Freshwater: Losing your case? Sue your opponent's attorney.

Posted 2 September 2009 by Richard B. Hoppe

You will recall that in June John Freshwater filed a federal suit (see PT post here) against the Mt. Vernon City School District, several Board members, several administrators, and a bunch of John and Jane Does. Included among the defendants was David Millstone, attorney for the Board. Now, according to news reports, Millstone has moved to be dropped as a defendant, arguing that it is improper to sue an attorney in order to pressure the attorney's client. The news report describes a June 9, 2009, letter from R. Kelly Hamilton to the Board of Education that apparently suggested a settlement, including this sentence: "It will be interesting to observe the developments between Mr. Millstone's representation and the interests of the Mount Vernon City School System." According to the news report, Millstone's filing characterized that sentence as "a 'veiled threat' to force Millstone out of representing the school board." The news report quotes Millstone's attorney as saying "The claim against Mr. Millstone appears to be a pressure tactic aimed at the administrative process to terminate Mr. Freshwater's contract." This is of a piece with Freshwater's basic strategy, which is apparently to attempt to force a settlement one way or another. Freshwater's pastor, Don Matolyak, has been making noises about settlement for some time now, always, of course, on Freshwater's terms. In other legal news, responses to Freshwater's application to the Ohio Supreme Court for a writ of mandamus to compel testimony from Board members are coming in. They're linked from here. The administrative hearing was due to resume September 10, but I strongly doubt it'll happen that soon.

28 Comments

MememicBottleneck · 2 September 2009

IANAL, but to me it reads like a total bitch slapping of Hamilton. I got a good chuckle when I saw the price of postage for each item that had it posted, $6.66.

MememicBottleneck · 2 September 2009

The first time I read the responses, I thought that they were coming from the court. They're coming from the board (that'll teach me to skim), so of course they'll knock Hamiltons filing. I hope the court does the same.

Stanton · 2 September 2009

I don't understand all of this underhanded rigamarole: if Freshwater really, truly thinks that he was doing his job as a science teacher, and if he really, truly thinks that God is on his side, then why bother resisting, and resorting to desperate, crude shyster tricks while claiming he's a victim? If God was truly pleased with his not teaching of science in a science classroom, won't he be rewarded regardless of what the school district does, or at least, be aided by divine intervention on his behalf?

Joshua Zelinsky · 2 September 2009

"It will be interesting to observe the developments between Mr. Millstone’s representation and the interests of the Mount Vernon City School System."

Wow. What an ass. Moreover, what an idiot. Given the circumstances the thought would go through their heads whether or not he said that. By saying it explicitly he just gives confirmation of what he's trying to do.

Duncan Kirkland · 2 September 2009

Stanton said: I don't understand all of this underhanded rigamarole: if Freshwater really, truly thinks that he was doing his job as a science teacher, and if he really, truly thinks that God is on his side, then why bother resisting, and resorting to desperate, crude shyster tricks while claiming he's a victim? If God was truly pleased with his not teaching of science in a science classroom, won't he be rewarded regardless of what the school district does, or at least, be aided by divine intervention on his behalf?

You forget - the Devil's at work here. Satan and his minions are powerful and pushed prayer out of schools, erecting that damned separation and church and state. One has to work hard, lie as much as possible, and use those crude shyster tricks to fight evil and bring gawd back to the public schools. This is Freshwater's crusade. They seem to abide by the "god helps those who help themselves" diddy. OT, but if you didn't catch Michaelangelo Signorile's interview with that hate-mongering pastor Steve Anderson, go check it out. Similar tortured logic there: "Dr. Tiller's killer wasn't a murderer because Tiller was a murderer, but we should stone all homosexuals regardless of what they do."

Duncan Kirkland · 2 September 2009

Oh, also, these xians looooove to play the victim. "Waaah, 80% of the country believes the same thing I do, but we're singled out by our government because we can't pray in schools." It's ridiculous. They really need to grow (or rather, evolve?) some backbones.

