Teacher termination case has cost Wisconsin district nearly $600K in legal fees

September 25, 2013

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Steve Gunn Steve Gunn

Steve, Editor-in-chief of EAGnews, joined in 2009. Previously, he was a newspaper journalist.
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MIDDLETON, Wis. – The ability of administrators to manage personnel in Wisconsin public schools has improved dramatically since the passage of Act 10, Gov. Scott Walker’s landmark legislation that limits the collective bargaining power of teachers unions.

Money and GavelBut the Middleton Cross Plains district is stuck in a pre-Act 10 nightmare that serves as a nasty reminder of how things used to be.

The school district fired teacher Andrew Harris in May 2010 for viewing pornographic emails at work on a school computer, and that should have been the end of the story. But the law as it stood three years ago made things a lot more complicated.

The teachers union filed a grievance over the firing, which triggered an exhaustive and expensive legal process. Since then an arbitrator and two courts have ruled in favor of Harris and ordered his reinstatement with back pay and benefits.

But the school board still refuses to back down. It’s now attempting to appeal the decision to the Wisconsin Supreme Court, which is expected to announce within a few months whether it will hear the case.

District officials have demonstrated a lot of character in sticking by their decision to terminate Harris and their refusal to cut a “pass the trash” deal offered by his lawyer, which would have provided Harris with a cash settlement and a letter of recommendation from the district.

Unfortunately the cost of the case, in terms of legal fees, has grown to a whopping $598,000, and could cost another $75,000 if the Supreme Court becomes involved.

That type of spending wouldn’t be necessary for a district to fire a teacher today. Act 10 removed binding arbitration as a tool for teachers unions to fight school board decisions, leaving schools much more freedom to make staff changes without the fear of backbreaking legal costs.

“(The union) would not have been able to grieve this the same way they did four years ago,” Perry Hibner, the district’s community relations specialist, told EAGnews. “The binding arbitration process that all school districts and unions had to abide by was dismantled after Act 10. Now, individual school boards get to make those decisions regardless of whether they have a handbook or a collective bargaining agreement.

“So, of course, it would be far less expensive now than it was a few years ago to fire an employee for viewing pornography.”

Courts rule against common sense

Harris, who was a science teacher at Glacier Creek Middle School, was suspended without pay in January 2010 and fired the following May after he was caught viewing pornographic materials at work, according to Channel3000.com.

The 23 emails in question reportedly came from his sister, and there was no evidence that he made any attempt to discourage her from sending them, the news report said.

The discovery led to a district-wide investigation that turned up other inappropriate electronic materials viewed by several staff members. Five other teachers received unpaid suspensions, one substitute teacher was fired and a veteran administrator resigned following the investigation, the news report said.

The teachers union considered Harris’ punishment excessive and filed a grievance. A state arbitrator ruled in February 2012 in the union’s favor and ordered Harris reinstated to his job with back pay and benefits.

District officials were reportedly stunned by the decision and the school board quickly voted to appeal.

“This ruling completely minimizes conduct that cannot be tolerated,” Superintendent Don Johnson and the school board said in a press release at the time. “It sends the message that it is acceptable for employees to view pornography at school, during the student school day, on school equipment. It also flies in the face of the need to provide a professional work environment and a safe place to educate our children.”

State arbitrators, working through the Wisconsin Employment Relations Commission, had a reputation of being very labor friendly, regardless of the cost to schools.

“We were not happy with (the decision),” Hibner said. “Like the superintendent said, we cannot remember a time through binding arbitration when the district ever won. They always seemed to rule in favor of the teacher.”

A Dane County Circuit Court judge upheld the arbitrator’s ruling in August 2012, and a court of appeals followed suit last month. The school board quickly voted take the appeal to the state Supreme Court and hope the justices will agree to hear the case.

“The courts were not ruling on whether (the arbitrator’s ruling) was a good decision or not,” Hibner explained. “They were just saying the arbitrator followed the right steps.”

Legal costs ‘justifiable and necessary’

District officials admit they could have settled out of court and been done with Harris some time ago for a lot less money – reportedly in the $17,000 to $21,000 range. But that would have provided the teacher with a clean slate and the ability to easily find a job in another district.

Middleton Cross Plains officials couldn’t morally justify such a deal.

“When the union leadership and their lawyer came to us offering a deal to have Mr. Harris leave quietly, it was contingent on us giving him a good letter of reference and never referring to the reason why he was dismissed,” school board President Ellen Lindgren wrote in a statement to the community that was released last week.

“Indeed, they wanted a secret agreement binding the district to keep this quiet. The board saw what had happened in other districts when this occurred in the past, and could not ethically or in good conscience do this.”

Lindgren indicated that the board is willing to spend as much as necessary in an effort to uphold the firing.

“We believe spending the funds to keep someone who views pornography in the classroom out of the teaching profession is justifiable and necessary,” Lindgren wrote. “Consenting to the appeals court ruling (would not be) without cost. We would be forced to pay Mr. Harris back pay (about $360,000).

“And Harris would have to be returned as a science teacher in one of our middle schools, a fact that is not lost on parents. Would you want Harris in the classroom teaching your child or grandchild? As our superintendent Don Johnson stated, ‘The safety of our students is priceless.’”

While the board should be commended for standing its ground and refusing to let Harris off the hook, the fact remains that his case (or any other teacher termination case) would be simpler and far less expensive for the district under the terms of Act 10, which took effect in July 2011, more than a year after Harris was originally fired.

So the bad old days of union domination continue to haunt at least one Wisconsin school district.

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