BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
OCONTO EDUCATION ASSOCIATION
OCONTO SCHOOL DISTRICT
(Russell Young Grievance)
Wisconsin Education Association Council, by Attorney Lucy T. Brown,
P.O. Box 8003, Madison,
Wisconsin, 53708-8003 on behalf of the Union.
Godfrey & Kahn, S.C., by Attorney John A. Haase, P.O.
Box 13067, Green Bay, Wisconsin,
54307-3067, on behalf of the District.
At all times pertinent hereto, the Oconto Education Association (herein the Union)
Oconto School District (herein the District) were parties to a collective bargaining agreement
covering the period July 1, 1999 to June 30, 2001, and providing for binding arbitration of
disputes between the parties. On August 8, 2001, the Union filed a request with the
Employment Relations Commission (WERC) to initiate grievance arbitration regarding the
of Russell H. Young (herein the Grievant) from his duties and requested the submission of a
of WERC staff from which to select to arbitrate the issue. The parties subsequently
undersigned to hear the dispute and a hearing was conducted on December 4 and 18, 2001.
proceedings were transcribed and the transcript was filed on December 27, 2001. The
briefs on March 6, 2002, and reply briefs on March 27, 2002, whereupon the record was
To maximize the ability of the parties we serve to utilize the Internet and
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
The parties stipulated to the following framing of the issues:
Did the School Board have just cause justifying its decision to
suspend the Grievant for one-year without pay?
If not, what is the appropriate remedy?
ARTICLE IV. MANAGEMENT RIGHTS
1. It is recognized that the
Board has and will continue to retain the rights and responsibilities
to operate and manage the school system and its programs, facilities properties, and activities
of its employees.
2. Without limiting the
generality of the foregoing (paragraph 1) it is expressly recognized that
the Board's operational and managerial responsibility includes:
- The right to determine location of the
schools and other facilities of the school system,
including the right to establish new facilities and to relocate or close old facilities.
- The determination of
the financial policies of the District, including the general accounting
procedures, inventory of supplies and equipment procedures, and public relations.
- The determination of
the management, supervisory or administrative organization of each
school or facility in the system and the selection of employees for promotions to
supervisory, management or administrative positions.
- The maintenance of discipline and control and use of the school
system property and
- The determination of
safety, health and property and facilities.
- The determination of
safety, health and property protection measures where legal
responsibility of the Board or other governmental unit is involved.
- The right to enforce the rules and
regulations now in effect and to establish new rules and
regulations from time to time not in conflict with this Agreement, and not in conflict with
the legal rights of the Association and/or the legal rights of the individual teacher.
- The direction, arrangement, assignment, and allocation of all the
working forces in the
system, including the right to hire, suspend, discharge or discipline, or transfer employees
within the limits of Board policy, this Agreement, and the laws.
- The creation,
combination, and modification of any teaching position deemed advisable
by the Board.
- The determination of
the size of the working force and the determination of policies
affecting the selection of employees.
- The determination of
the layout and the equipment to be used and the right to plan, direct,
and control school activities.
The right to schedule
classes and assign work loads; and to select textbooks, teaching aids
3. Nothing in this Agreement
shall limit in any way the District's contracting or subcontracting
of work or shall require the District to continue in existence any of its present programs in
present form and/or location or on any other basis.
4. The foregoing enumeration's
of the functions of the Board shall not be considered to exclude
other functions of the Board not specifically set forth; the Board retaining all functions and
rights to act not specifically nullified by this Agreement.
1. The initial two years of
employment is considered as a probation period. The Board will have
sole discretion on contract renewal during the two-year probationary period. Teachers
nonrenewed during the probationary period shall not have access to the grievance procedure.
The Board may extend the probationary period by one year, not to exceed three years total,
by giving the teacher written notice of this extension at the time contracts are issued. During
the extension, nonrenewal may not be arbitrary or capricious.
2. A teacher who has completed three years of
service in the District may be disciplined,
suspended, nonrenewed or discharged by the Board but not without just cause.
3. The superintendent may
discipline and/or suspend any teacher and the Board may dismiss any
teacher for incompetency, neglect of duty, immorality, misconduct and refusal to obey rules
and regulations of the Board and its chief administrative staff.
