T. Greg Doucette: “DPI personnel would be found guilty if they were prosecuted” in intercepted text message case

According to Durham attorney T. Greg Doucette–of #SilentSham fame–the individual(s) at the Department of Public Instruction who allegedly intercepted personal text messages of retired K-3 Literacy Director Carolyn Guthrie would likely be found guilty if a prosecutor chose to pursue an indictment.

A text message containing confidential information about North Carolina’s K-3 reading assessment procurement was used by Superintendent Mark Johnson as a basis for cancelling the procurement process last year. Johnson eventually awarded the contract to Istation.

Questions have since been raised about whether the message was obtained through improper monitoring of a former employee’s personal communications. Superintendent Johnson has publicly mocked the allegations, and DPI’s Director of Communications Graham Wilson has referred to them as “blogger conspiracies.”

However, interception of electronic communications could constitute a violation of state law.

Here are Greg Doucette’s thoughts on how the matter might play out in court if whoever monitored the text messages is prosecuted:

So when a potential client meets with me because they’ve been charged with a crime, part of that consultation focuses on 3 key things:

==> (1) Is there a missing element to the crime? <==

Every criminal statute has certain pieces to it that have to be met, where the defendant’s conduct has to “match” what is prohibited; lawyers call these required pieces “elements.” If the person’s conduct doesn’t match up with every element – if a single element is missing for any reason – the person can’t be convicted of that particular crime. 

For example, you can’t be convicted for possession of a controlled substance if the thing you possessed is not a controlled substance. Common sense.

==> (2) Is there an exception? <==

If the person’s conduct matches up with each of the elements of the crime, the next step is to look for an exception (a “loophole”). Most statutes have exceptions written in for various things, making normally-criminal conduct acceptable in certain situations.

For example, you can’t be charged with DUI for riding a horse while drunk, because NCGS §20-138.1(e) specifically excludes horses from the definition of “vehicle.”

Some exceptions show up in judicial opinions even if they’re not codified in statutes. For example, in most states, recording the police performing their duties in public is protected by the First Amendment even if a state has a statute criminalizing it.

==> (3) Can the law be invalidated? <==

In some situations, the only option is to argue the criminal law itself is unconstitutional. This can happen if the criminal law is:

* too vague (e.g. sentence enhancements for a “crime of violence”) or

* too broad (e.g. use of “inappropriate or offensive” language in public) or 

* violates the federal or state Constitution (e.g. laws that ban flag burning)

An invalid law is no law at all, and if the law is found unconstitutional the person can’t be convicted under it.

***************

If you get to the end of this process and the answer to all 3 questions is “No,” there’s no missing element, no applicable exception, and no way to overturn the law, there’s a high likelihood the person will be convicted.

In the case of DPI and their snooping on a retiree’s iMessage account, a prosecutor who chose to indict the involved personnel would likely win a conviction.

Let’s go through the 3-step process…

==> (1) Is there a missing element to the crime? <==

Start by taking a look at the statute, NCGS §15A-287(a)(1), which has 2 required elements:

“a person is guilty of a Class H felony if … the person:

[#1] Willfully intercepts, [or] endeavors to intercept, or procures any other person to intercept or endeavor to intercept, 

[#2] any wire, oral, or electronic communication.”

The first required element is the willful interception. Here, there’s no plausible dispute over whether that took place.  Even if the initial batch of Guthrie’s messages were found inadvertently, the ongoing monitoring for a year clearly indicates willful interception by DPI personnel.

The second element relates to the type of thing being intercepted, each of which incorporates the federal law definition. Specifically, an “electronic communication” is “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system.” Text messages squarely fall within that definition.

So the first question is answered “No”: there is no missing element. The conduct of DPI personnel matches the statute.

==> (2) Is there an exception? <==

The NC wiretap statute includes some exceptions. For example, if the person recording has “the consent of at least one party to the communication,” then there’s no crime (this is the meaning of “one-party consent state,” “two-party consent state,” etc).

