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Biddeford Board of Ed. v. Biddeford Teachers Ass'n
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision: 1997 ME 17
Docket: YOR-96-542
Argued  January 8, 1997
Decided  January 29, 1997

PANEL: WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA, and
		LIPEZ, JJ.



BIDDEFORD BOARD OF EDUCATION, et al.

v.

BIDDEFORD TEACHERS ASSOCIATION, et al.



RUDMAN, J.

	[¶1]  The Biddeford Teachers Association and the Maine Labor
Relations Board (MLRB) appeal from the judgment entered in the Superior
Court (York County, Saufley, J.) which vacated the decision of the MLRB
finding that a tentative agreement between the Biddeford Teachers
Association and the Biddeford Board of Education had been ratified.  
Although we disagree with the rationale of the Superior Court, we affirm its
decision.
Background
	[¶2]  In July of 1995, the Biddeford Teachers Association filed a
complaint with the MLRB alleging that the Biddeford Board of Education and
its chair, Biddeford Mayor James Grattelo, violated the Municipal Public
Employees Labor Relations Law{1} (MPELRL) by not ratifying and executing a
tentative agreement endorsed by the Teachers Association and the
negotiating team appointed by the Board of Education.  The Teachers
Association alleged that Mayor Grattelo, who serves as the ex officio chair of
the Board of Education, violated the City Charter and state law when he
vetoed the tentative agreement after it had been approved by the Board of
Education.  The MLRB, concluding that the Mayor's veto violated both the
Charter and state law, ordered the Board of Education to ratify the tentative
agreement and comply with its terms.  The Mayor and Board of Education
appealed the decision of the MLRB pursuant to M.R. Civ. P. 80C.  Although
the Superior Court agreed that the mayor's veto violated both the Charter
and state law, the Superior Court held that the Board of Education had not
ratified the tentative agreement because the ratification procedure was part
of a larger process, including the veto of the contract, that was illegal.  The
court remanded to the MLRB for further proceedings.  The Teachers
Association and the MLRB appeal from that judgment.{2}
	[¶3]  The Biddeford Board of Education consists of eight members:
seven chosen by the City's electorate; and the Mayor, who is ex officio chair
of the Board.{3}  On December 13, 1993, the Board of Education met to adopt
rules of procedure, adopted Robert's Rules of Order, and voted unanimously
that the chair could vote only to break a tie.  In addition, the Board voted
unanimously to allow its chair veto power over expenditures and to provide
that the chair's veto power could be overridden by a 2/3 vote of the Board
membership.  
	[¶4]  Also at the December 13, 1993, meeting, the Board appointed
three of its members to serve as a negotiation team to meet with
representatives of the Teachers Association, whose collective bargaining
agreement was to expire in August of 1994.  The Board's negotiating team
and the Teachers Association's representatives met throughout 1994 and
reached a tentative agreement in January of 1995.  The proposed contract
was to extend from September 1, 1994, through August 31, 1997, and
included a wage increase of 2.5 percent for the first year of the contract, 3.4
percent for the second year, and 4 percent for the third year.  The
negotiators signed the tentative agreement.
	[¶5]  The Board of Education voted by a four to three vote to approve
the tentative agreement.  Grattelo vetoed the Board's approval, and the
Board failed to override his veto.  The Teachers Association subsequently
filed a prohibited practices complaint with the MLRB, alleging, inter alia,
that Grattelo's veto and the Board of Education's refusal to execute the
tentative agreement were prohibited practices under 26 M.R.S.A. § 964
(1)(A) and (E) (1988).{4}  The Teachers Association also challenged Grattelo's
direct contact with members of the bargaining unit and his opposition to the
renewal of probationary teacher contracts,{5} and charged that the Board of
Education had failed to clothe its negotiating team with sufficient authority
to negotiate an agreement.{6}  The MLRB found that Grattelo's veto and the
Board's refusal to execute the tentative agreement constituted a refusal to
bargain in violation of 26 M.R.S.A. § 964 (1) (E).  The MLRB ordered the
Board of Education to sign the tentative agreement with the BTA and
perform under its terms.
	[¶6]  The Superior Court affirmed the MLRB's determination that
Grattelo's veto violated the City Charter and 20-A M.R.S.A. § 13201 (1993). 
The court held, however, that the MLRB erred in concluding that the Board
of Education ratified the tentative agreement because that ratification was
part of a procedural process, and once the MLRB had determined that the
process was defective, the ratification could not stand by itself.
Discussion
	[¶7]  When the Superior Court acts as an intermediate appellate court,
we directly review the MLRB decision from which the appeal was taken. 
Council 74, A.F.S.C.M.E. v. Maine State Employees Ass'n, 476 A.2d 699, 703
(Me. 1984).  An order of the MLRB should be vacated "only if the record
demonstrates that the agency abused its discretion, committed an error of
