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Update: Full text of Thompson’s letter below the fold.

In an update to my recent post on Board members recusing themselves from participating in the Board’s decision-making on the Freshwater matter I said that Steve Thompson, Freshwater supporter and former (apparently) fund-raiser, had decided to recuse himself in the same manner as Paula Barone. That now appears to be false. In a Feb 25 story in the Mt. Vernon News we learned that

Board member Steve Thompson also recused himself from discussing and voting on existing litigation.

He did not recuse himself from the administrative proceedings relating to Freshwater’s contract termination.

In other words, he’s planning to participate in the Board’s action on the outcome of the administrative hearing. That puts him squarely back in the conflict of interest soup and puts the Board at considerable litigation risk.

Hat tip to phred on mvohio.net.

Update: Thompson has done the right thing and elected to recuse himself in the same manner as Barone.

Paula Barone, a newly elected member of the Mt. Vernon Board of Education, has decided to recuse herself from participating in executive sessions and voting on the Freshwater matter when it comes before the Board again. Her decision is based on advice from the Ohio School Boards Association, the Ohio Ethics Commission, and David Millstone, the Board’s attorney in the matter. While all three advised her that there was no legal conflict of interest associated with her participation in decisions on Freshwater, nevertheless her participation could give Freshwater’s legal team a pretext for further litigation. She therefore is recusing herself–at this time, anyway–from participation in the decision-making process.

Comparing Barone’s situation with that of Steve Thompson, the other newly elected member of the Board, it’s apparent that Thompson is in a substantially worse conflict of interest situation than Barone, and is doubly obliged to recuse himself.

More below the fold.

A new story is making the rounds now, to the effect that R. Kelly Hamilton, Freshwater’s attorney, has been in contact with the anonymous source of the black bag in the parking lot. That source, it is said, is willing to testify in the hearing but not in public because of fears for his/her safety. So Hamilton has asked the referee to hear testimony from that person with the hearing closed to spectators and press and the referee is considering whether to do so.

As I noted earlier, this has gone past strange and is well into bizarro territory. Does the anonymous source fear that the Evil Atheist Conspiracy is going to take revenge on him/her? Are there mobs of evolutionists with torches and pitchforks waiting outside the walls of the hearing room? Not hardly, not in this county. The one slight justification I can see is if the anonymous source is a school employee and fears being fired for removing the black bag and its contents from the school without authorization (assuming it actually came from the school and not Freshwater’s garage, which is not established). But as far as I know the hearing referee has no power to grant immunity from prosecution for theft, so taking the testimony in private won’t solve that problem for him/her.

Bear in mind that this is the same R. Kelly Hamilton who brought pressure to make the names of the Dennis family public after a federal court had granted them anonymity to protect them, particularly Zachary, from reprisals. And note that the Dennis family finally felt it necessary to move away from this community because their children were being subjected to harassment from other students and school staff – teachers and at least one coach. So why is Hamilton so hot to protect an adult’s anonymity now?

After the B.S. story Don Matolyak offered to justify taking an armed escort with him to retrieve the black bag while deciding he didn’t need the cops, I am of the opinion that this is just more of the smokescreen and is intended to amp up the drama casting John Freshwater as the poor persecuted Christian man in heathen Knox County, Ohio. It’s designed solely to bring more pressure on the Board of Education to settle on Freshwater’s terms. But Hamilton, Matolyak, and Freshwater appear to be becoming so enamored of their delusional fantasies of persecution that I fear for their ever more tenuous grasp on reality.

Me on the A Pair of Continents podcast talking about the Freshwater affair. The interview starts around 17:00 of Episode 39. Fat Steve and Dany are fun and interesting folks and I recommend their other podcasts, especially the two featuring PZ Myers (“Easy PZ” to Dany; episode 36) and Richard Wiseman (Episode 20). Well, actually, they’re the only two I’ve listened to so far and I hope to get to their interviews with John Horgan and Skepchick Rebecca Watson soon. But again, highly recommended. After all, they interviewed me! :)

I’ve received a copy of the police report on the incident described in Dumpster diving for docs. It is a “found property” report, not a criminal complaint. The report contains a 3 page typed account of the incident by Don Matolyak, Freshwater’s pastor.