There are also exceptions that allow intercepting publicly available communications, intercepting communications necessary for job-related purposes like “mechanical or service quality control checks,” or intercepting communications through legal processes like “an electronic surveillance order.”

Based on what is known so far, none of the statutory exceptions contained in §15A-287 apply to DPI personnel. No party to the communication consented to the surveillance. The messages weren’t generally available to the public to fall under the main exceptions. The iMessage platform is run by Apple so DPI can’t claim the job-related quality control exception. And there is no indication anyone at DPI obtained a court order to allow the surveillance.

So the answer to Question #2 is “No,” there is no usable exception.

==> (3) Can the law be invalidated? <==

With frequently charged crimes like wiretap violations, it is often exceptionally difficult to have the law invalidated because it has likely been subject to several court challenges and subsequent legislative modifications to make it “ironclad.”

Here, the statue is specific rather than vague; narrowly tailored rather than overbroad; and does not violate either the federal or the state constitution.

So the 3rd question is also “No”: the law cannot successfully be invalidated.

That leaves us with:

==> No missing elements
==> No usable exceptions
==> No way to invalidate the law

Meaning DPI personnel would be found guilty if they were prosecuted.

The myth of school choice in North Carolina

It’s a common refrain among charter school and voucher advocates:  “We need to provide families with choice.” And on its face, it sounds pretty good–we all expect choice when we go to the store for peanut butter, don’t we?  But what happens when all my peanut butter options are equally unpalatable, except for the ones that are priced beyond my means? Does the fact that I have a choice really make much of a difference at that point?

Since the cap on charter schools was lifted by North Carolina’s state legislature in 2012, the number of charter schools in the state has doubled. This year we have roughly 200 charter schools in operation, serving more than 100,000 students across the state (overseen by a staff of 8 people). That’s a lot of peanut butter, with very little quality control.

While charter schools in some states have been used successfully to improve academic performance for low income students, in North Carolina they’ve been used predominantly as a vehicle for affluent white folks to opt out of traditional public schools.  Trends of racial and economic segregation that were already worrisome in public schools before the cap was lifted have deepened in our charter schools. Now more than two thirds of our charter schools are either 80%+ white or 80%+ students of color.  Charter schools are not required to provide transportation or free/reduced-price meals, effectively preventing families that need help in those areas from having access to the best schools.

Academic achievement in our hypersegregated charter schools has played out along socioeconomic lines, just as it generally does in traditional public schools.  Charter schools that serve primarily low-income families have struggled, with percentages of charter schools rating D or F according to NC’s school report card system exceeding those of their traditional public school counterparts.  On the other end of the spectrum, charter schools rated A or B are more common than traditional public schools that earn those grades. They’re also populated mostly by wealthy white students.

2014 study by researchers at UNC-Chapel Hill found that students of color in segregated schools tended to make smaller gains in reading than students of color in more integrated schools.  Research also shows that white students don’t experience a decline in those integrated settings. Segregated schools are more likely to have inexperienced teachers, higher teacher turnover and student mobility, and lower quality facilities.  Students at more integrated schools see improved academic outcomes, increased educational attainment, and increased likelihood of living and working in diverse settings.  

Despite the clear benefits, it’s very rare in North Carolina for charter schools to be intentional about seeking out an integrated population of students.  In fact, until 2015, state law didn’t allow charters to use socioeconomic status in their admission lotteries. Even now that they have permission to do so, only three charter schools in the state actively use SES for their lottery: Community School of Davidson, Charlotte Lab School, and Central Park School in Durham–although those schools still only serve 5%, 9%, and 30% Economically Disadvantaged populations respectively.

I don’t believe that charter schools are inherently bad, and I recognize the fact that there are charter schools doing good work in North Carolina–even some that serve low income students and do so well.  However, on a systems level, the effectiveness of our charter schools depends on the policies that govern them. If our state legislators are really serious about providing families with good choices, they must enact policies that move us in the direction of racial and economic integration.  Until that happens, let’s stop pretending that ‘choice’ benefits all students equally.

