School district whistle-blower finally has date in court

A former Philadelphia School District administrator who alleges he was wrongfully fired for exposing a $7.5 million no-bid surveillance camera contract will finally get his day in court.

After a detour to the U.S. Court of Appeals for the Third Circuit, the whistle-blower suit that Francis X. Dougherty filed against the district nearly three years ago is set to begin in federal court on Monday.

Dougherty, 48, charges that his civil rights were violated when he was fired as the district's acting chief of operations in 2011 for telling The Inquirer and federal law enforcement that then-Superintendent Arlene C. Ackerman had steered the no-bid contract to a small minority firm, IBS Communications Inc., which had not been approved for emergency work.

His attorneys said in pretrial documents that Dougherty was fired "without justification because he spoke out on issues of public concern and reported instances of wrongdoing and waste."

They allege that Ackerman had social ties with IBS and that she "substituted favoritism and racial preference for the district's system of access and fairness."

Attorneys representing the district and former district officials countered, saying in filings that Dougherty "began a crusade against the district" because he felt former Deputy Superintendent Leroy D. Nunery II had insulted his professionalism.

They maintain Dougherty was fired because he improperly sent e-mails containing confidential district information to his personal e-mail account and to outsiders.

Ackerman, who left the district in August 2011 and died in February 2013, repeatedly denied directing staff to make sure IBS got the contract.

Dougherty's case is the first of four suits stemming from the 2010 camera contract to go to trial.

All four suits resulted from a Nov. 28, 2010, Inquirer article that reported Ackerman had pushed aside Security & Data Technologies Inc. (SDT), a Bucks County firm that had begun preliminary work on a rush contract to install surveillance cameras in 19 schools the state had deemed "persistently dangerous."

A district source told the newspaper Ackerman instead ordered the contract be given to IBS, a small minority-owned firm then based in Mount Airy. SDT was on a state-approved list of contractors eligible for emergency contracts; IBS was not.

The School Reform Commission awarded the camera contract to IBS in October 2010.

Ackerman previously had directed staff to ensure that IBS had a share of a smaller project in December 2009, installing cameras in South Philadelphia High School after an outbreak of violence.

Two weeks after the first Inquirer article about the IBS contract, Ackerman told her cabinet she was determined to find out who was leaking information to the newspaper.

Dougherty and five other administrators were placed on paid leave that day while the district's legal department began an internal investigation.

He was fired four months later.

At the time, district officials said he was fired because an investigation led by outside attorneys found he had violated district policy by forwarding e-mails containing confidential district information to his personal account. Officials also said he had refused to meet with outside attorneys handling the investigation.

In court filings, however, Dougherty's lawyers said the district's own ethics policy did not prohibit employees from forwarding e-mails to their personal accounts. In addition, they said the policy expressly says the confidentiality provisions do not apply in the "practice of whistle-blowing."

Dougherty's attorneys contend the alleged e-mail infractions "were a pretext for the true reason . . . that Mr. Dougherty was the leak."

The Inquirer never identified the source of the articles about the IBS contract. In his lawsuit, Dougherty disclosed that he met with Inquirer reporters on Nov. 10, 2010 - the same day he contacted the FBI.

The district's lawyers said in court documents none of the governmental authorities Dougherty contacted about the contract "ever made any findings of wrongdoing or waste."

After Dougherty's suit was filed, the district tried to argue that he could not claim his First Amendment rights had been violated because he was a high-ranking district administrator and said that Ackerman and two other former cabinet members could not be sued because they were public officials.

When U.S. District Court Judge Juan R. Sánchez rejected those arguments, the district appealed to the Third Circuit.

In November, a three-judge panel of the Third Circuit affirmed Sánchez's ruling.

"Dougherty's report to The Philadelphia Inquirer exposing Dr. Ackerman's alleged misconduct is the archetype of speech deserving the highest rung of First Amendment protection," U.S. Circuit Judge Michael D. Fisher wrote in the opinion.

He also said Ackerman and two former administrators involved with Dougherty's firing should have known what they were doing was wrong, and, therefore, even though they were public officials, were not immune from being sued.

The trial before Sánchez begins Monday against the School District; Nunery and Estelle G. Matthews, a former top human resources official; and Ackerman's estate. The district and the lead defense attorney, Joe H. Tucker Jr., declined to comment Friday about the trial. Tucker has stated the trial could last eight days.

Dougherty is now managing director of Allentown. His attorney Alice W. Ballard said she was looking forward to trial. "Our democracy needs its whistle-blowers," she said, "and they deserve their day in court."

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@marwooda