Jury says Phila. district violated ex-official's right to free speech

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Then-Superintendent Arlene Ackerman addresses a rally in front of Philadelphia School District headquarters in March 2011. (Ron Tarver / Staff Photographer)

After four hours of deliberation, a federal jury Tuesday night said a former Philadelphia School District official was wrongfully suspended and lost his job for exposing a $7.5 million no-bid surveillance camera contract.

The jury found that the district, former Superintendent Arlene C. Ackerman, and a former top lieutenant had retaliated against Francis X. Dougherty because he told The Inquirer and federal and state authorities that Ackerman steered the no-bid contract to a small minority firm, IBS Communications Inc., that had not been approved for emergency work.

The panel, which heard five days of testimony, said the district, Ackerman, and Estelle G. Matthews, a former top human resources official, had violated Dougherty's First Amendment right to free speech by placing him on leave in December 2010, then recommending his firing.

The School Reform Commission voted in April 2011 to fire Dougherty as acting chief of operations.

The jury concluded that while Dougherty's right to free speech had been violated, the district had not broken Pennsylvania's whistle-blower law, which bars employers from retaliating against employees who allege wrongdoing.

For the First Amendment violation, the jury awarded Dougherty $1 from each of the defendants who had wronged him: the district, Ackerman, and Matthews. The trial judge will rule this month on additional damages.

Throughout the trial, Dougherty's attorneys argued that Ackerman and her administration embarked on a mission to find out who was leaking information after The Inquirer published an article on Nov. 28, 2010, that said she 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."

The defense maintained Dougherty lost his job after outside attorneys who conducted an investigation for the district said he had sent an e-mail about the camera project to an unknown third party and improperly sent 50 e-mails from his work account to his personal account.

The defense said that the recommendation to fire Dougherty was not tied to anything he might have told anyone about the camera project and contended that the district would have moved to fire him regardless.

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

Before the case went to the jury, U.S. District Judge Juan R. Sánchez had ruled that Dougherty's reports about the camera contract to The Inquirer, authorities, and two state legislators were protected by the First Amendment. The jurors had to determine whether his termination was linked to that speech.

"The jury recognized that the defendants retaliated against Mr. Dougherty for speaking out to protect the taxpayers," Lisa Mathewson, one of his lawyers, said after the verdict was announced. "We are proud to represent this public servant and gratified that the jury acknowledged the defendants' wrongdoing."

Joe H. Tucker Jr., the lead defense attorney, blasted The Inquirer for its coverage of the IBS camera contract and for describing Dougherty as a whistle-blower.

"Shame on The Inquirer for putting out story after story without a factual basis," Tucker said. "They have done a disservice to the students of Philadelphia."

Sánchez will hold a hearing March 31 to determine how much money Dougherty is entitled to for his economic losses.

 


martha.woodall@phillynews.com

215-854-2789 @marwooda