author: FORSBERG, Judge.

text:
    CITY PAGES, a publication of City Pages Media, Inc., et al., Appellants, v. STATE of Minnesota, et al., Defendants, Blue Cross and Blue Shield of Minnesota, Respondent.
    No. C2-02-1191.
    Court of Appeals of Minnesota.
    Jan. 28, 2003.

      Mark R. Anfinson, Minneapolis, MN, for appellants.
    Eric J. Magnuson, Karen A. Janisch, Diane B. Bratvold, Rider, Bennett, Egan & Arundel, L.L.P., Minneapolis, MN, for respondent Blue Cross and Blue Shield of Minnesota.
    Mike Hatch, Attorney General, Alan I. Gilbert, Chief Deputy and Solicitor General, John S. Garry, Assistant Attorney General, St. Paul, MN, for amicus State of Minnesota.
    Considered and decided by KLAPHAKE, Presiding Judge, KALITOWSKI, Judge, and FORSBERG, Judge.
   OPINION

FORSBERG, Judge.

Appellants, a newspaper and its editor, brought this action against the state to obtain the billing records of a law firm’s work done jointly for the state and respondent Blue Cross and Blue Shield of Minnesota (BCBS). BCBS intervened and moved for summary judgment. The district court, after reviewing sample billing records in camera, granted the summary judgment on the ground that the attorney-client privilege protected the billing records in their entirety. Appellants challenged the grant of summary judgment. This court dismissed the appeal as premature because the summary judgment did not dispose of appellants’ claim against the state. The district court then granted the state summary judgment sua sponte. Appellants challenge the summary judgment granted to BCBS.

FACTS

The law firm of Robins, Kaplan, Miller & Ciresi (RKMC) represented both BCBS and the State of Minnesota in the 1994-1998 tobacco litigation. A special attorney agreement between the state and RKMC provided that RKMC would receive 25% of whatever the state recovered, but also required RKMC to furnish monthly bills detailing its activities and charges. A joint prosecution and confidentiality agreement entered into by RKMC, the state, and BCBS provided that both clients were entitled to communicate separately and confidentially with RKMC. RKMC prepared three sets of bills related to the case: one set for work done only for the state; one set for work done only for BCBS; and one set for work done jointly for the state and BCBS.

After the tobacco litigation had been settled, appellants, City Pages newspaper and its editor, Tom Finkel, asked the state for permission to review the billing records of the work done jointly for it and BCBS, asserting that these records were publicly accessible pursuant to the Minnesota Government Data Practices Act, Minn.Stat. ch. 13 (2000). The state refused, stating that the billing records had been returned to RKMC. They were later returned to the state. Appellants then sued the state to obtain release of the billing records. BCBS intervened; it opposed the release of the billing records on two grounds, arguing first that they were not government data and, in the alternative, that both the attorney-client privilege and the work-product doctrine precluded their release.

The district court, after hearing arguments and examining samples of billing records in camera, found that the attorney-client privilege protected the billing records in their entirety and declined to address whether they were government data and whether the work-product doctrine protected them.

ISSUES

1. Are a law firm’s billing records of work done jointly for the state and another client accessible by the public pursuant to the Minnesota Government Data Practices Act?

2. Does the attorney-client privilege protect in their entirety a law firm’s billing records of work done jointly for the state and another client?

3. Does the work-product doctrine protect in their entirety a law firm’s billing records of work done jointly for the state and another client?

4. When a law firm’s billing records are government data, must a party opposing making parts of the records accessible by the public identify for the court’s in camera review those portions of the records that the party alleges are protected by the attorney-client privilege or the work-product doctrine?

ANALYSIS

On appeal from a summary judgment where there are no genuine issues of material fact, our review is limited to determining whether the district court erred in its application of the law. We review de novo whether the district court erred in its application of the law.

Prior Lake Am. v. Mader, 642 N.W.2d 729, 735 (Minn.2002) (citations omitted). The issues raised by this appeal are all questions of law of first impression in Minnesota.

I. Minnesota Government Data Practices Act

At the state’s request, RKMC provided billing records each month.

All government data collected, created, received, maintained or disseminated by a state agency, political subdivision, or statewide system shall be public unless classified by statute * ⅜ ⅜ as nonpublic or protected nonpublic ⅜ * *.

Minn.Stat. § 13.03, subd. 1 (2000).

[Government data are public and are accessible by the public for both inspection and copying unless there is federal law, a state statute, or a temporary classification of data that provides that certain data are not public.

Minn.Stat. § 13.01, subd. 3 (2000). The billing records are government data within the meaning of the statute; they meet the statutory criterion of being collected and received by a state agency.

BCBS invokes three exceptions to the statutory definition of government data, but none of the exceptions applies. First, BCBS cites Minn.Stat. § 13.39, subd. 2(a) (2000), which provides that

data collected by state agencies * ⅜ * as part of an active investigation undertaken for the purpose of the commencement or defense of a pending civil legal action * * * are classified as protected nonpublic data * * *.

Even assuming arguendo that the billing records meet this standard, the statute also provides that the state may make them accessible by the public. Id. The state says in its brief that it “does not oppose release of the tobacco-litigation billing records under the Data Practices Act.” Therefore, this exception does not apply.

Second, BCBS relies on MinmStat. § 13.43, subd. 1 (2000), which defines “personnel data” as “data on individuals collected because the individual * * ⅜ acts as an independent contractor with a state agency,” and states that such data is private. See id., subd. 4 (2000). BCBS argues that the timekeepers’ names in the billing records are personnel data. But this data pertains to RKMC members and employees, not to BCBS, which lacks standing to invoke the exception.

Third, BCBS relies on Minn.Stat. § 13.65, subd. 1 (2000), providing that certain “data created, collected and maintained by the office of the attorney general are classified as private data on individuals.” The billing records were not “created, collected and maintained by the office of the attorney general” so this exception does not apply to them. Because none of the exceptions applies, the billing records are government data.

But BCBS argues that, even if they are government data, at least parts of them are protected from disclosure by the attorney-client privilege and/or the work-product doctrine. “Entire documents may not be withheld under the Minnesota Government Data Practices Act merely because they contain both public and nonpublic data.” N.W. Publications, Inc. v. City of Bloomington, 499 N.W.2d 509, 509 (Minn.App.1993). Therefore, we examine the application of the attorney-client privilege and the work-product doctrine to the billing records.

II. The Attorney-Client Privilege

Minn.Stat. § 595.02, subd. 1(b) (2000), provides the statutory basis for the privilege.

An attorney cannot, without the consent of the attorney’s client, be examined as to any communication made by the client to the attorney or the attorney’s advice given thereon in the course of professional duty; nor can any employee of the attorney be examined as to the communication or advice, without the client’s consent.

Because billing records are not “communication made by the client,” they come under the privilege only if they are “attorney’s advice given [on a client’s communication] in the course of professional duty.”

No Minnesota case addresses whether billing records subject to the Minnesota Government Data Practices Act are protected by the privilege, but other jurisdictions have addressed the issue. Their holdings were recently summarized in Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 997 P.2d 681 (2000). Cypress Media first noted that the attorney-client privilege

applies only where necessary to achieve its purpose. * * * [I]t protects only those disclosures — necessary to obtain informed legal advice- — which might not have been made absent the privilege.

Id. at 689 (quoting Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976)). Three cases, Clarke v. Am. Commerce Nat’l Bank, 974 F.2d 127, 130 (9th Cir.1992); Beavers v. Hobbs, 176 F.R.D. 562, 564-65 (S.D.Iowa 1997); and Burton v. R.J. Reynolds Tobacco Co., 170 F.R.D. 481, 484 (D.Kan.1997), were cited as examples of the view that,

where the narrative descriptions in billing statements provide only general descriptions of the nature of the services performed and do not reveal the» subject of confidential communications with any specificity, they are not privileged.

Cypress Media, 997 P.2d at 691. Cypress Media also relies on Tipton v. Barton, 747 S.W.2d 325, 332 (Mo.Ct.App.1988) (concerning “billing statements [that] do not include detailed entries which advise, analyze or discuss privileged communications”), and ERA Franchise Sys., Inc. v. N. Ins. Co. of N.Y., 183 F.R.D. 276, 280 (D.Kan.1998) (“information regarding clients’ fees is not protected by attorney-client privilege because payment of fees is not a confidential communication between attorney and client”), to support its holding that “all narrative statements in attorney fee statements are not per se privileged ⅜ * Cypress Media, 997 P.2d at 693.

Here, we hold that the billing records are not protected in their entirety by the attorney-client privilege: much of the information in them is not confidential, and much of it would have been disclosed regardless of the existence of the privilege.

The Minnesota Supreme Court has recently discussed the scope of the privilege in other contexts and set out the proper procedure for an investigation of what the privilege protects. Kobluk v. Univ. of Minn., 574 N.W.2d 436 (Minn. 1998), concluded that both preliminary drafts of a letter conveying the university’s decision to deny tenure were protected by the privilege.

[T]he party resisting disclosure bears the burden of presenting facts to establish the privilege’s existence.
* * * [A] court should decide, as a threshold matter, whether the contested document embodies a communication in which legal advice is sought or rendered.

Id at 440, 444. Here, the degree to which the billing records rendered legal advice was minimal: only those entries referring to specific legal theories even arguably meet this standard.

