Printable Format72-2218. Definitions. As used in this act, and amendments thereto:
(a) The term "persons" includes one or more individuals, organizations, associations, corporations, boards, committees, commissions, agencies, or their representatives.
(b) "Board of education" means the state board of education pursuant to its authority under K.S.A. 76-1001a and 76-1101a, and amendments thereto, the board of education of any school district, the board of control of any area vocational-technical school and the board of trustees of any community college.
(c) "Professional employee" means any person employed by a board of education in a position which requires a certificate issued by the state board of education or employed by a board of education in a professional, educational or instructional capacity, but shall not mean any such person who is an administrative employee and, commencing in the 2006-2007 school year, shall not mean any person who is a retirant from school employment of the Kansas public employees retirement system, regardless of whether an agreement between a board of education and an exclusive representative of professional employees that covers terms and conditions of professional service provides to the contrary.
(d) "Administrative employee" means, in the case of a school district, any person who is employed by a board of education in an administrative capacity and who is fulfilling duties for which an administrator's certificate is required under K.S.A. 72-255, and amendments thereto; and, in the case of an area vocational-technical school or community college, any person who is employed by the board of control or the board of trustees in an administrative capacity and who is acting in that capacity and who has authority, in the interest of the board of control or the board of trustees, to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward or discipline other employees, or responsibly to direct them or to adjust their grievances, or effectively to recommend a preponderance of such actions, if in connection with the foregoing, the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
(e) "Professional employees' organizations" means any one or more organizations, agencies, committees, councils or groups of any kind in which professional employees participate, and which exist for the purpose, in whole or part, of engaging in professional negotiation with boards of education with respect to the terms and conditions of professional service or for the purpose of professional development or liability protection.
(f) "Representative" means any professional employees' organization or any person it authorizes or designates to act in its behalf or any person a board of education authorizes or designates to act in its behalf.
(g) "Professional negotiation" means meeting, conferring, consulting and discussing in a good faith effort by both parties to reach agreement with respect to the terms and conditions of professional service.
(h) "Mediation" means the effort through interpretation and advice by an impartial third party to assist in reconciling a dispute concerning terms and conditions of professional service which arose in the course of professional negotiation between a board of education or its representatives and representatives of the recognized professional employees' organization.
(i) "Fact-finding" means the investigation by an individual or board of a dispute concerning terms and conditions of professional service which arose in the course of professional negotiation, and the submission of a report by such individual or board to the parties to such dispute which includes a determination of the issues involved, findings of fact regarding such issues, and the recommendation of the fact-finding individual or board for resolution of the dispute.
(j) "Strike" means an action taken for the purpose of coercing a change in the terms and conditions of professional service or the rights, privileges or obligations thereof, through any failure by concerted action with others to report for duty including, but not limited to, any work stoppage, slowdown, or refusal to work.
(k) "Lockout" means action taken by a board of education to provoke interruptions of or prevent the continuity of work normally and usually performed by the professional employees for the purpose of coercing professional employees into relinquishing rights guaranteed by this act and the act of which this section is amendatory.
(l) (1) "Terms and conditions of professional service" means: (A) Salaries and wages, including pay for duties under supplemental contracts; hours and amounts of work; vacation allowance, holiday, sick, extended, sabbatical and other leave, and number of holidays; retirement; insurance benefits; wearing apparel; pay for overtime; jury duty; grievance procedure, including binding arbitration of grievances; disciplinary procedure; resignations; termination and nonrenewal of contracts; reemployment of professional employees; terms and form of the individual professional employee contract; probationary period; professional employee appraisal procedures; each of the foregoing being a term and condition of professional service, regardless of its impact on the employee or on the operation of the educational system; (B) matters which relate to privileges to be granted the recognized professional employees' organization, including, but not limited to, voluntary payroll deductions; dissemination of information regarding the professional negotiation process and related matters to members of the bargaining unit on school or college premises through direct contact with members of the bargaining unit; reasonable leaves of absence for members of the bargaining unit for organizational purposes, such as engaging in professional negotiation and partaking of instructional programs properly related to the representation of the bargaining unit; any of the foregoing privileges which are granted the recognized professional employees' organization through the professional negotiation process shall not be granted to any other professional employees' organization; and (C) such other matters as the parties mutually agree upon as properly related to professional service including, but not limited to, employment incentive or retention bonuses authorized under K.S.A. 72-2244, and amendments thereto.
