[Cite as Freshwater v. Mt. Vernon City School Dist. Bd. of Edn., 2012-Ohio-889.]
COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: JOHN FRESHWATER : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellant : Hon. Sheila G. Farmer, J. : -vs- : : Case No. 2011-CA-000023 MOUNT VERNON CITY SCHOOL : DISTRICT BOARD OF EDUCATION : : OPINION Defendant-Appellee
CHARACTER OF PROCEEDING: Civil appeal from the Knox County Court of Common Pleas, Case No. 11AP02-0090
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 5, 2012
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
R. KELLY HAMILTON DAVID KANE SMITH Box 824 KRISTA KEIM Grove City, OH 43123 PAUL J. DEEGAN 3 Summit Park Drive Ste. 400 Cleveland, OH 44131 RITA DUNAWAY The Rutherford Institute Box 7482 Charlottesville, VA [Cite as Freshwater v. Mt. Vernon City School Dist. Bd. of Edn., 2012-Ohio-889.]
Gwin, P.J.
{¶ 1} This case comes to us on the accelerated calendar. App. R. 11.1, which
governs accelerated calendar cases, provides, in pertinent part:
(E) Determination and judgment on appeal.
The appeal will be determined as provided by App. R. 11.1. It shall
be sufficient compliance with App. R. 12(A) for the statement of the reason
for the court's decision as to each error to be in brief and conclusionary
form.
The decision may be by judgment entry in which case it will not be
published in any form.
{¶ 2} One of the important purposes of the accelerated calendar is to enable an
appellate court to render a brief and conclusory decision more quickly than in a case on
the regular calendar where the briefs, facts and legal issues are more complicated.
Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 655(10th
Dist. 1983). This appeal shall be considered in accordance with the aforementioned
rule.
{¶ 3} This case arises out of the Mount Vernon City School District Board of
Education (“Board of Education”), decision to terminate appellant John Freshwater’s
(“Freshwater”) employment pursuant to the R.C. 3319.16 after he failed to adhere to the
established curriculum under the Academic Content Standards for eighth grade as
adopted by the Board of Education by teaching creationism and intelligent design in his
eighth grade science classes. Knox County, Case No. 2011-CA-000023 3
{¶ 4} Freshwater was hired by the Board of Education in 1987 and was
employed by them as an eighth grade science teacher until the incidents pertaining to
this lawsuit occurred. For 16 of the 20 years that Freshwater taught, he was the faculty
appointed facilitator, monitor, and supervisor of the eighth grade group called the
Fellowship of Christian Athletes. For his entire teaching career, Freshwater kept a Bible
on his desk. Several other teachers employed by the Board of Education also kept
Bibles on their desks. Freshwater has been engaged as a private citizen in promoting
certain religious activities and liberties in the Mount Vernon, Ohio community.
{¶ 5} Throughout Freshwater's employment, he was given performance
evaluations on at least twenty occasions, each of which was positive. Freshwater had
never been disciplined before the events relevant to the instant action.
{¶ 6} In January 2008, the parents of one of Freshwater's students complained
to the president of the Board of Education, Defendant Ian Watson, about an incident in
which Freshwater used a device called a Tesla Coil to make a mark that lasted a week
and one-half to two weeks on the student's arm. Defendants characterize the mark as
the religious symbol of a Christian cross. Freshwater claims that, although he had used
a Tesla Coil before, he did not expect it to leave a mark on the student nor did he
believe that was even a possibility.
{¶ 7} Because of this complaint, the Board of Education retained counsel and
requested an investigation of the charges made against Freshwater. The contract
between the Board of Education and the Mount Vernon Education Association provided
the authority for such an investigation. A report on the investigation was provided to the
Board of Education. The report indicated that it had interviewed Weston and that “Dr. Knox County, Case No. 2011-CA-000023 4
Weston stated that she has had to deal with internal and external complaints about his
(Plaintiff Freshwater) failure to follow the curriculum for much of her 11 years at Mount
Vernon.” Id. at ¶ 114.
{¶ 8} An administrative hearing regarding the charges brought against
Freshwater was conducted. “Short, Weston and White testified in the hearing they had
personal knowledge of or a perceived belief concerning Plaintiff Freshwater's personal
religious activities as a result of actions taken by Freshwater during Freshwater's time
outside of school duties.” Id. at ¶ 113. At the hearing, Weston testified that the
statement in the report that she had received internal and external complaints for much
of her eleven years of employment with the Board of Education was “inaccurate.” Id. at
¶ 115.
