[act]
often allow feasible
not a
legislative action is
“standard”;
need
(5)
“standard”
the
forbidden
(276
legislative power.”
delegation of
implicit
be
expressly
not be
stated but
409,
p.
p. 352) (emphasis
48
U.S.
S.Ct.
statutory
in the overall
context.1
supplied)
development
its rationale
In the
Thus,
Hampton
in
&
rec-
the Court
Co.
upon a course
substantially
relied
Whitman
ognized
the transfer of
simultaneously
being chartered almost
not,
Such,
power
produce
constitu-
will
Supreme
in
States
Court
United
infirmity;
it
tional
is rather
manner
States, 276
Hampton
v. United
U.S.
& Co.
places
it
transfer —whether
unbridled
348,
394,
48
Subsequent evaluations in the upon adequate limitations the exercise general saw the of “stand- Courts most 105, power arbitrary (p. 133); 67 ards” S.Ct. relied to sustain the constitu- approval these (2) judicial accorded tionality large delegations “necessity”, standards reflected a im- power. broad As shown Yakus v. United posed by complex States, 414, 660, economic and social U.S. 64 S.Ct. 88 L.Ed. 321 problems, which Light 834 and American Power & (1944) Company Exchange v. Com- Securities “ . . . fixes ... it [that] 90, mission, 133,91 329 U.S. 67 S.Ct. L.Ed. constitutionally . . . suffi- becomes (1946), the focus was whether Congress clearly cient if delineates the legislature imposed, explicitly or had general policy, . agency . . implicitly, a “in- check on absolutism it, apply which is to and the boundaries telligible principle” by delegated delegated authority” (p. of this power p. 142) S.Ct. “is . canalized within banks protection private rights —the being that keep overflowing.” it from Cardo- left, primarily, to judicial review zo, concurring, Poultry in J., Schechter Corp. States, 495, 551, v. United 295 U.S. in application policy “to test the 837, 852,
55 S.Ct.
or (329 and to what extent” p. 104, p. 142), U.S. 67 S.Ct. a similar trend was In the state courts discernible, notwithstanding that plainly Supreme Court of the United States prone than state tended to be more courts answered other contexts delegations nullify federal “standards” broad and indefinite as —often revealing strange inconsistencies interest,” internal “public “just and reasonable given rates,” body within a of decisions.3 competition” “unfair methods or prevention ing emphasis upon special whereby governed. discretion must be arbitrary as, capricious deny lacking I such a standard is action — right example, licensing controls over the . when the act with all its rea- living profes- person implications earn a of a sonable is considered as a (in sion, (p. 434, p. 25.4) trade or business which one’s whole.” 55 S.Ct. peers Reiterating permissibility often sit on the administrative the clear licensing, finding having implicit, tribunal or revoca- standards Justice Car- tion, power opinion giving prevailing dozo likeli- said: “The rise to con- —thus friendship cedes that a standard hood of the influence of will be as effective imported self-interest) ; involving if zon- ... im- or situations reasonable plication authority put appeals many as if and their there so boards (p. 435, p. 254) (and exceptions words.” 55 S.Ct. to decide or variances potential for favoritism which inheres the partial explanation might 3. A be that resulting in- from the and discrimination subject-matter specific which most fre- pressure groups small fluence of other quently comes before state tribunals aspects unique politics). of local These overlay unique volves an of additional and special danger create of invidious features problems entirely answerable use conception in the exercise of discrimination the “standards” as the sole —(cid:127) “delegation” requir- might criterion of valid be undetectable worse because
407
Maine,
dissenting opinion in Arizona v.
be
In
illustrative is the contrast
In
1468,
California,
546,
10
Butler,
83
the deci
373 U.S.
S.Ct.
supra,
tween
in 1909 and
Harlan,
joined
542
City
in
in
L.Ed.2d
sion
1961 Kovack v.
of Water
Justice
Stewart, incisively
ville,
411,
by
Douglas and
(1961).
Me.
A.2d 554
157
173
Justices
the “in-
Kovack, following
al
summarized
rationale
strong intimations
standard”,
principle”,
“primary
telligible
in
et al v. Bar
ready
McGary
contained
substan-
al.,
250,
delegation
mechanism for
156 Me.
A.2d 747
rows et
163
body
directly
power
not
legislative
tial
(1960) (which
specifically
dealt
with “dele-
may be
gation”
education),
responsible
electorate
in the field of
spirit of the
fulfill the
con-
deemed to
essential
basically
Court'
discarded its earlier
provisions
concerning the
ception
au-
constitutional
law-making powers
that
powers
separation
polar
vesting and
thority may
delegated by
not at all
and bal-
sovereignty “checks
body
another
admin-
achieve
legislature to
and that
may
permitted only to
ances.”
Harlan said:
istrative tribunals
Justice
Frankly
“fill
“find facts” or
in details.”
principle
authority granted
“The
acknowledging that:
by ade-
must be limited
legislature
primary
many
quate
standards
two
are
serves
“There
instances
separa-
preserving
Legislature
functions vital
delegated
has
where
powers required by
the Constitu-
an
to use
tion
body authority
administrative
First,
p.
it
the funda-
tion.
insures that
judgment” (157
its discretion and
Me.
policy
society
417,
p.
mental
decisions
our
557),
A.2d
173
im-
body
will be made
...
concluded
must be held
this Court
it
responsible
people.
mediately
to the
justifiable
principle
because
Second,
prevents
review from
judicial
“
functionally
bodies are
merely
large by
becoming
[administrative
an
exercise
process
necessary
government”,
some measure
providing
courts with
ac-
against which to
the official
judge
626,
challenged.”
(p.
that has been
tion
power
delegation
“There must be that
p. 1511)
83 S.Ct.
proper,
sufficient
to the end that a
Scott,
leading decision,
Tn a
v.
11
Ward
(p.
. administration
occur.”
Supreme
A .2d 385 (1952),
93
p. 556)
A.2d
N.J.
conceiving
Jersey (likewise
Court of New
approach
test the
was to
Kovack
objectives to be
the same two constitutional
delegation
validity prescribed leg-
prospectively
fulfilled
power in the terms that (1)
“primary
to control
islative
standard”
reposed
not
discretion
bodies
im-
broad
in the
important
“it
there
is
exists
of-
mediately
people)
answerable to the
adequate procedural safeguards”,
statute
following specifications
for a
fered the
and (2)
approach
“standards”
in the exercise
sound
power.
police
(p.
“Legislature sets the standard.”
p. 557)
173 A.2d
Legislature
“It
is settled that
arbitrary
may not vest unbridled or
Me.,
Speers,
v.
253 A.2d
Cf. also: Smith
agency
power in the
administrative
(1969) dealing
delegation of
;
(p. 388)
...”
power
eminent
domain.
therefore, unexposable by judicial
Hotel
re-
cedural controls.
Waterville
See:
Me.,
Corp.
