The 'sting' revealed Was there a leak at Shamokin Area, or was memo idea a failed 'scheme'?

COAL TOWNSHIP - Top administrators and board members at Shamokin Area School District (SASD) were out to stop a "leak" of personnel information they suspected was coming from the administration office.

Their "sting" last fall led to the now well-known memo dispute that landed district officials in Northumberland County Court, where they lost their case to keep the memo from public disclosure despite nearly $7,000 in legal fees.

The ruling - which affirmed an earlier decision from the state's Office of Open Records - was a victory for Tracey Witmer, the outspoken board member who challenged the district's contention that the memo represented a reprimand of an employee and should stay private.

Witmer, a frequent critic of the board majority, which she claims puts politics ahead of education, was also an alleged recipient of leaked information that led to the creation of the memo in question.

While much of that drama played out on a public stage from January through the June court-ordered release of the memo, there was plenty taking place behind the scenes at SASD, even before the memo surfaced. At the center of it was Rosalie Smoogen, an alleged source of leaks. A 31-year employee in the district's business office, Smoogen is also president of AFSCME D.C. 86 Local 2434, the district's union for non-professional employees. Smoogen was never publicly revealed as the target of the district's sting.

Although the district lost

its court case, it deemed the sting a success, and said the employee had been "properly disciplined" for giving out confidential information without consent.

That discipline was a one-day suspension without pay for Smoogen, but she was originally saddled with a two-day, no-pay suspension that she challenged through the union. In a resulting arbitrator's report, she denies any wrongdoing.

It is that report, from arbitrator Perry A. Zirkel, that lays out the story of the sting, which district officials and board members remain hesitant to discuss.

Not only was Smoogen the target of the sting, her name was used as part of a label for it. The memo at the heart of the open records battle described, fictitiously, how the district was going to lose $500,000 in state funding and face a $500 fine regarding its "RSI grant." At one point in the arbitrator's report, the "RSI" sting is referred to by its full name, the "Rosalie Smoogen Investigation." It's also referred to in a footnote as "Rosalie Shares Information."

Witmer's contention is that Smoogen never leaked information to her, that Smoogen should not have been suspended and that the sting in fact was an unsuccessful, unprofessional, costly operation that, at the least, risked embarrassment for the district with PDE.

Smoogen declined to comment for this story, saying she values her job with the district and wants to put the incident behind her.

Where it all began

The school district included a one-page explanation about the sting along with the memo when it was posted online in June, addressing it "Dear Resident." When asked for further comment last month by The News-Item and then e-mailed a series of questions, District Superintendent James Zack replied with few specifics. However, within a week of that request, the district posted at its website a three-page explanation, including a general timeline of events.

According to the recent posting, it was brought to the attention of the administration that some support personnel had received "special privileges in their job capacity." "The administration and school board took these concerns seriously and wanted to ensure fair treatment of all employees," the district reported.

The administration was equally concerned about the "leak of confidential information and unethical behavior outside the chain of command. Our findings were that the two concerns were linked."

The first step was to enhance the enforcement of the already established board complaint policy, along with a districtwide concept of the chain of command. According to the post on the district website, "a few" employees continued to speak with "second-level supervisors and/or members of the board of education," and these employees received written warnings.

One of those employees is believed to have been Smoogen.

Employee's letter

According to the arbitrator's report, Smoogen, per her union role, had met with Zack and a support personnel employee who had learned his position was going to be eliminated. They were asking what the employee could do to save his job.

According to the arbitrator's report, Zack said that if the employee wrote a letter requesting a transfer to another position, he could remain employed.

The report also said Smoogen asked Zack if a copy of the employee's letter could be included with other documents given to board members in advance of the next school board meeting. He declined, saying the internal personnel information was available to board members upon their request.

At the Oct. 20 board meeting, however, Witmer raised questions based on information that arose within Zack's meeting with Smoogen and the employee, according to Zirkel's report. That raised suspicions with Zack and others, and the next day the superintendent met with Smoogen and the employee. Zack asked the two employees if either of them "talks with" board members. Koch said no, and Smoogen said yes, according to the report.