The Grievant, Russell H. Young, has been employed at the Oconto High School as a
education teacher and coach since 1989. During that time, he has also been active in the
recently serving as President in 2000-2001. Prior to the present case, Young had received
written reprimands from the District, once in 1996 for giving a basketball player permission
school without following the established checkout procedure and once in 1995 for making a
derogatory comment to the school principal. His performance evaluations as a teacher have
Between 1997-2001, the Grievant served as teacher and advisor for S.F., 1/ a special
education student at Oconto High School, who had been previously classified as emotionally
under the Individuals with Disabilities in Education Act (IDEA). During the 1999-2000
S.F. demonstrated behavior and socialization problems that ultimately led the District to
individualized plan to restrict his interaction with other students in unsupervised situations by
modifying his schedule, including allowing the student to receive credit for working for a
employer in the afternoons instead of attending school during his senior year. At the end of
year, S.F. had accumulated 16.5 of the 24 credits needed to graduate.
1/ The student referenced herein is identified
by initials for the purpose of preserving his anonymity.
During S.F.'s senior year, the 2000-2001 school year, he was scheduled for classes
first three periods of the day and then dismissed to work, for which he was to have received
credit. The Grievant was off work at the beginning of the school year on family leave and
prepare S.F.'s schedule. Upon his return, he did prepare S.F.'s Individualized Education
(IEP) for the school year. At the end of the first semester, S.F. failed all his academic
earned at total of 1 credit, which was for work study. During the second semester, S.F. was
registered for three academic courses and work study. At the end of the term, the Grievant
asked by the school secretary whether S.F.
would have sufficient credits to graduate and was told that he should, thus S.F. was
issued a diploma
and graduated on May 20, 2001. Subsequently, on May 30, 2001, the guidance department
ascertained that S.F. did not have enough credits to graduate and brought this to the
attention. The Grievant reviewed the student's records and determined that he had not
proper number of credits for his work study and Special Education course in the second
He thus instructed the secretary to increase three Special Ed. courses from .5 credits to a full
each and to increase his work study credits from 2.5 to 4 to reflect the actual hours S.F.
working during the school day. At the same time, the Grievant discovered that S.F. had
1 credit for work study in the first semester, although he had worked four hours per day.
requested the secretary to change this record, but was told the request would have to go
Information Technology Specialist, Kathy Richter, since the record was from a previous
to a poor relationship with Richter, the Grievant chose instead to have the department
three independent study courses to S.F.'s spring schedule at one credit apiece, thus raising
total to a level sufficient to graduate. It is undisputed that S.F. did not take any of the three
On June 7, 2001, the Grievant discovered that his grade verification sheet did not
of the added independent study courses, nor the necessary credit total. He then contacted
and asked that she make the entries reflecting that S.F. had passed these courses and adjust
total accordingly. Richter notified the District Administrator, Jeffrey Dickert, of the
request and Dickert investigated the matter, ultimately discovering that S.F. had not taken the
for which he was to receive credit. Dickert confronted the Grievant, who admitted that the
were fictitious and gave as rationale that S.F. should have received 3 additional credits for
in the first term and this was an attempt to get him the credits he had earned without having
through Richter. As a result, Dickert commenced an investigation, which resulted in the
being charged with neglect of duty, immorality, misconduct and refusal to obey the rules and
regulations of the School Board, with a recommendation to the Board that the Grievant be
terminated. On July 25, 2001, the School Board convened a termination hearing,
which resulted in
the Board issuing the Grievant a one-year suspension without pay. The suspension was
according to the procedure set forth in the collective bargaining agreement, culminating in
arbitration proceeding. Additional facts will be referenced, as necessary, in the discussion
POSITIONS OF THE PARTIES
The District maintains that the Grievant's falsification of student records and
misrepresentations to other staff members constitute serious misconduct. In addition, he
S.F. excessive credits for work study, well beyond what has been granted in the past,
in order to circumvent the District's credit requirements and permit him to graduate.
precedents establish that such misconduct warrants discipline and many cases have upheld
for similar actions.