Letting go of homework to nurture the whole child

I was hurrying down the hall at 7:58 when I saw one of my 7th grade Language Arts students in a side hall, crouched next to a sobbing little boy. I stopped and asked Sonia (not her real name) what was going on. With tears welling up in her eyes, Sonia told me this was her brother’s third day of kindergarten, and he was scared to go to class. 

I fetched our elementary counselor to calm the child down and get both students on their way, but for the rest of the day I was thinking about the position Sonia was forced into — part sister, part mother, part student. The image of Sonia’s tears welling up led me to think in a much broader way about the many needs my students have that are not connected to reading and writing.

Soon after, at a district Instructional Leadership Team meeting, I found myself in a conversation with a colleague from another school around the book Academic Conversations. We discussed the loss of “social capital” that can result from our educational practices, driving wedges between schools and the communities they serve and even taking away time family members need to spend time with each other. This teacher explained that her whole school had made a decision to stop assigning homework. I began to think about how many of my own practices are of the “teach how you were taught” variety rather than those made with the whole child’s needs in mind.

Teachers are under a tremendous amount of pressure to raise reading scores. Our test results are projected on screens in front of our colleagues and included in school report card grades for the world to see. For years I required weekly independent reading with a metacognitive literary response component, justified by my belief that that more practice leads to stronger reading skills for all students. I gave students regular take-home practice assignments, individualized as best I could for 150 kids, and at-home projects designed to hone their critical thinking skills and writing ability. Depending on the child, these homework assignments probably averaged 3-4 hours per week. And mine is not the only class they have.

But when I reflected on the actual results of this homework approach, I had to admit that the students most likely to complete assignments were those who needed it least: high-functioning students who were afraid of getting a bad grade. My readers who needed the most support often didn’t do the assignments at all. Then I was left trying to carve out time during class for them to do the work, which  meant them missing a lesson about something else. In many cases, those students needed a lot of face-to-face support to understand assignments and do them correctly, so the homework was more suited to the classroom anyway.

I also began to listen more carefully to my students’ other needs. Many of them have hours-long bus rides just to get home. Many have other responsibilities in the home such as taking care of younger siblings while parents work. Many are involved in extracurricular activities that keep them busy for hours after school. For all of these students, it seemed that my expectations might be adversely impacting their lives with negligible benefits.

I decided then and there that I would try abandoning homework for the year — despite the fact that I had just spent the first couple weeks of the school year explaining my homework requirements and trying to develop student buy in.  

My new message to parents explained that I would require students to keep up with novel reading at home when we didn’t have time to read everything in class, and that assignments they didn’t complete during class would also need to be finished at home. But I told them I wanted my students to be able to rest and recharge their minds as well as spend time together with family and just be kids.

Parent feedback was overwhelmingly positive. One told me, “Thank you for your consideration and kindness with respect to the other, non-academic aspects of your students’ lives… I look forward to the day when all teachers share your perspective of nurturing the whole child and kids can run around outside for hours every evening instead of sitting and doing more schoolwork!” Another said, “This email, seriously, almost made me cry with delight… A friend and I were just discussing THIS MORNING how checklist oriented we’ve become; you’re on the cutting edge of something.”

It was clear that, at least from the parent perspective, this was the right move to make. I am still concerned about getting my students to master all the content I want them to learn in the very limited amount of time that I have with them. It’s possible that my end-of-year reading test results in the spring that cause me to reevaluate my thinking. But for now, what I am mostly thinking about is Sonia being able to spend time with her brother after school, talking to him about how his day was and helping him to feel excited about coming back again tomorrow. Not doing Language Arts for an hour when she gets home will allow her to be the best student, sister, and mother that she can be.

*Update: This reflection is on changes I made to my homework policy in 2016. In the years since, my students have achieved the highest reading proficiency rates I have seen in my career.

Here’s how you can support Justin Parmenter for NCAE Region 3 Director

I recently announced my candidacy for the position of Region 3 Director for the North Carolina Association of Educators (NCAE).  Elections are for NCAE members and will be conducted by email from April 4 to 14.

