Public Comment on Board Investigation at the Montclair Township Council Meeting

Ira Shor
Ira Shor

Members of the Montclair Board of Education and attorney Mark Tabakin, who has been investigating the leak of the planned assessments for students in the Montclair school district, met with the Montclair Township Council on December 10 in a closed session. The meeting prompted local education activists to address the council in the public comment section of the council meeting, in which many of them accused the school board of issuing subpoenas to residents opposed to the assessments to squelch dissent.

Resident Luis Delgado cited the debate over the reforms that has caused so much controversy over the past year and how it had been healthy for the township, but said that recent reports of the board’s investigation left him concerned about a lack of common sense in the direction its investigation is taking.

“It is our right to speak freely, without threat of reprisal,” Delgado said. “While I am not privy to the information that would lead the board attorney to issue the subpoenas—nor do I want to be—I believe there exists a possibility that they were simply issued to those who offered a dissenting voice. He hoped that the council would take steps to ensure freedom of expression on local matters.

Resident Dave Herron, another active voice in local education, lamented that the board never took the time to consider whether the assessments were a good or bad idea, accusing the board of looking for a scapegoat among opponents to the tests.  He himself got a request for information about the leak, which he says he doesn’t know about.

“That’s ridiculous, folks, simply ridiculous,” Herron said.  “We go after the ones we think know something, those ones who are active, and [say] ‘Let’s see what they know.'”  Herron said that the council had to take a position on what he believed was the suppression of free speech.

Ira Shor of North Mountain Avenue spoke on behalf of Montclair Cares About Schools, a parents’ group formed to oppose recent reform efforts in the district. While he attacked the school board for suggesting a criminal act in leaking the tests without any evidence and dismissing its subpoenas  as “irresponsible,” he sought to raise attention to the council about the district’s finances and for money wastefully. His complaints about the costs of the investigation—$240 an hour for attorney’s fees—but also about $625,000 bonded for the board in May for “technology improvements,” with only $104,000 for money outlaid for improved wiring in Montclair High School’s computer room.  Shor said he could not get an answer from the school board regarding the remaining $521,000.  He also wanted to know why $4 million left over from the bonding of the Bullock school was not re-invested for capital spending and $2.9 million was bonded by the board with a debt service of twice that amount, and $12.8 million in cash at the end of the year, which could be spent on schoolchildren.  Shor pleaded for the council to use its influence with bonding and through the Board of School Estimate to get more money spent on the students.

“We’re very concerned that the board is wasting our precious tax dollars and not spending it on things that count,” he said.

Mayor Robert Jackson sought to answer the question regarding the Bullock School question, saying that $1.8 million of the money was in cash and used to reduce debt, while the rest was never bonded and thus canceled.

Jeanne LoCicero, deputy legal director of the New Jersey ACLU and a Montclair resident, used the public comment section to brief the council on her representation of “Assessmentgate,” the anonymous critic of the tests. She explained that the ACLU of New Jersey had filed a lawsuit to protect the anonymous commenter’s identity, a move she was disappointed with after having avoided suits in similar cases in other districts.  She cited the board’s attempt to subpoena Barista Kids for the identities of four online critics of the tests, including “Assessmentgate.”

“We became concerned that the first subpoena was not merely misguided, but that the board was casting a wider net in attempting to identify anonymous critics,” she said.  She said that the school board was entitled to investigate the release of its proprietary information, but not without reasonable cause or belief that the anonymous critics it goes after are guilty of wrongdoing.

A temporary restraining order has been issued against the school board to halt the subpoena against “Assessmentgate.”  School board president Robin Kulwin told Barista Kids she was unable to comment on any of what was said in the executive session with the council.

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  1. Congratulations to Steve Maginnis for a good and balanced report. Only 2 points for now:

    1. It is disappointing that this meeting between the Montclair Board of Education and the Town Council was held behind closed doors.

