author: APPEL, Justice.

text:
    WATERLOO EDUCATION ASSOCIATION, Appellant v. IOWA PUBLIC EMPLOYMENT RELATIONS, Appellee, and Waterloo Community School District, Intervenor-Appellee.
    No. 05-1068.
    Supreme Court of Iowa.
    Oct. 19, 2007.

      Gerald L. Hammond, Des Moines, for appellant.
    Jan V. Berry, Des Moines, for appellee.
    Brian L. Gruhn of Gruhn Law Firm, Cedar Rapids, for intervenor-appellee.
   APPEL, Justice.

In this case, we must decide whether an overload pay proposal submitted by the Waterloo Education Association (Association) to the Waterloo Community School District (District) is a mandatory or permissive subject of collective bargaining under section 20.9 of the Iowa Public Employment Relations Act (PERA). The Public Employment Relations Board (PERB) ruled that the proposal was a permissive subject of bargaining. The district court affirmed. We find the specific proposal in this case to be a mandatory subject of collective bargaining. We therefore reverse the district court and remand the matter for .further proceedings.

I. Prior Proceedings.

The Association filed a petition with PERB seeking an expedited determination on whether the overload pay proposal it presented to the District was a mandatory subject of bargaining under section 20.9 of PERA. The overload pay proposal provided that elementary teachers who teach more than three hundred minutes per day as part of regular work assignments “shall receive additional compensation.” “Secondary and middle school teachers who are assigned to teach six (6) classes per day” were also entitled to additional compensation. The overload pay proposal provided that additional teaching assignments would be compensated at “the employee’s hourly proportionate per diem rate.”

PERB issued a preliminary ruling finding that the proposal constituted a permissive subject of bargaining and followed the preliminary ruling with a lengthy final order containing the Board’s reasoning. In its final order, PERB stated that it believed that the precedents of this court required the result. PERB, however, stated that this court’s precedents suffer from an error that PERB itself may have precipitated through its own poorly reasoned decisions. The Board stated that if it did not feel constrained by our precedents, it would hold that the proposal was a mandatory subject of collective bargaining.

The Association appealed the decision to district court, which affirmed the PERB decision. The Association then filed a timely notice of appeal with this court.

II. Standard of Review.

As a threshold matter, we must determine whether the Board’s interpretation of section 20.9 is entitled to deference. Under Iowa Code section 17A.19(10)(c), (l) (2005), deference is warranted where interpretation of the statute is “clearly ... vested by a provision of law in the discretion of the agency.” “If the interpretation is so vested, then the court may reverse only upon a finding the agency’s interpretation was ‘irrational, illogical, or wholly unjustifiable.’ ” Birchansky Real Estate, L.C. v. Iowa Dep’t of Pub. Health, State Health Facilities Council, 737 N.W.2d 134, 138 (Iowa 2007) (quoting Iowa Code § 17A.19(10)(c), (l)). Alternatively, if interpretation has not been explicitly vested in the agency, our review is for errors at law. Id. Whether a proposal is a mandatory subject of collective bargaining, as defined by Iowa Code § 20.9, has not been explicitly vested in PERB’s discretion. See Insituform Technologies, Inc. v. Employment Appeal Bd., 728 N.W.2d 781, 800 (Iowa 2007) (holding that interpretation of “willful” was not vested within the agency’s discretion). Therefore, our review is for correction of errors at law. Iowa Code § 17A.19(10)(c).

III. Discussion.

A. Introduction to Scope of Bargaining Issues. With the enactment at the height of the Great Depression of the National Labor Relations Act (NLRA), 29 U.S.C. sections 151-69 (2005), the prevailing view was that mandatory collective bargaining was an appropriate mechanism to adjust the conflicting relationship between economically powerful employers and comparatively weak employees. While the power of employees would obviously be strengthened by collective bargaining, it was generally believed that market forces would prevent employees from gaining too much at the expense of an employer. If wages became too high, the price of goods or services offered by the employer could become uncompetitive, thereby forcing moderation in employee demands.

In contrast, it was almost unanimously assumed that the collective bargaining model had no application to the public sector. Even President Franklin D. Roosevelt advised public employee leaders that “the process of collective bargaining, as usually understood, cannot be translated into the public service” because the employer was “the whole people” speaking through their public representatives. Letter from Franklin D. Roosevelt to Luther Steward (August 31, 1937), as reprinted in Christine G. Cooper & Sharon Bauer, Federal Sector Labor Relations Reform, 56 Chi.-Kent L.Rev. 509, 511-12 (1980). In short, it was feared that collective bargaining would intrude too deeply upon public policy matters that should be decided by responsible public officials.

Over time, the presumption that the collective bargaining model had no application to the public sector came under challenge. As noted by Professor Merton Bernstein, after the enactment of the NLRA and the growth in the number and power of private sector unions, a large number of semiskilled and skilled workers entered the middle class, while public employees such as teachers did not experience similar gains. This apparent disparity increasingly caused government employees to demand reforms designed to improve their economic standing. Merton C. Bernstein, Alternatives to the Strike in Public Labor Relations, 85 Harv. L.Rev. 459, 460 (1971). Across the country, various commissions and studies were conducted to determine if and how collective bargaining concepts could be applied to the public sector.

Beginning with Wisconsin in 1959, state legislatures began to enact legislation authorizing collective bargaining in the public sector. Joan Weitzman, The Scope of Bargaining in Public Employment 40-41 (1975). By 1974, forty states had adopted some kind of collective bargaining for public employees, while twenty-eight states enacted comprehensive statutes of general applicability. Id.

Most of these state public collective bargaining statutes adopted language similar to the NLRA model, which expansively authorized mandatory collective bargaining over wages, hours, and “other terms and conditions of employment.” Many state public collective bargaining statutes, however, also included management rights provisions designed to reserve certain managerial and policy decisions. The goal seems to have been to allow public employees to collectively bargain to improve their economic well-being without unduly sacrificing the ability of politically responsible officials to manage public bodies and establish the broad contours of public policy.

Iowa lagged behind in the enactment of public employment collective bargaining legislation. At first, public employees pursued collective bargaining through exclusive employee representatives without express legislative authorization. In State Board of Regents v. United Packing House Food & Allied Workers, Local No. 1258, 175 N.W.2d 110 (Iowa 1970), this court held that public agencies did not have the power to agree to exclusive representation by an employee organization for collective bargaining without legislative authorization. 175 N.W.2d at 113-14. Four years later in 1974, the Iowa legislature enacted PERA. 1974 Iowa Acts ch. 1095, § 9.

In PERA, the legislature declined to adopt the NLRA model on the question of what subject matters are mandatory subjects of collective bargaining. Instead of incorporating the expansive NLRA language mandating collective bargaining over wages, hours and “other terms and conditions of employment,” the Iowa legislature instead specifically enumerated seventeen topics subject to collective bargaining. Iowa Code § 20.9.

These seventeen topics are sometimes referred to as the “laundry list” of mandatory subjects of collective bargaining. Specifically, section 20.9 provides that the public employer and the employee organization “shall” negotiate in good faith with respect to “wages, hours, vacations, insurance, holidays, leaves of absence, shift differentials, overtime compensation, supplemental pay, seniority, transfer , procedures, job: classifications, health and safety matters, evaluation procedures, procedures for staff reduction, in-service training, and other matters mutually agreed upon.” Id.

Like many other states, the Iowa legislature also included a management rights provision in the statute. Section 20.7 of PERA states that public employers shall have “the exclusive power, duty, and right to,” among other things, “[djirect the work of its public employees,” “[m]aintain the efficiency of governmental operations,” and “[d]etermine and implement methods, means, assignments and personnel by which the public employer’s operations are to be conducted.” Id. § 20.7. Thus, Iowa’s PERA contains both a provision establishing mandatory collective bargaining on specified matters and a contrapuntal management rights clause preserving exclusive, public management powers in traditional areas.

This court has recognized that section 20.9 establishes two classes of collective bargaining proposals: mandatory and permissive. City of Fort Dodge v. Iowa Pub. Employment Relations Bd., 275 N.W.2d 393, 395 (Iowa 1979). Mandatory subjects are those matters upon which the public employer is required to engage in bargaining. Id. Permissive subjects are those that the legislature did not specifically list in section 20.9, but are matters upon which both the public employer and the employee organization simply agree to bargain. Id.

Whether a proposal is a mandatory or permissive subject of bargaining under section 20.9 is a critical issue. If a subject is within the scope of mandatory bargaining, the parties are required to bargain over the issue, and if agreement is not reached, the statutory impasse procedures, which ultimately lead to binding arbitration, are available. Decatur County v. Pub. Employment Relations Bd., 564 N.W.2d 394, 396 (Iowa 1997). If, on the other hand, the proposal is a permissive subject of bargaining under section 20.9, the public employer may reserve the right to decide the issue unilaterally by declining to participate in bargaining. When the employer declines to bargain over a permissive subject, the impasse procedures in PERA are not available and decisions related to the subject remain within the exclusive power of the public employer.

The central issue presented in this case is whether the Association’s overload wage proposal is a mandatory or permissive subject of collective bargaining.

B. Methods of Resolving Scope of Bargaining Disputes.

1. Scope of bargaining in the state and federal courts. From the beginning of collective bargaining, the question of what subject matters are mandatory subjects of collective bargaining sparked considerable litigation as employers and employee organizations jockeyed for position. In general, the United States Supreme Court has construed the NLRA to provide a relatively broad scope of mandatory bargaining under the phrase “wages, hours, and other terms and conditions of employment.”

