Legislative analyst Eric Milstead briefed lawmakers on how the repeal of the Students Come First law will work. "As of today, the Students Come First legislation is still in effect," Milstead told the Legislative Council. "The Board of Canvassers will meet on Nov. 21 to certify the results of the election. Once they certify that, then the governor forthwith will issue a proclamation declaring the results of the election. Now, at that point, the Students Come First legislation is repealed."

At that point he explained, "Each code provision that was amended two sessions ago will simply be replaced now by the version of those code sections that existed the day before Students Come First was enacted." He distributed a list of 40 code sections that were amended by the laws, and now will revert to their former wording, or, for those sections that were created by the laws, will be repealed.

Lawmakers immediately asked: If the laws are in effect on Nov. 15th, the date that $38.8 million in performance-pay bonus money will be distributed to school districts, but not on Nov. 21st, can districts pay out those bonuses to the teachers who qualified for them based on measures their schools met last year? The answer wasn't clear, though Milstead noted that the law gives districts until December to pay the bonuses.

"The legal issue that you've posed is with regard to pay for performance, and I will tell you that our office is working with the superintendent," said Deputy Attorney General Brian Kane. "We anticipate an answer to be forthcoming. We aren't prepared at this point to go on the record with our answer, but we are ... working on it. That will be coming out shortly."

One issue, Milstead noted, may be that teachers who earned the bonuses under the previous law that prompts the money to be sent to school districts may have a property right to those bonuses, even after the underlying law is repealed.

Sen. Jim Hammond, R-Coeur d'Alene, said, "I have a concern about the distribution moving forward as it is, because at least in Kootenai County, I'm running across instance after instance where the pay for performance is doing exactly the opposite of what it's intended to do, and that is, it's providing pay to undeserving staff, and limiting that additional pay to some of the best staff. And I've got precise examples of this. The problem is you can't say Miss Jones over here was the crappy teacher that is getting the raise that shouldn't. You can't publicly do that. But I know that that's the kind of thing that is occurring. So I was hoping to hear an answer that maybe the Legislature would actually kind of pull that back and deal with that in the new session."

Rep. John Rusche, D-Lewiston, strenuously objected to that idea. He said, "That was my  intent, to say where are we and what do we have to do to get the money in the hands of those who earned it."

Senate Majority Leader Bart Davis, R-Idaho Falls, asked whether the referenda made the laws "void ab initio," or void from the beginning, as if they'd never been passed. Kane said no. "The law was in effect for a certain set amount of time, and then it's been subsequently repealed." He said, "The best way to think of it is to think of the interim legislation as an overlay that we are now peeling off and taking back to 2010."