DS · 2 September 2009

If Freshwater thinks that he can get away with nonsense like this, perhaps every tax payer who had to pay out for this case should sue him individually. That would guarantee him years of court costs regardless of the outcome of any one case. Sound ridiculous? Well that appears to be exactly the kind of tactics this yahoo is trying to use.

Look, this is an open and shut case. The guy is guilty, period. He admitted to being guilty. Just fire him. Summarily judge against him on any and all appeals. Make him pay for all court costs. Then, stick him in jail with Hovind as a cell mate. These two deserve each other.

william e emba · 2 September 2009

Look, this is an open and shut case. The guy is guilty, period. He admitted to being guilty. Just fire him.

It's extremely difficult to fire tenured teachers. Most of the large school districts, in fact, have a "suspended with pay" system, whereby teachers continue to draw their full salary so long as they spend the school day in specially designated rooms. It usually takes several years to arbitrate. The teachers' unions, unfortunately, are all about what's good for the teachers and nothing about what's good for the students.

DS · 2 September 2009

william wrote:

"It’s extremely difficult to fire tenured teachers. Most of the large school districts, in fact, have a “suspended with pay” system, whereby teachers continue to draw their full salary so long as they spend the school day in specially designated rooms. It usually takes several years to arbitrate."

Sounds good to me. Stick this guy in a special room. Let him brand himself all he wants to. I'm sure his full salary for the next ten years would not come close to the cost of this court case after all is said. and done.

Next thing you know his lawyer will try to bribe some witness and then recuse himself in order to get a mistrial!

raven · 2 September 2009

Freshwater is floundering and it doesn't look like he has a very good legal team.

This seems to be common among fundies. The ICR and the Obama birthers don't have good attorneys either.

Time isn't on the fundie's side. The school district collects taxes every year and they can wait him out.

Freshwate may end up a martyr but he is also going to be a broke one.

Mike Elzinga · 2 September 2009

My impression of Freshwater and his supporters is that they are very little different from the lunatic fringe characters who use terror to “get even”.

They get caught doing something illegal, they get fired, and then they engage in payback by attempting to hurt as many people as they can.

There seems to be a very thin, breakable thread that binds these people from going out and committing mass murder.

When they constantly talk about the “sinful nature of man”, they are really projecting their inner psyches onto others who have enough intelligence and foresight to actually follow the Golden Rule (or the Categorical Imperative) without having to be beaten up with sectarian scare tactics and images of hell.

kevin · 3 September 2009

What do you think about the candidates for school board this November? One in particular looks like he is a freshwater fan.

Divalent · 3 September 2009

Although one can feel sympathetic to the school system, I'll again point out that this is what can happen when you tolerate religious proselytizing in the school by teachers. Based on the evidence that has come out, Freshwater was just the extreme manifestation of a policy that knowingly tolerated Bibles and religious material prominently displayed in classrooms by other teachers as well.

They provided a climate that enabled the more extreme behavior of Freshwater. Indeed, it seems that one element of his defense is the fact that the school system tolerated similar behavior by other teachers, and that he (Freshwater) only differed in degree, not kind. And to that narrow part of his argument, I would concur.

RBH · 3 September 2009

kevin said: What do you think about the candidates for school board this November? One in particular looks like he is a freshwater fan.

My understanding is that two are Freshwater fans, though I haven't yet done the research and am depending on casual conversations with folks.

Marion Delgado · 4 September 2009

when i did the transcript that was almost my only comment, if you'll recall - that the way the pastor on freshwater's behalf was trying to involve opposing COUNSEL and hamilton was allowing it was unscrupulous and bizarre. this is not surprising.

The "reasoning" is that they claimed the school board's lawyer was part of the long-running far-reaching conspiracy targeting freshwater for years - the one that absolutely demands that two of the votes to fire on the committee be disqualified by making them testify to bizarre nonsense before the board can rule.

Chip Poirot · 4 September 2009

william e emba said:
Look, this is an open and shut case. The guy is guilty, period. He admitted to being guilty. Just fire him.
It's extremely difficult to fire tenured teachers. Most of the large school districts, in fact, have a "suspended with pay" system, whereby teachers continue to draw their full salary so long as they spend the school day in specially designated rooms. It usually takes several years to arbitrate. The teachers' unions, unfortunately, are all about what's good for the teachers and nothing about what's good for the students.