The report doesn't address the issue, but two union officials with knowledge of the meeting have told The News-Item that Smoogen's response, while perhaps sarcastic, was not an admittance that she leaked information or that she discusses personnel matters with board members, only that she knows and, therefore, does "talk" to some of them.

The result was a written warning for Smoogen "to demonstrate better judgment in maintaining confidentiality and following the appropriate avenues of communication in the chain of command regarding information gained as part of your employment."

On Oct. 29, Smoogen sent Zack a reply in which she denied wrongdoing and demanded the warning be removed from her record, according to the arbitrator. On Nov. 10, Smoogen filed a complaint, but Zack denied further action, Zirkel reported.

Meanwhile, Witmer offers a different scenario to explain how she knew about the employee's letter: she said every board member got a copy. She said copies of the letter were delivered to the district office on the day of the meeting and given to the superintendent's secretary, who put them in the board members' packets.

"We all got letters addressed to us individually in our packets that night of the meeting, and that is when I questioned it," she said in an interview with The News-Item. "No one leaked anything to me.

"Apparently, (the employee) wanted to meet with the board privately, and Zack said no, so (the employee) made copies and addressed them to us," she added.

Sting idea is hatched

On Nov. 17, as a "partial result" of Smoogen's complaint, the school board issued a staff communication policy that reminded all employees to follow the chain of command within the district.

That appears to correlate with a portion of the district's recent website post, in which it said the "second step" of its effort to address leaks would be taken because "a support employee received confidentially leaked information regarding potential separation of his employment status."

Furthermore, at future meetings, according to district officials' testimony in the arbitrator's report, Witmer continued her pattern of raising questions in the public part of the meeting based on confidential information known only to "a select few in the staff, particularly the business office."

Witmer, a former employee of the district office, was identified as the only board member who comes to the office, and it said she "converses with various of the seven employees of that office."

Witmer said that's not accurate.

"The only time I go in there is in November or December, because I make pumpkin rolls and sell them to the employees," she told The News-Item.

Although Smoogen was not the "primary visible target" of those visits, Zack and district Business Manager Stephen Curran "suspected she might be the source of these leaks to Witmer," according to the arbitrator's report.

Witmer said she's especially surprised by the allegations because she and Smoogen didn't get along when they worked together in the business office.

Shortly after it issued the new communication policy, the board investigated the use of "special counsel" to further address the issue, and then agreed to hire CGA Law Firm P.C., York, which it had worked with previously on contract and grievance matters.

The firm "strongly suggested utilizing a recommended scenario that was proved successful in previous public education school districts," according to the district's recent post. "The scenario entailed the creation of documentation that would flow through the district office via a memo sent by the superintendent to the business manager."

Board member Edward Griffiths, in an interview with The News-Item, said the board discussed the notion of a leak during an executive session, and said the administration wanted to do an investigation.

"All of the board members agreed at that meeting," he said.

Witmer disputes that. She said she wasn't aware of a string being launched, and wouldn't have favored it.

"I would like Mr. Griffiths to refresh my memory when the issue was brought before the board and what members agreed," she said. "It was a lot of wasted time and money to play games at the taxpayers' expense.

"They also turned around and passed a policy of employees not being allowed to talk to board members?" she continued. "They are not going to dictate to me who I can talk to, especially if it's not on their time."

Memo is a setup

The sting was centered around a memo from Zack to Curran that read as follows:

"Please be advised that I was informed yesterday by PDE (Pennsylvania Department of Education) and due to (employee's) untimeliness, we will be assessed a $500 fine regarding our RSI grant. In addition, our funding will be reduced by $500,000 and our negligent action could result in loss of future grant opportunities. Please process payment to PDE for the fine immediately and schedule the meeting with (employee), you and I for 1 p.m. today. I want to ensure that we put a process in place in order to avoid such instances in the future. Failure by (employee) not only hurts our district financially, but diminishes our reputation with the Department of Education."

The fact that an employee's name was used as the culprit in the fictitious memo was the basis for the district's argument to the Office of Open Records and the Court of Common Pleas that the memo represented a reprimand of an employee and therefore should not be disclosed. Judge Charles Saylor permitted the redaction (blacking out) of the name prior to the district disclosing the memo.