The United States Supreme Court has, however, held that even the expansive NLRA scope-of-bargaining provision has limits. For example, in Fibreboard Paper Products Corporation v. National Labor Relations Board, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964), the high court observed that the phrase “other terms and conditions of employment” was a flexible term which would expand to conform with prevailing industry practices. Id. at 210, 85 S.Ct. at 402-03, 13 L.Ed.2d at 238.

In an important concurring opinion in Fibreboard, Justice Potter Stewart advanced the concept that there were certain core entrepreneurial activities that were not subject to collective bargaining. Id. at 223, 85 S.Ct. at 409-10, 13 L.Ed.2d at 245-46 (Stewart, J., concurring). This line drawing, however, between bargainable “terms and conditions” and core entrepreneurial activities was to be done on a ease-by-case basis. Id. Ultimately, the Supreme Court articulated a balancing test for scope-of-bargaining issues in which the benefits for labor-management relations must be greater than the burdens placed on an employer subject to bargaining. First Nat’l Maintenance Corp. v. Nat’l Labor Relations Bd., 452 U.S. 666, 679, 101 S.Ct. 2573, 2581, 69 L.Ed.2d 318, 331 (1981).

In the context of state public bargaining statutes that use the expansive NLRA phrase “other terms and conditions of employment” to describe mandatory bargaining subjects, the analysis becomes even more complicated with the inclusion of a management rights provision. Employment terms and conditions are often intertwined or entangled with public policy issues that have traditionally been within the purview of public employers. In order to accommodate the special needs of public employers, state courts with NLRA-type scope-of-bargaining provisions have developed a wide variety of “balancing tests” to be applied at the threshold stage of the scope-of-bargaining analysis. See, e.g., Central City Educ. Ass’n, IEA/NEA v. Illinois Educ. Labor Relations Bd., 149 Ill.2d 496, 174 Ill.Dec. 808, 599 N.E.2d 892, 904-05 (1992) (holding that test includes whether benefits of bargaining for employee outweighs burden on employer); City of Biddeford by Board of Educ. v. Biddeford Teachers Ass’n, 304 A.2d 387, 420 (Me.1973) (Wernick, J., concurring in part, dissenting in part) (noting quantitative and qualitative importance of invasion of managerial functions may override prima facie eligibility for collective bargaining as working condition); Local 195, IFPTE, AFL-CIO v. State, 88 N.J. 393, 443 A.2d 187, 192-93 (1982), superseded by statute, N.J. Stat. Ann. § 34.13A-23 (1990), as recognized in Jackson Twp. Bd. of Educ. v. Jackson Educ. Ass’n ex rel. Scelba, 334 N.J.Super. 162, 757 A.2d 311, 314 (App.Div.2000) (stating proper approach is to balance degree to which a proposal intimately and directly affects the work and welfare of employees against the degree to which the proposal significantly interferes with management prerogatives related to government policy); Pennsylvania Labor Relations Bd. v. State College Area Sch. Dist., 461 Pa. 494, 337 A.2d 262, 268 (1975) (discussing whether impact of issue on interest of employee in wages, hours, and other terms and conditions of employment outweighs its probable effect on basic policy of school system).

The rationale of state courts adopting the threshold balancing approach is that the “terms and conditions of employment” that constitute mandatory subjects of collective bargaining are also invariably connected with some functions arguably within the purview of management, either through a management rights provision or through traditional analysis. City of Biddeford, 304 A.2d at 419 (Wernick, J., concurring in part, dissenting in part) (noting as a practical matter, working conditions are invariably connected with some managerial function). Conversely, almost every management decision traditionally thought to be within the purview of a public employer has some impact on an employee’s terms and conditions of employment. Rapid City Educ. Ass’n v. Rapid City Area Sch. Dist. No. 51-4, 376 N.W.2d 562, 566 (S.D.1985) (Henderson, J., concurring) (stating that almost every decision of public employer affects “terms and conditions of employment”); see also Los Angeles County Employees Ass’n, Local 660 v. County of Los Angeles, 33 Cal.App.3d 1, 108 Cal.Rptr. 625, 628 (1973) (same).

Thus, in cases involving statutes with expansive NLRA-type seope-of-bargaining provisions, there is a conflict between the expansive concepts of employee rights and traditional public employer prerogatives. These are two highly territorial pikes at large in the legal pond of collective bargaining, each with the capacity of devouring the other. In order to avoid the predominance of either management or employee rights, state courts have concluded that they have no other choice but to engage in balancing of some kind. Joint Bargaining Comm. of Pennsylvania Soc. Serv. Union v. Pennsylvania Labor Relations Bd., 503 Pa. 236, 469 A.2d 150, 153 (1983) (noting “[without a proper balance the two sections [scope of bargaining including “terms and conditions” and management rights provision] might negate each other”); Rapid City, 376 N.W.2d at 566 (Henderson, J., concurring) (stating that the court is required to walk “legal tightwire” between employer and employee rights).

The judgment of these courts that they must somehow accommodate employee and management rights through a balancing process is certainly understandable. Without clear legislative standards as to the scope of bargaining, the courts in these states have been left to their own devices to fill in the statutory gap. Kenai Peninsula Borough Sch. Dist. v. Kenai Peninsula Educ. Ass’n, 572 P.2d 416, 423 (Alaska 1977) (stating that more specific guidance from legislature would be “helpful”); Dunellen Bd. of Educ. v. Dunellen Educ. Ass’n, 64 N.J. 17, 311 A.2d 737, 741 (1973) (noting that legislative reference to “terms and conditions” of employment establishes shadowy line and hardly furnishes disposi-tive guidance).

While a judicially created balancing test has the potential of preserving the rough contours of the grand legislative compromise between management and employee rights over time, any balancing test is extraordinarily difficult to apply in individual cases. This difficulty is not surprising in light of the fact that it is impossible to objectively measure or quantify the weight of employer and employee interests. Further, even if there was some kind of objective measurement of each interest, the balancing test requires courts to balance the apples of employee rights against the oranges of employer rights. No court has been able to successfully advance a convincing formula for determining how many employee rights apples it takes to equal an employer rights orange. Finally, the ill-defined nature of balancing tests in general gives rise to the possibility that invisible, unconscious, but perhaps inevitable judicial bias could creep into the decision-making process. See Developments in the Law—Public Employment, 87 Harv. L.Rev. 1676, 1689 (1984) (noting that with no clear standards in balancing tests, judges invariably fall back on their own political visions of the ideal power relationship between government and its employees). As noted by Harry H. Wellington and Ralph K. Winter in their classic essay, courts are badly suited to make judgments about which issues should be bargainable. Harry H. Wellington & Ralph K. Winter, The Limits of Collective Bargaining, 78 Yale L.J. 1107, 1126 (1968). .

In light of these challenges, it is not surprising that the state court application of threshold balancing tests in the scope-of-bargaining context has yielded a riot of fact-specific results that defy orderly characterization. For instance, a lengthy annotation presents in excruciating detail the, conflicting results on a myriad of issues. See generally James D. Lawlor, Validity and Construction of Statutes or Ordinances Providing for Arbitration of Labor Disputes Involving Public Employees, 68 A.L.R.3d 885 (2007), comparing, for example, West Hartford Educ. Ass’n v. DeCourcy, 162 Conn. 566, 295 A.2d 526 (1972) (class size subject to mandatory bargaining), with West Irondequoit Teachers Ass’n v. Helsby, 35 N.Y.2d 46, 358 N.Y.S.2d 720, 315 N.E.2d 775 (1974) (class size not bargainable), Clark County Sch. Dist. v. Local Gov’t Employee Management Relations Bd., 90 Nev. 442, 530 P.2d 114 (1974) (school calendar issues negotiable), with Burlington County College Faculty Ass’n v. Bd. of Trustees, Burlington County College, 64 N.J. 10, 311 A.2d 733 (1973) (college calendar not negotiable), and Local 195, 443 A.2d at 187 (subcontracting of work not subject to mandatory negotiation), with Unified Sch. Dist. No. 1 of Racine County v. Wisconsin Employment Relations Comm’n, 81 Wis.2d 89, 259 N.W.2d 724 (1977) (issue of subcontracting subject to mandatory bargaining). While a balancing test for determining scope-of-bargaining issues may be necessary when legislatures have delegated open-ended authority to the courts, it is an imperfect approach for courts that favor principled decision-making over ill-defined discretionary exercises. Balancing tests are a product of raw legal necessity, not judicial preference.

Where a legislature elects not to use the expansive NLRA phrase “other terms and conditions of employment” and chooses instead to list a finite number of enumerated topics, the case for a balancing test becomes even less compelling. For example, in Kansas, the legislature originally adopted an NLRA-type mandatory bargaining provision in a' statute regarding public teacher collective bargaining. In response, the Kansas Supreme Court developed an impact test that involved bal-' ancing the impact of an issue on the well-being of the individual against the overall effect on the operation of the school system. Nat'l Educ. Ass’n of Shawnee Mission, Inc. v. Bd. of Educ. of Shawnee Mission Unified Sch. No. 512, 212 Kan. 741, 512 P.2d 426, 435 (1973), superseded by statute, Kan. Stat. Ann. § 75-4322(t) (1977), as recognized in Kansas Bd. of Regents v. Pittsburgh State Univ. Chapter of Kansas-Nat’l Educ. Ass’n, 233 Kan. 801, 667 P.2d 306, 318 (1983).

While the Kansas legislature at first embraced the approach of Shawnee Mission, it later amended its statute to delete the NLRA-type scope-of-bargaining language. Unified Sch. Dist. No. 501 v. Sec’y of Kansas Dep’t of Human Resources, 235 Kan. 968, 685 P.2d 874, 876-77 (1984). Instead the legislature provided a closed, finite list of topics that would be mandatory subjects of collective bargaining for teaching professionals. Id. In light of the legislative action, the Kansas Supreme Court, following the lead of the responsible administrative agency, ■ sanctioned the adoption of a topics test to replace its prior impact balancing test to determine scope-of-bargaining issues. Id.