Admittedly, at this point, I have to agree that the legal strategy chosen seems designed to inflict maximum pain and thus force a settlement, rather than just arguing the case. I take exception to the gist of your comments however as I am in fact, a member (and proud of it) of a teacher's Union. I am also a strong supporter of teacher and professor tenure. I see no point however in rehashing my numerous posts on PT on this and related topics. For the record: I am against teaching Intelligent Design Creationism (or any kind of Creationism), or of "teaching the controversy" or any of the phony "academic freedom" bills that are being sponsored in various jurisdictions. But on multiple occasions now numerous commenters (though not the front page regular posters) have repeatedly taken positions on employment law, tenure and academic freedom that are indistinguishable and in fact defend the thrust of the philosophy of Scalia, Roberts, Alito and Thomas, and their right wing allies. If you think this ilk and their legal doctrines on employment law, tenure and academic freedom will create better science education then so be it. I think you will find that the thrust of their doctrines will in fact increasingly make it harder and harder to teach good science. We are one vote away on the Supreme Court from allowing any number of variations of Creationism to get into the classroom in some form. So sorry, I'm not signing on to the "tenure/union" bashing sentiments in the false name of defending science education.

W. H. Heydt · 4 September 2009

Admittedly, at this point, I have to agree that the legal strategy chosen seems designed to inflict maximum pain and thus force a settlement, rather than just arguing the case. I take exception to the gist of your comments however as I am in fact, a member (and proud of it) of a teacher's Union. I am also a strong supporter of teacher and professor tenure. I see no point however in rehashing my numerous posts on PT on this and related topics. For the record: I am against teaching Intelligent Design Creationism (or any kind of Creationism), or of "teaching the controversy" or any of the phony "academic freedom" bills that are being sponsored in various jurisdictions. But on multiple occasions now numerous commenters (though not the front page regular posters) have repeatedly taken positions on employment law, tenure and academic freedom that are indistinguishable and in fact defend the thrust of the philosophy of Scalia, Roberts, Alito and Thomas, and their right wing allies. If you think this ilk and their legal doctrines on employment law, tenure and academic freedom will create better science education then so be it. I think you will find that the thrust of their doctrines will in fact increasingly make it harder and harder to teach good science. We are one vote away on the Supreme Court from allowing any number of variations of Creationism to get into the classroom in some form. So sorry, I'm not signing on to the "tenure/union" bashing sentiments in the false name of defending science education.

I think the real issue here is that, generally speaking, most of the US workforce is non-union and is often has "at will" employment. That is to say, we can be fired at any time for any reason, with--essentially--no recourse. The protections afforded by tenure tend to look...excessive...from that perspective. I am not arguing that tenure should be abandoned, and--indeed--I take your previous points about how poorly the case against Freshwater was developed over the years. I've talked to enough people to understand that most supervisors/administrators really don't want to do the needed grunt work to actually *document* a proper case for getting rid of an obvious fuckup employee. I am arguing that, just perhaps, the rules should be reasonably straightforward enough that obvious problem cases can be handled on a reasonably sensible and expeditious basis.

Chip Poirot · 4 September 2009

W. H. Heydt said: I think the real issue here is that, generally speaking, most of the US workforce is non-union and is often has "at will" employment. That is to say, we can be fired at any time for any reason, with--essentially--no recourse. The protections afforded by tenure tend to look...excessive...from that perspective.

Many people would be surprised at how much of the academic work force (both K-12 and higher ed) are in fact "employees at will" at least wrt contract renewal.

I am not arguing that tenure should be abandoned, and--indeed--I take your previous points about how poorly the case against Freshwater was developed over the years. I've talked to enough people to understand that most supervisors/administrators really don't want to do the needed grunt work to actually *document* a proper case for getting rid of an obvious fuckup employee.

