Interviewees did not have a chance to review the notes made of their statements but the law firm representing the school board was given a draft of the report for review and clarification, according to the testimony of investigator Julia Herlevi.
Across the top of the report by H.R. On Call, Inc was the banner, “INDEPENDENT INVESTIGATION OF A COMPLAINT REGARDING JOHN FRESHWATER.”
(The Freshwater hearing is taking place in the Knox County Service Center.)
When the Mount Vernon News published an article on the testimony of Herlevi, the News did not mention that the school board’s legal representative had a chance to review the document before it was finalized. “[Herlevi] further testified HR on Call did not give Superintendent Steve Short or Mount Vernon school board members a draft copy to review,” stated Pamela Schehl in the article “Investigative firm stands by its report.”
Herlevi said that the law firm—Squire, Sanders & Dempsey—made only a few changes to the report.
The News also failed to mention the fact that interviewees were not given a chance to look over the handwritten notes made of their interviews. The News did, though, report that the notes were not verbatim accounts. The News, later, published a “letter to the editor” that contained the information on interviewees not being able to review their statements.
The report by HROC said that Freshwater, a Mount Vernon Middle School science teacher, burned a student during a science demonstration. “Mr. Freshwater did burn a cross onto the complaining family’s child’s arm using an electrostatic device not designed for that purpose,” the report stated.
The device was a Tesla coil that was used during lessons on gases. At the end of the lesson, Freshwater would ask if there were any volunteers that wanted to be zapped by the device. Other teachers have testified during the hearing that they also allowed students to touch the device and never knew of any student being harmed.
Attorney for Freshwater, R. Kelly Hamilton, questioned Herlevi over how much evidence it took to sustain an allegation. In the case of the allegation of the burn to the arm of student Zachary Dennis, both parties, to her understanding, pretty much agreed. Both parties agreed that the Tesla coil was used on the arm but only disagreed on what mark was made, Herlevi said.
Hamilton later asked Herlevi if she would agree that Freshwater and the Dennis family only agreed that the coil was touched to the arm and that after that they vastly disagreed—she replied that she does not know what the Dennis’s have said apart from her investigation.
Herevi said that she did not ask Dennis what part of his arm was touched by the device.
Freshwater has maintained that he has never burned anyone with the Telsa coil.
Herlevi was present when fellow investigator, her husband, Thomas Herlevi, applied the Tesla coil to himself to see what it would do. “[He] touched it to himself and then pulled it away and that was it,” Herlevi said.
Herlevi said that they located instructions for the Tesla coil on the web. The instructions from the manufacture of the device contained the warning to not touch the device to the skin. Herlevi did not find any warnings on the Tesla coil itself.
Herlevi said that, in her opinion, it was not a good idea for her husband to touch himself with the device. She did not think it added anything to the investigation. Herlevi said that her husband had the Tesla coil up to full power but does not know what power setting Freshwater had the device at.
The report by HROC described the investigator trying the Tesla coil on himself. “When held at full power for one or two seconds in the manner described by Mr. Freshwater, the device left a slight redness with no burns and the redness disappeared overnight,” the report stated. (Emphasis added.)
Herlevi compared the Tesla coil to a soldering device in shop class. (She made mention of voltage, but I was unclear as to whether she thought both the Tesla coil and a soldering device have the same voltage or that she meant a Tesla coil was like a soldering iron because of the Tesla coil’s high voltage.) Herlevi said that she would not touch herself or anyone else with something like a Tesla coil.
In response to the testimony of Herlevi, Cameron Pike wrote a letter to the editor of the News. The following is an excerpt from that letter, published April 1, 2009:
“Mrs. Herlevi doesn’t appreciate the difference between a Tesla coil and a soldering iron. A soldering iron is used to melt soft metals, often to join electrical conductors (wires). No sparks or lightening are produced by this electric-powered device, if it’s in good repair, but it does reach temperatures of over 400 degrees and will certainly burn the skin even after momentary contact.
“A Tesla coil is intended to produce high voltage at extremely low current, but not heat. Direct contact with the surface of the device does not burn the skin because it doesn’t get hot enough to do that.”
Herlevi admitted that she interviewed middle school teacher Dino D'Ettorre and that he told her he also used the Tesla coil on students. This information was not included in the report because, Herlevi said, the complaint was not about D’Ettoree.
This teacher had what Herlevi described as a “three second rule” when using the Tesla coil. The device would leave a light reddish mark. D’Ettoree told her he never had anyone complain about the use of the device, Herlevi said.
Herlevi talked with Jennifer and Stephen Dennis, parents of Zachary, for several hours. She said that they were upset that the Tesla coil had been used on their son’s arm.
Hamilton asked Herlevi if the Dennis family had said that their son’s arm was held down. She said that she did not remember them telling her that, but that if they had it would have been in her notes. Hamilton, who was reviewing her notes, said that that information was not in Herlevi’s notes.
During the interview with the Dennis family, Herlevi said that Jennifer told her that she did not take Zachary to the emergency room because those people would have reported the alleged burn. The mother said that she did not want to take it to that level and felt she could care for it at home, Herlevi said.