We are in the midst of an unprecedented budget crisis and heading toward what will be one of the most important general elections in many years.  Here in North Carolina, 2020 brings the opportunity to elect policymakers who will be much more open to listening to educators and working together toward the changes our students need.  

When that long-overdue transformation happens, having the right teacher leadership in place is going to be incredibly  important.

Over the past few years, I’ve used my platform NotesFromTheChalkboard.com to serve as a watchdog on state legislators and Superintendent Mark Johnson and keep our state’s educators informed about important issues that impact them and their students.  I’ve developed strong working relationships with lawmakers who believe in public schools, and I’ve been a tireless local advocate with the Charlotte Mecklenburg Board of Education and Mecklenburg Board of County Commissioners as well.  

All of this work has helped me grow personally and professionally, build a strong statewide network of educators and policymakers,  and gain skills which will be crucial for effective leadership.

As Region 3 Director I will bring my passion for advocacy, education policy and communication to bear on turning Region 3 into a place where every educator understands local, state, and national education issues and is empowered to use their voice as a tool for changes that benefit their students and colleagues.

I am running against a strong incumbent, and it’s going to take a lot of hard work for me to get elected.  If you’re willing to support my campaign, here’s how you can help:

  1. Share this post with colleagues in your network, especially NCAE members eligible to vote in Region 3 (that includes Anson, Cabarrus, Gaston, Kannapolis, Lincoln, Charlotte/Mecklenburg, Montgomery, Mooresville City, Rowan, Stanly, and Union Counties).

  2. Complete this survey indicating your support for my candidacy and encourage others to do the same:  https://tinyurl.com/JPforNCAE3. If I’m going to win, I’ll need contacts in as many Region 3 schools as possible, and this survey is how I’m going to do that.

  3. If you’re able, consider a contribution to my fundraiser for postcard mailings.  Every dollar enables me to reach three voting members of NCAE Region 3 with information about my campaign: https://www.gofundme.com/f/postage-for-justin-parmenter-for-ncae-region-3 

Whether you are a member of NCAE or not, and whether you support my candidacy or not, thank you from the bottom of my heart for everything you do to change lives in your school every day.  Working together we can transform this state into a place where your work is respected and supported as it deserves to be.

Warmly,

Justin Parmenter
Charlotte, NC
Candidate for NCAE Board of Directors, Region 3

New Leandro order requires state to act “expeditiously” in providing “adequate resources” to public schools

In a Wake County courtroom this morning, the judge presiding over the Leandro case signed a consent order which requires the State of North Carolina and the State Board of Education to “work expeditiously and without delay” to create and implement major changes to North Carolina’s public education system.

Judge David Lee says “considerable, systemic work” is necessary in order for the state to meet its constitutional obligation to provide a sound, basic education to students, as our current system “leaves too many students behind–especially students of color and economically disadvantaged students.”

The defendants have 60 days to prepare a plan of action for changes they intend to implement in seven areas:


*Teacher development and recruitment, including professional development and competitive pay

*Principal development and recruitment, including professional development and competitive pay

*A finance system that provides adequate resources, especially to at-risk students

*An assessment and accountability system that includes multiple measures of student performance

*Additional support for turning around low-performing schools and districts

*Improved access to high-quality Pre-K

*Alignment of high school to postsecondary and career expectations to ensure student readiness for life after K-12


Not one member of the North Carolina General Assembly attended the hearing, and NC Superintendent Mark Johnson was also notably absent.

You can see the last two pages of the consent order below, and the entire document is linked in the first paragraph above.

Leandro-consent-order-Judge-Lee-1-21-20-pages-33-34

Justin Parmenter: Fearless and Committed Candidate, NCAE Board of Directors Region 3

It was May 16, 2018.  We had waited in line outside the Legislative Building for hours before finally getting inside the House chamber, and I can still feel the goosebumps on my arms as the teacher chants of “Remember, remember, we vote in November!!” were so loud that the Speaker of the House Tim Moore had to stop talking and wait for us to finish.  We were so powerful that day.

May 16, 2018 was my first full day of membership in NCAE.  I had officially joined the day before when it dawned on me after a couple of years of advocacy work that the best path to winning the schools we all deserve was to be organized and strategic on a large scale–to be a part of a team.