Another supreme court case considered a conflict between the attorney-client privilege and the open meeting law and held that the privilege applies only when “the balancing of [its] purposes * * * against those served by the Open Meeting Law dictates the need for absolute confidentiality.” Mader, 642 N.W.2d at 730.

[T]he public has a right to be informed of all actions and deliberations made in connection with activities ultimately geared to affect the public interest. Moreover, the public’s input and its knowledge of the bases for the decisions of its elected officials lie at the heart of a democratic government. * * ⅜ [T]he attorney-client exception could swallow the rule of public access.

Id. at 741-42 (citation omitted). Mader is not on point factually, but it indicates the limitations imposed on the attorney-client privilege by the public’s right to know.

Certainly, the public has a right to at least some of the government data contained in the billing records, and the attorney-client privilege protects only data that renders legal advice and that might not have been disclosed absent the privilege. See Cypress Media, 997 P.2d at 689. We conclude that the district court erred in deciding that the attorney-client privilege protected all the data in the billing records.

III. The Work-Product Doctrine

BCBS argues that, even if the billing records are not protected in their entirety by the attorney-client privilege, they are protected in their entirety as attorney work product. Because the billing records are government data, the work-product doctrine may protect parts of them, but we conclude again that they are not protected in their entirety.

The doctrine is codified in Minn. R. Civ. P. 26.02(c).

[A] party may obtain discovery of documents * * * prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including the other party’s attorney ⅜ * ⅜) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

Caselaw further defines items protected by the doctrine.

“Work product” is defined as an attorney’s mental impressions, trial strategy, and legal theories in preparing a case for trial. * ⅜ * However, materials prepared in anticipation of litigation that do not contain opinions, conclusions, legal theories, or mental impressions of counsel are not work product * * *.

Dennie v. Metro. Med. Ctr., 387 N.W.2d 401, 406 (Minn.1986) (citations omitted).

Therefore, to be protected by the doctrine, material must contain opinions, conclusions, legal theories, or mental impressions of counsel, and it must have been prepared in anticipation of litigation.

Whether documents were prepared in anticipation of litigation is a factual determination. The test should be whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation. But the converse of this is that even though litigation is already in prospect, there is no work product immunity for documents prepared in the regular course of business rather than for purposes of litigation.

Bieter Co. v. Blomquist, 156 F.R.D. 173, 180 (D.Minn.1994) (quotation omitted). Litigation was in prospect or ongoing when the billing documents were prepared, so the issue becomes which parts of them were prepared in the regular course of business and which parts were prepared for the purpose of litigation.

Only “opinions, conclusions, legal theories, or mental impressions of counsel” qualify as work product. Dennie, 387 N.W.2d at 406. Generally, billing records do not fall into this category. See Bieter, 156 F.R.D. at 180 (holding that billing records were discoverable and citing Rayman v. Am. Charter Fed. Sav. & Loan Ass’n, 148 F.R.D. 647, 660 (D.Neb.1993) (attorney billing statements not subject to work-product protection)). However, work descriptions that contain RKMC’s opinions, conclusions, legal theories, or mental impressions arguably would be protected. See id. at n. 15 (descriptions prepared in anticipation of litigation arguably constitute work product).

Minnesota has adopted

the rationale of Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385 [91 L.Ed. 451 (1947) ] * * ⅜ undertaking to strike a balance between protecting the work product of an attorney and the public policy interest in allowing reasonable and necessary inquiries into factual matters * * *.

Leininger v. Swadner, 279 Minn. 251, 258, 156 N.W.2d 254, 259 (1968). This balance is achieved neither by invoking the work-product doctrine to protect the billing records in their entirety nor by deciding that the doctrine does not apply to the billing records.

IV. In Camera Inspection

The billing records are government data and, as such, accessible by appellants. But this accessibility may be abrogated by the attorney-client privilege, which protects those parts of the billing records in which RKMC communicated legal advice that would not have been disclosed but for the existence of the privilege, see Cypress Media, 997 P.2d at 692, and by the work-product doctrine, which protects those parts of the billing records in which RKMC communicated opinions, conclusions, legal theories, or mental impressions prepared in anticipation of litigation. See Dennie, 387 N.W.2d at 406.

“[P]arties claiming the [attorney-client] privilege will have to show its application to particular narrative statements in billing records.” Cypress Media, 997 P.2d at 698. The burden of establishing adequate reasons to justify production is on the party seeking discovery of the lawyer’s work product. Leininger, 279 Minn. at 259, 156 N.W.2d at 260. Therefore, BCBS must identify for the district court’s in camera review those portions of the billing records that it claims are protected by the attorney-client privilege or the work-product doctrine.

DECISION

The billing records for work done by RKMC jointly for the state and BCBS are accessible by the public pursuant to the Minnesota Government Data Practices Act, and neither the attorney-client privilege nor the work-product doctrine protects the billing records in their entirety. We therefore reverse and remand for BCBS to identify for the district court’s in camera review those portions of the billing records claimed to be protected.

Reversed and remanded.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

      . Both BCBS and the state filed briefs. Respondent BCBS moved this court to strike the state's brief and to exclude the state from oral argument. The state waived oral argument but opposed the motion to strike its brief; appellants filed a letter concurring with the state's position. This court issued an order holding that the state is not an adverse party to the appeal and therefore not a respondent, but accepting its brief as an amicus curiae brief.

      . The parties agree that the facts are not disputed.

      . The billing records for April 1997 and September 1997 were submitted as samples to the district court. This court has also examined them in camera. They contain: (1) dates; (2) names of timekeepers; (3) numbers of hours worked; (4) generic descriptions of activities, e.g., review files, update database, prepare for deposition, search and retrieve files, research on summary judgment motion; (5) occasional references to legal theories that were the subject of research; (6) occasional references to the source of documents being reviewed; and (7) total fees and disbursements for the month. The billing records carry no stamped or written indication that they are work product or protected by the attorney-client privilege.

      . BCBS also relies on Annandale Advocate v. City of Annandale, 435 N.W.2d 24 (Minn. 1989) (holding that investigative report into police chiefs conduct was protected as private personnel data). But in that case, the subject of the report, not a third party, was seeking its classification and protection as private personnel data. Id. at 25.

      . The classic explication of privilege is:
      (1) Where legal advice of any kind is sought
      (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.

        Kobluk v. Univ. of Minn., 574 N.W.2d 436, 440 (Minn.1998) (quoting 8 John Henry Wigmore, Evidence § 2292, at 554 (McNaughton rev.1961)).


source: Caselaw Access Project

author: G. BARRY ANDERSON, Judge.

license: Public Domain

text:
    Edward J. ANDERSON, individually and as parent and natural guardian of Trevor Anderson, a minor, Respondent, v. ANOKA HENNEPIN INDEPENDENT SCHOOL DISTRICT 11, et al., Appellants.
    No. C0-02-1125.
    Court of Appeals of Minnesota.
    Jan. 28, 2003.

      Lawrence M. Rocheford, ■ Jessica E. Schwie, Jardine, Logan & O’Brien, P.L.L.P., Lake Elmo, for appellants.
    Robert N. Edwards, Robert N. Edwards, Chtd., Anoka, for respondent.
    Considered and decided by STONEBURNER, Presiding Judge, G. BARRY ANDERSON, Judge, and WRIGHT, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

Respondent’s son was injured when he reached into a table saw to remove a loose piece of scrap wood in a high-school woodworking class. At the time of the injury, respondent’s son was operating the saw without a blade guard, as his teacher, Paul Peterson, had instructed him. Respondent sued Anoka-Hennepin Independent School District 11 (the district) and Paul Peterson (Peterson) (collectively, appellants) for negligence. .Appellants moved for summary judgment, claiming statutory, official, and vicarious official immunity. The district court denied the motion for summary judgment on all grounds. Appellants argue that: (1) the district is immune under Minn.Stat. § 466.03, subd. 6 (2002); (2) Peterson is entitled to common-law official immunity; and (3) the district is entitled to vicarious common-law official immunity. Because we conclude that appellants have failed to demonstrate that statutory, official, or vicarious official immunity applies, we affirm.

FACTS

On May 16, 2000, 16-year-old Trevor Anderson reached into a table saw as he was cutting one and one-half-inch-wide strips of wood to be used in the construction of a TV/VCR cabinet and amputated his left index finger at the first knuckle. The accident occurred during appellant Paul Peterson’s Woods II shop class at Coon Rapids Senior High School. The table saw was equipped with an aftermarket blade guard, but Anderson did not use the guard while cutting the strips because Peterson had instructed the class to put the guard up when ripping strips of wood smaller than four inches. Anderson was injured when he reached into the saw’s blade area to remove a loose piece of wood.

Respondent Trevor Anderson’s father filed suit on his son’s behalf, alleging that the district and Peterson negligently failed to provide a safe environment and negligently failed to supervise Trevor Anderson. Appellants filed a motion for summary judgment, asserting that either statutory immunity under Minn.Stat. § 466.03, subd. 6, or common-law official immunity shields the district and Peterson from liability. The district court denied appellants’ motion for summary judgment, and this appeal followed.

ISSUES

I. Did the district court err by concluding that appellant school district was not entitled to statutory immunity?

II. Did the district court properly conclude that appellant Paul Peterson was not entitled to official immunity?

III. Did the district court err by concluding that vicarious official immunity does not protect appellant school district?

