Freshwater Day 7: The Investigator

Today was the 7th day of the administrative hearing on John Freshwater’s appeal of the Mt. Vernon, Ohio, Board of Education’s decision to terminate him. You’ll recall that Freshwater is the 8th grade science teacher accused of burning crosses on students’ arms, teaching from creationist materials in science class, and inappropriately leading the Fellowship of Student Athletes, among other things.

Accounts of the first 6 days of the hearing are Days 1 & 2, Day 3, Day 4, Day 5, and Day 6. Other relevant posts can be found by searching The Thumb on “Freshwater”. In addition, Lauri Lebo of The Devil in Dover fame just today published an article on the Freshwater affair.

In spite of two news articles, one in the Mt. Vernon News and one in the Columbus Dispatch foreshadowing the resumption of the hearing, the hearing room for the first time was not full – there were perhaps half a dozen empty seats, with two reporters and me occupying three of them and no other media present.

Today’s hearing was focused on just two witnesses, Dennis Turner, a youth pastor at New Life Community Church in Fredericktown, Ohio, a village north of Mt. Vernon, and Thomas J. Herlevi of HR On Call, Inc., the lead independent investigator who looked into the matter for the Board of Education, Assisted by his wife, co-owner of HR On Call, Herlevi conducted the investigation from April 29 to late May 2008.

More below the fold

Dennis Turner

As noted above, Turner is youth pastor at a nearby church. (The Superintendent of Schools, Steve Short, is a member of Turner’s church.) On direct examination by David Millstone, attorney for the Board of Education, Turner testified that as a youth pastor he spoke to Fellowship of Student Athletes several times at both the high school and the middle school where Freshwater was an FAC faculty monitor for one group of kids. On direct examination Turner testified that his dealings with the high school FCA were always via students. The FCA manual and school policy requires that students must be the leaders in FCA; faculty members are not to lead, supervise, or participate, but only monitor. At the middle school, however, Turner was mainly in contact with Freshwater.

Furthermore, on cross examination by Kelly Hamilton, Freshwater’s attorney, Turner testified in more detail that his dealings with the middle school FCA – topic guidelines, scheduling, logistics, and so on – were conducted through Freshwater. Turner said he found that surprising. As a youth pastor he said he knew the strictures on faculty roles in FCA, and he had never been contacted by a faculty member at the high school about FCA matters.

Hamilton asked if perhaps there was a maturity difference such that the role of the faculty monitor for middle school kids would be different. Turner responded that he couldn’t answer that.

Hamilton asked if Turner had talked the case over with Short. Turner replied only in general terms associated with the stress the case was causing Short, and that they had prayed together about it.

Turner testified that Freshwater was in the room for a while during his (Turner’s) talk to one FCA group, but left before the meeting was over. Two teachers of Turner’s acquaintance attended another of the middle school FCA meetings.

There was no re-direct.

Thomas J. Herlevi Direct Examination

Herlevi is co-owner of HR On Call, Inc., with his wife. On Call is a consulting firm on human resources issues. HR On Call conducted the independent investigation. In direct examination by David Millstone, attorney for the Board of Education, Herlevi described his experience, basically 40 years of general human resources work in industry and as a consultant to manufacturing firms, religious organizations, public entities (cities, etc.), and educational institutions like schools and colleges. He has investigated issues ranging from attendance problems in industry to sexual harassment and abuse in schools.

Herlevi described the investigation in outline. The initial conference was with the Superintendent, Steve Short, with Millstone and Herlevi’s wife in attendance. Herlevi’s wife functioned as an assistant or co-investigator. Shortly thereafter, Herlevi interviewed the parents who brought the complaint in federal court, Steven and Jenifer Dennis, along with Zachary Dennis, their son who was burned in Freshwater’s class.

After interviewing the Dennis family, Herlevi interviewed Freshwater. There was some problem in getting that scheduled, since Freshwater wanted his attorney present. A teachers’ union rep was also present at that interview (and at all interviews involving teachers). Freshwater also wanted to record the interview. Herlevi agreed, subject to Freshwater’s agreement, and that of his attorney, that they would provide a copy of the audio tape to Herlevi within 48 hours. They agreed, but the investigator testified that he never got that copy in spite of a written reminder to Freshwater’s attorney, and still doesn’t have it.

