BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
FOND DU LAC SCHOOL DISTRICT
FOND DU LAC EDUCATION ASSOCIATION
(Grievance of Dick Diener)
Mr. Armin F. Blaufuss, Director, Winnebagoland UniServ,
P.O. Box 1195, Fond du Lac, Wisconsin 54936-1195, appeared on behalf of the Association.
Mr. Mark F. Vetter, Esq., Davis & Kuelthau, S.C., Attorneys
at Law, 111 East Kilbourn Avenue, Suite 1400, Milwaukee, Wisconsin 53202-6613,
appeared on behalf of the Employer.
On August 17, 1997, the Fond du Lac Education Association and the Fond du Lac
District requested that the Wisconsin Employment Relations Commission appoint William C.
Houlihan, a member of its staff, to hear and decide a grievance pending between the parties.
on the matter was conducted on December 2 and 3, 1997 in Fond du Lac, Wisconsin. A
of the proceedings was made, and distributed by June 15, 1998. Post-hearing briefs and
were submitted, the last of which was received on September 2, 1998.
This Award addresses the discipline imposed on Dick Diener, a basketball coach, for
basketball-related conduct alleged to have occurred during the off-season.
BACKGROUND AND FACTS
The event giving rise to the discipline in this matter was a letter sent from Clark
Executive Director of the Fond du Lac YMCA to Jim Steinberg, Athletic Director of the
Fond du Lac
School District. The letter, dated January 10, 1997, provided the following:
This is not an easy letter for me to write
because of the potential impact the issue may have on
the Y, the school district, and the community.
The basketball coaches from Goodrich
regularly (for the past several years), have been playing
basketball together with their student team members during the off season several times a
A short time ago, a person came to me and
said that they suspected the coach's actions were not
appropriate and that they had contacted the WIAA to inquire what the rules in fact were.
Jim, when someone goes to this extent, I
wonder what their next move might be. As I said
earlier, the consequences could be devastating for all concerned. Should someone report this
infraction, I am sure investigators would have little trouble finding eyewitnesses. Knowing
individual who made the call as I do, I feel there is reason to be concerned.
The Goodrich basketball coaches have the
ability to get the most out of their players, as do many
of the other coaches in your system. The other coaches follow the rules and excel. It is my
that the basketball team could as well.
The ball is in your court now, and if you
would care to discuss the issue further, I will be
One of the basketball coaches referred to in the Koechel letter is Dick Diener, the
has been head boys' varsity basketball coach at Goodrich High School since 1984-1985.
Following receipt of the letter, Steinberg indicated that he contacted Diener during
of January 20, and asked Diener to contact the YMCA. During this conversation, Steinberg
that he and Diener discussed the WIAA regulations regarding coaches
having contact with their players during the off-season. Diener could not recall a
Steinberg relative to the matter, and indicates that following receipt of the letter in his
spoke with Koechel and addressed Koechel's concern that basketball coaches were playing
players. Diener advised Koechel that under WIAA rules a coach could play against his
not with them.
There was no follow-up discussion between Diener and Steinberg, since both men
the matter to have been addressed.
For a period of approximately 13 years, Diener organized a summer basketball league
Goodrich High School, known as the Wednesday night league. The league was listed on a
District-prepared schedule of summer activities. Community members, members of the
boys' basketball team and other area high school basketball players participated in the league.
league was known and publicized in the community. Despite a policy to the contrary, the
not require Diener to fill out any building use forms nor to pay any building use fees.
personnel including at least one high school principal and the Athletic Director were aware of
league. Diener was not asked by any school district official to have the Wednesday night
sponsored by the recreation department. Diener believed that league was appropriately
operating consistently with his understanding of WIAA rules.
Coach Diener was also involved in playing basketball out of season in the fall in the
league". Steve Zimmerman, a teacher at Thiesen School, and Diener were among the adults
in forming and organizing the "Theisen league". It appears that Zimmerman initiated
basketball games at Theisen when his son was a middle-school age student. In 1995 and
activity evolved into what has been alleged to be a spring league with games played on
Thursday nights. It appears that Zimmerman took primary responsibility for arranging use
building. Diener and other adults, played in the league but not with his players, only against
players, which is permissible under WIAA rules. The "Theisen league" was not sponsored.
A number of adults, including Diener, played out-of-season spring basketball at the
YMCA. Adults and high school students, all members of the YMCA, organized what the
contends to be the "Y" league. Diener, and other adults, played in the "Y" league, and the
indicates that he played against, but not with, his players. The "Y" league took place at the
on a regular basis in September and October from 4 p.m. to 5:30 p.m. The "Y" league was
sponsored, or recognized as such by the YMCA. The YMCA play is the subject of
During this same time frame, approximately January 1997, Diener first became aware
School Board was considering a policy relating to "redshirting" which would have an impact
youngest son, Drake. Diener and his wife had previously held back their oldest sons,
Drew, one year prior to their entering high school. Derrick and Drew, even though held
permitted a full four years of athletic eligibility in high school. The Board policy under
would have limited Drake to three years of eligibility. Drake would not have been eligible to
during his senior year.
In February, 1997, Goodrich High School principal Michael Donnelly met with
his wife. Donnelly informed the Dieners that the Board was working on a new policy that
affect the athletic eligibility of Drake. On April 17, 1997, Diener attended a Board meeting
which the policy was discussed. The policy was passed at the May 12, 1997 Board meeting.
The redshirting issue was a very public and controversial one in the community.
On February 26, 1997, Steinberg held a meeting of head coaches from the high
Diener attended. According to Steinberg, he indicated that any athletic activity that was to
conducted during the summer should be run through either the summer school program or
the recreational department. Diener does not recall Steinberg saying anything about
department sponsorship. Neither Larry Marchionda, the head varsity wrestling coach, nor
Mitchell, the head boys' and girls' soccer coach, both of whom were present at the meeting,
any reference to the recreation department sponsorship.
