This article was originally published in The Notebook. In August 2020, The Notebook became Chalkbeat Philadelphia.
by Benjamin Herold for the Notebook/NewsWorks
UPDATED: While a small group of Superintendent Arlene Ackerman supporters rallied at City Hall Tuesday, members of the School Reform Commission remained silent and aides to Mayor Michael Nutter sidestepped questions about the embattled superintendent’s future.
"The politicians have decided to ask Dr. Ackerman to pack her bags and leave," alleged Pamela Williams, addressing about a dozen supporters who attempted to block traffic outside City Hall.
Asked to address the persistent rumors that Nutter and SRC members are actively discussing strategies to remove Ackerman, the Mayor’s press office would neither confirm nor deny that any meetings on Ackerman’s future have taken place.
"City officials meet frequently regarding the School District because of the responsibilities under the Education Accountability Agreement," the Mayor’s office said in a statement.
Nutter is out of the office this week and next.
The unfolding political theater is likely driven in part by the terms of Ackerman’s contract, which a prominent employment attorney consulted by the Notebook/NewsWorks described as heavily "one-sided" in the superintendent’s favor.
In addition to an "iron-clad" provision making it "virtually impossible" to terminate Ackerman with cause – meaning due to incompetence, negligence, or mismanagement – the agreement includes a "quite substantial" penalty for just deciding it’s time for new leadership, said attorney Sidney L. Gold, chair of the Philadelphia Bar Association’s labor employment law committee.
"This contract reflects poorly on the SRC," said Gold, who regularly represents both employers and employees, including high-ranking public officials, in employment cases. "There’s no way out except to give [Ackerman] $1 million or more."
If the SRC and Mayor are indeed considering options for removing Ackerman, said Gold, they are in a bind in part because of the SRC’s recent decision to allow the term of Ackerman’s contract to be automatically extended by a year, until June 30, 2014. Her contract allowed for the extension to occur automatically unless the SRC decided otherwise.
At the time, the SRC said it looked forward to "the opportunity to continue working with Dr. Arlene Ackerman as the Superintendent as we pursue the goals of Imagine 2014," Ackerman’s reform blueprint.
But now, said Gold, the SRC has most likely locked the District into paying Ackerman her full salary and benefits for that additional year, even if they no longer want her to lead the District.
"When someone has three years remaining on their contract, they’re in the driver’s seat," said Gold.
A District spokesperson confirmed on Friday that because of the extension, Ackerman could be due up to $1.5 million if she is removed without cause. Tuesday, Gold said that amount could be "subject to debate" given his reading of the document.
In the event that she is terminated without cause, Ackerman’s contract specifically calls for severance only through June 30, 2013.
District officials have maintained that the term extension approved in March also extended the period for which she would be entitled to severance. If terminated without cause, Ackerman would likely have a very strong case if she chose to push for a full compensation through 2014, said Gold.
But the SRC could elect to argue otherwise, he said. The difference is approximately half a million dollars
Because new SRC nominee Pedro Ramos has not yet been formally appointed, all four current members of the SRC would have to vote to approve removing Ackerman without cause.
The cash-strapped District, with a shortfall of roughly $600 million, has already made hundreds of millions of dollars in cuts, and it still has to find tens of millions more. It is seeking givebacks from its five collective bargaining units, and things like gifted education, athletics, and instrumental music could all potentially be wiped out entirely in a next round of cuts.
Nevertheless, Ackerman’s supporters say she is entitled to the full contract she negotiated.
"She’s a shrewd businesswoman," said rally organizer Pamela Williams. "If she negotiated that kind of contract, I say ‘kudos to her.’"
After a contentious exit from her previous superintendency in San Francisco, which culiminated in her resignation, Ackerman received a severance package worth $375,000. Later, she sued, saying she was entitled to $172,000 in additional benefits.
When former Philadelphia schools CEO Paul Vallas left the District to take a similar position in New Orleans, he received a severance package worth nearly $180,000 – despite also overseeing a significant budget shortfall here.
