Friday, August 7, 2009

John Freshwater Files Writ of Mandamus with Supreme Court of Ohio

The ongoing dispute over the legality of school board members quashing subpoenas, issued to fellow board members, has been taken to the Supreme Court of Ohio. On Tuesday, suspended Mount Vernon Middle School teacher John Freshwater filed a Writ of Mandamus requesting that the court order two board members to testify in an ongoing employment hearing.

The matter was previously taken before the Knox County Common Pleas Judge Otho Eyster who ruled in July that he had no jurisdiction to force board members to testify. Eyster implied in his ruling that the board had the authority to quash subpoenas but gave no explanation as to the legal reasons.

In a subsequent interview with Eyster by Mount Vernon News reporter Pamela Schehl —“Judge explains denial in Freshwater case”— the judge gave additional details. “Since the matter is an administrative hearing, the judge said, the board has the legal authority to issue and quash subpoenas,” Schehl wrote.

Neither in Eyster’s ruling or in statements credited to him in the News article did the judge cite the applicable law or judicial precedent that gives the board the authority to quash subpoenas.

The board did not seek to have a judge quash the subpoenas. The minutes of the May 4, 2009 school board meeting show that the board voted to quash the subpoenas of Margie Bennett and Ian Watson.

In addition to the disagreement over authority to quash subpoenas, the board and Freshwater disagree over who was originally subpoenaed. The “Application to compel attendance of witnesses in the employment hearing of John Freshwater” that Freshwater’s attorney, R. Kelly Hamilton, filed in June also lists Jody Goetzman as a board member who was subpoenaed.

The petition filed with the Supreme Court of Ohio includes a copy of an email allegedly sent by board attorney David Millstone to Hamilton. In the email, Millstone informs Hamilton of two subpoenas being quashed and a third one not being issued. “There is no person known as Jodi Fair to the Board and therefore no subpoena was issued,” the email states.

An affidavit by Freshwater, included with the recent petition, alleges that Goetzman’s name was included in the request for subpoenas. “On or about April 28, 2009, me and my attorney submitted another specific Request to Issue Subpoenas to the BOE’s attorney seeking to have subpoenas issued to the BOE’s Watson and Jody Goetzman to appear for testimony and produce specific documents,” Freshwater stated.

Board member Bennett is not included in the recent petition as someone being requested to appear to testify. Only Watson and Goetzman’s names are included. The board’s attorneys had raised the concern earlier that if three or more members were required to testify, and if they had to subsequently disqualify themselves, there would not be a quorum when it came time to vote on whether or not to retain Freshwater as a teacher.

As support for why Freshwater wants the two board members to appear to testify, the petition cites testimony from the hearing that the two individuals who brought the primary complaints against Freshwater, that led to an investigation, spoke with board members multiple times about the allegations.

The petition claims that by the board members refusing to testify they are depriving Freshwater of his due process rights:

“As set out hereinafter, Respondents, collectively and or individually and or in concert with one or more of each other, have refused and continue to refuse to perform mandatory statutory duties, have engaged in non-permissive action and refuse to proceed with legal process whereby Respondents thwart and deny Relator Freshwater due process of law.”

(Click here to go to the Supreme Court of Ohio website for documents in the case State of Ohio ex rel. John D. Freshwater v. Mount Vernon City School District Board of Education et al.)

For further information, see past articles on this topic:

“School Board ‘quashed’ Subpoenas in the John Freshwater Hearing.” (6-12-09)

"School Board Gives Reason for Not Complying With Subpoenas." (6-18-09)

"Subpoenas in John Freshwater Hearing -- School Board Says Judge Doesn’t Have Jurisdiction" (6-20-09)

" Judge Says He Doesn’t Have Jurisdiction " (7-9-09)

UPDATE 8/9/2009:

The portion of this article that dealt with “Rule 24(A) of the Ohio Rules of Civil Procedure” was deleted due to the probability that it was not actually 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.


See the following Mount Vernon News article regarding the resolution of this matter before the Ohio Supreme Court: “Ohio supreme court rules in school board’s favor.”

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