Zoning Appeals,
adequately
v. Board of
view if the
con-
aggravated
(1968) ;
;
dangers
Maine
tained and the types proceedings Registration there Examination in these Board of because evidentiary Me., generally Optometry, (1972). A.2d absence of pro- hearings conducted with reasonable *20 hence, legislature give activity and, therefore, must ing” outside areas — administrative agency reasonably "a likely precipitate of value kinds adequate guide (p. standard to it” judgments channeling which demand ; governed legis- consent of the through the operative lature as continuingly a control “ . . . exigencies of modern upon —that insistence “primary a stand- government increasingly have dictat- ard” “intelligible or principle” becomes ed general the use of rather than realistically unnecessary. minutely regu- detailed in standards latory police enactments under As clarified Part opinion One of the power” (p. 388); of Weatherbee, Mr. when focus Justice upon strictly is of sover- internalities (4)expansive latitude for discretion and eignty separately independently ex- of judgment generalized under a standard is trapolations affecting rights tolerable, readily power more police general citizenry, the sovereign (acting regulation private rights, procedur- when through adopt legislature) is free safeguards al are afforded an addi- as policy by gives which it an advance con- tional upon check danger unwar- sent that own “employer-employee” its dis- ranted or arbitrary action administrative putes be resolved the binding determina- 389); (p. persons serving hoc”; tions of only “ad who, precisely for this reason (5)“it elementary that we they governmental are offi- continuing not must act in examine the entire cials, capable being regarded by are light objec- of its surroundings employees sovereignty di- as free of its tives. . Nor are we restrict- rect, indirect, pressures or or controls. ed to the ascertainment of standards express rea- if be terms extent, therefore, sovereign- To the sonably implied from the entire act. ty, party, and its “employees” as one ‘. which That other both consent submit party, freely clearly implied part of is as much to “ad hoc” arbitration areas ” expressed.’ the law as that which is controversy lacking significant spill-over (p. 387) thought spheres into in which it is other necessary preserve the consent of the
II governed an ex- indirect monitor of the legislative power body ercise of situation, then, present attention people, approach by the an elected be must concentrated the extent to “pri- legislatively prescribed demands a the above general, delineated might dispensed mary standard” with— specific, concepts (as developed in the instead, placed, upon a totali- reliance to be police realm of reg- control adequate ty procedural safeguards private rights) ulation reasonable ir- judicial prevent review to techniques of applicability government it is act- when arbitrary capricious deter- responsible, an “employer” “employees” en- minations. gaged providing the “business” of essen- tial being services to the —this situation, however, and present In the police area in which the power regulation we are in the area of internal though even private rights prom- inherently is not an employer-employee governmental relation- inent factor. present de- ships, which could factors
Initially, made infirmities potential assessment must constitutional velop powers forego whether the com- granted here to “ad reliance were we to * operate hoc” arbitrators at- in a so bination of a before-the-fact domain standard”, princi- “intelligible relationship
tenuated its “law-mak- “primary *21 through policy de- expressed governed, as irre- adequate against pie”, and controls whom by persons proce- made terminations arbitrary through sponsible action need not representatives, as their ef- elect opportunity for safeguards dural and a require to significant enter as a factor fective review. judicial princi- “intelligible prospective First, notwithstanding sovereignty that a afford standard” to ple” “primary or provided consent has here its own advance people to from the pipeline control the teacher binding to arbitration should arbitrators. it, sovereignty has not employees request Nevertheless, as lim- carefully even thus deter- the sole made choice the teachers ited, the area of which “working conditions” pro- subd. minant. 26 M.R.S.A. § subject involve arbitration can binding bring about party” may vides that “either “ed- sphere sufficient overlap with the arbitration”; if arbitration is “binding and (see infra, pp. policies” ucational public employer, a refusal requested by the precipitate questions as for decision an unfair participate is of the teachers constitutionality the statute’s should combined effects practice labor under the governed consent of the not be transmitted and 965. Sections “primary to the arbitrators a standard” principle” pre- “intelligible prospectively or public empowers the Because statute addition, legislature. in- scribed employer binding force is, “working (other as than teachers, in sofar conditions” it against the will of “salaries, pensions insurance”) en- and can power” law-making respect, “police a costs, they teachers-, generate tail financial overtones and this at least control upon general policy and police beat fiscal the exercise involvement with which, therefore, personal affect the decision generate for a might need property rights citizenry (1) in the results of the unconstitutionality as to whether availability, quantity and as well as the legislatively pre- of a the absence from quality, “primary of all essential services principle”, or “intelligible scribed citizenry taxes which the will be channeling (2) standard”, to allow provide pay enable the services. called and also governed consent of in de- more effective to be judicial review therefore, Notwithstanding, irresponsible arbitra- exposing tecting arbitration is here restricted to narrowed tional conduct. encompassing “working only domain those conditions” which matters of “educa- Further, carry-over effects there are “salaries, policies” pen- tional as well as citizenry generally. upon the excluded, and insurance” have been sions yet a sufficient connection may It there remains statutory be true that in the (1) least in the sense pensions “law-making”, scheme “salaries, before us choices, insurance”, important to induce search poli- value well as “educational “primary cies”, prescribed scope legislatively have been from the for removed principle” arbitration; “intelligible thereby, standard” and (2) effected, indirect- at least legislature through which is has taken from the determi- ulti- ly, by the electorate native a control control arbitrators areas hav- judg- fundamental value impact substantial mate source of most direct and presence of which will citizenry only ments—and the the interests of the po- concerning for a decision directly in the field of education but also avoid need constitutionality es- quantity quality in the of all other tential issues hence, intelli- services; were such might thought to arise (3) sential lacking.4 might thought gible principle the consent scholarship approach respectable current 4. This in the much has been taken abandonment, present even advocates context with full awareness In the legisla- assessment of whether the “intelligible the “standard” or principle” provided ture has “primary standard” expressly need not be legisla- stated “intelligible principle” implicit the criteria ture but be found in the total- judgment, delineated, above ity provisions are that statutory reasonably police power regulation agency problem area of varies with the private rights, necessary control of of the meth- volved. ... It will be odology upon adequate systematic thinking which insists to do some about *22 “primary standards”, scribed, pre- legislatively degree categories the of to which various precondition problems subject prospective ns an of absolute validity legislative delegation [legislative] of control. We (2) reliance, rather, upon need, short, con- a total some standards for glomerate safeguards against require of when irre- we should standards. sponsible, arbitrary capricious legislature] or . action . . [the should delegations power be- administrative bodies channel its of may prospective statutory guidelines fore-the-fact standards be and standards helpful, indispensable, greatest possible. to ironically, a not an fac- but extent But tor. Illustrative this attitude are the courts have to work precise following out comments Professor Ken- contours of the re- quirement Culp prospective neth Davis: standards on empirical, non-delegation case-by-case basis, an “The doctrine can and (p. 587) should be altered to turn it into an . . . .” judicial Finally, regarded, probably, tool. Its effective and useful and to be purpose longer position mediating should no be either to as a extremes, between two prevent power delegation legislative analysis by is a recent Pro- require statutory meaningful fessor Abraham D. Sofaer in his Decem- ber, standards; purpose article, its should be the 1972 Columbia Law Review deeper protecting against much unnecessary one of Judicial Control of Informal Discretion- ary Adjudication Enforcement, and uncontrolled discre- power. tionary no The focus should Col.L.Rev. 1293. longer standards; exclusively injects on Professor Sofaer a new dimen- totality pro- controversy by sion into should be on the “standards” arbitrariness, against including tections both vis, observations which concentrate opportunity safeguards deriving Da- and standards.” benefits (1970 Treatise “individualized” rather Administrative Law than “standard- Supplement, p. approach. 40) says ized” Professor Sofaer however, Compare, resurgence (1): directly opposite philosophy expect if it as re- “Even were reasonable to cently by Judge Shelly legisla- advanced courts to insist on better J. book, standards,
