Freshwater Update: A last-minute postponement

Posted 24 July 2009 by Richard B. Hoppe

The hearing on the termination of employment of Mt. Vernon Middle School science teacher John Freshwater was scheduled to resume today, July 24. However, after an hour-long conference this morning among the attorneys and referee, the hearing did not resume and will not resume until sometime on or after September 10, 2009. It seems that the Ohio Revised Code provides that in such a hearing, the subject of the hearing, in this case Freshwater, can elect to not have hearing days scheduled when the schools are not in session, and through his attorney, R. Kelly Hamilton, that choice was made today. In interviews after the aborted hearing Hamilton made it clear that it was his decision as Freshwater's attorney, not Freshwater's. Hamilton said he intends to file a writ of mandamus with the Ohio Supreme Court to compel the Board to issue subpoenas for two Board of Education members, Jody Goetzman and Ian Watson, to testify. He had previously requested that they be subpoenaed, but the Board of Education (the issuing body for subpoenas for the hearing) quashed the subpoenas and the Knox County Court of Common Pleas declined to enforce the (non-existent because they were quashed) subpoenas. See here for that story. A writ of mandamus is a high priority item for the State Supreme Court -- it goes to the head of the queue on the Court's docket -- but the Court is on summer recess now so it's hard to know when the Court will rule on Hamilton's motion, which is not yet filed. More below the fold. It's of some interest that Hamilton informed the hearing referee of his intention to delay the hearing on Tuesday of this week, but it was not acted on until this morning after a bunch of attorneys, a prospective witness, and a (very small) gallery of spectators and media had assembled in the hearing room this morning. That it was a last-minute affair is consistent with Hamilton's apparent strategy to delay, delay, and delay some more in order to bring pressure on the Board of Education to settle on Freshwater's terms. Hamilton mentioned his intention to appeal the Common Pleas Court's ruling two weeks ago on July 11, 2009, in a radio interview. So there was no need to bring all these attorneys to Mt. Vernon this morning only to announce that Freshwater would choose to postpone it until September. In the radio interview linked above Don Matolyak, Freshwater's pastor, complained about the cost of the hearing to the school district and the hours that Freshwater's attorney has put in, explictly coupling the latter with comments about Freshwater's terms for a settlement. In my view, Freshwater and his attorney have been a primary cause of that cost. Just this morning five attorneys spent billable hours because Hamilton delayed the request to postpone the hearing until the last minute. In comments after the postponement, David Millstone, the Board of Education's attorney, said that he wouldn't speculate on Hamilton's motives for requesting the postponement, but that the Board was eager to conclude the hearing expeditiously and regretted the delay. He said that calling the Board members to testify was inappropriate because they have no first-hand knowledge of the matters that are the subject of the hearing, Freshwater's behavior in a variety of school contexts. He said also that the Board members will have to make a decision on the referee's recommendation. They initiated the process that will lead (sometime this decade, I hope!) to a recommendation from the referee and will then have to act on the recommendation. However, they were not themselves parties to or observers of the acts that led to the initiation of termination proceedings and hence their testimony is inappropriate. However, Freshwater (and/or Hamilton) has a conspiracy theory to the effect that his 2003 effort to introduce Jonathan Wells' crap into the school science curriculum put a target on him, "branded" him, in his own words in the interview linked above. Apparently someone -- the Board, the administration, someone -- has held a grudge against him for that, and the termination proceedings six years later are the result of that grudge. It's of some interest that there are only two people in authority in the school during his termination proceedings who were also in their positions during the 2003 incident. They are Lynda Weston, who was Director of Teaching and Learning from 2000 to 2008, when she retired, and Dr. Margie Bennett, an administrator at the Mt. Vernon Nazarene University and the only Board member during the 2003 incident who is still on the Board now. So if Freshwater is right and administrators and Board members have been conspiring since 2003 to get rid of him, it's Weston and Bennett who must be the culprits. I don't think John has thought this through very carefully. Bennett in particular has taken significant pressure from her co-religionists in this matter both in 2003 and now, and I admire her ability to think about her responsibilities to the schools in spite of that pressure. She has done a good job for the schools for years.

37 Comments

mary · 24 July 2009

Wow!!! Thanks for such a thorough update!

Wheels · 24 July 2009

This behavior is pretty disgusting. It's tying up valuable district resources in time, money, and manpower that SHOULD be used to make sure students get the best education they can, just for Freshwater's personal gain (or at least to put off his losses).

