The Email that Ended a Career

Sept. 25, 2011

Whistleblower suit involves question of porn access at Harbor Springs School


Bohdan "Bo" Whitfield, the former information technologies director at Harbor Springs Public Schools, is suing the district over the loss of his job. (Photos by Patrick Sullivan)

Bohdan "Bo" Whitfield sometimes wonders if he should have sent that email that ruined his career.

Hours after he hit send on Dec. 16, 2009, in what he calls an act of conscience, he was placed on administrative leave and within weeks, by vote of the Harbor Springs Public Schools board, he was canned.

"It’s destroyed my life, I mean, I was the major breadwinner in the family and I’m not now," said Whitfield, the former IT director for the school district. "But just imagine how bad I would feel if something really bad was going on and I didn’t raise it."

What Whitfield sent that day to school district staff and school board members was called a Sonicwall report, an Internet filter program that logs computer usage for a given period. Whitfield believed then -- and believes today -- that it showed the district had a pornography problem.

DIFFERENT PERSPECTIVES

He said he sent the email a day after he met with Superintendent Mark Tompkins and alerted Tompkins to the report and what he thought about it. He said Tompkins shot down his concerns.

Whitfield said he took the drastic measure of sending the report to all school staff because he had a history at the district of raising concerns -- about pirated software, about school equipment possibly sold at below market value -- and being ignored.

School officials have a much different account of what happened at the meeting between Whitfield and the superintendent, however.

Tompkins said he and Whitfield merely talked about Internet speed in the district.

It had been slow, and Whitfield apparently wanted to explain how the slowness was not his fault -- Whitfield told Tompkins it was because of a staff member streaming music at the pool, Tompkins said.

Tompkin said the first he heard about Whitfield’s claim that the meeting was about pornography was after Whitfield filed a lawsuit against the school in April of 2010, he said.

But if the meeting had been about something as mundane as Internet speed and pornography was never mentioned, why would Whitfield have risked his career to send the email?

Tompkins guessed perhaps Whitefield felt threatened that the slow Internet speed reflected on his job performance.

"I don’t know, I mean, that’s what was so surprising to all of us," Tompkins said. "I don’t think he understood the implications of sending the report out."

"˜HE JUST DID NOT WANT THIS COMING OUT’

The consequence of sending the report was that it appeared to imply certain staff members had visited or attempted to visit pornographic websites when they hadn’t, Tompkins said.

School officials maintain the report could easily be misread and appear to implicate innocent teachers or students. They say they have investigated and determined the computers in question had not been knowingly used to access pornography.

Whitfield, however, says the report is proof that school computers were being used to access porn and people needed to know about it.

Whitfield said he found evidence in the report of attempts to visit porn sites and, perhaps more disturbingly, to visit sites called "proxy bypasses" where a computer user would go if they wanted to cover their tracks.

"You could be going to nasty.com and we wouldn’t know," Whitfield said. "I believe this needed to be investigated and this needed to be shut down."

He said Tompkins, at the meeting, told him to bury the report because he didn’t want it getting out just as the district was considering a strategy to ask voters to approve a millage to upgrade technology.

"I’d been shut down so many times and I was shut down again," Whitfield said.

Tompkins says neither porn nor the millage were brought up during the meeting.

They merely discussed Internet speed. In fact, he said, there was no immediate plan at that time to put a millage on the ballot.

"We’ve been talking about it for two years," Tompkins said.

The millage request has only now been finalized and is ready to go before voters. Harbor Springs Public Schools will ask in November for a technology and transportation millage that would raise $3.9 million to purchase new computers, improve wireless Internet, and to purchase school buses.

WHISTLEBLOWER LAWSUIT FILED

Now Whitfield and the district are embroiled in the contentious lawsuit, in which Whitfield claims he was fired in violation of the Whistleblower Protection Act.

Tompkins said the school district is fighting the lawsuit vehemently and they don’t plan to settle.

"It’s an unusual situation and obviously we’re taking it very seriously, we’re fighting it all the way," Tompkins said.

Whitfield is also optimistic he will prevail. "I’m just so confident that when a jury gets a chance to look at this, that it’s going to be interesting," Whitfield said.