    2. It is even more disappointing that, following this meeting, the members of the Montclair Board of Education continue to hold public office.

  2. Thanks so much to all of those who attended the Council meeting and spoke out about the Board’s unlawful and expensive antics!

    Some additional thoughts:

    As Ms. LoCicero mentioned, when the BOEs of Freehold and Wayne demanded the personal information of online commenters who were critical of them, the ACLU-NJ stepped in and asked that the Boards withdraw their subpoenas. After reviewing the ACLU’s request, both Boards backed down.

    When the ACLU-NJ agreed to represent me, they immediately contacted the Montclair BOE’s retained attorney and let him know that I was not involved in the October computer security breach and assessment test leak. They also requested that the BOE’s subpoena, which was authorized by BOE president Robin Kulwin, be withdrawn.

    The BOE’s attorney, following the directives of Kulwin and the BOE, never responded to the ACLU’s letter. The ACLU was then forced to protect my interests in court.

    The legal bill for the BOE’s mission to harass/intimidate/silence all voices that are critical of their actions/policies will be vast. The invoice will include:

    – the cost of the month long investigation into the security breach, which is still going on and has not yet revealed a culprit
    – costs for serving my subpoena as well as the BOE-authorized subpoenas of online commenters who have been critical of the actions of the Board and their superintendent Penny MacCormack
    – payment for the participation and presence of the Board’s retained attorney at all BOE meetings
    – attorney fees for court appearances

    Money is no object (especially when it’s Montclair taxpayer money) for the BOE’s harassing extralegal pursuits. Mayor Jackson, who has the power to hold the BOE accountable for their actions, needs to do so immediately. Our community can’t afford to have these unethical and reckless individuals running our school district any longer!

  3. And regarding the BOE’s “investigation”, here are some thoughts about it from a leading NJ cyber forensics expert:

    Tino Kyprianou is the owner of Axiana, a company out of Morristown that specializes in cyber forensics. His clients have included law firms, private investigation firms, corporations, and school systems.

    Mr. Kyprianou is a Certified Fraud Examiner with the Association of Fraud Examiners. He’s a member of the American College of Forensic Examiners Institute and the International Society of Forensic Computer Examiners. He’s also a contributor of articles about cyber crime to the New Jersey Law Journal.

    When I shared the scenario of the Montclair School District’s assessment test security breach with him, Mr. Kyprianou made a number of interesting points:

    • The BOE authorized “investigation” SHOULD NOT be handled by BOE IT staff. They don’t have the necessary expertise in cyber forensics to find the culprit, and it would be a conflict of interest for them to investigate a security vulnerability that they could have been responsible for.
    • To truly find the answer(s) of how the breach occurred and who’s to blame, an independent, outside cyber forensics firm would need to be hired.
    • Given the publicly available details about the incident, Mr. Kyprianou said that it would take a qualified cyber forensics expert ***two to three weeks at the most*** to locate the source of the breach.

    On November 1, Mark Tabakin, the retained attorney for the Montclair BOE, said that he would be seeking the help of “information technology forensic experts” in his investigation of the security breach.

    Questions about this investigation:

    1. Are Tabakin’s “experts” employed by Montclair’s Central Office or Tabakin’s law firm?
    2. Did he bring on independent, outside cyber forensics practitioners? If so, what’s the name of the firm that he’s hired, and what are their credentials?
    3. If a firm has been hired, do invoices exist of BOE authorized payments to the firm?

    As is customary for all matters related to Montclair’s BOE, the answers to these questions haven’t been provided. Perhaps a subpoena from the taxpayers of Montclair should be served to Board President Robin Kulwin in order to get the facts.

  4. “Mayor Robert Jackson sought to answer the question regarding the Bullock School question, saying that $1.8 million of the money was in cash and used to reduce debt, while the rest was never bonded and thus canceled.

    I wonder if Mr. Shor will be satisfied with this clear response, or if he will continue to use the statistic in his diatribes.

