Education

Superintendent Mark Johnson must justify ’emergency purchase’ or risk having contract with Istation cancelled

Superintendent Mark Johnson

State Superintendent Mark Johnson may have violated state policy when he failed to seek approval from the state’s Chief Information Officer (CIO) before signing an emergency contract with Istation to assess the reading levels of North Carolina’s K-3 students.

As a result, State CIO Eric Boyette may “suspend or cancel” the contract if DPI cannot adequately justify the “emergency purchase” or the “execution of the RFQ (Request for Quotes),” which took place outside of normal business hours.

Johnson made the $928,570 purchase for services late Tuesday. Istation had been implementing its reading assessment program for free, but that arrangement ended Dec. 31.

Johnson cited a state procurement policy that gives agencies the authority to make emergency purchases to prevent the cessation of an important program. Under the policy, such purchases can be made without CIO approval if they’re made after regular business hours.

Here’s the policy: 

09 NCAC 06B .1302 EMERGENCY SITUATIONS OR PRESSING NEED (a) An agency may make purchases of goods or services in the open market in cases of emergency or pressing need. (b) When emergency or pressing need action is necessary, and the estimated expenditure is over the purchasing agency’s delegation, prior verbal approval shall be obtained from the State CIO unless the purchase must be made outside of business hours, during holidays or when state offices are otherwise closed. Subsequently, if the expenditure is over the purchasing agency’s delegation, an explanation of the emergency or pressing need purchase shall be reported in writing to the State CIO.

DPI has been given until 10 a.m., Tuesday to answer five questions about the emergency purchase.

“In the absence of a sufficient amended justification fully responsive to this memorandum and the questions below, the Sate CIO may exercise his authority to under [state law] to cancel or suspend any information technology procurement that occurs without the state CIO’s approval,” Patti Bowers, DIT’s chief procurement officer wrote in a letter to the N.C. Department of Public of Instruction (DPI) and Tymica Dunn, DPI’s procurement manager.

Bower said the Dec. 31 expiration of a “no cost” contract between DPI and Istation did not rise to the level of an emergency.

“Mere expiration of the “no cost” Memorandum of Agreement executed August 27, 2019, does not constitute an emergency sufficient to trigger this purchase authority,” she wrote. “If every contract signed after business hours constituted an emergency, the term would be rendered meaningless.”

The emergency purchase came one day after a superior judge refused to lift a stay to allow DPI to continue to work with Istation. The judge’s ruling left North Carolina without a tool to assess reading levels of its K-3 students.

Even so, Bowers said procurement rules must be followed.

“The Office recognizes that maintaining reading comprehension testing for the state’s children is an urgent matter and that certain statutory obligations exist; however, even the continuation of a vital program does not abrogate the responsibilities of purchasing agencies and the Department of Information Technology,” Bowers wrote.

DPI spokesman Graham Wilson acknowledged receipt of the letter when contacted late Friday.

“DPI received DIT’s letter late this afternoon, apparently at the same time the capital press corps did,” Wilson said. “We are happy to respond to their questions and will do so in a more timely fashion than DIT has exhibited thus far in their review process.”

Here are DIT’s five questions:

  1. Why was prior verbal approval not obtained and why was it necessary to execute the RFQ after business hours? Please supply copies of emails, notes, and native documents together with associated metadata or similar records.
  2. Whatarethe specific emergency event(s) that constitute the “recent circumstances endanger[ing] the continuation of Read to Achieve (“RtA”)” as referenced in the “Emergency Purchase-RtA Reading Diagnostic Assessment” dated January 7, 2020?
  3. Clarify the costs associated with the RFQ and compare those costs to the costs proposed in the original contract in order to determine if there are any discrepancies.
  4. The RFQ presents two payments which appear to be installments and are not aligned with the costs presented. Describe the services and term for Phase I with a payment due date of 1/15/2020 and Phase II with a payment due date of 3/15/2020.
  5. Do the costs for either Phase I or Phase II include payment for services rendered under the “no cost” Memorandum of Agreement executed August 27, 2019, and expiring December 31, 2019? Provide documentation that the “no cost” services were received and accepted without further obligation by either party.

Under questioning Wednesday by members of the State Board of Education, Johnson said he’s prepared to sign another emergency contract with Istation if the legal issues swirling around the reading assessment tool isn’t resolved when the contract ends in March.