In this case, the School Board determined after a hearing that a one-year suspension
appropriate discipline for the Grievant's actions. Where an employee has engaged in
behavior, it is management's prerogative to determine the level of discipline, so long as it is
arbitrary, capricious or unreasonable. The Union has failed to show cause for the Arbitrator
substitute his judgment for that of the School Board. There was no showing of
arbitrariness and, in fact, the Grievant proposed suspension as the appropriate discipline at
process hearing. There is no support for the Grievant's contention that he was disciplined
Union activities. The Grievant's conduct merited discharge, as many arbitral awards attest.
falsified records which may be relied upon in the future by potential employers or institutions
learning and also deliberately deceived his co-workers by claiming S.F. had passed courses
The Grievant's defenses are without merit. He claimed that his actions were intended
correct a clerical error by awarding S.F. 3 credits he actually earned in the first semester
work study. He claimed he created the false classes to avoid dealing with Ms. Richter in
to change the first semester record. If that is true, he had several more appropriate options.
have approached anyone in Administration, or he could have approached a guidance
he could have required S.F. to complete the course work after graduation. Any of these
would have resolved the issue without having to involve Ms. Richter. His explanation,
unconvincing. In March, 2000, S.F. had an IEP meeting to address his behavioral problems,
resulted in an IEP. The IEP does not indicate that work study would play a prominent role
completing school, but does stress the importance of S.F. attending school and completing
None of the other participants at the IEP meeting recall any discussion of S.F. being given
credit per semester for every hour of work study and all, except the Grievant, were aware
would have to pass his classes in his senior year in order to graduate. The record also
Grievant's claims regarding his alleged unwillingness to work with Ms. Richter and whether
fact, made an attempt to correct the first semester records before he fabricated the three
the spring term.
The Grievant, without excuse, engaged in fraud by falsifying student records and
misrepresentations to other staff members. His conduct brings the integrity of all the
records into question, as well as the legitimacy of S.F.'s diploma. On the whole, the
within it's rights to suspend him for his conduct and the discipline should stand.
The Union asserts that, other than adding additional courses to S.F.'s student record,
District's claims of wrongdoing are unsupported. The Grievant has not denied that he added
the student did not take in order to correct a crediting error, or that this is a
proper subject for discipline, merely the severity of the discipline. The District has
wrongdoing, however, which has not been established by the evidence. Former
Dickert testified that the Grievant improperly gave the student excessive credits for work
which he verified before bringing charges against the Grievant, but failed to provide
supporting his assertion. The Special Education department had a work study program
the District's other work programs, which does not limit the number of credits that may be
through work study. Several witnesses testified to knowledge of cases where students were
more than one credit per semester for work study, contrary to Dickert's assertion. There is
history in the District of making unique accommodations to enable students to graduate and
case the District had, in fact, assured S.F.'s mother that he would graduate despite the fact
a result of a manifestation hearing in March, 2000, S.F. was released from school to work
hour. The work study credits were the only way of getting S.F. the credits necessary to
within the restrictions imposed at the manifestation hearing and did not violate any known
It was also not a violation of District policy or practice for the Grievant to give S.F.
credit for each special education course. While typically students receive .5 credit for each
class, according to the testimony exceptions are made, especially with special education
In this case, the accommodation was necessary to permit the student to graduate with his
had been represented to his mother. At the time, the High School special education
operated without any clear guidelines or oversight from the administration. The teachers
expected to, and generally did, come up with creative, if unorthodox, solutions to meet the
their students, of which the Grievant's handling of S.F.'s situation is but one example.
Vice Principal was apparently aware of S.F.'s circumstances and asserted to his mother than
graduate, suggesting that he was aware of and in accord with the plan to give maximum
work study and academic courses.
