BEFORE THE MARYLAND STATE BOARD OF EDUCATION JANIS SARTUCCI, ET AL. Appellants v.

MONTGOMERY COUNTY BOARD OF EDUCATION Respondent

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COUNTY BOARD MEMORANDUM REPLY TO APPELLANTS' OPPOSITION TO MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY AFFIRMANCE As requested by letter dated March 18,2013, the Board of Education of Montgomery County ("County Board") submits the following in reply to Appellants' Opposition to the County Board's Motion to Dismiss' or, alternatively, Motion for Summary Affirmance. Appellants contend that the County Board has "offered nothing to show that the MEEC 201214 contract covers the Local Board's December 11, 2012, resolution to purchase 2,000 promethean brand interactive white boards." Opposition, p. 1. First, Appellants have the burden of production; that is, Appellants bear the burden of producing factual evidence to support their conclusion that the MEEC 2012-14 contract does not cover Promethean boards. The burden is not on the Appellee to prove that the MEEC contract covers the purchase authorized by the County Board on December 11,2012. "It is a

general rule that in the absence of evidence to the contrary, administrative officers will be presumed to have properly performed their duties and to have acted regularly and in a lawful

'Based on lack of standing and failure to provide any facts in support of their conc1usory allegations that the MEEC contract does not cover the purchase of bulk quantities of Promethean products or is otherwise illegal and/or unenforceable.

manner." Johnstown Coal & Coke Co. v. Dishong, 198 Md. 467, 474,84 A.2d 847 (1951). Appellants' January 10,2013, letter of appeal contained no evidence to support their conclusion that the MEEC contract does not cover Promethean boards, much less evidence sufficient to overcome the presumption that the action of the County Board in approving the purchase was a lawful one. In their March 13,2013, Opposition, Appellants seem to recognize their utter lack of any factual support for their appeal and attempt to remedy that critical failing with a statement they attribute to the University of Baltimore's Director of Procurement. statement is not under oath and, in fact, is not even signed by the alleged author of the statement. There is no evidence, other than Appellants' unsupported assertion, that such a statement was made or the specific query or queries to which the Director was responding. The assertion, on such a critical point, is wholly insufficient to overcome the presumption that the action of the County Board was a lawful one. Second, Appellants are simply wrong as a factual matter. One or more representatives from Montgomery County Public Schools ("MCPS") were members of the committee that developed the specifications for the RFP. Exhibit A, attached hereto. One of the stipulations in the RFP was that the resulting contract would be an indefinite quantity contract. Id. One or more representatives from MCPS were on the committee that evaluated the 41 proposals received in response to the solicitation. Exhibit A, p. 2 of Attachment B. Contrary to Appellants' unsupported assertions that "Promethean products were not included in the MEEC 2012-14 contract.=' the response to the RFP specifically includes "Promethean" as one of the The

Contained in their January 10, 2013, letter of appeal on page 1 ("Promethean products were not specifically included in the MEEC 2012-14 contract") and repeated in their March 13,2013, Opposition on page 2 ("Promethean products were not included in the MEEC 2012-14 contract").

peripherals offered to MEEC participants in Group 6. Exhibit B, p. 127, attached hereto. Appellants' snide comment that the "Local Board imagines that the public can be fooled into believing that a contract exists, when in fact, none exists," is unwarranted and, again, factually incorrect. Opposition, p. 2. Appellants say that "[a] contract is a legally binding document that can be produced, read and signed by the parties" and that, "[i]n this case, a Local Board contract [cannot] be read and reviewed by the public .... " Id. Appellants' statements completely ignore the statute.' that explicitly authorizes county boards of education in Maryland to purchase off contracts awarded by other public agencies or by intergovernmental purchasing organizations, such as the MEEC contract. As noted in the County Board's memorandum submitted in response to this appeal and in support of the County Board's Motion to Dismiss or, in the alternative, Motion for Summary Affirmance, at page 4, the contract was awarded by the University System of Maryland Board of Regents. The contract that Appellants contend does not exist is attached hereto as Exhibit C. In conclusion, assuming arguendo, that either there is no contract, as Appellants contend, or there is no MEEC contract from which the authorized Promethean board purchase can be made, as Appellants contend, then staff would be forced to return the County Board with an amendment so that the resolution authorizes the purchase from a viable contract, as it did when the school system was unable to complete the purchase under Maryland contract 050B7800023 before it expired. See, County Board Memorandum, Exhibit 1, submitted previously. Such a circumstance perhaps would make the County Board's action an ineffective

3 This provision of law, 5-112(a)(3) of the Education Article, was noted in the County Board's memorandum in response to the letter of appeal and in support of the County Board's Motion to Dismiss or, In the Alternative, Motion for Summary AffIrmance. Memorandum, p. 4.

one because the purchase could not be made, but it still would not make the County Board's action an illegal one. This appeal should be dismissed for lack of standing and failure to allege facts to support the conclusory allegations in the appeal andlor failure to allege facts upon which the requested relief could or should be granted. In the alternative, the County Board's decision should be summarily affirmed.

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(__.__-1Wiifh S. Bresler /Carney, Kelehan, Bresler, Bennett, & Scherr, LLP 10715 Charter Drive, Suite 200 Columbia, Maryland 20144 Attorneys for the Board of Education of Montgomery County
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CERTIFICATE OF SERVICE

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dith S. Bresler