Wright tive in his one cannot review Professor be confident Discretionary A Davis’ book Preliminary Inquiry. results of such action would Justice: salutary” (p. 1307); respect Judge Wright Beyond (2), and position to Professor maintains in Davis’ Discretionary Justice, Yale Law the concern should be not prospective (January, 1972): legislative so much with Journal 575 standards as with making, “There must be some limit on the administrative rule- Congress extent to which can trans- powers rulemaking fer its own to other bodies on as “The current focus a cretion pow- controlling guidance limiting dis- without as to how these means (p. 582) ers should be exercised.” “I think attention from distracts needed pur- delegation adjudication re- the poses. for such doctrine use standard, important potential tains as a A decision unbounded, potentially. check on the exercise of If the relevant facts least are included along conclusion standardless discretion administra- with the core, agencies. made available to in- tive trine is based on the notion that At its the doc- a statement agency persons, terested then a decision will give guidance. . . . Decisions action must within the context occur just previously or control discretion of a rule formulated can narrow of law regulations: they concept effectively body. as as can turn on the That important special circumstances is as now as it was a cen- ago particular tury case; they of a forth cases; can set and a half when it was first many propounded.” principles applicable (pp. 583, 584) is, specify “Delegation all, can even after matter of presence single degree, of a factor control- and the amount of 1314, 1315) permissible delegate ling.” (pp. it is faith good submit parties and that the surroundings construed in relation to arbitration, provided in Section (2) large latitude for exer- objectives and “work- 965, concerning the 4, ar- area subd. judgment by cise of discretion “salaries, highly gener- ing conditions”-—exclusive under a “standard” bitrators and, additionally, readily pensions and insurance” the more tolerable alized becomes teachers, “educational subject-matter specifically as to (a) when the nature C)— par. policies” (Section subd. generality neces- makes such breadth and ample procedural sary (b) or desirable safeguards are afforded additional “ . take agreement . enter an the likelihood of other-
checks narrow appro- other action irresponsibility, wise undetectable arbitrari- priate carry and effectuate such out discrimination. ness or invidious binding determinations” “Municipal Public At the outset of the subd. (Section of the arbitrators. leg- Law”, Employees Labor Relations *23 expressly the fundamental islature declares Thus, clearly legislature’s policy is the public upon has policy which it settled. improve- be an expressly that there and im- promote is the purpose policy the “to public relationship of the between ment provement relationship pub- of the between by employees employers their and employees.” As employers and their lic by disputes unresolved the mechanism that purpose, pragmatic implementation parties shall not negotiations between the specific policy by to achieve it the forced, at but shall be to fester continue processes em- “uniform” termination, upon the part, in toward least join “to labor ployees rights shall have full party, by the ar- request either and organizations choosing” own “working such conditions” bitration organizations “legally (2) such are labor “salaries, insurance” pensions and are not recognized” representatives poli- aspects “educational significant mandatory “collec- employees engage in to follow is to binding arbitration cies.” The bargaining” ultimately to achieve tive have estab- parties themselves after the employment” “terms conditions of within which lished the framework (Section in be embodied contracts. by only (1) controversy is confined are implementation The elaborat- details of obligation discharge of their of their virtue provisions of the stat- ed various other negotiate good faith” but to “confer and protection right proclaiming the ute probable, if not (2) through highly also join public employees labor or- mandated,5 fact-findings and rec- resort to ganizations defining unfair (Section 963), independent developed by an ommendations practices (Section 964) and delineat- labor panel. ing greatest of care the details with the authority placed with- With arbitrational con- comprehended generalized within contours, explicitly stated these “obligation to bar- cept of the ... statute to delineate addi- omission gain collectively.” (Section 965) by arbi- express criteria which the tional among selections to make their importantly, legislature un- trators are Most fatal defi- creates no “working conditions” equivocally obligation that the clarifies embraces, expressly, con- ciency. By what is said collectively specially, bargain however, decide, 3, We not here need language Section subd. statutory pre- fact-finding ais specifically whether car- interrelated with and requisite it will to arbitration since ried over into subd. Section present purposes forcefully suggests suffice for that before either fact-finding process arbitration, par- party may compel has been available highly likely precondition arbitration, and is ty, been invoked. must as a fact-finding process have demanded completed. to have been instituted provisions leg- im- tration here involved. The may be joined with what ascertained prescribed islatively “standard” prescribed an ade- or “intelli- plicitly, the has statute principle” gible shall princi- arbitrators quate “intelligible “standard” —that contain, act with reasonableness and to re- ple” guide, arbitrators fairness tending a manner scope re- solve issues in judicial and to allow effective improvement relationships promote check arbitrariness. view as further —is adequate. a fortiori when conclusion contemplates that the plainly The statute observe, further, ample we there fairly reasonably arbitrators act shall procedural safeguards concerning the con- re- dispute in terms of the to resolve the ju- hearing provisions duct of the positions (1) de- spective which have been by dicial review which the Court veloped parties negotiations, “may, affirm, . . modi- reverse or rep- independent fact-finding, (2) cluding fy any determination parties the issues resented or decision rul- based erroneous decision, presented to the arbitrators for finding (Section 972) of law.” supported tak- further evidence hearing statute during en out —the Precisely generalized justification making abundantly the entire clear that approved approach has been in an taken procedure statutory speci- hearing and the Pennsylvania Súpreme Court—and as regarding taking of evidence fications scope subject-matter including to a “sal- “to the are calculated to achieve relevance aries, pensions and insurance” and thus *24 represented . arbi- issues to [the and im- having far direct extensive more (Section for determination.” trators] upon pact general citizenry (in the terms 4) subd. potential burdens and the or- tax priorities public governmental der of the destroy significance Unless we would all provided presently than them) service we expressed legislative policy in the that Russo, Pa. Harney confront. v. binding implementing arbitration is independent- 255 A.2d and (1969), promote improvement method “to the ly of the consideration that constitutional public employers relationship the between analy- made a “standards” amendment had employees”, and their held an must be Pennsylvania