The interview finally occurred with two attorneys including Kelly Hamilton who is acting as attorney in this hearing, and the union rep present along with Herlevi and Freshwater.

Herlevi testified that in that interview, Freshwater stated that he checked out a Bible and a book titled “Jesus of Nazareth” from the middle school library and put them in his room on a table adjacent to his desk, emphasizing that they were in the library purchased with public funds. Asked by Herlevi whether that was done to “make a statement,” Freshwater agreed that it was.

Herlevi had subsequent interviews with a number of students, teachers, and administrators, the bulk of which are described in HR On Call’s final report.

Herlevi testified that he asked if Freshwater had a speakers list from FCA. Freshwater said that he did, but that he would have to consult his attorney before turning it over. Herlevi received the list later that day from the middle school principal, Bill White.

Herlevi testified that in response to a direct question, Freshwater said that he taught evolution in his classes.

Herlevi testified that the union rep, Mr. Kesner, told him that he expected that Freshwater and/or his attorney would submit a written statement. It wasn’t clear if that comment was made in Freshwater’s presence. Herlevi also testified that Kesner was in all interviews with teachers, and that he had no reservations about the process as he observed it.

That same day Herlevi and his co-investigator visited Freshwater’s classroom, finding the Bible on his desk, a religious poster with a Bible verse on it showing George Bush and Colin Powell praying, a second Bible and the Jesus of Nazareth book on the table, and creationist materials in a cabinet. Note that this was several weeks after Freshwater had been instructed to remove all religious materials from his classroom. Herlevi interpreted the presence of those materials as insubordination verging on defiance of a superior’s instructions.

Herlevi testified that he was given an email by Superintendent Short from a teacher named Jim Stockdale, with the subject line (from Stockdale) “Preaching (or possibly it was “Teaching” – I didn’t hear it clearly) from the Bible in Middle School.” It contained information about a class Stockdale had observed when in Freshwater’s classroom some time ago, in 2006 or 2007. I don’t (yet!) have a copy of that email, but this from the investigator’s report (pdf) appears to be an excerpt:

The lesson of the day had been on the creation of the universe. John talked about how the textbook could be wrong. He said, ‘Let me give you an example of how science can be wrong.’ He then went on to say that an article in Time magazine a few years back stated that scientists had found a genetic link to homosexuality. ‘In that case science is wrong because the Bible states that homosexuality is a sin’ and so anyone who is gay chooses to be gay and therefore is a sinner. My reaction was one of disbelief that he was saying these things to eighth graders. I thought of how those two or three students in that classroom who might be struggling with their sexual identities would be feeling, hearing that they were sinners from a teacher. … I was surprised at how comfortable John was talking about the Bible stating that homosexuality is a sin, and that anyone who is gay makes a conscious choice to be so. … He had no problem declaring that not only can science be wrong by the example he gave, but heavily implied that the students’ textbook was wrong as well on how the universe was created.

In a telephone interview Herlevi asked Stockdale if he had written what was in the email, and Stockdale agreed that he had. (Recall that I’m not certain the extract above is from that email: I’ll find out tomorrow.)

Later in cross examination, Hamilton asked Herlevi if Stockdale was asked why he hadn’t pushed it with the administration. Stockdale told Herlevi that he knew the assistant principal of the middle school, Mr. Keib, was of the same religious persuasion as Freshwater and that the administration didn’t follow up on such reports, so he didn’t report it. He now regrets not having pushed it vigorously then.

Back to direct examination. In this context Herlevi also testified that he does try to ascertain whether an interviewee has a bias with respect to the subject of the investigation. He testified that Stockdale told him that he had lunched with Freshwater, regarded him as a friend but that he (Stockdale) felt strongly about the issues he raised in his email to Short, and he sent the email because the issues had become salient with the publicity surrounding the Freshwater affair in spring 2008.

Direct examination ended with Herlevi summarizing the four main areas in which the investigation had found problems:

1. The Tesla coil was used improperly, contrary to the manufacturer’s instructions. The marks on the students were uniformly described as crosses by students who saw them made (recall that two students testified they had been marked with the device); Freshwater was alone in describing the as an “X.”

