# Freshwater: Hearing testimony ends!

After 21 calendar months, 39 (by one count) actual days of sessions, and over $700,000 in expenses and still counting, the administrative hearing on the termination of John Freshwater finished taking testimony today. We fell a day short of the length of the Kitzmiller v. Dover ASD trial but we may yet exceed its$1M total cost–the \$700K doesn’t include Freshwater’s legal costs and there’s still a goodly amount of attorney work yet to do before it’s over.

Today concluded the Board’s rebuttal case. The sole witness was Steve Short, Superintendent of the Mt. Vernon City Schools. However, the day couldn’t start without one last attempt to stir up a pseudo-controversy by R. Kelly Hamilton, Freshwater’s attorney. Before the hearing started this morning he asked the referee to close the hearing to the public on the grounds that some unidentified person was surreptitiously recording the proceedings in violation of the referee’s order (from October, 2008) against electronic recording. The referee declined to do so, contenting himself with reiterating the earlier prohibition.

More below the fold

Recall that the purpose of the rebuttal phase is to enable the Board to address specific allegations or claims raised by the defense in the course of its presentation. Today’s testimony was basically a walk-through of defense claims about the treatment of Freshwater in the period preceding his April 16, 2008, appearance on the public square; about alleged discriminatory treatment of Freshwater as compared with the treatment of other teachers; and about the handling of the materials taken from Freshwater’s classroom after he was suspended in July 2008, along with some miscellany.

Steve Short Direct

David Millstone, the Board’s attorney, began Short’s direct examination by tracing the course of materials removed from Freshwater’s classroom in August, 2008, following the Board’s Jul 2008 suspension (pdf of meeting minutes) of Freshwater’s teaching contract. Short testified that he instructed the head of maintenance to have the material packed in boxes and removed, and approximately four custodians did the job, moving the stuff to the former director of business administration’s office in the central office building. After it was moved, Short asked the maintenance supervisor if everything had been moved, and was told there was some “junk” in what has been called the “rat hole,” a space below a staircase in the middle school. Short gave instructions that it be also moved to central office, and a day or two later it was. Some time back Hamilton had made a big deal about Freshwater’s stuff in the “rat hole” being accessible to anyone for some time, and hence hinted that the evidence had been tampered with. Short’s testimony rebuts those claims.

We went on to the numbering of the boxes, also claimed by Freshwater to indicate tampering. It turns out they were numbered by the legion of lawyers tramping through them, an explanation bolstered by an affidavit from one of the lawyers involved at that time. Discrepancies between the date of claimed boxing up and packing slip dates on two boxes were explained by repacking after the original boxes deteriorated due to the load of contents. Another Hamiltonian conspiracy theory bit the dust.

Short also explained why two documents marked “bd ex 22” and “bd ex 99”, both exhibits introduced during the hearing as Board Exhibits, were later found in the boxes with those stamps. Turns out the documents had been removed from the boxes to be entered into evidence, but copies weren’t made before they were returned to the boxes and thus copies with the markings were put back in the boxes. An oversight, to be sure, but not ‘tampering’ in the sense Hamilton wanted.

We heard about several documents entered into evidence that Hamilton and Freshwater said they couldn’t find in the material when they examined it in January 2010. In all cases Short testified that the documents came from that material.

Millstone asked Short about the 5 “armloads” of material he gave to Freshwater from the material in the central office. Short testified that Freshwater called him to ask for his personal property from his room. Short went through the room full of materials and got the 5 armloads to give to Freshwater. Millstone introduced an inventory Short made as he removed material from that stored.

In a series of questions, Millstone had Short compared the inventory to photographs claimed to be of the material that had been submitted as part of an affidavit from Freshwater, photographs that purported to show the materials returned to Freshwater by Short. In many cases the objects and documents in the pictures did not appear on Short’s inventory. We walked through 22 photographs. Of those, Short recognized just a few objects–3 or 4–as having been inventoried and returned to Freshwater. Millstone had Short identify a long list of objects and documents on his inventory that did not appear in the photographs in Freshwater’s affidavit.

Based on the foregoing, Millstone asked Short if he had an opinion regarding the accuracy of Freshwater’s affidavit. Short replied, “I don’t believe it is accurate.”

Turning to the anonymous letter he received from the mystery source enclosing copies of some documents, Short testified that on receiving it he consulted with counsel, Sara(h?) Moore, who was at the school at the time. Short and Moore went through the central office building and the middle school looking for the originals of the copies, but didn’t find them. Asked, Short testified that he wanted to find them as much as anybody, and denied that he was concealing anything. Hamilton has been trying to make the case that the material supplied by the anonymous source had been in the custody of the school administration and had been withheld from Freshwater. Short’s testimony is that not only was that material not in the custody of the administration, they tried and failed to find it.