On Thursday, May 22, Koechel called Steinberg, as a follow-up to the letter he had
in January. During the course of that conversation, Koechel indicated that a follow-up letter
be sent. Steinberg sent Dr. Michael Holmes, District Superintendent, and Donnelly an
them of the phone call. His e-mail concludes with the comment, "The pot continues to
Koechel did send a follow-up letter, dated May 21, 1997 addressed to Steinberg.
provides as follows:
This letter is in reference to a letter I sent
to you on or about January 10, 1997 regarding the
Goodrich basketball coaches playing pick-up games with active players during the off-season
I rather expected a reply from you, and as yet have not
one. You apparently passed
my letter on to the coach who did call me. He did not deny playing pick-up ball with his
only said that what he was doing was okay. I asked him to send me a copy of the rules, but
Jim, the current climate could certainly
escalate into a much more serious situation if we don't
respond to this issue appropriately.
In addition to a copy of the letter I sent
you in January, I am also enclosing a copy of an
article from the WIAA bulletin (March, 1997) which would seem to indicate that violations
I am sending a copy of this letter to Mike
Holmes for his file. Perhaps the three of us
(Steinberg, Holmes, Koechel) could meet to discuss the issue.
Speaking selfishly (for the Y) we have a
fair number of coach supporters in our membership
as well as all the Diener families. They have been helpful on occasion and their children
involved in many of our programs.
Public knowledge would surely result in
all kinds of negative consequences for the Y as well
as the school district. Somehow, our goal must be "win win" and truth must prevail.
I await your reply.
On June 2, Donnelly and Steinberg met with Koechel.
the course of the meeting,
Koechel indicated that he felt that Diener believed that what he was doing was within the
rules in that
he did it so openly. He further indicated that there was no league in existence, the games
were "drop-in and pick-up" games. He indicated that only a select group of players were
allowed to play in
"Dick's group". The select group consisted of members of the high school team or alumni.
indicated that most of the management and staff had observed the activity, pick-up games
Dick and players, over the years. Koechel indicated that when the pick-up game extended to
court and other members of the Y could not get onto the court, a talk with Dick about the
improved the situation. Koechel indicated that he had observed scrimmages, and had never
anything that he could describe as "coaching" taking place. The result of this interview was
to Dr. Holmes, District Superintendent, on June 5, 1997.
On June 10, 1997, Donnelly sent Diener the two Koechel letters, and an excerpt from
bulletin. Donnelly further advised Diener that he and Steinberg had talked with Koechel and
YMCA personnel regarding the content of the letters. These documents were sent over a
letter, a portion of which read:
. . .We need to share with you the details of the conversations we
had with YMCA personnel.
Indications are that a potential violation of Wisconsin Interscholastic Athletic Association
regulations may have taken place. If the investigation results in a determination that a
WIAA rules and/or District regulations occurred, disciplinary action may result. . .
On June 11, Steinberg and Donnelly met with two other
employes of the YMCA. Donnelly
summarized the meeting with Don Sears, Business Manager, to include the following. Sears
reported to have indicated that there is no league play at the YMCA, that Sears directly
Diener and players on the basketball team playing basketball in the YMCA gym, Diener on
sideline coaching the team and directing what he described as a practice, Diener playing with
against members of the basketball team during the summer of 1996, and coaching them.
summarizes the interview with Cheryl Moore, an employe of the YMCA, to include Moore's
statement that there is no league play at the YMCA, but that games are of a pick-up or
On June 16, Steinberg and Donnelly met with Diener, Martin C., volunteer boys'
coach, and Bob L., junior varsity head coach at Goodrich High School. According to
report of the meeting C., L. and Diener all indicated that while at the YMCA they will play
in the same gym with players from their respective teams. When involved with play on the
court, they will not enter the game when one of our players is on the court, and will sit out
segment of play. All three of the coaches stated that they do not play in pick-up games or
scrimmages involving our players. All three coaches stated that no league play is scheduled
YMCA, and that games are scrimmages involving a mixture of people of different ages. Mr.
stated that they may have been on the basketball floor when Goodrich basketball players were
present, but the coaches were on a different court."
Following the meeting with the coaches, Donnelly and Steinberg went to the YMCA
with Koechel and Mr. Troy Dirke. During that meeting, Koechel indicated that he seldom if
high school kids sitting out of games at the YMCA. He added that Diener seldom sits out of
that he has observed. Dirke indicated that he had observed coaches playing with players
Goodrich High School.
That same day, Donnelly and Steinberg met in Donnelly's office to review what they
as inconsistencies in the information provided by the YMCA individuals and that from the
While they were meeting, Diener arrived. Diener indicated that he felt horrible, that he had
upfront with Donnelly and Steinberg. He advised the men that he had played on a team of
against a team which included his players in a league at the YMCA. He also advised the
men of the
Theisen league and the Wednesday night league at Goodrich High School. Diener advised
that he had participated in the formulation of
the league which had played informally at the YMCA. The YMCA league, consisting
of adults and
a mixture of high school and junior high school students, consisted of two teams. Diener
that the YMCA was not aware of the league, there were no officials involved, and the
maintained with no adults participating on the student team. Participants were all YMCA
As to the Theisen league, Donnelly reports that Diener indicated that Zimmerman had
use the gym during evenings the past two springs. There were four teams involved with this
formed by Diener. Adults never played on the same teams as did students. Diener testified
indicated that Zimmerman was the prime mover in the Theisen league.
Sometime in late June, Donnelly met with Diener to discuss the format of the
night league. Diener explained the format of the league and indicated that it had been going
As a result of his investigation, Donnelly concluded there was a need to contact the
Interscholastic Athletic Association to provide a detailed report of the findings. Donnelly
contacted an official of the WIAA to discuss the YMCA and Theisen situations, and had
that the activities he described were in violation of WIAA rules. He was subsequently
it was the obligation of the District to submit a self-referral to the WIAA relating to those
On June 24, 1997, Donnelly sent an inquiry to the WIAA reporting potential
WIAA rules. Diener was not copied on the letter. The letter reports Donnelly's findings of
investigations into the YMCA and Theisen league, and asks that it be treated as a
letter is a lengthy description of the correspondence and the content of the various interviews
conducted, including the following:
I am writing to you in regard to potential violations, by coaches
of the Fond du Lac School
District of Wisconsin Interscholastic Athletic Association Rules governing member schools. .
. . .