Also, Freshwater doesn't seem to appreciate "branding" when it's not being done with something electrical.

Stacy · 24 July 2009

This disgusts me also. It's everyone's fault but his own. *sigh*

Marion Delgado · 25 July 2009

This is definitely not a Dover situation. But I think counselor Hamilton doth project too much. His insinuation that opposing counsel for the board of ed is involved in the conspiracy and they may seek legal action against him is pretty bad - and leaves Hamilton open I think to action for barratry. If he makes a habit of this, disbarment.

Dover was open and shut and this just is not. By treading carefully, the board of ed will lose a lot of money - maybe the million they lost in Dover - but avoid, at least, the martyrdom rap for Freshwater. The truth is, he should have been warned more, then fired, and the previous administration should have been censured by the then board but weren't - this is a problem with treating institutions as if they were people. As personnel change, so does the direction of the institution.

This new strategy is "problems with evolution" + "make them fire teachers" so its demands are minimal and the action by the local boards has to be greater. If it catches on, schools will need upper court protection.

It's a pity Hamilton, for all his recklessness, isn't poised to take this up. For all that it's a complex case and his client has quite a few valid points, ultimately, it'd be a losing precedent.

Marion Delgado · 25 July 2009

Actually, in most states, including Ohio, what Hamilton may be on the road to facing is action for vexatious litigation and abuse of process.

John Kwok · 25 July 2009

Definity not an easy "open and shut" case. Just wondering though. Is there a chance for some kind of out-of-court settlement that would quickly end this? Not that I think Freshwater should be entitled to much, period, but at least his school board wouldn't be wasting its time and thus could go on to other, substantially more important, matters pertaining to education.

ravilyn.sanders · 25 July 2009

The lesson from this sordid court case is, when a teacher is found violating the establishment clause or pushing the boundaries, the school board and the school admin should warn early, warn often, document the warnings and take it very seriously. Else there will be much hand wringing and legal bills later.

It would be a good idea for the science supporters to write a small "voter education" write up about what happens when people elect stealth candidates and creationists of various shades to school boards who turn a blind eye to such rogue teachers and condone such actions. Most school board elections have very small voter turn out, typically less than 15%. So if it persuades
even a very small percentage of the voters, it would have a decent impact in future school board elections.

Marion Delgado · 25 July 2009

Ravilyn that sounds promising, but please consider what you'd say about Freshwater?

The school administration looked the other way - for years; a handful of teachers in this small Bible Belt town pushed religion as far as they thought they could get away with; the principle offender memorized the right things to say about what he was doing (creationism -> intelligent design -> explore evolution critically); only when a new administration came in that CLEANED HOUSE and tried to fix the problem did the financial loss to the school district come about.

If I'm a wallet voter, my take-away message might be, the new administration should have started the warning process anew with Freshwater, and accepted the minor harm of him being a science teacher a couple more years, and saved ME a million dollars, or whatever. Especially since it's hard to prove that he harmed science education in his results, compared to other small school districts in Ohio.

And it might also be argued that the board of ed should have instituted better procedures, more review of school administrations, maybe circulated some guidelines, etc. And not, in a sense, retroactively applied to one teacher the rules that he can argue weren't made clear to him at the time.

"We" (people who don't want creationism in science classes) aren't going to get a damn thing out of this. On the contrary. Creationists around the country are going to be looking for other Mt. Vernons to exploit. Arguably, Freshwater had nothing to lose going to the wall on this - most of the money he'd spend on legal fees is being contributed, and he's now a Christian celebrity.

Until this tactic is understood and countered, it's way, way better for creationists than the imbecilic Children's Crusades pushed by the Thomas Moore center. Their demand sounds more reasonable. Countering individual teacher action by firing is going to be seen as Draconian and a form of censorship.

Marion Delgado · 25 July 2009

On the other hand, obviously, if Freshwater et al. are able to jack the board for ransom, obviously, it'll be Katy-bar-the-door after that. I would simply write off the money it will take to prevail. And I would push for court costs, because most of the costs come from improper behavior AFTER Freshwater retained Hamilton.

MPW · 25 July 2009

ravilyn.sanders said: The lesson from this sordid court case is, when a teacher is found violating the establishment clause or pushing the boundaries, the school board and the school admin should warn early, warn often, document the warnings and take it very seriously. Else there will be much hand wringing and legal bills later.