{¶ 9} On June 20, 2008, the Board of Education passed by vote a resolution
titled “Intent to Consider the Termination of the Teaching Contract of John Freshwater”
(“Resolution”), which stated that Freshwater “consistently failed to adhere to the
established curriculum under the American Content Standards for eighth grade as
adopted by ... the Mount Vernon City School Board.” Id. 4 ¶¶ 23, 24. On July 7, 2008,
the Board of Education amended the resolution to correctly identify the curriculum
standards as the “Academic Content Standards.” Id. ¶ 25. The resolution stated that
Freshwater taught creationism and intelligent design in his eighth grade science
classes, which is not allowed by the Academic Content Standards.
{¶ 10} Freshwater contends that he was the target of intentional religious
discrimination and harassment, being treated differently than his similarly situated
coworkers, and that he was deprived of his constitutional rights to free speech and Knox County, Case No. 2011-CA-000023 5
association, equal protection, and due process. See, Freshwater, et al. v. Mt. Vernon
School District, et al., S.D.Ohio No. 2:09-CV-464, 2009 WL 4730597 (Dec 8, 2009); Doe
v. Mt. Vernon School District, et al., S.D.Ohio No. 2:08-CV-575, 2010 WL 1433301(Apr
6, 2010).
{¶ 11} Freshwater requested a hearing pursuant to R.C. 3319.16. A public
hearing was held before a referee. The referee presided over 38 days of witness
testimony from over 80 witnesses that generated over 6,000 pages of transcript. The
referee also admitted approximately 350 exhibits into evidence. The hearing process
took nearly two years to complete. The referee issued his report on January 7, 2011,
recommending the Board terminate Freshwater's employment contract(s) for good and
just cause.
{¶ 12} On January 10, 2011, the Board adopted the referee's report and resolved
to terminate Freshwater's employment for two main reasons. First, Freshwater injected
his personal religious beliefs into his plan and pattern of instructing his students that
also included a religious display in his classroom, and second, insubordination.
{¶ 13} On February 8, 2011, Freshwater appealed the Board's decision to the
Knox County Court of Common Pleas pursuant to R.C. 3319.16. On October 5, 2011,
the trial court entered a Journal Entry affirming the Board's decision to terminate
Freshwater, finding in the record “clear and convincing evidence” of good and just
cause. The Court further found Freshwater's request for it to conduct additional hearings
not well taken, based on the depth and breadth of witnesses and exhibits presented at
the referee's hearing. Knox County, Case No. 2011-CA-000023 6
{¶ 14} This case is before this Court on appeal from the October 5, 2011 decision
of the Knox County Court of Common Pleas that affirmed the appellee's January 10,
2011 resolution to terminate appellant's employment. Freshwater raises one assignment
of error,
{¶ 15} “I. THE COURT BELOW ABUSED ITS DISCRETION IN FINDING THAT
THERE WAS CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE BOARD OF
EDUCATION’S TERMINATION OF FRESHWATER’S EMPLOYMENT CONTRACT(S)
FOR GOOD AND JUST CAUSE, IN AFFIRMING THE BOARD’S TERMINATION OF
FRESHWATER’S EMPLOYMENT CONTRACT(S), AND IN ORDERING
FRESHWATER TO PAY THE COSTS OF THE APPEAL.”
I.
{¶ 16} R.C. 3319.16 provides that a tenured teacher can be terminated “for gross
inefficiency or immorality; for willful and persistent violations of reasonable regulations
of the board of education; or for other good and just cause.” These constitute three
separate, independent bases, each of which is sufficient to terminate a tenured teacher.
Hale v. Lancaster Bd. of Edn., 13 Ohio St. 2d 92, 234 N.E. 2d 583(1968).
{¶ 17} The process to be employed in such a matter, after the decision to
discharge is made, begins with a referee. He is required to hold an evidentiary hearing
from which he presents his report to the school board. The board may then elect to
accept or reject his recommendation.
The decision to terminate a teacher's contract is comprised of two
parts: (1) the factual basis for the allegations giving rise to the termination;
and (2) the judgment as to whether the facts, as found, constitute gross Knox County, Case No. 2011-CA-000023 7
inefficiency, immorality, or good cause as defined by statute. The
distinction between these two is important in understanding the respective
roles of the school board and of the statutory referee in the termination
process. * * * The referee's primary duty is to ascertain facts. The board's
primary duty is to interpret the significance of the facts.
Aldridge v. Huntington School Dist., 38 Ohio St.3d 154, 157-158, 527 N.E.2d 291,
294(1988).
{¶ 18} The Aldridge court, therefore, held in the syllabus:
In teacher contract termination disputes arising under R.C.
3319.16:
1. The referee's findings of fact must be accepted unless such
findings are against the greater weight, or preponderance, of the
evidence;
2. A school board has the discretion to accept or reject the
recommendation of the referee unless such acceptance or rejection is
contrary to law.