(2) Nothing in this act, and amendments thereto, shall authorize any professional employees' organization to be granted the exclusive privilege of access to the use of school or college facilities for meetings, the use of bulletin boards on or about the facility or the use of school or college mail systems.
(3) Nothing in this act, and amendments thereto, shall authorize the diminution of any right, duty or obligation of either the professional employee or the board of education which have been fixed by statute or by the constitution of this state. Except as otherwise expressly provided in this subsection (l), the fact that any matter may be the subject of a statute or the constitution of this state does not preclude negotiation thereon so long as the negotiation proposal would not prevent the fulfillment of the statutory or constitutional objective.
(4) Matters which relate to the duration of the school term, and specifically to consideration and determination by a board of education of the question of the development and adoption of a policy to provide for a school term consisting of school hours, are not included within the meaning of terms and conditions of professional service and are not subject to professional negotiation.
(m) "Secretary" means the secretary of labor or a designee thereof.
(n) "Statutory declaration of impasse date" means July 31 in the current school year.
(o) "Supplemental contracts" means contracts for employment duties other than those services covered in the principal or primary contract of employment of the professional employee and shall include, but not be limited to, such services as coaching, supervising, directing and assisting extracurricular activities, chaperoning, ticket-taking, lunchroom supervision, and other similar and related activities.
History: L. 1970, ch. 284, § 1; L. 1976, ch. 314, § 1; L. 1977, ch. 248, § 1; L. 1979, ch. 226, § 1; L. 1980, ch. 220, § 1; L. 1989, ch. 216, § 1; L. 1990, ch. 255, § 1; L. 2002, ch. 167, § 4; L. 2004, ch. 179, § 94; L. 2006, ch. 143, § 4; L. 2009, ch. 72, § 1; L. 2013, ch. 52, § 2; L. 2015, ch. 92, § 12; July 1.
Source or Prior Law:
72-5413.
Cross References to Related Sections:
Professional employees' organization, see 75-4339.
Law Review and Bar Journal References:
Kansas public employer-employee relations law, W. Stanley Churchill, 41 J.B.A.K. 13, 15 (1972).
New statutory enactments modifying common law and statutory contract principles discussed in survey of Kansas contract law, 21 K.L.R. 137, 155 (1972).
"Teachers and the School Board—Negotiations in Kansas," Janet Chubb and David Gray, 15 W.L.J. 457, 467, 469 (1976).
"Survey of Kansas Law: Civil Procedure," Jerry G. Elliott, 27 K.L.R. 185, 193 (1979).
"The Kansas Public Employer-Employee Relations Law," Raymond Goetz, 28 K.L.R. 243, 245, 246 (1980).
"Labor Law—Mandatory Subjects of Bargaining Under the Kansas Public Employer-Employee Relations Act—Kansas Board of Regents v. Pittsburg State University Chapter of Kansas-National Education Association," Diana Dietrich, 32 K.L.R. 697 (1984).
Attorney General's Opinions:
Teachers' contracts; negotiable items; unilateral changes by board not authorized. 84-67.
Kansas state school for the deaf and Kansas state school for the visually handicapped; employees. 85-12.
Due process procedure; notice to discontinue contract; negotiability of date. 86-44.
Early retirement incentive programs; incentive payments exceeding one year. 89-18.
Policy of evaluation of certificated school personnel; legislative intent. 90-133.
CASE ANNOTATIONS
1. Act construed; recognition dispute; duty of board to negotiate with recognized representative; no termination of agreement. Liberal-NEA v. Board of Education, 211 Kan. 219, 225, 227, 228, 229, 505 P.2d 651.
2. Action involving teachers' association and school board; act requires good faith effort to negotiate. National Education Association v. Board of Education, 212 Kan. 741, 743, 747, 748, 512 P.2d 426.
3. No assistance under act to professional employees who strike. Seaman Dist. Teachers' Ass'n v. Board of Education, 217 Kan. 233, 234, 236, 237, 243, 246, 535 P.2d 889.
