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Case of school administrator who leaked info to newspaper can go forward

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A federal appeals court has refused to dismiss a case filed by a former school administrator who was terminated after he leaked information to the press about a contract he believed was improperly awarded.

Francis X. Dougherty had served as deputy chief business officer of operations and acting chief of operations for the Office of the Deputy Superintended within the School District of Philadelphia, according to Friday’s ruling by the 3rd U.S. Circuit Court of Appeals in Philadelphia in Francis X. Dougherty v. School District of Philadelphia et al.

In 2010, Mr. Dougherty was instructed by school superintendent Arlene Ackerman to lead the procurement process to install new security cameras in 19 schools, according to the ruling. Because of the short time-frame involved, his office was required to select a pre-qualified contractor.

He suggested a contractor, but the school superintendent rejected it because it lacked minority participation and selected another contractor that was not prequalified and therefore ineligible for no-bid contracts.

Mr. Dougherty leaked information about the situation to The Philadelphia Inquirer, which ran several articles about it. Ms. Ackerman “decided a full-blown investigation was needed” to discover who had leaked the information and placed Mr. Dougherty and five others on administrative leave pending the investigation. Mr. Dougherty was terminated following the investigation.

In February 2012, he filed suit against the school district and district officials claiming he had been terminated in retaliation for the disclosure of Ms. Ackerman’s misconduct in violation of his First Amendment rights and the Pennsylvania whistleblower law.

The U.S. District Court in Philadelphia refused to grant the school district officials summary judgment dismissing the case on the basis of their qualified immunity, and a three-judge panel of the appellate court unanimously agreed with the court’s ruling.

Government officials have qualified immunity unless the officials violated a statutory or constitutional right, says the ruling. Under the law, however, public employees’ speech does not receive First Amendment protection if it was pursuant to their official duties.

“The District Court found no evidence that Dougherty’s communication with The Philadelphia Inquirer fell within the scope of his routine job responsibilities at the School District,” said the ruling. “Accordingly, appellants’ attempt to preclude First Amendment protection from Dougherty’s report … is inapt.”

The appeals court ruling states there must also be a balance between the employee’s interest as citizen and the employer’s in promoting the efficiency of the public services it performs.

“We agree with the District Court, simply, that a reasonable jury could conclude that Dougherty’s speech would have made only a minimal disruption” had the school district not embarked on the investigation, initially suspended the six administrators and fired Mr. Dougherty.

It is against court precedent to find against an employee when the disruption is caused not by his exercise of free speech, but by his superior’s attempts to suppress it, said the appeals court, in affirming that the defendants were not entitled to qualified immunity in the case.

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