This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-98-1006

Charles Adkisson,

Appellant,

vs.

Independent School District No. 13,

Respondent.

Filed November 10, 1998

Affirmed

Kalitowski, Judge

Anoka County District Court

File No. C698244

Bruce P. Grostephan, 700 Title Insurance Building, 400 Second Avenue South, Minneapolis, MN 55401 (for appellant)

Michael J. Flynn, Jennifer K. Anderson, Knutson, Flynn, Deans & Olsen, P.A., 1900 Minnesota World Trade Center, 30 East Seventh Street, St. Paul, MN 55101 (for respondent)

Considered and decided by Willis, Presiding Judge, Kalitowski, Judge, and Amundson, Judge.

U N P U B L I S H E D O P I N I O N

KALITOWSKI, Judge

Appellant Charles Adkisson challenges the dismissal of his complaint by the district court, contending the court erred in holding: (1) Adkisson's only remedy for challenging school board action is by writ of certiorari; (2) Adkisson failed to state a claim upon which relief could be granted pursuant to the Arbitration Act and the Public Employment Labor Relations Act; and (3) Adkisson failed to state a claim upon which relief could be granted pursuant to 42 U.S.C. § 1983. We affirm.

D E C I S I O N

I.

On appeal from a dismissal of an action for lack of subject matter jurisdiction, the court conducts an independent review of the legal issues presented to the trial court. Neighborhood Sch. Coalition v. Independent Sch. Dist. No. 279, 484 N.W.2d 440, 441 (Minn. App. 1992), review denied (Minn. June 30, 1992). An appellate court need not give deference to a district court's decision on a legal issue. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

This court's longstanding rule and repeated holding has been that the proper and only method of appealing school board decisions on teacher related matters is by writ of certiorari.

Dokmo v. Independent Sch. Dist. No. 11, 459 N.W.2d 671, 673-74 (Minn. 1990) (explaining that the constitutional principle of separation of powers requires that the judiciary refrain from a de novo review of administrative decisions). School board decisions include hiring, dismissing, and suspending due to mental or physical illness. See Minn. Stat. § 125.12, subds. 2, 7 (1996). The decision of an administrative body can be reviewed by writ of certiorari within 60 days of notice of the adverse determination. Dietz v. Dodge County, 487 N.W.2d 237, 239-40 (Minn. 1992).

Adkisson argues that a writ of certiorari is not the correct avenue for appeal here because the school board's resolution that he submit to a psychiatric exam was a failure to follow the terms of the arbitration award. We disagree. In his complaint, Adkisson specifically requests: (1) scrutiny of the school board's resolution that he submit to the psychiatric evaluation; (2) scrutiny of his subsequent suspension for failure to submit to the evaluation; and (3) reinstatement to the classroom. Adkisson's request for reinstatement highlights the true nature of his claim. See id. at 240 (reasoning that a request for reinstatement involves scrutiny of the manner in which the county has discharged its administrative function). Further, when a school board exercises its discretion to order a psychiatric exam under section 125.12, subdivision 7, the proper procedure to appeal the resolution is by writ of certiorari. Clark v. Independent Sch. Dist. No. 834, 553 N.W.2d 443, 445 (Minn. App. 1996). We conclude the district court properly determined it lacked subject matter jurisdiction to review these decisions by the school board.

II.

In cases that are dismissed for failure to state a claim on which relief can be granted, the only question before the reviewing court is whether the complaint sets forth a legally sufficient claim for relief. Elzie v. Commissioner of Pub. Safety, 298 N.W.2d 29, 32 (Minn. 1980) (quoting Royal Realty Co. v. Levin, 244 Minn. 288, 290, 69 N.W.2d 667, 670 (1955)).