It's really not that hard. What it does requier is some basic documentation and articulation of the cause of action. Of course, sometimes (I would in fact say often) some of the people administrators would like to label as "obvious fuck ups" are not. They just happen to be the ones who challenge administrators. Even so, I think that there are many cases where organizations in general tolerate "fuck ups" for many reasons. I'm dubious anyway that making it easier to fire "obvious" cases would do anything. Here is a simple place to begin: Compare districts, states and schools with strong tenure policies and collective bargaining agreements or high proportion unionized teachers and see how this correlates (or does not) with overall school performance. Thus far, there is very little evidence that any of the proposed "reforms" do a damned thing to im[prove school performance.

I am arguing that, just perhaps, the rules should be reasonably straightforward enough that obvious problem cases can be handled on a reasonably sensible and expeditious basis.

. The rules and procedures are straightforward-until they are ignored for years and then people can defend themselves by past practice, precedent and lack of uniform enforcement. And all that said-you really can't say what is "obvious" until you have really examined all the valid evidence and had a chance to cross examine witnesses and present counterevidence.

Dan · 4 September 2009

W. H. Heydt said: I think the real issue here is that, generally speaking, most of the US workforce is non-union and is often has "at will" employment. That is to say, we can be fired at any time for any reason, with--essentially--no recourse. The protections afforded by tenure tend to look...excessive...from that perspective.

I've been told that tenure was not invented by faculty -- the people holding tenure. It was invented by administrators. They wanted to pay faculty less, and realized that they could do it by offering less money but more job security.

DavidK · 4 September 2009

An interesting study regarding the religious preference of teachers. Might say something about the Freshwater's, past, present, and future as well as the school boards.

http://news.yahoo.com/s/livescience/20090904/sc_livescience/teachersmorereligiousthanothercollegegrads

Mike Elzinga · 4 September 2009

DavidK said: An interesting study regarding the religious preference of teachers. Might say something about the Freshwater's, past, present, and future as well as the school boards. http://news.yahoo.com/s/livescience/20090904/sc_livescience/teachersmorereligiousthanothercollegegrads

I found this interesting:

While importance of religion changed for those in the humanities and social sciences, students majoring in biology and physical sciences remained just about as religious as they were when they started college.

It seems that one can avoid any confrontation with religious dogma in teacher training courses and undergraduate science courses. I can understand that in the physical sciences and engineering if the courses are primarily plug-and-chug. But I thought that evolution might play a bigger role in a biology major. Apparently not.

tsig · 4 September 2009

Anyone know where the money for the defense is coming from?

RBH · 4 September 2009

tsig said: Anyone know where the money for the defense is coming from?

There is a "support Freshwater" web site that solicits donations. However, I seem to recall that it's a 501(c)3, which would make it problematic to pay a private citizen's legal bills. I'll look into that. According to a statement by Freshwater's pastor Don Matolyak, Freshwater often gets what Matolyak calls "Christian handshakes" where people give him cash. Matolyak implied that something on the order of $30,000 in donations had been raised, one way or another. (Some time ago Matolyak said that about 10% of the Board's legal bills, then $300K, had been raised for Freshwater.)( Also, in a radio interview transcribed by Marion Delgado (that I can't now find -- Marion?) some weeks ago, Freshwater's attorney, R. Kelly Hamilton, said words to the effect of "I now hold the paper on John's land." Freshwater has a farm outside Mt. Vernon and the implication was that he's put it up as security for his legal bills. It's also been hinted that those bills are pretty large -- Matolyak said something to the effect that Hamilton has expended in excess of 1,000 billable hours on the case, and at $250/hour, which is likely in the ballpark of a plausible rate, that's $250K worth of legal bills. The Dennis family received $115K in legal fees as part of the settlement of their suit, and my impression is that their attorneys billable hours their attorneys put in quite a bit less than 1,000 billable hours. I have seen no hint of large amounts of external institutional money for legal bills coming to Freshwater.

dogmeatIB · 4 September 2009

william e emba said:
Look, this is an open and shut case. The guy is guilty, period. He admitted to being guilty. Just fire him.
It's extremely difficult to fire tenured teachers. Most of the large school districts, in fact, have a "suspended with pay" system, whereby teachers continue to draw their full salary so long as they spend the school day in specially designated rooms. It usually takes several years to arbitrate. The teachers' unions, unfortunately, are all about what's good for the teachers and nothing about what's good for the students.