The District, while justified in imposing discipline, did not have cause to suspend the
for one-year. The District did not conduct a fair investigation. The investigation was
alone by Superintendent Dickert, who had a contentious relationship with the Grievant,
from the Grievant's activities as a Union leader and public involvement in an effort to force
resignation the previous year. Other faculty testified to the poor relationship between the
the Grievant had even filed a grievance in the past due to Dickert's perceived retaliatory
Nevertheless, Dickert was the sole investigator into the Grievant's conduct despite his
Dickert also left his position at the end of June, 2001. Therefore, he conducted his
recommended the Grievant's termination within three weeks, all the while wrapping up all
duties for the District and preparing to move to his new position. The investigation was
sloppy, resulting in charges that were inconsistent with the evidence presented at the
hearing and failure to bring forth any witnesses with firsthand knowledge of the matter. The
testimony offered by Dickert, himself, was inaccurate and misleading and failed to establish
any motive for the Grievant to have acted as he did, other than for the reasons given
by the Grievant
himself. A proper investigation would have determined that the Grievant had not engaged in
orchestrated pattern of wrongful conduct, but had rather made a single mistake, albeit a
which should be viewed in the context of a special education program where unorthodox
to problems were common.
The one-year suspension meted out by the District was disproportionate to the
of the Grievant's conduct. The Grievant had previously had two written reprimands in 12
long in the past and neither involving his conduct as a teacher. His professional evaluations
consistently positive. Crediting S.F. for courses he did not take was a serious mistake and
of school policy, but was an isolated incident. He did not act out of self-interest and the
demonstrates that the District has in the past not consistently observed strict crediting
this basis, a one-year suspension was excessive. The punishment issued to the Grievant is
unreasonable when it is noted that in the recent past the School Board elected not to
Superintendent for misrepresenting his credentials. Mr. Dickert served as Superintendent
from 1995-2001, but was not licensed to be an administrator until 1999. Dickert did not
inform the Board of
this at the time of his hire and the Board did not learn of it until notified by the Department
Instruction in 1999. His actions were totally motivated by self interest and his explanation
conduct was incredible. Despite Dickert's deception, the Board did not discipline him, but
directed him to complete the accreditation process, whereupon he was given a raise. In light
the Grievant's suspension for conduct that was no more serious was disparate, especially
teachers in the special education department have for years engaged in creative crediting
in order to help special needs students graduate without objection from the District. In light
above, a one-year suspension was disproportionate and should be remitted to no more than
The District in Reply
The District argues that the Grievant's misconduct was much more serious than the
admits. He committed many wrongful acts, including deliberate falsification of official
records to give
S.F. credit for courses he did not take and making misrepresentations to other staff members
gain their assistance in perpetrating academic fraud. He also gave the student more credits
appropriate for work study, in effect providing him 8 work study credits, or one-third of the
necessary to graduate, in his senior year alone. The Grievant's claim that there was a
at the March, 2000, manifestation hearing that S.F. would receive the work study credits is
supported by the record, nor are his assertions that the District had assured S.F.'s mother
would graduate with his class, or that giving him 8 work study credits was the only way to
The District had just cause to terminate the Grievant, let alone suspend him. The
cited many cases supporting termination for falsification of records, whereas the Union has
to support its arguments. The District conducted a thorough
investigation, culminating in a Due Process hearing, wherein the Grievant was afforded
opportunity to present evidence in his defense and answer the charges against him. The
the process is shown in that the Board did not terminate the Grievant, as prayed for in the
but imposed a suspension, which was the penalty recommended by the Grievant, himself.
of the suspension was reasonably related to the seriousness of the conduct and the fact that,
to the Union's assertions, the Grievant had a poor disciplinary record, including two previous
reprimands, one of which was for insubordination toward the High School Principal. The
has not accepted the seriousness of his actions, but has instead chosen to blame others. It is
that, having once assured the school secretary that S.F. was eligible to graduate, when the
discovered the credit shortfall the Grievant engaged in a deliberate course of
cover his mistake, thereby attempting to assure that he would not have to explain his error,
continue to deal with S.F., an admitted behavior problem, the following year. The Union's
of disparate treatment also do not bear scrutiny. There is no evidence of any other faculty
receiving lesser discipline under similar circumstances and the comparison with Mr.
situation is not apt. The record indicates that Mr. Dickert believed in good faith that he was
as an administrator and that once it became clear that he was not he took the necessary steps
certification. The Union provided no evidence to support its claims against Mr. Dickert and
Board's decision not to discipline him cannot be used as a comparison to its actions regarding
The Union in Reply
The Union asserts that, in its attempt to disparage the Grievant, the District ignores
context within which the decisions regarding S.F. were made. Historically, the special
department has had to operate with minimal oversight and support from the administration.