  5. This for Mayor Robert Jackson, recipient of the Montclair NAACP 2013 Thurgood Marshall Award:

    “The First Amendment serves not only the needs of the polity but also those of the human spirit — a spirit that demands self-expression. Such expression is an integral part of the development of ideas and a sense of identity.” Thurgood Marshall

    And this when considering Principal Earle’s phone call to Scott White:

    “Vigilance is necessary to ensure that public employers do not use authority over employees to silence discourse, not because it hampers public functions but simply because superiors disagree with the content of employees’ speech.” Thurgood Marshall

    Mayor Jackson, you were bestowed the Thurgood Marshall Award. You still have an opportunity to earn it.

  6. Keep fighting amongst yourself as the Montclair schools reputation continues to sink. Latest NJ Magazine rank on the high school, 99 down from 94 and likely to fall out of the top 100 in 2014 yet every year taxes go up.

  7. Lombard said the leak of the tests was a costly breach to the Montclair School District – and to the taxpaying residents.

    “This is the same as if somebody climbed through a wall and stole a bunch of computers,” she said. “This was time and taxpayer dollars that got wasted.” — from the Montclair Times

    So instead of just making sure this doesn’t happen again by doing a better job of securing the tests, let’s waste more taxpayer money by paying lawyers hundreds of thousands of dollars doing police work, if this is about solving a crime.

  8. I want to thank Ira for his questions and Montclair Cares About Schools (MCAS) for their leadership on the important educational issues currently confronting our district.

    Assessmentgate and idratherbeat63 thank you for always raising important questions on this forum.

  9. I am in favor of the common core curriculum, because I believe that it is great to have a uniform set of education standards to establish strong base of knowledge and skills that our kids should have. However, this community is imploding and here are my recommendations to Mayor Jackson and the BOE:

    1. Stop the BOE investigation immediately and pass it onto the MPD and the DA. The damage is already done, and the financial resources should be directed at securing computer networks while allowing law enforcement to investigate and prosecute any criminal wrong doing
    2. Immediately divert capital from this legal investigation to upgrading network security protocols
    3. Develop strict protocols for accessing, downloading and securing assessments ( should always know who access and download
    4. Restore the credibility of the BoE, especially after this “freedom of speech” fiasco; the fact that the BoE hired its own attorney to conduct an “independent” investigation that has turned into a total embarrassment for the BoE and the town is regrettable
    5. Fire the BoE attorney, as the BoE seem to have been given questionable advice
    6. Just Stop the Bleeding

  10. Nomo ignores the full exchange last night at the Board between me and the honorable Mayor. After Mayor said $1.8mil was cash on hand from Bullock residue was used to reduce town debt, I reminded him that the $1.8mil was applied to town debt only this fall while the Board bond for $2.9mil was authorized last May, meaning that the Board had that $1.8mil on hand last Spring to avoid encumbering MTC with more debt service but did not, which the Mayor assented to. The Board also had $12.8mil cash on hand as its latest huge surplus last Jun 30, which it once again refused to spend on our children’s educational needs. The Board is now spending heavily investigating the assessment leak for which it has never offered any evidence that a criminal act occurred. The Board should hand over this matter immediately to the Essex County District Attorney which is the proper agency to uncover whatever happened.

  11. hey assessmentgate,

    All of those invoices can be requested via OPRA- also e-mails and other documents can be requested. I grew up for a time in Montclair and now live in Bloomfield- anything I can do to help- in terms of OPRA- just let me know.

    The residents of Montclair really need to know what this is costing them in terms of $$$$ as well as the tactics being used.

  12. @irashor Is the Montclair Board of Education (MBoE) investigating a crime or not?

    This has proven to be a tricky point for the MBoE. In its November 1, 2013, the MBoE was careful not to call this a criminal investigation (or the investigation of a crime). Rather, they called it an investigation into “an unauthorized release of proprietary/confidential District tests/assessments by District staff.”