2. Freshwater was insubordinate in that he didn’t remove all the religious materials when instructed to do so, and in fact added a Bible and religious book after the instructionw as given and some material was removed. Herlevi testified that in his opinion that went past insubordination and was “an act of defiance.”

3. Freshwater played much more than a monitor role in FCA, with various interviewees using the terms “leader,” “supervisor,” “facilitator,” and “far more than a monitoring role” to describe his behavior.

4. Freshwater taught materials not consistent with the curriculum, some of which had been expressly forbidden by the Board of Education in 2003. Herlevi testified that the material and interviews indicated that this was a pattern, not an isolated instance, and had persisted for some years up to and including 2007-2008. Herlevi referred to the “Here” code Freshwater used, in which the code word “here” indicated that this is material that Freshwater didn’t think was factuakl or accurate. That material included such things as the reliability of radiometric dating (Herlevi is the first witness to use that rather than “carbon dating”!), the age of the earth, the interpretation of fossils, and so on.

Thomas J. Herlevi Cross Examination

As I’ve noted, Kelly Hamilton’s cross examination technique is difficult to take notes on. Like a good police interrogator (Hamilton was a sergeant on the Columbus Police) he moves from topic to topic, doubling back, then skipping forward. While it may be a good technique for creating confusion and contradictions from witnesses, it’s not fun to try to represent in a coherent narrative.

A good part of Hamilton’s early cross examination of Thomas Herlevi focused on Herlevi’s credentials and experience. Herlevi has been in the business of HR for 40 years in one capacity or another, has taken (and taught) a number of seminars on topics related to investigating and dealing with employee problems. He testified that he has investigated many cases of employee misconduct, including roughly a dozen involving schools, five or six of them dealing with teachers or administrators. Asked whether his investigations had ever exonerated a school teacher or administrator, Herlevi identified at least two in which the investigation had found nothing inappropriate.

Hamilton asked about the proportion of Herlevi’s business that is done with the law firm that David Millstone, Board attorney, is associated with. Herlevi estiamted about 5%.

After some confused questioning, it was established that Herlevi’s wife, who also has considerable HR experience, was in effect a co-investigator, though Herlevi was lead investigator.

Hamilton asked if Herlevi thought his investigative report was accurate, fair, and complete. Herelevi replied that it was. Asked if there was anything in hindsight that he would do differently or would want to do over, Herlevi replied there was not.

Herlevi testified that there are three basic outcomes of such an investigation. The allegations are either supported, or contradicted, or there is insufficient information to make a determination. We spent a good deal of time trying to work out where the boundaries are among those outcomes, to no clear resolution. In the report, Herlevi testified that there was insufficient information to reach a determination on the permission slip issue, so of the several allegations that one remained in the “insufficient information” category.

There was a long series of questions regarding who was interviewed about what. Most of that is covered in the investigative report.

Hamilton asked if any of the people he interviewed lacked credibility. Herlevi replied, “Mr. Freshwater.” In a series of questions about how that judgment was reached, Herlevi identified the contradictions between Freshwater’s claims and the information provided by other interviewees, as well as the handouts identified as having been used in Freshwater’s classes. He specifically mention Freshwater’s description of the marks on students’ arms as an X, while all others described it as a cross; the use of the code word “Here” to indicate when Freshwaqter had determined that some class material was not fact; Freshwater’s assertion that he taught evolution, when he used handouts from young earth creationist sources – giraffe, woodpecker, dragon, and dinosaur/human handouts – and has creationist materials in the classroom, specifically in a cabinet. Those materials, listed in the investigator’s report, included

– A book titled “Refuting Evolution” (by Jonathan Sarfati, a notorious YEC)

– A video tape titled “Lies In The Textbooks, Part A 4 Of 7, 10 Lies Of Evolution” (A Kent Hovind video; ‘nuff said)

– A book titled “Evolution Of A Creationist” (About “incredible creatures that defy evolution”)

– A book titled “The Real Meaning Of The Zodiac” (A book about “Biblical Astrology” by D. James Kennedy)

– A book titled “Icons of Evolution” (Jonathan Wells’ ID creationist trash. In 2003 Freshwater proposed incorporating some of Wells’ trash in the science curriculum, using Wells’ Survival of the Fakest as part of his supporting material.)

