Janis Zink Sartucci

July 7, 2010

Maryland State Board of Education

200 West Baltimore Street
Baltimore, Maryland 21201

Re: Appeal of Montgomery County Board of Education Decision

Dear Members of the State Board of Education:

This letter appeals the June 8, 2010, decision of the Montgomery County Board of
Education (Local Board) to approve Agenda Item 4.4.1 of that date. (Attachment A). The
undersigned resides in Montgomery County, Maryland. This appeal is made by Janis
Zink Sartucci (Appellant) to the Maryland State Board of Education (State Board) as a
state and county resident.

The State Board has authority to hear this appeal pursuant to Code of Maryland
Section 13A.01.01.03. The State Board can substitute its judgment for that of the County
Board because this decision was arbitrary, unreasonable, and illegal. The decision was
contrary to sound educational policy and is an abuse of discretionary powers. A
reasonable mind could not have reasonably re ached the decision reached by the Local
Board.

The June 8, 2010, Local Board Agenda Item 4.4.1 was titled “Approval of
Contract with Pearson, Inc.” The substance of the contract was, “to jointly develop an
online integrated elementary curriculum” accordi ng to the memorandum in support of
this agenda item submitted by the Superintendent. The contract was not to purchase
existing materials of instruction , but was for the procurement of the development of
curriculum, the funding of positions, professional de velopment experiences, and for the
hosting of an online professional development learning community. (Attachment A, Page
3)

Standing

Appellant asserts standing to file this appeal as an interested citizen and parent of
a school age child residing in Mon tgomery County, Maryland. Standing refers to a
party’s right to assert a claim. Maryland courts have long observed the difference
between standing before an administrative agency like the State Board and before a
circuit court. In the former case, a lower level of standing applies:

Thus, a person may properly be a party at an agency hearing under Maryland’s

relatively lenient standards for administrative standing but not have standing in
court to challenge an adverse agency action. The requirements for administrative
standing are not very strict. Absent a statute or a reasonable regulation specifying
 criteria for administrative standing, one may become a party to an administrative
proceeding rather easily. Sugarloaf v. Dep’t of Environment, 344 Md. 271, 686
A.2d 605 (Md. 1996).

All Montgomery County citizens have an interest in the curriculum utilized by the
public schools in the county and have an interest in the creation of the curriculum .
Maryland Education Article Section 4 -111 even confers upon “in terested citizens” the
right to obtain printed copies of curriculum materials.

(a) In general.- Subject to the applicable provisions of this article and the
bylaws, basic policies, and guidelines established by the State Board, each county
board, on the written recommendation of the county superintendent, shall:

(1) Establish curriculum guides and courses of study for the schools under
its jurisdiction, including appropriate programs of instruction or training
for mentally or physically handicapped child ren; and

(2) Supply printed copies of these materials to any teacher or interested

citizen.

Section 4-111(a) of the Education Article, Annotated Code of Maryland

Local Board Policy

Agenda Item 4.4.1 was introduced and voted on at the same meeting in violation
of Local Board policy and procedures. The Local Board policies and procedures confer
important procedural benefits that are intended to offer citizens , including the appellant
an opportunity to be heard concerning important public school policies and expenditures .

Agenda Item 4.4.1 was added to the Local Board’s Consent Agenda for the June 8, 2010,
Local Board meeting at 2:37 PM on the afternoon of June 7, 2010.

Agenda Item 4.4.1 was a new item and had not previously been discussed by the
Local Board. Agenda Item 4.4.1 is the creation of a joint venture to create curriculum and
online professional development for the Local Board and to sell the curriculum and other
products to other jurisdictions in return for possible royalties.

The Local Board’s Operations Handbook states that:

Except for policy matters, items that are time sensitive may be voted upon during
the same meeting as introduced if the Board members by majority vote so concur.
[Emphasis added] Board member proposals to establish special programs where
a substantial amount of staff time is needed to develop the programs must be
 approved in accordance with Board procedure for establishing and evaluating
special programs.

At the June 8, 2010, Local Board meeting Agenda Item 4.4.1 was introduced and
a vote was taken. The Local Board did not take a vote to decide if this New Business item
could be voted on immediately , as required by their Operations Handbook. The failure of
the Local Board to approve the expediting of this agenda item constituted a violation of
the Operations Handbook procedure if this matter is deemed to be not a policy matter.

