Wausaukee School Appeals To State Supreme Court

Wausaukee School District will take their arguments to the Wisconsin Supreme Court in a case brought by the teacher’s union, Wisconsin Education Association Council (WEAC), on behalf of convicted child molester Kurt Kostelecky, a former teacher for the district.

On Thursday, May 10, the Third District Court of Appeals overturned a finding in favor of the school district that was handed down by Judge David Miron in Marinette County Circuit Court Branch I on June 9, 2011.

Appellate Court Judges in the case were from the District Four Court, headquartered at Madison, not District III, which is located in Wausau. They were judges Margaret J. Vergeront, Paul B. Higgenbotham and Brian W. Blanchard, who wrote the decision returning the case to Marinette County Circuit Court with an order to confirm the arbitrator’s decision in favor of the union.

That decision will now be appealed to the state Supreme Court. By unanimous vote following closed session discussion at a special meeting Monday, May 14, the board agreed to continue the legal battle, provided the State Supreme Court agrees to hear the case.

The issue involves a 2009 reduction in Kostelecky’s workload from 62.5 percent of a full time equivalent teaching position to 37.5 percent for the 2009-2010 school year, long before there was any complaint against him for the offenses to which he was later sentenced to prison.

Kostelecky, a part time technical education teacher, was issued a layoff notice for the 62.5 percent position he had held, but was offered a new contract for the 37.5 percent position.

He filed a grievance, asserting the reduction was disciplinary in nature, and an attempt to force him to resign without following the procedures for termination for cause contained in the union contract.

The district denied the grievance, maintaining the reduction in hours was part of ongoing attempts to reduce district costs. WEAC went to arbitration on Kostelecky’s behalf. The arbitrator ruled in favor of the union, and ordered the district to pay Kostelecky back salary for the months he did not work at the 62.5 percent job.

Then, in a totally unrelated issue, on Feb. 24, 2011, Kostelecky, who was 35 at the time, was charged with 11 felonies and one misdemeanor involving sexual encounters in his classroom with a female student who was a freshman at the time, and another who was 18 years old. The alleged victim was 17 years old and no longer a student at the Wausaukee school when the charges were filed. According to the criminal complaint, Kostelecky admitted to the encounters. He told authorities the students initiated the contact, and he “couldn’t say no.” He could have faced more than 350 years in prison and more than $1 million in fines if convicted on all counts.

On June 9, 2011, Judge David Miron, in Marinette Circuit, Branch I ruled that the arbitrator had overstepped her authority in deciding the case in Kostelecky’s favor and ruled there was no back pay due and the board was not required to restore him to the two-thirds time position.

Restoring Kostelecky to any teaching position at that time would have been difficult. The charges brought against him earlier that year were pending, and on Aug. 29, 2011 he was sentenced to 10 years in prison and six years on extended supervision on a felony charge of second degree sexual assault of a child. The remaining dozen charges were dismissed but were read into the record.

Nevertheless, the teacher’s union appealed Miron’s decision to the Court of Appeals, which has now ruled that the arbitrator’s decision should stand.

The court upheld the arbitrator’s decision that “the District’s position that budgetary and curriculum-based considerations compelled the partial layoff was not credible and that, instead, the District’s action was in fact motivated by a purpose not allowed under the collective bargaining agreement and carried out in bad faith.”

The decision upheld union arguments that the board’s action in reducing Kostelecky’s work assignment for the 2009-2010 school year was punitive in nature because he had been outspoken in opposing some board policies.

Board President Dave Kipp disagrees. He says it was part of ongoing cost cutting attempts that had begun in about 2005 while the district struggled to avoid dissolution for financial reasons. He was not on the board when cutbacks in the vocational education program at the school started in 2005, but by the time he was elected in April of 2008 Kostelecky was the only teacher left in the vocational curriculum.

He said when they voted to reduce the vocational program to part-time they had no idea Kostelecky was involved in any misbehavior, but were faced with the need to continue cutting costs. He maintains it is the board’s responsibility to determine what the school’s curriculum will and will not include.

“I am extremely disappointed that WEAC proceeded last year with their appeal, knowing that he was a convicted sex offender,” Kipp added.

He confirmed reports that the district to date has spent about $64,000 on related attorney fees, and more will be required if the Supreme Court decides to hear their case.

In a statement issued Friday, May 18, WEAC/teacher’s union spokesman Fred Andrist of Northern Tier UniServ declared:

“The Wausaukee School Board’s decision to continue pouring more taxpayer money - on top of the $64,000 it estimates it’s already spent - to challenge a ruling from a 2010 case is an irresponsible use of taxpayer dollars.

“The board could have saved the district tens of thousands in legal fees by accepting a settlement offered by the Union early on - but the board refused to acknowledge any wrongdoing despite the findings of an arbitrator that were upheld...”

“Those legal fees could have been better used to educate Wausaukee students,” Andrist said.

(Twice in the statement Andrist incorrectly said the arbitrator’s decision was upheld by circuit court. The arbitrator’s decision in fact was reversed in Marinette County Circuit Court and upheld by the Appeals Court in Madison.)

The union statement went on, “...the district violated a legal contract. All along, this case has been about ensuring reductions are administered in a fair and legal manner - and not used as a chance to retaliate against certain employees.”

In a news release issued this week, the Education Action Group declares, “Not only is the union wasting taxpayers’ money � probably enough to pay the salary and benefits of a beginning teacher � it’s also frittering away WEAC members’ dues dollars on a pointless lawsuit.

“The Kostelecky case is a perfect example of how teacher unions cause dissension within a community and waste school dollars on issues that don’t benefit children in the least. Regardless, Wausaukee taxpayers can’t be too impressed with the union’s wasteful behavior, and we suspect rank-and-file WEAC members aren’t impressed,” the statement concludes.

The Education Action Group Foundation, Inc., is a national organization headquartered in Michigan. It describes itself as “a nonpartisan nonprofit organization with the goal of promoting sensible education reform and exposing those with a vested interest in maintaining the status quo.”

Kyle Olson, Publisher, Founder & CEO, is publisher of EAGnews.org, a news service dedicated to education reform and school spending research, reporting, analysis and commentary. He currently appears in a weekly “Fox & Friends” segment called “The Trouble with Schools” on the Fox News Channel.

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