"How a district that has a hundred-plus million dollar deficit could give anybody any extra money is beyond me," then-mayoral nominee Michael Nutter told the Inquirer at the time. "You can not get a bonus if you leave a place in fiscal distress."
The SRC’s approval of the contract extension in March will likely also make it more difficult to terminate Ackerman "for cause," an approach advocated by some Ackerman critics, including state Rep. Mike McGeehan.
"Her administration has so woefully mismanaged the school district that she should be terminated for cause and not allowed to collect salary and other compensation for the unfilled terms of her contract," said McGeehan in a statement released last week.
According to the Pennsylvania Public School Code, superintendents may only be removed for cause for "neglect of duty, incompetency, intemperance, or immorality." As public officials, they are entitled to due process, including a hearing and the chance to respond. According to the code, removing Ackerman for cause would require the approval of three of the four sitting members of the SRC.
But because the March contract extension clearly signaled that the SRC was satisfied with Ackerman’s job performance, trying to terminate her with cause just four months later would be a tough sell, said Gold.
Such a move to oust Ackerman and deny her severance could be viewed as a "political firing," he said, in which case the superintendent would likely have the option of contesting the decision and demanding further compensatory damages.
"What happens is that most public officials who go out in a firestorm usually have claims for a constitutional violation that can create a remarkable enhancement in what they might be entitled," said Gold. "That’s where you have the danger of damages and legal fees. It becomes a very, very expensive proposition."
Making an assessment of whether there might be grounds to terminate Ackerman for cause is also difficult because of confusion regarding her performance evaluations.
As part of the Education Accountability agreement between the District, city, and state, Mayor Nutter asked the District for a report detailing the performance evaluation system used to assess Ackerman, as well as the results of those evaluations that were used as the basis for awarding bonuses.
In response, SRC chair Robert Archie provided and the Mayor’s office published extensive, but confusing, documentation – including a "CEO/Superintendent’s 2008-2009 Performance Review" that appears to be a self-assessment prepared by Ackerman herself.
"As required by contract, I respectfully submit the following report which is organized according to the agreed upon objectives and targets deemed appropriate at that time," reads the report’s introduction. "Overall, I am pleased to report that we exceeded all expectations."
The performance review is organized around four major categories, including "accelerating achievement for all students" and "creating an equitable distribution of resources” within the District.
Each category has numerous objectives, along with a rating system based on the extent to which Ackerman met the stated objective.
"In summary," the evaluation says, "I am pleased to report that 15 out of 20 agreed upon objectives in four categories have been completely met."
Neither District nor city officials could confirm that the document is indeed a self-assessment.
"There is a disagreement between District legal counsel and the city’s counsel as to whether that document should have been posted publicly," said Erin O. Davis, the SRC’s chief of staff.
Furthermore, neither District nor city officials could confirm whether any final performance evaluations were conducted for the 2009-10 or 2010-11 school years. Ostensibly, such an evaluation could have informed the decision to extend Ackerman’s contract.
"The only parties who would be involved with that would be the superintendent or the commissioners," said Davis.
A District spokesperson said that "our General Counsel has advised me to have no further comment on these matters."
SRC commissioners Archie, Joseph Dworetzky, and Johnny Irizarry did not return calls.
Tuesday’s rally was the second time in less than a week that a group of Ackerman supporters came together at the behest of rally organizer Williams, who is also a school police officer, the chair of the Universal-Daroff School Advisory Council, and the pastor of the Ark of Refuge Tabernacle of Philadelphia.
The goal today, said Williams, was to get "more people, more attention."
On the first front, the rally was largely unsuccessful. The band of sign-wielding supporters struggled to effectively block traffic outside City Hall, leading to angry responses from motorists.
On Friday, Williams attributed that event’s anemic numbers to the oppressive heat. Tuesday, she blamed the influence of local politicians.
"A lot of people have taken money from [state Rep.] Dwight Evans and other politicians, so they’re scared to speak out," said Williams.