ANALYSIS

On appeal from summary judgment, this court must determine whether there are any genuine issues of fact and whether the district court erred in its application of the law. Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 315 (Minn. 1998). A summary-judgment order denying an immunity defense is appealable because immunity from suit is lost if a case is erroneously allowed to go to trial. McGowan v. Our Savior’s Lutheran Church, 527 N.W.2d 830, 832 (Minn.1995). The applicability of immunity is a question of law, which this court reviews de novo. Johnson v. State, 553 N.W.2d 40, 45 (Minn. 1996).

The party asserting immunity has the burden of showing particular facts that demonstrate it is entitled to immunity. Fear v. Indep. Sch. Dist. 911, 634 N.W.2d 204, 209 (Minn.App.2001). When reviewing a denial of summary judgment based on a claim of immunity, we presume “the truth of the facts alleged by the nonmov-ing party.” Id. (citation omitted).

I. Statutory Immunity

The district first asserts that it is immune from liability for Trevor Anderson’s injury under the doctrine of statutory immunity. Under statutory immunity, state officials and employees are immune from claims arising out of the performance of discretionary duties, but may be liable for ministerial actions. Minn.Stat. § 466.03, subd. 6 (2002); Larson v. Indep. Sch. Dist. No. 811, Braham, 289 N.W.2d 112, 119 (Minn.1979). In defining what constitutes a discretionary act, the Minnesota Supreme Court distinguishes between “operational” and “planning” decisions. Larson, 289 N.W.2d at 120. Planning decisions involve issues of public policy and are protected discretionary decisions. Fear, 634 N.W.2d at 210. Operational decisions relate to the day-today functioning of government and are not protected. Id.

We must first ascertain the nature of the governmental conduct that respondent challenges and determine whether it is a planning decision and thus appropriate for immunity. Larson, 289 N.W.2d at 120. “The critical inquiry is whether the conduct involved a balancing of policy objectives.” Fear, 634 N.W.2d at 210 (quotation omitted). The government action challenged here is the Woods II class rule that prohibited Trevor Anderson from utilizing the blade guard when ripping boards one- and one-half inches in width.

The district argues that the instruction regarding the use of the guard was a policy-level decision entitled to immunity. The district claims that the staff in the Technology Education Department at Coon Rapids High School weighed alternative practices and concluded that using the guard could pose an additional risk because students’ fingers could get closer than four inches to the blade.

In order for the district to be immune, it must meet its burden of establishing that the conduct challenged by respondent was of a “public policy-making nature involving social, political, or economical considerations.” S.W. v. Spring Lake Park Sch. Dist. No. 16, 580 N.W.2d 19, 22 (Minn.1998). The enforcement and creation of a safety rule for a table saw does not rise to the level of a “social,” “political,” or “economic” consideration. Appellants do not argue that social or political considerations went into the decision not to use the guard. The decision not to use the guard also was not based on economic considerations. After the district purchased an additional guard not included with the table saw, the district did not need to spend anything more to engage that guard for all procedures. The decision regarding the use of the blade guard was based on practical, day-to-day operational considerations in Peterson’s classroom.

The most applicable Minnesota decision relating to immunity for a schoolteacher is also consistent with our holding. In Larson, an eighth-grader was injured while attempting to perform a gymnastic exercise. Larson, 289 N.W.2d at 115. The plaintiff alleged that the teacher was negligent in providing support to the plaintiff while doing a “headspring over a rolled mat.” Id. The teacher claimed statutory immunity protected him from liability because the method of teaching the headspr-ing involved a policy-level decision. Id. at 119. The supreme court disagreed, holding that the decision to spot the headspr-ing in the manner chosen clearly was a ministerial activity not entitled to immunity. Id. at 120. The court held that although the teacher used judgment in deciding how to spot the gymnastic exercise, this alone did not establish that he performed a discretionary duty entitled to immunity:

While it may be a policy-level decision whether a teacher will be required to teach gymnastics or the headspring over a rolled mat, the actual teaching is a ministerial function because it involves decisions made at the operational level of conduct.

Id. at 121.

It is at least arguable that offering a Woods II class or establishing class curriculum that includes construction of a TV/ VCR cabinet is a policy-level decision entitled to statutory immunity. The actual classroom instruction here, however, including the method of using the materials and tools to construct the cabinet, is a ministerial function involving decisions made at the operational level by the individual teacher.

The purpose of statutory immunity also supports our conclusion. The underlying “purpose of statutory immunity is to protect government entities from having the judiciary second-guess the important public policy decisions they are required to make.” S.W., 580 N.W.2d at 23. The discretionary-function exception thus addresses separation-of-powers concerns by preventing lawsuits from “becoming a vehicle for judicial interference with executive and legislative policymaking.” Terwilliger v. Hennepin County, 561 N.W.2d 909, 912 (Minn.1997) (quotation omitted). The legislature did not intend the exception for discretionary acts to “swallow the general rule” of liability for public officials negligently performing government operations. Id. Therefore, statutory immunity is narrowly construed. Id.; Larson, 289 N.W.2d at 121.

The determination not to use a blade guard for cuts under four inches is not an important public-policy decision protected by Minn.Stat. § 466.03. The narrow interpretation of statutory immunity and its overall purpose lead to the conclusion that the district court properly refused to apply such immunity to appellants’ actions.

II. Official Immunity

Appellants argue that the doctrine of common-law official immunity protects appellant Peterson from liability for negligently supervising Trevor Anderson and for permitting Anderson to use the table saw without the blade guard in place.

Official immunity protects a public official charged by law with duties involving judgment or discretion from personal liability unless the official acts willfully or maliciously. Elwood v. Rice County, 423 N.W.2d 671, 677 (Minn.1988). “Whether actions of government officials are protected by official immunity is a question of law.” Fear, 634 N.W.2d at 215.

Although the distinction between statutory and official immunity is not always clear, the discretionary acts protected by each doctrine are not identical and the acts serve different purposes. As mentioned, statutory immunity preserves the separation of powers, while official immunity primarily is “intended to insure that the threat of potential liability does not unduly inhibit the exercise of discretion required of public officers in the discharge of their duties.” Rico v. State, 472 N.W.2d 100, 107 (Minn.1991) (quotation omitted). Thus, discretion has a broader meaning in the context of official immunity. Id.

Courts distinguish between discretionary duties afforded immunity and ministerial duties for which officials remain liable. Id. Because only discretionary decisions are immune from suit, it is critical to determine whether Peterson’s actions were discretionary or ministerial. Huttner v. State, 637 N.W.2d 278, 284 (Minn. App.2001), revieio denied (Minn. Nov. 13, 2001). An official’s duty is ministerial “when it is absolute, certain and imperative, involving merely execution of a specific duty arising from fixed and designated facts.” Rico, 472 N.W.2d at 106 (quotation omitted).

Appellants claim that Peterson’s actions were discretionary because he was required to balance several factors in supervising Trevor Anderson’s use of the table saw. Peterson watched while Anderson ripped four to five one and one-half-inch-wide strips of wood using a push stick and with the blade guard disengaged. Appellants claim that Peterson then justifiably moved to another area of the classroom to supervise some of the other twenty-five students in the classroom.

Determining what acts are ministerial is often difficult, and the distinction is subject to “enigmatic application and occasional breakdown.” Larson, 289 N.W.2d at 120. In Williamson v. Cain, the supreme court held that state employees did not perform a discretionary act when they removed an abandoned house with a tractor. Williamson v. Cain, 310 Minn. 59, 61, 245 N.W.2d 242, 244 (1976). The employees’ job was “simple and direct” and “[w]hile they undoubtedly had to make certain decisions in doing that job, the nature, quality and complexity of their decision-making process” did not entitle them to official immunity. Id. In Huttner, this court held that official immunity was not available to protect a social worker who failed to ensure that a patient took his medication. 637 N.W.2d at 285. When that patient later committed a murder, this court stated that the official’s failure to comply with a statutory duty to monitor the patient’s treatment plan (1) did not require the exercise of any discretion, (2) was ministerial, and (3) was not entitled to the protection of official immunity. Id.

Here, rather than exercising policy-making power, appellant Paul Peterson only carried out ministerial functions. Although Peterson exercised independent judgment by deciding how to supervise his classroom and whether to use the blade guard, these are not the type of discretionary decisions afforded immunity. The exercise of some level of discretion or judgment will not necessarily confer immunity. Rather, “the crucial focus is upon the nature of the act.” Terwilliger, 561 N.W.2d at 913 (quotation omitted).

Although Peterson balanced many different factors in supervising the Woods II classroom, Peterson did not exercise any more discretion then any other teacher in controlling a classroom — the essence of a ministerial action. Similar to the state employees’ removal of a house in Williamson, Peterson’s teaching duties with regards to safety were direct and did not involve policy decisions with broad implications. See Williamson, 310 Minn. at 61, 245 N.W.2d at 244 (holding state employees’ removal of a house was a “simple and definite” job not entitling them to immunity). He was instructing and assisting students in the construction of TV/VCR cabinets. While Peterson necessarily made decisions on how best to perform those responsibilities, the nature and complexity of that decision-making process does not entitle him to official immunity.