education teachers have had to handle their own disciplinary problems and develop creative
to academic problems of the students without guidelines or administrative input.
that the Grievant's actions were unprecedented and inappropriate, they must be viewed
backdrop of administrative indifference. Thus, even though no student had ever received
for work study, before, there were no rules or guidelines precluding it. It should also be
other special education teachers had employed equally unorthodox strategies to assist other
in the past without administrative objection.
The District also does not credibly refute the fact that S.F. would not have been able
graduate without significant work study credits. There is no evidence to deny the Grievant's
contention that the plan to provide S.F. with the work study credits was the result of the
manifestation hearing. S.F. needed 7.5 credits in his senior year in order to graduate, but
signed up for 3, clearly demonstrating that the rest were to be earned through work study.
Grievant was aware that S.F.'s past academic history strongly indicated that he would not
academic classes, thus he built in a "fudge factor" to meet this contingency. This
scenario is not refuted by any evidence presented by the District. The District accuses
of lying at many points, but his story is internally consistent, credible and unrefuted by
witnesses. Also, in order to support the unreasonable length of the suspension, the District
exaggerates the Grievant's conduct and attempts to compound his "crime" by suggesting that
actions in requesting the false courses be added and credited by other staff made them
accomplices to his wrongdoing.
An arbitrator has a duty to modify discipline where it is excessive, unreasonable or
of an abuse of discretion. The record demonstrates that the penalty was unfair and, further,
disingenuous for the District to suggest that the Grievant acquiesced in the year long
imposed by the Board, when the hearing transcript reveals that only the concept of a
the length, was discussed by the Grievant. The cases cited by the District in support of its
inapposite and distinguishable. In Re Central Michigan State University, 101 LA 66 (1993)
involved falsification of records of multiple students where there were no special needs or
extenuating circumstances, unlike the instant case. More on point is Thomas Industries, Inc.,
LA 418, (1984), where the employee's honesty in admitting his actions and lack of
motive were considered mitigating factors by the arbitrator.
The discipline should be reduced for a number of reasons. The District's theory that
Grievant was motivated by a desire to get rid of the student lacks evidentiary support and is
inconsistent with the Grievant's efforts to prevent his expulsion the previous year. Further,
that had the student not graduated he would not have returned to school in the fall, so he
longer have been the Grievant's student regardless, which the Grievant knew. Also, the
a long history of lax enforcement of rules regarding grading and crediting as regards special
students. Arbitrators have mitigated punishment for more severe infractions than those here
reason. Further, the Board clearly discriminated in that it chose to overlook the serious
misrepresentations of Superintendent Dickert while imposing a one-year suspension on the
Finally, there is ample evidence that the actions of the Board were more based upon the
activities as a Union leader, than as a teacher. These factors support the argument that the
imposed was based on considerations other than the evidence, was too severe and should be
As a result of the Grievant's actions in attempting to alter the student's academic
District, subsequent to the Due Process hearing, issued a written reprimand and suspended
Grievant for one year without pay. The August 7, 2001 letter advising the Grievant of the
states as follows:
. . .
Pursuant to the direction of the Board of Education, you are
hereby reprimanded for engaging
in misconduct, immorality, neglect of duty and refusal to obey the rules and regulations of
This reprimand is based on your conduct
of preparing and submitting a document to the
Guidance Department which falsely indicated that a special education student ("S.F.") had
three courses for which S.F. had never enrolled or completed. By submitting the false
knew that the official transcripts of the Oconto Unified School District would be changed to
that S.F. had actually taken courses, completed courses and received credit for courses that
neither enrolled nor completed. Moreover, you involved other employees of the School
your actions such that they were unknowingly assisting you in the perpetration of an
It is also apparent that you assigned more credits for S.F.'s completion of work-study than
appropriate or in any way consistent with the number of credits assigned for such courses in
You claim that S.F. was not given full
credit for work-study in the first semester and that you
falsified documents in order to correct that mistake. Your explanation is unacceptable.
following appropriate or reasonable procedures to correct such alleged mistake, you chose to
false documents, lie to your co-workers and attempt to create false transcripts.
