How the custodian lost (but won)…Part 3

Part 3

The discipline for the beloved janitor who lost his temper and banged a 15 year old skater’s head against a wrought iron gate was a 2 week suspension without pay. This was pretty severe for a permanent public employee. But school employees carry a special responsibility so it seemed to fit from my perspective. It was also a good idea to show the parents that they didn’t need to sue the district since it was taking a firm stand.

Support staff have pretty strong rights. Not as strong as tenure which is an actual property right to the job. But the process to impose a suspension without pay was just about the same as a dismissal. A ton of paperwork was involved that all had to be developed in compliance with policy and law, and delivered to Fritz on a strict timeline. The strategy recommended by the attorney for the district, Irving, was to go for a 2 week suspension because that would give the board the political leeway to reduce it to 1 week. This is exactly what happened. But this wasn’t the end of the story.

The janitor’s union provided a perfunctory kind of representation during the suspension process because they understood the seriousness of assault on a minor by one of their members. But the grievance came for an unexpected issue.

“Bill,” said Pete, the union president. “We think the district should pay for the cost of the defense attorney Fritz had to hire for his police case.”

“What?” I responded. “You have to be kidding. The guy gives a kid a lump on the forehead and you want the district to pay for his lawyer? No way.”

Pete said, “He wouldn’t even need a lawyer if he hadn’t come to work that day. But since he came to work, he got into a bad situation. The district should pay for his defense.”

“I don’t see that requirement in the contract,” responded. “You know, Pete, a grievance is basically a process to determine what the contract means.”

“I know that,” said Pete. Page 42 says, “The district shall offer all unit members appropriate training and support to become continuously more effective in the performance of their jobs per the job descriptions.”

“Well, that means ongoing job training, not hiring a lawyer if you smack a kid.”

“We think it does mean hiring a lawyer for support. The word support means just that. You have to support our members, just like his school feels you should.”

This meant that the entire grievance process had to move systematically forward. For each step of the 4 part process, I wrote a brief response of “Grievance denied.” This took the process from step one through step 4 and on to advisory arbitration and both union and district paying for an administrative law judge. The advisory part meant that the local school board only had to take the findings of the judge as ‘advice’, and could still make its own decision.

It was 4 months later when the hearing actually took place. These administrative law judges were busy with other cases all over the state. So we had to kind of get in line.

Our attorney helped prepare me and the other witnesses on our side for the hearing. There was not a great chance of losing this hearing but if we did, the findings would have far reaching consequences for every school district in the state. A loss here would establish the principle that the districts were responsible for providing a defense attorney for an employee criminal act when committed on the job. So Irving, out attorney made certain we knew this and would be on our toes.

Irving also uttered the words I have not forgotten during the preparation time. “These hearings are kind of like ‘trial by ambush.’ There is no requirement to follow the established procedures of a criminal or civil trial. So you have to be ready for anything.”

When Irving showed up early in the day, he spent time with me arranging the board room for the hearing. A table and chair for the law judge up front, a table and chair for the witnesses to testify, tables for district and union representation, and chairs for witnesses to wait their turns to testify.

The union representative was not Pete, but an experienced negotiator, professional witness and hearing litigator. He was smart and aggressive. For some reason the union got to call witnesses first. The principal came forward and testified to the wonderment of Fritz. Next other custodians and teachers were called to tell about all the great things Fritz did on a daily basis. I felt like the district case was getting harder and harder to win based on the kind of guy Fritz was, not based on the fact that he lost his temper and banged a kids head on the bars of a gate.

Finally, the union representative called Fritz himself to the witness table. Fritz was dressed in neat and clean work clothes. No fake suit or pretense at trial style change of identity. Answering the questions the representative posed for him, we all learned that he had been born poor in post war Germany and immigrated legally to the USA. His parents worked hard and he worked hard as the tried to integrate and finally achieved their life long dreams of becoming American citizens. If a marching band playing “Grand Old Flag” had entered the room, I wouldn’t have been surprised.

But then it happened. In the words of one of the secretaries whose husband sold cars for a living, Fritz’s team violated one of the oldest rules in the book: ‘Don’t sell past the close.’

But the representative and Fritz did sell past the close. He asked Fritz to tell why he felt the need to ‘restrain’ the high schooler? Fritz calmly stared at him and said, “I did it to protect the nursing mothers.”

Every face in the room looked up in surprise.

“Tell us more, sir,” said the union rep.

“Well,” said Fritz. “There were half a dozen young mothers sitting on the benches in front of the school nursing their babies, and I was concerned for their safety. This young hoodlum might have done something to endanger them.”

The gasp from the district folks was audible. And after a second or two, the gasp turned to a low chuckle rippling through the witnesses and representatives. Everyone knew there were no nursing mothers hanging around on the benches in front of the school.

“So you were not only protecting the school property,” said the union representative, “but you were also protecting the mothers who were present and their innocent nursing babies?”

“Yes,’ replied Fritz. “I thought it was the right thing to do.”

The administrative law judge looked surprised as well, and this was not a good thing for Fritz. My turn to testify came soon thereafter and Irving asked me to speak about what I knew. I shared that Fritz was an excellent janitor who made a mistake. He had received discipline from the district but now I understood he faced a criminal charge. While the DA had not decided to prosecute yet, Fritz had retained an attorney and needed to pay him. I shared that the district was not obligated to provide an attorney for employees who commit crimes at work and there was nothing in the collective bargaining agreement that required this. I also shared that the story about the nursing mothers was obviously ridiculous and that throughout the investigation of this incident, nothing similar to this information had come out. In fact no one in the room, I suspected, other than Fritz and his representative, had heard of it before.

Irving was able to exploit the breastfeeding story multiple ways throughout the hearing in ways that made the other team look like lying fools. And it seemed they were. This obviously fake story was meant to help their case by further proving what a great guy Fritz was. But it unfortunately for Fritz, it proved he was a liar and completely undid his case.

We didn’t learn the outcome of the hearing for 2 more months since there was always a backlog of cases and there were too few administrative law judges to hear them. In any case, I won that case handily. There was absolutely no requirement for the district to pay for the attorney for an employee who was accused of committing a crime while on the job. But once again, it felt like winning the battle became another instance at losing the war of staff and faculty opinion. Fritz was the hero to his school colleagues, no matter how much he lied. Disciplining Fritz put me at odds with a school in ways more serious than appearing to be a yearbook salesman. At around the same time, the DA decided he wouldn’t hear the case. Fritz and his entire school community were thrilled. Everyone who testified for Fritz was thanked and the school held a little party with coffee and Streusel to honor Fritz. A couple of board members also attended and let Fritz know they really admired him even though they voted to suspend him. They had to do this because of the child abuse laws, not because they really believed it for a nasty kid like that skater.

“That punk is probably going to end up in prison where he belongs,” concluded one of the board members. “We need to get those hoodlums out of here.”

It was around this period that I started to think, “Maybe this being a personnel guy isn’t such a great job.”