Istation attorneys charge bias after letter warning DPI that Istation contract could be reversed

Amy Jablonski testifies in Istation hearing.

Claiming bias on the part of the N.C. Department of Information (DIT), attorneys for Istation filed an emergency motion Monday asking for suspension of a hearing to determine whether the state’s K-3 reading assessment contract was awarded properly until a neutral administrative judge could be appointed to hear the case.

Monday was the first day of hearings, which are scheduled to run through Thursday. DIT General Counsel Jonathan Shaw is presiding.

“Unfortunately, the dispute over this procurement has taken a political tone from the moment the contract was lawfully awarded to Istation on June, 7, 2019,” Istation attorneys wrote. “The political dimensions have only intensified through the course of this litigation.”

The attorneys cited Friday’s letter from DIT to the N.C. Department of Public Instruction warning that State Superintendent Mark Johnson may have violated state law when he signed an emergency contract with Istation to continue to receive the firm’s services through March.

The letter was written by Patti Bowers, DIT’s chief procurement officer, who also warned that State CIO Eric Boyette may exercise his authority to cancel or suspend the contract because Johnson did not receive approval to make the purchase.

Istation attorneys said the letter is proof of the agency’s bias and demonstrates DIT’s “openly hostile and aggressive stance toward DPI and the Superintendent [Johnson].”

“The DIT memo demonstrates clear bias against the superintendent, as it threatens inter-agency action against DPI by the same official who will render the ultimate agency-level decision in the underlying case, SCIO Eric Boyette,” the attorneys said.

Kieran Shanahan, the lead attorney for Istation, said the concern about a fair hearing was directed at DIT, not Shaw.

Shaw denied the motion, saying insufficient evidence was presented to show a personal bias or other reasons to disqualify DIT from hearing the case.

“I continue to take this matter very seriously and will continue to be unbiased in my decisions and issue a fair and impartial decision,” Shaw said.

After Shaw’s ruling on the emergency motion, the remainder of the morning portion of the hearing was spent on deciding what should be allowed into evidence.

Each side presented a list of items they thought should be excluded but Shaw said he would determine whether to allow them when they are discussed.

One item that got attention was the way in which Johnson found out about leaked confidential information that led to the cancellation of a second RFP (Request for Proposal) for the reading assessment contract.

Mitch Armbruster, the attorney for Amplify, the company that lost the reading assessment contract to Istation, said the text messages should be excluded from evidence until DPI can explain how it got them.

What is known is that an anonymous source slipped a note about the text messages to someone in DPI who turned it over to Johnson.

The first day of the hearing was wrapped up with Amy Jablonski, a former DPI employee who was a member of the evaluation committee.

Jablonski, who recently ended her bid for state superintendent, was one of three people who received “cease and desist” letters from Istation demanding that they stop making “false and misleading representations” about the company after the made statements critical of the contract award to Istation.

Attorneys with Istation, DPI and Amplify questioned Jablonski extensively on the process the committee used to evaluate firms for the reading assessment contract.

Before Johnson awarded the reading assessment contact to Istation, the state used Amplify’s mClass assessment tool. Amplify filed a protest over the contract award to Istation,  contending the process was unfair.

In August, the DIT granted Amplify a temporary stay against the use of the Istation reading assessment tool.

Shaw upheld the stay in December, contending that the “evidence and arguments of record” are sufficient to indicate that DPI failed to comply with state law and information technology procurement rules and “jeopardized the integrity and fairness of the procurement process.”

Johnson has claimed that the procurement process was tainted. He contends, among other things, that some committee members breached confidentiality and were biased in ways that tilted the evaluation in favor of Amplify.

Many teachers have been critical of the switch from Amplify’s mClass to Istation. They have questioned the procurement process and contend Johnson ignored the recommendations of an evaluation committee that ranked mClass over Istation.

The reading diagnostic tool is a companion to the state’s signature education program, “Read to Achieve,” which was launched in 2013 to ensure every student reads at or above grade level by end of third grade.

The results haven’t been great even as North Carolina has spent $150 million on the initiative. More than half of the state’s children in K-3 are still not reading at grade level.

Istation has been training teachers to use the reading diagnostic tool for free. It said last month that more than 180,000 North Carolina students in grades K-3 have been assessed using its reading diagnostic too

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