Our interviews with the executive director and employees of the
YMCA provided the following
1. Names of past and
current players observed playing with and against members of our
boys basketball coaching staff during the months of July through October of this past
year and preceding years.
2. Information that no
league play is offered by the Fond du Lac YMCA.
3. Detailed description
of the activity observed; playing with and against members of our
boys basketball team, junior high school students, and young men from the North
Fond du Lac School District.
regarding the frequency and time frame within which these activities took
5. Names of coaches
involved with the activities.
Our interviews with members of our boys
basketball coaching staff and one volunteer coach
provided the following information.
1. Mr. Robert L. stated
that he did play basketball with and against members of our
varsity boys basketball team out of season. He stated that since he is the Head Junior
Varsity Coach and doesn't coach varsity players he believes he is not in violation of
WIAA rules regarding out of season contact.
2. Mr. Richard Diener
described two "league" situations which he formed.
a. Mr. Diener
formed two teams to play in an informal league which he
developed on his own which played at the YMCA. The activity took place
without the knowledge or approval of the YMCA. Play took place during the
months of September and October, according to Mr. Diener.
One of the teams consisted
of current boys basketball team members from
Goodrich High School, junior high school basketball team members from
Fond du Lac and members of the North Fond du Lac basketball team.
The other team consisted of
Mr. Diener, Mr. C. (volunteer coach), Mr. James
Sebert (volunteer coach), Mr. L. (junior varsity head coach), Mr. Diener's
brothers and adults from the community.
Games took place at the YMCA and didn't
involve any officials, score
keepers, or record of wins and losses.
b. Mr. Diener
formed an informal "league" consisting of four teams which played
during two preceding spring seasons. As with the situation which took place
at the YMCA, this league was not sponsored by or affiliated with any
organization. It was an experience developed entirely by Mr. Diener.
c. Three of the
teams formed consisted of current boys basketball team
members, junior high school basketball players and members of the North
Fond du Lac basketball team.
d. The fourth
team consisted of Mr. Diener, Mr. L., Mr. Sebert, Mr. C., Mr.
Diener's brothers, adults from the community and alumni.
e. No officials
were present, no record of wins or losses was kept and no league
standings were developed.
f. These games
took place in a Fond du Lac Junior High School gymnasium
facility. Mr. Diener stated that he believes that the "leagues" he formed do
not violate WIAA rule and fall within the expectations as described in the
WIAA Bulletin of March 28, 1997 regarding coaches participating against
athletes in the off-season.
Two days after Donnelly submitted the letter to the WIAA, he
was approached by a custodian
at Goodrich High School who inquired about the basketball activities taking place on
evenings in the summer at the Goodrich High school gymnasium. Donnelly followed up the
conversation to discover that the activity was not sponsored by the recreation department, nor
it a part of the summer school program. On July 1, Donnelly and Steinberg met with Diener
discuss the Wednesday night league. Donnelly reports that Diener indicated that there was in
league taking place on Wednesday evenings, that he had been doing this for several years,
the league involves high school basketball players and adults mixed together in teams. The
collects fees, provides referees, keeps score, and a record of wins and losses. Following that
discussion, Donnelly contacted Mr. McCormick of the WIAA and advised him of this
McCormick replied that the Wednesday night league was not in compliance with WIAA
On July 1, 1997, Donnelly submitted a second letter to the WIAA relative to the
night league. The letter describes the structure and the composition of the Wednesday night
Diener was not copied on this letter.
Diener's personal attorney, Mike Fortune, requested a meeting with District officials
discuss the summer basketball league issue, the Wednesday night league. The District had
the league and Diener was eager to have it going again. The meeting took place on July 10.
the course of that meeting, Diener saw for the first time Donnelly's June 24 letter. He was
copy of the letter once the attorney for the District realized he did not have it. Diener did
not at that
time object to the content of the letter. However, after reading the document at home, he
Fortune and reported what he perceived to be inaccuracies and misstatements.
The following day, July 11, Fortune sent counsel for the District a letter outlining
misstatements of fact". Fortune's letter denies that there was any conference between
Diener following receipt of Koechel's January 10 letter. Fortune objects to Donnelly's
characterization of Koechel's letter as on behalf of the Board of Directors of the YMCA.
objects to the representation of the activity taking place without the knowledge or approval of
YMCA. Fortune points out that all players who participated were members of the YMCA,
was no need for YMCA approval. Fortune objects to the reference to Mr. Diener forming
informal league consisting of four teams. Rather, Fortune notes that the league was
On July 17, Donnelly received a letter from the WIAA addressing the situations
Donnelly's two submissions to that body. That letter provides the following:
Dear Mr. Donnelly:
WIAA rules prohibit basketball coaches
from having coaching contact with athletes, outside
the school season, that they will be coaching the following school season. We do not
between varsity and junior varsity, meaning that varsity coaches cannot work with those
will be on the junior varsity, in the off season, and vice-versa. We also do not differentiate
paid or non-paid coaches.
Coaches can assume a supervisory role, in
an acceptable program, however, supervision does
not include situations like playing basketball with athletes, etc. These provisions are spelled
the WIAA Rules of Eligibility, Article VI, Section 2. The WIAA Board of Control, in April
approved a change in interpretation, which allows coaches to participate against their athletes
structured league competition during the off-season. Coaches
are never allowed to participate on the same
team as their athletes, and can only participate
against their athletes in structured league competition. The situations you have described in
letters of June 24, 1997 and July 1, 1997, represent clear violations of WIAA rules:
1) the "league" is not
acceptable under our provisions. If the YMCA, or recreation
department, had established and structured the league that would be a different
2) the competition at
your high school has apparently been conducted as a school
activity because Board of Education policies for non-school use have not been
3) all school coaches you have identified have
apparently been in violation of WIAA out-of-season rules.
These are considered serious violations.
The Rules of Eligibility, Article VI, Section 2,b,
indicates student ineligibility for a maximum of one year. The WIAA constitution, under
Section 3, indicates penalties of:
1. Suspension of
membership for not more than one year.
2. Probation for not
more than one year.
3. Denial of
participation in Association tournament program.
4. Denial of any area of
Association services or benefits.
5. Monetary fine equal
to Association expense incurred in any investigation and actual
reimbursement of costs resulting from the violation.