unnecessary, Court sis the implicit injunction statute minimal “delegation” deal issue chose to with the reasonably the act arbitrators assumption adequate it on an before fairly the to within effect accommodation necessary limiting standards were to avoid parties developed by bounds the and the delegation an unconstitutional positions Surely, them. unless asserted power. Sustaining as sufficient stand- responsibly arbitrators fair- act and with shall reasona- that the arbitrators act ard and reasonableness to accommodate ness accomplish peace bly labor between to parties, crystallized the interests of the employer employees its in the public presented the issues for determination services, public rendering essential positions as buttressed asserted Court said: parties issues, and as concerning explicit require a more statement “To parties sharpened will themselves have calling legislative policy in a statute through negotiating process them fol- would be sheer labor arbitration fact-finding, frus- the arbitrators would great advantage of arbitration ly. The trate, achieve, promotion rather than all, is, ability of arbitrators after improvement relationship of “the its on merits deal with case own each public employers between compromise at a which in order arrive employees.” The arbitrators’ parties. is fair both where, suffice, valuable analysis particularly are foregoing services could requires, here more, legislative scheme sustain the arbi- as the without public employer must services reach an parties have been unable to upon the ultimate bur- provide, as well as bargaining. agreement through collective taxation, legislative concern den of this Certainly Legislature is what factor transposes to become one attempt to insure labor envisioned its area, arriving at de- peace arbitrators must consider in this critical concerning any adequate (p. . terminative decisions 563) ..” mone- “working which involve conditions” us, presently statute before we As to the tary costs. fur- goes that it further to observe nish, reasonably implicit in its arbitrators Legislative overall intention that the context, “intelligible impact money subsidiary additional take into account in the principles” guide “working the arbitrators those conditions” which costs of discharge as the of their functions well are settled for contractual to be exercising judicial review. corporation courts in is further manifested express only that not legislative mandate statutory In the total context the limita- pay” but also “wages” or “rates of the arbitra- jurisdiction tions appropriation requiring “any other matter to make determinations eluci- tors (emphasis money municipality” by any jurisdic- only drawing date of a pre-condition the sub- supplied), it is a principles” “intelligible tional line but also ject-matter’s being collective eligible for guide selec- judgmental the exercise bargaining that tivity jurisdictionally areas cov- within the bargaining agent “the serve ered. request written notice of for collective emphasized that the arbitra- It is to be employer at on the authority tors are not all to deal denied days least before the conclusion “salaries, pensions and insurance.” operating budget.” the current fiscal They responsible to “recommend terms (Section subd. settlement”, they “may make find- *25 Similarly, “educational thereon, the exclusion of ings of fact” “such recommenda- policies” jurisdictional scope the of from findings tions and . be advi- [to] teachers, arbitration, binding in the case of sory only.” crystallized There is thus not operates provide carry-over with effect to express merely an differentiation of func- “intelligible princi- subsidiary additional implicit message tion but also an as to the ples” guide selectivity discretional the Obviously the differentiation. reason for the arbitrators within the domain of they im- because have direct enormous may be bind- costs, “working conditions” which pact, only upon terms of not particular ingly determined. priorities ordering of within sphere public of services affected concepts “working conditions” of controversy the arbitrators but also before policies” signifi- a yield and “educational public employer’s general fiscal upon the meaning cantly of when clear core public appropriations for all budgeting and opposite poles of a regarded as the consequently services, and the tax burdens the center of which continuum toward “salaries, pen- citizenry, imposed upon the intermixture. large degrees there will be insurance” are withheld sions and analytically classifia- datum is Whether persons who are binding determination than “working conditions” rather ble as directly responsible to the electorate. vice-versa, will de- policy”, or “educational therefore, made pend, (1) on the decision legislature has thus manifested
Since the
legislature’s intended direction
impact
as to the
overriding
an
concern with
notwith-
(2) recognition
ordering
prior-
emphasis
monetary costs
theoretical classifica-
standing the ultimate
only
sphere
ities not
within one
essen-
reality
upon,
public
tion decided
the substantive
as to all
tial
services but
poli-
opposed clas- matter be classified as “educational
retains those features of the
thereby
totally
a fact be-
cies”
to be
excluded from
inhered in it as
sification which
arbitra-
process
collective
fore the theoretical classification
tion) against
weight
“working
was undertaken.
(e.g.,
conditions” interests of the teachers
Hence,
glass containing water
as a
perform
ability
their comfort and their
“half
halfway point may
to be
be said
effectiveness,
efficiency,
work
full”,
upon the
dependent
empty” or “half
satisfaction).
enjoyment and
Into this as-
and,
emphasis
addition,
no
direction of
enter, also, the
sessment will
consideration
designation
matter what
the theoretical
offered, policy-wise, as a
that arbitration is
chosen,
reality
to remain
continues
partial
denial
to the
for the
substitute
empty”, will
both “half full”
“half
so
hence,
and,
right
strike
teachers of a
given
appropriate
of a
classification
counterbalancing
must be made
evaluation
“working
subject-matter as
conditions”
might
of what the teachers
by the
policy”
controlled
“educational
they allowed
capable
winning
were
presumed
emphasis; and
right
force of
resort to
economic
will
reality
substantive
after classification
strike.
catego-
retain in
the features of both
fact
ries.
foregoing discussion dis-
light
closing
“standards” or “in-
the existence of
Thus,
process by
the arbitra-
which,
principles” by
expressly
telligible
to make bind-
jurisdiction
tors decide their
implicitly,
authority of the arbitra-
simultaneously pro-
ing determinations
contained,
point
co-
legislatively
tors is
“intelligible principle”
vides them with an
by Professor Louis L.
gently made
Jaffe
among
guide
(from
selection
their
premise
and based
totality
“working
subject to
conditions”
shall be
jurisdiction)
those which
“Delegation of
to administration
contractually incorporated. The arbitra-
dynamo
the modern social
is the
obliged
tors will be
to bear in mind that
(p. 85)
service state”
legislature
pol-
deemed “educational
must be stressed.
icies” to involve value choices so funda-
mental that
concerning
decisions
“If,
.,
legislature has seen
them
essentially
should be made
unilateral-
organism
fit to
for the
create
trans-
ly
persons
and by
directly responsible to
business,
validity
action
its
people
reason,
for this
even
among
if one
com-
should be sustained
*26
though
might
the
reasonably
arbitrators
be-
logical
implications reasonably
peting
lieve a
embody
concrete item to
a suffi-
theory
supports
points
At such
the
of
it.
cient
“working
measure of the features of
separation
logically too infirm to con-
is
conditions” to overbalance an admixture of
arrange-
any sensible
covenient
demn
or
policy”- thereby warranting
“educational
—
keep in
in sum
mind
should
ment. We
subject-matter
conclusion that the
is to be
is,
and,
theory
by
the
great
that the
end of
“working
classified as
as
conditions”
such, subject
arbitrational deter-
measure the centers
dispersing in some
minations
them—the arbitrators must
prevent
authority,
absolutism.”
of
acknowledge
continuing importance
the
of
Administrative
Jaffe,
of
Control
Judicial
generalized
citizenry
interests of the
(p. Action
in
the overall domain of education
Thus,
analysis
potency
the
of
might
relevantly
play.
in the final
be
The arbitra-
constitutionality
presumption favoring
impacts
tors must
the
of such “ed-
the
balance
determinative.
legislative
of
action becomes
policy” overlays
inhere
ucational
et al v.
(even
As this
stressed Crommett
though they might
fact
not have
Court
217, 107
Portland,
Me.
A.2d
subject- City
been
of
require
sufficient to
that the
be-
City
the Biddeford
Association
quoting Laughlin v.