Hamilton asked if the creationist materials were religious materials. Herlevi replied that they were not. Here Herlevi screwed up: the relevant jurisprudence pretty clearly identifies so-called “scientific” creationism, as well as intelligent design creationism, as not being science and generally being vehicles bearing religious intent. (I know that last phrase is a a stretch, but establishing intent in Freshwater’s case would be a breeze: the trail is long, wide, and deep.)

Hamilton pushed hard on the purported incompleteness of the investigation, asking whether there were others Herlevi should have talked to, should he have followed up with Freshwater on some of the allegations, why Herlevi hadn’t used audio recording of interviews rather than depending on two sets of handwritten interview notes (Herlevi’s and his wife’s), whether Herlevi had taken sworn testimony in interviews (he didn’t), and so on. In general Herlevi defended his choices and methods in the investigation.

Hamilton elicited the admission that Herlevi tried the Tesla coil on himself before he obtained the instructions from the manufacturer’s web site.

Hamilton elicited the affirmation that Herlevi was told that Freshwaters’s students’ Ohio Achievement test scores were as high or higher than those of other classes, though Herlevi noted that he had also been told that class composition issues complicate such comparisons – students are not assigned randomly to 8th grade science classes.

In response to questioning about the involvement of the Board’s law firm or Board representatives in the preparation of the final report, Herlevi testified that David Millstone had reviewed earlier drafts for clarity but not for substance, and Millstone’s remarks about clarity addressed only 2% or 3% of the report.

With regard to the bullet pointed allegations on page 1 of the investigator’s report, Herlevi acknowledged that all nine were originally brought by the Dennis family in their federal lawsuit. (Note, however, that independent witnesses have corroborated the bulk of them, as well as multiple witnesses corroborating additional allegations.)

We spent some time on how Herlevi concluded that Freshwater had not taught to the standards. Herlevi said he depended on the experts – chair(s) of science department, curriculum director – for guidance in that respect. They also referred to National Science Teachers Association position statements.

Hamilton went through his charade with Freshwater’s Bible again, handing it to the witness and asking what it was. Paraphrased:

“It’s a Bible.”

“Could it be any kind of Bible? Say, a mechanic’s bible? “

“It’s a Bible.”

“Does it say it’s a religious book?”

“It’s a BIBLE!!!eleven!11!”

Rinse, lather, repeat.

Asked about the source of the several handouts included as appendicies in the investigator’s report, Herlevi identified Elle Button (science teacher), Kate Button (former Freshwater student), Mr. Soudhra (father of former Freshwater student), and a file kept by former Superintendent Maley dating from the 2002-2003 time when Freshwater proposed the change in the science curriculum.

The issue of followup on complaints about Freshwater’s behavior was raised. It culminated in Herlevi saying (more or less quoted “The environment in the school was that these things would be brought up to administrators and there was no followup.” Asked by Hamilton if he was saying that “the former administration didn’t do what it was supposed to do,” Herlevi replied that “it appears that way.”

In his interview with former Superintendent Jeff Maley, Herlevi testifed that Maley said something to the effect that “complaints had come in, and the community was divided between Kenyon College’s supporters and the Nazarene (Mt. Vernon Nazarene University) supporters, so when taking these issues up, he (Maley) had to walk a fine line. Maley would tell the principals, and the principals were to tell Freshwater, according to Herlevi.

(I will say parenthetically that at the time Freshwater made his proposal to the BOE in 2003, Maley made a very strong public statement opposing it, and later told me he thought he’d signed his own political death warrant in doing so. Bear in mind that schools have to pass levies to stay open. Nevertheless, in my view the previous administration, particularly in the middle school, should be toasted some more. The current administration had this dropped in their laps, and they’re doing a decent job with it, stressful though I know it is for them. For more on the stress these kinds of situations impose on communities read Lauri Lebo’s book.)

Finally, Herlevi testified that giving students extra credit for seeing “Expelled: No Intelligence Allowed” and writing a paragraph about it was inappropriate, according to the science chairs and curriculum director,.

Thus endeth the seventh day. The hearing goes on the rest of this week, and Wednesday through Friday next week.

(I’ll do some editing for typos when I’m more awake. Say, next weekend.)