Attached underneath the memo was a note for Smoogen to do an offline check for $500 to the Department of Education and for the check to be given to Curran to be sent with the appropriate documentation. The check was made out and dated Dec. 11.

An offline check was requested because it wouldn't have required board approval for payment. The same process is used for paying utility and other time-sensitive bills.

Nowhere on the memo or on the notation to Smoogen is there mention of confidentiality.

The sting appeared to be going as planned. But that was about to change.

Check makes bill list

As apparently was planned all along as part of the sting, Curran sent an e-mail to Smoogen saying the district was going to appeal the fine and that she should void the check. That Jan. 11 e-mail and subsequent e-mails did contain "confidentiality" language that is typical on business e-mails.

Smoogen, however, wrote back a few hours later asking more about the bill and what it was for. Curran replied with some details, and Smoogen said she needed the check back before she could void it, according to the arbitrator's report, and asked if he meant instead to stop payment on the check.

He repeated his directive to void the check, and Smoogen reiterated her position.

"He (Curran) promised to get the check back for her; subsequently, she reminded him regularly that he had not done so," according to the arbitrator.

Meanwhile, on Jan. 15, as is customary on a Friday prior to a Tuesday school board meeting, Smoogen created the bill list for board approval, and the $500 payment to PDE was included because the check had not yet been returned.

That same day, Curran sent Smoogen an e-mail asking why the $500 check was on the bill list, and why it hadn't been voided. She replied reminding him that "she had not voided the check yet pending its return from PDE," the report said.

In the early afternoon of Jan. 19 - the day of the meeting - Smoogen found the check returned to her desk, according to the report. She voided it, then attached a copy of the e-mail exchange with Curran to the check stub, and placed it in the bin of paperwork for the school board meeting "as backup documentation for the bill list," the report said.

It was because the PDE fine was on the bill list that Witmer said she learned of the memo. She said it was that simple, and that it had nothing to do with a "leak" from Smoogen.

More questions

Witmer said an executive session at that night's meeting was getting unruly, for reasons unrelated to the memo, and she left the meeting. It gave her the chance to pull the bill list to learn more about the PDE fine.

Standard procedure at the time was for bills to be brought to the board meetings in a bin for perusal by board members if they so desired. That practice has since changed, according to Witmer, who said board members now can't see bills until the next day, which is why she said she has been voting against their approval at recent meetings.

Witmer said that it was routine, particularly when she was board treasurer, for her to pull certain bills that she had been curious about when she first read the bill list in the packet of information provided in advance of meetings.

It was then that she read the memo about the fine and potential loss of funding. When the public meeting resumed, she asked for details. According to minutes of the board meeting, President Charles Carpenter said it was a confidential personnel matter. Witmer disagreed, and asked to read the memo. Zack reiterated it was a personnel issue, and cautioned Witmer against discussing it in an open session, and offered to discuss it further in executive session.

Witmer said that because the matter arose through the bill list, she had a right to question it.

"It's public knowledge, so why don't you let the public know," she is quoted as saying in the minutes. "What are you trying to hide?"

Meanwhile, Griffiths, having noticed the confidential e-mails were attached, suggested the matter be investigated further to see if there was any wrongdoing, according to Witmer.

"Right then I knew something was up, because he kept looking at it and he looked underneath and saw the confidential notation," Witmer said.

Meanwhile, she said she never looked under the memo. "I looked at the stub of the check and the memo; I never once looked under."

Not knowing what she didn't see led to a debate between she and Griffiths about whether the issue should be further investigated.

Suspension results

The next day, Zack, upset that the e-mail exchange was attached to the bill, ordered Smoogen suspended for two days without pay. She appealed the suspension per union procedure, and the two sides met in arbitration.

In Zirkel's ruling, issued May 28, he noted Zack had spoke with office staff in January 2009 - months ahead of the memo sting - about implementation of a new chain of command that required employees to voice concerns to administrators rather than directly to board members. It was suggested board members were using complaints for "political grandstanding."