The Public Employment Labor Relations Act (PELRA), Minn. Stat. § 179A.13 (1996), prohibits "unfair labor practices." An employee aggrieved by an unfair labor practice, as defined in section 179A.13, may bring an action for injunctive relief and for damages in district court. Minn. Stat. § 179A.13, subd. 1. Adkisson argues that, through its refusal to return him to his classroom duties, the school district failed to comply with a valid decision of the arbitrator. See Minn. Stat. § 179A.13, subd. 2(9) ("Public employers, their agents and representatives are prohibited from refusing to comply with a valid decision of a binding arbitration panel or arbitrator."). The arbitrator ordered that Adkisson be suspended for two days and that he undergo counseling under the supervision of the school board. Adkisson also argues that through the suspension and order for the psychiatric examination, the school district refused to meet and negotiate in good faith with the exclusive representative of its employees in an appropriate unit. See Minn. Stat. § 179A.13, subd. 2(5) ("Public employers, their agents and representatives are prohibited from refusing to meet and negotiate in good faith with the exclusive representative of its employees in an appropriate unit."). We disagree.

The term "demotion" has been defined in chapter 125 as "to reduce in rank or to transfer to a lower branch of the service or to a position carrying a lower salary or compensation." Minn. Stat. § 125.17, subd. 1(c) (1996). Transfers involving a teacher's assignment are generally within the discretion of the school superintendent. Henderson v. City of St. Paul, 236 Minn. 353, 359, 53 N.W.2d 21, 25 (Minn. 1952) (stating that a change in work assignment may not be considered a demotion if no reduction in salary is involved). Neither side disputes that Adkisson's rank and salary remained unchanged. Thus, we conclude there was no "demotion" and the school district did not commit an unfair labor practice by failing to comply with the arbitrator's decision pursuant to Minn. Stat. § 179A.13, subd. 2(9).

Further, where an employee does not demand that the school district meet and negotiate terms and conditions of employment and the school district does not refuse to do so, there may be no unfair labor practice. Ogilvie v. Independent Sch. Dist. No. 341, 329 N.W.2d 555, 558-59 (Minn. 1983). Adkisson never sought to bring the employer to the bargaining table regarding the change in his work assignment from classroom duty to curriculum duty. If Adkisson objected to the terms and conditions of his employment, he could have grieved the decision of the superintendent through the collective bargaining agreement. See Edina Educ. Ass'n v. Board of Educ. of Indep. Sch. Dist. No. 273, 562 N.W.2d 306, 310 (Minn. App. 1997) (generally, an employee must exhaust all administrative remedies provided under a collective bargaining agreement before bringing an action derived from that contract in district court). Thus, we conclude the school district did not commit an unfair labor practice by refusing to meet and negotiate in good faith pursuant to Minn. Stat. § 179A.13, subd. 2(5).

Finally, Adkisson argues, citing Minn. Stat. § 572.18 (1996), that his treatment by the school district constituted a failure to follow the terms of the arbitration award. We disagree. The Arbitration Act does not provide Adkisson with a remedy because: (1) the statute allows only for a district court's confirmation of an arbitration award; (2) the arbitration decision ordered Adkisson's counseling to be under the supervision of the school board; and (3) the school board decision to order a psychiatric exam can only be challenged through a writ of certiorari. We therefore conclude the district court properly determined that Adkisson's complaint does not set forth a legally sufficient claim for relief.

III.

42 U.S.C. § 1983 establishes no rights, but provides a remedy for the deprivation of rights found elsewhere. Maras v. City of Brainerd, 502 N.W.2d 69, 75 (Minn. App. 1983). A constitutional claim can be the basis for such an action. Id. To state a prima facie case under section 1983, Adkisson must show: (1) that he was deprived of a federal right; and (2) that his deprivation was under color of state law. Id. Adkisson argues that he may bring a claim under section 1983 because the school board violated his right to associate and to petition for grievances. We disagree. The district court properly determined that assuming all the allegations in Adkisson's complaint to be true, Adkisson failed to set forth any facts establishing a violation of any constitutional right.

Affirmed.