Your conduct was completely
unacceptable. Any teacher should know that it is inappropriate
to give a student credit for taking a course for which the student never enrolled or
Furthermore, the School District's official transcripts constitute official verification to the
universities, technical colleges, employers and any other person who requests such
the student has met the graduation requirements, completed all the courses indicated on the
transcripts, and had rightly earned a diploma from the School District. Your conduct shows
have no understanding of the importance of accurate transcripts.
Please be advised that the Board of
Education views your misconduct as an extremely serious
matter warranting extremely serious punishment. Your discipline includes this letter of
addition to the 12-month unpaid suspension from the employment with the Oconto Unified
District. Please be advised that the Board of Education expects to see no repeat of the type
conduct you have displayed in this matter. Any future violations of any school rules, acts of
misconduct/immorality or neglect of duty will result in additional disciplinary action against
to and including termination.
On behalf of the Board of Education, I would like to express
how deeply disappointed both
the Board and I are with your actions in this matter.
. . .
The infractions prompting the District's action may be summarized as 1) attempting to
academic record to reflect satisfactory completion of courses for which the student wasn't
2) lying to co-workers in order to make them unwitting accomplices in his scheme; and 3)
an excessive number of work study credits. In consequence, the Board of Education found
Grievant guilty of misconduct, immorality, neglect of duty and refusal to obey the rules and
regulations of the Board of Education, contrary to Article X of the collective bargaining
While conceding the Grievant's wrongful conduct, the Union maintains that his actions were
mitigated by a worthy motive and the fact that the rules regarding crediting for special
students were ill-defined and that the District was lax in their enforcement. The Union
maintains that there was a poor and biased investigation by the administration and that the
of the discipline was, in part, based on bias on the part of the Board of Education.
The one-year suspension is within the disciplinary authority of the District under the
of Article X, so long as it is supported by just cause. This is reflected in the framing of the
the parties, which specifically focuses on the level of discipline imposed. The District
however, that the just cause analysis applies to whether discipline is warranted and, if it is,
employer is then at liberty to determine the appropriate level of discipline. Under this view,
arbitrator's role is limited to determining whether there is just cause for any
discipline. If so, the
employer's discretion to fashion the punishment is virtually unfettered except in rare cases
there has been a clear abuse of that discretion. This view relegates the arbitrator to a role
that of an appellate court, which is frequently bound by standards of review to uphold lower
decisions if they may in any way be supported by the evidence, rather than conduct a trial
Civil courts operate under legal strictures not binding upon employers, however, giving rise
presumption on appeal that the defendant has had the full benefit of due process of law
impartial trier of fact. No such presumption applies in an employment setting. Where the
serves, in effect, as both prosecutor and judge, there is an inevitable blurring of lines raising
at least, as to the impartiality of the proceedings. This is exacerbated by the fact that the
is not limited beyond the language of the contract in making its determination as to the facts
case or in the imposition of penalty. Also, employers, it is to be hoped, rarely find
themselves in the
position of having to sit in judgment of their employees in misconduct matters and, therefore,
lack experience in quasi-judicial proceedings. This is merely a recognition of the reality
undertaking to discipline an employee, an employer may have a number of interests at stake
due process and few guideposts to direct its action. The just cause principle seeks to
concerns and, as such, permits the arbitrator to inquire, not only into the bare bones facts of
Grievant's conduct, but also into the propriety of the employer's response.
The Grievant's actions in modifying S.F.'s transcript to reflect credit for courses he
take and in awarding him an unusual number of credits for work study are a matter of record
not disputed by the Union. Further, at least as to the falsification of S.F.'s transcript, the
not contend that this was not serious misconduct, nor that discipline is not warranted. The
1, 2001 letter of discipline issued to the Grievant references both acts, but clearly prioritizes
falsification of the transcript in explaining the District's rationale for the suspension. Since
Grievant's conduct is undisputed, and is, at least in part, agreed by all, including the
to have been wrongful and deserving of some level of discipline, I find the first prong of the
just cause to issue discipline to be established.