I’m very excited to announce my candidacy for Region 3 Director for the North Carolina Association of Educators.  Please allow me to introduce myself to our members and explain why I feel I deserve your support.

I’m in my 25th year as an English teacher and have been in North Carolina since 2002, having started at James Martin Middle School that year.  Since 2006, I’ve been teaching 7th grade Language Arts at Waddell Academy, a Charlotte Mecklenburg magnet school.

In 2016, I got a fellowship with Hope Street Group’s North Carolina Teacher Voice Network, an organization that trained teachers on how education policy works in our state and how to have a stronger impact on it.  Through that experience, I learned about the power of writing and speaking up to inform the public about the struggles educators and students face and to pressure decision makers to do better. I started showing up regularly at Board of Education meetings and speaking on issues that were important to me and my students like increasing support for our immigrant students and approaching the school district’s equity issues with a sense of urgency.

That work also connected me with some incredible education advocates from all over the state, and I found myself on the Advisory Board of Red4EdNC, an organization of deeply engaged educators that works tirelessly on improving conditions for our public schools.  I began to learn that waiting for our policy makers to do the right thing was foolish, and that the change was going to have to come from the bottom up.

In May of 2018, as multiple schools districts began to close ahead of the Rally for Respect, it became clear to me that NCAE had real power in North Carolina and offered the best avenue to making those changes a reality.  I decided I wanted to be a part of the team.

In 2019, I was present at the NCAE Convention as a Charlotte Mecklenburg Association of Educators delegate when our members voted overwhelmingly to hold the May 1 Day of Action.  The energy when we made that decision and when we felt the love and support of our governor was absolutely amazing.

Having seen the local impact my writing could have on important issues like expanding our education budget and bringing trauma awareness to our schools, I joined the May 1 Communications team to help prepare for the rally.  My goal was to bring the struggles educators and our public school families face into the public view and push back against the lies coming out of the General Assembly. 

I laid out our five Day of Action demands for EdNC and the Washington Post and drew the attention of the most powerful politician in North Carolina, Senator Phil Berger, as you can see below:

For the past few months I’ve been using my website Notes from the Chalkboard to report on the Istation controversy and make sure folks are aware of Superintendent Mark Johnson’s shady dealings in awarding Istation a multimillion dollar contract against the advice of actual educators.  Recently, I broke the related story of the Department of Public Instruction’s alleged spying on a retired director’s personal text messages, and I’m organizing pressure on DPI to release relevant information so the people responsible for this unethical behavior can be held accountable.

My work on Istation earned me legal threats in the form of a Cease and Desist notice from the corporation’s attorneys which is now displayed proudly with my other certificates, diplomas and awards, a reminder to be fearless and committed.  

This school year I’ve committed to getting more involved with my local, attending CMAE meetings and serving on CMAE’s Government Relations Committee, helping conduct interviews with candidates for office to determine endorsements.  

It’s important for me to acknowledge that, even though I am not new to organizing or education advocacy, I am still relatively new to NCAE.  My biggest area for growth is in continuing to build relationships in all of Region 3 (a region including Anson, Cabarrus, Gaston, Kannapolis, Lincoln, Charlotte/Mecklenburg, Montgomery, Mooresville City, Rowan, Stanly, and Union Counties).  I am deeply committed to doing just that.  

On the other hand, I will bring a fresh perspective and new energy to the work.  I believe that the key to educators in Region 3 being effectively organized comes down to detailed policy knowledge paired with strong and consistent communication.  As Region 3 Director, I will keep close tabs on policy issues that impact all of our member counties (not just Mecklenburg County) and provide regular updates for members on specific opportunities to win improvements for our public schools at both the local and state levels

Together we will build all of Region 3 into a force to be reckoned with.

Things are slowly improving in North Carolina, but there is so much left to do, and 2020 is going to be a really critical year.  

Please consider giving me the opportunity to serve our organization as Director for Region 3 and encouraging others to do the same.