I would like to think this is the lesson, but I'm afraid that might be true only if you cherry pick a few cases like Freshwater's. It's my impression, at least, that the sort of distortions Freshwater taught in his classroom are fairly common in public schools around the USA; and that usually other teachers, the students, the administration and the community largely support it, or are at least indifferent, and that the teachers usually get away with it. It's understandable, from a purely mercenary point of view, that an administration could think, "This probably won't get us in any trouble at all, and it's what the community is happy and comfortable with. Why rock the boat?" This is what I suspect usually happens, and they're usually correct. (This is leaving aside, of course, the small matter of the dereliction of their educational duties.) The problem is the broader culture, and how thoroughly marinated large segments of it are in authoritarian religious ideas and habits. I'm afraid those of us pro-rationality folk who follow cases like Dover and the Freshwater hearings are apt to overstate their importance, and to misunderstand what impression they create in the less informed segment of the populace (a point Marion addresses above also). I'm not sure you could bring enough court cases to change that larger cultural problem. How you do change it is a very difficult and nuanced problem (that's created a lot of disagreement on this board and other, similarly themed ones, as I'm sure everyone is aware).

dogmeatIB · 25 July 2009

MPW said: I would like to think this is the lesson, but I'm afraid that might be true only if you cherry pick a few cases like Freshwater's. It's my impression, at least, that the sort of distortions Freshwater taught in his classroom are fairly common in public schools around the USA; and that usually other teachers, the students, the administration and the community largely support it, or are at least indifferent, and that the teachers usually get away with it.

MPW, As an educator, I would have to disagree with this statement quite emphatically. While there are likely large areas of the country where this is probably true, especially in the Bible Belt, I would argue that this is not the majority position. A big part of the problem, for those who don't know that much about education at the 7-12 level, teachers are largely on their own once the school day begins. A school with a staff of 100 teachers usually has perhaps 3 or 4 administrators. They are generally in charge of a number of things above and beyond observation and supervision of teachers. That means that even good administrators who are consistently in the classroom doing observations are only in a specific teacher's classroom perhaps once a week for maybe 5 to 10 minutes. Without some sort of incident or complaint to initiate closer scrutiny, there isn't the time nor the budget available to keep close tabs on the vast majority of the classroom teachers. Over the years I've been in truly horrible districts and very supportive and "aware" districts. In the former, unless kids started complaining, I could have taught them just about anything I wanted to. In the latter, there was much greater awareness of my efforts, ability, and how I met the state standards, but I was still on my own at least 95% of the time. In both cases I can firmly state that were I a strong believer of some aspect of faith, using this example a creationist, I would easily have been able to "play the game" and insert my beliefs into the instruction without most of my fellow teachers or administration having any idea what I was doing. In two of the districts I probably would have had a complaint or two were I to do something like that, the third, highly unlikely. In each of those cases odds are good, if I was any good at lying at all, I could have rather easily presented a strong case that the complaints were founded upon students' misunderstanding of what I said. If I, like Freshwater, happened to be a science teacher (fairly rare) who had great standardized test scores (quite rare), and made a "they just misunderstood me" argument, odds are in the 90% range that the whole matter would be dropped.

Marion Delgado said: If I’m a wallet voter, my take-away message might be, the new administration should have started the warning process anew with Freshwater, and accepted the minor harm of him being a science teacher a couple more years, and saved ME a million dollars, or whatever. Especially since it’s hard to prove that he harmed science education in his results, compared to other small school districts in Ohio.

Problem is Marion, once a complaint was registered that involved the injury of a child, with growing evidence that the guy had been doing this for years, the administrator's hands were tied.

MPW · 25 July 2009

dogmeatIB - Based upon what you've written, I'm not sure how much we really disagree. Perhaps I should be clearer. When I say, "the sort of distortions Freshwater taught in his classroom are fairly common in public schools around the USA," and you say, "there are likely large areas of the country where this is probably true, especially in the Bible Belt, [but] this is not the majority position," I think we mean more or less the same thing.

I certainly don't think that creationist and other Christianist teachings are routine in the majority of schools; but from what I've read and heard, they are routine in a pretty large minority - certainly enough to have a large effect on the entirety of our culture, particularly our political culture.

However, your firsthand observations about the ease with which dishonest proselytizing teachers might evade administrative scrutiny are enlightening, and I'll certainly factor them in when hearing/reading about future cases of this sort (sadly, I'm sure there will be many more).