The main message of the circulating story I described in my earlier post–the mysterious appearance of new evidence from the district via a cloak and dagger route–is confirmed by Matolyak’s statement, but a number of details differ. I’ll list them below the fold, based on Matolyak’s statement in the police report.

A strange story is circulating in Mt. Vernon, Ohio. According to the story, John Freshwater, currently the subject of an administrative hearing on his termination as a middle school science teacher, received a call from an unnamed person on Thursday, Feb 4. The caller purportedly told Freshwater that the school had discarded some documents in a dumpster at the high school and that the documents contained information that would exonerate him. Sometime during the night of the 4^th or morning of the 5^th, Freshwater, his lawyer R. Kelly Hamilton, and his pastor Don Matolyak are said to have gone through one or more school dumpsters, removing some documents and taking them to Matolyak’s church, Trinity Assembly of God, to go through them.

The story goes on to say that the three then called the Mt. Vernon Police Department which responded to the church and took custody of the documents. Two sources I am not permitted to name have told a trusted friend (and one source told me) that a police report on the incident has been written but is not yet publicly available because it has not been approved by a supervisor. When asked directly about it, the police department would not comment.

This strikes me as unbelievable in at least one important respect. My wife has taught in the Mt. Vernon City School District for more than 30 years and I am fairly familiar with their records disposal policies. With new privacy regulations covering a wide range of personnel matters from evaluations to medical history to student records, sensitive documents are not casually discarded in dumpsters, they’re shredded. The schools are equipped with shredders and they’re used. I simply cannot believe that an administrator would be stupid enough to casually toss unshredded documents relevant to Freshwater’s case into a dumpster. If in fact Freshwater, Hamilton, and Matolyak had possession of documents from the school that bear on Freshwater’s case, I strongly doubt that they came from a dumpster. I hope the cops are investigating other potential sources.

A couple of speculative implications of the story are also circulating. One is that Freshwater and his attorney are pushing for a criminal investigation of the school district for withholding or destroying evidence important to the administrative hearing and/or the two federal suits. Another speculation is that this is yet another delaying tactic by Freshwater and his advisers that is designed to increase pressure on the Board of Education to settle with Freshwater on his terms. A third, held mainly by local conspiracy theorists, is that the story is true and the district was in fact concealing evidence. Of course, those are not mutually exclusive. I’ve so far found no evidence indicating whether those or any other hypothesis has any support.

If true, this story pushes the Freshwater saga past merely strange into bizarre territory. I say again that there is no official confirmation of the story, but even the fact that it is circulating and is being taken seriously speaks to the mood of this badly divided community. That’s the true tragedy of this whole affair.

In my recent post on testimony on December 30 I noted that Freshwater’s attorney, R. Kelly Hamilton, engaged in some theatrics about an exhibit introduced by the Board’s attorney, characterizing it as a forgery. I also described some of the similarities in the writing on two documents. One is a copy of an article on building tall structures decorated with handwritten comments about the Tower of Babel, found in Freshwater’s classroom. The other is a lesson plan written by Freshwater in 2006 and introduced by his attorney as an exhibit. Freshwater testified that the handwriting on the lesson plan was his.

I’ve put scans of the relevant portions of both documents on the web, and I invite readers to make their own comparisons. Note that when one clicks on one or the other document there is a button towards the top right of the screen to magnify the displayed document.

For reference the similarities I noted earlier are below the fold.

The 31^st day of the administrative hearing on whether John Freshwater should be terminated as a Mt. Vernon Middle School science teacher was supposed to be today, but after 2 hours and 15 minutes of private conferences among the attorneys and referee the hearing was abruptly adjourned until January 22, 2010.

In addition, I have learned that a new member of the Board of Education, Steve Thompson, has started engaging in private efforts to produce a settlement without authorization or discussion by the Board of Education, thereby exposing the Board to significant legal jeopardy. Both are described below the fold.

While the administrative hearing on the termination of John Freshwater as a Mt. Vernon, Ohio, middle school science teacher is slowly approaching a conclusion, the preliminaries to the two federal suits are in progress. Recall that the Dennis family’s suit against the school district was partly settled, with the district agreeing to pay attorney’s costs plus a small amount to the family. However, Freshwater remains a defendant in that suit. And Freshwater has sued a range of entities and people in federal court.

