Arbitrator: Middleton-Cross Plains must reinstate teacher who viewed porn at work

2012-03-01T07:30:00Z 2012-03-13T07:39:08Z Arbitrator: Middleton-Cross Plains must reinstate teacher who viewed porn at workMATTHEW DeFOUR | Wisconsin State Journal | mdefour@madison.com | 608-252-6144 madison.com

The Middleton-Cross Plains School District shouldn't have fired a teacher who viewed pornographic images at work and must reinstate him with back pay and benefits — estimated at about $200,000 — an arbitrator has ruled.

Superintendent Don Johnson and the School Board said in a joint statement Wednesday they were disappointed in the decision by a private arbitrator. They plan to discuss whether to appeal the decision at a meeting scheduled for Monday at 6:30 p.m.

"This ruling completely minimizes conduct that cannot be tolerated," the statement said. "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."

The teacher, Andrew Harris, said in an interview he was grateful for the ruling.

"I'm hopeful I can resume my career in the fall," he said.

The case was used to support enactment of a new state law last year requiring the state Department of Public Instruction to revoke the licenses of teachers who view porn at school. That law was not in effect when Harris was disciplined.

Instead, the arbitrator, Karen Mawhinney, considered whether Harris engaged in "immoral conduct," the revocation standard that applied at the time. She said Harris' conduct was not immoral because no children were endangered. Harris' teaching license has not been revoked and it remains under review by the state Department of Public Instruction, spokesman Patrick Gasper said.

Harris, a science teacher at Glacier Creek Middle School in Cross Plains, was placed on unpaid leave in January 2010 and dismissed by the School Board in May 2010.

Mawhinney ruled Harris should have received a 15-day suspension. That would have been more in line with discipline meted out to other employees who were found to have viewed inappropriate material, including pornographic images, on work computers after the district conducted an investigation.

Five other teachers received unpaid suspensions, one substitute teacher was dismissed and a veteran administrator resigned after a district investigation. The arbitrator ruled two of those employees who have since retired should have their unpaid suspensions reduced to written reprimands.

Willie Haus, an attorney representing the Middleton Education Association, said the union's position was not that Harris was blameless, but that the punishment was excessive.

"We all know what happened here and it's time to move forward," Haus said.

Middleton has spent about $343,000 in legal fees on the case and is expected to spend another $25,000 for the arbitrator, spokesman Perry Hibner said. The district estimates back pay and benefits for Harris through the end of this year would total more than $195,000. Back pay and benefits for the two teachers suspended a total of 22 days would cost about $9,200, the district said.

The district investigation was spurred by an October 2009 incident in which a teacher complained about Harris showing her and other teachers an email from his sister with an image of a nude woman.

A subsequent district investigation found 23 emails Harris received from his sister that the district said violated its acceptable use policy because they contained nudity, jokes or other material inappropriate for work.

The arbitrator noted Harris replied to some of the emails, but didn't forward them to others in the district. Even though the district's policy wasn't clear on how to handle receiving inappropriate emails, the arbitrator agreed with the district's position that Harris should have told his sister to stop sending them to his work address.

Paul Secunda, a Marquette University law professor and expert on state labor and education law, said the case illustrates the types of nuances present in such cases.

"I'm not promoting or condoning viewing pornography in public schools," Secunda said. "All I'm suggesting is the punishment should fit what the individual has done and be consistent with what the school district has done in the past."

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