Recently in Ohio Category

This was the last of three October hearing sessions. The next sessions are scheduled for November 17-19.

The highlight of today was testimony by Taylor Strack, a student in Freshwater’s class, who corroborated Zach Dennis’ testimony about how the students’ arms were positioned and what stopped the shock that Freshwater was supplying via the Tesla coil.

Taylor Strack Direct testimony

Taylor Strack was a student in the 8^th grade science class at the time the alleged burning of Zachary Dennis’ arm occurred, and she saw the procedure followed. That came out in cross examination; first is her direct testimony by R. Kelly Hamilton, Freshwater’s attorney.

With all precincts reporting, the two new Board of Education members are Paula Barone and Steve Thompson, who finished in what was nearly a dead heat, 3,476 votes for Barone and 3,477 votes for Thompson, or 25% each. The two incumbents, Watson (19.6%) and Hughes (7.4%) , came in 4^th and 5^th, respectively, with Robert Kirk in third place with 23%.

It’s a little hard to interpret this outcome. On the one hand, the two incumbents (Watson and Hughes) were defeated, but on the other hand the ‘ticket’ of Thompson and Kirk, who closely associated themselves in the campaign, was split. From the point of view of the handling of the Freshwater affair the results are inconclusive. Barone was perceived as supporting the Board’s handling, and in fact her son Joe testified for the Board in the administrative hearing and Paula addressed a Board of Education meeting about it last year. So I can’t clearly interpret it in either direction if it’s taken as a referendum on the issue of Freshwater’s situation. If one adds what might be crudely interpreted as the pro- vs. anti-Freshwater vote (Thompson+Kirk vs Barone+Watson+Hughes), the split is 48% pro to 52% anti. That’s torturing the data a fair amount–“pro” and “anti” are crude designations and there were other issues in the campaign. But it’s suggestive of the kind of split there is in the community.

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Mt. Vernon voters elect two members of the five-member Board of Education tomorrow, and I’ll be very interested to see the results. Two incumbents, current Board President Ian Watson and Steve Hughes, are running, as are Paula Barone, a former teacher and Mt. Vernon City Council member; Steve Thompson, a vice president in a major local company; and Robert Kirk, an administrator at the Knox County Career Center (formerly Joint Vocational School). To the extent that the election is interpreted as a referendum on the handling of the Freshwater situation, Watson, Hughes, and Barone are generally perceived as supporting the current Board’s actions and Thompson and Kirk are seen as opposing the current Board’s handling of the affair.

The main publicly debated issue in the election is finances, with Thompson and Kirk charging fiscal mismanagement on the part of the current Board and Watson in particular defending the record of the current Board.

Thompson and Kirk are out-spending the others by a large margin, as much as an 8-1 margin according to mid-October filings, and there are indications that the disparity has grown since then. Kirk has had to return some illegal corporate donations to his campaign, and questions have been raised about his having possibly commingled personal and campaign funds. So far no official body is acting on the allegations to my knowledge.

I won’t venture to predict the outcome, though I know what I’m hoping for. I’ll post an addendum to this post tomorrow night when the outcome is clear.

On Thursday, October 29, the morning saw Tim Keib, former assistant principal and for a time interim principal of the middle school, continue his direct examination. R. Kelly Hamilton, John Freshwater’s attorney, introduced into evidence an affidavit Keib had signed and walked Keib through it. Keib is a graduate of Cedarville University, a very conservative Christian school in Ohio.

Keib testified that he was in Freshwater’s classroom for a number of 30+ minute observations for evaluation and perhaps 60 to 100 times for a few minutes over the years.

Over the years Keib did a number of evaluations of Freshwater, and testified that he never saw any problematic behavior in Freshwater’s classroom. Asked if he ever saw Freshwater teach creationism, Keib replied that there was “never any direct instruction pertaining to creationism that I heard.” Interesting locution there.

In a series of questions Hamilton pushed the case that Freshwater was using suspect materials in order to teach analysis and objective consideration of multiple hypotheses per the Academic Content Standards, using those materials to see whether students could use the scientific method.