Respondent also argues official immunity does not protect Peterson because his actions were willful or malicious. The official-immunity doctrine does not protect government officers who commit willful or malicious acts. Rico, 472 N.W.2d at 107. Malice is defined as the “intentional doing of a wrongful act without legal justification or excuse, or otherwise stated, the willful violation of a known right.” Id. (citing Carnes v. St. Paul Union Stockyards Co., 164 Minn. 457, 462, 205 N.W. 630, 631 (1925)).

While we leave for another day the question of whether or not instructor Peterson’s actions were negligent, given .the record before us, the suggestion that those actions were somehow willful or malicious borders on the ridiculous. But because we hold that official immunity does not apply here, we need not consider this issue further.

III. Vicarious Immunity

Finally, appellants argue that the official immunity they claim shields Peterson from liability should also vicariously extend to the district. Appellants assert public policy favors immunizing the district from liability for Trevor Anderson’s injuries and therefore, the district court erred by failing to apply vicarious immunity. Because we conclude that official immunity does not protect Peterson, immunity also will not vicariously extend to the district. See Terwilliger, 561 N.W.2d at 913 (“[i]f a public official is entitled to official immunity, his or her employer may be vicariously immune.”).

DECISION

The judgment utilized by Peterson in determining how best to teach students to safely use woodworking machinery is not entitled to protection under the doctrine of statutory immunity. The instruction by a teacher of safety techniques in using woodworking machinery is a ministerial act not entitled to official immunity. The district is not vicariously immune because common-law official immunity does not protect Peterson from liability.

Affirmed.

      . To "rip” a board means "[t]o split or saw (wood) along the grain.” The American Heritage Dictionary 1177 (3d. ed.2000).

        . We refer to immunity under Minn.Stat. § 466.03, subd. 6 (2002), as "statutory immunity,” although some earlier cases refer to it as "discretionary immunity.” Angeli v. Hennepin County Reg’l Rail Auth., 578 N.W.2d 343, 345 n. 2 (Minn.1998).

      . Minn.Stat. § 466.03, subd. 1 (2002), excludes liability to every municipality. Subdivision 6 states an exception for "[a]ny claim based upon the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.” Minn.Stat. § 466.03, subd. 6.


author: PER CURIAM.

text:
    2003 ND 11
    In the Matter of DISCIPLINARY ACTION AGAINST Robert N. LEE, a Member of the Bar of the State of North Dakota. Disciplinary Board of the Supreme Court, Petitioner, v. Robert N. Lee, Respondent.
    No. 20020326.
    Supreme Court of North Dakota.
    Jan. 23, 2003.
   PER CURIAM.

[¶ 1] Robert N. Lee was admitted to practice as an attorney and counselor at law in the courts of North Dakota on July 27, 1973, and since that time his name has appeared on the roll of attorneys.

[¶ 2] A Petition for Discipline was served on Lee on October 7, 2002. The Report of the Hearing Panel was filed November 26, 2002; objections to the Report were due December 16, 2002, and none were filed. The matter was referred to the Supreme Court under N.D.R. Lawyer Discipl. 3.1F(2). On January 15, 2003, Lee forwarded a letter to the Chief Justice’ regarding this matter. The letter is not timely, nor in an appropriate form, and therefore, is not being considered.

[¶ 3] On March 26, 1996, Karon Ka-sprowicz filed a notice of appeal in the Supreme Court; Lee was appointed to represent Kasprowicz for the appeal. On June 25, 1996, Lee notified the Supreme Court that his client wanted to discontinue the appeal. Lee was advised that a motion under N.D.R.App.P. 42 needed to be filed along with his client’s consent to the dismissal. Lee did not file the required motion, and by letter dated August 26, 1996, was informed that in light of the expiration of the time for filing the appellant’s brief and his letter that his client wanted to discontinue the appeal, an order dismissing the case would be entered on August 30, 1996, unless written objection was received. On August 26, 1996, Kasprowicz notified the Supreme Court that she wanted to proceed with the appeal. Nothing further was received, and the appeal was dismissed on October 9,1996.

[¶ 4] On September 27, 1996, Lee filed a notice of appeal on behalf of Brian Pension. The transcript was due December 5, 1996, but preparation was suspended for failure to make advance payment. Nothing further was received, and no transcript was filed. By letter dated April 1, 1997, Lee was notified that unless there was a showing of good cause why the matter should not be dismissed, the matter would be referred to the Court for dismissal. The appeal was dismissed on April 23, 1997.

[¶ 5] On April 6, 2001, Lee was appointed to represent Steven A. Torkelson in his appeal to the Supreme Court. Lee requested an extension for filing the appellant’s brief which was granted to June 16, 2001.No brief was filed. By letter dated July 5, 2001, Lee was notified that unless there was a showing of good cause why the matter should not be dismissed, the matter would be referred to the Court for dismissal. On July 16, 2001, Torkelson submitted a document entitled “Appellant Brief-Appeal” which’ was forwarded to Lee with inquiry about the points raised by Torkel-son. On July 26, 2001, Lee notified the Supreme Court that a Stipulation for Dismissal of the appeal would be forthcoming. By letter dated August 16, 2001, the Clerk requested Lee to file an appropriate motion under N.D.R.App.P. 42 dismissing the appeal. Nothing was received, and on October 3, 2001, the appeal was dismissed.

[¶ 6] On October 16, 2001, Lee was appointed to represent the mother in a termination of parental rights matter. On January 16, 2002, a Stipulation for Dismissal signed by Lee and the Towner County State’s Attorney was filed in the Supreme Court. By letter dated January 16, 2002, Lee was informed that due to the nature of the case, the Supreme Court required the client’s written consent or proof of her consent to dismiss the appeal. Nothing was received. By letter dated March 7, 2002, Lee was requested to explain the status of the appeal, and it was noted that he had not responded to the Clerk’s January 16, 2001 letter. Nothing was received, and by letter dated April 1, 2002, Lee was notified that unless there was a showing of good cause why the matter should not be dismissed, the matter would be referred to the Court for dismissal. Nothing further was received, and on April 17, 2002, the appeal was dismissed.

[¶ 7] By letter dated June 13, 2002, Lee was notified.that a complaint had been filed against him, and was informed of his obligation under N.D.R. Lawyer Discipl. 3.1D(3) to forward a written response to the complaint to the assigned investigator. Lee did not respond to the complaint.

[¶ 8] Lee’s conduct violated N.D.R. Prof. Conduct 1.3, Diligence, 1.4, Communication, 3.2, Expediting Litigation, 8.4(e), Misconduct, 8.1, Bar Admission and Disciplinary Matters, and N.D.R. Lawyer Dis-cipl. 1.2A(8), which provides that a lawyer shall not willfully fail to respond to a lawful demand for information from a disciplinary authority.

[¶ 9] Under N.D. Stds. Imposing Lawyer Sanctions 9.22(a), prior disciplinary offenses may be considered an aggravating condition. Lee has previously been suspended from the practice of law. Disciplinary Board v. Lee, 1998 N.D. 90, 578 N.W.2d 89. Lee also received a public reprimand for violation of DR 9 — 102(B)(4), North Dakota Code of Professional Responsibility, which provided that a lawyer shall promptly pay or deliver to the client funds in the possession of the lawyer which the client is entitled to receive. Other aggravating factors under N.D. Stds. Imposing Lawyer Sanctions are 9.22(i), substantial experience in the practice of law, and 9.22(e), intentionally failing to comply with rules or orders of the disciplinary agency.

[¶ 10] ORDERED, the Report of the Hearing Panel is adopted, and Robert N. Lee is SUSPENDED from the practice of law for one year, effective February 17, 2003.

[¶ 11] FURTHER ORDERED, Robert N. Lee pay the costs and expenses of the disciplinary proceedings in the amount of $672.20.

[¶ 12] FURTHER ORDERED, Robert N. Lee comply with N.D.R. Lawyer Dis-cipl. 6.3F.

[¶ 13] GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER, MARY MUEHLEN MARING, WILLIAM A. NEUMANN, and DALE V. SANDSTROM, JJ., concur.


author: GILBERTSON, Chief Justice.

text:
    2002 SD 162
    Dawn NOVAK and Donald Novak, Plaintiffs and Appellants, v. Dennis McELDOWNEY, Defendant and Appellee.
    No. 22179.
    Supreme Court of South Dakota.
    Argued Oct. 7, 2002.
    Decided Dec. 23, 2002.

      Casey N. Bridgman, Jeff Adel, of Bridgman and Adel, Wessington Springs, South Dakota, Attorneys for plaintiffs and appellants.
    Jon C. Sogn, Heath R. Oberloh, of Lynn, Jackson, Shultz and Lebrun, Sioux Falls, South Dakota, Attorneys for defendant and appellee.
   GILBERTSON, Chief Justice.

[¶ 1.] Dawn and Donald Novak brought several claims against Dennis McEldowney (McEldowney), which stemmed from Dawn’s employment on McEldowney’s farm. Dawn alleged breach of contract, intentional infliction of emotional distress, battery, sexual harassment, and punitive damages. Donald sought damages for loss of consortium. After a jury trial, Dawn was awarded $5,000 for her breach of contract claim; however, judgment was entered in McEldowney’s favor on the other claims. The Novaks appeal the jury’s verdict. We reverse and remand in part and affirm in part.