I turn to the question of whether the degree of discipline issued was appropriate or
Many of the District's points are well taken. There is no question that the integrity of
are central to the District's mission, both to the students and the community. Falsification of
records does a disservice to everyone. The student whose records are altered is represented
a competence which he does not. Any other school or employer will have to rely on a
in making admission or hiring decisions. Other graduates of the District may have the
validity of their
credentials called into question. The District's reputation within the educational community
suffer. In short, the Grievant's actions are a very serious matter, whatever motivated them.
On the other hand, the Grievant's actions cannot be evaluated in a vacuum, but must
viewed within the context of the environment in which they were taken. The record reveals
Special Education Department at Oconto High School was allowed to, and expected to,
little administrative support or oversight and that the administration placed a high emphasis
improving the graduation rate of special education students. 2/ To that end, the Special
faculty developed "creative" strategies in order to ensure that their students obtained the
credits for graduation. 3/ Prior to S.F.'s graduation, these practices were never challenged
2/ In addition to the Grievant, Guidance
Counselor Lisa Miller-Allen, Special Education teacher Danielle
Sherman and IEP Coordinator Kim Ozak all testified that the Special Education Department
operated with little
administrative support. Unlike the regular faculty, special education teachers independently
developed the course
plans for their students, established their own curricula, determined the number of credits to
be earned for
individual courses and for work study and handled their own discipline problems.
Miller-Allen further testified that
the administration placed pressure on the faculty to increase the graduation rate due to the
District's high number
3/ Lisa Miller-Allen
testified regarding several students who were given multiple work study credits in the same
semester to make it possible for them to graduate, and/or who were given more credit for the
courses they took than
that provided in the District's course handbook. Danielle Sherman testified that Special
Education teachers would
tailor the curriculum of low functioning students to permit them to meet the District's
graduation requirements (i.e.,
a cognitively disabled student might receive an algebra credit for learning certain rudimentary
without ever actually studying algebra).
In addition, the Union introduced three
transcripts of students other than S.F. who graduated in the classes of
2000 or 2001 with credit deficiencies either in specific subject areas or in the aggregate
number of credits earned
under the District's established requirements.
Going into his senior year, S.F. had earned 16.5 credits toward the 24 needed for
leaving him 7.5 credits short. A review of his transcript reveals that in the previous three
had never had never been enrolled for more than 7 credits in any one year, nor had he
than 5.25. 4/ During his 11th grade year, he had enrolled for 5.5 credits
and earned 3.5. At a
manifestation meeting in March, 2000, S.F.'s mother expressed legitimate concern about the
likelihood of her son obtaining the necessary credits to graduate on time, especially if he was
attending school half days, and was given the impression that the difference would be made
through work study. 5/ In the Fall term of the 2000-2001 school year, when the Grievant
Family Leave, S.F. was enrolled for 2.5 credits, including 1 credit of work study. He failed
academic courses that term, thus he went into his final semester needing 6.5 credits to
January, 2001, he was enrolled for 4 credits for the Spring term, including 2.5 credits of
2.5 credits less than needed for graduation. Sometime in early 2001, S.F.'s mother had a
with Assistant Principal Todd Fischer regarding truancy issues. At that time, Fischer assured
if S.F. satisfactorily completed his coursework he would graduate on time, an obviously
statement. This was important to her because she feared that if he could not graduate on
would drop out and not complete high school. The reality of S.F.'s situation was discovered
Grievant just prior to graduation, at which time he made the fateful decision to alter the
academic record rather than seek to correct the crediting error from the first semester
4/ S.F. obtained 2.5 credits, including ½
work study credits, in summer school after his 10th grade year. Thus,
the actual number of credits he had earned during the regular school year was 14.0 over
three years, or an average
of 4.67 credits per year.