Under the topics test, the scope of bargaining is determined by whether the topic of a proposal is within the scope of one of the specifically enumerated subjects of collective bargaining. If a proposal was defi-nitionally within the scope of one of the enumerated topics, it is a mandatory subject of collective bargaining. If it fell outside the definition of any mandatory topic, the proposal was not negotiable. Id. at 877. A threshold balancing determination is not required under the topic test because the legislature has already performed the balancing by .including each specific topic as a subject of mandatory bargaining.

Thus, instead of dealing with two pikes in a pond, legislatures that have adopted a “laundry list” have gone to dry land and established a legal shooting range with a series of legislatively established targets of mandatory bargaining. Proponents of mandatory bargaining must hit one of the targets, or come close enough to one, in order to avoid characterization of the proposal as permissive. The role of the courts in this setting is not to balance the pikes, but to. judge the accuracy of the proponent’s legal shot.

2. Iowa approach to scope of bargaining issues. In determining whether a proposal is within the scope of section 20.9; this court noted early on that the Iowa House of Representatives approved an amendment to the original bill deleting the expansive NLRA phrase “or other terms and conditions of employment” from the list of mandatory subjects. Charles City Cmty. Sch. Dist. v. Pub. Employment Relations Bd., 275 N.W.2d 766, 771 (Iowa 1979) [hereinafter Charles City I]; Fort Dodge, 275 N.W.2d at 398. The final version of the bill did not contain the expansive NLRA language. Instead, the final version of the Iowa PERA contained a finite, or laundry list, of mandatory subjects of collective bargaining. 1974. Iowa Acts ch. 1095, § 9. Because the Iowa PERA does not include the phrase “other terms and conditions of employment,” this court has held that if a proposal does not fall within one of the laundry list of terms contained in section 20.9, it is not a subject of mandatory bargaining. Charles City I, 275 N.W.2d at 771-73; Fort Dodge, 275 N.W.2d at 397-98. In other words, this court has held that the legislature’s laundry list in section 20.9 is exclusive and not merely descriptive or suggestive. See Lawrence E. Pope, Analysis of Iowa Public Employment Relations Act, 24 Drake L.Rev. 1, 33-34 (1974).

In Charles City I, the court announced a two-pronged test to determine negotiability questions. Charles City I, 275 N.W.2d at 772-73. The first prong was a topics test — whether a particular proposal fell within the scope of any of the specifically delineated terms in section 20.9. Id. If a proposal was not within the scope of one of the specifically delineated terms, it was not subject to mandatory bargaining. Id. If, however, the proposal was within the scope of one of the delineated terms, the court moved on to the second prong, specifically, whether collective bargaining over the proposal would be illegal. Id. If the proposal was not illegal then the proposal would be subject to collective bargaining. Id. This two-step approach was reiterated the following year in Charles City Education Association v. Public Employment Relations Board, 291 N.W.2d 663, 666 (Iowa 1980) [hereinafter Charles City II]..

Even though the early PERA cases articulated this straightforward two-pronged seope-of-bargaining test, the court nonetheless struggled with the relationship between section 20.7, which contains the exclusive rights of management, and section 20.9, which contains the mandatory bargaining provisions. For example, in Charles City I, the court expressly noted the need to “harmonize” the sections. Charles City I, 275 N.W.2d at 775. Similarly, in Charles City II, the majority approved the harmonizing approach in Charles City I, noting the need to construe statutory provisions in the context of the entire enactment. Charles City II, 291 N.W.2d at 666. Although the majority in these cases did not expressly embrace a balancing test, the implication in Charles City I and II seems to have been that employee rights in section 20.9 had to be balanced or harmonized with management rights in section 20.7.

■ Early dissenting opinions rejected the harmonizing approach. According to the dissents, the list of topics in section 20.9 should be regarded as exceptions to or carve-o.uts of the management rights in section 20.7. As a result, the dissenters argued that there is no need to harmonize or balance the sections in determining whether a proposal is subject to mandatory bargaining. According to the dissenters, the only requirement is simply to properly define the scope of the terms in section 20.9. See Charles City I, 275 N.W.2d at 776 (McCormick, J., dissenting in part) (noting that employer’s right to direct work under section 20.7 does not affect scope of bargaining under section 20.9); Fort Dodge, 275 N.W.2d at 399 (McCormick, J., dissenting) (rejecting “balancing” of employee bargaining rights against reserved employer prerogative).

In ■ 1987, the court returned to better moorings in Northeast Community School District v. Public Employment Relations Board, 408 N.W.2d 46 (Iowa 1987) [hereinafter Northeast ]. In this case, the court reiterated the two'-pronged test of negotiability presented in Charles City I and II. Id. at 50. Unlike in Charles City I and II, however, the court further noted that if a proposal falls within an. exception established by section 20.9, “then the proposal is subject to negotiation regardless of the broa,d grant of authority given to public employers under section 20.7.” Id. This principle is the essence of a topics test, where the question of the scope of bargaining is primarily a definitional exercise and does not involve balancing of employee interests against management interests. In effect, the court in Northeast adopted the analytical approach of the dissenters in Charles City I and Fort Dodge.

The court returned to the issue of the relationship between sections 20.7 and 20.9 in State v. Public Employment Relations Board, 508 N.W.2d 668 (Iowa 1998) [hereinafter State]. In State, the court noted that “[v]irtually all of the mandatory subjects of collective bargaining impact in some way on the reserved rights of public employers.” State, 508 N.W.2d at 675. Instead of engaging in a threshold balancing of employer and employee interests, however, the State court reemphasized the two-pronged approach adopted in the early Iowa PERA cases. According to State, the first prong inquiry is a topics test— whether the proposal, on its face, logically falls within the definition of any term contained in section 20.9. Id. at 672. In determining whether a proposal fell within the definition of a section 20.9 term, the State court observed that consideration must be given to the predominant purpose of the proposal and to what the employer would be bound to do if the proposal was adopted. Id. at 673.

The State court, however, did recognize that in some cases, it may be necessary to conduct a balancing test to determine the predominant topic of ambiguous or hybrid proposals. Id. at 674. This “subordinate” balancing test, however, is distinguishable from threshold balancing tests employed by other states because it is not utilized in the ordinary case, but only in cases where the subject of a proposal “escapes easy definition.” Id: ' In terms of methodology, the court in State adopted the topics approach of the dissents in early cases and of the court in Northeast, while leaving the door open for balancing in unusual cases where it was difficult to determine the predominant topic.

Most recently, this court has considered the scope-of-bargaining issue in two cases involving wages. In Iowa City Association of Fire Fighters, IAFF Local 610 v. Iowa Public Employment Relations Board, 554 N.W.2d 707 (Iowa 1996) and Waterloo Community School District v. Public Employment Relations Board, 650 N.W.2d 627 (Iowa 2002) [hereinafter Waterloo 7], the court considered whether hours and wage proposals were within the scope of mandatory bargaining under section 20.9. In these cases, however, the court seemingly retreated from the teachings of Northeast and State.

In Fire Fighters, the hours proposal limited the time that firefighters could be required to assume “active duties” within any twenty-four-hour shift of “regular” duty hours. Fire Fighters, 554 N.W.2d at 708. A second wage proposal was similar to the hours, proposal, with the important distinction that it did not expressly limit the time and hours of “active duty,” but provided that management pay a , wage premium in the event it requested firefighters to perform “active duty” tasks during “regular duty” hours. Id. at 709.

The majority of this court in Fire., Fighters held that both proposals were not subject to mandatory bargaining. With respect to the hours proposal, the court noted that the proposal “clearly impinged” upon management’s authority by dictating when the specific duties of firefighters could be performed. Id. at 711. With little analysis, the court also rejected the wage proposal on the ground that it too impermissibly impinged upon management rights. Id. A dissenting opinion asserted that the proposals fell within the scope of the term “wages” under section 20.9 and that the topics test, as utilized in Northeast and State, should end the analysis. Id. at 712 (Carter, J., dissenting).

Although '-State was cited in the majority opinion, the Fire Fighters impingement rationale is inconsistent with State’s observation that all subjects of mandatory bargaining impinge in some way on management rights. State, 508 N.W.2d at 675. The Fire Fighters impingement rationale is also inconsistent with Northeast, as that case- held that once a proposal is found within the scope of a mandatory subject of collective bargaining under section 20.9, it did not matter whether a proposal “impinges” on management rights. Northeast, 408 N.W.2d at 50.

This court’s most recent exploration of the distinction between permissive and mandatory subjects of bargaining under PERA was in Waterloo I, 650 N.W.2d at 627. In this case, the court considered a number of proposals, including an overload wage proposal that was similar to the proposal involved in this case. As here, the overload wage proposal in Waterloo I stated that teachers who teach more than three hundred minutes per day; or intermediate and secondary teachers who teach more than five periods per day, would be entitled to overload pay. Id. at 634. Unlike the current proposal, however, the proposal in Waterloo I allowed teachers to refuse overload assignments. Id. In short, under the proposal in Waterloo I, a teacher would have been empowered to say “nice, but no thanks” to a request by school managers that a teacher accept an overload assignment.

In Waterloo I this court, citing Fire Fighters, held that an overload wage proposal with an employee veto provision would “adversely affect the employers’ exclusive right to control work performed.” Id. As in Fire Fighters, the court cited State’s two-pronged test, including the topics test, but did hot directly apply it. Id. at 630.

