Freshwater: The defense rests

The final defense witness in the administrative hearing on the termination of John Freshwater was Steve Hughes, a local attorney and former member of the Board of Education who was on the Board during the 2007-2008 academic year when the Freshwater affair blew up. He was defeated for re-election in 2009. After Hughes’ testimony the Board began its rebuttal case, which I’ll cover in another post over the weekend.

Forewarning: It is going to be difficult to write about Hughes’ testimony with a tolerably low level of snark. As you will read, in January 2010, after he was off the Board of Education, he gossiped with Freshwater at length about Board deliberations, about his speculation on which way one Board member would vote on the Freshwater matter, about his opinion of the Board’s attorney, David Millstone, and even apparently about a legally confidential employment settlement made with a former administrator several years ago. And he’s a practicing attorney! After hearing his testimony I wouldn’t hire him to search a title, say nothing of represent me in anything more serious.

Added in edit: I just realized that at the time Hughes was gossiping with Freshwater–January 2010–the Board of which he had until recently been a member was also a defendant in a federal suit brought by Freshwater in June 2009 while Hughes was on the Board!

More below the fold

As an introduction, I will quote from a previous post on Freshwater’s testimony about meeting Hughes:

Then questioning turned to several conversations Freshwater had with Steve Hughes, a local attorney who was a member of the Board of Education when it suspended Freshwater. According to Freshwater, he had a couple of brief conversations with Hughes when the latter stopped at Freshwater’s apple stand to buy apples, and again in a supermarket. Then Hamilton and Freshwater encountered Hughes as they were walking from the parking lot to the County building where the hearing was being held. Hughes’ office is across the street. Freshwater said Hughes hailed them. Freshwater said he went on into the building while Hamilton stayed to talk with Hughes.

Then, Freshwater testified, he visited Hughes in his office a few days thereafter because he suspected that Hughes was the anonymous source of the material in the black bag. He secretly taped their conversation, which lasted a bit over half an hour. When he got home from that visit, Hughes telephoned as he walked in the door. Freshwater taped their telephone conversation, too. A transcript and CD of the recording(s) was entered into evidence. A couple of extracts were read in the hearing, one with Hughes telling Freshwater something to the effect that insurance companies try to “starve the plaintiff out.” Freshwater testified that he interpreted that as applying to him. That doesn’t make sense. The only insurance company involved is associated with the federal suit where it is acting on Freshwater’s behalf, so those who it would be trying to starve out would be the Dennis family.

Freshwater testified that Hughes told him the suspension was based on the investigator’s report. He said that it didn’t have to do with what Freshwater did 20 years ago or 6 years ago, but what happened in 2007-8 school year. That blows up Freshwater’s notion that someone has been out to get him since 2003.

Freshwater said that Hughes told him that what the Board will do would depend on what the referee said and how he said it in his report. Well, duh.

Asked, Freshwater said that Hughes had a Bible on his desk.

The transcripts of the tapes of Freshwater’s conversations with Hughes were entered into evidence, and were a topic of Hamilton’s questioning in Hughes’ direct examination (there was no cross examination).

In direct examination Hamilton asked about the first encounter Hamilton and Freshwater had with Hughes on January 15, 2010, in the parking lot of the county office building where the hearing was held. Hughes testified that he had a hearing in common pleas court in the county courthouse, next to the county office building. He testifed that he recognized Freshwater but not Hamilton. Hughes testified that he told Hamilton that he had a case in Shelby, Ohio, where the referee of the hearing, R. Lee Shepherd, is city law director, and said that he had met Shepherd. Asked by Hamilton why he told Hamilton that, Hughes replied, “A matter of courtesy.” He said the case in Shelby involving Shepherd was still pending at the time.

Hamilton asked if Hughes had any conversations with Freshwater. He identified three brief conversations, one at Freshwater’s apple stand in Mt. Vernon (Freshwater sells apples from his orchard), one at a supermarket, and one when Hughes bought a Christmas tree from Freshwater’s stand. He said he stopped at the apple stand because he wanted to introduce himself; he hadn’t met Freshwater before that.

Hamilton asked if Hughes had a conversation with Freshwater at his office on January 19, 2010. He replied that he did but that it was outside his office. Asked if he thereafter phoned Freshwater, he testified that after the meeting with Freshwater he saw Freshwater’s number on his caller ID and phoned.