Keib testified that he never saw Freshwater try to push his faith or proselytize students. He never heard Freshwater put down another person’s faith, though he voiced concerns about that to Keib privately. He testified that he never saw Freshwater teaching intelligent design.

The administrative hearing on the termination of John Freshwater resumed Wednesday, October 28, and also met Thursday and Friday. I missed most of Wednesday, but hope to have a summary from another spectator sometime soon. This is a summary of the testimony I heard Wednesday morning.

“Coach” David Daubenmire Direct Examination

The first witness Wednesday was “Coach” David Daubenmire. Daubenmire once taught and coached in the MT. Vernon school system, and then left to teach and coach in London, Ohio, where he and the district were sued by the ACLU for praying with his football players. That case was settled out of court just before going to trial, with the district paying costs. Daubenmire left teaching in 2000 to found Pass the Salt Ministries. He claims a Ph.D. in “scriptural psychology” from some school – possibly Faith Bible College in Missouri. He also claims to be an adjunct professor at Mt. Vernon Nazarene University, where he taught a couple of continuing education classes for teachers, one a two-day workshop on religion in the classroom that Freshwater attended in the early 2000s. That class used a text called Finding Common Ground, which appears to be an eminently respectable guide to religion in public schools and First Amendment issues. A copy was introduced as an exhibit in the hearing.

Daubenmire was also the organizer of “Minutemen United” (whose web site now appears to be defunct; see the pages preserved in the Internet Archive) through which he coordinated picketing at abortion clinics (he testified to that); allegedly photographed license plates of patrons of a nearby strip club and posted them on the web somewhere (I haven’t been able to find documentation of that; see note at the end of this post); and disrupting services at a Baptist church that is accepting of the LGBT community. According to Daubenmire’s testimony, Freshwater joined the Minutemen United Saturday morning picketing at a Columbus abortion clinic several times.

The administrative hearing on the termination of John Freshwater as an 8^th grade science teacher in the Mt. Vernon (Ohio) School District resumed yesterday after a 5 month hiatus. I missed most of yesterday due to a doctor’s appointment, but a friend took notes and will write them up for me sometime soon. I attended the session today (Thursday) and another is scheduled for tomorrow. I’ll likely post an omnibus account over the weekend. Meanwhile, there are news accounts here, here, and here.

The Ohio Supreme Court today denied John Freshwater’s motion for a writ of mandamus to compel Board of Education members to testify at the administrative hearing on his termination. The Court web site says only

09/30/09 DECISION: Upon consideration pursuant to S.Ct.Prac.R. X(5), cause (sic) dismissed

According to a news report (see also here) the justices voted 7-0 to deny the motion. Since it is a procedural issue, the Court will not elaborate in an opinion.

No word yet on what effect that will have on the course of the hearing.

Update Sept 21: In the comments there is some speculation about the strategy being followed by Kelly Hamilton, John Freshwater’s attorney. Thursday of last week, the 17^th, Hamilton and Freshwater were interviewed on a radio program hosted by David Barton, notorious revisionist pseudo-historian who is in the process of polluting social studies standards in Texas. Late in the interview (there are no time markers) Hamilton explains his motivation for taking Freshwater’s case:

Everybody in this world is given an opportunity to be obedient at any given time, and it just so happens that I’ve known for several years prior to this event taking place that God made it very clear that one day I would be arguing about the First Amendment as it relates to His Bible. I’ve known this and I can’t wait to share that with others. But, you know, for anybody that doubts God’s intervention in this particular matter, they simply have to recall chapter 6 in Ephesians and the spiritual battle and the [bounty?] that is being fought. The symbolism is so great in this particular case. Recognize that “fresh water,” of course, represents baptism, and that’s exactly .. that’s John’s last name. There is a .. the opposing attorney in this particular case, his last name is Millstone. All you need to do is go to the book of Luke, and when you take a look at the book of Luke it will say, you know, “It would be better for someone to put a mill stone around their neck than to keep these little ones from me.” Then, of course, the judge’s last name in this particular case, his last name is Shepherd. So you start putting some of the symbolism together just on the names, you start to see some of the unique intervention that God has had in this particular matter.

