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Charter school lawyers ask judge to postpone whistleblower's suit

A federal investigation of a Kensington charter school has not made headlines since a TV station showed video of agents carting off boxes of documents in 2009, but the probe is very much alive.

A federal investigation of a Kensington charter school has not made headlines since a TV station showed video of agents carting off boxes of documents in 2009, but the probe is very much alive.

Attorneys for Community Academy of Philadelphia Charter School in a whistle-blower's lawsuit stemming from the raid have urged a Common Pleas Court judge to keep the suit on hold because "it is beyond refute that the federal criminal investigation" of the charter is active.

As evidence, Community submitted an affidavit from an administrator's defense attorney that said the assistant U.S. attorney overseeing the probe told him in mid-March "the investigation is ongoing."

A Common Pleas Court judge will hold a hearing Monday on the whistle-blower's request to drop a stay imposed three years ago and allow the suit to proceed.

The case involves Adorable Harper, a former Community administrator, who alleges that she was wrongfully fired the day after the Aug. 26, 2009, federal raid because she had alerted the U.S. Department of Education of alleged financial wrongdoing at the school.

"We think our client has waited more than a reasonable amount of time to have her day in court," Dave Frankel, one of Harper's lawyers, said last week.

The lawyer representing Community officials could not be reached Friday for comment.

Community Academy, which opened in 1997 and is the city's oldest charter school, is also in the midst of a district charter-revocation hearing and is fighting to remain open.

The School Reform Commission took the first step toward closing the school in January when it said the charter of the school, with 1,235 students from kindergarten through 12th grade, should not be renewed because of poor academics and financial problems.

In the suit that Harper filed in January 2010, the 1999 Community graduate who became an assistant chief operating officer there alleged that Community officials retaliated against her for lodging a complaint with the U.S. Department of Education detailing "a pattern of criminal misuse of local, state, and federal funds" at the school.

Harper also worked for One Bright Ray Inc., a nonprofit related to Community that owns the school's building on East Erie Avenue. She outlined her concerns in a long e-mail to the hotline of the Education department's inspector general in Washington in July 2009.

Harper alleged that Joseph Proietta, Community's founder and chief executive, and other officials ran Community Academy and One Bright Ray "like personal fiefdoms or family businesses rather than the publicly funded school and nonprofit entities that they are."

A month later, more than a dozen federal agents appeared at Community Academy and One Bright Ray and spent the day collecting boxes of documents and copying computer hard drives.

According to Harper's suit, when the agents arrived, an agent from the inspector general's office approached Anna Duvivier, the school's chief operating officer, and asked: "Where is Adorable Harper?"

Harper raised her hand. The next day Proietta and Duvivier fired her.

Proietta, Duvivier and Community Academy have denied Harper's allegations and said in court documents that her position was eliminated and she was laid off because of a state budget impasse.

Proietta and Duvivier also asked the court to put the suit on hold because they said the civil case would compromise their ability to defend themselves in the criminal investigation.

A Common Pleas Court judge granted their request in April 2010, and imposed a stay, pending the outcome of the criminal probe.

This spring, Harper's lawyers asked the court to allow the case to proceed.

"Now, nearly three years later, any possible justification for a stay has clearly disappeared," they said in their filing March 12.

They said that no criminal charges had been filed and that Proietta and Duvivier had not received letters indicating they were targets of a federal investigation.

Harper's lawyers also pointed out that the SRC had scheduled a charter revocation hearing for Community Academy and that Harper would be unable to recover damages if the school loses its operating charter and is closed.

In response, attorneys for Proietta and Duvivier said the suit should be kept on hold because the criminal probe is continuing.

Ronald H. Levine, a defense lawyer who represents Duvivier, said in an affidavit that he had called Sarah L. Grieb, the assistant U.S. attorney overseeing the Community Academy probe, on March 13 to ask about its status.

He said Grieb told him in a phone call the next day: "At this point in time, the criminal investigation is ongoing."

Patty Hartman, spokeswoman for the U.S. Attorney's office, said last week: "We can neither confirm nor deny the existence or non-existence of an investigation."

Community's lawyers also said in court documents the school is in no danger of closing any time soon. David P. Heim, a lawyer handling Community Academy's charter renewal, said Community would fight if the SRC refuses to give the school a new charter. He said the appeals could take two years, and the school would remain open during that time.