C. Application of Scope-of-Bargaining Principles.

1. Introduction. In this case, the parties in Waterloo I are back before us. This time, however, the posture of the case is different in two respects. First, the proposal now advanced by the Association does not allow teachers, to opt out of overload assignments. As a result, unlike in Waterloo I, management retains the unfettered right to assign overload work to any teacher of its choosing. In addition, PERB has taken the unusual posture of participating actively in this litigation. .As noted previously, the Board’s decision explicitly questioned both the wisdom and consistency of its and this court’s prior mandatory bargaining opinions. In its brief filed in this ease, PERB urged this court to clarify the confusion.

2. Proper test of negotiability. At the outset, we must determine the proper test for determining whether a proposal is subject to mandatory bargaining under section 20.9. The determination of whether a proposal is a mandatory subject of collective bargaining is an issue of law based upon a facial review of the proposal. Iowa Code § 17A.19(10)(c), (l); Saydel Educ. Ass’n v. Pub. Employment Relations Bd., 333 N.W.2d 486, 490 (Iowa 1983).

In resolving scope-of-bargaining issues, we -reject the approách that any proposal which “infringes” upon management rights is not subject to mandatory bargaining. As was stated in State, all mandatory subjects of bargaining infringe in some way on management rights. If the test of negotiability were truly a simple infringement test, literally nothing would be subject to mandatory collective bargaining. State, 508 N.W.2d at 675; Charles City I, 275 N.W.2d at 776 (McCormick, J„ dissenting in part). Certainly any wage proposal “infringes” on management rights by allocating resources that might be otherwise available for programming or other educational expenditures. To the extent that language in Waterloo I and Fire Fighters is to the contrary, it is disapproved.

We also reject the notion that the issue of negotiability should ordinarily be resolved at the outset by balancing the employer’s interest in management rights against the interest of employees in mandatory bargaining. As noted above, while many states adopt such threshold balancing tests, the states which employ this method aré generally operating under NLRA-type statutes which couple the expansive “other terms and conditions of employment” language with management rights provisions. The balancing test is necessary, in these jurisdictions, to prevent management rights from being totally eviscerated by unfettered collective bargaining.

Because Iowa’s PERA does not contain this expansive language, the subjects of mandatory bargaining delineated in section 20.9 should be viewed as exceptions to management rights reserved in section 20.7. Charles City I, 275 N.W.2d at 772. By creating the section 20.9 laundry list of exceptions to management prerogatives, the legislature has already done the balancing. There is no occasion for this court to judicially rebalance what the legislature has already balanced.

As a result, we reject the “infringement” or threshold balancing test approach and instead reaffirm the two-pronged approach to negotiability described in State and Northeast. The first prong for determining whether a proposal is subject to collective bargaining, the threshold topics test, is ordinarily a definitional exercise, namely, a determination of whether a proposal fits within the scope of a specific term or terms listed by the legislature in section 20.9. Once that threshold test has been met, the next inquiry is whether the proposal is preempted or inconsistent with any provision of law. Ordinarily, this two-step process is the end of the matter. Only in unusual cases where the predominant topic of a proposal cannot be determined should a balancing-type analysis be employed to resolve the negotiability issue. See Clinton Police Dep’t Bargaining Unit v. Iowa Pub. Employment Relations Bd., 397 N.W.2d 764 (Iowa 1986) (hybrid proposal involving both safety and staffing subjects held to primarily relate to staffing and thus not subject to mandatory collective bargaining).

3. Application of topics test to overload pay proposal. Having determined that the two-pronged. approach of State and Northeast is the proper test of negotiability, we now must apply the test to the overload pay proposal presented here. In order to apply the threshold topics ;test, however, we must first determine the-meaning of the term “wages” in-section 20.9. Then, we must determine if the proposal falls within the scope of that definition.

In determining the meaning of the term “wages,” our prior cases embrace several guides to interpretation. These cases hold that because the legislature has listed the term “wages” in section 20.9 as a topic separate and apart from other tangible employee benefits, such as vacation and insurance, the term “wages” is subject to a relatively narrow construction in order to avoid an interpretation that renders subsequent items in the laundry list redundant and meaningless.. Under these cases, the term “wages” cannot be interpreted to include a broad package of fringe benefits because the legislature has specifically included some fringe benefits in this section’s laundry list. Fort Dodge, 275 N.W.2d at 397. We see no reason to depart from the approach of these prior cases.

On the other hand, the legislature’s use of a laundry list of negotiable subjects does not mean that the listed terms are subject to the narrowest possible interpretation, but only that the listed terms cannot be interpreted in a fashion so expansive that the other specifically identified subjects of mandatory bargaining become redundant. The approach most consistent with legislative intent thus is to give the term “wages” its common and ordinary meaning within the structural parameters imposed by section 20.9. Charles City II, 291 N.W.2d at 668; Fort Dodge, 275 N.W.2d at 397.

In order to determine the common or ordinary meaning of words, we have often consulted widely used dictionaries. Black’s Law Dictionary defines “wages” as “[pjayment for labor or services, usually based on time worked or quantity produced.” Black’s Law Dictionary 1573 (7th ed. 1999). Merriam-Webster’s Collegiate Dictionary defines wages as payment for labor or services on an “hourly, daily, piecework basis.” Merriam-Webster’s Collegiate Dictionary 1322 (10th ed. 2002).

Applying the threshold topics test in State, we conclude that the proposal falls within the definition of the term “wages.” At its core, the proposal simply seeks to introduce an element of piecework pay into the school district’s wage structure. The proposal, moreover, calls for the payment of money and not some other kind of fringe benefit. The proposal if implemented would provide an economic reward based upon services rendered. As noted by one state public employee relations board when considering the bargain-ability of an overload pay proposal, “It is only possible to rationally bargain for ‘an honest day’s pay’ if one can also negotiate the boundaries and the contents of ‘an honest day’s work.’ ” Oregon Pub. Employees Union, Local 503 v. State of Oregon, 10 PECBR 51 (July 1987); see also Rapid City, 376 N.W.2d at 565 (proposal for twenty percent increase in annual compensation for each fifty-five-minute period in excess of five at junior or senior high level subject to mandatory collective bargaining).

The employee’s economic interest in more pay for more work is precisely the kind of employee interest that leading commentators for decades have suggested should be subject to collective bargaining. Clyde Summers, Bargaining in the Government’s Business: Principles and Politics, 18 U. Tol. L.Rev. 265, 271 (1987); Clyde W. Summers, Public Employee Bargaining: A Political Perspective, 83 Yale L.J. 1156, 1192-95 (1974). The interest of the employees in more pay for less work is generally opposed by the majority of voters and taxpayers who are interested in obtaining more services at less cost. Summers, 18 U. Tol. L.Rev. at 271. The inclusion of the term “wages” in the laundry list is designed to provide employees with a degree of protection on economic issues from potentially powerful low-wage political influences.

The overload pay proposal in this case is distinct from the proposal involved in Waterloo I. In Waterloo I, the proposal sought to prohibit management from assigning overload work to an employee who did not wish to undertake it. As a result, in Waterloo I the proposal involved a hybrid of “wages” and “management rights.” Waterloo I, 650 N.W.2d at 634. Although not articulated in this fashion, there was at least an issue as to which topic dominated the proposal. In contrast, the proposal here does not seek to limit management’s discretion to assign work, but relates solely to payment for an amount of services rendered by an individual teacher. The proposal does not handcuff management prerogatives in any way other than to require increased payment for certain services.

Of course, whenever management is required to pay more for teacher services, the resultant increase in costs impinges on other management choices by diverting available resources from other potential uses. This impingement happens, in all cases involving wages and simply cannot be the basis for excluding a proposal from mandatory collective bargaining. Otherwise, the term “wages” would be entirely written out of the statute.

We recognize the possibility that artful negotiators may attempt to craft proposals that incidentally involve payment of increased wages to teachers, but which are really designed to influence educational policy or limit management discretion. The State test, however, requires that a proposal relate predominantly to a bar-gainable issue. It farther allows a balancing of interests in those unusual hybrid eases where mandatory and permissive elements are inextricably intertwined in a proposal.

Having concluded that the Association’s overload pay proposal meets State’s threshold topics test, we now turn to the second prong of the State test — whether collective bargaining over the proposal would be illegal. Neither the District nor PERB has suggested that the overload pay proposal violates or is preempted by Iowa law. As a result, we find that the overload pay proposal presented here is a mandatory subject of collective bargaining.

In closing, we note that, as was consistently emphasized in our prior cases, we do not pass in any way on the merits of the overload pay proposal. Charles City I, 275 N.W.2d at 769. We hold only that the question of whether the overload pay proposal made in this case should be adopted in whole or in part by the district must be determined, if possible, by the parties themselves through good faith negotiations and in the event of impasse, through binding arbitration as provided in PERA. The finding of this court that the overload pay proposal is subject to mandatory bargain^ ing is an endorsement only of the legislature’s chosen process of resolving employer-employee disputes involving “wages,” not the merits of the proposal.

IY. CONCLUSION.

We hold that the overload wage proposal in this case presents a mandatory subject of collective bargaining under section 20.9 of PERA. As a result, the decision of the district court is reversed and the case remanded for further proceedings.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: TERNUS, Chief Justice.

license: Public Domain

text:
    Jackie WEISSENBURGER, Plaintiff v. IOWA DISTRICT COURT FOR WARREN COUNTY, Defendant.
    No. 05-0279.
    Supreme Court of Iowa.
    Oct. 26, 2007.

      Nancy Lynn Robertson, Des Moines, for plaintiff.
    Merle H. Weiner, Eugene, OR, for amici curiae, Iowans for the Prevention of Gun Violence and The Iowa Women’s Foundation.
   TERNUS, Chief Justice.