If you’d like to help me get a few campaign materials together, I’ve set up a GoFundMe page here:

Justin Parmenter NCAE Region 3 GoFundMe

Thank you,

Justin Parmenter
Charlotte, NC

NC Superintendent Mark Johnson mocks improper surveillance accusations with references to ninjas and “DPI Spy Squad”

In a Friday morning radio interview, State Superintendent Mark Johnson mocked allegations that someone at the Department of Public Instruction improperly monitored the personal text messages of former K-3 Literacy Director Carolyn Guthrie.

A screenshot of a text message sent by Guthrie is at the center of a months-long controversy over North Carolina’s K-3 reading assessment. The allegations hold that Guthrie neglected to unsync text message forwarding on her DPI-issued Apple laptop when she retired in September 2017 and that someone at DPI intercepted a text message she sent in January 2019. That text message was used by Johnson as grounds for cancelling a multimillion-dollar procurement process.

Kathryn-Johnston-Affidavit-Text-Message

In the interview, Johnson mockingly referred to “my elite squad of ninjas” and “my DPI Spy Team” before claiming the accusations were nothing more than “the media and the bureaucracy just trying to throw anything they can at me and hoping it sticks.”

Dozens of people have filed public records requests this week for electronic device inventory logs which could help clarify who had Guthrie’s laptop after she retired.

You can hear Johnson’s comments below:


Let’s get to the bottom of the Department of Public Instruction’s Spygate

Last night I published a story about allegations that the Department of Public Instruction spied on the personal text messages of former K-3 Literacy Director Carolyn Guthrie for more than 16 months after her September 2017 retirement from the department.

Screenshots of a text message between Guthrie and another retired DPI employee mysteriously appeared in Superintendent Mark Johnson’s denial of a protest of his contract award to Istation and later in a sworn affidavit by one of Johnson’s deputies.

Kathryn-Johnston-Affidavit-Text-Message

According to the allegations, when Carolyn Guthrie retired, she neglected to log out of Text Message Forwarding on her DPI-issued Apple laptop. The laptop continued to have access to text messages sent from and received on Guthrie’s personal iPhone from her September 2017 retirement until at least January 8, 2019 when the text message was intercepted.

On Wednesday evening, DPI Communications Director Graham Wilson told WRAL, “”We do not know where the text message came from. We are conducting an investigation to try to find out.”

Considering DPI has had that text message for about a year, I’m a little skeptical that getting to the bottom of Spygate is all of a sudden a huge priority. In order to help DPI in its investigation, I have filed the following public records request for electronic device inventory numbers for people who worked for DPI’s K-3 Literacy Department during the months in question (it seems unlikely devices would have been reassigned outside that department):

Dear Mr. Wilson,

Under North Carolina Public Records Law, G.S. §132-1, I am requesting an opportunity to inspect or obtain copies of the following records:

Fixed asset inventory numbers for any electronic devices assigned by the Department of Public Instruction (including but not limited to MacBook Air laptops, MacBook Pro laptops, iPads, and iMac desktop computers) between August 31, 2017 and March 31, 2019 to the following individuals:

Carolyn Guthrie
Karla Casteen
Pam Shue
Mary Hutchings
Tara Galloway
Paul Schmidt

And any or all other employees of the DPI K-3 Literacy Department during that date range.

As you know, the law requires that you respond to and fulfill this request “as promptly as possible.” If you expect a significant delay in responding to and fulfilling this request, please contact me with information about when I might expect copies or the ability to inspect the requested records.

If you deny any or all of this request, please cite each specific exemption you feel justifies the refusal to release the information and notify me of the appeal procedures available to me under the law. 

Thanks in advance for your attention to this matter.

Sincerely,

Justin Parmenter

Snooping on the personal communications of a retired employee is a grossly unethical and possibly criminal action. It would be naive to trust that a Department of Public Instruction that would take a personal text message, not question where it came from, and use it to cancel a multimillion dollar reading assessment procurement will now do its due diligence in finding the person or people responsible.