The WIAA will have no recourse but to
work within this structure of penalties in dealing with
this situation. We are willing to listen to any proposal you might make relative to corrective
the school might take in lieu of WIAA-imposed sanctions. We will await your response.
On July 29, 1997, following receipt of the WIAA letter, counsel for the District
essence of Mr. Fortune's letter to the WIAA and asked for reconsideration. By letter of
1997, counsel for the WIAA acknowledged receipt of that document and indicated that "the
additional information set forth therein has not changed the position of the WIAA."
It appears that Diener had not seen the District's July 1 letter to the WIAA until
after receipt of the WIAA letter of July 17, 1997. By letter of July 28, UniServ Director
Blaufuss, Diener's union representative, requested, among other documents, a copy of
July 1, 1997 letter.
On August 19, 1997, representatives of the District met with Diener and Blaufuss to
what was to be sent to the WIAA. Diener had an opportunity to address the June 24 and
letters at that meeting. At the August 19 meeting, Diener was handed a copy of the
prepared proposed corrective actions letter. It was intended to be submitted to the WIAA,
included certain disciplinary action against Diener. Diener provided his side of the story,
included advising the District that the elimination of a volunteer basketball coach would be
detrimental to the program. Following the meeting, the letter was amended to allow for one
volunteer basketball coach. During the course of this meeting, Diener also indicated that
a "can of worms" in that several other investigations were ongoing into conduct that he
more egregious than his own.
Following this meeting, on August 21, 1997, the District forwarded a letter to the
proposing to take the following corrective actions:
. . .
With assurance from the WIAA that students will continue to have
the opportunity to participate
in WIAA programs of interscholastic competition and, further that no WIAA penalty
eligibility will be imposed on any students who may have been involved in the circumstances
led to the determination by the WIAA that certain rules had been violated, the school will
following corrective actions:
. . .
. . .a formal, written reprimand citing the WIAA determination
and response of July 17, 1997 will
be issued to and permanently placed in the file of Varsity Basketball Coach, Mr. Richard
Junior Varsity Basketball Coach, Mr. L.
Varsity Basketball Coach, Mr. Dick Diener,
and Junior Varsity Basketball Coach, Mr. L. shall
be immediately placed on a two-year probation with such probation extending through June
. . .
For the duration of the two-year probationary period referred to
above . . .Basketball programs
combined shall be limited to a single volunteer coach. . .
. . .
Any further material (substantive) violations of WIAA rules;
school district policies or
procedures; and/or administrative directives shall result in the immediate termination of the
responsibilities of Mr. Diener and/or Mr. L.
Because the so-called "Classic League" was
found to be in violation of WIAA rules and involved
the use of school district facilities without explicit approval as required by Board of
and it is alleged that a participation or registration fee was charged, Mr. Diener shall make a
accounting regarding the receipt and dispersal of any and all funds involved in the
. . .
Effective immediately, any and all future "leagues" that are
permissible within WIAA rules and
adhere to applicable school district policies and procedures shall be established and structured
through the Recreation Department.
A mandatory rules meeting for all district
middle level and high school coaches to be conducted
by representatives of the WIAA will be scheduled at the earliest possible time.
By letter of August 25, the WIAA accepted the District's
self-imposed actions and indicated
there would be no further WIAA-imposed sanctions.
On August 27, 1997, Diener was given a letter of reprimand which consisted of the
components set forth in the District's August 21 letter to the WIAA. That discipline was
is the subject of this dispute.
In 1997, the school district investigated a number of school-related programs.
were initiated for a variety of reasons. There appear to have been a flurry of investigations
following the Diener matter. Of the various investigations, the
Association has identified four, occurring in the football, softball, soccer and hockey
it contends contrast in form and substance with the Diener investigation.
Coach Diener and his attorney made a series of allegations relating to the summer
league (football). Those allegations were investigated and found to be essentially without
District sent the WIAA two letters relative to the passing league. The first letter indicates
that a sheet
of passing plays (routes) is distributed and questions the propriety of that activity. The
complete letter sets forth the allegations made and the results of the investigation.
The WIAA responded that it felt there were no violations.
On June 30, 1997, Principal Donnelly observed softball team members practicing.
immediately talked with the coach involved and was told the activity had been approved by
Assistant Athletic Director. Donnelly immediately terminated the session. The District
reported the incident to the WIAA, with a description of the activity and the following
"My review of . . . leads me to believe that the activity described above is a violation of the
It appears that the WIAA response indicated that, other than a cease and desist
corrective action was warranted.
The soccer coach approached Steinberg and asked for guidance relative to an indoor
league he was involved with. A detailed letter was sent to the WIAA seeking directions, and
violations existed, serving as a self-referral.
It appears that the WIAA response contained two cautions, but evidenced no major
On the day hockey equipment was handed out, players were put through a
and shown a video. When advised, Steinberg telephoned the WIAA and was advised that it
to be a violation.
It appears that the WIAA indicated that there was a violation, and that the appropriate
sanction was loss of a day's practice. This was done.
Each of the coaches involved above had a non-disciplinary letter placed in his/her
The Association believes the issue to be:
Has the District violated rights granted Dick Diener under
Articles IV, V, VIII and IX of the
Master Agreement by issuing a letter of reprimand to Dick Diener, dated August 29, 1997?
what is the remedy?
The District regards the issue to be:
Did the District act in an arbitrary or capricious manner when it
issued the August 29, 1997 letter
of reprimand to Dick Diener? If so, what is the appropriate remedy?
RELEVANT PROVISIONS OF
THE COLLECTIVE BARGAINING AGREEMENT
MAINTENANCE OF STANDARDS
Nothing contained herein shall be interpreted and/or applied
as to eliminate, reduce, or
otherwise detract from standards of employment existing prior to the effective date of this
that have a major impact on wages, hours and conditions of employment. Standards to be
1. Those that have been in existence for a prolonged period
2. Those that uniformly apply to all
3. Those that are mandatory subjects
. . .