By petition for writ of certiorari, the plaintiff, Jackie Weissenburger, challenges the legality of an order entered by the defendant, Iowa District Court, amending a no-contact order to allow her former spouse, Joseph Weissenburger, “to possess firearms for hunting.” Jackie claims the amended order violates 18 U.S.C. § 922(g)(8) (2000), which prohibits certain individuals subject to a no-contaet order from possessing firearms while the order is in effect. We agree that the amended order violates federal law. Therefore, we sustain the writ.

I. Background Facts and Proceedings.

During the pendency of a dissolution-of-marriage action involving the plaintiff, Jackie Weissenburger, and her former husband, Joseph, the court entered a domestic abuse no-contact order prohibiting contact by Joseph with Jackie. See Iowa Code § 236.5(2)(c) (2001). Subsequently, Joseph was charged with a violation of that order and pled guilty to harassment in the third degree. In addition to imposing á deferred judgment with informal probation and a fine, on December 5, 2003, the district court entered a criminal no-contact order pursuant to Iowa Code section 901.5(7A) to remain in effect for five years.

Under federal law, if a protected party meets the definition of an “intimate partner,” an individual subject to a no-contact order may not possess firearms while the order is in effect. See 18 U.S.C. § 922(g)(8). A former spouse falls within the definition of “intimate partner.” . See id. § 921(a)(32). The form no-contact order used by the district court advised Jo-' seph that “[fjederal law provides penalties for possessing, transporting, shipping, or receiving any firearm or ammunition.” In addition, the court had checked a box on the form order indicating the protected party, Jackie, met the definition of an “intimate partner.” Finally, the order included the stock language: “Defendant shall, not possess firearms while this order is in effect.”

Several months after entry of the criminal no-contaet order, Joseph filed an application to have the order terminated or ..at least modified to permit him to possess firearms for the purpose of hunting with his minor son. Joseph asserted that he had complied with all the terms and conditions of his deferred judgment, as well as the no-contact order. In a ruling dated January 12, 2005, the district court determined the no-contact order should remain in effect, but that the order should be amended to allow Joseph to possess firearms for hunting. The same day, the district court issued an amended and substituted no-contact order in which the court had removed the check from the box indicating the protected party was an “intimate partner” and had crossed out the prohibition stating “Defendant shall not possess firearms while this order is in effect.”

In response to the court’s action, Jackie filed an application for writ of certiorari with this court, alleging the district court’s order allowing Joseph to possess firearms was illegal under federal law. We granted the petition and notified the district court that our action would stay further proceedings to enforce the district court’s ruling and order pending a resolution of the cer-tiorari action in our court. Thereafter, the district court entered an “order nunc pro tunc” that removed from the court’s January 12, 2005 order that portion granting Joseph’s application to modify the criminal no-contact order. In the order nunc pro tunc,. the district court denied Joseph’s application to modify, stating “the Defendant’s request exceeds this Court’s jurisdiction.” Finally, the court rescinded the amended and substituted no-contact order that had been entered after its January 12, 2005 ruling and simultaneously filed a new amended and substituted no-contact order that restored the prohibition on Joseph’s possession of firearms.

In her brief, Jackie makes two arguments. First, she asserts the district court had no authority to amend its January 12, 2005 order through a nunc pro tunc order. Second, she claims the court exceeded its authority in modifying the December 2003 criminal no-contact order on January 12, 2005, to allow Joseph to1 possess firearms. We will address each issue separately.

II. Scope and Standards of Review.

In a certiorari case, we review the district court’s ruling for correction of errors at law. State Pub. Defender v. Iowa Dist. Ct. for Polk County, 721 N.W.2d 570, 572 (Iowa 2006).

“A writ of certiorari lies where a lower board, tribunal, or court has exceeded its jurisdiction or otherwise acted illegally.... ‘Illegality exists when the court’s findings lack substantial evidentiary support, or when the court: has not properly applied the law.’ ”

Id. (quoting State Pub. Defender v. Iowa Dist. Ct. for Black Hawk County, 633 N.W.2d 280, 282 (Iowa 2001)). We are bound by the district court’s factual findings, if well supported. State Pub. Defender v. Iowa Dist. Ct. for Wapello County, 644 N.W.2d 354, 356 (Iowa 2002).

III. Nunc Pro Tunc Order.

Although there is a question concerning the jurisdiction of the district court to enter an order in the criminal case once this court had granted an application for writ of certiorari challenging the court’s action in that case, we need not address that concern. Even if we assume that the district court retained jurisdiction in, the criminal case, that court’s use of a nunc pro tunc order was improper.

It has long been understood that

the purpose of a nunc pro tunc entry is to supply or correct a record to make it conform to that which was actually done at an earlier date, and that as between the parties it operates to validate or correct the original judgment.

Murnan v. Schuldt, 221 Iowa 242, 245, 265 N.W. 369, 371 (1936). Thus, a court may properly use a nunc pro tunc order to correct a clerical error, an error “that is not the result of judicial reasoning and determination.” State v. Naujoks, 637 N.W.2d 101, 113 (Iowa 2001). On the other hand, “a nunc pro tunc order is not available to correct a judicial, as distinguished from a clerical, error.” State v. Steffens, 282 N.W.2d 120, 122 (Iowa 1979). Consequently, it “cannot be used to remedy an error in judicial thinking, a judicial conclusion, or a mistake of law.” Naujoks, 637 N.W.2d at 113. It “is not an alternative to the established procedures to alter, vacate, or modify judgments under our procedural rules.” Steffens, 282 N.W.2d at 122.

Based on the record before us, we are convinced the district court’s order nunc pro tunc did not correct a clerical error made in the court’s January 12, 2005 order. Rather, the nunc pro tunc order reflected the court’s subsequent determination that it had no jurisdiction to grant Joseph’s request to possess firearms. See Graber v. Iowa Dist. Ct., 410 N.W.2d 224, 230 (Iowa 1987) (concluding nunc pro tunc order constituted a change .in the judge’s thinking, not the correction of a clerical error). A change of this nature is inappropriate in a nunc pro tunc order because it alters the court’s original decision, not simply the record made of the court’s original decision. See State v. Harbour, 240 Iowa 705, 710, 37 N.W.2d 290, 293 (1949) (noting nunc pro tunc order in that case was proper because “[t]he correction was sought to make the record entry conform to the actual pronouncement of the court, not to evidence a change in the decision itself’).

In summary, even if the district court had jurisdiction to modify its January 12, 2005 order, it had no power to alter its decision through a nunc pro tunc order. Accordingly, the nunc pro tunc order must be set aside. See Graber, 410 N.W.2d at 230 (sustaining writ of certiorari challenging district court’s issuance of nunc pro tunc order and setting aside such order).

IV. Modification of No-Contact Order to Permit Possession of Firearms.

The primary issue presented in this case is whether the district court properly modified the criminal no-contact order on January 12, 2005, to allow Joseph to possess firearms for the limited purpose of hunting. Jackie contends the court’s action was illegal because federal law prohibits Joseph’s possession of firearms for any purpose.

A. Pertinent Federal Law Governing Possession of Firearms. In 1994, Congress enacted the Violent Crime Control and Law Enforcement Act of 1994. See Pub.L. 103-322, 108 Stat. 1796. Title XI contains a provision designed to disarm batterers. See 18 U.S.C. § 922(g)(8). In pertinent part, that federal statute prohibits the possession of “any firearm or ammunition” by a person who is subject to a court order that

(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other.conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C)....
(ii) by its terms explicitly prohibits the use, attempted use, .or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury....

18 U.S.C. § 922(g)(8).

The first step in our consideration of Jackie’s challenge to the court’s order is a determination. of whether § 922 prohibits Joseph from possessing firearms. There is no argument made on appeal that Joseph did not have notice and an opportunity to be heard prior to issuance of the initial criminal no-contact Order in December 2003. Thus, § 922(g)(8)(A) is- satisfied. Secondly, the court’s initial criminal no-contact order provided that Joseph “shall not threaten, assault, stalk, molest, attack, harass, or otherwise abuse” Jackie and included a finding that Jackie was an intimate partner as defined in 18 U.S.C. § 921(a)(32). Accordingly, § 922(g)(8)(B) of the federal law is met. Finally, the December 2003 order expressly prohibited Joseph from using, attempting to use, or threatening to use “physical force against [Jackie] that would reasonably be expected to cause bodily injury.” This provision satisfied § 922(g)(8)(C)(ii) of the federal statute. The record clearly demonstrates that Joseph fell within the parameters of the federal law prohibiting the possession of firearms by a person subject to a no-contact order.

B. Ability of State Court to Allow Possession of Firearms in Contravention of Federal Law. That conclusion brings us to the final question: Did the district court properly allow Joseph to possess a firearm for hunting notwithstanding the prohibitions of federal law?

It has long been held that the laws of the United States are “just as much binding on the citizens and courts [of the States] as the State laws are.” Claflin v. Houseman, 93 U.S. 130, 136, 23 L.Ed. 833, 838 (1876). Thus, “state courts cannot refuse to apply federal law — a conclusion mandated by the terms of the Supremacy Clause.” Printz v. United States, 521 U.S. 898, 928, 117 S.Ct. 2365, 2381, 138 L.Ed.2d 914, 940 (1997). As the United States Supreme Court has observed, “state courts share responsibility for' the application and enforcement of federal law.” Howlett v. Rose, 496 U.S. 356, 372-73, 110 S.Ct. 2430, 2441, 110 L.Ed.2d 332, 351 (1990).

In view of these governing principles, we conclude the district court had no power to authorize Joseph to possess firearms in violation of federal law. Once the court determined the no-contact order should continue in effect, Joseph was prohibited under federal law from possessing firearms regardless of whether this prohibition was included in the court’s no-contact order.