I recently obtained the transcript of a deposition made a year ago by another student in Freshwater’s class that academic year, 2007-2008, and that deposition corroborates two major allegations about Freshwater’s classroom behavior, the use of the Tesla coil to mark students’ arms with crosses and the showing of a creationist video, The Watchmaker in science class.

The deposition of the student, referred to in the deposition as “Student No. 5”, was taken on February 16, 2009 for the Dennis family’s federal suit. In it there are two passages of immediate interest. They’re below the fold.

This week saw two more days of testimony in the administrative hearing to determine a recommendation on whether John Freshwater should be terminated as a middle school science teacher in the Mt. Vernon school district. The main witness for the two days, December 29 and 30, was Freshwater himself undergoing cross examination after his direct examination which is summarized here.

The proceedings went very slowly under both direct and cross examination because Freshwater has become much more cautious about answering questions, has begun reading all exhibits offered slowly and thoroughly, is frequently asking for clarification or rewording of questions, and in some cases repeatedly avoided answering until at a couple of points the referee intervened, instructing him to answer the question asked.

For additional coverage by reporters at the hearing I refer you to Pam Schehl’s story in the Mt. Vernon News here (29^th) and here (30^th), and to Dean Narciso’s stories in the Columbus Dispatch here and here. For updates by a creationist of the Kent Hovind kind who is also attending the hearing, see here.

The two days are summarized in 8,000 well-chosen words below the fold.

Added in edit: This is a very condensed summary (three days of testimony in a bit over 2,000 words). If you have questions about specific issues or topics please ask them in the comments and I’ll respond as I can.

This last week saw us creep nearer to the conclusion of Freshwater’s case to keep his job as a middle school science teacher. He was the main witness for the greater part of three days on direct examination by R. Kelly Hamilton, his attorney. In late December when the hearing resumes he will be cross-examined by David Millstone, the Board of Education’s attorney. Unless Hamilton has other witnesses to call (not a negligible possibility), we should get to the Board’s rebuttal case (if one occurs) in January. There’s no telling how long that may take nor how long Freshwater’s rejoinder (if any) to the rebuttal might take.

Freshwater’s testimony this week had four main components:

1. Denial: He denied many of the allegations, attributing the contradicting testimony from other witnesses to misperceptions, misunderstandings, or flat lying.

2. Appropriate Use: He claimed whatever ID and/or creationist material he might have used was to illustrate bias and lack of objectivity in the interpretation of good science and was consistent with the Academic Content Standards.

3. Confusing Directives: He claimed that he received confusing instructions from the administration concerning religious materials in his classroom, and to the best of his understanding complied with administrator’s directives.

4. Incomplete Report: He claimed that the HR OnCall investigators’ report was incomplete and misleading, did not fully investigate the allegations, did not comply with the terms of the master contract between the Board and the bargaining unit, and did not keep a promised appointment for a second interview for which Freshwater had prepared a comprehensive report.

More below the fold.

One of the low points for the defense in Kitzmiller was the testimony of Alan Bonsell, who was President of the Dover Area District Board of Education at the time of the adoption of the policy that provoked the lawsuit. Specifically, his sworn testimony in a pretrial deposition was found to be seriously contradicted by his equally sworn testimony in the court. Though it ultimately came to nothing, Judge Jones went so far as to refer the matter to prosecutors for potential perjury charges. (See here and here for the pertinent testimony.)

Now a roughly similar situation appears to have arisen in the Freshwater affair. It centers around the process by which Zachary Dennis was burned with a Tesla coil, and Freshwater is contradicting himself about it in two sets of sworn testimony and a motion filed in federal court. I’ll describe them in separate sections, reproducing a good deal of the testimony for the flavor of what goes on.

First recall that there are three legal proceedings under way, the administrative hearing on Freshwater’s termination; a federal suit brought against the district, administrators, and Freshwater; and a federal suit brought by Freshwater against the Dennis family, the district, and sundry others (including a number of unidentified John or Jane Does). The first two are the focus here. This is a long post, with lots of quotations from various of the legal venues, but it should give a feeling for the problems Freshwater is creating for himself in his sworn testimony in the several proceedings.

A schedule note: The administrative hearing was supposed to resume November 17, but did not do so and has been postponed to Dec 10.

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.