On the other hand again, so many of these sorts of cases - Dover, Freshwater, the Matt LaClair incident in New Jersey (about 90 minutes from New York City - not the Bible Belt!) - involve a history of winking and nodding, if not outright collusion and cover-up, from the administration, and even a number of successive administrations. Which almost inevitably takes place in a general atmosphere of community approval of the in-class proselytizing, and a rallying around the teachers who are called to account for it.

Chip Poirot · 26 July 2009

Marion Delgado said: On the other hand, obviously, if Freshwater et al. are able to jack the board for ransom, obviously, it'll be Katy-bar-the-door after that. I would simply write off the money it will take to prevail. And I would push for court costs, because most of the costs come from improper behavior AFTER Freshwater retained Hamilton.

Firstly, let's look at the statute which I have posted here several times before. The statute provides Freshwater specific rights-including the right to subpoena witnesses and the right to not have to have the hearing during the summer. Secondly, it's the statute that mandates that the hearing take place in front of the body that voted to terminate Freshwater, with a neutral arbitrator present. If Freshwater's attorney wants to argue that this was retaliation and religious discrimination, then he has a right to make that argument. If he thinks there are relevant witnesses who should testify, he has a right to try and compel their testimony. It was the Board and the personnel firm that turned what should have been a straightforward case about reckless behavior in the classroom and insubordination into a lengthy he said-he said-he said-...etc., thus opening the door to Freshwater's rebuttal. Nor did the personnel firm appear particularly concerned to get Freshwater's full story. Personally, I think there is a simpler, more direct argument to make. Much probably hinges on what Freshwater did (and did not do) after he received the letter from his school principal. In that letter as I recall the school ordered him not to do x, y and z, and specifically said, that if there are no future instances, this letter will not go in your file. By all accounts, the matter was then presumed closed, until the boy's parents filed suit-which also came as far as I can see after the parents had originally simply stated that they were not seeking action against Freshwater, but simply wanted an explanation as to what happened. It was at that point that Board decided to investigate and at which the District's lawyer engaged in significant ex parte communication with the personnel firm hired to investigate the incident. That is not even a verbal reprimand. Freshwater's claim is bolstered by the fact that he has been teaching approximately 20 years with not even a reprimand, and his students have done well on state tests. I'd say this is a case study all around in how not to investigate allegations of teacher misconduct and how not to handle potential problems. As to what goes on in Ohio wrt teaching of evolution, my own personal experience suggests that Freshwater is probably common. My own students (most from Southern Ohio) have to a person almost **never** had any introduction to evolution when I do the unit on it cultural anthropology (on the other hand, some of them seem to not have had fractions, decimals and percents-but that's another matter). Several years ago, a student of mine told me that in her high school, half the class literally walked out when the topic of evolution was introduced.

Stanton · 26 July 2009

Chip Poirot said: As to what goes on in Ohio wrt teaching of evolution, my own personal experience suggests that Freshwater is probably common. My own students (most from Southern Ohio) have to a person almost **never** had any introduction to evolution when I do the unit on it cultural anthropology (on the other hand, some of them seem to not have had fractions, decimals and percents-but that's another matter). Several years ago, a student of mine told me that in her high school, half the class literally walked out when the topic of evolution was introduced.

And yet, there are people who are perfectly fine with the American public being simultaneously totally dependent on science, yet, arrogantly proud of being scientifically illiterate.

RBH · 26 July 2009

Chip Poirot said: Firstly, let's look at the statute which I have posted here several times before. The statute provides Freshwater specific rights-including the right to subpoena witnesses and the right to not have to have the hearing during the summer. Secondly, it's the statute that mandates that the hearing take place in front of the body that voted to terminate Freshwater, with a neutral arbitrator present.

Actually, as I understand it the statue provides for two mutually exclusive alternatives, with one chosen by the Board. It's either hold the hearing before the Board, or hold it before a neutral referee in the absence of the Board, receiving a recommendation from the referee after the hearing is concluded. The Mt. Vernon Board chose the latter, and hence has not been attending the hearing.

[SNIP] It was the Board and the personnel firm that turned what should have been a straightforward case about reckless behavior in the classroom and insubordination into a lengthy he said-he said-he said-...etc., thus opening the door to Freshwater's rebuttal. Nor did the personnel firm appear particularly concerned to get Freshwater's full story.

Yup, I think the investigation was not as good as it should have been, and Freshwater has what appears to be a legitimate beef with (parts of) it.