There you have it. It’s a done deal. It’s all in the names.

Note also that Hamilton throws in some snark alleging the family who brought the affair to light were just after money. Recall that they settled their suit with the district for $5,500 and costs. Big money, all right. Hamilton’s gratuitous snark came after the announcement of the settlement.

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Original post

As is obvious, the administrative hearing on John Freshwater’s appeal of the decision of the Mt. Vernon Board of Education to terminate his employment as a middle school science teacher did not resume on Sept 10, as had been previously hoped. The hold up is Freshwater’s request that the Ohio Supreme Court issue a writ of mandamus that compels (at least) two members of the Board of Education (Jody Goetzman and Ian Watson) to testify in the hearing.

To recap the other legal proceedings associated with the situation, last month a partial settlement was reached between the Dennis family and the school district defendants in the federal suit the Dennis’ brought against the district, several administrators, and Freshwater. Freshwater remains a defendant in that suit.

The other federal lawsuit was brought by Freshwater against a range of defendants – board members, administrators, and miscellaneous John and Jane Does. One defendant is David Millstone, the Board’s attorney for the administrative hearing. As I posted on Sept 2, on September 1 Millstone’s attorney filed a motion with the federal court requesting that he be removed as a defendant. I’ve now got the text of Millstone’s filing and memorandum of support (I suspect it’ll be up on the NCSE docs site soon), and it’s more than a simple request to be removed as a defendant. Millstone is asking the federal court to impose sanctions and fees against R. Kelly Hamilton, Freshwater’s attorney, arguing that Hamilton’s inclusion of Millstone as a defendant as an “agent” of the Board of Education, when in fact he is a private attorney hired by the Board, violates the Federal Rules of Civil Procedure. The filing says

Defendant Millstone is moving the Court for sanctions and fees based on specific conduct by Plaintiff’s [Freshwater’s] counsel that violates Federal Rule of Civil Procedure 11. Plaintiff’s Complaint against Defendant Millstone violates Rule 11 because it only serves to harass, cause unnecessary delay, or needlessly increase the cost of litigation. Further, the claims asserted against Defendant Millstone are not warranted by existing law and are not supported by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law. (p. 2)

The rest of the 17 page document provides the support for the request for sanctions and fees. Millstone’s attorney filed this motion after an attempt to resolve the inclusion of the Board’s attorney as a defendant in Freshwater’s lawsuit failed because Hamilton did not respond to a request to discuss the issue informally.

Hamilton’s claims about Millstone in Freshwater’s suit (documents here) do seem a bit strange to a lay person. For example, Hamilton accuses Millstone of “conspiring” with the Board of Education. Erm, is a client consulting with its attorney engaging in a “conspiracy”? Seems a little weird to me, and is part of the basis for Millstone’s request for sanctions and fees against Hamilton.

Actually, one begins to wonder if Hamilton is taking his legal cues from the Thomas More Law Center. We all know how well that worked out for the Dover Area Board of Education. More seriously, something I’ve been watching for in the various twists and turns of this situation is some sign that Hamilton is getting coaching from the ‘professional’ creationist defense outfits. So far I see nothing that suggests that. Hamilton is apparently screwing it up on his own.

Published reports this morning (see also here and here) says that the federal lawsuit brought by the parents of the boy who was burned with a Tesla coil in an 8^th grade science class in the Mt. Vernon City Schools has been settled. According to the report

The district’s insurer has agreed to pay $5,500 to the family of the Mount Vernon Middle School eighth grader who alleged that his teacher, John Freshwater, burned a cross-shaped mark into his arm with a BD-10A Electrostatic Generator, according to a news release from the board of education. The company will also pick up the tab on the boy’s legal fees, which came in at $115,500.

This settlement does not affect the on-going administrative hearing on the termination of employment of the teacher, John Freshwater. That hearing has been on hiatus since May, and is due to resume sometime this fall. It is hanging fire waiting for the Ohio Supreme Court to decide whether to issue a writ of mandamus that would compel members of the Board of Education to testify in the hearing. It also does not affect the federal suit that Freshwater brought against the Board, several administrators, and some John and Jane Does over the summer.