An administrative hearing on the merits of the controversial award of an $8.3 million, three-year contract to Istation is scheduled to begin Monday. It’s doubtful the case will be resolved immediately, so Johnson’s temporary contract with Istation would allow schools to continue assessing students’ reading levels using the Istation program. It was unclear late Friday what happens if Boyette suspends or cancels the emergency purchase.

Amplify, an Istation competitor whose mClass assessment tool had been used in North Carolina’s K-3 classrooms for several years, filed a protest over the summer contending the contract was unfairly awarded. In August, the DIT granted Amplify a temporary stay against the use of the Istation reading assessment tool.

Jonathan Shaw, the chief counsel for DIT, 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 and its mClass reading assessment tool previously used by the state.

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 tool.

 

 

 

Education

Achievement Schools District in Tennessee seeks ‘restart’ after failing to improve schools

The state-run school district in Tennessee, the one on which this state’s Innovative School District (ISD) is modeled, has failed.

According to reports out of Tennessee, the Achievement School District (ASD), is working on a plan to return 30 ASD schools in Memphis and Nashville to their local districts by 2022.

State officials in Tennessee contend the district, which was established in 2012 to improve achievement in low-performing schools, “grew too quickly” and that “demand outpaced supply and capacity.”

Still, Tennessee officials aren’t giving up on the ASD. They’re billing the new proposal as a “reset” of the district, which has fallen short of its goals to move low-performing schools from the bottom 5 percent and into the top 25 percent.

Most ASD schools were handed over to charter school operators after being pulled from local districts.

“The Achievement School District remains a necessary intervention in Tennessee’s school framework when other local interventions have proven to be unsuccessful in improving outcomes for students,” officials said in a presentation obtained by Chalkbeat.

“The Commercial Appeal” in Memphis reports that most of the schools remain the bottom 5 percent and that several have closed due to low enrollment. Teacher retention has also been a major challenge, the paper reports.

Meanwhile, North Carolina’s ISD has struggled to get off the ground.

After only one year, state officials made wholesale leadership changes at ISD. The ISD got a new superintendent, the lone ISD school got a new principal and a new president was hired to lead the private firm that manages the school.

James Ellerbe, the ISD superintendent hired in July, reported this week that there are 69 schools on the state’s 2019 qualifying list, meaning the low-performing schools are at risk of being swept into the ISD.

The ISD will bring only one school into the state-run district next year. The school with the lowest performance score among Title I schools in the bottom 5 percent will be brought into the ISD.

The ISD was approved in 2016 by state lawmakers even though the ASD had showed little signs of success after being in business four years.

The ISD’s chief proponent, then-Rep. Rob Bryan, a Republican from Mecklenburg, argued that the new school district would provide much-needed reforms in chronically low-performing schools even as he acknowledged the results were mixed for Tennessee’s ASD.

Bryan is currently serving out the term of former state senator Dan Bishop. He could not be reached for comment Friday.

Teachers and other opponents vigorously argued against the ISD.

Mark Jewell, president of the N.C. Association of Educators, called it a “new layer of bureaucracy that lacks the accountability to ensure public dollars are being spent effectively.”

Education

State Superintendent Mark Johnson is prepared to sign another emergency contract for Istation if legal issues aren’t resolved by March

State Superintendent Mark Johnson

(This story has been updated to include a statement from the N.C. Association of Educators.)

State Superintendent Mark Johnson said Wednesday that he’s prepared to sign another emergency contract with Isation if the legal issues over the state’s K-3 reading assessment tool isn’t resolved by the end of March.

“We are hopeful to have resolution to these circumstances by that time,” Johnson said. “If we don’t, we can take it up then. This is definitely not something that we view as a contract that you could get all the way through the school year with unless the process is ongoing.”

Johnson made his remarks during a telephone conference call with the State Board of Education (SBE). He was in Washington D.C., on N.C. Department of Public Instruction (DPI) business.

Johnson inked an emergency contract with Istation late Tuesday worth  $928,570 to keep the controversial assessment tool in classrooms through March.

He said he has the authority to make such decisions under a DPI procurement rule that allows an immediate, emergency purchase to prevent the cessation of an important program.

Meanwhile, critics of Johnson took to social media, many of them posting statements critical of the decision. “Istation is not an emergency,” many of them posted.

The N.C. Association of Educators (NCAE) issued a staetment Thursday critical of the move.