4. Professional employees' organization authorized to sue and be sued in name of organization. Seaman Dist. Teachers' Ass'n v. Board of Education, 217 Kan. 233, 234, 236, 237, 243, 246, 535 P.2d 889.
5. Order declaring impasse under this Act not subject to appeal. In re NEA-Topeka, Inc., 224 Kan. 291, 292, 579 P.2d 1216. Opinion supplemented, 224 Kan. 582, 583, 584, 581 P.2d 1187.
6. Judge directed to order commencement of impasse resolution procedures. Garden City Educators' Ass'n v. Vance, 224 Kan. 732, 734, 735, 737, 739, 743, 585 P.2d 1057.
7. Mentioned in applying professional negotiations law to community junior colleges; agreement binding as to contract of teacher. Boatright v. Board of Trustees of Butler Co. Jr. College, 225 Kan. 327, 330, 590 P.2d 1032.
8. Mentioned in holding professional employees' association was acting as agent for teachers in negotiations with board. Riley County Education Ass'n v. U.S.D. No. 378, 225 Kan. 385, 389, 391, 392, 592 P.2d 87.
9. Held as not inconsistent with continuing contract law; upon failure of negotiation, teachers may accept unilateral contract or proceed under continuing contract law. NEA-Wichita v. Board of Education of U.S.D. No. 259, 225 Kan. 395, 400, 592 P.2d 80.
10. Construed as to scope of professional negotiations, determination of mandatorily negotiable items within phrase "terms and conditions of professional service." NEA-Topeka, Inc. v. U.S.D. No. 501, 225 Kan. 445, 446, 448, 449, 451, 453, 455, 592 P.2d 93.
11. Section cited; discussion of rules for determining the scope of mandatory negotiations. Chee-Craw Teachers Association v. U.S.D. No. 247, 225 Kan. 561, 564, 565, 566, 568, 569, 571, 593 P.2d 406.
12. Subsection (l) cited in appeal of determinations of whether numerous bargaining proposals mandatorily negotiable. NEA-Parsons v. U.S.D. No. 503, 225 Kan. 581, 582, 583, 585, 587, 593 P.2d 414.
13. Authority granted secretary of human resources under act does not violate Kansas constitution. NEA-Fort Scott v. U.S.D. No. 234, 225 Kan. 607, 592 P.2d 463.
14. Injunction brought by professional employees' organization; determination of negotiability of proposed items; duty of trial court to determine mandatory subjects. Tri-County Educators' Association v. Tri-County Special Education Cooperative, 225 Kan. 781, 783, 784, 786, 594 P.2d 207.
15. Subsection (l) cited in action determining whether certain items of negotiation are mandatory. NEA-Kansas City v. U.S.D. No. 500, 227 Kan. 541, 542, 543, 545, 608 P.2d 415.
16. Applied; school board precluded from rescinding its decision until individual teachers had reasonable time to accept or reject. Burrton Education Ass'n. v. U.S.D. No. 369, 4 Kan. App.2d 141, 142, 143, 145, 604 P.2d 57.
17. Cited; choice of exclusive representative of professional employees does not negate right of district to make payroll deductions of dues for a different professional employees' organization upon proper authorization. NEA-Wichita v. U.S.D. No. 259, 4 Kan. App.2d 443, 446, 608 P.2d 1367.
18. Trial court correctly found school board's notice of termination was timely given. Gragg v. U.S.D. No. 287, 6 Kan. App.2d 152, 154, 627 P.2d 335.
19. Board cannot change items "mandatorily negotiable" not covered or discussed under negotiated agreement while in force. Dodge City Nat'l Education Ass'n v. U.S.D. No. 443, 6 Kan. App.2d 810, 811, 635 P.2d 1263 (1981).
20. Considered in construing public employer-employee relations act (K.S.A. 75-4321 et seq.). Kansas Bd. of Regents v. Pittsburg State Univ. Chap. of K-NEA, 233 Kan. 801, 817, 818, 822, 667 P.2d 306 (1983).
21. Board may not, while agreement in force, unilaterally change mandatorily negotiable items. NEA-Wichita v. U.S.D. No. 259, 234 Kan. 512, 521, 674 P.2d 478 (1983).