Teachers
Portland,
cause he had been
(1914):
111 Me.
fact-finding pursuant “Except board selected as specifically otherwise pro- subsection 3.” Agreement vided in this or otherwise specifically agreed in writing between This omission of the statute to state parties ”, qualifications party-designated for the ar- implications bitrators, flowing neg- and the operate as a limitation the further atively from the of restrictive inclusion language: contractual arbitrator, qualifications es- third “the determination of educational policy, party-appointed tablish that the two arbi- the operation and management of the imcompetent trators are nor dis- neither control, schools and supervision qualified they might because interests direction of the certificated staff are subject-matter concerned with the Board”, exclusively vested in the arbitration, parties, or the arise which participation in processes virtue of independent statutory contravenes man- prior to arbitration. dates. type here The of arbitration involved— argument that the reference to so-called arbitration to “interests” establish comprehends “certificated staff” all full- particular terms and conditions of a con- principals, teachers and time all substitute “grievance” (as distinguished tract part-time pro- (because all teachers the terms of exist- arbitration which an visions of 20 M.R.S.A. § —with interpreted applied)-— contract are language consequence that stated the above suggests policy a sound reason for favor- said, effectively exception, subjects it is ing, designa- prohibiting, rather than substitute teachers and principals, full-time parties tion by the of “interested” arbitra- part-time to the collective bar- teachers tors. func- In “interests” arbitration the gaining un- process coverage well tion is make a con- arbitrators der a di- collective contract—in parties for the were unable tract rect exclusions of 26 violation of the M.R. is, therefore, to make for It themselves. 962,subd. S.A. § degree “bargaining” desirable part process itself—to purport argument misconceives assist in the ultimate settlement of contract excepting considera- clause under terms and Such continuance conditions. opera- clause without tion. In itself process, bargaining into the arbitrational appropriate bar- tive to delineate effect including reaching of accommodations any persons gaining bring within unit or is to necessary if the arbitration usually sepa- coverage of the contract. Some improvement in an of the relation- result independent provision of the con- rate and ships parties, is ef- contesting between purpose. such Were requisite for tract is ap- fectively if arbitrators achieved sep- such present contain contract to pointed by parties, precisely because subjecting provision, independent arate “interests”, may they are allowed to have persons excluded coverage contractual way to along function as “advocates” sep- it would be subd. Section becoming, ultimately, decison-makers. provision independent arate attacked invalid—not should be III-B Yet, scrutiny. excepting clause under aspects Particular de- the arbitration Education has Board of Biddeford cision attacked as “erroneous independent separate no pointed to finding[s] of must law” now evaluated. therefore, is, It provision. contractual to assail the the Board specious for III-B-1 *28 exception, more language general stant performs ap- language is since this particularly Claim made that the arbitrators’ valid, of ciar- proval important, of the contractual function clause:
417 ifying portions that various the collec- nual and accumulativeness. sick-leave speaks, agreement pursuant Solely purpose, tive the statute — for changes prior a by law it must to establish unit of reference introduced minimum, Municipal rela- Employees computation Public Labor Rela- for of the aof upon limiting tionship tions Law—have each effect what individual teacher. There is, (otherwise) however, having unilaterally language would an absence of be exclusive powers superintending tendency or to show school boards reasonable concept entirely committees. upon sistence different days personal to that sick-leave must be ap- is Assault made the arbitrators’ utilized, each there- personally teacher proval of a establishing contractual clause sick- prohibit pooling or transfer of a “sick-leave bank.” The “sick-leave days. leave Neither does the manifest provision teacher, bank” authorizes each purpose statutory a minimum mandate independently contractually who granted is days sick-leave amount of accumula- days 20 annual sick unlimited leave with tions that the is in suggest statute violated accumulation, voluntarily to become a spirit by recognition propriety of contribution, member “bank” a pooling or transfer —whether of the statu- his days, own allowable sick leave tory minimum or of contractual allowances day one total of to cre- contributions —the in the statutory excess of minimum. maximum days. ate a of 180 “banked” Any member of may the “bank” draw from argument making binding in a any it to maximum of in days 30 one for determinations contractual inclusion year to school cover of ill- absence because bank”, a “sick-leave arbitrators exceed- period for a said ness in excess of teach- jurisdiction ed their because the “sick-leave er’s total own “sick-leave” authorization. really (con- is a “salary” bank” form of the number days When in the “bank” is cerning which arbitrators are authorized to a reduced minimum of the “bank” advisorily) only act is likewise fallacious are to day members contribute another one premise. for error in its days each to re-establish the 180 “bank” conceived, “Salary”, ordinarily rea- maximum. sonably actual, connotes an affirmative Contention made that arbitrational regular payment (usually in benefits approval of such bank” is error “sick-leave form) monetary in exchange for work of law because 20 1951 M.R.S.A. § concept Measured services. interpreted prohibit pooling, must be itself, bank” rea- “sick-leave does not lend transfer, days of sick-leave sonably, “salary.” to a classification as event, any “effec “sick-leave bank” is Independently plan, the “bank” subject-matter relating tively” to “sala public employer contractually committed and, hence, ry” ex legally must be held to “sick-leave” to theoretical maximum scope cluded from the arbitra days for each of 20 and unlimited teacher points tion. Both are without merit. By arrange- accumulativeness. the “bank”
itsBy language literal 20 M.R.S.A. any ment individual teacher de- “member” § only aims guarantee an- minimal opportunity enjoyments rives sick-leave days 6. 20 ad- § M.R.S.A. reads: “Each of such sick leave to trans- be operating public employing ministrative unit schools ferred to the administrative grant unit, within State shall all certified sick leave to be said credited teachers, except continuing achieving as de- substitute teachers made effective the, commissioner, employing minimum fined contract status new unit. days plan Any which, annual sick leave ac- of 10 school of sick leave other board, opinion provides cumulative to a of 90 school minimum state days salary. equal approved without Each ad- loss of benefits least employing ministrative unit who Full-time teachers lieu thereof. teachers assistants granted have unused sick leave accumulated shall and teachers aides mini- previous positions accept up days.” shall sick leave of 10 school mum annual *29 in excess of said teacher’s otherwise they allow- within their jurisdiction when bind- able maximum. And it is true ingly that such determined “sick-leave bank” “benefit” to individual teachers is incorporated achieved should be as a term of the through pooling the device limited contract. arrangements
transfer among teachers III-B-2 aggregate days sick-leave au- thorized for all teachers without causing Attacks other facets of the arbitra- need that aggregate maximum be ex- tional comprehended decision are within ceeded. generalized claim that are errors of law because the arbitrators exceeded Yet, recognized it must be ag- that the jurisdiction by purporting to make gregate days maximum sick-leave theoreti- spe- contractual determinations on cally teachers, authorized for all in the ab- cific policies.” matters of “educational of a sence sick-leave bank and should each teacher permitted be days only sick-leave concept exclusionary Since the of “edu- personal on a pooling basis without policies”, specific cational its relation- transferability, usually not totally are ships to “working conditions” as the inclu- Thus, practice. claimed in without concept statutory for sionary collective public “sick-leave bank” the employer binding arbitration, will would ordinarily the “benefit” that of provide subsequent the foundation for sick-days total all authorized for teach- exposition analysis, preliminary gener- ers residual number remain unused. guidelines helpful. al will be public This employer “benefit” to the is already (ante As “ed- p. 413), at observed impaired by operation of the sick-leave “working ucational conditions” policies” and “bank” insofar as transfers from the reasonably categories conceived teachers, “bank” among even individual purity defining areas with essential at the though within al- aggregated maximum extremities but intermediate zones of teachers, lowed for all tends to reduce Thus, substantial intermixture. in the con- number of ultimately unclaimed sick-leave pub- troversies and their between teachers days; regarded is this reduction to be employers (currently prevalent through- lic public as an economic to the em- “cost” if country), out the some of the con- even ployer. readily in dispute may crete items clas- “policies” pure sifiable at extremes categorize To such “economic benefit” to conditions”, “working undeniable any individual and “economic teacher cost” portion far lie in the in- major to the employer “salary” to the substantial intermix- termediate areas with “paid” teacher employer, ings. however, pervert ordinary, would be to plain “salary.” meaning of It would be to How, then, exclusionary and inclusion- ordinary transform the connotations of ary the Maine classification under statute “salary”- directness, regularity and actual- — Again, rationally proceed? already indirect, ity payment that which is —into 413), key is found (ante, p. discussed sporadic and fortuitous. No sound reason legislatively pre- ascertainment of appears legislature suggesting that emphasis by scribed direction of tended that as used in the Munic- “salary”, particular one classification features of ipal Employees Public Labor Relations legislatively must be considered subordinat- Law, and dis- carry should such artificial classification., opposed ed to factors of the meaning.
