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Appeals Court Backs Whistleblower in Philadelphia School District Case

By Mark Walsh — November 26, 2014 3 min read

A federal appeals court has denied immunity to three officials of the Philadelphia school district in a case involving a whistleblower’s revelation about a no-bid contract for security cameras.

A panel of the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, ruled unanimously that the whistleblower, Francis X. Dougherty, may proceed with his First Amendment retaliation lawsuit against the school district and the officials.

The case concerns Dougherty’s dismissal when he was deputy chief business officer for operations of the Philadelphia district. Dougherty was asked by the then-superintendent, the late Arlene Ackerman, to lead a procurement process for new security cameras at 19 persistently dangerous schools.

Because of a short time frame, Dougherty’s office was permitted to bypass competitive-bidding rules by choosing a prequalified contractor. After Dougherty chose such a vendor, he alleges in his suit, Ackerman rejected his choice for lack of minority participation and selected a minority-owned firm that was not a prequalified contractor.

In November 2010, Dougherty met with reporters from The Philadelphia Inquirer about Ackerman’s alleged wrongdoing in connection with the contract. On Nov. 28, the newspaper published a story headlined, “Ackerman Steered Work, Sources Say.”

Ackerman vowed to get to the bottom of who had leaked information to the newspaper, the suit says, and after an internal investigation, Dougherty was identified and dismissed in 2011 for violating the district’s ethics code.

Dougherty sued the district as well as Ackerman and two other district officials in their personal capacities. Ackerman died in 2013, but her estate is still a defendant. The officials (including Ackerman’s estate) sought qualified immunity, which was denied by a federal district court.

In its Nov. 21 decision in Dougherty v. School District of Philadelphia, the 3rd Circuit court affirmed the district court’s denial of immunity to the officials.

The appeals court analyzed the case under the landmark 1968 U.S. Supreme Court case Pickering v. Board of Education, which held that a public employee’s speech is protected if it is on a matter of public concern and if the employee’s interest outweighs the public employer’s interest in an efficient workplace.

The appeals panel also weighed Dougherty’s claims in light of the high court’s 2006 Garcetti v. Ceballos, which held that public employees do not speak as citizens when they speak pursuant to their job duties.

“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,” the 3rd Circuit court said.

The court rejected arguments that the whistleblower’s speech was unprotected because it was closely related to his job and his involvement in the security camera procurement process. The court noted that the Supreme Court reined in Garcetti somewhat in its decision this past spring in Lane v. Franks, which held that testimony by a public employee about wrongdoing in a public agency was not speech pursuant to job duties and was thus protected by the First Amendment.

“As the Supreme Court recently reiterated, speech by public employees ‘holds special value precisely because those employees gain knowledge of matters of public concern through their employment,’” the 3rd Circuit said, quoting Lane.

Applying the rest of the Pickering test, the 3rd Circuit court held that Dougherty’s disclosure caused little disruption to school district operations.

“It would be absurd to hold that the First Amendment generally authorizes corrupt officials to punish subordinates who blow the whistle simply because the speech somewhat disrupted the office,” the appeals court said.

The court concluded that it was clearly established that conduct such as Dougherty’s was protected by the First Amendment, and thus the officials were not immune from his suit.

The case will return to federal district court for further proceedings.

A version of this news article first appeared in The School Law Blog.

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