Whitfield worked as the information technology director for the school district for seven years. While still employed there, he and his wife purchased a home in Harbor Springs -- not an inexpensive place to live. Now he finds himself struggling to piece together a living by doing consulting work as far away as Traverse City.

He says in his time at the district, he repeatedly clashed with administrators when he attempted to report wrong-doing.

In one case, he says he was reprimanded for drawing attention to pirated software use in the district.

Whitfield said there was widespread use of unlicensed software and he reported it to an auditor because he had previously brought it to the attention of administrators and the problem had not been corrected.

School officials say that by the time Whitfield told the auditor, the problem had been addressed and didn’t need to be raised.

"I thought it was a problem that had been fixed," Tompkins said.

In another case, Whitfield went to school officials and the police after he thought he discovered a case of embezzlement in the district. An administrator had purchased a printer for $300 from the school that Whitfield said was still needed and could cost thousands to replace.

Tompkins says for Whitfield to have called what happened embezzlement verges on defamation.

"He could get sued for that saying that, because it wasn’t." he said. "It’s attacking people to demonstrate that we’re bad or something."

But the printer was returned to the district after Whitfield complained and it is still in use today.

Tompkins said it was returned to avoid the appearance of impropriety.

"That’s why the superintendent at the time said, "˜I don’t want this to smell, so bring it back,’ and they did," Tompkins said.

ALLEGATIONS OF A COVERUP

It wasn’t until he hit send on that email, however, that the relationship between Whitfield and administrators really got bad.

The lawsuit in the Emmet County Clerk’s office has grown to four overflowing files stuffed with legal briefs, motions and exhibits. Much of the paper is about attempts by the plaintiffs to examine computer records at the school.

The school district fought the request, arguing that what the plaintiffs said they wanted to look for was too broad and amounted to a "fishing expedition."

An inspection finally occurred in April, after Grant Parsons, Whitfield’s attorney, narrowed his request enough to satisfy the judge. The site visit took about four hours.

Like almost every aspect of the case, both sides almost completely disagree about what happened at the site visit.

Parsons insists the visit was a bust because school officials destroyed the evidence before he could get to it.

William Vogelzang Jr., the attorney for the school district, says the plaintiffs are unsatisfied because the evidence they sought never existed in the first place.

"We bent over backwards to make that site visit happen," Vogelzang said. "We produced the machines they wanted to see."

Vogelzang acknowledged there were limitations put on the plaintiffs. They were not allowed into the school’s network server, for privacy reasons, and they weren’t allowed to use forensic software to examine the computers.

"They would not tell us what (their expert) was going to do," Vogelzang said. Parsons "keeps talking about this "˜industry standard’ software, but they wouldn’t tell us what it is. We just said, "˜We’re not just going to let you hook up software that we’ve never heard of.’"

"˜KNOW THEY DID IT’

After the site visit broke down over a dispute about the forensic software, Vogelzang said the school district kept the computers available to be examined for six weeks. He said all the plaintiffs had to do was identify the software they wanted to use and explain what they wanted to do. If the school district agreed, they would have been allowed access, and if the school district had objections, the matter could be sorted out by the judge.

"We never heard anything from them," Vogelzang said.

Parsons calls that account "baloney." "This whole thing has been: we ask, they destroy; they fight our attempts to get in and look, and then when we look, and there’s another reason why everything has been destroyed or removed," Parsons said. "What we know to a virtual certainty is that evidence was destroyed."

Parsons said the school system is required by law to save its records and they were put on notice by the plaintiffs long before the site visit.

"This is a public school system, they have a policy that explicitly says, "˜If you generate information on your computer, it is not private,’" he said. "We’re not going to spend another five or ten thousand bucks to find out how they destroyed evidence. We know they did it."

SANCTIONS SOUGHT

After the visit, Parsons argued in a motion that the school district destroyed evidence and had hindered their ability to get to computer files at the school. He sought money damages.

In particular, the plaintiffs were looking for evidence of pornography on school computers and evidence that an email about Whitfield’s work performance had been altered after-the-fact to make it appear Whitfield’s performance was an issue before he was fired.

"Defendant Harbor Springs Schools intentionally destroyed or covered up computer records showing multiple incidents of in-school use of pornography," Parsons wrote.