If you’d like to aid in the investigation, you can submit your own public records request for the inventory numbers at the link below:

NC DPI Public Records Request Form

Explosive new Istation allegation: Department of Public Instruction spied on retired director

Explosive new allegations were revealed by Amplify’s attorney at this week’s hearing on the Istation contract: A text message at the center of the months-long controversy was intercepted by DPI staff who used the laptop of the former Director of K-3 Literacy to monitor her personal communications for more than a year after her retirement.  

Carolyn Guthrie served as K-3 Literacy Director from December 2012 to September 2017, working the last several months of her tenure under Johnson.  Guthrie had her DPI-issued laptop synced with her personal cell phone so she could read text messages on her computer, and when she retired she apparently neglected to unsync the phone before turning her laptop in to IT.  As with any such organization, the Department of Public Instruction has a policy that devices of departing employees must be wiped clean. DPI reportedly did not follow that policy with Carolyn Guthrie’s laptop in September of 2017.

On January 8, 2019, Superintendent Mark Johnson called a meeting with the evaluation committee which was working on a recommendation for a K-3 reading assessment.  Johnson had spent a month digesting a proposal made by the team in early December that ranked Amplify Education’s mClass product an overwhelming first.

At the meeting, Johnson commented about the importance of freeing up more time for teachers to teach and the need to provide them with the right tools.  The superintendent then asked the 10 voting members present to vote for a second time and stepped out of the room “to maintain integrity of the process.”  

After the superintendent exited the room, team members wrote their choices on sticky notes, and the project manager tallied the results.  Amplify again easily came out on top, with six people recommending negotiations proceed with Amplify only, three with Istation only, and one voting that negotiations continue with both companies. 

RFP-meeting-January-8-with-Mark-Johnson

Here’s where the text message comes in.  Later the same day, a text message conversation occurred between Carolyn Guthrie and another former DPI employee occurred, apparently based on information provided by a member of the evaluation committee who was present at the meeting with Mark Johnson.

Below is a transcript of that conversation:

Well, just got off another call with AW 1 hour 45 minutes all about RFP.  What a mess!

Geez!  What is going on?

MJ came into their voting meeting today to basically (without coming directly out and specifying) tell them how to vote!  However the vote did not go his way so it will be interesting to see how he gets his way on this.

OMG!  I know they were shocked!

Yep, she said they walked out of the building and several people said what just happened?

Someone, AW should have recorded it on her phone!

She thought about it, but her phone was lying on the table in front of everyone

Oh yeah, that would have been tough…who else was in the room?  Have they named a replacement for Amy J?

RB. She and RB and Cindy Dewey and Lynne Loeser and Kristy Day and Susan Laney voted for children.  Pam, Chloe and one of Mark’s staff voted for helping teachers. She said he talked about helping teachers and never once mentioned children and saving the teachers time.  

Ass

The sad thing is, he may win his next race because he will talk about how he helped teachers!

Well that’s why he’s pushing this.  Children can’t VOTE so we appease lazy ass teachers.

Exactly!

Two months after this meeting, Johnson had his General Counsel inform the team that the procurement process would be cancelled due to an unspecified confidentiality breach and the team’s failure to achieve unanimous consensus.  Johnson then assembled a new, smaller evaluation committee which included his close advisors but was almost entirely devoid of educators or subject matter experts with relevant experience.  The new committee recommended Istation instead of mClass, and in June 2019 Johnson awarded Istation the contract.

The existence of the text message wasn’t made public until Superintendent Johnson issued his official response denying Amplify’s protest of the contract award at the end of July 2019.  In the response, Johnson said “a whistleblower provided evidence of a text message discussion detailing how committee members had voted…” and he framed this breach of confidentiality as part of his grounds for cancelling the procurement process.  

In the supporting Exhibits for Amplify Protest Decision, this redacted screenshot version of the text message was provided:

The next major development around the text message occurred in October of 2019, when Mark Johnson’s Deputy Superintendent for Operations Kathryn Johnston filed a sworn affidavit as a part of the ongoing review of the procurement process by the Department of Information Technology.  In the affidavit, Johnston revealed the identity of the individual who had leaked details of the January 8 2019 meeting as Abbey Whitford, a K-3 literacy consultant who had served on the evaluation committee, and the individuals communicating in the text message as Carolyn Guthrie and another former DPI literacy consultant, Anne Evans.  

