Poor Robert Zellner. The Cedarburg high school teacher made the mistake of going to work on a Sunday and looking at pornography for 67 seconds on his school computer. It was not child pornography, and there were no students at school at the time. Yet Zellner was fired for this by the Cedarburg school board. After an arbitrator threw out the firing last week, the board voted 7-0 to go to court to fight the ruling.
The arbitrator’s ruling includes many details not reported by the Milwaukee Journal Sentinel, which suggest that Zellner is the unfortunate victim of a witch hunt.
No one disputes that Zellner was an outstanding teacher. He had worked for more than 11 years in the district prior to this accusation, had “an unblemished work record and has positive evaluations that stressed he had excellent job knowledge, shared his time freely with students and colleagues, and… his teaching style was creative, motivated and engaging.” The school district offered no rebuttal to this description presented by union representatives.
Zellner had been a union president from 2003-2005. The union took a vote of no confidence against Cedarburg Superintendent Daryl Herrick and opposed some of his controversial decisions. Was Herrick angry at Zellner? The arbitrator’s ruling suggests that Herrick stacked the deck against Zellner in the information presented to the school board.
Cedarburg High School had numerous problems of “pop-up” materials on its computers and 62 work orders to fix the computers, including seven involving pornography. But only in the case of Zellner did the district investigate to see whether he was accessing pornography. “Why was [Zellner] singled out and why were there other instances ignored by the district?” the arbitrator asked.
Zellner was accused of having photos of bikini-clad students on his computer, from a school trip to Hawaii. But Herrick did not inform the school board that Zellner had hundreds of pictures from the trip on his computer and was creating a CD for students and parents. The arbitrator called the use of this information against Zellner “inflammatory” and noted evidence presented that similar photos of bikini-clad students have appeared in the school yearbook.
The district claimed it had a zero-tolerance policy on using school computers for non-work-related material. But other teachers were actually doing this during class time (something Zellner was never accused of doing), yet no action was taken against them. Nor was there any investigation of another employee who twice had pornography on her computer.
Zellner was asked to resign based on the 67-second viewing of pornography. Later, the district found one more example of him viewing adult pornography for 18 minutes. These two examples, the district’s own expert testified, did not prove an addiction to pornography. There is no evidence that a simple warning to Zellner wouldn’t have induced him to change his behavior, the arbitrator noted.
Herrick claimed that Zellner admitted repeatedly viewing pornography, which Zellner denies, and which remains unproved. Herrick made numerous accusations against Zellner and “there is no way to determine what, if any, impact these unsubstantiated claims had upon the school board members,” the arbitrator noted.
Zellner requested a closed meeting to consider whether he should be fired, and the school board refused. School board President John Pendargast declared that Zellner was guilty of “immoral” actions.
This provided plenty of fodder for the media. There have been some 15 articles in the Journal Sentinel alone, several with pictures of Zellner. Columnist Mike Nichols did a column supporting Zellner’s firing. Even after the arbitrator’s detailed, damning ruling, the JS editorialized that Zellner deserves more than a reprimand — “an unpaid suspension comes to mind.”
Just how much does Zellner need to be humiliated for the sin of briefly viewing pornography? Can he even go to the store to buy milk nowadays without having people talk behind his back? He publicly apologized for this behavior at the school board meeting. What more can he do?
We live in a society awash in sexual images generated by movies, TV and especially the Internet. Pornography is a $12 billion industry in America, with an estimated 500 million films rented each year. Lots of people are looking at it. Should they all be fired from their jobs? Should all teachers sign a pledge that they’ve never looked at pornography?
The Cedarburg school board’s appeal of the arbitrator’s decision will go nowhere because the evidence against them is overwhelming. The district could end up paying back pay plus interest to Zellner, adding to a legal bill that is already the highest among any district in Ozaukee County, according to the Journal Sentinel.
But the appeal will further splash Zellner’s name in the press, branding him with the modern equivalent of a scarlet letter for making a mistake that had absolutely no educational consequences. This is a mean-spirited, un-American witch hunt that should appall people of all political persuasions.
Did the Lawyers Blow the Mark Green Case?
After the Elections Board ruled that Mark Green couldn’t transfer some $467,000 in federal campaign dollars to his state gubernatorial effort, Madison-based lawyer and election law expert Mike Wittenwyler predicted that the courts would overturn the ruling. Whoops, they didn’t.
Wittenwyler, who criticized the Elections Board for using a “double standard” against Green, will no longer talk to the media on this issue, citing the fact that his firm represents a bipartisan list of clients.
In the wake of the McCain Feingold law and other changes, elections law has become as complex as tax law, says an attorney who is an expert in the field but who declined to speak on the record. The attorney estimated that just a handful of lawyers in the state actually understand elections law and suggested that the briefs by both the Department of Justice (representing the State Elections Board) and Milwaukee attorney Daniel Kelly (representing Green) were weak. “They were both confused. They didn’t get the law right.”
The weakness of the briefs, the lawyer theorized, may have led Circuit Court Judge Richard G. Neiss astray in his decision.
It’s all Monday morning, er, Monday afternoon quarterbacking by an anonymous attorney, but it may help explain why all of the articles and political spinning and blogging (lord, there’s been a lot of it) is so confusing. Maybe there’s nobody out there who actually understands the law. That might just include yours truly, who sided with those saying Green broke the law.
In the meantime, as the Department of Justice brief implied, it may not matter. “It is fair to presume that Green will spend all [his] money leading up to the November election,” the brief suggested. “At that point, there would be no funds left for Green to divest.… It would be naive to think that Green will set aside approximately $500,000 to comply with the board’s order if [he] is ultimately ordered to do so.”
So Green will spend the money anyway. And Democratic ads will attack him for it, as they would have anyway. And Republican ads will attack Jim Doyle for conspiring with the Elections Board to find Green in violation of the law. And voters will be left thoroughly confused.
If ever there was a need for a magisterial, bipartisan Wisconsin Supreme Court decision to help the people understand and clarify the law for future candidates, this would be the time.
The Long View
It’s hard to imagine at this point in the vicious campaign for governor, but both Jim Doyle and Mark Green were idealistic young men who sacrificed for their beliefs and went into politics to make a difference. The October issue of Milwaukee Magazine offers an in-depth look at Doyle and Green, their personalities, their issues and campaigns. Writer Erik Gunn interviewed both candidates and offers a balanced look at the race. Send me a copy.
