[Cite as Freshwater v. Mt. Vernon City School Dist. Bd. of Edn.,

.]

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.,

.]

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.,

,

(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,

(Dec 8, 2009); Doe

v. Mt. Vernon School District, et al., S.D.Ohio No. 2:08-CV-575,

(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.,

,

(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.,

,

(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.,

,

(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,

,

, 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.,

,

(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.”

,

.

“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.,

,

(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.”

,

. 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.,

,

. 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,

,

. 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.,

,

(10th Dist. 2000),

quoting Strohm v. Reynoldsburg City School Dist. Bd. of Edn., 10th Dist. No. 97APE07-

972,

(Mar. 31, 1998). Accord Elsass v. St. Mary’s City School Dist.

Bd. Of Edn., 3d Dist. No. 2-10-30,

.

{¶ 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,

. 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.

{¶ 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.,

.

{¶ 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.

,

(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.,

.]

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. W. SCOTT GWIN

_________________________________ HON. WILLIAM B. HOFFMAN

_________________________________ HON. SHEILA G. FARMER