Court upholds teacher’s termination for viewing pornography

Listen to this article

Viewing pornography at school is “immoral” behavior warranting a teacher’s dismissal, according to an appellate court.

Even though no students were present, the Wisconsin Court of Appeals held that strong public policy permitted the Cedarburg Board of Education to terminate long-time teacher Robert Zellner for viewing adult images on a school computer.

Zellner was a Cedarburg teacher with 11 years tenure, who, according to the arbitrator’s findings, viewed adult images on a school’s computer for one minute and seven seconds, despite signing a computer policy that prohibited such conduct.

The Board of Education terminated Zellner, but he was reinstated by the arbitrator, who reduced his discipline to a letter of reprimand.

The board sought judicial review, and Ozaukee County Circuit Court Judge Joseph D. McCormack reversed the arbitration award, and upheld the board’s termination.

The Wisconsin Court of Appeals certified the case to the state Supreme Court, which declined the case. On return from the Supreme Court, the Court of Appeals affirmed the circuit court’s reversal of the award, in an opinion by Judge Harry G. Snyder.

As a general matter, a court’s authority to review an arbitrator’s award is very limited.

However, an award may be vacated if it violates “strong public policy.”

At issue was whether the conduct was “immoral,” within the meaning of sec. 115.31(2).

That statute permits a board of education to terminate a teacher for “conduct or behavior that is contrary to commonly accepted moral or ethical standards and that endangers the health, safety, welfare or education of any pupil.”

Snyder wrote, “We agree that protection of children and the promotion of a safe educational environment is a clear and compelling public policy.”

Zellner and the teacher’s union argued that the standard for termination was not met, because it was adult pornography, and no students were present.

However, the court disagreed.

Finding that the arbitrator’s award “‘completely ignores the stated policy’ of Wis. Stat. sec. 115.31,” Snyder wrote, “the public policy concerns as embodied in the statute and apparently disregarded by the arbitrator prohibit the award in this case.”

Analysis

Fortunately, this opinion was not recommended for publication, so it will not become precedent for other cases.

While it may be inappropriate for a teacher to use a school computer to view pornography, the plain language of sec. 115.31(1)(c) does not allow it to be grounds for termination.

The statute defines “immoral conduct” as “conduct or behavior that is contrary to commonly accepted moral or ethical standards and that endangers the health, safety, welfare or education of any pupil (emphasis added).”

It may be debatable whether viewing adult pornography (as opposed to child pornography) is “contrary to commonly accepted moral or ethical standards.”

I would suggest it is not, but others will reasonably disagree.

However, it cannot reasonably be argued that such conduct, when no students are present, “endangers the health, safety, welfare or education of any pupil.”

Were the “and” in the statute an “or,” the court’s opinion would arguably be correct.

Because it is an “and,” though, and viewing pornography while no students are present cannot be deemed to endanger any pupil’s welfare, Zellner’s conduct fails to qualify as “immoral conduct” within the meaning of the statute.

Perhaps some other statute or the contract itself provides a basis for vacating the arbitrator’s reinstatement of Zellner, but sec. 115.31 (1)(c) does not.

In an interview with Wisconsin Law Journal, Attorney Steven B. Rynecki, of von Briesen & Roper, SC, in Milwaukee, who represented the school board, noted that, before the arbitrator, the parties did not even address sec. 115.31.

Instead, Rynecki argued that just cause existed for termination, based on the risk that a student could access the pornography as a result of Zellner’s placing it on the computer.

Noting that sec. 948.11 makes it a felony to expose a child to pornography, Rynecki’s position before the arbitrator was that Zellner walked such a close line to criminal activity by making it possible for students to access the materials, that just cause for termination existed.

Should the case go before the Supreme Court, Rynecki said he expected the board is more likely to prevail on this basis.

Jina Jonen, an attorney for WEAC, who represented Zellner, was also troubled by the court’s basing its decision on a ground the arbitrator never considered.

Jonen said, “No one raised the statute at arbitration, because it doesn’t apply. To expect arbitrators to be aware of every policy and statute that might be relevant would be overwhelming.”

Also, in spite of the fact that the decision was not recommended for publication, Jonen said she fears it will open the door to more court challenges to arbitration decisions, making labor disputes more lengthy and expensive for everyone, including the taxpayers.