{¶ 19} From there, the decision of the school board may be appealed to the court
of common pleas. The court then engages in a hybrid exercise, encompassing
“characteristics both of an original action with evidence presented and a review of an
administrative agency's decision based upon a submitted record.” Douglas v. Cincinnati
Bd. of Edn., 80 Ohio App.3d 173, 177, 608 N.E.2d 1128, 1131(1st Dist.1992). Based
upon this review, “[t]he Common Pleas Court may reverse an order of termination of a
teacher's contract, made by a Board of Education, where it finds that such order is not Knox County, Case No. 2011-CA-000023 8
supported by or is against the weight of the evidence. (Section 3319. 16, Revised Code,
construed and applied.)” Hale, 13 Ohio St. 2d 92, 234 N.E. 2d 583, paragraph one of
the syllabus.
{¶ 20} The Supreme Court of Ohio has delineated the standard of review and the
role of a court of appeals:
If the judgment of the court of common pleas is then appealed to
the court of appeals, review in the appellate court is strictly limited to a
determination of whether the common pleas court abused its discretion.
This scope of review is, of course, extremely narrow. The term ‘abuse of
discretion’ has been defined as implying ‘“not merely error of judgment,
but perversity of will, passion, prejudice, partiality, or moral delinquency.”’
(Citations omitted.)
Graziano v. Amherst Exempted Village Bd. of Edn., 32 Ohio St.3d 289, 295, 513 N.E.2d
282(1987). (Douglas, J., concurring).
{¶ 21} Thus, unless this court determines that the trial court abused its discretion,
we are compelled to affirm its decision as “the court of appeals may not engage in what
amounts to a substitution of judgment of the trial court in an R.C. 3319.16 proceeding.”
Id. at 294, 513 N.E.2d at 286.
“Abuse of discretion” has been defined as an attitude that is
unreasonable, arbitrary or unconscionable. * * * It is to be expected that
most instances of abuse of discretion will result in decisions that are
simply unreasonable, rather than decisions that are unconscionable or
arbitrary. Knox County, Case No. 2011-CA-000023 9
A decision is unreasonable if there is no sound reasoning process
that would support that decision. It is not enough that the reviewing court,
were it deciding the issue de novo, would not have found that reasoning
process to be persuasive, perhaps in view of countervailing reasoning
processes that would support a contrary result.
AAAA Enterprises, Inc. v. River Place Community Urban Redevelopment Corp., 50
Ohio St.3d 157, 161, 553 N.E.2d 597, 601(1990).
{¶ 22} In the matter sub judice, we do not perceive an “unreasonable, arbitrary or
unconscionable attitude,” nor one that is “not merely error of judgment, but [one of]
perversity of will, passion, prejudice, partiality, or moral delinquency.” To the contrary,
the referee’s memorandum provides a well-reasoned and articulated basis for affirming
the decision of the Board and for the trial court to accept the recommendation of the
referee.
{¶ 23} In Graziano the Supreme Court said that the “report and recommendation
undertaken by the referee pursuant to R.C. 3319.16 must be considered and weighed
by the board of education. [Emphasis added.] * * * [D]ue deference must be accorded
to the findings and recommendations of the referee * * * who is best able to observe
the demeanor of the witnesses and weigh their credibility.” 32 Ohio St.3d at 293, 513
N.E.2d at 285. Graziano noted that the board is not bound by the recommendations
rendered by the referee, but that the board “should, in the spirit of due process,
articulate its reasons therefore” if it rejects the recommendations. Id.; Aldridge v.
Huntington School Dist., 38 Ohio St.3d at 157, 527 N.E.2d 291. Knox County, Case No. 2011-CA-000023 10
{¶ 24} In the case at bar, this court rejects appellant's contentions as to issues
involving the sufficiency of the evidence and the credibility of certain witnesses. There
was sufficient evidence to support both the referee and appellee's findings, and we do
not determine issues involving credibility.
{¶ 25} Next, we find it is within the trial court’s discretion to determine whether
additional hearings should be conducted. Although the common pleas court's review of
a board's decision is not de novo, R.C. 3319.16 does empower the court to weigh the
evidence, hold additional hearings if necessary, and render factual determinations.
Graziano, 32 Ohio St.3d at 293, 513 N.E.2d at 285. However, nothing in the statute
absolutely requires the reviewing court to do so. See R.C. 3319.16 (stating that the
court “shall hold such additional hearings as it considers advisable, at which it may
consider other evidence in addition to the transcript and record.”) (Emphasis added.) If
there exists “substantial and credible evidence” in support of the charges of the Board,
and “a fair administrative hearing is had, the [common pleas court] cannot substitute its
judgment for the judgment of the administrative authorities.” Bertolini v. Whitehall City
Sch. Dist. Bd. of Edn., 139 Ohio App.3d 595, 604, 744 N.E.2d 1245(10th Dist. 2000),
quoting Strohm v. Reynoldsburg City School Dist. Bd. of Edn., 10th Dist. No. 97APE07-
972, 1998 WL 151082 (Mar. 31, 1998). Accord Elsass v. St. Mary’s City School Dist.