FACTS AND PROCEDURE

[¶ 2.] McEldowney owns a farm near Wessington Springs, South Dakota and employs several people as farm workers. One of his employees, Donald Novak, began working for McEldowney in March of 1989 and continued working for him for the next ten years. After Donald sustained an injury to his hand in approximately 1995, his wife, Dawn, helped Donald perform his work around the farm. Before long, Dawn was working full-time and McEldowney began to pay her initially at an hourly wage, and later at a set salary beginning in November of 1997. The predominant part of Dawn’s employment was managing the newly built hog confinement unit.

[¶ 3.] Throughout Dawn’s employment, she alleged that there were numerous incidences of sexual harassment. For example, she claimed McEldowney asked her how she became “horny,” how she “got off,” and how she became sexually aroused. Dawn further testified, and McEldowney admitted to at trial, that in August of 1997, while shingling a roof, McEldowney looked down the front of Dawn’s shirt as she was climbing down a ladder, and commented to her that he had a nice view. He told her if she took off her shirt, then he would remove his shirt. At several other times, McEldowney smelled Dawn’s hair and arms after she took a shower. Dawn also accused McEldowney of telling dirty jokes, talking in detail about the sexual exploits between President Bill Clinton and Monica Lewinsky, and urinating in front of her. Another major complaint by Dawn was that the entry to the bathroom, which the farm workers were required to use, did not have a door and whenever she showered, the shower curtain would blow open. She further alleged that on one occasion, she saw McEldowney nude in the bathroom and he laughed, telling her she had just received a “big treat that morning.”

[¶ 4.] In addition to these incidences, Dawn claimed that in the Spring of 1998, after Dawn had showered and dressed and was working at a sink, McEldowney came in and put his hand on Dawn’s breast and asked Dawn how that felt. She further alleges that on Halloween night of 1998, while they were discussing work at McEl-downey’s house, he grabbed her breasts from behind and asked her how she liked that. The third incident of alleged actual contact purportedly occurred in the Spring of 1999. McEldowney came into town to look at remodeling that Dawn had done in the upstairs bathroom in the Noyak’s house. While in the bathroom, McEldow-ney allegedly shut the door, put both arms around her, pushed her up against the sink and told her that he would show her some real loving. The Novaks quit working for McEldowney on June 1, 1999, two weeks after this alleged incident.

[¶ 5.] Just eleven days later, McEldow-ney hired Wes Byrd to work on his farm. The wife of Wes, Heather Byrd, began helping out on the farm by cooking and cleaning at the McEldowney house. Heather claimed that she, too, was sexually harassed by McEldowney. Some of the alleged conduct was that McEldowney smelled Heather’s hair and arms and leaned up close to her. Heather also claimed that McEldowney left the door to the shower open so that Heather could see him while he showered. Heather further states that he allegedly lounged around the house in his underwear while Heather was present. On another occasion when McEldowney was in the house in town, Heather claims he came into the bathroom while she was cleaning it, shut the door, and would not let her out until her husband came home. She alleges that because she did not sleep with McEldowney, her husband was fired on July 9,1999.

[¶ 6.] Prior to trial, the trial court granted McEldowney’s motions in limine which excluded Heather’s testimony and any other evidence regarding her claims, and any testimony concerning incidences that occurred in 1995 because it was beyond the statute of limitations. The No-vaks appeal and raise the following issues:

1. Whether the trial court abused its discretion when it excluded the other bad acts evidence.
2. Whether the trial court abused its discretion when it excluded testimony regarding an alleged incident that occurred in 1995.

STANDARD OF REVIEW

[¶ 7.] A court’s evidentiary rulings are reviewed under the abuse of discretion standard. State v. Smith, 1999 SD 83, ¶ 39, 599 N.W.2d 344, 353 (citing State v. Spiry, 1996 SD 14, ¶ 11, 543 N.W.2d 260, 263) (citations omitted). An evidentiary ruling will not be overturned unless error is “demonstrated ... [and] shown to be prejudicial error.” Id. (quoting Shaffer v. Honeywell, Inc., 249 N.W.2d 251, 258 (S.D.1976)). Error is prejudicial when, “in all probability ... [it] produced some effect upon the final result and affected rights of the party assigning it.” Id. (quoting K & E Land and Cattle, Inc. v. Mayer, 330 N.W.2d 529, 533 (S.D.1983)).

ANALYSIS AND DECISION

[¶ 8.] 1. Whether the trial court abused its discretion when it excluded the other bad acts evidence.

[¶ 9.] Although the trial court found Heather’s testimony to be relevant, it found that it was unduly prejudicial. McEldowney did not file a cross-appeal on the relevancy issue and only argues that it was prejudicial. For purposes of this appeal, we will mainly focus on this argument. However, we will briefly address the relevancy issue in our analysis.

[¶ 10.] For evidence to be admitted during trial, it first must be found to be relevant. Once the evidence is found to be relevant, it is admissible unless it is specifically excluded. The applicable statute involved in the instant case is SDCL 19-12-5 (FRE 404(b)), which provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

[¶ 11.] Furthermore, this statute is a rule of inclusion. State v. Wright, 1999 SD 50, ¶ 13, 593 N.W.2d 792, 798. Therefore, if evidence of other acts is relevant, it is admissible for any legitimate purpose other than to prove the character of the defendant. Id. at ¶ 14, 593 N.W.2d at 798. Even if the evidence is relevant and offered for an acceptable purpose, SDCL 19-12-3 (FRE 403) acts as a type of safeguard that allows evidence of other acts to be excluded if its probative value is substantially outweighed by other factors such as unfair prejudice. It is important to remember, however, that because virtually all relevant evidence presented at trial is harmful to the other party, this is not what is meant by unfair prejudice. To cause unfair prejudice, the evidence must persuade the jury in an unfair and illegitimate way. As we stated in State v. Steichen:

Prejudicial evidence is that which has the capacity to persuade the jury by illegitimate means which results in one party having an unfair advantage. Evidence is not prejudicial merely because its legitimate probative force damages the defendant’s case. Even though the admission of acts evidence “will usually result in such prejudice, it will not be admitted only if that prejudice is unfair.”

1998 SD 126, ¶ 27, 588 N.W.2d 870, 876 (additional citations omitted) (internal quotations omitted). Moreover, admission of the evidence is favored under SDCL 19-12-3, and the judicial power to exclude such evidence should be used sparingly. Wright, 1999 SD 50, ¶ 15, 593 N.W.2d at 799.

[¶ 12.] In determining whether other acts evidence is admissible, a two-part test applies:

(1) Whether the intended purpose for offering the evidence the other acts evidence is relevant to some material issue in the case (factual relevancy), and
(2) Whether the probative value of the evidence is substantially outweighed by its prejudicial effect (logical relevancy).

State v. Anderson, 2000 SD 45, ¶ 92, 608 N.W.2d 644, 669 (citing State v. Moeller, 1996 SD 60, ¶ 13, 548 N.W.2d 465, 472) (citing State v. Steele, 510 N.W.2d 661, 667 (S.D.1994)). In the case at hand, the trial court determined that the other bad act evidence was relevant, but decided its prejudicial value outweighed its probative value. In so deciding, the trial court stated, “I find it very prejudicial because there is always that danger that a jury is simply going to receive this evidence ... [and] they are going to assume that this evidence is suggestive of this person having committed this [act] and that he acted this way on a particular occasion.” Therefore, the trial court excluded testimony regarding Heather Byrd’s claims against McEl-downey. We. find this to be an abuse of discretion.'

[¶ 13.] One legitimate purpose of the use of other acts evidence under SDCL 19-12-5 is intent. In her claims against McEldowney, Dawn claimed battery, sexual harassment and intentional infliction of emotional distress. Quite obviously, intent is an element of these causes of actions. See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 743, 118 S.Ct. 2257, 2260, 141 L.Ed.2d 633, 638 (stating that “sexual harassment ... presupposes intentional conduct”). Therefore, in order to prevail, Dawn had to prove intent. As we stated in Veeder v. Kennedy, 1999 SD 23, ¶ 43, 589 N.W.2d 610, 620:

[This cause of action] is an intentional tort and it was necessary for [plaintiff] to prove intent to proceed with his case. SDCL 19-12-5 specifically recognizes “intent” may be proved by “evidence of other ... wrongs, or acts.... ” As the defendant rarely admits the crucial element of intentional wrongful conduct, it must be established by the plaintiff through circumstantial evidence to avoid being nonsuited.

[¶ 14.] In this case, McEldowney either denied the alleged actions or claimed he had committed them innocently. Clearly then, McEldowney’s intent was at issue. Therefore, Dawn should have been able to use extrinsic evidence to prove intent. See State v. Champagne, 422 N.W.2d 840, 843 (S.D.1988) (stating “where specific intent is an element of an offense, proof of similar acts may be admitted to carry that burden even if the defense to the charge is a complete denial”).

[¶ 15.] Further, in allowing other acts evidence to prove intent, there are two important factors that this Court must consider: (1) similar victims and (2) similar crimes. Moeller, 1996 SD 60, ¶ 28, 548 N.W.2d at 475 (additional citations omitted). Dawn and Heather both worked for the Defendant on his property. Although Heather was not formally employed by McEldowney, she performed various chores, such as cooking and cleaning. Both Dawn and Heather’s families depended on McEldowney for their livelihoods. Both women told McEldowney they would tell their husbands if his alleged acts did not stop. Many of the alleged acts happened in homes that were owned by McEldowney, either his farm house, or in the house where he allowed the Novaks to live. Additionally, both of these women worked in close proximity to McEldowney and most of the alleged acts occurred when 'no one else was present. In reviewing the record, it appears that the alleged acts are also similar in nature and occurred just days apart. It is claimed that McEldowney made sexually suggestive comments and committed unwanted touching to both Dawn and Heather.