I'd say this is a case study all around in how not to investigate allegations of teacher misconduct and how not to handle potential problems.

Yup, I agree. Which is not to say the Board doesn't have a strong case, especially given some of the sworn testimony.

Chip Poirot · 26 July 2009

RBH wrote

Actually, as I understand it the statue provides for two mutually exclusive alternatives, with one chosen by the Board. It’s either hold the hearing before the Board, or hold it before a neutral referee in the absence of the Board, receiving a recommendation from the referee after the hearing is concluded. The Mt. Vernon Board chose the latter, and hence has not been attending the hearing.

I think you are right on this, but the statute is a little vague here: http://codes.ohio.gov/orc/3319.16 and immediately after http://codes.ohio.gov/orc/3319.161 . At any rate, the Board has the right to attend the hearing, but thanks for the clarification.

Yup, I agree. Which is not to say the Board doesn’t have a strong case, especially given some of the sworn testimony.

I think the Board's case is strong on two potential grounds. 1. Reckless conduct by Freshwater. Incidentally, given the apparent ease of revoking a license of a teacher in the State of Ohio and the growing public pressure to do so based on the appearance of impropriety, I am surprised that licensure suspension has not been pursued. If Freshwater recklessly caused an injury, even a relatively minor one, that is grounds at least for a suspension; 2. Insubordination. If Freshwater really did violate the terms of that letter, then the Board has grounds to bring it up. For what it is worth, I asked someone I know who works for the OEA about the case. Obviously, no one from the OEA is going to make any specific or public comments so interpret my comments here as just conversation. The person I talked to was unfamiliar with the case, but their take on it when I described it was: The OEA would not get involved since Freshwater was not a member of the OEA. Given the facts as I described them, there was a high probability Freshwater would get his job back. because the Board did not document and warn. Again, it should be stressed that it is always difficult to offer any kind of authoritative opinion when someone else describes the case. Speaking for myself, I think it would make more sense to leave school principals in charge of discipline, subject to supervision by the Superintendent. That would make the Board an avenue of appeal, rather than the initial deciding body. But there may be specific reasons why that can't be so.

Chip Poirot · 26 July 2009

Stanton said:
Chip Poirot said: As to what goes on in Ohio wrt teaching of evolution, my own personal experience suggests that Freshwater is probably common. My own students (most from Southern Ohio) have to a person almost **never** had any introduction to evolution when I do the unit on it cultural anthropology (on the other hand, some of them seem to not have had fractions, decimals and percents-but that's another matter). Several years ago, a student of mine told me that in her high school, half the class literally walked out when the topic of evolution was introduced.
And yet, there are people who are perfectly fine with the American public being simultaneously totally dependent on science, yet, arrogantly proud of being scientifically illiterate.

In my experience, a lot of these people (I know some of them quite well) are perfectly happy to radically compartmentalize. They seem to go in for the strictly functional aspects of science and ignore the larger theoretical structure. Sadly and surprisingly, this actually works when the goal is to prepare students to take the MCATS and go on to medical school. But the all time example was given to me by my wife, who decided several years ago to take advantage of free tuition and get her second undergraduate degree in biology. She was talking to a fellow student about taking a class in mammalogy. She inquired of the student, well, are you going to take it? The student replied: "I don't believe in that stuff." To which my wife replied: "You don't believe in mammals"? The other student replied: "This person teaches evolution-I don't believe in evolution." But in a way, the student really was professing disbelief in mammals. I get the same reaction from students in Cultural Anthropology-even after I go through the sequence: Divide all living from non-living things, living things with notochords from things without notochords, etc. , etc.

Marion Delgado · 27 July 2009

To further what Richard Hoppe has very aptly called a conspiracy theory, Hamilton has engaged in fairly unprofessional behavior, then whined about the results of his own behavior to the media.

I believe he's clearly trying to drive costs up as much as possible in order to scare future boards of Ed/school boards and to game the system by subpoenaing people who are only "witnesses" by conspiratorial standards, to knock them off the review board and stack it in Freshwater's favor. Furthermore, Hamilton explicitly said that the attorney for the board was part of the conspiracy targeting Freshwater:

"John has been defamed not only by the school board, by the investigators, but by the, the school board's attorney who was involved in crafting this particular investigative report. ... On the other side, there's 12 different attorneys, and there's about to get a few more because of the number of people that we had to file suit against back in June of this year.