Bd. Of Edn., 3d Dist. No. 2-10-30, 2011-Ohio-1870, ¶ 43.
{¶ 26} Appellant's main contention in the case sub judice is that the conduct
found did not rise to the level of good and just cause sufficient to terminate his contract.
[Appellant’s Brief at 7]. Knox County, Case No. 2011-CA-000023 11
{¶ 27} The Supreme Court has defined “good and just cause” as a “fairly serious
matter.” Hale at 98–99, 234 N.E.2d 583. The referee in the case at bar found appellant’s
conduct to constitute a “fairly serious matter,”
Without question, the repeated violation of the Constitution of the
United States is a "fairly serious matter" and is therefore, a valid basis for
termination of John Freshwaters contract(s). Further, he repeatedly acted
in defiance of direct instructions and orders of the administrators - his
superiors. These defiant acts are also a "fairly serious matter" and,
therefore, a valid basis for termination of John Freshwater’s contract.
Referee’s Report at 13.
{¶ 28} The referee did not use the Tesla Coil incident as a reason to terminate
appellant’s contract. The referee found that incident had been dealt with by the
administration and that case was closed.
{¶ 29} The referee further found that “the multiple incidents which gave rise to the
numerous and various bases/grounds more than suffice in support of termination.”
Referee’s Report at 12. The referee found that appellant had repeatedly violated the
U.S. Constitution; acted in defiance of direct instructions and orders of his superiors,
and refused and/or failed to employ objectivity in his instruction of a variety of science
subjects. Id.
{¶ 30} The common pleas court found that appellee's order was not against the
manifest weight of the evidence and that appellant's conduct constituted good and just
cause to terminate appellant. Therefore, it affirmed appellant's termination. Knox County, Case No. 2011-CA-000023 12
{¶ 31} A review of the record shows that a hearing spanning nearly two years
was conducted, testimony from over 80 witnesses was received, a transcript of over
6,000 pages was produced, and approximately 350 exhibits were admitted into
evidence.
{¶ 32} During the proceedings appellant was represented by a competent
attorney, he was permitted to fully explain his actions, he presented witnesses on his
behalf, and he had a full opportunity to challenge the Board's key witnesses. R.C.
3319.16 does not contain any requirement that a teacher be afforded an opportunity to
refute the contents of a referee's report in the period between the filing of the report and
its acceptance or rejection by the board of education, nor does it provide for an
additional hearing before the board if the teacher does not like the results of the hearing
before the referee. Elsass v. St. Mary’s City School Dist. Bd. Of Edn., 2011-Ohio-1870,
¶ 60.
{¶ 33} Appellant has failed to demonstrate any due process violation. The trial
court did not abuse its discretion by overruled his request to conduct additional
hearings.
{¶ 34} We further find that appellee's determination as to the significance of
appellant's conduct—that such constituted a fairly serious matter—is explicable and
reasonable. Further, the common pleas court's affirmance of that determination was not
an abuse of discretion and, therefore, will not be disturbed by this court.
{¶ 35} In Oleske v. Hilliard City School Dist. Bd. Of Edn., the Court observed,
It is not within the province of this court to second-guess appellee's
determination of the significance of appellant's conduct. We do not sit as a Knox County, Case No. 2011-CA-000023 13
super-school board. Given the circumstances presented herein, we simply
cannot find an abuse of discretion on the part of the common pleas court
in affirming appellee's order. To do so would simply be to substitute our
judgment for that of the common pleas court and/or appellee, and this is
not our role.
146 Ohio App.3d 57, 65, 764 N.E.2d 1110 (10th Dist. 2001).
{¶ 36} Accordingly, appellant’s sole Assignment of Error is overruled in its
entirety.
{¶ 37} The judgment of the Court of Common Pleas, Knox County, Ohio is
affirmed.
By Gwin, P.J.,
Hoffman, J., and
Farmer, J., concur
_________________________________ HON. W. SCOTT GWIN
_________________________________ HON. WILLIAM B. HOFFMAN
_________________________________ HON. SHEILA G. FARMER [Cite as Freshwater v. Mt. Vernon City School Dist. Bd. of Edn., 2012-Ohio-889.]
IN THE COURT OF APPEALS FOR KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JOHN FRESHWATER : : Plaintiff-Appellant : : : -vs- : JUDGMENT ENTRY : MOUNT VERNON CITY SCHOOL : DISTRICT BOARD OF EDUCATION : : : Defendant-Appellee : CASE NO. 2011-CA-000023
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas, Knox County, Ohio is affirmed. Costs to
appellant.
_________________________________ HON. SHEILA G. FARMER