Arbitrator’s bill in porn-watching teacher case: $48,600

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – Final bill: $24,315.

That’s how much taxpayers in the Middleton-Cross Plains Area School District paid for the services of Karen Mawhinney, the arbitrator who ordered the reinstatement of a seventh-grade science teacher fired for viewing multiple pornographic images and videos at school.

The total bill was $48,600, split between the school district and the Middleton Education Association, the teachers union that represented Andrew Harris in what arbitration experts, including Mawhinney, described as an “extraordinary” process.

Wisconsin Reporter sought and obtained the billing statement, which includes a charge of $31,000 – at $1,000 per day – for the preparation of the 60-page decision, issued in 2012. Mawhinney charged $16,300 for a combined 17 days of hearings, although four occasions were half days. And the arbitrator billed the parties $1,330 for mileage – for 19 days of travel at 140 miles per day, using the Internal Revenue Service rate of 50 cents per mile.

Peter Davis, chief legal counsel, for the Wisconsin Employment Relations Commission, called the arbitration process in the Harris case “extraordinary” in its duration.

“I cannot recall any case where a hearing lasted that long,” Davis told Wisconsin Reporter. “The typical arbitration even for a termination takes a day or less to hear. Normally it takes a day to hear it, a day to think about it and a day to write it up.”

And, correspondingly, the bill was much higher than the typical arbitration case.

But Mawhinney tells Wisconsin Reporter the Harris matter was no typical arbitration case. The veteran arbitrator called it a “once-in-a-lifetime type of thing.”

“Most of our arbitration takes a day or two,” she said. “Because this involved a lot of people, it did take an extra amount of time.

“I worked for 20 years for WERC and I never had a case that went over seven days. This was really extraordinary.”

Mawhinney worked for WERC between 1987 and 2008, according to her biographical sketch on the agency’s website. She has been in private practice serving as mediator, arbitrator and hearing examiner ever since. She has mediated and arbitrated “hundreds of disputes” in the public and private sectors and has issued more than 250 awards covering a broad range of issues, according to her resume. And she has received more than 700 joint requests from labor and management for mediation or arbitration services through WERC.

But plenty of people in the Middleton-Cross Plains School District will tell you Mawhinney got the Harris case wrong.

Harris, who taught at Glacier Creek Middle School for 17 years, was found in 2009 to have viewed scores of pornographic and sexually inappropriate images on his computer at school over a 14-month period.

Mawhinney agreed with the Middleton Education Association, the teachers union, that Harris had been treated unfairly. Her decision was upheld by a judge in Dane County Circuit Court and by the District IV Court of Appeals in Madison. The court agreed the district’s decision to fire Harris was “undermined” by its decision not to “terminate the employment of other teachers who also viewed explicit materials in school or on campus.” Several employees received suspensions or reprimands.

Mawhinney’s report stated Harris was disparately treated, but the district’s investigation found that Harris’ offenses were much more severe than the other district employees. A review of the investigation, the exhibits and court case files by Wisconsin Reporter concurs with the district’s findings.

The arbitrator ruled that the district must reinstate Harris and that it must pay him nearly $200,000 in back pay.

On Thursday, Harris returned to the classroom after four years away, teaching seventh-grade science but at the district’s other middle school, Kromrey Middle School. Several parents expressed outrage, and some asked that their children be transferred to a study hall.

Harris was back at school Wednesday, but not teaching science. He was assisting his students with a Youth Frontiers Courage Retreat, focusing on anti-bullying and respect for people, according to district spokesman Perry Hibner. The goal of the retreat is to “build positive communities where students thrive socially, emotionally and academically,” according to the organization’s website.

On Tuesday, Gov. Scott Walker urged state schools Superintendent Tony Evers to revoke Harris’ teachers’ license.

“After hearing from concerned parents, I am asking you to act efficiently in your investigation into the actions of Mr. Harris and to initiate revocation proceedings,” Walker wrote in a letter to Evers.

Walker took aim at the arbitrator’s ruling.

“The arbitration process afforded to Mr. Harris failed the school district and the students,” the governor wrote. “It has taken both a financial and emotional toll on the district. Cases, such as this one, are a good example of why our reforms are necessary.”

Mawhinney declined to speak further about her 2012 ruling.

District taxpayers have spent $627,000 in legal fees trying unsuccessfully to have the decision overturned in the courts, according to district officials. The state Supreme Court earlier this month declined to hear the case.

Still, some have asked whether the school district has learned from the lengthy and expensive legal lesson. Middleton-Cross Plains is one of just a few districts in the state that has continued to engage in collective-bargaining with its union, agreeing to a contract that includes the same grievance arbitration made illegal through Walker’s public sector-collective bargaining reforms known as Act 10.

Now the union wants another contract after the existing agreement concludes this year, even as the state Supreme Court prepares to rule on the constitutionality of Act 10.

Walker stressed that point in his letter to Evers.

“Since taking office, I have worked to put in place reforms giving local school districts the tools they need to hire and fire teachers based on merit, performance, and professional conduct. With the passage of 2011 Wisconsin Act 10, schools now have the ability to move away from the old contracts, which prevented them from doing so,” the governor wrote.

Contact M.D. Kittle at mkittle@watchdog.org

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