The Board, on its own behalf, and on behalf of the District,
hereby retains and reserves unto
itself, without limitation, all powers, rights, authority, duties and responsibilities conferred
vested in it by the laws and the Constitution of the State of Wisconsin, and of the United
including but without limiting the generality of the foregoing, the right:
1. To the executive management and
administrative control of the school system and its
properties and facilities, and the professional activities of its employees;
2. To hire all employees and, subject
to the provisions of law, to determine their
qualifications and the conditions of their continued employment, of their dismissal or
to promote, and transfer all such employees;
3. To establish grades and courses of
instruction, including special programs, and to
provide for athletic, recreational and social events for students, all as deemed necessary or
by the Board;
4. To decide upon the means and
methods of instruction, the selection of textbooks and
other teaching materials, and the use of teaching aids of every kind and nature;
5. To determine class schedules, the
hours of instruction, and the duties, responsibilities,
and assignments of teachers and other employees with respect thereto and with respect to
administrative and non-teaching activities, and the terms and conditions of employment.
The exercise of the foregoing powers, rights, authority,
and responsibilities by the
Board, the adoption of policies, rules, regulations and practices in furtherance thereof, and
of judgment and discretion in connection therewith shall be limited only by the specific and
terms of this Agreement and Wisconsin Statutes; Section 111.70, and then only to the extent
specific and express terms hereof are in conformance with the Constitution and laws of the
Wisconsin, and the Constitution and laws of the United States.
In the exercise of the Board function, the
District or Administration shall not act in an
arbitrary or capricious manner.
. . .
A. TEACHER CONTRACTS
. . .
5. No teacher shall be
dismissed or suspended without just cause.
6. No non-probationary teacher
shall be reduced in compensation or otherwise disciplined in
writing without just cause.
7. Subsections 5 and 6 shall
not apply to coordinator and extracurricular positions. Removal
for coordinator or extracurricular positions shall not adversely affect a teacher's continued
employment as a teacher except for just cause.
8. Teachers holding
coordinator or extracurricular positions shall notify the superintendent no
later than June 1 of their resignation from the coordinator or extracurricular position.
NOTE: Letter of
understanding stating that Subsection 7 is evaporated if District
evaporates voluntary status of extracurricular duties.
It is understood that an arbitrary
and capricious standard applies to teachers in
. . .
U. TEACHER RIGHTS
The personal life of any teacher shall not
be used as criterion for evaluation provided that such
would in no way affect the teaching performance of the teacher.
Nothing contained herein shall be
construed to deny or to restrict any teacher such rights as
the teacher has under the laws of Wisconsin and the United States or other applicable laws,
decisions and negotiations. The rights granted to teachers hereunder shall be deemed to be
in addition to those provided elsewhere.
. . .
FRINGES AND SALARIES
. . .
B. EXTRACURRICULAR ACTIVITIES DEFINITION
An extracurricular or extra duty activity is
defined as any organized student activity that must
be supervised by a staff member outside the regular assigned teaching activity or day.
. . .
Continued teaching is not conditioned on accepting extracurricular
. . .
RELEVANT PROVISIONS OF THE WIAA
. . .
Section 2. Out-of-season.
A. It is the philosophy of this Association that while
athletes should not be unreasonably
restricted, except during the actual school season of a sport, no activity in which they are
engaged should resemble in any way a school team practicing or competing out of season.
B. A student becomes ineligible
in a sport for a maximum of one year from date of last offense
for participation during other than the same sports designated school season in any program
which appears to be practice or competition out-of-season
1. An acceptable program or activity is one
which is not limited to students on the basis
of a school affiliation, athletic experience, team status, etc.
NOTE: By interpretation, a team made up
of students from a given school
competing outside the season, but during the school year, must include a minimum of
two players that are not a part of that school's program in that sport.
2. There are no
restrictions relative to voluntary assembling (without school/coach
involvement) of students during the summer. (When school is not in session).
3. The person who will
be coaching a student in the following school season shall not
be permitted to coach that student other than during the designated school season for
that sport, except that:
a. baseball, cross-country, golf,
gymnastics, softball, swimming and diving,
tennis and track and field are exempt from this requirement during the
summer, provided the program is not limited to students as described in B, 1
of this section.
b. This provision
shall not prevent a coach from having supervisory
responsibilities outside the designated season of a sport. Supervisory
involvement, however, does not include situations like playing basketball with
athletes, running with athletes, working out (such as wrestling activity), club
team coaching (such as swimming and diving, except in summer), driving (or
accompanying) student to competition or training (clinics, camps, etc.),
conducting drills, running through plays, demonstrating techniques, or any
other activity which could be regarded as coaching or instructing.
c. Coaches are
allowed to use some or all of their athletes, as clinicians, when
conducting a clinic for youngsters who have just completed eighth grade on
down. This may be done for a maximum of six days, during the summer
(when school is not in session), and must conclude no later than the last
Saturday in July.
EXCERPT FROM WIAA BULLETIN VOL.
73 NO. 14 (DATED 3/28/97)
Coaches Participating Against
Athletes In The Off-Season
WIAA rules indicate that coaches can provide supervision for
athletes during the off-season,
but such supervisory responsibilities do not include situations like playing basketball with
This rule, and its interpretation, has prevented coaches from participating against their
structured league competition, during the off-season. The WIAA Board of Control, at their
1994 meeting approved a request by the WIAA staff for a change in interpretation. The new
interpretation allows coaches to participate against their athletes in organized league
during the off-season. This means a volleyball coach, for example, could be participating in
volleyball league which included his/her volleyball players as members of other teams.
It continues to be a violation of WIAA
rules for coaches to participate on the same team as
their athletes in out-of-season play, and to be involved in playing pick-up activity with their
during the off-season. . .
