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

Mount Vernon school board members do not want to appear to testify in the hearing for the teacher they placed on unpaid administrative leave last summer. In a brief filed on Friday, they said the county judge cannot make them testify:

“The statue is clear – this Court’s jurisdiction to compel attendance at a hearing is limited to the instance where a person fails to comply with a subpoena. As the subpoenas have been quashed by the Board, Petitioner does not have a vehicle to invoke this Court’s jurisdiction. Therefore, Petitioner’s Application should be rejected in its entirety.”

This second document from the school board’s attorneys appears to have been submitted along with the one on Wednesday, but it had to receive special approval from Judge Eyster before officially being “filed.” It goes into greater detail than the previous document—including citing specific court cases and providing affidavits from three of the school board members.

In this brief, it says that if board members testified “they would necessarily have to disqualify themselves from participating in the ultimate adjudication of this matter.” In the document filed on Wednesday, it only said it was “likely.”

As support for their position, the brief cites the case of Wilson v. Okla Horse Racing Comm’n:

“…[T]he actions of [the board member] in initiating and taking an active role in the matter for which [a horse trainer] was suspended, coupled with his presiding over the three-person Board and testifying in the case created a situation in which he should have disqualified himself.”

When the board voted to start the process of firing Freshwater last summer, they gave four reasons that they said were “independently sufficient ground for termination of employment.”

During the 20 days of testimony in the ongoing hearing, the evidence for many of the original allegations has been challenged. The brief filed Friday included a summary of the original four reasons as “Background” information:

• 
  “Petitioner’s use of a ‘Tesla’ coil, an electrical device, on multiple 8th grade students in science class, burning a mark on at least one of them.
• 
  “Petitioner’s teaching outside the approved curriculum, including teaching Creationism and Intelligent Design and including teaching religion in his eighth grade science class.
• 
  “Petitioner’s failure to stay within the statutorily imposed duties for a school employee monitor of a religious organization, the Fellowship of Christian Athletes, and serving as a participant rather than a non-participant in his role there.
• 
  “Petitioner’s acts of insubordination by failing to follow a directive of school administrators and further compounding the insubordination by taking further action to highlight that insubordination.”

The “failing to follow a directive” in item number four is a reference to Freshwater’s Bible. The “further compounding” most likely refers to Freshwater bringing a Bible and another book from the school’s library into his classroom.

The school board members have not been attending the hearing. Those present at the hearing have been their attorney, David Millstone, and Superintendent Steve Short.

The affidavit of school board President Ian Watson states that he does not have firsthand knowledge of the “alleged acts of Mr. Freshwater.” He does acknowledge having talked with the Dennis family—who brought complaints against Freshwater—and that he also did try the Tesla coil out on his own arm to see what it would do:

“Prior to issuance of the Amended Resolution, I had several conversations with Steve Dennis and Jennifer Dennis involving concerns and complaints they had about Mr. Freshwater’s class and activities at Mount Vernon Middle School. I referred those concerns and complaints to the Superintendent of the Mount Vernon Schools, Steve Short. After the Mount Vernon Schools received a written letter from counsel for Mr. and Mrs. Dennis, the Board of Education decided to have an independent investigation made into the various concerns and complaints they had raised.”

AND

“At some point in April 2008, I asked to see a demonstration of the Tesla coil, an instrument Mr. Freshwater is alleged to have used to burn or mark a student and then applied it to myself to see if it would a (sic) cause a burn. Subsequently, Steve Dennis came to my office and saw the mark it had made on me. I had not scheduled Mr. Dennis to come to my office.”

The affidavit of board member Jody Goetzman also stated that she did not have any firsthand knowledge. She does acknowledge having talked with Jennifer Dennis about her complaints, but said that it was prior to taking office as a school board member.

The conversation Goetzman had took place sometime between November 2007 and January 2008. “She expressed concerns and raised issues concerning Mr. Freshwater and her son,” Goetzman stated. “I advised her that I was not yet a Board member and that if she had concerns as a parent, she should go to school authorities including the Middle School Principal and the Superintendent, to pursue or (sic) concerns.”