torted on its face legislative language The suf- provisions pur- ficiently bank” offers an answer these for “sick-leave poses. appear in regarded thus crucial reasonably to be as a words Sec- 1, par. C. After first clari- “salary.” form of The arbitrators acted tion subd. *30 emphasis by bargain legislature in- fying obligation that to Such double upon overriding importance the con- duty cludes the cept “working conditions” in relation to negotiate good in faith “To confer process, first, bargaining the collective — respect hours, wages, working to with that affirmative definition teacher grievance conditions and contract arbi- explicitly “working conditions” are includ- .”, tration mandatory bargaining ed within collective and, second, by negative that exclusion speci- immediately the statute thereafter are eliminated from “working conditions” fies, particular relationship to the pol- “educational the limitational effects of teachers, employers exception that view, my signifies, clearly most icies”— “public employers meet of teachers shall design general that the doc- a negotiate not re- and consult but “unilaterally managerial trine of exclusive policies . . .” spect educational op- prerogatives” permitted not be must instrumentality by all erate as legislature seen fit to end its Had the practical scooped substance be out of point, might at this be held a recitation concept “working of teacher condi- concept of reasonable conclusion that the tions”, to transform teacher collective bar- policies” legislatively was in- “educational gaining marked contradistinction to the broadly mandate continuance of tended —in bargaining all collective other powers unilaterally exclusive of school employees litany noble sound but “manage” the “supervise” and boards to —into reality. hollow powers had been public schools-—as such prior traditionally by statute conferred particularly, interpret More I dou- Municipal Public Em- the enactment legislative emphasis upon ble “working that, Law; and ployees Labor Relations conditions” of teachers to mean therefore, tending any concrete item to im- legislature “working intended that teacher any pinge upon ordinarily conceived area bilaterally negotiable conditions” shall be “supervision” be “management” as must subject bargaining in collective appropriate subject excluded as an of man- “salaries, (except arbitration datory bargaining regardless of collective pensions notwithstanding insurance”) relationships its to the concomitant “work- specific touch “manage- one ing conditions” of teachers. which, practical rial” function with therefore, significance, It of extreme “working matter the conditions” teach- 1, par. leg- that in Section subd. C invariably ers are almost interconnected —i. islature revealed that it was not content to e., organization, supervision, direction language leave above set forth— personnel. working and distribution of thereby open the door to the extreme concerning every decisions almost Since in- “exclusive-management-prerogatives” “working condition” of teachers will tend terpretation the con- above indicated. On “managerial” organi- to encroach careful, trary, explicitly legislature was zation, supervision, direction distribu- definitively, to insert additional lan- working personnel, were this tion of the guage having strong tendency to show functioning to single “managerial” facet of policies” legislatively “educational was accomplish, permitted under the cate- restrictively, broadly, con- tended to be policies”, per se auto- gory “educational purpose specifically that “for the “working condi- ceived— matic exclusion of teacher meaning paragraph” the calculated bargaining proc- tions” from the collective is that ess, precisely result that emas- there would as a man- “working culation of conditions” policies “educational shall not include datory subject collective hours, wages, working con- conditions or which, indi- grievance tract arbitration.” above cated, specially logical developments legislature by (such its reit- as television or — emphasis upon “working erated conditions” other teaching aids) electronic and the reasonably interpreted swings —must to have philosophies educational sought prevent. implemen- theories and the manner of their *31 tation. Thus, (1) negatively, only must im- then, Here, (1) “working conditions” pact upon supervision, organization, the intimately are so features entwined with an personnel direction and be distribution of plurality important “manageri- abundant of se, insufficient, per held to exclude items pure al” “policy” and elements that “class “working related to teacher as conditions” size” be integral must deemed to be an proper bargaining matters of collective and complex policies” of “educational and also, binding arbitration but affirma- separa- of “working incapable tively, reasonably manifest conditions”— “working tion to allow conditions” fac- intention must be be held to that other con- negotiated tors in to be isolation and tacts of such with functions items other as an in- “class size” thus treated generally cognizable “managerial” as and unit, cannot, unit, separable qualify it as a “policy-making” can subordinate binding bargaining collective and ar- “working features, conditions” and accom- weight of the “educa- bitration because the plish an exclusion from negotiability and policies” tional factors contained arbitration, if, balance, only on sufficiently heavy impacts override the quantitátive their qualitative number or im- of teachers. both, “working conditions” portance, significantly are found prima substantial to override eli- facie jurisdic- arbitrators exceeded gibility bargaining for collective and bind- making binding tion determinations as ing presence established to “class size.” relationships “working of reasonable conditions.” Working “Length Day" Teacher’s of day in Similarly, length of school
"Class Sise” terms of hours the teacher of number applica- By general approach required will teach or be attend- be school, concerning “working tion of the ance at is a matter conditions”—“educa- policies” dichotomy, “working tional as an initial which the conditions” interests and inseparable techinque operation, fundamentally I illustration of the teachers are from a considera- plurality conclude that the concrete item of “class of non-teacher involving important “managerial” tions policies” lies size” within “educational —ex- “policy” cluded and bind- areas. from collective ing arbitration. the number of While it clear be
Although taught any individual teacher shall the size of a class to be hours which day given seriously required given in a need not plainly af- to work teacher conditions”, hours “working with the number of the stu- fects teacher im- coincide at pacts overlap obliged to in attendance of “class size” into a number dents are school, “managerial” “policy” this fact itself fails establish areas importance. length day school qualitative that the teacher’s are of substantial proper subject requirements directly involve isolated “Class size” mandatory bargaining. Closer merely organization, collective considerations not length of the scrutiny reveals that were the supervision, direction distribution day negotiable school collective personnel for addi- teacher’s but also of needs given bargaining and in a situation were or other building tional school construction preclude hiring popula- economic conditions types capital outlays, the current personnel, teaching negotia- trends, techno- of additional appropriate tion use of and, such, non-negotiable and be- work-day cies” shortening tions aimed yond scope directed arbitration. necessarily become teachers would hiring seeking alternatives to the toward Here, policies” “educational again, personnel. thus additional There would predominance merely arises not because of exploration an into such areas eventuate impingement upon “managerial” educational tech- the utilization of newer supervising, organizing, function of direct- presence actual niques which a teacher’s mainly distributing personnel but unnecessary— participation rendered intermixing a substantial because of rooms, aids, g., open class e. electronic judgments transcending teacher interests teaching programs subject-matter team important embracing interests of the or modifications. In man- restrictions general citizenry. teaching Since the staff ner, intru- significantly more