5/ In March, 2000, the District considered
expulsion of S.F. due to his behavioral problems. Since he was a
special education student, a manifestation meeting to determine if his behavior was linked to
problems was required. The meeting was attended by S.F. and his mother, as well as the
Grievant, Kim Ozak, Lisa
Miller-Allen, Assistant Principal Elaine Pulver, Special Education teacher Steve Soull,
Assistant Special Education
Director Ronald Kapp and Guidance Counselor Dave Tanski. At the meeting, S.F.'s
behavioral problems were
determined to be related to his emotional disability and an Individualized Education Plan was
developed for him
in lieu of expulsion, which only required him to attend school half days and limited his
interaction with other
students while there.
The picture that develops is of a Special Education department with a defined goal of
graduating the students enrolled in the program, but with virtually no guidelines as to how
to be accomplished, or to what degree educational standards were allowed to be
compromised to meet the stated goal. It is within this context that the Grievant's
actions must be
evaluated. It is noteworthy that none of the educators who testified at the hearing agreed
Grievant's actions in adding fabricated courses to S.F.'s transcript and he, himself, admitted
a serious error. Thus, it is clear that at some point a line was crossed into the realm of
behavior, but it is not nearly as stark or well demarcated a line as the District contends.
The District maintains that the degree of the Grievant's misconduct was more than
to merit the suspension. It emphasizes the serious nature of falsifying a student's record,
terms of the District's credibility and the impact on future potential employers or educational
institutions which would rely on the false transcript. The District also questions the
rationale for his action, arguing that the Grievant's goal was merely to graduate S.F. at any
thereby avoid the possibility of having him return to school, because he was a difficult
the Grievant didn't like. The District also cites to numerous arbitration awards wherein
of documents was held to warrant termination to support its position. It relies most heavily
Muskego-Norway School District, WERC Case 55, No. 54010, MA-9516 (Burns, 6/24/97)
In Re Central Michigan State University, 101 LA 66 (House, 1993) in support of its action.
There is no question as to the seriousness of the Grievant's actions. Nevertheless, as
above, those actions must be viewed in context and, in this case, the context was one of a
Education department which had a long history of "creatively" addressing the crediting
its students in order to help them graduate, and an administration content to not inquire too
into the why's and wherefore's as long as success was achieved. The District's explanation
Grievant's behavior is not credible in light of the testimony of the Grievant, S.F.'s mother
Assistant Principal Fischer that S.F. was preparing to drop out. If the Grievant had wanted
to get rid
of the student he need have done nothing more than assure him that he would not graduate.
I am inclined to accept the Grievant's explanation that his goal was to correct a crediting
the previous semester and chose what he perceived to be the path of least resistance to do it.
I do not find the arbitral precedents cited by the District to be on point.
involved an employee who falsified a medical report from his doctor in order to induce his
to give him an extended medical leave. Thus, the employee's motive was to fraudulently
contractual benefit to which he was not entitled. Here, the Grievant's motive was not to
something for himself, but to correct an error in order to provide to the student credits to
believed he was entitled. In Re Central Michigan State University involved a professor who
awarded passing grades to foreign students who had not done the coursework for his class.
on its face, this case appears similar, there are important distinctions. In Central Michigan,
were no extenuating circumstances mitigating the professor's actions, he simply gave grades
students who had not earned them. Here, the Grievant believed that S.F. had earned, and
to, sufficient credits for graduation. As the Special Education department was apparently
and operated at the time, that was his call to make. His error, and a serious one, was in the
he chose to
rectify the situation. Thus, this case has mitigating factors not present in either of the
by the District. Nonetheless, the Grievant's misconduct was of a nature that undercuts the
of the institution he serves as should have been obvious even in the prevailing environment.
it calls for discipline sufficient to impress upon him the gravity of his actions and dissuade
engaging in them in the future.
Based upon the record as a whole, therefore, and for the foregoing reasons, I hereby
The District did have just cause to suspend the Grievant without for misconduct.
the facts and circumstances, however, a 12-month unpaid suspension was unwarranted. The
suspension is hereby remitted to 6 months without pay and the District shall pay the Grievant
requisite back-pay along with any other attendant benefits for the period of the remittur.
The Arbitrator will retain jurisdiction for a period of 60 days in order to resolve any
surrounding implementation of the remedy.
Dated at Madison, Wisconsin, this 19th day of September, 2002.
John R. Emery, Arbitrator