POSITIONS OF THE PARTIES
The Association contends that the conduct of the Employer must be measured against
arbitrary and capricious standard. Whether or not the District satisfied that standard,
Association, is dependent upon the answer to a series of questions advanced: 1) Was the
reprimand warranted given its acceptance of the Wednesday night league and WIAA's lack of
written definition of organized or structured league competitions? 2) Did the District act,
knew of concerns, in a timely fashion? 3) Was Dick Diener afforded a fair and unbiased
investigation? 4) Was Dick Diener treated in the same manner as others who violated WIAA
The Association argues that the District's disciplinary action is based on a false
Dick Diener played with some of his players in non-structured league competition. The
contends that it is certain that Diener did play against his players. This play occurred in the
league in the spring of 1997 and the "Y" league during the fall of 1996. At no time did
with his players. Out-of-season contact between Diener and his players is governed by
Article VI, Section 2 of those rules govern out-of-season activities. WIAA rules do not
competitions. Nor do they define what is meant by "structured or organized league
The Association contends that for 13 years Diener organized a summer basketball
did not play in the league. The Wednesday night league was held at Goodrich High School
District knowledge. The District even published the existence of the league on its stationery
The Association contends that the Theisen and "Y" leagues were formed after the
changed its rules to permit coaches to play against their players during out-of-season. With
District essentially endorsing the Wednesday night league for 13 years, Diener had every
believe that his involvement in the Theisen and "Y" leagues was appropriate. The
its finger at the WIAA as being at fault for not having any written definition of organized or
structured league competitions. Equally at fault, contends the Association, are high school
Mike Donnelly and Athletic Director Jim Steinberg. Had either of them taken the time to
investigate the concerns raised by Koechel in January, this matter would likely have been
with Diener getting recreation department sponsorship for all three of the leagues. The
establishes that Diener has always been responsive to directives to conform to rules.
The Association contends that the District made matters much worse by not
Clark Koechel's January, 1997 concerns. Had either Steinberg or Donnelly followed up on
January 10 letter, it would have immediately been obvious that the "Y" league did not have
appropriate sponsorship. The Theisen and Wednesday night leagues could also have been
Diener could have quickly remedied the situation by gaining necessary sponsorships.
The Association speculates as to the District's motives in not following up more
January. Pointing to Steinberg's "the pot continues to boil" comment on May 22, the
infers that the "pot" is the redshirting policy and its impact on the Diener family and the
The Association contends that there is nothing else in the record that could be so described.
The Union takes issue with the impartiality of the District's investigation. In its
Association attacks the testimony and credibility of both Steinberg and Donnelly. The
contends that the intensity of the investigation and the resolve of the administration to
Diener did something wrong stands in stark contrast to the District's handling of other
WIAA violations. The Association is critical of its view of the tone and character of the
investigation. In the Association's eyes, the District assumed discipline to be warranted.
Association is further critical of the District's failure to provide Diener an opportunity to
its findings prior to sending them to the WIAA. The Association contends that the District's
to allow Diener the opportunity to correct inaccuracies, misstatements and incomplete
the June 24 and July 1 letters left the WIAA no option but to conclude that serious violations
WIAA rules occurred. The
Association offers a list of corrections to both the June 24 and July 1 letters that
Diener could have,
and would have, made had he been afforded the opportunity. At the conclusion of the list,
Association does acknowledge that there is no doubt that the WIAA would have concluded
activities described violated WIAA rules.
The Association notes that the WIAA expressed a willingness to listen to "any
District might make regarding self-imposed directive actions. There is nothing that indicates
WIAA required Diener to be reprimanded.
It is the contention of the Association that the District applied a different set of rules
conduct toward Diener. It eagerly accepted hearsay in the Diener matter, but subsequently
that anyone making accusations should do so in writing over his signature. The Association
to other coaches who are alleged to have committed WIAA violations and alleges that Diener
singled out from among them for purposes of discipline.
The Association attacks the letters submitted to the WIAA, claiming that they
a finding of guilty. In contrast, the Association contends that the letters involving the
program appear balanced. The Association attacks the fact that Diener was not allowed an
opportunity to present his case either before the submissions to the WIAA or before a
that disciplinary action was to be considered. This is alleged to be in contrast to the
afforded the other coaches. The Association relies upon Article 8 a. for support of its
the Employer may not act in an arbitrary and capricious manner with respect to Diener's
as a head boy's basketball coach. The Association also relies upon Article 4, the
Standards clause, which assures that standards of employment will be administered
consistently and fairly.
In its reply brief, the Association acknowledges that in some cases, WIAA review of
athletic programs did not conclude that violations occurred. However, contends the
is clear from the evidence that the out-of-season sponsorship by the summer school or the
department is required. Neither the football program nor the soccer program had such
The Association contends it is clear that the soccer coach did not follow Board of Education
for non-school use of facilities.
It is the position of the District that the only provisions of the Master Agreement
this case are the provisions which grant the District the right to issue a reprimand so long as
it is not
arbitrary or capricious. In response to a lengthy list of contractual provisions alleged by the
Association to have been violated, the District reviewed a number of provisions of the
and argued and concluded that none were applicable to this dispute. The District concludes
Article 5 provides that the only limitation on the District's exercise of the rights contained
is that it not act in an arbitrary or capricious manner.
The District confronts the Association's contention that Mr. Diener was the victim of
discipline due to events in his personal life. The contention is that Diener's filing of a
the District regarding its policy prohibiting redshirting was the basis for his reprimand as a
The District contends that the only evidence in the record to substantiate that is Diener's
that it was his "personal feeling" that that was occurring. Diener testified that he did not
Donnelly or Steinberg were out to get him, but that they were being directed by people
The District contends that an arbitrary and capricious standard requires only that the
be reasonable based upon the facts presented. The District cites arbitral authority for a
propositions which limit the scope of review available under the arbitrary and capricious
The District concludes that Diener's reprimand should not be disturbed absent a showing that
imposition was unreasonable.
The District contends that it conducted a fair and objective investigation prior to
letter of reprimand. The District notes that its staff engaged in a detailed and comprehensive
investigation prior to the issuance of the August 29 letter of reprimand. The investigation
meetings with 13 individuals to address the three league situations. With respect to the
league, the District notes a series of meetings, including three with Diener. With respect to
Theisen league, the District notes one meeting, that with Mr. Diener. With respect to the
night league, the District notes a series of four meetings, one of which occurred with Mr.
Additionally, the District notes that it met on July 10, 1997 with Diener and his attorney to
the June 24 letter to the WIAA and to obtain Mr. Diener's statements in reaction to the
The District contends that the discipline it imposed was exceedingly reasonable in
view of the
seriousness of the offense. Following the investigation, the WIAA responded in clear and
terms that the league situations described in the District's letters constituted clear violations
rules. The WIAA letter went on to list a series of very serious penalties that could be
the District. It further indicated that it would have no recourse but to work within the
those penalties in dealing with the situation. It is in that context that the WIAA letter
willingness to consider corrective action the District might take in lieu of a WIAA-imposed
The District's plan falls far short of the WIAA structure of penalties, but directly addressed
of the violations, Mr. Diener. It was Diener's actions which constituted clear violations of
rules that were considered serious violations.