Millstone referred to Freshwater’s testimony that he could not remember his role in the Will Graham evangelical event at Kenyon College in October, 2007. Short testified that on a Facebook page associated with that event he found Freshwater listed as “Student Ministry Director.” My Facebook search ability is nil, and I couldn’t find that page. Anyone else? (It’s here under More Info.)

We then considered notes Freshwater kept for an April 2, 2008, meeting with White and Short, or so the notes claimed. Short testified that on April 2, 2008, he was at a meeting in Columbus and did not meet with White and Freshwater. He said he did meet with them on April 9. At that meeting the discussed (a) Freshwater explaining the meaning of Easter in class, (b) Freshwater passing out Bibles, and (c) Freshwater’s use of the “Here” code. Short testified that Freshwater acknowledged that he explained Easter and passed out Bibles. So, Millstone asked, if Freshwater’s notes indicated an April 2, 2008, meeting and he claimed that he made the notes on April 2, 2008, would that be inaccurate? Short replied, “Yes.”

Millstone asked if Short had done research on the newspaper publication of photos of Zach Dennis’s arm and the association of Zach’s name with the photographs. Short replied that he had checked all the issues of the Mt. Vernon News and the Columbus Dispatch, and none had published the photographs identified as Zachary Dennis’s arm. All the photographs of the arm had been published prior to the start of the hearing (And breech of the federal court’s anonymity order) in late October, 2008. That raises problems for Ben Neilson’s testimony regarding his exclamation that “That’s not Zach’s arm” on seeing the newspaper photo: Zach was not identified in association with the photos published before the hearing started.

Millstone turned to the Bible and “Jesus of Nazareth” book Freshwater checked out from the middle school library. In his testimony earlier Freshwater tried to imply that the due date of the books wasn’t a reliable indicator of when they were checked out, since the librarians would renew them on a phone call. Short testified that he checked with the librarian and she said the books were due on May 13, and had been checked out on April 14, two days before Freshwater’s appearance for the media on the public square in Mt. Vernon.

Millstone then turned to the 15 affidavits Freshwater claimed he had prepared (with Hamilton) in May 2008 for use in the second interview with HR OnCall, the interview that was canceled. These are the affidavits for which billing records were ordered in the Dennis family’s suit against Freshwater and which were lost in the Flood when Hamilton’s computer was drowned and he didn’t have the smarts to engage a data recovery firm but just threw it away on his local computer store guy’s say-so. Short testified that he never saw the affidavits, that Freshwater did not give them to him or the Board of Education, and did not give them to the investigators or ask that they be given to the investigators. As far as Short knows, Freshwater didn’t tell anyone concerned with the investigation that he had prepared a “comprehensive response” as allowed by the master contract.

Millstone asked if Short had been aware that other teachers had Bibles on their desks. Not at the time, he replied, but he learned it later. Asked, he said they were not required to remove them because there were not complaints that they used them or referred to them in class, as there had been with Freshwater and that Freshwater had confirmed to him in the April 9, 2008, meeting with Short and White. He said that Freshwater’s room was “different” from the others in that it had the 10 Commandments posters, Answer in Genesis references, the motivational posters with Bible verses, and so on.

Asked, Short testified that other teachers were found to have religious displays, but removed them without demurral when instructed to do so. He testified that there were no refusals from the other teachers, and no complaints from parents regarding their materials.

Short Cross Examination

Hamilton asked about the complaints referred to. Was there just one complaint or multiple complaints? Multiple. From one family or more than one family? One. The Dennises? Yes.

Regarding Short’s testimony that no other teacher had refused to remove their Bibles from sight, Hamilton read from the transcript of the tape Lori Miller made of her meeting with Principal White and Superintendent Short on August 24, 2008. In it, when Short asked if she had any problems with the request to remove materials, she replied she had a problem with the Bible being removed. Short advised her to remove it and if she thought it was wrong, to file a grievance so they could go that route. Asked by Hamilton, Short testified he did not interpret Miller’s “problem” comment to be a refusal.

Asked, Short testified that as far as he knew no one had given Freshwater similar advice about complying with a directive and then filing a grievance if it’s thought to be unjust.

We went yet again to the question of what a religious “display” is. Short said it was a display of an item or items “that could be religious in nature depending on whether someone perceives it as religious.”

Asked, Short agreed that “religious display” was not defined anywhere in Mt. Vernon School District policies.

We then spent some time with Hamilton trying to establish that Freshwater couldn’t possibly be expected to know the terms and conditions of the master contract under which he worked, and that it was surely someone else’s responsibility to take him by the hand and gently show him how to read the forking contract. This is as kindly as I can describe Hamilton’s line of questioning here: ‘My client is a drooling idiot and someone else has to be responsible for him not knowing the terms and conditions of his employment.’