    Why did the MBoE use this language? Because NJSA 18A:6-19&20 only empowers them to hold an investigation when there is a “dispute” within the school district related to school law. Legally, the MBoE (any NJ BoE) cannot and may not conduct a criminal investigation. (Indeed, it would not only be explicitly illegal, but it may also be viewed as an obstruction of justice.)

    However, the MBoE, the School Superintendent and Mayor Jackson have issued statements giving the impression, or stating explicitly, that this is the investigation of a crime. The most recent, and most explicit, came from the Vice-President of the MBoE, Shelly Lombard, who released a statement to the press stating: “It’s our responsibility to investigate this because this is a theft — just as if somebody broke into our schools and stole hundreds of thousands of dollars worth of computer equipment.”

    So, if what Shelly Lombard states is what the MBoE believes (and I suppose she stated it because it is what they believe), then they are completely wrong in pursuing a criminal investigation disguised under NJSA 18:A6-19&20. And if this is not a criminal investigation, they are still wrong in opening an investigation for which no dispute regarding school law exists. (Indeed the litany of wrongfulness of this investigation from day 1 is almost beyond measure. Read again the ACLU brief for the December 5 hearing.)

    But the MBoE, the Mayor and Superintendent MacCormack have been clever. They have stirred the town into believing that some goodly District employee (or goodly neighbor) is really a viciously bad person who sneaks around Central Services at night and steals $500,000 assessments and puts them on some obscure website in Russia for all the world to see along with tens or hundreds (who knows how many) of other Montclair School District documents (that continue to appear on the website).

    So when you see people posting here or on other sites defending/excusing the antics of the MBoE, they are constantly infuriated about a “crime” and a “thief” and the need for this “investigation” by the MBoE to catch a “culprit.” They cannot understand that we have no evidence of a “thief” or “culprit” or even of a “crime.” Still, it is understandable poorly informed people are so confused.

    So why does the MBoE not stop this “fear investigation” immediately as you suggest above or as others (even their supporters) have pleaded for them to do? They must have some advantage to conducting this investigation. There must be some benefit to the interests of the MBoE for this witch hunt. What might lead people to go so wrong?

    Perhaps someone does know what went wrong. Just perhaps. This investigation would allow that person (or persons) to correct the negligence or error or even deliberately wrong action. It would also provide time to wipe away any traces of where exactly and how exactly things went wrong. Then, after a certain amount of time and an exorbitant amount of money, the MBoE could quietly close the investigation with an internal report saying something like “we didn’t get the cooperation we needed” or “the courts were not understanding of us.”

    Of course, if they turn this over to legitimate and competent authorities to investigate, they run the risk that what went wrong will become known and, worse, public.

    In addition, the resolution of November 1 authorizes, in addition to investigating “an unauthorized release of proprietary/confidential District tests/assessments by District staff,” “investigating other incidents of conduct contrary to the Board’s best interest, as may be disclosed by further investigation.” So, the MBoE has not only illegally granted itself the power to investigate the leaked assessments, but it also uses this same investigation as a ruse to after any conduct it deems contrary to its own best interests. In other words, already on the day after Halloween, the Board saw an opportunity in this investigation to use this as a mantle for other purposes.

    Note that all the people we know of issued subpoena’s are people who have opposed the MBoE. Note that no one we know of who supported the MBoE or was silent was issued a subpoena. (I will believe that Shelly Lombard was issued a subpoena only upon seeing it or being told by a reliable source. I will not take her word for it.) What relates to all of what the MBoE does in this investigation is fear.

    My impression is that there is little chance that your request, or the pleas from the MBoE supporters, to stop this unlawful investigation will be heeded. They have too much invested in the investigation (the least of which is taxpayer’s dollars as far as they are concerned), and too many advantages to lose by stopping.