I don't believe the review process was unreasonable, and I do believe it was a good-faith effort. Obviously, Freshwater and Hamilton disagree.

Marion Delgado · 27 July 2009

Richard, I love these reports, but I have to say, the last paragraph today is incredible. You don't do much analysis, which I think is great, but when you do, it's very good.

RBH · 27 July 2009

Marion Delgado said: Richard, I love these reports, but I have to say, the last paragraph today is incredible. You don't do much analysis, which I think is great, but when you do, it's very good.

Thanks. I appreciate the kind words.

mary · 27 July 2009

RBH-
Who are the 12 lawyers involved? I had only heard of maybe 5.

RBH · 28 July 2009

mary said: RBH- Who are the 12 lawyers involved? I had only heard of maybe 5.

Marion Delgado used that number. On a "normal" hearing day there are typically 6 lawyers in the hearing room: the referee, the Board's attorney for the hearing, the Board's attorney for the federal suit the Dennis family brought (as I understand it they're different attorneys, though the latter might be from the Board's insurance company; I'm not sure), the Dennis family's personal attorney, Freshwater's attorney, and one more attorney on the Freshwater side of the room whose role I don't know but who is there every session and interacts with Freshwater's attorney. All told, there's at least a couple of thousand dollars per billable hour in the room.

Marion Delgado · 28 July 2009

Oh, great, now I'll be subpoenaed as a corroborating witness! Dunno why Hamilton claims 12.

The atty on the Freshwater side is probably for insurance for Freshwater via the union? Just a guess. Hamilton said there was an insurance company lawyer on each side, but that he didn't work with the one who sits on his side. He also said attys not connected to the board but somehow involved sit near him because there's no room on the board's side.

RBH · 28 July 2009

Marion Delgado said: Oh, great, now I'll be subpoenaed as a corroborating witness! Dunno why Hamilton claims 12.

I missed that -- was that in the interview you transcribed?

The atty on the Freshwater side is probably for insurance for Freshwater via the union? Just a guess.

Nope. Freshwater isn't a member of the union, and when he post-incident tried, he was refused. Somewhere there's a comment (I think from Chip Poirot) outlining how that works. I don't remember.

Hamilton said there was an insurance company lawyer on each side, but that he didn't work with the one who sits on his side.

Baloney -- at least, I've seen them conferring in private during breaks in the hearing.

He also said attys not connected to the board but somehow involved sit near him because there's no room on the board's side.

Nope, as far as I can recall that's never happened.

Chip Poirot · 28 July 2009

I'll try to clarify what the OEA's (Ohio Education Association)role is and is not in this case.

The short story is the OEA is not involved in this case. The explanation is below.

Firstly, at the risk of being pedantic, the OEA, an affiliate of the NEA (National Education Association)represents multiple K-12 and higher ed campuses in collective bargaining. I am an active member of the SEA (Shawnee Education Association), an afilliate of the OEA and the bargaining agent for the faculty at Shawnee State University. I have no official title or function in my local and the views I express are of course my own and are not the views of my local, of the OEA, or of my University.

By law, Freshwater, as a member of the bargaining unit, is protected by whatever contractual rules for dismissal are in the negotiated contract and also in the Ohio Revised Code (previously posted). I have never seen the contract for Freshwater's district. Typically, such a contract would spell out disciplinary and evaluation procedures and in all likelihood, follow the Ohio Revised Code fairly closely.

Freshwater elected not to join the OEA (as his his right under Ohio Law).

Members of the OEA receive a number of benefits-including legal representation before the Board of Education or licensing agencies in dismissal cases. They also have the right to Union representation (normally an OEA labor relations consultant) in all other disciplinary matters. If you are an OEA member you receive these services free of charge, subject to some restrictions.

As I understand the law, Unions are legally required to represent all employees, Union members or not. However, they are not required to provide benefits that are given to members. In addition, a Union typically has some discretion over what cases it chooses to take to grievance and which it does not.

Anyway, Freshwater is not receiving any OEA assistance. The OEA has taken no stand on this particular case, as far as I know.

As I indicated previously, i did in a personal and unofficial conversation (primarily out of personal curiousity) ask someone I know who has experience in termination cases at the K-12 level for the OEA. It's a little unfair to report that person's comments as that person had to rely on my brief account. I'll relay the gist of the comments with all the caveats (it's an unofficial comment reported to me, someone who has no standing in the case during a brief conversation).

