Will there be 2014 consequences for the BOE's 2013 subpoenas?

For the majority of 2013, the Montclair BOE was on a roll.  But as 2014 unfolds, it’s becoming clear that their confidence and sense of infallibility is waning. 

Superintendent Penny MacCormack’s divisive Strategic Plan was unanimously approved in June.  Her controversial Common Quarterly Assessment tests (CQAs) were hastily assembled over the summer and stealthily scheduled for an October launch.  The Board ended the formal participation of the Montclair Education Association (whose teacher members were viewed as noisy, fault-finding irritants by the BOE) in Board meetings in September.  Concerns and questions from the community about these contentious actions were casually dismissed or simply ignored. 

The Mayor’s silence on the BOE’s provocative behavior signaled local political consent, and NJ DOE Commissioner Christopher Cerf, a MacCormack supporter, also had the Board’s back.  They were free to do whatever they wished with no repercussions - or so they believed. 

When 14 CQAs appeared on rogue website GoBookee.com prior to the first scheduled assessment tests in late October, the Board asked their retained attorney Mark Tabakin to investigate.  While BOE president Robin Kulwin initially stated that it was “highly unlikely” that the tests were hacked by an outsider, Tabakin suspected foul play.  He believed that “someone somewhere hit the send button”, and he issued subpoenas (all authorized by Kulwin) to seek information that would help track down the perpetrators.  These subpoenas just so happened to be served exclusively to the BOE’s most vocal critics in the community. 

Alan Benezra, the district’s former IT administrator, and Joseph Fagliarone, Montclair’s Director of IT, disagreed with Tabakin.  They believed that the CQAs appeared on GoBookee not because of a hack or breach, but because the tests weren’t properly protected on the district’s website and were web scraped by GoBookee.  In their review of the firewall and server logs the day after they learned of the assessment test leak, Benezra and Fagliarone determined that there was no “successful intrusion” into their network. 

If it’s proven that Kulwin and/or other BOE members were told that the CQA uploads weren’t caused by an intentional breach, but they still decided to launch subpoenas in early November as a means of harassing their critics, then they should face legal consequences and also be held personally liable for the six-figure cost of Tabakin’s investigative services. 

2014 may have just started, but we may discover that the aftermath of the Board’s 2013 unlawful subpoena pursuits has yet to begin.