The Local Board’s Operations Handbook states that:

The Board of Education has adopted Policy BFA, Policysetting, which includes a
definition of “policy” and a uniform format for policy de velopment and
implementation, including publication, monitoring of implementation, and review.
Discussion of a new policy usually takes place over four meetings —one for the
Board’s Policy Committee to discuss the superintendent’s policy analysis, the
second for the Board to take tentative action on the Policy Committee’s
recommendations, the third for the Policy Committee to review public comments
on the policy and any additional staff recommen dations, and the fourth for the
Board to take final action on the policy.

Curriculum Development

Agenda Item 4.4.1 involved a contract with an outside vendor to develop new
curriculum for Montgomery County Public Schools. The establishment of curriculum is a
policy decision of t he Local Board and as such Agenda Item 4. 4.1 should have been
acted on in accordance with the Local Board’s Policy BFA, Policysetting.

The Financial Reporting Manual for Maryland Public Schools, Revised 2009 ,
notes that curriculum development is either school based or central office based. Sc hool
based curriculum development is to be charged to Instruction (page ii), and central office
based curriculum development is to be charged to Mid -level Administration (page 50).

Clearly a vote to develop a new curriculum , produce professional developme nt

experiences, and host an online professional learning community is not the equivalent of
a vote to purchase pre-existing materials of instruction. Specifically, the vote to develop a
new curriculum necessitated the immediate hiring of four brand new adm inistrators and
an unknown number of support staff from Local Board Operating Budget tax generated
public funds. A vote of the Local Board to expend hundreds of thousands of dollars on
the administration necessitated by the terms of this contract diverted Local Board
Operating Budget funds away from classrooms, public school facilities and other
countywide programs without permitting the public to be notified of this expenditure, or
the opportunity to be heard.
 Local Board Policy BFA, Policysetting, defines a Policy as Policy is defined as
the principles sp ecifically set forth in the Local Board Montgomery County Public
School (MCPS) Policies and Regulations Handbook and identified as a “policy.” These
policies, all of which have a three-letter identifier and are indexed in lettered sections of
the MCPS Policies and Regulations Handbook , are adopted by resolution of the Board of
Education to set forth the vision and goals of the school system, specify the rights and
responsibilities of the school community, and guide the development and implement ation
of educational programs and/or for management of the school system. For purposes of
Policy BFA, Policyetting, and Regulation BFA -RA, Policysetting, the term “policy”
refers to only those principles identified as policy in the Policies and Regulations
Handbook .

Local Board Policy IEA Framework and Structure of Early Childhood and
Elementary Education , and County Board Policy IFA Curriculum are both contained in
the Policies and Regulations Handbook and both have a three letter identifier. Agenda
Item 4.4.1 creates a new elementary curriculum for Montgomery County Public Schools
and impacts both Policy IEA and Policy IFA.

Local Board’s introduction and final vote on Agenda Item 4.4.1 on the same day
constituted a violation of Local Board’s Policy on Policysetting if this matter is deemed
to be a policy issue.

Whether Agenda Item 4.4.1 is deemed to be a new business item or a policy issue,
the vote taken on June 8, 2010, by the Local Board violated Local Board policies and
procedures, and took away important procedural benefits from county citizens , parents
and teachers.

Procurement

Agenda Item 4.4.1 was a procurement contract for the creation of the Local
Board’s elementary curriculum , professional development experiences , and the hosting of
an online professional learning community that was not put out for public competitive
bidding via a Request for Proposal or Invitation for Bid. No other vendors were solicited,
invited or otherwise permitted to submit bids on this proposal and is therefore void. As
reported in the Silver Chips Newspaper:

“The partnership formed after a conversation between county superintendent

Jerry Weast and spokespeople from Pearson. The conversation originally focused
on the idea of developing assessments that would be more beneficial to students
and eventually turned to the idea of creating an integrated curriculum, according
to Public Information Director for MCPS Dana Tofig .”

Clearly a “conversation” does not satisfy the requirements of the Local Board’s
procurement policy for purchases over $25,000 and is void.
 20.0 Unauthorized Purchases

Whenever any officer or employee of MCPS purchases or contracts for any

supplies or contractual services contrary to the provision of the MCPS
Procurement Manual, such purchases or contracts shall be void and shall not be
considered to be an obligation of the Montgomery Cou nty Board of Education
(Local Board Policy DJA, Local Board Procurement Manual, Page 66).