“North Carolina educators know what a real emergency looks like, and this isn’t one,” said Mark Jewell, president of the NCAE. “The real emergency is no funding for school renovation or reconstruction. The real emergency is educators leaving the profession due to lack of pay increases. The real emergency is a disrespect for the education profession, and if Mr. Johnson really wants to help educators, he should be spending his department’s time and resources addressing these issues.”

Johnson noted that there’s an administrative hearing scheduled for Jan. 13 that could bring closure to the months-long controversy over the awarding of the $8.3 million reading assessment contract to Istation over Amplify and its mClass assessment tool.

“We are optimistic that we will get a positive ruling and that should be before March 31,” Johson said. “If it is not, then we will take it from there.”

SBE Chairman Eric Davis asked if there is a contigency plan if the ruling does not favor DPI and there’s no resolution by March.

Johnson said DPI would review its options at that time.

“Depending on what happens in the next few months, we might be in another situation where we do another emergency purchase to make sure that we finish the year at least and then look at what happens over the summer for the next year,” Johnson said.

Johnson said he is optimistic DPI will prevail because of the evidence being brought forth during the discovery process.

“We have a very strong case,” he said.

The conversation grew tense when SBE vice chairman Alan Duncan complained that the contract was signed by Johnson on behalf of the board even though its members were not involved in the process.

Davis also chimed in, questioning why Johnson didn’t send the board the contract before he signed it.

Johnson responded: “Because I have the authority to sign the contract, Mr. Davis. You were noted at the same time everyone else was that we entered into this emergency purchase agreement.”

Davis pushed back: “You signed it for the State Board of Education, so anyone who reads that thinks the State Board of Education was involved.”

Johnson said he could go back and make changes to the contract to reflect that the SBE was not involved.

Johnson’s emergency purchase came one day after a superior court judge declined to lift a stay that prevents the state from awarding Istation the state’s reading assessment contract mandated by North Carolina’s Read to Achieve law.

Judge Mary Ann Tally’s decision to not rule in the matter left the state without a tool to assess the reading levels of the state’s K-3 students.

Istation had been implementing its program in state schools for free since August but that arrangement ended in December.

It’s doubtful the case will be resolved immediately after next week’s administrative hearing, so Johnson’s temporary contract with Istation allows schools to continue assessing students’ reading levels using the Istation program.

DPI and Istation were in court Tuesday seeking relief from stays handed down by the N.C. Department of Information Technology (DIT). In August, the DIT granted Amplify a temporary stay against the use of the Istation reading assessment tool after Amplify filed a protest after losing the contract award, which it held for several years.

Jonathan Shaw, the chief counsel for DIT, 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.”

Tiffany Lucas, a special deputy attorney general with the N.C. Department of Justice representing DPI, said Tuesday that DPI would be unable to meet its “constitutional” and “statutory” obligations to North Carolina’s school children.

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 and its mClass reading assessment tool previously used by the state.

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 tool.

 

 

Higher Ed, News

Attorney Hugh Stevens: UNC Board of Governors “egregiously and constantly” violated law

Hugh Stevens.

This week DTH Media, the non-profit that operates UNC-Chapel Hill’s Daily Tar Heel student newspaper, has sued the UNC Board of Governors over the controversial Silent Sam settlement.

The suit alleges the politically appointed board, which governs the UNC System, negotiated and made decisions about the settlement for months without providing information to the public or the media — including minutes of meetings and correspondence — in violation of the North Carolina Open Meetings Law.

Attorney Hugh Stevens of the firm Stevens Martin Vaughn and Tadych, PLLC is representing DTH Media in the suit. He spoke with Policy Watch Wednesday about the importance of the suit and what his clients hope to achieve.

The suit asks that decisions made in meetings the suit claims were held in violation of the open meetings law be found null and void — including the settlement by which the UNC System would give the Silent Sam Confederate monument to the Sons of Confederate Veterans, along with $2.5 million in a non-profit trust.

Legal experts say voiding the agreement would be an uncommon outcome — but Stevens said that may be because suits over the open meetings law aren’t as common as suits over the withholding of public documents, for instance.

“In our part of the state, a great many media companies and some advocacy organizations have pursued public records cases quite avidly,” Stevens said. “But the open meetings law is really more of a law that tells people what they are supposed to do than one that provides a lot of effective remedies. I can’t speak for anyone else except to say the opportunities have not come up all that often.”

