filed: January 22, 1993; As Corrected February 12, 1993.
On Appeal From the District Court of the Virgin Islands. D.C. Civil No. 91-0098.
Before: Becker, Cowen and Roth, Circuit Judges.
The Virgin Islands Legislature has granted both the Virgin Islands Board of Education ("Board") and the Virgin Islands Department of Education ("Department") fairly broad powers with respect to the operation of the Virgin Islands public schools. This appeal presents the question whether the Board or the Department has the statutory authority to set the school calendar.
The case arises from a tug-of-war between the Board and the Department over the issue that began when the school calendar prepared by the Department and submitted to the Board for approval for the 1990-91 school year contained fewer than the 180 instructional days that the Board believes are mandated by law. The Board disapproved, but the Secretary of Education promulgated the calendar nonetheless, causing the Board considerable ire. The Board thereupon sought declaratory and injunctive relief in the Territorial Court of the Virgin Islands. The Territorial Court concluded that it is the Board that possesses the power to promulgate the school calendar for the Virgin Islands public schools.
Although the question is close, we agree with the Territorial Court (and the Appellate Division of the District Court of the Virgin Islands, which affirmed its order) and will affirm. Because of the friction created by the lack of clarity in the legislative scheme, we urge the Virgin Islands legislature to take swift action to rectify it.
On July 26, 1989, the Board informed the Department that it was "reluctantly" approving the 1989-90 school calendar, but that it would not approve any future calendar which contained "less than 180 teaching days." The parties apparently agree that the school calendar should contain 180 teaching days, but disagree as to what constitutes a "teaching day." The Board considers a teaching day to be any day that teachers are actually giving classroom instruction or conducting examinations, whereas the Department interprets a teaching day to be any day that a teacher is required to be at the school, whether engaged in teaching, orientation, scheduling or otherwise.
The 1990-91 school calendar was submitted by the Department to the Board for approval but, according to the Board, a review and compilation of the teaching therein disclosed only 178 teaching days for elementary schools and 156 teaching days for secondary schools. The Board rejected the calendar, but the Commissioner of Education circulated it to her superintendents for information and distribution (after it had been approved by the Governor of the Virgin Islands).
When negotiation failed to resolve the dispute, the Board instituted an action for declaratory and injunctive relief asking the Territorial Court to require the Department (and the Governor) to retract the school calendar distributed within the Department and to issue a new school calendar that strictly complied with all specifications determined by the Board. After a full hearing on the merits, the Territorial Court filed a memorandum opinion resolving the dispute in favor of the Board. It nonetheless granted prospective relief only, declining to order retraction of the 1990-91 school calendar.
The Court noted preliminarily that the heart of the dispute between the parties was the definition of teaching day. The Court then indicated that the Board might eventually precisely define the term teaching day by regulation or specific directive. It also observed that a contract had been negotiated by the Department with the Teachers' Union utilizing the Department's definition, and that it would be inequitable and counterproductive to disturb the Commissioner's interpretation at that point in time (the middle of the 1990-91 school year). The Court was therefore unwilling to require renegotiation of the current contract, and granted only declaratory relief. This timely appeal followed.
It is important to note that the Territorial Court's Discussion reflects its understanding of the critical role played in this area by the collective bargaining negotiations. Indeed, in one sense the nub of the problem is that, while the Board appears to have the preeminent role in matters of policy affecting the schools, see Discussion infra, page 8-9, the Department has been the only party representing the schools in the bargaining with the Union. Since the contract determines how many days the teachers will (get paid to) teach, there is a tension between one party setting the school calendar, and a different party negotiating the agreement (and not feeling bound by the school calendar). Indeed the Board has sued in Territorial Court seeking declaratory and injunctive relief that would give it a role in these negotiations. See Virgin ...