Herlevi’s notes contained the information that the Dennis family had spoken with a lawyer on January 7, 2008. (The alleged burn occurred on December 6, 2007.) Hamilton asked Herlevi to verify some of the information in her notes about what the lawyer told the Dennis family. Herlevi said that if it is in her notes that the lawyer told the Dennis’s that they could win and that it would be on national TV, then it is true.*
(The current attorney for the Dennis family, Jessica Philemond, responded to a request for comment about the content of the HROC notes. “I did not meet the Dennis family until the end of March/early April 2008,” Philemond stated. “Therefore, that reference cannot be attributed to me.”)
Bible on the Desk—
After Freshwater was told to remove the Bible from off his desk, Freshwater not only kept his personal Bible but checked a Bible out from the school’s library.
The report by HROC says that upon them asking Freshwater if the school’s Bible “was there to make a statement”, he replied, “Yes.”
Hamilton reviewed the notes that Herlevi made of the interview with Freshwater. It turned out that she had written down that Freshwater said “yeah” instead of “yes.” Herlevi agreed with Hamilton that the misquote was inflammatory to Freshwater.**
Earlier in her testimony, Herlevi said that she probably never asked Freshwater if he was concerned about the school removing his Bible, in connection with why he brought the Bible from the school library into his classroom. In her opinion, if Freshwater was concerned about the school taking his Bible then he should have taken his personal Bible with him wherever he went.
Herlevi did not ask the other teachers if they had Bibles on their desks.
The interview with Freshwater was recorded by Freshwater. Herlevi said that she did not receive a copy of the audio until the report was already completed.
HROC only conducted one interview with Freshwater. Herlevi said that she did not think it would have been important to have the follow-up interview with Freshwater.
Hamilton showed Herlevi a list of names that Freshwater supposedly submitted to HROC. Herlevi said that before this hearing, she had not seen that list and that it would have been her husband’s, Thomas Herlevi, decision to not interview everyone on the list.
Ben Nielson was one of the “five current or former students of Mr. Freshwater” that were interviewed by HROC. (Nielson also testified at the hearing: “Second Student Tells of Seeing Accuser’s Arm without Burn.”)
The attorney for the school board, Millstone, questioned Herlevi about the contents of her notes from the interview with Nielson.
There were a few differences between the testimony Nielson gave at the hearing and what Herlevi’s notes had him saying during the investigation. (Some, or all, of the differences may be due to a lack of detailed follow-up questions and because Nielson was not given the opportunity to examine the notes in order confirm or correct the statements that Herlevi wrote down.)
Herlevi’s notes said that Nielson stated that the mark on the arm of Dennis was about the “same” as that on his arm. (I do not have a copy of the notes, so I am relying on what was read during the hearing and the questions asked by the attorneys and the answers given by Herlevi.)
No indication was given that Herlevi, or her husband, asked Nielson a follow-up question to clarify what “same” meant. There was also no indication given that Nielson was shown the photos that are alleged to be of Dennis’ arm—perhaps the investigator told Nielson the name of the student.
(When Nielson testified at the hearing, he said that upon seeing the photograph published in the newspaper, that was purported to be of Dennis’ arm, he said, “That’s not Zach’s arm.” If Nielson was picturing in his mind a faint or reddish mark, and the investigator was picturing a burn, then, even if “same” meant identical in all aspects, the word “same” would not mean the “same” thing to the student and the investigator.)
Herlevi’s notes recorded that Nielson said the mark on his own arm stayed for one or two days and that it was a cross. (Nielson testified that it looked a lot like a cross to him, but at the intersection, it was a little slanted so it could have been an “X.” Freshwater did not say that he was going to make a cross, Nielson said when he testified.)
Other items in Herlevi’s notes from Nielson’s interview: Freshwater talks about both sides, big bang, hydrosphere theory, throws out both sides and gives his opinion, said that a big boat went around world, taught to use the word “here” when textbook said the world was formed x number of years ago, that the FCA group laid hands on pastor Zirkle and that Freshwater said they may pray.
Stands by Report—
Up until the Freshwater case, Herlevi said that she has not had the reliability of her note taking questioned.
Herlevi has thirty years of experience working in human resources—this work included being manager of human resources for GE, Herlevi said. Herlevi, along with her husband, own HROC. She said that her husband was the lead investigator.
Herlevi said that if she was to start over on the report that she would not do anything differently.
*According to the Mount Vernon News article by Pamela Schehl “Dennis family wraps up Freshwater testimony”, May 9, 2009, the Dennis family spoke with an attorney on Jan. 7, 2008 and the mention of winning the case and it being on TV was something Zachary Dennis said he heard Freshwater say:
“Asked why his family contacted an attorney on Jan. 7, 2008, Stephen said they were upset by information relayed by Zach. Stephen said Zach had told him and his wife, Jennifer, that Freshwater notified the students he had ‘talked to lawyers and we can win this case and will be on national TV.’ Stephen said his supposition is that Freshwater was referring to the school’s requirement for signed permission slips before students could attend Fellowship of Christian Athletes meetings.”
**The lawsuit filed by Freshwater, against the school board and the investigators, contains some additional information about the “Bible on the desk” portion of HROC interview with Freshwater. Freshwater audio recorded the interview—the quotes below are about why Freshwater brought a Bible from the school’s library into his classroom:
Defendants: “So, it was just, it’s a statement is what your saying?”
Plaintiff Freshwater: “Yea, because when I opened it up I recognized it was bought with government money, and its been there. I obviously looked at the dates when it was stamped and actually I looked at some of the names on there it’s like oh I remember that kid, remember that kid, I actually kind a enjoyed looking at it, ah it dates back a long ways.”