law, or made findings not supported by substantial evidence."  City of Bangor
v. M.L.R.B., 658 A.2d 669, 671 (Me. 1995).
Approval of the Tentative Agreement
	[¶8]  As a threshold matter, we address the contention of the Board of
Education that its four to three vote in favor of the tentative agreement was
insufficient to constitute the majority needed for ratification.  Article Five,
Section One of the Biddeford City Charter provides that the Board of
Education is to consist of eight members including the mayor, who is the ex
officio chair of the Board.  The City Charter empowers the Board to "meet
for organization," which it did on December 13, 1993.  At that meeting, the
Board adopted Robert's Rules of Order with the modification that its chair
could vote only to break a tie and had veto power over expenditures. 
	[¶9]  When the tentative agreement was presented for ratification, the
Board voted four to three in favor of the agreement.  Grattelo did not vote
because he was not, pursuant to Board procedural rules, permitted to vote. 
Robert's Rules of Order, adopted by the Board, provides that "when the
term majority vote is used without qualification -- as in the case of the basic
requirement -- it means more than half of the votes cast by persons legally
entitled to vote, excluding blanks or abstentions . . . ."  Robert's Rules of
Order § 39 at 104 (1982).  Grattelo was empowered to vote only in the
event of a tie.  The four to three vote of the Board was sufficient to approve
the tentative agreement.
Grattelo's Veto of the Approval
	[¶10]  At its organizational meeting, the Board had voted unanimously
to grant its chair veto power over expenditures and to provide that the
chair's veto could be overridden by a two-thirds majority of the Board.  After
the Board approved the tentative agreement, Grattelo exercised his veto,
and the Board failed to override his veto.  The ratification process adopted
by the Board of Education was a three step process which we review in the
light of the City Charter and the applicable statutes.
City Charter
	[¶11]  Contrary to the MLRB's conclusion, the process does not
conflict with the City Charter.  The City Charter clearly provides that the
Mayor is to serve as chair of the Board.{7}  The Charter empowers the Board
to adopt its own procedural rules,{8} and the Board is invested by the Charter
with all necessary powers to manage the school department.{9}  We will
generally defer to the procedural rules adopted by agencies "[i]n the absence
of a controlling agency rule or a contrary requirement of statutory and
constitutional law."  Town of Wiscasset v. Board of Environmental
Protection, 471 A.2d 1045, 1048 (Me. 1984).  Municipalities have general
power to enact measures to advance the powers granted to them by the
legislature.  "When no specific provision in a city charter exists in reference
to the exercise of a municipal power, the city has all of the powers granted
to towns or municipalities under the general law."  30-A M.R.S.A. § 2004
(1996).  The Board of Education is empowered to adopt its own procedural
rules, and the procedure they adopted does not conflict with the Charter. 
The practical effect of the Board's adopted procedure is not different than
to require a majority vote of the eight member Board.  20-A M.R.S.A. §
13201.
	[¶12]  The MLRB also found that the procedure adopted by the Board
conflicted with 20-A M.R.S.A. §13201 (1993),{10} that places statutory
authority to set teacher salaries with school boards.  We have previously
rejected local legislative action that conflicted with a state legislative
scheme clearly intended by the Legislature to occupy the regulated field. 
See, e.g., Ullis v. Town of Boothbay Harbor, 459 A.2d 153, 159 (Me. 1983)
(rejecting local liquor ordinance that "works at cross purposes to the state's
liquor licensing statutes, and therefore impermissibly conflicts with them").  
Although in Ullis we held that "the legislature by clear implication has
denied to municipalities the right to legislate in the area of liquor sales," we
have not reached the same conclusion in the area of education.  As we have
stated, "[g]iven the broad delegation of home rule authority and the standard
of review of municipal legislation set out in section 3001, we conclude that
Title 20-A is not an exclusive legislative scheme that implicitly preempts
municipal legislation on education matters in the absence of an express
grant of authority." School Comm. of Town of York v. Town of York, 626 A.2d
935, 942 (Me. 1993).{11}  
	[¶13]  The approval process adopted by the Board of Education did not
divest the Board of its statutorily delegated authority to control teachers'
salaries.  Grattelo was not acting as Mayor when he utilized his veto power;
rather, he was acting as chair of the Board of Education, exercising the
procedural power granted to him by that body, subject to its authority to
override the chair's action by a two-thirds majority vote.  The Board did not
override its chair's action.  The procedure adopted by the Board was proper. 
The MLRB erroneously concluded that the tentative agreement was ratified
and erroneously ordered the Board to execute the tentative agreement. 
	The entry is:
			Judgment affirmed.