Smoogen, however, argued that she never talked to Witmer about the memo. In fact, Zirkel wrote in his opinion that Smoogen testified during the arbitration hearing that she had either no relationship or a negative relationship with Witmer.

While Zirkel ruled in the district's favor on the matter, the punishment was reduced from two days to one, due to the district not meeting the burden of proof that Smoogen not voiding the check was an act of insubordination.

"The proof is preponderant that (Smoogen) immediately explained to (Curran) that she would need the check to void it and that he promised to get it back for this purpose. Moreover, upon her repeated reminders of his promise, he evidenced his continued acquiescence on a daily basis," Zirkel wrote in his opinion.

However, with the arbitrator's ruling for a one-day suspension, the district deemed its sting a success.

Memo battle ensues

In the meantime, Witmer continued her battle to gain access to the memo she had seen attached to the bill. The district had denied her request for a copy, arguing it was exempt from the Right to Know Law because it contained criticism of an employee, and explained it was part of a sting. Witmer took the case to the state Office of Open Records, which agreed. The district appealed the decision, which is what landed the case in Saylor's courtroom.

The judge would determine the memo was a financial document and ordered its public release, but did allow redaction of the name of the employee who had supposedly been late with the PDE report.

On June 24 - eight days after Saylor's ruling, which required "prompt" release of the memo - it was posted on the district's website with this explanation:

"This document was fabricated as an investigation on the belief that information was being released by individuals within the administrative offices without following the proper chain of command required by district policy. This investigation was successful and the employee has been properly disciplined. To this date, the matter is deemed closed."

Zack's later response to The News-Item's e-mailed questions said in part, "Following completion of the previous school year, the Shamokin Area School District considered all matters pertaining to the successful internal investigation, known as the RSI grant, to be closed and finalized. The grievance and arbitration initiated by AFSCME that ensued is a process that is part of a collective bargaining agreement between the district and AFSCME employees."

While the recent district post says the redacted memorandum and explanation were released to all board members, Witmer said she never received a copy of the memo, and had to obtain one by printing it from the website.

In the end, because the letter from the employee Smoogen first represented went to all board members and Witmer learned of the RSI memo through the bill list, she doesn't consider the sting a success.

"How could it have been a success when it was a phony investigation into a leak that never was?" she said. "They suspended an employee without pay for two days for a sting operation that fell apart before it began."

Financial costs

According to bills received from the district through the open records policy by The News-Item and Witmer, SASD was charged $2,831 by the CGA to prepare its defense for the Smoogen grievance. Also, as of May 1, the firm billed the district a total of $2,318 for preparing the appeal to Witmer's Right-To-Know request.

Also, Zirkel was paid $3,402 for two days of preparation and the arbitration hearing day, a cost split between the law firm and the union. That brings the district's total to $6,850 on the two matters as of July 26.

In Witmer's case, she convinced her attorney to take the case without cost, but was prepared to handle the payments herself, not using taxpayer money, she said.

"I knew I was right, but I didn't know if I had the money for the lawyer, until I convinced the attorney to work pro bono," Witmer said.

'Scheming and conniving'

Witmer, who said the arbitrator never spoke to her, said she has sympathy for Smoogen, despite the two not getting along during their time working together in the district office.

"I feel bad for her, and I did say to someone that she needs to pursue (a challenge of the suspension), because it's not right," Witmer said. "Yes, we're not the best of friends, but she didn't deserve this."

Griffiths said if that's the case, then Witmer should show remorse, since he believes she is the root of the problem.

"She caused that employee to be suspended, and if she feels that bad, maybe she should pay her for the lost day of wages," he told The News-Item.

"If you are intimidating employees for information, you are going to put them in that situation. She's there walking the halls and putting pressure on people."

Witmer said the board's recent decision to include notes with bill payments telling vendors she voted against approval is another sign of unprofessional behavior. She said she refuses to vote to OK bills she hasn't been able to review.

Meanwhile, she said she's disgusted by the entire situation, and has considered resigning.

"I have never seen a group do so much scheming and conniving," she said.