[¶ 16.] Not only should the other bad act evidence have been admitted to prove McEldowney’s intent, it alternatively could have been admitted to show a common plan. SDCL 19-12-5. “All that is required to show a common plan is that the charged and uncharged events ‘have sufficient points in common.’ ” Wright, 1999 SD 50, ¶ 19, 593 N.W.2d at 800 (additional citations omitted). Here, there are several similarities between the two victims. Both women worked for McEldow-ney on his farm, both women’s husbands were employed by McEldowney, and both women claimed similar acts were committed by McEldowney. Accordingly, Heather’s testimony would have established a clear connection between the acts committed upon herself and upon Dawn; therefore, its probative value substantially outweighed its prejudicial effect.

[¶ 17.] We have previously stated that “[a]nother consideration in the potential admission of 404(b) evidence is the availability of other evidence.” Smith, 1999 SD 83, ¶ 21, 599 N.W.2d at 350 (citing State v. White, 538 N.W.2d 237, 243 (S.D.1995)). Nearly all of the acts alleged by Dawn and Heather took place with no one else present. When Heather’s testimony was excluded from the trial, the case turned into Dawn’s word against McEl-downey’s word. Thus, the probative value of the other bad act evidence was significant. In this case, the other bad act evidence was clearly necessary for Dawn to prove her case. A review of the record shows that the trial court did not take this into consideration when it made its decision to exclude the bad act testimony. We hold that this was an abuse of discretion to exclude this evidence. We reverse and remand on this issue.

[¶ 18.] 2. Whether the trial court abused its discretion when hit excluded testimony regarding an alleged incident that occurred in 1995.

[¶ 19.] The trial court ruled that a certain alleged act committed by McEl-downey was outside the applicable statute of limitations. Specifically, this alleged incident occurred in August of 1995 when McEldowney ran his hand up Dawn’s crotch, which McEldowney denies. Dawn claims that this incident is part of the continuing tort of sexual harassment. We disagree with this assertion.

[1120.] Although we have held that in certain incidences a statute of limitations may be tolled when a tort has been contin-uos or ongoing, the facts of the instant case do not support such a theory. See, e.g., Holland v. City of Geddes, 2000 SD 71, ¶ 5, 610 N.W.2d 816, 818. Dawn has failed to establish any continuity between the 1995 incident and the alleged incidents that occurred in 1997 and 1998. Although while it may be true that Dawn was not formally employed on the farm until 1997, she did occasionally help out with various farm work in between these two dates; she still had contact with McEldowney during this time period. Therefore, the alleged 1995 incident was not part of a continuing tort, but rather, it is better characterized as a separate, independent incident.

[¶ 21.] While this alleged 1995 incident could arguably have been admitted as an other bad act, this was not argued on appeal. We find that the alleged 1995 incident is outside the applicable statute of limitations, and it was not an abuse of discretion to exclude it. See SDCL 15-2-14(3) (providing for a three-year statute of limitations for personal injury); SDCL 20-13-31 (providing for filing of any charge of discrimination within one hundred and eighty days of thq alleged practice); SDCL 15-2-15(1) (providing for a two-year statute of limitations for battery).

[¶ 22.] KONENKAMP, Justice, ENG and DELANEY, Circuit Judges, and AMUNDSON, Retired Justice, 'concur.

[¶ 23.] ENG, Circuit Judge, sitting for SABERS, Justice, disqualified.

[¶ 24.] DELANEY, Circuit Judge, sitting for ZINTER, Justice, disqualified.

[¶ 25.] MEIERHENRY, Justice, not having been a member of the Court, at the time this action was submitted to the Court, did not participate.

      . Dawn claims that back in 1995, before she was receiving compensation for her work, McEldowney ran his hand over her crotch when she was crawling into a crate to pull out some pigs. The trial court ruled that Dawn could not testify to this incident on the basis of the statute of limitations.

      . The house actually belonged to McEldow-ney. As part of the Novak's compensation, they were allowed to live in this house.

      . According to SDCL 19-12-1 (FRE 401):
      "Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

      . SDCL 19-12-3 (FRE 403) provides:
      Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

      . For example, McEldowney admitted during his testimony at trial that he had smelled Dawn’s hair and skin, looked down the front of her shirt, told her dirty jokes, showed her pictures of scantily clad women, and discussed the Clinton/Lewinsky sexual scandal.


author: ZINTER, Justice.

text:
    2002 SD 163
    WEST CENTRAL EDUCATION ASSOCIATION, Petitioner and Appellee, v. WEST CENTRAL SCHOOL DISTRICT 49-4 and Board of Education, Respondents and Appellants.
    No. 22394.
    Supreme Court of South Dakota.
    Argued Nov. 20, 2002.
    Decided Dec. 23, 2002.

      Anne Crowson Plooster, General Counsel, SDEA, Pierre, South Dakota, Attorney for petitioner and appellee.
    Gerald L. Kaufman, Jr., Kaufman Law Office, Huron, South Dakota, Attorney for respondents and appellants.
   ZINTER, Justice.

[¶ 1.] West Central Education Association (Association) filed an unfair labor practice complaint against the West Central School District and the West Central Board of Education (collectively referred to as School Board). It filed the complaint because the School Board refused to engage in collective bargaining with the Association over the school calendar. The Department of Labor (Department) found no unfair labor practice because it concluded that the school calendar was not a subject of mandatory negotiation. On appeal, the circuit court, the Honorable Richard Bogue, reversed the Department. The circuit court concluded that the school calendar was a mandatory subject of negotiation in public employee collective bargaining. We reverse the circuit court and affirm the Department.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] Prior to the 1988-89 school year, the school calendar was negotiated at the bargaining table along with Association proposals regarding salary and other conditions of employment. Although there is some dispute about the matter, in 1988, it appears that the parties agreed to remove the calendar as a negotiable item from the bargaining table. Instead, they agreed to address the calendar through a calendar committee. The calendar committee considered the views of a number of groups including the Association. However, the School Board made the ultimate decision without collective bargaining.

[¶ 3.] By 1994, the School Board formally implemented a policy defining how it would determine the school calendar. Although the 1994 written policy allowed input from the Association through the calendar committee, the policy did not require collective bargaining with the Association. The written policy provided:

1. The superintendent shall submit next year’s calendar to the Board for Board consideration, changes and approval;
2. The Board will consider the recommendations of the Association concerning the starting and ending date for school, vacations and holidays, and student and teacher days;

The Association did hot file a grievance when this policy was adopted in 1994 or when it was amended in 1995.

[¶ 4.] However, in 1997, the Association informed the superintendent of the school that the Association would not participate on the calendar committee, “and [the Association] decided to have the calendar back in negotiations.” Consequently, the Association refused to meet with the calendar committee and the superintendent for purposes of developing a proposed calendar to present to the School Board. At the same time, the School Board rejected the Association’s demand to negotiate the calendar because the School Board took the position that the calendar was not a mandatory subject of negotiation with teachers or their Association.

[¶ 5.] The School Board and Association did, however, engage in collective bargaining that year. The parties ultimately reached impasse on three issues, one of which was the negotiability of the calendar. Following mediation, the parties sought assistance from the Department in resolving the impasse under SDCL 60-10-2. With respect to the school calendar, the Department recommended that the parties engage in collective bargaining. However, the School Board chose not to adopt the Department’s recommendation.

[¶ 6.] Instead, the School Board refused to negotiate the calendar and it refused to impose calendar language in the contract. See SDCL 3-18-8.2. The School Board refused to impose any language into the collective bargaining agreement regarding the calendar because the School Board took the position that its last proposal was that the calendar was not a mandatory subject of negotiation. The School Board believed that there was no reason to impose such contract language on a “non-negotiable item.”

[¶ 7.] As a result of the School Board’s action, the Association filed an unfair labor practice complaint with the Department. The Association alleged that the School Board had committed an unfair labor practice when it declined to negotiate the school calendar. On administrative review, a hearing examiner concluded that the calendar was not a mandatory subject of negotiation, and therefore, the School Board did not commit an unfair labor practice by refusing to negotiate that subject.

[¶ 8.] The Association appealed the hearing examiner’s decision to circuit court. Circuit Court Judge Richard Bo-gue reversed the hearing examiner. Judge Bogue concluded that the calendar was a mandatory subject of negotiation. Judge Bogue remanded the case to the hearing examiner to determine whether, in light of his ruling, the School Board had committed an unfair labor practice when it refused to negotiate the calendar.

[¶ 9.] On remand, the hearing examiner adopted Judge Bogue’s ruling. However, the hearing examiner concluded that the School Board did not commit an unfair labor practice. The hearing examiner concluded that there was no unfair labor practice because she found that prior to Judge Bogue’s decision, neither party knew that the calendar was a mandatory subject of negotiation. The School Board appealed that decision to circuit court. Circuit Court Judge William Srstka heard this appeal after remand. Judge Srstka concluded that the doctrine of the law of the case required that he follow Judge Bogue’s ruling on the negotiability of the calendar. Consequently, Judge Srstka affirmed the hearing examiner. The School Board now appeals to this Court raising one issue:

Whether the circuit court erred in holding that the school calendar is a mandatory subject of collective bargaining.