It has been suggested that the court’s amended no-contact order was not contrary to federal law because it did not explicitly state that Joseph could possess firearms. Although the amended no-contact order did not expressly authorize Joseph to possess a firearm, such authorization was the practical result of the court’s ruling under the circumstances of this case. In its ruling on Joseph’s application for modification of the no-contact order, the court stated:

Defendant [Joseph Weissenburger] has also asked the court to amend the order to allow hunting. There was no evidence that the defendant should not be allowed to possess firearms for hunting. The defendant’s motion to amend should be granted.

Simultaneously with the entry of this ruling, the court filed an amended no-contact order in which the court had crossed out the prohibition regarding firearms possession. It is clear to this court, and presumably was clear to Joseph, that the district court intended its amended no-contact or.der to affirmatively authorize Joseph’s possession of firearms, as expressly determined by the court in its simultaneous ruling granting Joseph’s application to modify. As previously discussed, the court had no power to allow Joseph to possess firearms in violation of federal laws.

Y. Disposition.

The writ of certiorari to this court is sustained. The district court order allowing Joseph Weissenburger to possess firearms is annulled.

WRIT SUSTAINED.


author: HUITINK, P.J.

text:
    Stacey STRUVE, Plaintiff-Appellant v. Catherine N. PAYVANDI, d/b/a Woodland Management, Defendant-Appellee.
    No. 06-1067.
    Court of Appeals of Iowa.
    July 25, 2007.

      Jeffrey R. Tronvold of Eells & Tronvold Law Offices, P.L.C., Cedar Rapids, for appellant.
    Kimberly K. Hardeman, J. Michael Wes- ' ton, and Brenda K. Wallrichs of Moyer & Bergman, P.L.C., Cedar Rapids, for appel-lee.
    Heard by HUITINK, P. J., and ZIMMER and VAITHESWARAN, JJ. BAKER, J., takes no part.
   HUITINK, P.J.

I. Background Facts and Proceedings

Stacey Struve executed a residential lease with Woodland Management on October 17, 2002, for a second floor apartment in a two-story, four-plex building. The .lease stated the landlord would maintain all heating appliances in good and safe working order. Struve spent her first night in .the apartment on October 19, 2002. The next morning, she awoke with a headache. Her foster mother came to her apartment and smelled gas. She told Struve to call MidAmerican Energy.

A serviceman with MidAmérican Energy detected a level of 1000 parts per million of carbon monoxide in the apartment. This was the highest level his machine was capable of detecting. The serviceman also detected carbon monoxide ' in the other three apartments.

Struve was taken to the hospital by ambulance. She was diagnosed with carbon monoxide poisoning when tests revealed the level of carbon monoxide in her blood was 2l.6%.

A service technician inspected the furnaces in the four-plex the day after the incident. The technician found that the heat exchangers for the furnaces on the first floor were cracked. He also found no evidence the furnaces were emitting carbon monoxide at that time.

Within a few weeks of the incident, Stru-ve began to notice problems with her concentration, memory, and focus. She dropped out of Kirkwood Community College; however, she resumed classes the following semester. Struve claim's her concentration and memory problems are the reason she quit one job and experienced performance and' productivity problems at a second job. She also testified that she walked into the wrong house at Thanksgiving, a few weeks after the carbon monoxide poisoning. Brain imaging studies were done, and the results indicated she had suffered brain damage. Specifically, she suffered damage to the hippo-campus and basal ganglia.

Catherine Payvandi owns Woodland Management. In 1999 Payvandi hired Gary Brown to assist her with the daily management and maintenance of her rental units. Brown was responsible for small, routine repairs and maintenance, such as fixing faucets, repairing garbage disposals, repairing light switches, and installing and changing door locks.

Brown was not licensed to repair heating equipment, and his experience with furnaces was limited to work he had performed on his own furnace. Nevertheless, Brown performed limited furnace maintenance for Payvandi. This maintenance consisted of changing furnace filters and conducting a limited visual inspection of the furnace every three months. During the inspections, Brown would check the pilot lights and look at and around the burners, thermal couplers, and gas valves to make sure these items were visible and there was no soot present. If Brown noticed a problem during these inspections or a tenant reported a problem to him he called a heating and cooling company to perform any required maintenance or repairs.

Struve filed the present lawsuit against Payvandi on October 15, 2004. At trial, Struve presented theories on common law negligence, negligence per se under Iowa Code section 562A.15(l)(d) (2005), and a violation of the implied warranty of habitability. The trial court concluded section 562A.15(l)(d) was a general standard and did not give the jury enough information to determine whether Payvandi was negligent per se. The trial court also rejected her proposed instructions on the implied warranty of habitability, stating its own instructions embodied the essential elements of this claim. The verdict form given to the jury only asked whether Payvandi was negligent and if so, whether the negligence was the proximate cause of any damage to Struve. The jury returned a verdict finding Payvandi was not negligent.

On appeal, Struve argues: (1) the trial court erred in failing to separately and adequately instruct the jury regarding an implied warranty of habitability; (2) where Iowa Code section 562A. 15(l)(d) creates an affirmative duty to maintain, and the landlord does not maintain, the landlord is negligent per se; and (3) the trial court erred in disallowing portions of Valerie Walton’s testimony.

II. Merits

A. Implied Warranty of Habitability

At trial, Struve argued she was entitled to recover under the alternative theory of implied warranty of habitability and entitled to jury instructions on this claim. The court rejected her proposed instructions and issued its own instructions that “embodied” the essential elements of the implied warranty of habitability. On appeal, Struve claims the court erred in not separately instructing the jury on her claim and that the instructions given did not embody the essential elements of this claim.

Trial court determinations regarding jury instructions are reviewed on appeal for errors of law. State v. Kellogg, 542 N.W.2d 514, 516 (Iowa 1996). As long as a requested instruction correctly states the law, has application to the case, and is not stated elsewhere in the instructions, the court must give the requested instruction. Id. However, a trial court does not err in refusing to submit a proposed instruction when its concepts are embodied in other instructions submitted to the jury. State v. Atwood; 602 N.W.2d 775, 784 (Iowa 1999). Also, error in giving or refusing jury instructions does not merit reversal unless it results in prejudice to the defendant. Kellogg, 542 N.W.2d at 516.

The implied warranty of habitability was established in Mease v. Fox, 200 N.W.2d 791, 796 (Iowa 1972), when the Iowa Supreme Court recognized the obligation of a landlord to provide his tenant with premises suitable for habitation. Under this doctrine, the landlord “impliedly warrants at the outset of the lease that there are no latent defects in facilities and utilities vital to the use of the premises for residential purposes.” Id. (emphasis added). However, the presence of a defect and a resulting injury does not automatically lead to liability for .the landlord. Vazquez v. Hepner, 564 N.W.2d 426, 430 (Iowa 1997). Instead, a landlord “is only liable for injuries resulting, from a hidden or latent defect if the landlord knew or should have known of the defect.” Id. Implicit in this standard is the rule that a landlord must, on some occasions, make reasonable inspections to search for latent defects. In Vazquez, the court cited the following language from a California decision describing when the duty to make a reasonable inspection arises:

The landlord’s obligation is only to do what is reasonable under the circumstances. The -landlord need not take extraordinary measures or make unreasonable expénditures of time and money in trying to discover hazards unless the circumstances so warrant. When there is a. potential serious danger, which is foreseeable, a landlord should anticipate the danger, and■ conduct a reasonable inspection before passing possession to the tenant However, if no such inspection is warranted, the landlord has, no such obligation.

Id. (quoting Resolution Trust Corp. v. Rossmoor Corp., 34 Cal.App.4th 93, 103, 40 Cal.Rptr.2d 328 (1995) (emphasis added)).

Under this 'standard, the landlord has a duty to conduct a reasonable inspection before passing possession to a tenant when there is-a potential serious danger, which is foreseeable. The question of whether the potential serious danger was foreseeable necessarily depends on the circumstances of the case and rests in the hands of the fact finder. See, e.g., Benham v. King, 700 N.W.2d 314, 319 (Iowa 2005) (“The conduct necessary to satisfy the duty of reasonable care to inspect depends on the circumstances. Normally, it is a fact question to be decided by the jury.” (internal citations omitted)).

At trial, Struve argued Payvandi had a duty to inspect the apartment for this serious latent defect. In doing so, she proposed the following jury instructions:

The plaintiff may also recover under an alternative theory of implied warranty of habitability. The defendant as a land- ■ lord has a duty to discover latent defects even if the defendant has no actual knowledge of such defects provided that such defects can be discovered without taking extraordinary measures or making unreasonable expenditures of time and money. It is enough if the latent defect is discoverable by the defendant by reasonable inspection. Defendant warrants the habitability of the premises at the inception of. the lease with the plaintiff and such implied warranty of habitability continues during the lease term.
The plaintiff may also recover under the theory of.'implied warranty of habitability if plaintiff proves the following propositions:
a. There was a potential serious danger to the plaintiff foreseeable by the defendant in the premises heating system equipment and associated components.
b. There was a latent defect in the premises heating system and associated components which could have been discovered without extraordinary difficulty by the defendant by reasonable inspection before passing inspection to the plaintiff.
c. The defect in the heating system and associated components was a proxi-
■ mate cause of plaintiffs injury and damages.
d. The nature and extent of- injury and damages to the plaintiff.
If the plaintiff has failed to prove any of these four propositions, the plaintiff is not entitled to damages under the theory of implied warranty of habitability.