Hamilton asked if Hughes knows who the anonymous source of the black bag documents is, and he replied that he did not. Asked, Hughes denied providing any material to Freshwater.

Hamilton asked if Hughes had reviewed the transcript of the recording of his conversations with Freshwater. Hughes replied that he wasn’t aware that there was a recording.

Hamilton proceeded to read two brief extracts from the transcript: “What we [the Board of Education] had was the written report from HR OnCall” and “That is what we based our decision on.” Hamilton began to ask a question about those extracts and Millstone immediately objected on the ground that the comments were descriptive of the Board’s deliberations in executive session, which have statutory confidentiality protection, and are also protected by attorney-client privilege (Millstone had advised the Board on those deliberations). Shepherd instructed Hughes to answer questions only insofar as he could do so without breeching those protections. Hughes’ subsequent testimony on the transcript was often punctuated by similar objections from Millstone and repeated instructions to Hughes from the referee. Nearly all of Millstone’s objections were sustained and elicited re-instruction from the referee to Hughes.

Hamilton asked if Hughes thought the investigators’ report contained any deficiencies. Hughes replied that it was difficult to answer because he was unaccustomed to reading reports from that sort of company. He said, “I don’t recall any particular deficiencies.”

Hamilton asked Hughes if he knew whether Freshwater had proposed additional witnesses to be interviewed by the investigators who were not interviewed. He did not. Hamilton asked if Hughes’ opinion on the resolution of intent to terminate would change if he knew that. Millstone objected and the objection was sustained.

Hamilton asked if Hughes was aware of converations between Principal White and Freshwater regarding the Bible on Freshwater’s desk. He was. Asked how, he thought perhaps Superintendent Short told him.

Hamilton asked if Hughes was aware of the district master contract, and he said he was. Hamilton asked if Hughes knew that it gave the teacher the right to write a comprehensive response to allegations. He didn’t recall.

Hamilton asked if Hughes knew Freshwater was not a member of the union, and he replied “I did not know that.”

Hamilton read another extract from the transcript quoting Hughes: “Between you, me, and the fencepost, I wanted them to get rid of Millstone early …”. Millstone objected and the objection was sustained.

Hamilton read two more extracts quoting Hughes: ““Nobody really wanted to bring forth the resolution…” and “By the time it got to me [the roll call vote] it had already passed.” The first refers to a long pause in the Board meeting after Ian Watson read the resolution of intent to terminate before Sharon Slane Fair moved it and Jodi Goetzman seconded it. The second quote refers to the fact that by the time the roll call got to him three of the five Board Members had already voted “yes.”

Hamilton asked what the ‘nobody … bring forth’ language meant. Hughes replied that “There was a hesitancy about …(inaudible) … a person’s job.”

Referring to his conversations with Freshwater, Hughes said they occurred because as a Board member he wanted to personally hear Freshwater’s side of the story, Hamilton asked whether the investigators’ report didn’t contain Freshwater’s side, and Hughes responded that “I had no knowledge of what his side might be.”

Hamilton read another extract quoting Hughes: “I pretty much knew how Ian Watson [former President of the Board of Education] was going to vote.” Hamilton asked how Hughes knew that. Millstone objected and the referee instructed Hughes again. Hughes replied, “It was just something I said.”

Responding to a question I didn’t catch, Hughes said again, “I talked to Mr. Freshwater to get a sense of what kind of person he is.”

Hamilton asked if Hughes knew whether Watson had talked with HR OnCall, and he didn’t.

Hamilton noted that in the transcript Hughes referred to case law involving unlawful termination that might be relevant to Freshwater’s situation and asked what case that was. Hughes couldn’t remember.

Hamilton asked if Hughes was aware that the district stored material from Freshwater’s classroom. He testified that he wasn’t. Hamilton asked if Hughes had ever seen materials from Freshwater’s classroom. He testified that he had not.

Hamilton asked if Hughes thought Superintendent Short kept the Board well advised of what was going on in the hearing, and Hughes replied “Appears to me that he did.”

Hamilton asked if Board members are supposed to do independent investigation in cases of related to teacher employment. Millsone objected, and there was an off-the-record conference of the attorneys and referee outside the hearing room. On their return, it was noted on the record that “the Board has a confidentiality agreement with Hughes that he cannot breech.” I have no idea what that’s about.