Asked whether anyone had asked Freshwater if the 10 Commandments posters were a religious display, Short replied that he believed Principal White had that conversation with Freshwater, as he did also with respect to the Bush/Powell poster. Asked if that was in writing, Short replied no.

Turning to the Facebook page on the Will Graham event, Short agreed that it wasn’t Freshwater’s Facebook page and that someone else could have put the information on it. (Again, anyone find it? I’ve emailed Millstone, but he’s recovering from pneumonia and was not at all well today. It’s here under More Info,) Hamilton asked if it meant that Freshwater actually served as Student Ministry Director., or if someone else put that up is it taking it out of context. I have no more idea than you what Hamilton meant by that, and Short didn’t know either. We went back and forth about taking things out of context to no clear line or resolution. Hamilton sometimes chases invisible rabbits.

Then we moved to the Board of Education’s most recent evaluation of Superintendent Short’s performance, from August 2009. In it, apparently individual Board members can list things they think need attention or are noteworthy. Hamilton focused on a few from one member, which said something to the effect that Short could do a better job of regularly updating the Board on the hearing, and that Short should exercise “firmer control” over the Board’s attorney.

We spent some time on the evaluation, with Hamilton picking out points of critique, mostly in an apparent effort to make Short look like an incompetent. Recall that’s one of Hamilton’s defense themes: administrative incompetence.

We spent a little time on who had keys to the rooms where the material from Freshwater’s classroom was stored. For the first 30 or so days, Short and one custodian had keys, with the custodian instructed to stay out of the room. Subsequently, just Short and his secretary had keys.

Hamilton asked Short if he could have done a better job handling the situation. Short replied that he thought he did a good job; “I’m comfortable with the job I did.”

Hamilton then focused on Short’s inventory of the material he’d returned to Freshwater. Hamilton had made a Public Records Request asking among other things for any inventories. Further, that inventory list has turned up in a filing in the federal case (pdf) of the Dennis family vs. Freshwater. Why, Hamilton asked, wasn’t the inventory turned over in response to the PRR? Short replied that he regarded it as a work product for counsel, and is thus immune from such requests. Asked, Short testified he had no idea how Doug Mansfield, the Dennis’s attorney, got a copy for the May 14, 2010, filing in the federal case.

We chased a few other random rabbits–could one of the maintenance guys who packed up Freshwater’s classroom have taken the materials subsequently found in the black bag? It’s possible. Whose handwriting was on one of the boxes? “Who knows?” And so on.

Was Short aware that one of the allegations against Freshwater was that he was promoting the Christian religion in his classroom? Yes. Why then did Short return a couple of Christian CDs to Freshwater when they could have been kept to support the Board’s case? “I was trying to get his property back to him.”

We slogged through the inventory for a while looking for discrepancies. None were apparent.

Short redirect

Cross meandered to an end, and we had a short redirect in which Short identified 14 photos of the “motivational posters” with Bible verses. Then Millstone asked about how Freshwater and Miller differed, and Short again said there were no complaints about Miller, that she had chosen to comply with the administrator’s directives, and she did not “make a statement” that she wasn’t going to comply. Further, he said, the administration was attempting to ensure that the school was in compliance with the law regarding the 1st Amendment, and she cooperated.

The “statement” referred to was not Freshwater’s public statement on the square on April 16, 2008, but to a written statement he attached to his response to Principal White before that.

Short recross

An even shorter recross in which Hamilton established that there were not photographs of around 6 of the roughly 20 “motivational” posters.

The schedule from here on out

That ended testimony in the hearing, and both sides agreed they had no more to present. We avoided a potential steel cage match when both sides agreed to the admission of all the exhibits offered by both sides. Hamilton had earlier objected to many of the Board’s exhibits (in late 2008), and I anticipated a battle here, but the attorneys agreed to admit everything and let the referee sort it out.

The referee gave both sides until July 26, 2010, to submit their summary statements, and until August 2, 2010, to file their replies to the other side’s summary. Referring to the state statute that requires the referee to submit his recommendation to the Board of Education with 10 days of the hearing termination, the referee defined “hearing termination” as ‘when I have finished reviewing everything submitted to me.’ That means that we have no idea when the recommendation will be submitted to the Board of Education except that it will be later than 10 days after August 2. The two reporters and I pressed the referee on whether the summaries from the two sides would be subject to a public records request, and he said he regarded them as private until his recommendation goes to the Board of Education. One or the other (or both) newspapers may press on that. I hope they do.

Sometime in the next week or so I will attempt a summary post, though finding a narrative theme for it is going to be really hard and I have no idea now what it will be.

The last thing that Joan, the court reporter, said to me as we exited the hearing room for the last time was “Where’s the cast party?”