This person's view was pretty simple:

1. Freshwater was not a member of the OEA and therefore, he cannot join at the last minute to get the member benefits (you can't go buy your car insurance **after** the accident);

2. Freshwater stands a pretty good chance of being reinstated, primarily due to the failure of the district to ever warn Freshwater he was engaged in misconduct.

JANE · 28 July 2009

Chip I would agree however I don't think a teacher, or anyone, needs to be warned not to injure a student.

raven · 29 July 2009

They are stalling because Freshwater thinks he will lose.

These legal maneuverings seem like the actions of a drowning case.

A more interesting question is, Who is paying Freshwater and his lawyer for all of this? While they are stalling, time isn't on their side either, time and money keeps going down the drain.

I bet some xian fundie Dominionists somewhere kicked in some big bucks. But really, this isn't about religious prosyltizing in the public schools. The xian fundies just decided to kick in some big bucks.

Marion Delgado · 29 July 2009

" Also keep in mind, John has had the benefit of my legal counsel, and along the way we've been able to get some pro bono help from a few other attorneys but only for very specific issues. On the other side, there's 12 different attorneys, and there's about to get a few more because of the number of people that we had to file suit against back in June of this year." - Kelly Hamilton.

"I'm sitting facing the referee and I've been there virtually every day sitting in the little gallery, and to my left is John Freshwater and, and then there's one attorney from the insurance company, and he's sitting there; but then there's only one other attorney sitting there, and that's Kelly Hamilton. On the other side, we have Mr. Millstone from the Board of Education, we have, generally there's an insurance attorney, then there's an attorney for the boy's family who claims that he was branded, and sometimes there's even another attorney sitting in there, so it's almost like, yeah, take, like you said David vs Goliath, and now in this other, they're all the more attorneys - 12 to 1." - Don Matolyak

there's a lot about this that's sad and unfortunate, but I find this and the dover case kind of fascinating as mysteries, sort of.

Chip Poirot · 29 July 2009

JANE said: Chip I would agree however I don't think a teacher, or anyone, needs to be warned not to injure a student.

Right, I agree, which is why I think the Board has a case. But by having allowed him to use the Tesla coil apparently for several yaars, the District established practice. Then by telling him in a letter he would not be disciplined for it if he simply stopped, the District's case was already undermined. AS far as I can see, this case should really hinge on what Freshwater did after he received the letter. If he was really insubordinate, then the District still has a case.

phantomreader42 · 31 July 2009

Chip Poirot said: 1. Reckless conduct by Freshwater. Incidentally, given the apparent ease of revoking a license of a teacher in the State of Ohio and the growing public pressure to do so based on the appearance of impropriety, I am surprised that licensure suspension has not been pursued. If Freshwater recklessly caused an injury, even a relatively minor one, that is grounds at least for a suspension;

But can the branding really qualify as "reckless"? "Reckless" implies negligence, but this was a deliberate act, he knew full well it would leave marks and intentionally shaped those marks into the symbol of his cult. Would it even make sense to charge a murderer with "reckless discharge of a firearm"? Reckless, hell, he hit just where he was aiming! I'm amazed there haven't been criminal charges yet. Did I miss something here? He branded fucking children! I'm surprised he hasn't been shot by any of the parents yet!

stevaroni · 31 July 2009

Would it even make sense to charge a murderer with “reckless discharge of a firearm”? Reckless, hell, he hit just where he was aiming!

Several years ago, a neighboring city had a court case where a man was charged with reckless driving after racing through a tollbooth at nearly 100 miles per hour. In court, the man brought in experts who successfully challenged the charges. The statute in question was written exclusively in terms of driving out of control, and the experts successfully demonstrated that it actually took a very fine level of control to thread the ten-foot wide needle at 100mph.

phantomreader42 · 31 July 2009

stevaroni said:
Would it even make sense to charge a murderer with “reckless discharge of a firearm”? Reckless, hell, he hit just where he was aiming!
Several years ago, a neighboring city had a court case where a man was charged with reckless driving after racing through a tollbooth at nearly 100 miles per hour. In court, the man brought in experts who successfully challenged the charges. The statute in question was written exclusively in terms of driving out of control, and the experts successfully demonstrated that it actually took a very fine level of control to thread the ten-foot wide needle at 100mph.

