Secrecy and Mistrust in Philadelphia Schools Under Arlene Ackerman
By Martha Woodall
During five days of testimony in a federal civil rights case, jurors heard testimony about the fear of leaks that permeated Philadelphia School District headquarters when Arlene C. Ackerman was superintendent.
Current and former administrators lamented that almost as soon as they left cabinet meetings, reporters would call with questions about what was discussed.
The campaign to plug the leaks intensified after The Inquirer published a Nov. 28, 2010, article reporting that Ackerman had steered a $7.5 million no-bid contract for surveillance cameras to a small minority firm that had not been approved for emergency work.
Francis X. Dougherty, the district's former acting chief of operations, testified that the day after the article appeared, Ackerman summoned him and others to her office "and said then and there, she was going to find this leak and make an example -- even if it meant hiring private investigators."
After four hours of deliberation, the jury Tuesday night decided that in her zeal to stamp out unauthorized disclosures, Ackerman, her former head of human resources, and the district had wrongfully suspended and recommended firing Dougherty for exposing the camera contract.
The district violated Dougherty's First Amendment right to free speech, the jury found, by punishing him for talking to the media and to federal and state authorities.
From Dougherty's point of view, he'd lost his job for one reason: He had the audacity to speak to the newspaper and the FBI about a lucrative contract he believed had been awarded improperly. He believed the Ackerman administration used favoritism and racial preference instead of the rules designed to promote fairness and save taxpayers money.
Attorneys for the district asserted that Dougherty was a disgruntled employee who, along with his allies, disliked Ackerman personally and had misled both The Inquirer and the FBI in his account of how the contract was awarded.
The defense maintained that the School Reform Commission fired Dougherty in April 2011 because he improperly sent 50 e-mails with confidential information to his personal e-mail account and sent one to an unknown outsider.
The jury's job was to determine whether the district, Ackerman, and her aides had violated Dougherty's First Amendment right to speak out and whether he was a whistleblower as defined in state law.
Though the jury found Dougherty's action was protected by the Constitution, it also found no breach of the Pennsylvania Whistleblower Law, which bars employers from retaliating against those who go to law enforcement to allege wrongdoing.
For the First Amendment violation, the jury awarded Dougherty a nominal $1 from each of the defendants who had wronged him: the district, Ackerman, and Estelle G. Matthews, former head of human resources.
Former Deputy Superintendent Leroy D. Nunery II was also a defendant, but the jury found he had not violated Dougherty's rights.
Dougherty, 47, won no damages for pain and suffering.
U.S. District Judge Juan R. Sánchez will hold a hearing March 31 to determine how much money Dougherty is entitled to for his economic losses.
The case was the first of four over the camera contract to go to trial.
All resulted from the 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 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.
Ackerman, who left the district in August 2011, died in February 2013. When the press reports about the contract came out, she repeatedly denied telling staff to make sure IBS got the work.
The SRC ratified the $7.5 million IBS contract in October 2010 and made the agreement retroactive to Sept. 22, 2010 -- the day before Dougherty said Ackerman told procurement director John L. Byars in a staff meeting to make IBS the prime contractor.
In his suit, Dougherty disclosed that he was a source for the articles. He told jurors that out of his concern for taxpayers and because "there was no possibility of righting the ship" from the inside, he had "turned whistleblower."
He said on Nov. 10, 2010, he spoke to two Inquirer reporters and contacted the FBI to report his concerns about the camera contract. According to testimony, speculation about the leaker became a sort of parlor game at district headquarters.
Questions began even before the first article about the contract hit the streets.
On Nov. 15, 2010, shortly after Inquirer reporters contacted SDT to ask questions about the camera project, an SDT official told a district project manager about the inquiry. She informed her supervisors, and they decided they had to alert Ackerman.
Dougherty and other officials who attended a meeting the next day described Ackerman's mood: furious.
Melanie S. Harris, the district's chief information officer, said she told the superintendent they were trying to be good soldiers. But Harris acknowledged she had cried when she was later interviewed about the meeting.
At the session, Ackerman told staffers she was upset that minority contracts were singled out for scrutiny and said she was tired of the district giving work to white-owned contractors who did not look like her and "Lee."
Nunery, who is also African American, testified: "I recall her saying that. . . . It's the kind of thing that those in the room would remember."
He also said Ackerman suspected The Inquirer article about the camera contract would be negative and would suggest she had done something wrong.
"I don't think she felt that she did," Nunery said.
Pressure mounted after the article ran.
Within days, Michael Davis, the district's general counsel, began talking to a few staffers involved with the camera project.
Matthews, who had been on a 10-day vacation, recalled a phone call she received from Ackerman Dec. 12, 2010, recounting the newspaper coverage. She directed Matthews to attend a meeting with top leaders the next morning.
At that session, Ackerman said she wanted a full-blown investigation -- even if it meant hiring private investigators. She said the people principally involved with the cameras should be put on leave until the probe ended.
"We went around the room and said it was none of us who were doing the leaking," Matthews testified.
That day, six administrators, including Harris, Byars, and Dougherty were placed on paid administrative leave.
Dougherty told jurors that when he received his suspension letter from Matthews, he told her and a labor attorney in the room: " 'I'm going to tell you: I'm the whistleblower; I'm the leak.'"
Dougherty told them he had gone to federal law enforcement but refused to name the FBI agent.
On Dec. 17, 2010, Michael A. Schwartz, a lawyer at Pepper Hamilton L.L.C. in Center City, spoke by phone with Davis. The former federal prosecutor said Davis told him he wanted him to investigate the unauthorized disclosures of information and examine the district's contracting practices.
Jurors learned Schwartz's hand-written notes from the conversation included the notations "Headlines begin" and "Ackerman takes stuff personally."
Schwartz told the FBI the district would cooperate.
Finding the leak was one of the topics of the Pepper Hamilton interviews. One interview memo read: " 'The word in the halls is that it's Dougherty,' but he had no evidence to support this."
Schwartz said Davis told him one of his priorities was determining whether the six suspended administrators could return to work.
Schwartz said he spoke to each except for Dougherty. Lisa A. Mathewson, one of Dougherty's lawyers, told Schwartz her client was claiming whistleblower status and would not participate.
Harris and three others returned to their jobs.
The report Schwartz presented to the SRC in executive session Feb. 16, 2011, recommended that Dougherty and Byars be disciplined for violating district policies.
Schwartz said his investigation found "multiple failures in the chain of command" regarding the district's contracting practices, but he never found the leak.
Without being able to talk to Dougherty, Schwartz said, he could not find a legitimate reason for Dougherty's forwarding 50 e-mails to his personal account or sending one e-mail to an unknown third party.
He said he concluded that was an unauthorized disclosure of confidential district information.
Schwartz said no one at the district told him employees were not barred from forwarding district e-mails to their personal accounts.
Ackerman recommended Dougherty and Byars be terminated, and the SRC approved those recommendations.
The district has maintained Byars was fired for violating the district's ethics policy by setting up a business website and trying to influence the award of a management contract for the district's headquarters.
Byars is suing the district in federal court for defamation, conspiracy, and violation of his First Amendment right. He alleges he was made a scapegoat for the controversy that erupted over the $7.5 million camera contract.
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