substantial *32 school, reasonably required is to be to be at areas,- “policy” and above sions into —over minimally, whenever the at- students must simply upon “manageri- encroachment tend, the commencement and termination supervision, and organization, al” direction year of least such minimum school for personnel involved. distribution of —become teachers, scheduling length and the and vacations, Thus, of intermediate length of the teacher’s work- be settled will closely ing day heavily arrangements and interwoven calendar as to be are bearing upon the welfare fixed for student judgments attendance. students,' in the ulti- reflected —as arrangements Into the calendar for stu- quality their and the ex- mate of education dents enter considerations and in- decisions improved it may tent to which be or weak- plans families, volving the and of interests substitutes, types use of various ened presence arrange need to for the all otherwise, technological living or for the non-teaching personnel who function while presence participation of teach- and active students are attendance at school and value ers. Such foundational educational the interests and concerns of all other reasonably judgments subordi- cannot be parts to, community related af- or overlay “working nated to the of teacher by, fected the times when students will be conditions”, reason, length and for this in attendance at school or on vacation. held, working day of the teacher’s must be fundamentally, that kind of “educational Thus, the commencement and termina- policies” legisla- subject-matter which was year scheduling tion of the school and the scope remain tively intended to outside length and of intermediate dur- vacations and, mandatory bargaining collective year, at the school least insofar as stu- therefore, binding arbitration. dents and congruently teachers are volved, must be held matters of “education- jurisdic- The arbitrators exceeded policies” bearing al substantially upon too binding determinations con- making tion in important many too and non-teacher inter- working cerning length of the teacher ests to settled bargaining be collective day. binding or arbitration. jurisdic- arbitrators exceeded their Length Vaca- “Scheduling School in purporting binding tion to make deter- tions and the Commencement concerning subject-matter. minations this Year” Ending the School questions reasoning,} similar con- On post-school Day “Pre- and Hours and scheduling length cerned with the Days pre- post-school Year for and the commencement school vacations Teacher Attendance at School” year ending (insofar of the school hand, aspects, respectively, questions relating are di- the other such calendar On school) attendance at the attendance of teachers at school at rected at teacher poli- times than the students be must be held matters of “educational other when will only ordering impact upon for not regarded as “work- are attendance priorities budg- but overall signifi- educational lacking ing conditions” of teachers eting appropriations and tax rate of the relationships non-teacher interests cant suffice, ipso public employer magnitude quantitive qualitative of a —does negotiability or facto, to exclude from negate collective sufficient any sub- item binding arbitration concrete negotiation arbitration. The “working conditions.” stantially related questions related to whether Rather, ante, monetary these school, (See p. 413) be at even and when teachers shall attendance, “working conditions” though not in costs of various the students are providing operative consideration impinge only upon “managerial” func- as one they engage guidance arbitrators as organization, su- to the tion concerned with the leading to the ac- per- balancing of facts pervision, and distribution of in the direction they make when select emphasized, single commodations As above sonnel. particular terms to be fixed contrac- regarded must “managerial” factor tually binding. kind per se establish the insufficient policies” “educational involvement with subject-matter of teacher aides an item requisite, statutorily, to remove negotia- non-teaching “household” tasks “working substantially related to teacher arbitration. subj ble ect to *33 mandatory sphere conditions” from determination bargaining collective or of making binding determinations by binding arbitration. issues, within their the arbitrators acted jurisdiction. properly The arbitrators acted within making binding jurisdiction deter- “Specialist Specific Types Teachers post-school concerning pre- and minations for Subject-matter Taught or Services post-school year day pre- and hours and (at days for teacher attendance school Offered” the students would times other than when Analysis question that the discloses in attendance). be employment “specialist” teachers for particular subjects being taught or services ‘House- non-teaching “Teacher Aides for being offered students is a matter bilater- keeping’ Functions” ally negotiable bargaining collective sphere within arbi- included By analysis the same the issue of the use tration. play grounds, of teacher aides to monitor issue, here, supervise periods, posited requir- not lunch unload The as load and particular subject, a non-teaching types buses and ac- decision whether other art, reading such as remedial subject proper tivities must be music or held for taught part scope be as of the curriculum or collective and within the special type (such whether of “service” arbitration. guidance counseling, reading remedial Unquestionably bearing heavily upon the library) assump- or The is to be offered. teachers, work load of the issue of teacher art, tion is that it has settled that mu- been for “housekeeping” aides various functions sic, guidance reading, counseling remedial ordinarily touches other areas deemed library taught services are to “policy” to affect and above a nar- —over subjects or offered as services. impingement upon “managerial” row or- is, rather, who, ganization, supervision, do question direction and dis- The shall personnel only provide tribution of such services—(cid:127) teaching terms — monetary hiring specifically, costs of the additional whether it shall be an addi- non-professional personnel. regular money ancillary That be borne tional task to pri- potential other costs become involved—-with class-room teachers who have music, guidance counsel- responsibili- (art, or services mary teaching and class-room taken pri- ing, reading library) it shall be made the remedial ties or whether ancillary responsibilities of responsibility on as additional mary of teachers who primary regular other generalized regular free of teachers who have fundamentally perform. are to con- teaching obligations teaching and who tasks to specialists subject-matter in a centrate as juris- arbitrators acted within their special knowledge. involves skills or making binding determinations diction in “specialists” concerning questions these music, art, Clearly, re- to the extent “special” subjects or services. counseling or reading, guidance medial special acting as a librarian do involve III-B-3 reg- knowledge, to have
types of skills ancil- the additional ular teachers assume The Biddeford Board of Education has specialities lary responsibility not for such against ranging onslaught levelled a wide only regular load of the increases the work all of the determinations the arbitration- such, tends, teachers, indirectly, but also implementation al decision the of which difficulties; additional cause them monetary expenditures. argu- entails potential for frustra- tends to introduce ment is that since con- the monies for the regular and dissatisfactions should tions duct of the schools come from the develop special teachers be unable municipal legislative body empowered to skills, they are competencies, for which appropriations, panel make the arbitration given ancillary responsibility. thus jurisdiction had to settle issues re- lawful quiring money expenditures im- for their “working To these conditions” as- plementation bindingly subject only but pects negotiation determined bilateral adequate contingency to a funds will ultimately (should necessary) it be *34 provided by appropriations. be arbitration, binding with the issues of tasks, teacher aides for “household” im- unacceptable. is argument It is “policy” pinges upon “managerial” and fundamentally pat- at odds with the basic an areas—over