School officials know it isn’t easy to dismiss a problem employee if a public union is involved.
The strange case of the St. Paul schools’ Phantom of the Boys’ Room provides the public with its latest glimpse into the complex, shadowed world of public-employee discipline.
Understanding a bit more about the tangled obstacles supervisors in schools, police departments and other public agencies confront when trying to discipline or fire problem employees can sometimes shed light on situations that seem mystifying.
Longtime custodian Walter J. Happel resigned last winter from his job at St. Paul’s Monroe Elementary. He has been charged criminally with multiple counts of sexual misconduct involving minors.
Happel’s alleged offenses include following students into bathrooms and spying on them, exposing his genitals, and slapping one boy’s buttocks while delivering a crude warning about what sagging pants can lead to in prison.
Earlier this month, two former administrators at the school were charged with misdemeanors for failing to report the butt-slapping incident to police.
Happel had faced little discipline from the district, even though officials had fielded complaints about his behavior over a period of years. There had been a written “reprimand” a decade ago at another school, according to the district. And there was another reprimand two years ago, according to the criminal complaint against the administrators, but it was “removed … as part of a grievance settlement.”
St. Paul police even looked into some of the complaints about Happel in 2012, after they’d been called by one mother dissatisfied with the school’s response. But nothing came of that, either.
Why wasn’t more forceful action taken to intervene with this apparently troubled janitor and protect kids? Or, as a frustrated parent put it at a public meeting in March, “What system failed [in order] to allow this guy to continue being around kids?”
Frankly, it is hard to be sure. I asked the district for details on any other unsuccessful efforts to discipline Happel, but was advised that such information would not be public under state law.
What’s clear is that the background for a situation like this is a disciplinary appeal system — used especially widely in the public sector — that makes taking a firm hand with misbehaving employees more difficult than it sounds.
Basically, nearly anywhere workers are covered by union contracts — and that includes most government workers — the employees and their unions can challenge any discipline imposed by filing a grievance. This sets in motion a number of procedural steps that can be pressed all the way to binding arbitration.
In arbitration cases, the two sides typically select an arbitrator from a list provided by the state Bureau of Mediation Services. The arbitrator, after hearing both sides’ arguments, makes the final disciplinary decision.
It is not uncommon for management to prevail in arbitration and succeed in penalizing or firing an employee. But it’s also far from unusual for an arbitrator to overturn managers’ decisions, in whole or in part, sometimes simply because the arbitrator deems the discipline imposed too harsh under the circumstances.
Consider a recent and almost uncannily apt case in point. In June, an arbitrator rejected the Ely, Minn., school district’s attempt to fire a longtime custodian — for sexual harassment.
(We know about this case because final arbitration awards are made public on the bureau’s website — unless no discipline at all is upheld. In those instances, state law, at least as recently interpreted, keeps the whole thing secret.)
Ely’s wayward custodian had displayed, over a period of years, a lousy sense of boundaries and recalcitrance about following orders to change his ways. Students and teachers alike had received unwanted hugs or other touches, along with flirtatious remarks they found discomforting. The custodian’s nickname around the school was “Creepy,” according to the arbitrator’s report.
Individually, none of the Ely custodian’s transgressions seem especially grave. But after numerous failed attempts to persuade him to keep his hands and flirtations to himself — efforts that included reprimands and a suspension — his bosses had had enough. The full Ely school board took up the matter, discussed the custodian’s record for two hours and unanimously voted to terminate him.
But last month an arbitrator rejected that punishment as too severe and reinstated Ely’s “creepy” custodian after a 90-day suspension.
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