In its reply brief, the District notes that the investigation results contain a summary of
Diener's description of the "leagues". It is the absence of formal leagues that form the core
WIAA termination of violations.
The District notes Diener's objection to the lack of a definition of organized and
league competition. The District dismisses that definition, noting in the context of a
the terms "organized" and "structured" would certainly include no less than the use of
scorekeeper and a record of wins and losses. Such a definition would also likely include a
schedule of games, a registration procedure, a registration fee, and insurance coverage for
organizers. There was nothing organized or structured about the league activities other than
existence of teams. The District claims that a coach with Mr. Diener's extensive basketball
experience should have quickly arrived at the same conclusion.
The District argues that Diener had specific knowledge that the Wednesday night
be run through the summer school program or recreation department. It is irrelevant how
activity existed or who knew about it, claims the District. The District relies upon the
meeting where it claims that all coaches were advised that any athletic activity that was going
conducted during the summer would have to be run through the summer school program or
The District notes that Diener had already violated the WIAA rules when the District
Mr. Koechel's January, 1997 letter. The District claims that the matter was not immediately
following Steinberg's meeting with Diener because Steinberg believed Diener was aware of
and would, as promised, address the situation. However, by January, 1997, Diener had
played against members of his team in the Theisen league during the spring of 1996, and the
league during the fall of 1996. These two violations had already occurred when the District
The District notes that Diener would have made 11 corrections to the District's June
July 1 letters to the WIAA. The District reviews each of those proposed corrections and
that none were relevant to the findings of the WIAA. The District notes that the Association
acknowledged that they would not have precluded the WIAA findings.
The District contends that Diener was treated the same as all other District employes
were the subject of investigations. During 1997, the administration conducted 13
its student athletic, curricular or co-curricular programs. Of those, 12 were conducted by the
school administration. The District notes that the Association identifies only four
support of its argument. The District reviews those four programs. In each, the District
process of investigation was the same as was applied to Diener. With respect to the hockey
a self-referral corrective action plan was submitted. That plan involved the team forfeiting a
practice. The penalty was related to the violation and was approved by the WIAA. A
summarizing the situation was placed in the hockey coach's personnel. With respect to the
situation, the WIAA found a violation
of its rules. The WIAA did not believe the situation serious enough to warrant
District, on its own accord, placed a memorandum in the personnel file of the individuals
With respect to the soccer program, the WIAA found only a possible violation in the
program, and went on to note no major concerns. In response, the District included a
in the soccer coach's personnel file.
The football program also ran a Wednesday program. The WIAA concluded that
significant differences between the basketball and the football program. The differences
that they removed the behavior of the football program from the category of being in
In contrast, Mr. Diener's behavior with respect to the basketball program not only
WIAA rules, but those violations were treated as serious violations.
The parties in this dispute agree that the question for my decision is whether or not
District's discipline was arbitrary and/or capricious. Each of them submitted views as to
the "arbitrary and capricious" standard. Suffice it to say that I believe that a decision must
and grounded in fact to avoid the arbitrary and capricious tag. In the context of this dispute,
decision must not be pretextual.
In its post-hearing brief, the Association asks that the case be analyzed by addressing
questions which it advances. This award attempts to do that. The first question posed by the
1) Was the District's reprimand warranted
given its acceptance of the Wednesday night league
and WIAA's lack of a written definition of organized or structured league competitions?
I believe the answer to this question to be "yes". The
Wednesday night league was only one
aspect of the charges confronting Coach Diener. The Wednesday night league does not stand
The absence of definitions of "league", "organized" or "structured league competition" is a
criticism of the WIAA and its review process. If the facts here were different, it would be a
concern. But with respect to at least the YMCA activities, there is not even the pretense of
organization and/or structure. Additionally, Diener is not a hapless layman. Dick Diener
a competitive basketball program for 13 years, as of the date of discipline. The events
not a single, chance occurrence. Coach Diener was involved with three out-of-season
Given the nature of the
activities and his position, he could have, and should have, investigated the matter. As
matter, Coach Diener was aware of many of the rules governing this area. He was
bringing about change relating to the WIAA rule governing playing with, versus playing
players. The record also demonstrates his sensitivity to the necessity of league status to
enable non-season play.
2) Did the District act, once it knew of concerns, in a timely
Again, I believe the answer to be "yes". My review of the record suggests that the
of time from January through May, 1997 occurred either because the District believed that
had resolved the matter and/or because the District hoped it would go away. There is
suggest a cynical desire to allow Diener to dig himself a deeper hole.
3) Was Dick Diener afforded a fair and unbiased investigation?
I believe the investigation was sufficient to satisfy an arbitrary and capricious
investigation was lengthy, and involved thorough investigation and interview of witnesses.
results of the investigation were reduced to writing and preserved. There were flaws. I
the District should have allowed Diener to review the June 24 and July 1 letters to the WIAA
to their submission. However, I do not believe the procedural shortcomings to be significant
to cause the process to be fairly viewed as either arbitrary or capricious.
4) Was Dick Diener treated in the same
manner as others who violated WIAA rules?
I believe the District proceeded using the same basic format
its investigation of all alleged
Athletic Department violations. I further believe the discipline was assessed proportionate to
culpability of the individuals under investigation. My answer to question 4 is that Coach
not singled out for disparate disciplinary treatment.
The Association attacks the discipline on a number of grounds. Each will be taken
addressed individually. The Association's first contention is that Dick Diener did not play
players in out-of-season games. The Association contends that Dick Diener did play
players, a practice which is allowed by WIAA rules. Donnelly's letter of June
24th to the WIAA
indicates that there were allegations that Diener played both with and against his players.
letter goes on to indicate that Diener describes his behavior as playing on a team against his
From the record, it appears that Donnelly accurately captured the contentions of all those he
interviewed. His self-referral letter to the WIAA does not purport to reconcile the
those statements. The District would have this contention disregarded, arguing that the
not predicate its conclusion that violations occurred on
Diener's playing basketball with his players. I disagree. The WIAA letter is
ambiguous in this regard.