The district court rejected these proposed instructions. When Struve objected and claimed she was entitled to an instruction' on this separate theory, the court overruled her objection, stating its own instructions “embody the essential elements of the warranty of habitability [and -therefore the theory] is being, in fact, submitted.” The court went on to specify that the theory was contained in the following instructions:

JURY INSTRUCTION NO. 11
The plaintiff must prove all of the following propositions:
1. The defendant knew or in the exercise of reasonable care should have known of a condition on the premises and that it involved an unreasonable risk of injury to a person in the plaintiffs position.
2. The defendant knew or in the exercise of reasonable care should have known:
a. the plaintiff would not discover the condition, or
b. the plaintiff would not realize the condition presented an unreasonable risk of injury, or
c. the plaintiff would not protect herself from the condition.
3. The defendant was negligent in any one or more of the following ways:
a. Failed to maintain in good and safe working order and condition all the heating appliances supplied by Landlord as required by the lease;
b. Failure to comply with requirements of applicable building and housing codes materially effecting health and safety in the City of Cedar Rapids.
c. Failure to maintain, test, and or inspect heating equipment and associated components as was 'usual and customary in the property management industry in the year 2002.
4. ‘ The negligence was a proximate cause of the plaintiffs damage.
5. The nature and extent of damage.
If the plaintiff has failed to prove any of theáe propositions, the plaintiff is not entitled to damages. If the plaintiff has proved all of these propositions, the plaintiff is entitled to damages in some amount.
JURY INSTRUCTION NO. 12
The owner of premises is presumed to know all conditions on the premises that are caused or created by the owner. The owner of premises is not responsible for an injury suffered by a person on the premises which resulted from a condition of which the owner had no knowledge, unless the condition existed for a long enough time that in the exercise of reasonable care the owner should have known about it.
JURY INSTRUCTION 13
You have received evidence of a custom or standard within the property management business to periodically inspect and maintain heating equipment. Conformity with a custom is evidence that the Defendant was not negligent and nonconformity is evidence that Defendant was negligent.
You have received evidence of applicable housing code provisions. Conformity with the provisions of the housing code is evidence that Defendant was not negligent and violations of its provision are evidence that Defendant was negligent.
Such evidence is relevant and you should consider it, but it is not conclusive proof.
JURY INSTRUCTION 14
Contained within- the obligation to maintain equipment is an- obligation to periodically, inspect the equipment for needed maintenance.

Upon our review of the court’s instructions and case law defining the implied warranty of habitability, we find the court’s instructions do not set forth Stru-ve’s alternative claim. First, the verdict form for the jury did- not reference the implied warranty of habitability or give the jury the option to find liability under this claim. Instead, the verdict form simply stated “Was the defendant negligent?” Also, the court’s instructions did not accurately describe when the landlord has a duty to make a reasonable inspection. The standard is that the landlord has a duty to conduct a reasonable inspection when there is a foreseeable potential serious danger. The jury instructions did not set forth this foreseeability requirement. The instructions only contained a temporal requirement indicating the landlord was not liable “unless the condition existed for a long enough time that in the exercise of reasonable care the owner should have known about it.” While a temporal analysis may be a factor in the foreseeability analysis, this instruction does not represent the jury’s fact-finding role to determine whether the potential danger was foreseeable. Therefore, we find the jury instructions do not embody the essential elements of the warranty of habitability.

Resulting Prejudice. Our case law clearly indicates that the implied warranty of habitability is a cause of action that is separate from a common law negligence claim. See Vazquez, 564 N.W.2d at 429 (“Negligence and the implied warranty of habitability are two different causes of action with distinct elements.”). Because the court did not instruct the jury on Struve’s theory of liability under the implied warranty of habitability and the other jury instructions did not embody the elements of that theory, Struve was prejudiced. We cannot discern whether the jury reached the merits of Struve’s implied warranty claim; therefore, we must reverse and remand for a new trial so that a jury can properly consider this issue.

B. Negligence Per Se

Struve contends. the trial court erred when it refused to submit her negligence per se theory to the jury. Because this issue will necessarily arise on remand, we will address it here.

Struve claims Iowa Code section 562A.15(l)(d) creates an affirmative duty to maintain and where the landlord does not maintain, the landlord is negligent per se. Section 562A.15(l)(d) states, in relevant part:

1. The landlord shall:
a. Comply with the requirements of applicable building and housing codes materially affecting health and safety.[ ]
d. Maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating, air-conditioning, and other facilities and appliances, including elevators, supplied or required to be supplied by the landlord.

Struve argues that when the victim is within the class of persons. the statute intends to protect, a duty is created, and a violation of that duty is negligence per se. See Timm v. Clement, 574 N.W.2d 368, 372 (Iowa Ct.App.1997). Struve further argues that because the Uniform Residential Landlord and Tenant Act (“URLTA”) protects tenants as a class and provides tenants with rights, any violation of a statutory duty contained in the URLTÁ constitutes negligence per se.

We do not read section 562A.15(l)(d) or the URLTA so broadly. Generally, violation of a statutory duty is negligence per se. Wright v. Welter, 288 N.W.2d 553, 556 (Iowa 1980). However, in order to establish a violation the statute must have enough specificity to establish a standard of conduct. See Griglione v. Martin, 525 N.W.2d 810, 812 (Iowa 1994) (“[I]n order for the violation of rules of conduct to constitute negligence per se, those rules must establish specific standards that are to be followed unwaveringly in all instances.”). Section 562A.15(l)(d) does not define what constitutes a good and safe working condition in a furnace, nor does it define adequate maintenance for a furnace. It merely indicates that the landlord shall maintain heating appliances in a safe and working order. The benefit of requiring an absolute and specific standard in a statute before imposing negligence per se is that those who have a duty under the statute can conform their behavior accordingly. This statute does not contain a specific standard of conduct from which a fact finder could find a violation. Therefore we find the trial court did not err when it refused to submit Struve’s negligence-per-se theory to the jury.

III. Conclusion

Having considered all issues, whether or not specifically addressed in this opinion, we reverse the judgment in this matter and remand for a new trial.

REVERSED AND REMANDED WITH DIRECTIONS.

      . The symptoms of carbon monoxide poisoning include headaches, weakness, nausea, vomiting, confusion, inability to think clearly, fatigue, and a feeling of grogginess.

      . The additional language indicating that the landlord is not required to make extraordinary expenditures of time and money does not establish that the landlord has á duty to perform inspections for unforeseeable latent defects simply because such tests may be inexpensive. In this context, the trigger of the duty to perform an inspection is the foreseeability of a latent defect that could lead to serious danger. .

      . Section 29.12(1) of the Cedar Rapids Municipal Code requires that landlords maintain "fuel burning heating equipment ... in good and safe working condition....” It also requires an inspection every seven years by "a licensed mechanical contractor or certified service technician for proper drafting, combustion and integrity of total operation system ... and [a] determin[ation] that carbon monoxide levels are within safe limits for human habitation.” Pursuant to the municipal code section, PayVandi had the subject furnaces inspected in November 1996. The furnaces passed inspections and were certified as safe. At the time of the incident, the furnaces were within the seven-year inspection cycle.

      . Because this case is remanded for a new trial, we need not address the court’s eviden-tiary ruling concerning Valerie Walton’s testimony. The district court shall consider this issue, if it arises, in the context of the new trial.


author: /s/Helen M. Meyer Associate Justice

text:
    In re PETITION FOR DISCIPLINARY ACTION AGAINST Willie Herman DAVIS, a Minnesota Attorney, Registration No. 298384.
    No. A07-1855.
    Supreme Court of Minnesota.
    Oct. 17, 2007.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Willie Herman Davis committed professional misconduct warranting public discipline, namely, felony driving while impaired, in violation of Minn. R. Prof. Conduct 8.4(b).

Respondent admits his conduct violated the Rules of Professional Responsibility, waives his procedural rights under Rule 14, Rules on Lawyers Professional Responsibility, and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is a 6-month suspension from the practice of law and .seven years of unsupervised probation. The parties recommend that respondent’s suspension be stayed on condition that respondent not engage in similar misconduct and abide by the terms of his probation.

The court has independently reviewed the file and approves the jointly recommended disposition.

Based on all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that respondent Willie Herman Davis is suspended from the practice of law for six months and is placed on unsupervised probation for a period of seven years. Respondent’s suspension is stayed subject to the following conditions:

a. Respondent shall cooperate fully with the Director’s Office in its efforts to monitor compliance with his probation and shall promptly respond to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct that may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
b. Respondent shall abide by the Minnesota Rules of Professional Conduct.
c. Respondent shall comply with the terms of his criminal probation.
d. Respondent shall provide the Director with authorizations to monitor and receive reports regarding his compliance with his criminal probation, including biological fluid testing and home monitoring. Any positive read for ingested alcohol or mood-altering chemicals that are not prescribed by a physician or dentist will be grounds for revoking the stay of respondent’s suspension from the practice of law.
e. Respondent shall, at his own expense, no more than four times per month, submit to random urinalysis for drug screening at a facility approved by the Director. These drug screenings shall be in addition to any screenings required by respondent’s criminal probation. Respondent shall direct the drug screening facility to provide the results of all urinalysis testing to the Director’s Office. If, after six months, all such tests have been negative, then the frequency of the random tests may be reduced or terminated at the Director’s discretion. Respondent shall cooperate with the phone-in program established by the Director for the random tests. Any failure to phone-in in accordance with the random test program shall be considered the same as a positive test result. Any positive test shall be grounds for revoking the stay of respondent’s suspension from the practice of law.
f. Respondent shall, by the tenth day of each month, without a specific reminder or request, submit to the Director an attendance verification for Alcoholics Anonymous, or any other treatment program required under the terms of respondent’s criminal probation, on a form supplied by the Director that provides the name, address, and telephone number of the person personally verifying respondent’s attendance.
g.Should respondent be discharged from his criminal probation before the seven year period imposed in the district court’s February 28, 2007, sentencing order, the Director may in his discretion reduce the duration of respondent’s disciplinary probation in accordance with respondent’s discharge by community corrections.