STANDARD OF REVIEW

[¶ 10.] Our standard of review for administrative appeals is well settled.

The Court reviews agency findings in the same manner required of the circuit court when reviewing a decision from an administrative agency. This Court reviews findings of fact under the clearly erroneous standard, whereas questions of law are reviewed under the de novo standard. The issue on review [here] is a question of law, upon which we apply a de novo standard of review.

O’Toole v. Board of Trustees of the South Dakota Retirement System, 2002 SD 77, ¶ 9, 648 N.W.2d 342, 345 (internal citations omitted).

DECISION

[¶ 11.] SDCL 3-18-2 gives public employees the right to join labor organizations. SDCL 3-18-2 also gives public employees the right to designate representatives for the purpose of meeting and negotiating conditions of employment. Those conditions of employment include “rates of pay, wages, hours of employment, or other conditions of employment.” SDCL 3-18-3.

[¶ 12.] However, these statutes do not give public employees the right to engage in negotiations over all issues relating to rates of pay, wages, hours and other conditions of employment. “[T]he state is different from a private employer inasmuch as it has the unique responsibility to make and implement public policy. Accordingly, the scope of negotiations in the public sector is more limited than in the private sector.” Rapid City Education Association v. Rapid City Area School District No. 51-4, 376 N.W.2d 562, 564 (S.D.1985) (citing In re Local 195, IFPTE, AFL-CIO v. State, 88 N.J. 393, 443 A.2d 187, 191 (N.J.1982)).

[¶ 13.] Therefore, to determine whether any issue is mandatorily negotiable in public employment, one must not only determine whether the subject falls within SDCL 3-18-2 and SDCL 3-18-3, but also whether the issue is one properly decided by the political process or by collective negotiations. Rapid City, 376 N.W.2d at 562. In making that determination, the interests of the parties must be balanced to decide whether negotiations will significantly impair the state’s ability to make policy decisions.

The role of the courts in a scope of negotiations case is to determine, in light of the competing interests of the State and its employees, whether an issue is appropriately decided by the political process or by collective negotiations. In making this sensitive determination, the mere invocation of abstract categories like “terms and conditions of employment” and “managerial prerogatives” is not helpful. To determine whether a subject is negotiable, the Court must balance the competing interests by considering the extent to which collective negotiations will impair the determination of governmental policy.

Rapid City, 376 N.W.2d at 564 (quoting IFPTE, 443 A.2d at 191).

[¶ 14.] To assist in making that sensitive determination, a three-part test is applied.

1. A subject is negotiable only if it intimately and directly affects the work and welfare of public employees.
2. An item is not negotiable if it has been preempted by statute or regulation.
3. A topic that affects the work and welfare of public employees is negotiable only if it is a matter on which negotiated agreement would not significantly interfere with the exercise of inherent management prerogatives pertaining to the determination of governmental policy.

Id. (citing IFPTE, 443 A.2d at 190-191).

[¶ 15.] School Board concedes that the school calendar is a subject that “intimately and directly affects the work and welfare of public employees” under part one of the test. Because we conclude that requiring a school board to negotiate its school calendar would significantly interfere with the exercise of inherent management prerogatives under part three, we proceed to examine that test, and we need not consider whether the subject has been preempted by statute or regulation under part two.

[¶ 16.] In analyzing the question of management prerogative, it must first be remembered that SDConst art VIII, § 1 imposes a duty upon the Legislature to “establish and maintain” the public school system “and to adopt all suitable means to secure to the people the advantages and opportunities of education.” Id. Therefore, there can be no question that the establishment and operation of schools implicates an important government policy. Moreover, that government policy is carried out in each school by local school boards because the Legislature has delegated to them the duty to establish the government’s school policy in each school district. That delegation not only includes the government’s general duty to operate and manage the schools, but also, much of the responsibility to develop the school’s policy on the calendar. See, SDCL 13-26-1; 13-26-2. It is also significant that through elections, these school boards are the peoples’ voice in determining the government’s school policy. Considering these school board responsibilities, the question then is whether collectively bargaining over the school calendar significantly interferes with this School Board’s management prerogatives pertaining to the determination of the government’s school policy.

[¶ 17.] We have not had occasion to decide this issue. However, most other jurisdictions that have addressed the issue conclude that the interference with management prerogative is sufficient to make the school calendar a non-mandatory subject of negotiation. For example, the New Jersey Supreme Court, the Court upon which the three-part Rapid City test is based, holds that the school calendar is not a mandatory subject of negotiation. Piscataway Township Education Association v. Piscataway Township Board of Education, 307 N.J.Super. 263, 704 A.2d 981, 982 (1998); IFPTE, 443 A.2d at 196; In re Burlington County College Faculty Association v. Board of Trustees, 64 N.J. 10, 311 A.2d 733, 736 (N.J.1973). The New Jersey Court stated:

We firmly believe that when school begins, when it ends, when the buildings are opened, when children shall be admitted and when holidays occur are matters of inherent managerial policy ... and under no circumstances should be made items of collective bargaining.

Id. This is because “the right to determine what work will be done, and by whom and when it is to be done, is at the very core of successful management of the employer’s business.” West Point Elementary School Teachers Ass’n v. Federal Labor Relations Authority, 855 F.2d 936, 942 (2d Cir.1988) (further citations omitted). This holding has also been supported because:

[T]he commencement and termination of the school year and the scheduling and length of intermediate vacation during the school year, at least insofar as students and teachers are congruently involved, [are] matters of ‘educational policies’ bearing too substantially upon too many and important non-teacher interests to be settled by collective bargaining....

Burlington, 311 A.2d at 736 (quoting City of Biddeford v. Biddeford Teachers Association, 304 A.2d 387, 421 (Me.1973)). Indeed, as the parties here have noted, the school calendar not only effects teachers, but also the other school employees, students, parents, taxpayers, other school districts and cooperatives providing joint programs and activities, and in some cases, the entire community. Therefore, the school calendar is a matter of general public interest that requires basic judgments about how the government should best educate the state’s children. Yet, as Association conceded at oral argument, were we to adopt its position, none of these vitally interested parties have any right to participate in the collective bargaining process that the Association wants to utilize to determine the school calendar.

[¶ 18.] Because of all of these concerns, most courts hold that the school calendar is an inherently managerial subject that is not a mandatory topic of negotiation. The Minnesota Supreme Court held that the adoption of a school calendar is comparable to a manager setting up a work schedule.

When the school year begins and ends is comparable to when a work day begins and ends. The decision is made by management and controlled by the objectives and goals of the particular institution. Although employees are entitled to negotiate thé number of hours worked, it - does not follow that employees can negotiate when an employer deems it necessary to report to work. To allow employees to negotiate such a policy would involve negotiation of the actual objectives and goals of an employer.

University Education Association v. Regents of the University of Minnesota, 353 N.W.2d 534, 542 (Minn.1984) (emphasis in original). See also, Kenai Peninsula Borough School Dist. v. Kenai Education Association, 572 P.2d 416 (Alaska1977) (held, school calendar non-negotiable); West Hartford Ed. Ass’n v. Day son DeCourcy, 162 Conn. 566, 295 A.2d 526 (1972) (held, school calendar was not mandatory subject of negotiation); Indiana Educ. Employment Relations Bd. v. Highland, 546 N.E.2d 101 (Ind.Ct.App.1989) (held, calendar items were part of school board’s exclusive managerial power, therefore, calendar was not subject of mandatory collective bargaining); Montgomery County Educ. Ass’n, Inc. v. Board of Educ., 311 Md. 303, 534 A.2d 980 (1987) (held, school calendar was not subject of mandatory collective bargaining).

[¶ 19.] Association, however, argues that negotiations in this area would not create a substantial interference with a school board’s inherent management prerogatives because a school board can by statute impose its “last best offer” after negotiations and therefore, the school board has the final say in these matters. However, if this argument were adopted, it would mean that all issues between a school board and its teachers, including those expressly exempted from any collective bargaining by Rapid City, 376 N.W.2d 562, would nevertheless require negotiation simply because the school board has the final say after negotiations. That result is contrary to Rapid City and Webster Education Association v. Webster School District, 2001 SD 94, 631 N.W.2d 202. Although, we acknowledge that SDCL ch 3-18 gives teachers the right to engage in collective bargaining over certain conditions of employment, the Rapid City and Webster three-part test clearly limits the subjects that are mandatorily negotiable under SDCL ch 3-18. Rapid City, 376 N.W.2d at 565; Webster, 2001 SD 94, ¶ 11, 631 N.W.2d at 206. Those cases determine whether a subject is negotiable, and the School Board’s right to impose a last offer under SDCL 3-18-8.2 does not convert a non-negotiable subject into a mandatory subject of negotiation.

[¶ 20.] Consequently, we agree with the courts previously cited and hold that the determination of the school calendar through collective bargaining substantially interferes with an inherent management prerogative that pertains to the determination of the government’s educational policy. Our conclusion is supported by the fact that, as we previously noted, the school calendar not only affects teachers, but also other school employees, students, parents, taxpayers, other school districts and cooperatives providing joint activities and programs, and in some instances, the entire community. This holding is also supported by the fact that the Legislature has explicitly required school boards to set policy in this area by determining most aspects of the calendar, including: the number of days in a school term, the length of the school day, the number of school days in a week, the date school will begin, whether the school will run year round, when teacher conferences are held, the appropriate time devoted to staff development, and whether the school will hold a summer term. These determinations all go to the “objectives and goals of the particular institution.” University Education Association, 353 N.W.2d at 542.