and above involvement objectives Municipal tern and Public organization, and distri- direction Employees Labor Relations Law. personnel basically only bution of — expendi- monetary terms of the additional fully explained (ante p. 413), As might required arrange tures be “working conditions” than which are other “specialist” for such teachers. “salaries, pensions and insurance” are placed jurisdiction arbitrators within Hence, as with teacher aides for “house- to settle as the terms and conditions tasks, keeping” the contacts with the “man- fully binding contracts are have agerial” “policy” held realm must be effect, can, legal notwithstanding they prima insufficient to override the facie eli- will, require expenditures money. or gibility negotiation binding arbitra- only meaning attrib- reasonably This is the by important “working tion established explicit provisions of utable to the Section present. money conditions” factors That 965: expenditures might does not be involved controversy binding respect preclude negotiation bilateral . . with to a “. salaries, plu- pen- only of a than subjects arbitration but rather one over other insurance, shall into the arbitrators rality of considerations which enter sions and if . ultimate determination arbitra- . . make determinations whether, extent, “spe- such de- by majority and to what . . . tors of made par- binding both personnel designated be on cialist” for the above terminations will parties agree- shall be used ties and the will enter “special” subjects or services action that “special” subjects whatever other than to these ment take rather appropriations contingency the need for carry ef- out and appropriate recognized, require that thereby to the ar binding determinations fectuate such advisory body only
bitrators as an mak act ing (2) concerning recommendations but Bidde- position asserted being all items in collective negotiable contrary Education ford Board “salaries, pensions than and insur other plain statutory language. ance”, though such other items even and, will, money expenditures can involve Moreover, position is irreconcilable implemented, to be the arbi when are legisla- implications with the full impose fully empowered trators be- differentiation carefully stated ture’s binding legal As to these nec obligations. of the arbitrators tween the function essary expenditures resulting monetary controversy respect binding from such decisions of arbitra . . with tors, salaries, responsibility pensions and becomes over . . . .”, board, appropriate as the school as well . . surance municipality, legislative body of the controversy in such that the arbitrators arrangements as will ensure make will legal obligations these be met. set- recommend terms “. will . . Local fact; Providence Teach. U. 958 v. Cf. findings of may make tlement and Committee, 108 R.I. 276 A.2d School findings such recommendations ” (1971).7 only . advisory . . . . . [to be] otherwise, 965) but (Section III-B-4 controversy respect to “. . . with A last for decision concerns issue raised salaries, pen- than subjects other over Municipal legal under the Pub- effects .” . . insurance sions and Employees lic Relations Law flow- Labor shall, majority, determinations of ar- acting pursuant bitrators to Section “. . make determinations period particular, during 4—in al- subd. parties on both (under instituting lowed for review Sec- and to “agreement” be embodied in an and, sought, has been tion if review parties. entered into *35 it is pending. while legislative point This up concern to such By express language statute, the the of functioning, differences arbitrational de when made pendent upon “salaries, pensions whether involved,
and emphasizes insurance” are “. . majority . of the by arbitra- precisely (1) as to only major the tors . . . determinations will be money expenditures items represented binding parties the parties on both by “salaries, pensions and agreement insurance” the will enter an ... public employer (including specific timing 7. To assist the all bar- for collective money expendi- body) gaining its school board and involves which legal obligations explicitly provides: deal with the tures. statute will (1) “salaries, pen- any result if issues as “Whenever . . matter re- [s] . by money quiring appropriation sions and are insurance” settled . col- any bargaining, lective or other mat- are matter of collective as a bar- included requiring appropriations gaining obligation , ters the of mon- . . it is . ey, bargaining or, bargaining agent are settled collective to serve written no- failed, by bargaining request if collective has or tice for collective binding arbitrators, days employer determinations on the at least 120 Municipal Employees Public the current Labor Rela- before the conclusion of fiscal special provision operating budget tions inserted a Law has .” affording public employer the benefit immediately bitrational determinations carry out and effectuate parties continuingly and the determinations.” legal continuing are under immediate and Hence, least arbitrators have that at two incorpo- duty agreement to enter an in fact determinations becomes settled rates them. their deter- controlling factor which is, Accordingly, regardless of whether binding and which minations become be, or will claimed that determinations play legal obligation brings into ruling contain “erroneous arbitrators parties incorporate the determinations finding subjecting of law” determina- agreement. into an The statute omits potential tions reversal or modification suspension legal an automatic establish review, are, the determinations potential that consequences because remain, legal binding in their effect embody er- might decision the arbitrational are, remain, legal parties under the or modi- causing rors them to be reversed duty incorporate signed agree- in a them fied on review. party asserting right ment until “bindingness” or suspension of Any such judicial review the intervention of achieves allowed, by the statu- obligation is legal “stay” action in form of such only to play tory language, to come into Superior sees fit to in the cir- Court order the statute the extent that Section cumstances. prescribes that CONCLUSION sought shall accordance “review Pro- Rule 80B of the Rules of Civil Superi- with I would remand cases to the action, cedure” Court follows: 2688-71, City and that In Docket No. Biddeford its Board of Education v. Superior appeal “an Court’s [from Association, als, et Biddeford Teachers court may to the law be taken review] panel decision of the arbitration of No- any as in action.” civil vember 1971 is to be modified strik- ing therefrom determinations concern- any “in accordance As to review Size”, “Length “Class of a Teacher’s .,” pro- plainly the Rule Rule 80B . Day” Working “Scheduling : vides Length of Vacations and of the School “Except as provided by otherwise stat- Ending Commencement and of the School ute, filing complaint does not Year.” stay any action of which review is After has been effect- such modification sought, but the court stay .order ed, Superior Court should enter upon such proper.” terms as it deems Judgment affirming the decision present provide statute fails to other- *36 modified). panel (as arbitrational and, wise contrary, clearly on the tends 2690-71, indicate that until a Court ordered In Docket No. Biddeford stay is accomplished pursuant 80B, Educa- to Rule the ar- Teachers Association v. Board of By Chapter 578, .Tanuary 24, 10, 1972, 8. a new § P.L.1970 sec- 1972 to March other tion, govern changes affecting was added Section were made remedies could, practices review determinations for unfair labor relationship situations, arbitrators. future arising matters mattex-s consolidated now before us governed by statutory interi'elationslxips changes these between enforce- proceed- (by emergency enactment) px'oceedings ment and the review effective pi-ovided February 9, ings 1970. Section 972. Special It is to be observed that at the Legislature Session convened from case, als, Biddeford, of City
tion et remanded, is entry judg- to await the
ment in case No. 2688-71 aforesaid.
Thereafter, Superior pro- Court shall subsequent
ceed in such manner as the con- parties might necessary
duct of the make appropriate with the accordance —all
principles opinion. enunciated
Kathryn CONGER
v.
Thomas E. CONGER.
Supreme Judicial Court of Maine.
April