Asking that the decisions be nullified is important in a case where such important decisions were made without public knowledge or input, Stevens said.

“Under our open meetings law, that’s really the only meaningful remedy available,” Stevens said. “You can’t throw someone off the board of governors. You can’t have them fined. The remedies written in are quite limited.”

It isn’t that there aren’t open meetings law violations happening every day, Stevens said — but they’re often difficult to document and prove under the constraints of the law as written.

“There are reasons why this remedy hasn’t been put in place very often,” Stevens said. “One is that you have to act quickly. There’s a statute of limitations of 45 days from the time that you learn of the action [that broke the law]. That’s daunting and unusual. As a consequence there haven’t been very many cases where people have sued to try to get that remedy. They’ve instead said, ‘Well there’s nothing we can really do about it now…but maybe we can get an injunction, to get them to comply with the Open Meetings laws in the future.'”

With such a high profile and controversial case as the Silent Sam settlement, Stevens said, that hardly seems enough. Board members and the UNC System’s own lawyers have publicly outlined the secretive nature of the negotiations, in which even some board members were not given all the details about the negotiations or the agreements that came out of them.

The public outcry against both the secrecy and the settlement that came of it has been so large, Stevens said, that it can’t be ignored or minimized.

“This time the violations were so egregious and so numerous — if this isn’t the case in which to ask a court to do this, what is?” Stevens said.

Suits that seek to change the behavior of public bodies in the future are themselves valuable, Stevens said.

“I think what the law has done and the cases that have been brought in the past have done, is to effect behavior,” Stevens said. “For example, I often cite some public bodies — one good example is the Raleigh City Council. When we look at it, they are assiduously following the law. Maybe that’s because they got sued over it years ago and it changed their behavior.”

In the case of the UNC Board of Governors’ settlement with the Sons of Confederate Veterans, Stevens said, that simply isn’t enough.

“It seemed like this was an instance wherein the open meetings law has been violated so egregiously and so constantly that if you aren’t going to try to enforce it here, when will you?” Steven said.

 

Education, News

Banking executive to NC business leaders: America must do more to address inequality, pay teachers more

The NC Chamber and the North Carolina Bankers Association hosted its 18th Annual Economic Forecast Forum on Tuesday, and some of the state’s most influential leaders got an earful from Kelly King, the CEO of Truist (formerly BB&T and SunTrust.)

In unusually candid remarks, the head of the nation’s sixth largest bank told the audience that many were out of touch with the financial hardships working families are facing.

As Raleigh’s News & Observer reported:

“We’ve got a nice house, we’ve got a nice job. We don’t go to the other side of town and we don’t realize what’s happening,” King said, referring to an audience that included scores of North Carolina bankers and executives. “Go see what’s really going on in the world around you. You will find it is very, very difficult.”

Truist CEO Kelly King

He pointed to a survey which found that most Americans can’t meet an unexpected $1,000 expense: “You can’t even relate to that. I can’t even relate to that. Well, that’s the way most of the people in our country are living.”

While there are many origins to America’s widespread educational and economic inequality, King pointed to the perceived failures of American public school system as one of the paramount reasons for the divides in the country. If people can’t read or do simple math, he said, they are effectively left out of much of the U.S. economy.

“We are cheating our kids and our grandkids of a future,” King said. “They will not have the same kind of life we have had,” he warned, if the current course of the country isn’t changed.

America needs more teachers and they need to be paid and supported better, he said. As the shape of the American family changed, crucial educational roles that used to be filled by family members are left unfilled and students suffer, he said.

When he grew up on a tobacco farm in Zebulon, he said, there were plenty of unskilled jobs that you could take if you didn’t have an education. Now, those jobs are gone.

“We are seeing millions of people come out of the system that virtually have no hope,” he said.

While the problems he raised were widespread issues that ran to the core of American society, his solution for “a part of the puzzle” was compact. Truist is going to release an app to teach elementary school-age children how to read.

King said in the speech that they will test the app in about 500 schools across multiple states in the next 18 months.

“Rather than being out on the street, taking drugs, we think they’ll be sitting at home, playing this game and learning how to read,” King said to reporters after the speech.

Read the full article here.

King has advocated in the past for lawmakers to expand access to Pre-K and do more to improve student reading skills in the early grades.