The settlement has not yet been approved by the court, but no one I talked with anticipates a problem with that.

Addendum: I should mention that Freshwater is also a defendant in the Dennis family’s suit, and he is still a defendant. The settlement involves only the school district defendants.

Update Freshwater’s request fir the writ of mandamus from the Supreme Court is here (pdf). The notification of the affected parties by the Supreme Court is here. The 21-day clock for their response began running when they received service of that notification, which would have been today or perhaps next Monday. Then the Court has to consider what it will do. I doubt that the hearing will resume on September 10.

The Mt. Vernon News is reporting that John Freshwater’s attorney, R. Kelly Hamilton, has filed a request for a writ of mandamus from the Ohio Supreme Court to compel the Mt. Vernon Board of Education to issue subpoenas to (at least) two of its members to testify in the administrative hearing on Freshwater’s termination as an 8^th grade science teacher. I cannot find the request yet on the Ohio Supreme Court site. The Court has been on summer recess, but is resuming oral arguments on August 11. Freshwater’s request is not (yet?) on the Court’s oral arguments schedule. I have no idea whether the Court hears oral arguments on such requests. Is there an Ohio lawyer in the house?

This request for a write of mandamus is the next step following the Knox County Court of Common Pleas refusal to enforce subpoenas which had been quashed by the Board of Education.

Once again, the hearing is on hiatus until at least September 10 due to Freshwater’s attorney having invoked a legal provision to recess such hearings during periods when school is not in session.

The hearing on the termination of employment of Mt. Vernon Middle School science teacher John Freshwater was scheduled to resume today, July 24. However, after an hour-long conference this morning among the attorneys and referee, the hearing did not resume and will not resume until sometime on or after September 10, 2009. It seems that the Ohio Revised Code provides that in such a hearing, the subject of the hearing, in this case Freshwater, can elect to not have hearing days scheduled when the schools are not in session, and through his attorney, R. Kelly Hamilton, that choice was made today. In interviews after the aborted hearing Hamilton made it clear that it was his decision as Freshwater’s attorney, not Freshwater’s.

Hamilton said he intends to file a writ of mandamus with the Ohio Supreme Court to compel the Board to issue subpoenas for two Board of Education members, Jody Goetzman and Ian Watson, to testify. He had previously requested that they be subpoenaed, but the Board of Education (the issuing body for subpoenas for the hearing) quashed the subpoenas and the Knox County Court of Common Pleas declined to enforce the (non-existent because they were quashed) subpoenas. See here for that story.

A writ of mandamus is a high priority item for the State Supreme Court – it goes to the head of the queue on the Court’s docket – but the Court is on summer recess now so it’s hard to know when the Court will rule on Hamilton’s motion, which is not yet filed.

More below the fold.

Update 7/11/09:

The situation surrounding the refusal to testify by the Mt. Vernon Board of Education members has been clarified. The Mt. Vernon News reports that according to the Common Pleas judge, the Board of Education quashed the subpoenas for testimony by Ian Watson and Jody Goetzman on the (official) ground that they have no direct knowledge of the allegations made against Freshwater and could therefore only offer hearsay testimony. Quashing the subpoenas basically takes them out of existence, so there were no subpoenas be complied with and so the judge didn’t order compliance with (now) non-existent subpoenas. (I know, I know: I tried to write a cleaner sentence, but I’m tired.) Further,

Since the matter is an administrative hearing, the judge said, the board has the legal authority to issue and quash subpoenas. He added that he has no grounds under law to overturn the board’s decision to invalidate the subpoenas in this case.

R. Kelly Hamilton apparently called the Board Members because he is trying to make the case that there is a conspiracy against Freshwater in which some teachers, administrators, Board Members, and other unnamed people have been trying to get get rid of him for years. Don Matolyak, Freshwater’s pastor, made that allegation around the time the hearing began in October 2008:

In 2003, Freshwater asked the Mount Vernon school board if he and other teachers could “critically examine” evolution in class. The school board said no.

“From that point on, John had a bull’s-eye on him,” said Don Matolyak, Freshwater’s pastor.

