Whistleblower wins major victory in suit against Philadelphia School District

A former Philadelphia School District administrator who was fired after exposing a $7.5 million no-bid contract for security cameras has scored a major victory in his federal whistleblower suit against the district.

The U.S. Court of Appeals for the Third Circuit resoundingly affirmed on Friday a lower court ruling that Francis X. Dougherty was exercising his rights to free speech as a citizen when he told The Inquirer about the contract four years ago.

Dougherty told the newspaper that former School Superintendent Arlene C. Ackerman had steered the no-bid contract to IBS Communications Inc., a small minority firm that had little district experience and was not on a state list of vendors approved for emergency work. He was fired in April 2011.

"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 said in an opinion for a three-judge panel, which heard oral arguments in September.

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

The ruling allows Dougherty's case against the named administrators and the school system to proceed to trial in U.S. District Court.

Ackerman, who left the district in August 2011 and died in February 2013, repeatedly denied directing staff to award the contract to IBS. The court's opinion means the case can continue against her estate.

Alice W. Ballard, Dougherty's lead attorney, declined to comment Saturday.

District spokesman Fernando Gallard also declined to comment, saying the district does not speak about ongoing litigation.

The case is one of four active lawsuits against the district stemming from the controversial surveillance camera project.

The Inquirer reported on Nov. 28, 2010, that Ackerman had pushed aside Security & Data Technologies Inc., a Newtown firm that had begun preliminary work on the emergency project to install surveillance cameras in 19 schools the state had deemed dangerous. Instead, sources said, she ordered the contract awarded to IBS, then based in Mount Airy.

IBS was not on a state list of vendors approved for emergency work. SDT was.

Dougherty, who had been the district's deputy chief business officer, was one of six administrators placed on paid leave in December 2010, when the district launched an inquiry to determine who had leaked the information about the camera project.

The SRC fired him four months later, alleging he violated policies that prohibit disclosing confidential district information because he had forwarded district e-mails to an outside account.

In the federal suit filed in 2012, Dougherty disclosed that he had met with two Inquirer reporters on Nov. 10, 2010, to discuss the camera project and had spoken to the FBI.

The district has denied Dougherty was fired in retaliation for exposing the camera contract. It also argued that he could not claim his First Amendment rights had been violated because he was a high-ranking administrator in the school district, his actions had caused disruption, and Ackerman and the two administrators had immunity as public officials.

The school district lawyers appealed to the Third Circuit court after U.S. District Court Judge Juan R. Sanchez denied their request to remove Ackerman and the two administrators from the suit and to drop several counts against the district in December.

The entire case was put on hold pending the appeals court decision.

In the 26-page ruling released Friday, Fisher, a former Pennsylvania state attorney general, wrote: "As the Supreme Court has reiterated time and time again, 'free and unhindered debate on matters of public importance' is 'the core value of the free speech clause of the First Amendment.' "

He noted that although the courts have said some restrictions can be placed on public employees if their speech disrupts government operations, Dougherty had not done so.

The appeals court agreed with Sanchez that a jury could reasonably conclude the district had caused far more disruption by launching an internal investigation, suspending six administrators and firing Dougherty.

Fisher wrote that the court would not rule against an employee "where the disruption 'was primarily the result, not of the plaintiff's exercise of speech, but of his superiors' attempts to suppress it.' "