Printable Version

Story originally printed in the La Crosse Tribune or online at www.lacrossetribune.com

Published - Thursday, July 24, 2008

State appeals court backs firing of teacher who viewed porn

MADISON (AP) — In a case closely watched by public employees unions, a Wisconsin appeals court on Wednesday upheld the firing of a teacher who briefly looked at pornography on his work computer.

Cedarburg High School science teacher Robert Zellner was fired after the district learned he viewed adult images in 2005 for slightly more than one minute on a Sunday. He and his union have argued his dismissal was too harsh for the conduct.

Arbitrator Edmond Bielarczyk Jr. agreed in 2006, ordering the district to reinstate him to the job he held for 11 years, reduce his discipline to a reprimand and award him back pay. The arbitrator said one immoral act was insufficient to fire Zellner and that he was being treated more harshly than other employees who accessed inappropriate sites.

The school district refused, appealing the decision in circuit court. A judge overturned the award last year, saying the arbitrator failed to consider Wisconsin’s public policy against immoral conduct in schools.

The District 2 Court of Appeals upheld that decision on Wednesday. The arbitrator ignored a law that allows the state to revoke teaching licenses for “behavior that is contrary to commonly accepted moral or ethical standards” and that endangers the welfare of students, Judge Harry Snyder wrote for a unanimous three-judge panel.

“We agree that protection of children and the promotion of a safe educational environment is a clear and compelling public policy,” he wrote. “For purposes of reviewing an arbitration award that reinstates a teacher who has accessed pornography while on school property, the stated public policy must be considered.”

Zellner’s previously unblemished work history and the fact that he accessed the images on a weekend when no students were present are not enough to outweigh that policy, Snyder wrote.

Unions representing teachers, police, firefighters and other public employees worried the case would weaken the system of binding arbitration they use to settle employment disputes with government agencies. Unions argued that courts should rarely, if ever, overturn arbitration decisions over public policy concerns.

The appeals court said it agreed arbitration decisions should usually be binding but in this case the arbitrator exceeded his powers. Therefore, the award must be vacated, Snyder wrote.

Jina Jonen, a lawyer for the state teachers’ union, criticized the court for saying Zellner posed a risk to students after the arbitrator found he did not. She said Wisconsin courts have left such factual findings to arbitrators for the last 30 years.

Jonen, who represented the Cedarburg Education Association, of which Zelner was a member, said the union is considering an appeal to the Wisconsin Supreme Court.

“We are really troubled by the fact that this decision could open the door to parties to challenge arbitration awards in court,” she said. “Wisconsin has a strong policy of arbitration being final and binding. It is quicker and less costly.”

Steven Rynecki, a Milwaukee lawyer who represented the Cedarburg School Board, said Wednesday’s decision and a recent Wisconsin Supreme Court ruling could strengthen the hands of employers to fire workers who commit wrongdoing.

Some arbitrators used to only review labor agreements to determine whether discipline was appropriate, he said, and now they must consider other public policies and laws that might apply.

“I would guess unions and arbitrators are scratching their heads about how far and how wide this principle is going to be applied,” he said. “It’s an important case but we don’t know how it’s all going to shake out.”

Pulaski fire chief dies in accident at station

PULASKI, Wis. (AP) — Pulaski Tri-County Fire Chief Frank Wichlacz died Wednesday after an out-of-control pickup crushed him between a garage door and a parked water tanker as firefighters returned from a fire, police said.

“We cannot yet determine if the accident is a result of a mechanical error or human error,” police Chief Randal Dunford said.

A firefighter was moving a GMC pickup that was blocking a bay door where one of the department’s tankers needed to be parked, the police chief said.

“The vehicle accelerated out of control as the fireman was moving it, striking the bay door,” Dunford said. “Wichlacz just happened to be walking between the bay door and a parked tanker inside the fire station.”

The accident happened about 6:30 a.m. as Wichlacz and other members of the department were cleaning equipment after responding to a fire in northeast Wisconsin’s Shawano County early Wednesday.

Wichlacz, 76, has been a member of the Tri-County Fire Department since July 1957 and chief since December 1985.

Wichlacz “loved the fire department. That’s what he did. That was it,” firefighter Brian Killinger said.

Assistant Fire Chief James Styczynski said his department was in shock and won’t respond to any calls for at least 24 hours. Any calls will be covered by neighboring departments, he said.

Wichlacz was named a Green Bay Press-Gazette Everyday Hero in December, when he was 75.

The fire department had 39 firefighters in 2007.