William, I have to disagree with your final assertion. I am an educator, both certified as a classroom teacher and an administrator. I am not a member of the teacher's union, never have been, but I support their overall agenda and strongly disagree with your argument that they only care about what is good for the teachers or the suggestion that they do so, knowingly, at the expense of the students. First, from what I've read here and in the news, the administrators in this case totally screwed up. They failed to respond to the growing incidence of improper behavior on the part of Freshwater in the first place, and then, when they finally did begin to respond, did not properly keep track of (document) or correct that behavior. Again, from what I've read, heard, etc., they had like minded administrators who first covered for Freshwater, then relatively ineffective administrators who apparently did the absolute minimum, and finally the administrators who acted, but were really forced to do so by the injury involved. This falls on the administration, from top to bottom, not the union, to my knowledge they aren't making any attempt to defend him. This isn't a product of the law either. It is far better that a jerk like Freshwater is able to manipulate the law to support his position than to create a situation where a principled teacher may be arbitrarily fired without protection for their rights, etc. Second, the unions exist because educators were treated like garbage for decades. People seem to forget, unions exist for a reason, people don't randomly give them money to unnecessary organizations that serve no purpose. Unions, tenure, etc., exist because the employers abused the rights of the employees to a degree where the majority felt that steps needed to be taken to protect their rights. Third, without unions many highly qualified teachers would leave the profession. Is there any way you could argue that point or attempt to argue that such a state of affairs would be in any way better for the students? How long are people going to stay in a job where they are underpaid, undervalued, don't have particularly effective equipment, tools, or support, have increasingly poor benefits, AND can be fired based on a momentary whim of an administrator? It is difficult enough being an educator. Teachers are woefully underpaid for what they are expected to do. They are rarely appreciated, don't get much respect, and are generally blamed for the problems that are reflective of society but somehow magically become the focal point of "our education system sucks" blanket statements. The only reason the vast majority of us in the education profession come in to work each day is because we love our jobs, genuinely care about the kids, and want to make ours a better society. The constant assault on education chips away at our resolve daily.

tsig · 5 September 2009

RBH said:
tsig said: Anyone know where the money for the defense is coming from?
There is a "support Freshwater" web site that solicits donations. However, I seem to recall that it's a 501(c)3, which would make it problematic to pay a private citizen's legal bills. I'll look into that. According to a statement by Freshwater's pastor Don Matolyak, Freshwater often gets what Matolyak calls "Christian handshakes" where people give him cash. Matolyak implied that something on the order of $30,000 in donations had been raised, one way or another. (Some time ago Matolyak said that about 10% of the Board's legal bills, then $300K, had been raised for Freshwater.)( Also, in a radio interview transcribed by Marion Delgado (that I can't now find -- Marion?) some weeks ago, Freshwater's attorney, R. Kelly Hamilton, said words to the effect of "I now hold the paper on John's land." Freshwater has a farm outside Mt. Vernon and the implication was that he's put it up as security for his legal bills. It's also been hinted that those bills are pretty large -- Matolyak said something to the effect that Hamilton has expended in excess of 1,000 billable hours on the case, and at $250/hour, which is likely in the ballpark of a plausible rate, that's $250K worth of legal bills. The Dennis family received $115K in legal fees as part of the settlement of their suit, and my impression is that their attorneys billable hours their attorneys put in quite a bit less than 1,000 billable hours. I have seen no hint of large amounts of external institutional money for legal bills coming to Freshwater.

Thanks for the info. I thought maybe some big money had come into play since FW's legal strategy seems mighty expensive. Now I wonder if FW is accounting to the IRS for the money he is receiving.

Stuart Weinstein · 5 September 2009

Now wouldn't that be a fitting end?

Freshwater loses his case, and his attorney gets his real estate?

tsig · 6 September 2009

Stuart Weinstein said: Now wouldn't that be a fitting end? Freshwater loses his case, and his attorney gets his real estate?

And the IRS gets his ass.

ohwell · 9 April 2010

Well I see this didn't work out so well for them. what will be next????