In any event, Hughes replied, “It’s not a good idea in general.” Hamilton asked if the Board depended solely on information provided by the administration. Hughes responded that “Generally speaking, the Board would rely on someone else to do the groundwork.”

Hamilton noted that Watson had contacted the ACLU and asked Hughes if that was proper. Hughes replied, “I believe in that case it would be proper because he was acting as Board president.”

Hamilton read another extract from the transcript quoting Hughes: “Sinclair and Maley maybe played with the books.” “Sinclair” refers to Nancy Sinclair, deceased former Treasurer of the school district, and “Maley” refers to the former superintendent, Short’s predecessor. Millstone immediately objected. From comments made in the dispute following Millstone’s objection, I think–but do not know–that part of the conversation between Freshwater and Hughes was about a confidential agreement between the Board and a former administrator who was paid several years worth of salary on his separation from emploment by the Board. (See here and here for what little information is publicly available.)

After yet another instruction from the referee, responding to Hamilton’s question of what that was about, Hughes replied “It was based on a rumor. It resulted in the settlement we’re not talking about.”

In another exchange I didn’t get clear notes on, Hughes referred to Dr. Margie Bennett, a long-time member of the Board, saying she is likely to vote for termination.

Hamilton read a snippet from Hughes saying something about insurance companies using delaying tactics to “starve the plaintiff out,” and asked Hughes what that was about. Hughes said he made that comment in relation to his former employment by an insurance company.

Hamilton asked Hughes why Freshwater was suspended without pay. Hughes replied that he didn’t know. Asked who recommended it, he didn’t recall. Asked if he was aware of any other teacher who was suspended without pay, he was not.

Hamilton asked about Hughes’ comment in the transcript to the effect that the Freshwater resolution was not about what happened 20 years ago or 6 years ago, but about what happened two years ago. (Recall the transcript is from a conversation in January 2010; Freshwater’s alleged burning of Zach Dennis was in December 2007.) Hughes replied that was the case. (Note that as I commented in an earlier post, this makes Freshwater’s claim of a years-long conspiracy against him less tenable. Note also that coupled with the comments about Margie Bennett’s vote above, Hughes is implicitly identifying her as the core of the conspiracy. She’s the only remaining Board member from the 2003 debacle.)

Hamilton asked the meaning of Hughes’ comment that the Board will vote based on what Shepherd says and how he says it if he found in Freshwater’s favor.” Hughes said he was referring to whether Shepherd provided a synopsis of what each witness said.

Hamilton then moved away from the transcript, asking Hughes what “insubordination” means. Hughes replied that it is “the willful refusal to obey a reasonable and legitimate order from his superior that was within his job duties and did not pose a hazard.”

Hamilton asked if a teacher had a Bible on his desk, and there’s training, law, and experience saying it’s OK, if it is legal to order it off the desk. Hughes replied it depends on the circumstances.

Hamilton asked what it takes to make a Bible on a desk more than just a Bible on a desk. Hughes replied if the teacher is drawing attention to it, or if it becomes part of a religious display.

We then played the Sorites paradox game again, this time with the number of students who notice that the Bible is on the desk is too many. One student? Two students? How many. Dumb game. We also did the “teacher’s intention” bit: Is it relevant what the teacher’s intention is in having the Bible on his desk. Hughes was noncommittal.

Hamilton asked if using the 10 Commandments poster on the classroom door panel for security purposes constitutes a legitimate secular purpose. Hughes replied just for that, yes. Hamilton then went through the Freshwater/Lori Miller comparison again, moving to the discrimination angle. Then we played the ‘how many items are required to make it a religious display’ game again. Hughes responded that in wasn’t the number of items per se but rather it depends on the context. Responding to Hamilton’s hypotheticals, Hughes testified that adding the FCA materials to the Bible would create a religious display. “If you have more than one religious object in the classroom,” he said.

Hughes also testified what constitutes a religious display depends in part on the perceptions of those seeing it, finally sneaking up on the effect prong of the Lemon test. Hamilton has been solely focused on the purpose prong, and confining even that to the explicitly expressed purpose of the person doing the displaying.

That ended Hughes’ direct examination; there was no cross examination.

And that concluded Freshwater’s defense case. I’ll cover the Board’s rebuttal witnesses in another post that’ll go up over the weekend; this post is up to ~2,500 words already.

Wait. I almost forgot: Does anyone disagree with my opinion of Hughes?