Agenda Item 4.4.1 was not obtained through the required procurement procedures:

Thresholds for Determining Method of Procurement

The following thresholds determine the method used to obtain competitive prices
for equipment, supplies, and services. [These thresholds do not apply to the
purchase of books and/or other materials of instruction.] For an item, or group of
items, estimated to cost as follows:

Estimated Cost Method Used to Obtain Competitive Prices

$0 - $7,499 Buyer Review

$7,500 - $24,999 Informal Quotes

$25,000 and up Formal Solicitation: Invitation for Bid (IFB) Request for
Proposal (RFP)

Regardless of the source of funds by which the contract is to be paid, MCPS

purchasing procedures as provided herein appl y to the procurement of all goods
and services by all departments and schools with both appropriated and
independent activity (IAF) funds .

(MCPS February 2007 Procurement Manua l, Page 14)

The failure of the Local Board to follow their own policies and procedures with regard to
the creation of Agenda Item 4.4.1 renders the contract void, and the June 8, 2010 Local
Board action in approving the contract illegal.

Access to students and student data

Agenda Item 4.4.1’s contract permits employees of the vendor, and clients of the vendor
access to Local Board classrooms and students. Agenda Item 4.4.1 makes no reference as
to how the safety, security and privacy of students will be safeguarded.

Potential conflict with Race to the Top

The Agenda Item 4.4.1 contract is inconsistent wit h the Maryland State proposal
submitted to the Department of Education under the Race to the Top program that is
intended to revise the PreK-12 Maryland State Curriculum, assessments, and
accountability system based on the Common Core Standards to assure t hat all graduates
are college- and career-ready. To the extent the State receives and implement s the Race
to the Top funding, the Local Board contract will be inconsistent with and/or redundant
to the state mandated changes in curricular materials.

Program Development Plan has not been approved by Local Board

The contract approved as Agenda Item 4.4.1 calls for the immediate development of the
Program Development Plan to be completed within fourteen (14) days after the signing of
the agreement. Assuming that the contract was signed on June 8, 2010, fourteen (14) days
could have been as soon as June 22, 2010. However, the final Program Development Plan
has not been made public as was not brought before the Local Board for approval.

Copyright and Intellectual Property

The contract approved as Agenda Item 4.4.1 cedes all copyright and intellectual property
to the commercial vendor without reservation of an unrestricted or use license by the
Local Board, requiring the Local Board to pay the vendor additional sums to obtain
materials developed under the contract.

Public excluded from curriculum review process of Local Board

Montgomery County parents and citizens are not permitted an opportunity to participate
in the creation of the public school curriculum that will be written and marketed under
the Local Board name and logo pursuant to Agenda Item 4.4.1.

Local Board Policy IFB states:

Parent and citizen involvement is essential to fulfillment of the goals of the

Montgomery County Public Schools. Since curricular and instructional materials
are vital to the teaching and learning of all students, it is approp riate to include
citizens, including parents, in the review process of these materials.

Agenda Item 4.4.1’s contract does not include any reference to parent or citizen
curriculum review and is therefore in conflict with Local Board policy and procedures.

FERPA

Agenda Item 4.4.1’s contract does not refer to the Family Educational Rights and
Privacy Act (FERPA), 20 USC § 1232g, 34 CFR pt 99. This is a crucial piece that is
missing from this document as Agenda Item 4.4.1 allows an outside vendor and their
clients’ unrestricted access to Local Board classrooms, students and student performance
data without parental permission . Parents are not afforded any guarantees that FERPA
will be complied with during the term of this contract.

MSDE and State Board Conflict of Interest

An appeal to the State Board for a review of the Local Board action is the legislated
procedure for review of a Local Board decision. However, in this appeal there is concern
that the pre-existing and ongoing relationship between the State Board, MSDE and the
subject of the Agenda Item 4.4.1 Contract – Pearson Education, Inc. may create a
potential conflict of interest for the State Board tasked with reviewing this appeal.

Appellant would request a change of venue if such an option existed.

Thank you for your consideration of this appeal.

Sincerely,

Janis Zink Sartucci

Attachment A – Agenda Item 4.4.1

Attachment B – Silver Chips Newspaper article