                                                             

Attorneys for appellants:

M. Wayne Jacobs, Esq. (orally)
Maine Labor Relations Board
90 State House Station
Augusta, ME 04333-0090

John G. Richardson, Esq. (orally)
Daniel R. Felkel, Esq.
Troubh, Heisler & Piampiano, P.A.
P O Box 9711
Portland, ME 04104-5011
(for Biddeford Teachers Association)

Attorney for appellees:

Harry B. Center, II, Esq. (orally)
Smith, Elliott, Smith & Garmey, P.A.
P O Box 1179
Saco, ME 04072
(for Board of Education)
FOOTNOTES******************************** {1} Title 26 M.R.S.A. §§ 961 - 974 (1988 and Supp. 1996). {2} In addition, the Board of Education and Mayor Grattelo cross-appeal the MLRB's determination that the Mayor's veto of the tentative agreement was invalid. The MLRB also filed a motion to vacate a partial stay that had been imposed by the Superior Court. Our decision obviates the need to respond to the motion and the cross appeal separately. {3} Article Five of the Biddeford City Charter provides: Sec. 1. The board of education shall be composed of the mayor and seven (7) members who shall hold office for a term of two (2) years until their successors are qualified. Sec. 2. The mayor shall be ex officio chair of the board. {4} 26 M.R.S.A. § 964 (1) (1988) provides, in pertinent part: Public employer prohibitions. Public employers, their representatives and their agents are prohibited from: A. Interfering with, restraining or coercing employees in the exercise of the rights guaranteed in section 963; . . . E. Refusing to bargain collectively with the bargaining agent of its employees as required by section 965. {5} The BTA alleged a violation of 26 M.R.S.A. § 964 (A)(1) and (B) (1988). The MLRB did not find the Mayor or the Board of Education in violation of these provisions of the M.P.E.L.R.L., and the BTA does not challenge that finding. {6} The MLRB found that the "Board team failed to give its negotiating team sufficient instruction respecting their latitude in negotiating wage instruments" in violation of the Board's duty to negotiate in good faith. The MLRB ordered the Board to clothe its bargaining team "with sufficient authority and/or bargaining instructions." The Board of Education does not challenge this finding of the MLRB. {7} Article 5, § 2 provides: "The mayor shall be ex officio chair of the board." {8} Article 5, § 3 provides: "The board of education shall meet for organization as soon as possible following the regular municipal election." {9} Article 5, § 4 provides: "The Board of Education shall have all the powers and perform all the duties in regard to the care and management of the department of education." {10} 20-A M.R.S.A. § 13201 (1993) provides, in pertinent part: The superintendent shall nominate all teachers, subject to such regulations governing salaries and the qualifications of teachers as the school board shall make. Upon the approval of nominations, by the school board, the superintendent may employ teachers so nominated and approved for such terms as the superintendent may deem proper, subject to the approval of the school board. {11} 30-A M.R.S.A. § 3001(3) provides: "The Legislature shall not be held to have implicitly denied any power granted to municipalities under this section unless the municipal ordinance in question would frustrate the purpose of any state law."