What is clear from the WIAA letter is that the WIAA rejected the notion that there was
The Association argues that there is no definition of "league", "organized" or
This argument is directed at the WIAA. As noted above, there is nothing to suggest any
and/or structure in the "Y" league. In his initial interview with Donnelly and Steinberg, with
coaches present, Diener and the other coaches indicated there was no league play at the "Y".
coaches also inferred that there was no coach participation in games where high school
involved. In a subsequent meeting, occurring that same day, Diener returned to clear up his
misrepresentations and indicated that a league did exist at the YMCA and that he played
players, but not with them. At least on the surface, it would appear that the YMCA league
formed between investigatory interviews.
The Association attacks the timing of the investigation. The Association argues that
matter been brought to a head in January, Diener could have gotten sponsorship for all three
and avoided controversy. While that is true for prospective activity, it is not possible for
behavior. The overwhelming majority of conduct complained of had occurred prior to
The Association contends that a failure to investigate the matter promptly made matters
attributes this to the District's hostility to the Diener family's decision to redshirt their
Association points to the "pot boiling" comment found in Steinberg's e-mail.
The context in which the e-mail was created was the follow-up telephone call and
Koechel, whose initial action was prompted by an alleged fear that some third party would
and expose the matter. I suspect the "pot boiling" comment was indeed directed at the
surrounding the redshirting proposal, as well as the realization that the YMCA incident, and
instigator, would not go away. Koechel's letter complains of coaches playing with their
players at the YMCA. To credit Steinberg's testimony, he addressed the matter to Diener.
advised him that he had acted within the rules and would straighten the matter out with
Crediting Diener's testimony, he became aware of the letter through its being placed in his
He thereafter met with Koechel and assured him that he was in conformance with the rules.
1997 was the time period in which the school board was initially considering a redshirting
matter was evidently controversial. Had the administration immediately launched an
based upon Koechel's letter, it would have set itself up to be accused of engaging in a witch
particularly in the context of Diener's claim that he had acted within the rules, and
matter out. It appears to me that the administration wanted to stay out of the fray.
The Association attacks the investigation as being unfair. The Association attacks the
testimony and credibility of both Steinberg and Donnelly, pointing to instances of these
inability to recall certain events, or to recall them only after their memories were refreshed.
I do not
regard either witnesses' testimony to be incredible. There was nothing in the record
impeach either of these witnesses' testimony. To the contrary, Donnelly maintained a
of his investigatory interviews. He identified individuals with quotes and specific allegations.
notes were made a part of the record and provided to the Association, which had an
examine the individuals who were investigated. Donnelly's investigation was the basis of the
submitted to the WIAA. If that investigation was in error, or unfairly portrayed the claims
there was ample opportunity at the hearing for that to have been pointed out.
The District sent the June 24 and July 1 letters to the WIAA with no opportunity for
to review them and/or to offer correction. I believe this to be a procedural flaw. I agree
should have seen the substance of the allegations, and been provided an opportunity to
rebut those allegations before they were sent to the WIAA. I believe that to be consistent
fundamental notions of fairness. However, I do not believe that flaw to be fatal to the
Association noted that there were several corrections it would have urged in each of the
However, the Association concedes that it would not have changed the decision of the
Additionally, Diener and his counsel, were subsequently provided the letters and provided an
opportunity to respond with corrections. Those corrections were forwarded to the WIAA.
Admittedly, the corrections were submitted after the WIAA acted.
However, it appears that the
WIAA considered the proposed corrections, and refused to modify its stance. Finally,
Steinberg interviewed Diener as a part of the investigation. His perspectives formed a part
submission. This is not a scenario where the grievant was left out of the evidence gathering.
Diener was a key witness in the gathering of evidence that led to the submission.
The Association attacks the District's use of hearsay in this matter. The original
an unnamed person as the instigator behind the complaint. The District and Diener sought
of the individual, which was not forthcoming. The result was that the District did not act.
District's failure to launch an investigation, based upon this unidentified complainant has
attacked by the Association as inappropriate. The District acted only after Diener had
taken care of the matter and Koechel persisted. In this context, the District walked a fine
between potential allegations that it was singling Diener out for an unfriendly investigation
protecting one of its own in the face of evidence of wrongdoing. I do not believe that there
anything in the record to suggest that the District initiated the investigation with a malicious
The Association alleges disparate treatment in the application of discipline. Four
are cited. I have reviewed all of the documents submitted relative to all of the investigations
in 1997. The approach to these investigations appears common. The format of the
submitted to the WIAA appears to be virtually standardized. There was self-reporting in
instances. There was pre-reporting contact with the WIAA where disclosures were made.
District appears to have divulged potentially culpable behavior in most, if not all instances.
behaviors of the parties differed. The conduct which was the object of the scrutiny was very
With respect to the investigations noted by the Association, with the exception of Diener, the
found either no violation or little concern, in contrast with its characterization of the
violations as constituting serious violations with substantial potential penalties.
The Association claims that the tone and tenor of the letters submitted relative to
invited sanctions, in contrast to the letters addressing other sports. The Diener letters are
detailed. That reflects the nature of what was described. I do not see a significant disparity
tenor, or approach.
The Association complains that Diener's request that he be heard prior to the
formulating any discipline, was rejected. That is a common courtesy. However, the
to do so does not render the discipline either arbitrary or capricious. The proposed discipline
prepared before the meeting with Diener. He was given an opportunity to be heard, and an
opportunity to comment. He did so, and the letter was modified, at least in one respect.
On balance, I believe that the discipline imposed was reasonably related to the
was based upon the Employer's investigation and conclusions as to the evidence. The
an effort to stave off a far more consequential sanction that could have been forthcoming
WIAA, and would have compromised the ability of students to participate in the basketball
There is nothing in the record that suggests that the motives for the imposition of discipline
The grievance is denied.
Dated at Madison, Wisconsin this 26th day of March, 1999.
William C. Houlihan, Arbitrator