The affidavit of board member Margie Bennett also stated that she did not have any firsthand knowledge. She acknowledges being subpoenaed “to appear to testify and to produce certain documents.” She has been on the board since January 1988 and currently serves as its vice-president.

The brief filed Friday argues that Freshwater does not have a legal right to force anyone to turn over documents. “[The law] does not provide any right to the discovery of documents as sought by Petitioner,” the brief stated. “The statute only provides that the parties require witnesses to be under oath and subject to cross-examination.”

***

For more information, see the last two articles on this topic:

“School Board ‘quashed’ Subpoenas in the John Freshwater Hearing.”

"School Board Gives Reason for Not Complying With Subpoenas."



UPDATE 7/1/2009:

The minutes of the May 4, 2009 school board meeting are now online.

In this meeting, it was voted—by the Mount Vernon City School District Board of Education—to quash the subpoenas of Margie Bennett and Ian Watson.

The board believes that only these two members were subpoenaed. Attorney for John Freshwater, R. Kelly Hamilton, filed an “application to compel attendance of witnesses” that says that Jody Goetzman was also subpoenaed.

The relevant portion of the board’s minutes are below:

Mrs. Fair moved, seconded by Mr. Hughes, to quash Dr. Bennett’s subpoena to testify at the Freshwater termination hearing on May 7 and May 8, 2009.

Call of votes: Mrs. Fair, Yes; Mr. Hughes, Yes; Dr. Bennett, Abstain; Mrs. Goetzman, Yes; Mr. Watson, Yes.

Motion carried.

Mrs. Goetzman moved, seconded by Mrs. Fair, to quash Mr. Watson’s subpoena to testify at the Freshwater termination hearing on May 7 and May 8.

Call of votes: Mrs. Goetzman, Yes; Mrs. Fair, Yes; Dr. Bennett, Yes; Mr. Hughes, Yes; Mr. Watson, Abstain.

Motion carried.

UPDATE:

“Judge Says He Doesn’t Have Jurisdiction”

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."

John Freshwater Didn’t Call Media for Gathering on Square

The following testimony took place on 3/27/09—this article relies on the official hearing transcript for details of the testimony.

The Mount Vernon middle school teacher who refused to remove the Bible from his desk has been criticized by some as trying to seek attention. During testimony in March in an ongoing hearing, information came to light that it was another local resident who called the media.

Jeff Cline, who described himself as one of John Freshwater’s “Christian brothers,” said that he was the one who called the media. The television stations he said he called were “Four, six, and ten.” He also said he thought he was the one who contacted the Associated Press.

The gathering was held April 16, 2008 on the public square of downtown Mount Vernon, Ohio. Freshwater read a statement explaining why he was not going to remove his personal Bible off his classroom desk. Mount Vernon News reported on the gathering in the article “Crowd shows support for MV science teacher.”

(It wasn’t until after the gathering that other allegations against the teacher emerged. See Mount Vernon News article “Teacher conduct subject of investigation” )

Attorney for Freshwater, R. Kelly Hamilton, asked Cline what his impression was—based on observation, experience and discussion—of whether or not Freshwater would have participated if he knew the media would be there. “John wouldn't have been there that day,” Cline said. “John wouldn't have put that together.”

Cline also stated that Freshwater had no role in inviting people to attend the gathering. Cline said he had no knowledge of whether or not it was Freshwater who wrote the statement that Freshwater read to the crowd.

It was from having a conversation with Freshwater that Cline learned Freshwater was being ordered to remove his Bible.

On the day of the gathering, Cline described Freshwater as not being his usual cheerful self. “John's always pretty much happy, smiling, just very upbeat and positive type person,” Cline said. “That day I could tell just the -- he looked terrible. The sight of him, just the tears in his eyes and the quivering in his voice, just a total different John that I'd ever seen. He was fearful.”

Cline explained the reason for Freshwater’s demeanor as being the concern over the Bible. “[He was fearful of] Losing his Bible from his desk, somebody taking that prize possession of his, that Bible,” Cline said.