  13. What then happens to the person who “leaked” (is that a good term?) this info and invalidated the test, costing, according to the BOE, money?

    Do they get off?

    Surely we can agree that something was posted that should not have- and depending on who it was, may have also been a breach of his or her work contract. We can also agree that posting this info- regardless of whether or not you like the Core, caused a harm.

    So then what becomes (not of the broken hearted, but) of this rascal? Do they get to laugh at all that they caused? All these subpoenas, caused by ME!!!!!???!!!!

    I’m confused.

  14. prof, I agree that the release caused harm to the district’s plans and it would be fair to say the assessments were “stolen” from the district. But “leaked” suggests that someone actively took those specific docs for the purpose of making them public, and the circumstances still make that assertion highly questionable.

    I would also say that “posted” is questionable. If I wanted the world to see something I would “post” it on my blog, or on FB, or if I wanted to remain anonymous, I would choose to post the info on one of the many websites that allow free access to all. I would certainly not “post” it to a website that requires people to provide a credit card up front and pay for it. In light of the fact that gobookee does not provide for users to “post” things as they wish, it would be highly unlikely that that website would be my choice to widely disseminate information.

  15. @profwilliams Your confusion is precisely what has been created by the same people who created the “fear investigation.” Often I am not so nice to you, I know. But this time you really do express something genuine.

    Certainly something (the assessments) was (were) posted that should not have been posted. I have not seen/heard anyone who disagrees.

    But to go from “something” to “someone/who/they/rascal/Do they just get off?” is not so evident in this electronic age. There is no evidence in the public domain that “someone” did this. does not make its money by waiting for some nice person like you or a member of the Montclair District staff to be kind enough to post a document on their site with which they can then scam other people.

    Also consider the real problem here. Because the MBoE was “talked into” this investigation by its lawyer, who obviously has a huge financial interest in it, they have no way to subpoena an Internet company located outside of the state of New Jersey. But putting this investigation with an unqualified and incompetent school board lawyer, they have limited their ability to find the truth.

    The question is, did they want to limit that ability from the start? Did they want to prevent a real investigation from taking place? Did they want to protect someone, perhaps someone on whom they need to rely for all their understanding of education? And did they think they could gain something from this investigation beyond the stated purpose of the investigation? For example, silencing any critical discussion on the direction of education in Montclair?

    It could well be that someone or some group is laughing at you and other confused people in town: Perhaps some people who are financially profiting from this investigation or some people who believe they have increased their power over education in Montclair? Just perhaps.

    State Street Pete and others have said it better than I could.

  16. Maybe if the network administrator was based in NJ, the BOE would have a better security plan for its network.

  17. I can believe that we have these folks managing a budget of over $100 million. This is incredible. This is not governance. This is pure politics and cya!! Blows my mind. I do not see the smarts to cut losses; redeploy capital efficiently. Heads buried in the sand.

  18. You do realize it is the same security for the municipal folks?

    And you do realize now that if someone hacked the shared service on municipal property, the municipal government needs to file a report with the MPD?

    I suspect the Mayor & Councilor Hurlock figured this out.

  19. Great question Frank. I don’t know. It may be a matter of what documents were on the particular machine at the time it was compromised.

    I recall someone had mentioned weeks ago in the discussion here that the assessments were held on a server, but if a teacher or other staff member was preparing to give certain assessments and had opened or downloaded the specific assessments they needed on their local computer PC, and that machine was infected, that might explain it.

    That same scenario might also explain why some other random district documents were discovered on gobookee around the same time, but not every document from the server.

    Identifying all the documents that were taken would probably help guide the investigation as to what machine was compromised. If the 14 assessments were for a certain grade, or a certain subject, or written/edited by a certain administrator, that might give a clue as to which machine had the issue. If there were central office documents among the cash taken, then it may well be that a central office machine had the problem. That’s why it’s essential that the investigation be conducted by qualified people outside the district.