22. Mechanics of staff reduction, employee files and student teacher programs all mandatorily negotiable; subsection (l) interpreted. U.S.D. No. 501 v. Secretary of Kansas Dept. of Human Resources, 235 Kan. 968, 685 P.2d 874 (1984).
23. Supplemental contracts not subject to due process; terminable by either party. Swager v. Board of Education, U.S.D. No. 412, 9 Kan. App.2d 648, 652, 657, 688 P.2d 270 (1984).
24. Divisible surplus accumulated under health insurance policy purchased by board pursuant to agreement not subject to negotiation. U.S.D. No. 259 v. Kansas—National Education Ass'n, 239 Kan. 76, 79, 716 P.2d 571 (1986).
25. Cited; negotiated agreement permitting unilateral termination or nonrenewal for refusing supplemental duties conflicts with statutory scheme. U.S.D. No. 241 v. Swanson, 11 Kan. App.2d 171, 172, 717 P.2d 526 (1986).
26. Cited; absence of legislative intent authorizing school districts to contract away two-year employment provisions of K.S.A. 72-5445 examined. Miller v. U.S.D. No. 470, 12 Kan. App.2d 368, 369, 744 P.2d 865 (1987).
27. Cited; nonrenewal of nontenured teacher, inapplicability of master agreement provision on evaluation examined. Miller v. U.S.D. No. 470, 242 Kan. 817, 818, 752 P.2d 113 (1988).
28. Cited; rebuttable presumption of qualification represented by teaching certificate, tenured teacher's rights in reduction of force situation examined. Bauer v. U.S.D. No. 452, 244 Kan. 6, 15, 765 P.2d 1129 (1988).
29. Noon-recess duty and noon-hallway duty not within definition of supplemental contracts as set out herein. NEA-Goodland v. U.S.D. No. 352, 13 Kan. App.2d 558, 559, 775 P.2d 675 (1989).
30. Evaluation procedures are mandatorily negotiable; evaluation criteria are not. U.S.D. No. 352 v. NEA-Goodland, 246 Kan. 137, 144, 785 P.2d 993 (1990).
31. Timeliness of prohibited practice complaints, unilateral contracts altering and adding terms and conditions, charging board's negotiation expenses to teachers' salaries, secretary's authority examined. U.S.D. No. 279 v. Secretary of Kansas Dept. of Human Resources, 14 Kan. App.2d 248; affirmed in part, reversed in part, 247 Kan. 519, 802 P.2d 516 (1990).
32. Cited in review of authority of Board of Healing Arts to regulate the practice of medicine. Vakas v. Kansas Bd. of Healing Arts, 248 Kan. 589, 598, 808 P.2d 1355 (1991).
33. Unilaterally imposing liquidated damages on resigning teachers found not to be a prohibited practice. Garden City Educators' Ass'n v. U.S.D. No. 457, 15 Kan. App.2d 187, 190, 805 P.2d 511 (1991).
34. Application of section considered in determining rights of teacher laid off due to reduction in staff. Thompson v. U.S.D. No. 259, 16 Kan. App.2d 42, 46, 47, 819 P.2d 1236 (1991).
35. School board's refusal to negotiate evaluation procedures for implementing new teacher evaluation criteria determined a prohibited practice under K.S.A. 72-5430(b)(5). U.S.D. No. 314 v. Kansas Dept. of Human Resources, 18 Kan. App.2d 596, 598, 856 P.2d 1343 (1993).
36. Decision concerning negotiability of contract provision under PNA (K.S.A. 72-5413 et seq.) determined by secretary of human resources, not declaratory judgment action. Junction City Education Ass'n v. U.S.D. No. 475, 264 Kan. 212, 220, 955 P.2d 1266 (1998).
37. Noncertified professional employees' organization not entitled to use school district's internal mail system. U.S.D. No. 233 v. Kansas Ass'n of American Educators, 275 Kan. 313, 64 P.3d 372 (2003).
38. Cited; PNA law and statutes distinguished from PEERA; PERB has no authority to award monetary damages. Ft. Hays St. Univ. v. University Ch., Am. Ass'n of Univ. Profs., 40 Kan. App.2d 714, 717, 730, 195 P.3d 259 (2008).