D.J. Tice: Why weren't those teachers fired? Well ...

  • Article by: D.J. TICE , Star Tribune
  • Updated: August 23, 2009 - 10:33 AM

The disciplinary process for public workers is a thicket that can thwart a proper response.

Public employees are not easy to fire -- not impossible to fire, but not easy. That's a lesson to be learned from the recent firestorm over two teachers' cruel verbal harassment of a student in the Anoka-Hennepin School District.

If you missed the story, the district has paid a $25,000 settlement to a former student who was repeatedly teased by teachers who thought, mistakenly, that he was gay. They joked about his having a thing for older men and liking to wear women's clothes, and more. The teachers have suffered only trivial consequences.

The question on thousands of minds after the story broke -- Why weren't these bullies at the blackboard dismissed? -- found its way into a front-page Star Tribune story last week. And Mary Olson, spokeswoman for the district, sounded weary when I called to check a few legal details. She'd been fielding relentless media calls on the subject, feeling a little bullied herself, and plaintively admitted that she and others in district administration still felt they weren't being fairly or fully heard when they tried to explain the problem -- how protections of employee rights in state law and arbitration procedures discourage administrators from even trying to dismiss teachers.

Olson perked up a bit when I told her that I've heard their frustrated story before. Quite a few years ago, when I was at the St. Paul Pioneer Press, a similar brief outbreak of public outrage followed when the police chief tried but failed to terminate a sworn officer who had been convicted of sexually molesting a baby sitter.

How could that be? I produced a lengthy, multipart report on disciplinary processes in public employment that set no readership records, I'm sure -- there wasn't a word about Brett Favre in it.

Anyway, it seems little ha changed.

Here's the short version: Through a combination of union contracts, state laws and Civil Service regulations, most public workers in Minnesota are covered by a system that allows them to appeal disciplinary actions to binding arbitration. And arbitrators seldom uphold terminations except in extreme cases -- or cases where management has compiled a record of failed efforts to improve an employee's performance.

Some who work within the system believe its resistance to firings is a natural response to the incentives arbitrators face. Typically, an arbitrator is chosen either by mutual agreement between an agency and a union, or by a process of elimination, with both managers and labor representatives scratching arbitrators from a short list until only one remains. The upshot is that getting assigned to cases as an arbitrator -- and thus earning income -- depends on being at least comparatively acceptable to both management and unions.

This may lead arbitrators to split differences whenever reasonably possible. Reduced discipline, at any rate, is a common outcome.

The result, as in the Anoka-Hennepin case, may be that public managers (and their lawyers) become hesitant to attempt firings or other serious sanctions for fear that they will succeed only in squandering time and money.

As it happens, several other school-related stories in recent weeks have revealed the pattern that might make administrators feel that way. In one, a principal in Eagan was fired for requiring a 6-year-old to retrieve paper towels he'd stuffed into an unused toilet, but an arbitrator reduced the punishment to a suspension. In another, a janitor in New Prague was sacked for moving some dog droppings from the school lawn, where a teacher's dog had deposited them, to the teacher's desk. An arbitrator again reduced the penalty to a suspension.

Frankly, I don't find either of those misdeeds as difficult to understand or forgive as the Anoka-Hennepin mess. But it's not hard to see why public managers might have doubts about their chances of making a termination stick.

Meanwhile, an apparent exception to the pattern also surfaced last week, with an arbitrator upholding the firing of a St. Cloud principal who had abused sick leave and exaggerated work hours despite previous warnings. But that case, while confirming the importance of a prior record, may also point to the underlying trouble with this system where public service is concerned:

Appeal through arbitration is a process that grew out of private sector labor-management relations, but now applies much more widely in the heavily unionized public sphere. It is reasonably well designed to settle disputes between private parties such as an organization and its employee.

But the system is ill-equipped to uphold the broader public's need for an exceptional level of confidence in people like cops and teachers who are given unique positions of trust, with special control and authority over others. The public is not in the room when these cases are heard; it is not a party to these disputes. But it has a large stake.

This mismatch of private and public concerns could help explain why it seems odd, but is understandable, that our public disciplinary system can deal severely with a principal who plays hooky using sick leave (a direct offense against his employer) while being lenient with teachers who mistreat a student -- which one imagines may seem rather more worrisome to the average citizen.

It isn't clear that this system can fully recognize the specialness of some jobs.

D.J. Tice is at dtice@startribune.com.

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