So letting your hands slip off the wheel and plowing into a parked car would count as reckless driving, the driver lost control of the vehicle and any injury or property damage is a result of gross negligence. In contrast, holding firmly to the wheel and deliberately ramming into the same car would not count as reckless driving, the driver intentionally used the vehicle as a weapon and aimed it at a particular target, any injury or property damage is a result of intentional valdalism and perhaps attempted murder. Taking a loaded gun out in public with the safety off and accidentally firing off a random blast at no one in particular would qualify as reckless discharge of a firearm, there was no intent to kill anyone, just a total disregard of basic firearm safety, any deaths would count as negligent homicide (or possibly felony murder if the act of reckless discharge is itself a felony in the relevant jurisdiction). Putting the same gun to a person's head and blowing a hole in their skull is not at all reckless, it is premeditated murder, a far more serious crime. Freshwater's actions were not reckless, they were deliberate, premeditated, malicious, and criminal.

stevaroni · 31 July 2009

So letting your hands slip off the wheel and plowing into a parked car would count as reckless driving, ... In contrast, holding firmly to the wheel and deliberately ramming into the same car would not count as reckless driving

As the statute was written, that was apparently the case. I can only hope that the laws have been ... clarified... since then. On the other hand, on the few occasions I have actually had to sit down and carefully read legislation, well, let's just say "clear" and "concise" are terms that didn't leap to mind.

Chip Poirot · 31 July 2009

phantomreader42 said:
Chip Poirot said: 1. Reckless conduct by Freshwater. Incidentally, given the apparent ease of revoking a license of a teacher in the State of Ohio and the growing public pressure to do so based on the appearance of impropriety, I am surprised that licensure suspension has not been pursued. If Freshwater recklessly caused an injury, even a relatively minor one, that is grounds at least for a suspension;
But can the branding really qualify as "reckless"? "Reckless" implies negligence, but this was a deliberate act, he knew full well it would leave marks and intentionally shaped those marks into the symbol of his cult. Would it even make sense to charge a murderer with "reckless discharge of a firearm"? Reckless, hell, he hit just where he was aiming! I'm amazed there haven't been criminal charges yet. Did I miss something here? He branded fucking children! I'm surprised he hasn't been shot by any of the parents yet!

Having read the evidence presented in this case, I simply disagree with your characterization.

Chip Poirot · 31 July 2009

stevaroni said:
Would it even make sense to charge a murderer with “reckless discharge of a firearm”? Reckless, hell, he hit just where he was aiming!
Several years ago, a neighboring city had a court case where a man was charged with reckless driving after racing through a tollbooth at nearly 100 miles per hour. In court, the man brought in experts who successfully challenged the charges. The statute in question was written exclusively in terms of driving out of control, and the experts successfully demonstrated that it actually took a very fine level of control to thread the ten-foot wide needle at 100mph.

I am extremely skeptical. I suppose it is possible someone got a really good lawyer and managed to put one over on a gullible jury. Or maybe the statute was just vague. Stranger things have happened. But most state statutes on reckless driving make it a crime to drive in a way that is likely to cause injury. It has nothing to do with the ability of the driver.

phantomreader42 · 31 July 2009

stevaroni said:
So letting your hands slip off the wheel and plowing into a parked car would count as reckless driving, ... In contrast, holding firmly to the wheel and deliberately ramming into the same car would not count as reckless driving
As the statute was written, that was apparently the case. I can only hope that the laws have been ... clarified... since then. On the other hand, on the few occasions I have actually had to sit down and carefully read legislation, well, let's just say "clear" and "concise" are terms that didn't leap to mind.

I'd say there is and should be a significant and relevant distinction between recklessness/negligence and deliberate infliction of bodily harm or property damage. Driving dangerously fast could still qualify as reckless, depending on where the line is drawn. But causing injury intentionally should definitely be a worse crime than doing so by accident or through lack of due diligence.

stevaroni · 31 July 2009

I’d say there is and should be a significant and relevant distinction between recklessness/negligence and deliberate infliction of bodily harm or property damage.

Well, there is. In most jurisdictions, if you purposely inflict damage you are guilty of vehicular assault, or vehicular manslaughter. In truth "driving recklessly" is probably one of those offenses like "disorderly conduct", offenses meant to be catch all categories to punish people behaving badly enough to deserve legal attention, but not quite breaking any specific law. I'll try to find a specific reference to the case, (IANAL, but maybe someone out there is and has access to a better database) but I do believe the specific issue was that "reckless driving" was poorly defined in such a way that it required a lack-of-control element. (I'm speculating, but maybe that was to differentiate it from more serious crimes done "on purpose")