[¶ 21.] To rule differently would ignore the Legislature’s delegation of this policy making decision in SDCL ch 13-26. It would also create constant negotiation on issues of public interest that the Legislature has left to the discretion of the elected officials who are responsible for policy establishment in the public schools. As both the Maryland and Alaska Supreme Courts noted:

If teachers’ unions are permitted to bargain on matters of educational policy, it is conceivable that through successive contracts the autonomy of the school boards could be severely eroded, and the effective control of educational policy shifted from the school boards to the teachers’ union. Such a result could threaten the ability of elective government officials and appointive officers subject to their authority, in this case the school boards and administrators, to perform their functions in the broad public interest.

Kenai, 572 P.2d at 419; Montgomery County Education Association, 534 A.2d at 987. Moreover, it must be remembered that the broad public interest is not always the same as the teacher’s interests. As the Alaska Supreme Court also noted: “what is in the best interest of the students and the community is not always in the best interests of teachers.” Kenai, 572 P.2d at 419 n. 7 (citing Rund, Symposium on Teacher Bargaining: Commentary, 50 IndLJ, 344, 350 (1975)). Therefore, as the New Jersey Supreme Court observed:

[Such m]atters of public policy are properly decided, not by negotiation and arbitration, but by the political process. This involves the panoply of democratic institutions and practices, including public debate, lobbying, voting, legislation and administration .... the very foundation of representative democracy would be endangered if decisions on significant matters of governmental policy were left to the process of collective negotiations ... Our democratic system demands that governmental bodies retain their accountability to the citizenry.

IFPTE, 443 A.2d at 191 (further citations omitted). This is the overriding consideration of Rapid City, 376 N.W.2d at 564. It requires that the government’s educational policy, as it relates to the time a school should best provide its education service, be determined in a democratic political process that is open to all interested parties, rather than in a collective bargaining process with only one group of employees.

[¶ 22.] We reverse.

[¶ 23.] GILBERTSON, Chief Justice, SABERS and KONENKAMP, Justices, and AMUNDSON, Retired Justice, concur.

[¶ 24.] MEIERHENRY, Justice, not having been a member of the Court, at the time this action was submitted to the Court, did not participate.

      . The hearing examiner found that West Central School District’s school calendar indicates when the school year begins and ends, vacation dates and when parent-teacher conferences are held. Essentially, the school calendar 'spells out what the school year looks like.’

      . SDCL 60-10-2 provides:

      If its efforts as conciliator prove unsuccessful, the department of labor shall, if requested by either party, impartially investigate the matters in difference between the parties. The request to the department shall be mailed within twenty days after the conclusion of the conciliation procedure provided for in § 60-10-1. The department shall give each party ample opportunity for presentation of the facts and shall make a report of the issues involved and a recommendation for settlement of the controversy. . The department shall furnish a copy of its recommendation to each of the parties and to any local newspaper for publication for the information of the public.

      . SDCL 3-18-8.2 provides:
      An}' school district issuing contracts to teachers for the ensuing year, but prior to reaching agreement with the representatives of the recognized employee unit, shall issue the contracts under the same terms and conditions as for the current year. If no agreement is reached in negotiations and the intervention of the labor department under § 3-18-8.1 fails to bring about an agreement, the board shall implement, as a minimum, the provisions of its last offer, including tentative agreements. If the labor department is not requested to intervene under the provisions of § 3 — 18— 8.1, the board shall implement the provisions of its last offer, including tentative agreements, eleven days after an impasse is declared.

      . The hearing examiner’s reasoning on remand has not been presented as an issue in this appeal. We express no opinion on that reasoning.

      . SDCL 3-18-2 provides:
      Public employees shall have the right to form and join labor or employee organizations, and shall have the right not to form and join such organizations. Public employees shall have the right to designate representatives for the purpose of meeting and negotiating with the governmental agency or representatives designated by it with respect to grievance procedures and conditions of employment and after initial recognition by the employer, it shall be continuous until questioned by the governmental agency, labor or employee organization, or employees, pursuant to § 3-18-5. It is a Class 2 misdemeanor to discharge or otherwise discriminate against an employee for the exercise of such rights, and the governmental agency or its designated representatives shall be required to meet and negotiate with the representatives of the employees at reasonable times in connection with such grievance procedures and conditions of employment. The negotiations by the governmental agency or its designated representatives and the employee organization or its designated representatives shall be conducted in good faith. Such obligation does not compel either party to agree to a proposal or require the making of a concession but shall require a statement of rationale for any position taken by either party in negotiations. It shall be unlawful for any person or group of persons, either directly or indirectly to intimidate or coerce any public employee to join, or refrain from joining, a labor or employee organization.

      . SDCL 3-18-3 provides:
      Representatives designated or selected for the purpose of formal representation by the majority of the employees in a unit appropriate for such purposes shall be the exclusive representatives of all employees in such unit for the purpose of representation in respect to rates of pay, wages, hours of employment, or other conditions of employment; provided that any individual employee, or a group of employees, shall have the right at any time to present grievances to their employer and to have such grievances adjusted without the intervention of the formal representative as long as the adjustment is not inconsistent with the terms of any settlement with the formal representative then in effect, and provided that the formal representative has been given opportunity to be present at such adjustment.

      . SDCL 13-8-1 provides:
      The school board is an elected body created according to the laws of the state to serve as the governing board of a school district for the purpose of organizing, maintaining, and locating schools and for providing educational opportunities and services for all citizens residing within the school district.
      SDCL 13-8-39 provides:
      As provided and limited by law, the school board has general charge, direction and management of the schools of the district and control and care of all property belonging to it. The school board may levy taxes, borrow money, employ any necessary personnel, lease real and personal property, carry liability and other insurance, or in lieu of insurance, make other arrangements, including entering into agreements with others, which agreements may create separate legal or administrative entities pursuant to chapter 1-24, to protect and assist the school board in meeting obligations arising from such acts or omissions for which the school board may be legally liable, purchase all necessary books and equipment, purchase real property and erect necessary buildings for the operation of such schools.

      . SDCL 13-26-1 provides:
      The school fiscal year shall begin July first and end June thirtieth. Each local school board shall set the number of days in a school term, the length of a school day, and the number of school days in a school week. The local school board or governing body shall establish the number of hours in the school term for kindergarten programs. The Board of Education shall promulgate rules pursuant to chapter 1-26 setting the minimum number of hours in the school term for grades one through three. The number of hours in the school term for grades four through twelve may not be less than nine hundred sixty-two and one-half hours, exclusive of intermissions. An intermission is the time when pupils are at recess or lunch.
      SDCL 13-26-2 provides:

        The school board or governing body shall operate grades one through twelve in its schools for at least a nine-month regular term in any one school year. The regular school term may be conducted on a year-round basis and shall begin on a date established by the school board. The Board of Education shall promulgate rules pursuant to chapter 1-26 governing the operation and scheduling of year-round schools. Any school board or governing body may release graduating high school seniors from school before the end of the regular term if the release is for no more than three school days. Make up time for school closing because of weather, disease, or emergency need not exceed ten school days. Graduating seniors are excused from make up time if the make up time occurs after the students have graduated or after graduation exercises have been held. If classes have been convened and then are dismissed, or if classes convene at a time later in the day than normal, because of inclement weather, that day constitutes a school day in session equal to the number of hours planned for that day as established in the local school district calendar for the year.
      School boards are encouraged to provide time within the regular school term for curriculum and staff development, which shall be in addition to the time required in this section. Each school board shall determine the appropriate amount of time for this activity and how best to use the time based on local needs for program development, increased parent participation, student contact, teachers' preparation, or other needs of the schools in the district. School shall be in session only when classes are held and as provided in §§ 13-26-4 and 13-26-4.1. A school board may operate a special term during the summer months.

      . Association has placed great weight on a March 3, 1980 Memorandum Opinion of the Department of Labor, and South Dakota Attorney General’s Opinion 72-10. Both opinions conclude that the school calendar is a subject of mandatory negotiation. However, neither opinion addressed whether collective bargaining over the school calendar significantly interferefd] with the exercise of inherent management prerogatives as now required by Rapid City, 376 N.W.2d at 564. Therefore those opinions are inapposite.

      . It is of some interest that the Association even complains in its unfair labor practice petition that the School Board sought input on the calendar from volunteers and teachers who were not Association members.

      . See note 3, supra.

      . In Rapid. City we held that the sensitive subject of classifying students according to their abilities [for purposes of teacher pay] ... is a matter entrusted solely to the discretion of a school board acting through its appointed administrative officials. 376 N.W.2d at 565. In Webster, we held that the decision to reduce staff is a managerial decision for the school board, and thus, is not mandatorily negotiable. Webster, 2001 SD 94, ¶ 11, 631 N.W.2d at 206.

      . This date may be subject to a voter referral procedure set forth in SDCL 13-26-9 to 17.

      . See SDCL 13-26-1 and 2 at note 8, supra.