HIBBING EDUCATION ASSOCIATION, Respondent, v. PUBLIC EMPLOYMENT RELATIONS BOARD, petitioner, Relator.
No. C5-83-1580
Supreme Court of Minnesota.
June 21, 1985
374 N.W.2d 527
The Court of Appeals stated that after analyzing the various facts it could not conclude that defendant committed the offense in a particularly serious way. We do not agree, but even if this were true, the departure would still be justified. The departure was permissible because defendant was convicted of an offense in which the victim was injured and he has a prior felony conviction for an offense in which the victim was injured. Minnesota Sentencing Guidelines and Commentary II.D.2.b(3) (1984) (it is an aggravating factor if “[t]he current conviction is for an offense in which the victim was injured and there is a prior felony conviction for an offense in which the victim was injured“); State v. Peake, 366 N.W.2d 299, 301 (Minn.1985); State v. Williams, 337 N.W.2d 689, 691 (Minn.1983); State v. Lindsey, 314 N.W.2d 823, 825 (Minn.1982). The evidence established that the victim was injured in this case. Defendant‘s prior conviction was for assault in the third degree (infliction of substantial bodily harm); not only does the record indicate that the offense was based on evidence that defendant injured his girl friend but that offense by definition is one involving personal injury to the victim. The Court of Appeals’ conclusion that this factor is not itself sufficient to justify a double durational departure is incorrect.
We also believe, in any event, that the record supports the trial court‘s determination that defendant committed the offense in a particularly serious way. The victim was only 14 years old; defendant was 21 years old. An age difference of 7 years when the victim is only 14 and the defendant 21 is more significant than it would be if the victim were an adult. Cf. State v. Kisch, 346 N.W.2d 130, 133 (Minn.1984) (after stating that “[a]n age difference of 5 years when juveniles are involved is a significant age difference,” we concluded that the youth of the victim could be considered in determining whether the defendant committed the offense in that case in a particularly serious way). While the victim may not have been particularly vulnerable due to age in any absolute sense and while a 14 year old generally is probably no more vulnerable to a forcible rape than an 18 year old, we believe that defendant took advantage of the victim‘s situation. It is also relevant that as a result of defendant‘s conduct, the victim suffered severe emotional distress. The presentence investigation report indicates that following the assault, the victim developed a “potentially dangerous shame-based reaction to the incident,” made a suicide gesture that consisted of slitting her wrist, cut her hair in a weird manner, refused to return to the high school where she had been making satisfactory progress and began taking nonprescription medication. She moved to Minneapolis to live with her uncle‘s family but still cried a lot, felt ashamed and was unable to accept supportive counseling. The ordinary and foreseeable consequences of a rape may be considered in determining whether to depart. See Ture v. State, 353 N.W.2d 518, 522 (Minn.1984) (durational departure upheld in part because “as a result of the incident, the victim, who later discovered she was pregnant, had to go through her entire pregnancy without knowing for sure whether the biological father of the unborn child was defendant or her boyfriend“).
Affirmed as modified.
Donald W. Selzer, Jr., St. Paul, for respondent.
KELLEY, Justice.
The Public Employment Relations Board (PERB) appeals from a decision of the Court of Appeals reversing the PERB‘s affirmation of a bargaining unit determination by the director of the Bureau of Mediation Services (BMS) establishing a separate bargaining unit for paraprofessionals in Independent School District No. 701 (the Hibbing school district).1 We reverse and remand.
For the 1982-1983 school year the Hibbing school district hired eight people to work as Title I paraprofessionals. The Title I program is a federally funded program designed to supplement regular classroom instruction of certain elementary school students performing at a level of one-half year to one year behind their classmates in reading and mathematics.
The Hibbing Federation of Teachers (HFT) filed a petition with the Bureau of Mediation Services (BMS) for the designation of an appropriate bargaining unit for those paraprofessionals, and requested that a separate bargaining unit be established for the Title I paraprofessionals employed by the school district. The Hibbing Education Association (HEA) appeared to oppose the proposed separate certification, and contended that the paraprofessionals should be included within the teacher bargaining unit represented by it. Following several hearings the director of the BMS
In reversing the PERB, the Court of Appeals held that PERB committed error by failing to consider the job functions of the paraprofessionals in arriving at its decision. Thus, the issue raised here is whether the BMS and PERB are required by the Public Employment Labor Relations Act,
We commence our analysis by noting that the construction of a statute such as the Public Employment Labor Relations Act is clearly a question of law. In such a case, the decision of the administrative agency (here the PERB) is fully reviewable by this court. See, No Power Line, Inc. v. Minnesota Environmental Quality Council, Inc., 262 N.W.2d 312, 320 (Minn.1977); Blue Earth County Welfare Dept. v. Cabellero, 302 Minn. 329, 341, 225 N.W.2d 373, 380 (1974).
Subd. 18. Teacher. “Teacher” means any public employee other than a superintendent or assistant superintendent, principal, assistant principal, or a supervisory or confidential employee, employed by a school district: (1) in a position for which the person must be licensed by the board of teaching or the state board of education; or (2) in a position as a physical therapist or an occupational therapist.
The two subdivisions of the statute clearly mandate that if the paraprofessionals are “in a position for which the person must be licensed by the board of teaching or the state board of education,” they belong in the bargaining unit represented by the HEA. Correlatively, if licensure is not required, paraprofessionals belong not in the teachers’ unit, but in a separate bargaining unit.
Notwithstanding presentation of considerable evidence that these paraprofessionals in the district made many decisions with respect to educational techniques to be used, developed plans and teaching materials, and performed other functions traditionally performed by teachers, the fact remains that they did not occupy positions for which licensure was mandated by the board of teaching or the state board of education. Uncontradicted evidence from the manager of the Title I program for the state department of education was that persons working in school districts under the Title I program did not need to be certified licensed teachers. Under the program the local school boards were vested with sole authority to determine the required qualifications of paraprofessionals, i.e. whether they needed licensure. Some school districts have no licensed personnel working in Title I programs. The Hibbing school district had no requirement for licensure, although some of the paraprofessionals were, in fact, licensed. Indeed, the HEA concedes that the state department of education and the board of teaching have no licensure category entitled “Title I Paraprofessional.” Based upon this undisputed evidence, the PERB correctly concluded that the eight paraprofessionals were not employed in a position for which they must be licensed by the board of teaching or the board of education. Moreover, it was clear that the
The HEA argues that the failure of the BMS and PERB to consider job duties “invites abuse” because failure to do so cedes to the employing school district sole discretion in defining the bargaining unit. The Court of Appeals agreed. Hibbing Education Association v. Commissioner, 346 N.W.2d at 391. Even if this contention of “abuse” has merit, it is not the function of courts to correct the alleged “abuse” by ordering PERB to consider job function in its determination of the appropriate bargaining unit. Such complaints should be directed to the board of teaching or the board of education. These state agencies possess both the jurisdiction and the expertise to decide which positions should be held only by licensed teachers. See
Finally, HEA contends that cases construing the Minnesota Teachers Tenure Act (
Accordingly, we reverse the Court of Appeals and remand for reinstatement of the order and decision of the PERB.
YETKA, Justice (dissenting).
I would affirm the court of appeals. Its decision was logical and well reasoned. Federal Title I funds were not intended for the hiring of paraprofessionals to teach. To hire licensed teachers as paraprofessionals may give school districts more for their money in the event they are paid less than regular teachers, but it is an abuse of the system. If one is a licensed teacher and is actually teaching courses that the school district would normally assign to licensed teachers, that teacher ought to be a part of the teachers’ bargaining unit.