  20. This provide the perfect justification (face saver) for the BOE to turn this over to the State or Federal (forget EC). Someone breached the shared server on municipal property, so rather than have duel investigations or jurisdictional issues, give it to the Feds as an interstate wire issue.

  21. Frank, the town may not be concerned about the shared server since it probably has pretty good security protection. However, individual computers throughout the district may not have the same level of security software, or may not have properly updated virus protection or updated operating systems. That would explain the limited number of documents that were compromised.

    Again, this is all just conjecture, but much of this points to an unintentionl release, as opposed to theft.

  22. Sorry Frank, I keep answering your previous points after you’ve posted again.

    I totally agree, this should be a local, state or fed investigation. It’s just ridiculous that this is being done in-house. It’s a complete conflict of interest.

  23. A plausible explanation. Thanks. I believe Township hall still has pc’s on Win XP or its predecessor.
    I think the least we can do is tap into any Federal contacts who may live in town and get their guidance. At the very least, they may already have Google’s PersonalPref cookies in their rolodex.

  24. This Montclair Times letter to the editor regarding the ‘investigation’ raises some interesting questions and is worth quoting in its entirety: After the subpoenas, some questions for the board

    “Our school board’s and superintendent’s astonishing ability to cultivate confusion among the public has reached a new low with their investigation into the so-called leak of assessments.

    But the ACLU’s lawsuit has shed light on their real motives and methods.

    We now know that the board subpoenaed a fellow board member, the only one who openly questions some of the superintendent’s policies, to find out, among other things, who in the community he talks to.

    We also know the board has issued subpoenas to learn the names of people who criticize the board’s and superintendent’s policies on blogs and websites.

    Board members are defending the investigation as necessary because the leak of assessments was tantamount to theft.

    But are district leaders so sure the tests were leaked?

    Among the board’s subpoenas were two to companies affiliated with the Gobookee website, where the assessments were found online.

    A quick search shows that Gobookee is known to scavenge documents and charge for access to them. Other Montclair school documents are also on Gobookee.

    It is possible, maybe even likely, that Gobookee scooped up the assessments without the consent or knowledge of anyone in Montclair.

    District leaders seem aware of this possibility that there was no intentional leak.

    In recent public meetings, Superintendent Penny MacCormack and other administrators have refrained from using the word “leak,” referring instead to the “online publication” or “release” of the assessments.

    But why haven’t the board and MacCormack acknowledged that the assessments might have been scavenged by a scam website, which would bring clarity to the matter?

    Perhaps because that would raise questions about whether the superintendent had sufficiently secured the tests online. Perhaps also because if there was no leak, there could be no investigation and no subpoenas to intimidate critics and stifle public debate about our public schools.”

    Maia Davis

    See more at:

  25. Thank you Maia Davis and thank you lennybrave for reposting this.

    Just so you know, all of this was said here on Baristakids within hours, if not days, of the announcement of this “fear investigation.” Indeed, most of it was even said days before following Mayor Jackson’s regrettable letter to the townspeople.

    Superintendent MacCormack and the MBoE follows the discussion on Baristakids and Patch seemingly more closely than any other reader. So they have known from the beginning that this was wrong, and they have known from the beginning that some people would have the courage to speak up.

    The commentators who support the Superintendent and MBoE so gleefully and glibly here in the past, and now are offering “good advice” to the MBoE to get out of this investigation, are largely the same commentators who ridiculed those who objected to this unlawful investigation from the get go and who provided the only valid arguments.

    Question: Why did Mark Dashfield attend the executive session between the Town Council and the MBoE? If the true reason to hold this as a closed session was for the reasons of privacy and confidentiality and in accordance with the Open Meetings Act, then his presence was unlawful. If Mark Dashfield could attend, who is apparently still not a Montclair resident, then certainly all Montclair residents were equally or more entitled to attend.

    At some point the people who hold public office in Montclair should consider that following the law benefits everyone, themselves included.

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