The trial involving Harbor Springs Public Schools will take place Jan. 4 in Petoskey.

The plaintiff’s expert looked for stuff in the school computers Whitfield knew used to be there and they found the folders they were looking for, but the data inside had been wiped clean, Parsons argued.

However, one screen shot which Whitfield had copied to another location was recovered and showed images of pornography, including files called "naked wemin," "brittney spears strippin," and "porn," Parsons said. They only found that evidence because it was located somewhere unexpected, Parsons said.

Circuit Court Judge Charles W. Johnson ruled against the motion for sanctions, saying it was a question for the jury.

In Vogelzang’s response to the motion, he argued the plaintiffs were trying to invent an issue.

"It seems that plaintiff’s ability and willingness to mischaracterize and twist the events in this case knows no bounds," Vogelzang wrote. "...The bottom line was that the site inspection was a bust for the plaintiffs."

Tompkins said the school did not destroy any evidence.

"How big a slice are you going to take of our server in getting into the data?" Tompkins said. "Tell us what you want to see and we’ll get it to you."

PORN OR NO PORN

Neither side disputes the Sonicwall report Whitfield sent out in December of 2009 appears to document attempts by school computers to access pornography.

Whether there was a pornography problem at the school has become a hotly contested issue in the lawsuit.

Vogelzang, however, says the case should be about whether Whitfield was properly fired according to his contract.

"This is a whistleblower case, this isn’t about pornography, this isn’t about site visits," Vogelzang said.

Indeed, Judge Johnson noted, in deciding the motion for sanctions, that whether there was more pornography on the school computers than what was described in the Sonicwall report seemed beside the point in determining whether Whitfield was a whistleblower or not.

Yet throughout the dispute, Superintendent Tompkins has insisted there was not and is not a porn problem at the school because computers are monitored and there are filters and firewalls in place.

In the lawsuit, the defense, supported by an affidavit from their computer expert, say that in some cases, viruses or malware on the computers could make it appear that someone visited porn sites when, in fact, they didn’t.

Tompkins said he is confident in the school’s ability to prevent students or staff from viewing pornographic sites.

Vogelzang, in court filings, doesn’t go quite as far. He acknowledges there is probably some porn accessed by students at the school, just like there would be at any school.

"Defendant acknowledges that students have on occasion attempted to circumvent the internet filter to look at inappropriate materials. That may be pornography, gaming sites, music sites, shopping sites or whatever," he wrote. The school district "is not so naive as to think that its students will not try to go where they should not be."

Vogelzang went on to argue that if there was rampant pornography at the school during Whitfield’s tenure as IT director, it would reflect poorly on him.

"If there was a porn problem it was because he was doing a poor job of both filtering and blocking," the attorney wrote.

Parsons said he is alarmed at how far school officials have gone to insist there is no porn problem in the district.

"This is the doggonedest thing I’ve ever seen," Parsons said.

"˜THERE IS NOT PORNOGRAPHY GOING ON’

At the school board meeting where Whitfield was fired in February of 2010, before a decision was made, the IT director explained how he discovered the pornography as he was investigating slow Internet speeds, according to a transcript.

"I did random remote audits intended to discover the reason for the slowdown of the school system network," he told the meeting. "The audit revealed the system is being slowed down by improper usage, including what appears to be pornography."

He said he felt like he needed to do something about it.

"This is important for you to grasp," he said. "I took my findings of illegal activity to the highest administrative level and was told not to pursue it. ... I had to make the ethical choice between shutting up or exposing potential legal problems for the good of the school district and the community."

Tompkins, at the same school board meeting, said there was no pornography problem at the school.

"There is not pornography going on. And the Sonicwall report that he refers to is a report that shows where a computer goes, not where an individual goes. So, if you’re on the Internet and a pop-up shows up, this pop-up, if it’s a dating service or whatever it is, will show in the log that your computer went there," he said.

It looks like a jury will have to decide who is telling the truth in the case.

Trial is scheduled to begin Jan. 4 in Petoskey, and neither side looks ready to settle.

"It’s a case that’s going to go to trial in January and I think at that time we’ll sort out the fact from the fiction," Vogelzang said.