School Board Gives Reason for Not Complying With Subpoenas

The employment hearing for suspended Mount Vernon teacher John Freshwater has been held up by the refusal of several school board members to turn over documents and to appear to testify. On Wednesday, two attorneys for the Mount Vernon City School District Board of Education filed a document at the county courthouse giving as their reason that it was “likely” that if their clients appeared to testify they would have to disqualify themselves from the Freshwater matter.

The document—filed with the Court of Common Pleas Knox County, Ohio—gave no specific legal reason why board members were, in their words, “likely” to have to disqualify themselves. The concern is raised in the document that if there was a need for more than two members to disqualify themselves, the board would not have quorum.

The filing of the document came just two days after a public school board meeting in which residents expressed disappointment with the board's handling of the controversy. One of those that spoke at that meeting urged the school board members to comply with the subpoenas. “So as a young person I find myself questioning the people elected to office in our community and the process of the law,” Levi Stickle said. “Please, for the sake of other young people like myself, for this community and to simply get to the truth stop the charade and testify!”

Requests made to school board attorney David Millstone last week—seeking a clear legal explanation for the board’s refusal to testify—were not returned.

The document cites “Rule 24(A) of the Ohio Rules of Civil Procedure”: *

“Intervention of right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of this state confers an unconditional right to intervene; or […](2) when the applicant claims an interest relating to the property or transaction that is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.”

(The document left out those portions that I’ve put in bold. They also inserted “…” where I’ve indicated.)

The documentstates that the board quashed their own subpoenas:

“In response to the receipt of their subpoenas, the two Board members requested the Board quash the subpoenas as neither Board member had direct knowledge of the facts related to the allegations contained in the Board resolution, and the Board did so in May 2009.”

The document by the board only lists two members as being previously subpoenaed—but does not give their names. It also says that a third member has previously been “requested to bring certain documents.” It goes on to say Freshwater “has indicated he intends to subpoena a third Board member and through his petition has indicated the possibility of subpoenaing a fourth Board member.”

The “Application to compel attendance of witnesses in the employment hearing of John Freshwater”—that was filed by the attorney for Freshwater, R. Kelly Hamilton, on June 2—says that more than two board members were subpoenaed. (See the last article on this topic “School Board ‘quashed’ Subpoenas in the John Freshwater Hearing.”)

The matter has yet to be ruled on by Judge Eyster.


* Note: “Rule 24(A) of the Ohio Rules of Civil Procedure” was probability not being used by the board as support for being able to quash subpoenas. It was probably only cited by them as the basis to submit their reply to the original document filed at the county courthouse.

UPDATE 6/20/2009:

"Subpoenas in John Freshwater Hearing -- School Board Says Judge Doesn’t Have Jurisdiction."