The board has carried out a vendetta against Freshwater because he wanted to teach alternative views to evolution, and that offended school-board members who believe in evolution, Matolyak said.

Pam Schehl’s interview with the judge also clarified another matter that’s been hovering out there:

The way the law is structured, Freshwater has the right to appeal whatever decision the board makes regarding his contract termination. If Freshwater does appeal to the court of common pleas at that time, the judge may or may not require additional testimony not presented during the administrative hearing.

So this process may well not be completed within the reign of the current monarch.

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A couple of developments should be noted. First, as you may recall, R. Kelly Hamilton, John Freshwater’s attorney, subpoenaed two members of the Mt. Vernon Board of Education, Ian Watson and Jody Goetzman. They declined to testify, arguing that were they to testify they would have to recuse themselves from subsequently voting on the recommendation of the hearing referee, and that would leave the BoE short of a quorum and it would be unable to act on the recommendation. Hamilton asked the Knox County Court of Common Pleas to compel their testimony, but yesterday the judge declined to do so on the ground that he does not have jurisdiction. I don’t yet know what Hamilton will do next.

Second, Freshwater has recently amended his federal complaint (pdf) that was filed June 9, 2009, to include

213. Plaintiffs incorporate the foregoing paragraphs of this Complaint as if fully restated herein.

214. At the time of Defendants actions Plaintiffs John and Nancy Freshwater were married and continue to be married.

215. As a result of the wrongful and negligent acts of the Defendants, Plaintiffs were caused to suffer, and will continue to suffer in the future, loss of consortium, loss of society, affection, assistance, and conjugal fellowship, all to the detriment of their marital relationship.

Third, the session scheduled for tomorrow, July 10, has been postponed. The hearing is currently scheduled to resume July 24, but given the recent twitchiness of the schedule I’m not counting on it happening. Hamilton may appeal the Common Pleas court decision, and I have no idea how long that might take.

I still have those 50 pages of notes to transcribe on the two days of hearings in May. I hope to get to that one of these days real soon now. :)

John Freshwater (search PT on “Freshwater”), the middle school science teacher terminated by the Mt. Vernon, Ohio, Board of Education last year, has filed a federal suit against the Board, two individual Board Members, two current administrators and one former administrator, the independent investigators, and David Millstone, the attorney for the Board. According to the news report

The lawsuit, filed in US District Court for the Southern District of Ohio, cites free speech and equal protection violations under the US Constitution. Violations of Ohio Public Policy, religious harassment, retaliation, conspiracy, defamation, and breach of contract are also addressed in the claim filed Tuesday.

As I understand it, the suit was precipitated by the refusal of two Board members, Ian Watson (President of the Board) and Jodi Goetzman, to testify in the on-going administrative hearing on Freshwater’s termination. Apparently if they testify in the hearing the two Board Members would have to recuse themselves from voting on the final recommendation of the hearing referee (it’s a 5-member Board). At least that’s what I’ve heard as the reason for their refusal to testify.

Sorry for the delay in posting on the most recent days of the hearing in early May. I’ve been up to my eyebrows in alligators for the last few weeks. I’ve got 50 pages of notes on the most recent two days of the hearing but haven’t had the 10 or 12 hours to spare to write them up. Soon, I think. Meanwhile, the Mt. Vernon News ran stories on those days here, here, and here.

This will be a short – I have a slew of commitments and won’t get a full account done until sometime over the weekend. But one thing established today deserves immediate comment.

R. Kelly Hamilton, John Freshwater’s attorney, called Zachary Dennis to testify today. Zach had already testified during the Board of Education’s presentation and Hamilton passed on cross examination then, knowing he would call Zachary in his case and would have greater freedom of questioning than in cross examination. Zachary testified for all but half an hour of today’s hearing. One section of that testimony stands out and I’ll describe it below the fold.