Respondent shall pay $900 in costs pursuant to Rule 24, RLPR.

BY THE COURT:

/s/Helen M. Meyer Associate Justice


author: /s/G. Barry Anderson Associate Justice

text:
    Raymond C. BENSE, Respondent, v. ALLIANCE SAVINGS COMPANY, and Missouri Employers Mutual Insurance, Relators, and Joe’s Trucking (Uninsured) and American Solutions Group, and CentraCare Clinic, Little Falls Orthopedic, Little Falls Anesthesia, and St. Gabriel’s Hospital, Intervenors, and Special Compensation Fund, Respondent.
    No. A07-1475.
    Supreme Court of Minnesota.
    Oct. 31, 2007.

      Megan Elizabeth Burkhammer, St. Cloud, MN, for Respondent.
    Rory H. Foley, Assistant Attorney General, St. Paul, MN, for Special Compensation Fund.
    Cheryl A. Hood Langel, McCollum, Crowley, Moschet & Miller, Ltd., Minneapolis, MN, for Relator.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed July 6, 2007, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (explaining that [sjummary af-firmances have no precedential value because they do not commit the court to any particular point of view, doing no more than establishing the law of the case).

BY THE COURT:

/s/G. Barry Anderson Associate Justice


author: ANDERSON, Russell A., Chief Justice.

text:
    Joseph T. SPANN, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A06-1474.
    Supreme Court of Minnesota.
    Nov. 1, 2007.

      Joseph Thomas Spann, Bayport, MN, Appellant Pro Se.
    Lori Swanson, Attorney General, St. Paul, MN, Michael O. Freeman, Hennepin County Attorney, Michael K. Walz, Assistant Hennepin County Attorney, Minneapolis, MN, for Respondent.
   OPINION

ANDERSON, Russell A., Chief Justice.

Appellant Joseph T. Spann appeals from a summary denial of his posteonvietion petition arguing that (1) he was sentenced in violation of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); (2) his convictions for multiple offenses arising out of the same behavioral incident violated Minn.Stat. § 609.04 (2006); and (3) his right to equal protection was violated because the county did not use a racially neutral jury pool selection process. We affirm the postconviction court’s denial of relief with respect to Spann’s conviction for first-degree murder in violation of Minn.Stat. § 609.185(a)(3) (2006) and the mandatory sentence to life imprisonment, but we vacate the convictions for the lesser-included offenses of second-degree murder and first-degree aggravated robbery.

On October 29, 1995, Spann was found guilty by a Hennepin County jury of first-degree murder while committing an aggravated robbery, intentional second-degree murder, and first-degree aggravated robbery in the shooting death of Marvin Nor-dine, a convenience store clerk. State v. Spann, 574 N.W.2d 47, 48, 51 (Minn.1998). Spann was sentenced to life imprisonment. Id. at 51. On direct appeal, Spann raised multiple issues relating to evidentiary rulings, discovery violations, and the sufficiency of the evidence. Id. at 48. We affirmed. Id.

On April 26, 2006, proceeding pro se, Spann filed a petition for postconviction relief arguing essentially that (1) he was sentenced in violation of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), because the jury did not find that he used a firearm in violation of Minn.Stat. § 609.11 (2006); (2) his three convictions arising out of the same behavioral incident include two lesser-included offenses and therefore violate Minn.Stat. § 609.04; and (3) his right to equal protection under the Fourteenth Amendment was violated because the county did not use a racially neutral jury pool selection process. The postconviction court denied his petition without an evidentiary hearing, and this appeal followed.

A person convicted of a crime may petition the district court for postconviction relief “to vacate and set aside the judgment^] ⅜ * * grant a new trial[,] ⅞ * * or make other disposition as may be appropriate.” Minn.Stat. § 590.01, subd. 1 (2006). The petition must contain “a statement of the facts and the grounds upon which the petition is based and the relief desired.” Minn.Stat. § 590.02, subd. 1(1) (2006). An evidentiary hearing “is not required unless facts are alleged which, if proved, would entitle a petitioner to the requested relief.” Fratzke v. State, 450 N.W.2d 101, 102 (Minn.1990) (citing State ex rel. Roy v. Tahash, 277 Minn. 238, 245, 152 N.W.2d 301, 306 (1967)).

On review óf a postconviction court’s denial of relief, we “extend a broad review of both questions of law and fact.” Butala v. State, 664 N.W.2d 333, 338 (Minn.2003). We review legal issues de novo and review the postconviction court’s factual findings to determine if there is sufficient evidence in the record to sustain them. Id. A petitioner is prohibited from raising in a petition for postconviction relief claims that were raised on direct appeal or that were known or should have been known at the time of direct appeal. Boitnott v. State, 640 N.W.2d 626, 630 (Minn.2002); State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). Such claims will be considered on postcon-viction review, even if not raised on direct appeal, only if they are “so novel that the legal basis was not available on direct appeal” or if fairness requires that we review such claims “and the petitioner did not deliberately and inexcusably fail to raise the issue on appeal.” Mckenzie v. State, 707 N.W.2d 643, 644 (Minn.2005).

I.

There is no merit to Spann’s claim that, because the jury did not find that he used a firearm in the commission of the crime in violation of ' Minn.Stat. § 609.11, he was sentenced in violation of the requirements of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 408 (2004). Most importantly, Spann was not sentenced under the firearm enhancement provisions of section 609.11; he received a mandatory term of life imprisonment under Minn.Stat. § 609.185(a)(3). See Mckenzie v. State, 713 N.W.2d 840, 842 (Minn.2006); State v. Shattuck, 704 N.W.2d 131, 141 n. 9 (Minn.2005) (stating that “[f|irst-degree murder is excluded from the Sentencing Guidelines because it carries a mandatory sentence of life imprisonment”). Moreover, Blakely applies retroactively only to cases that were pending on direct review at the time it was decided in 2004, State v. Houston, 702 N.W.2d 268 (Minn.2005), and Spann’s conviction was final in 1998, well before Blakely was decided.

II.

Spann’s next- argument is that he was convicted for multiple offenses arising from the same behavioral incident in violation of Minn.Stat. § 609.04. While Spann did not raise this claim at the time of sentencing or on his direct appeal, we have held that an appellant does not waive claims of multiple convictions or sentences by failing to raise the issue at the time of sentencing. Ture v. State, 353 N.W.2d 518, 523 (Minn.1984). Furthermore, courts are empowered “at any time” to correct sentences not authorized by law. Minn. R.Crim. P. 27.03, subd. 9.

At Spann’s trial the jury returned guilty verdicts for first-degree murder while committing an aggravated robbery, intentional second-degree murder, and first-degree aggravated robbery. A conviction is defined as either a plea of guilty or a verdict or finding of guilty that is “accepted and recorded by the court.” MinmStat. § 609.02, subd. 5 (2006). A guilty verdict alone is not a conviction. We have previously instructed sentencing courts:

“[W]hen the defendant is convicted on more than one charge for the same act * * * the court [is] to adjudicate formally and impose sentence on one count only. The. remaining conviction(s) should hot be formally adjudicated at this time. If the adjudicated conviction is later vacated for a reason not relevant to the remaining unadjudicated conviction(s), one of the remaining unadjudi-cated convictions can then be formally adjudicated and sentence imposed, with credit, of course, given for time already served on the vacated sentence.”

State v. Pflepsen, 590 N.W.2d 759, 766 (Minn.1999) (quoting State v. LaTourelle, 343 N.W.2d 277, 284 (Minn.1984)). In this case, the district court “received” the jury verdicts and sentenced Spann without stating on which offenses the court was entering formal adjudications of conviction. We may also look to the “official judgment of conviction” in the district court file “as conclusive evidence of whether an offense has been formally adjudicated.” Id. at 767. In Spann’s case, the official judgment of conviction shows that formal adjudication was entered on all three guilty verdicts. Spann argues that these three convictions violate MinmStat. § 609.04.

Section 609.04 prohibits convictions on both a crime charged and an included offense, specifying that “[a] lesser degree of the same crime” and “[a] crime necessarily proved if the crime charged were proved” are both included offenses. MinmStat. § 609.04, subd. 1(1), (4). Here, intentional second-degree murder is a lesser degree of first-degree murder, and aggravated robbery is an offense “necessarily proved” if felony murder is proved. E.g., State v. Fratzke, 354 N.W.2d 402, 410 (Minn.1984). Thus, we vacate the convictions for the lesser-ineluded offenses of intentional second-degree murder and first-degree aggravated robbery, offenses for which Spann received no sentence. We affirm the postconviction court’s denial of relief with respect to Spann’s conviction and sentence for first-degree murder.

III.

Spann’s last claim is that his right to equal protection under the Fourteenth Amendment was violated because Henne-pin County did not use racially neutral jury pool selection procedures. This claim was not raised on direct appeal. We have held that claims regarding the racial composition of the jury pool are barred by Knaffla if not raised on direct appeal, because a petitioner knows or should have known such claims at the time of direct appeal. E.g., Buggs v. State, 734 N.W.2d 272, 274 (Minn.2007). Spann’s claim is therefore Knaffla-barred. Furthermore, in State v. Willis, we upheld the petit jury pool selection process in Hennepin County against constitutional challenge. 559 N.W.2d 693, 700-01 (Minn.1997). Spann has not alleged any facts that, if proven, would suggest that the procedures used in his petit jury pool selection differed in any material respect from those used in Willis, and therefore he has not met his burden of alleging facts that establish a prima facie case under the Fourteenth Amendment. See, e.g., State v. Gail, 713 N.W.2d 851, 862 (Minn.2006).

Affirmed as modified.