An unredacted screenshot of the text message appeared in Johnston’s affidavit:

Kathryn-Johnston-Affidavit-Text-Message

This time Guthrie’s inbox is visible, and the screenshot displays several days of messages from January 2019, presumably from friends and family.  

The lone media report about the October affidavit repeated Mark Johnson’s July language and again referred to the text message as having been provided by “a whistleblower,” but it’s interesting to note that Kathryn Johnston’s affidavit, made under oath, does not include this language.  Rather, Johnston simply says that she has been made aware of the text message:

According to the allegations, here’s how the Department of Public Instruction really got its hands on the personal text message between two former employees:

Guthrie had Text Message Forwarding set up on her DPI-issued Apple laptop, enabling her to read and write iMessages from her personal iPhone on the computer.  When she retired in 2017 and turned the computer back in to DPI’s IT department, she forgot to log out of the feature.  

At the time of Guthrie’s departure, her laptop should have been completely purged and refreshed to prepare it for the next user as per usual procedure.  DPI allegedly neglected to follow that policy, and for at least 16 months after her retirement, unknown individuals at the Department of Public Instruction had access to Carolyn Guthrie’s personal text message communications.  

It’s impossible to say how much spying occurred during this time.  However, the screenshot–and lack of explanation for how DPI came to have Guthrie’s personal text message–lends credence to the allegation that Guthrie’s communication was being actively monitored.

If individuals at DPI were in fact intercepting the text messages of a former employee, it will be interesting to see what laws may apply to this activity.  

North Carolina’s statute on interception of electronic communication, § 15A-287, is a “one party consent” law.  It states that, without the consent of at least one person involved in the communication, it is a Class H felony if a person “Willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication.”  

Note that § 15A-287 ends with the following:

Any public officer who shall violate subsection (a) or (d) of this section or who shall knowingly violate subsection (e) of this section shall be removed from any public office he may hold and shall thereafter be ineligible to hold any public office, whether elective or appointed. 

In the event that this alleged spying does not fall under North Carolina wiretapping law, hopefully we can at least all agree that it’s incredibly unethical and shameful to knowingly monitor personal communications of former employees.  If someone at DPI was simply negligent and forgot to wipe the laptop clean, the moment it was discovered that Carolyn Guthrie’s personal text messages were still syncing to the device, it should have been purged and she should have been notified.  

Instead, the text message at the center of the Istation controversy was allegedly intercepted by someone in the department and provided to Superintendent Mark Johnson who then used it as a reason for cancelling the K-3 reading assessment procurement process at the very moment when it was going overwhelmingly in Amplify’s favor.

Regardless of whether Johnson was personally involved in conducting surveillance on a former employee, he is ultimately responsible for what happens at the Department of Public Instruction.

Department of Information Technology threatens to block Mark Johnson’s emergency Istation purchase

In a tersely worded memo sent to the Department of Public Instruction today, NC Department of Information Technology Chief Procurement Officer Patti Bowers warned that the state’s Chief Information Officer could exercise his statutory authority to “cancel or suspend any information technology procurement that occurs without the State CIO’s approval.”

The memo referred to Superintendent Mark Johnson’s $928,570 “emergency purchase” of the controversial online reading assessment Istation made late Tuesday night.

Emergency purchases require authorization of the CIO with few exceptions. One of those exceptions is if they “must be made outside normal business hours.”

In the memo, DIT noted that “If every contract signed after business hours constituted an emergency, the term would be rendered meaningless.”

Johnson has until 10 AM on Tuesday, January 14 to provide satisfactory responses to the following questions. If he fails to respond, or if the responses provided are not satisfactory, it appears likely the state CIO could well intervene and cancel the Istation purchase:

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. What are the 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

You can read the memo in its entirety below:

NCDIT-Emergency-Purchase-response-1.10.2020