One of the threats made by the fundamentalists both recently and during the 2003 attempt by John Freshwater to inject ID creationist material into the science curriculum is that they will punish the district and the board of education in elections if the board opposes their efforts to corrupt science education. So far that doesn’t seem to be working out real well for them. Yesterday voters in the Mt. Vernon City School District passed a renewal of an operating levy by a 61%-39% margin. Like the Dover, PA, school board elections in 2005, it appears that the ballot box clout of the fundamentalists is a whole lot less powerful than they’d like us to believe. I’m cautious about interpreting that vote simply as a referendum on the board of education or Freshwater, but I know I heard rumblings around the district about it prior to the election. It certainly doesn’t support any claims of general dissatisfaction with the district.

The hearing on Freshwater’s termination resumes tomorrow, with members of the Dennis family being called by Freshwater’s attorney, R. Kelly Hamilton. Recall that Hamilton passed on cross examining Zachary and his mother last fall during the presentation of the Board’s case by David Millstone, the Board’s attorney, knowing he’d call them as hostile witnesses during Freshwater’s presentation.

The hearing is scheduled to resume May 7. In the meantime, there’s a very good opinion piece in the Mansfield, Ohio, NewsJournal. Comment here or there as the spirit moves you.

On April 2, in the continuation of Freshwater’s case in chief (basically, his case to be retained), we heard three witnesses, Pastor Stephen Zirkle, middle school health teacher Wes Elifritz, and middle school teacher Andrew Thompson. Zirkle was the pastor at the center of the “healing ceremony” allegations, Wes Elifritz is a middle school health teacher and also coaches 8^th grade girls basketball. He was among those named in prior testimony as having religious items on display. Thompson was an 8^th grade student in Freshwater’s science class in 1998, was an intervention specialist who spent one class period per day in Freshwater’s class during the 2006-2007 academic year, and is now a social studies teacher in the middle school. He also displayed religious items in his classroom until he was recently instructed to remove them.

I’ve already posted much of the meat of Days 16 and 17 here and here. In this post I’ll summarize the testimony of the other witnesses who testified on those days, Lori Miller, Linda Weston, and Jeff Cline.

Day 16:

On Thursday, March 26, in addition to Ben Neilson’s testimony summarized in the posts linked above we heard the completion of Lori Miller’s cross examination (direct examination and the beginning of cross examination here), and the direct and cross examination of Linda Weston, former Director of Teaching and Learning in the district.

In my brief post yesterday (just below this post) I described Ben Neilson’s testimony to the effect that the injury shown in newspaper photos was not the mark he saw on Zachary Dennis’ arm when Freshwater used the Tesla coil on both students (in different classes). Today that testimony was contradicted, as an investigator described a very different account given by Ben Neilson to to the investigators in the course of an interview with Ben in the spring of 2008.

In this post I will juxtapose Ben Neilson’s testimony from yesterday, Mar 26, and the cross examination of Julia Herlevi, an employee of HR OnCall, which did the investigation for the Board of Education. Ms. Herlevi was present at the interview of Ben Neilson and took notes during the interview.

Later, sometime over the weekend, I’ll post a description of the rest of the testimony on Thursday and Friday.

There will be no extended report tonight. I have other commitments. I’ll post full reports of today’s and tomorrow’s testimony sometime over the weekend.

However, one major claim was made in testimony today. Ben Nielson, a classmate of Zachary Dennis, testified that the arm he saw in a newspaper picture which was identified as Zachary’s arm showing the injury, was not Zachary’s arm. Nielson testified that he saw a mark on Zachary’s arm shortly after the incident in December 2007, and the mark was significantly smaller than that in the picture and was on the inside of the arm rather than on the outside as the picture apparently shows.

Ben testified that when he saw the photograph in the newspaper, he exclaimed “That’s not Zach’s arm.” His father corroborated the account.

Neither Ben nor his father Mark, who also testified briefly, could remember when they saw the newspaper picture or which newspaper it was in. Zachary Dennis’ identity was not made public until October 4, 2008, on the first day of Freshwater’s termination hearing, while photographs of Zach’s arm were published considerably earlier without identification.

(If anyone in the comments can identify the date of the earliest news photo of Zachary’s arm, specifically identified as Zachary Dennis’ arm, in the Mount Vernon News or Columbus Dispatch I’d appreciate it.)