CHARLESTON — Depositions filed in federal court last week revealed the internal drama behind the selection of standardized tests and the rivalry between the former state superintendent of schools and a lobbyist.
It was a rivalry that spilled into social media with attacks on the Department of Education, state education officials allegedly threatening one major testing supplier and even pressuring another testing supplier to hire their own lobbyist to “combat” and “neutralize” the other lobbyist.
The story has almost all the drama of a “House of Cards” episode, but the lawsuit filed by lobbyist Jason Webb against Steve Paine, former state superintendent of schools, and Jan Barth, assistant superintendent for the Division of Teaching and Learning at the Department of Education, showcases the fight between two testing companies to become the state’s new standardized test.
Webb, a registered lobbyist in West Virginia with multiple clients, is the owner of the government affairs firm Capitol Advocates. One of Webb’s clients was ACT, a non-profit that creates standardized tests used for college and career readiness.
Webb filed suit in the U.S. District Court for the Southern District of West Virginia on June 12, 2019, against Paine, who was superintendent from 2017 to 2020, and Barth, who remains at the Department of Education.
In that filing, Webb accused Paine and Barth of using government power to intimidate him from exercising his 1st Amendment right to free speech.
Webb also accused Paine and Barth of threatening ACT over Webb’s public comments, resulting in ACT dropping Webb as a lobbyist one month after Webb filed the lawsuit.
Last week, both parties in the lawsuit completed the discovery process and depositions of witnesses. Attorneys for Webb and Paine/Barth filed motions for summary judgement on Aug. 21.
According to court documents, ACT contracted with Webb to be its lobbyist in West Virginia starting in January 2016. Leading up to the 2017 legislative session and the start of Gov. Jim Justice’s first term, the state was going through an overhaul of education standards after public opinion turned on the concept of Common Core, a set of education standards laying out what students should be learning in English, language arts, literacy and mathematics.
By December 2015, the state Board of Education had repealed the Next Generation Standards, the West Virginia version of Common Core, and replaced them six months later with the West Virginia College and Career Ready Standards. By 2017, the state decided to switch from the Smarter Balanced assessment, which was still aligned with the Next Generation/Common Core standards, and to choose a new standardized test for 11th grade students.
At the time, the state was looking at ACT and SAT, another college entry assessment created by the College Board. But the ACT test was fast receiving support. Justice, during his first State of the State address on Feb. 8, 2017, threw his support behind the ACT test.
“I am going to propose we throw Smarter Balanced in the trash can and we go to ACT testing,” Justice, to much applause, said.
The following week, a member of the state Board of Education tried to do just that, making a motion to approve the ACT test. A commission had earlier recommended replacing Smarter Balanced with ACT testing products. Instead of voting, the Department of Education recommended waiting for the Legislature to pass a bill allowing the use of the ACT.
According to depositions, Webb was working on behalf of ACT to help craft language in a bill that would have allowed the ACT test to be used as a standardized test, as well as a bill to allow ACT to offer an opt-in service that allows student’s information to scholarships and colleges. According to Webb, the Department of Education had drafted the language for both bills.
However, things changed when Paine was selected for a second term as state superintendent of schools on March 23, 2017. Shortly thereafter, the department changed its stance on the student data bill and asked Justice to veto it even though it passed with wide majorities in the House of Delegates and Senate. Webb said he learned about the veto request from Joey Garcia, the former senior counsel for legislation and policy for Justice.
“I said, ‘Is there any issues?’ And (Garcia) said, ‘Yeah, Steve Paine’s been here, and he wants the bill vetoed,’” Webb said during his deposition. “I said, ‘Why?’ (Garcia) said ‘We’ll just work it out in policy or contract.’ I said ‘How did Steve Paine say, I mean, that’s completely opposite to what their general counsel told me directly, that they can’t work it out.’ So what changed was Steve Paine got hired at the Department.”
During Paine’s deposition, he played coy about any alleged role in having the legislation vetoed.
“Did the Department advocate for the governor’s office to veto the bill?” J. Zak Ritchie, Webb’s attorney, asked.
“I don’t recall,” Paine answered.”
Ritchie: “…The governor did veto the bill. You’re aware. Correct?”
Paine: “I am aware of that.”
Ritchie: “Sarah Stewart (government affairs counsel for the Department of Education) wouldn’t have told the Governor to veto a bill without checking to be sure it was okay with you. Right?”
Paine: “That, that would be logically the case, yes…”
Webb claimed that after he contacted the governor’s office and urged them not to veto, Paine made contact with a national lobbyist for ACT and urged him to get Webb under control, a conversation that Paine denies having. Paine also allegedly threatened ACT by saying the department would shut ACT out of contracts. At ACT’s urging, Webb gave the thumbs up for the Governor to veto the bill, believing that the department and ACT could work out the issues in the contract.
The second bill that would have allowed the ACT to be used for testing was changed by the Senate Education Committee to allow for other kinds of tests, including the SAT, to be used by the state. Webb said he warned the governor’s office that the changes to the language in the bill would hurt ACT’s chances of becoming the testing vendor. The bill was signed into law on April 26, 2017.
By May 12, 2017, the Department of Education sought requests for proposals for tests for third to eighth grades and an 11th grade test. During the blackout period after ACT and SAT submitted their proposals, Paine allegedly confronted Webb at a conference in June and told him ACT’s third-to-eighth grade test was “junk.” Paine said he didn’t recall the incident. After rejecting both ACT and SAT’s bids and starting a new RFP process, SAT was elected by the department for all standardized testing despite a formal protest of the bidding process by ACT.
During the 2018 legislative session, the Senate was looking at a bill that would have allowed counties to choose either the SAT or ACT. The bill was pulled from the agenda after the Department promised to allow counties to choose their own tests the following school year.
From 2018 to 2019, Webb used his personal Twitter account to criticize the Department of Education for using the SAT test, which he called a “Common Core” test, for claims that they would improve student test scores, for celebrating the graduation rate despite the number of students in college remedial classes and accusing new state Board of Education members of being Common Core supporters.
Barth, according to her deposition, was asked to collect Webb’s tweets by Paine. Since Barth did not have a Twitter account, she asked Department of Education staff to compile the tweets to send to Paine.
“I then was asked to have someone gather, asked to gather them and I didn’t feel like opening an account…we gathered them up and I took a hard copy down to (Paine) shortly after he requested it,” Barth said. “(Paine) wasn’t happy about it and he just thought some of it was inflammatory and that it was not supportive of the Department of Education and there was a negative energy there that I think was established early on this the bid process.”
The feud between Paine and Webb results in Paine allegedly reaching out several times by phone, email, text message and in person to ACT executives complaining about Webb and threatening future contracts if Webb was not controlled.
Martin Roorda, the former CEO of ACT, detailed a phone conversation in March 2019 with Paine to a colleague. Roorda said Paine only talked about Webb, accusing the lobbyist of spreading rumors that Paine received kickbacks from SAT and saying Webb had a “bad reputation.”
“(Paine) also said that WV may be doing business with ACT in the future and indicated that the issue with Webb could have implications,” Roorda wrote. “(Paine’s) counsel said that regulations for purchase practicing could affect the way they chose vendors and that Jason Webb’s behavior may come close to actual slander. I thought this was a sort of a threat. And I don’t like it. I even think such a threat is illegal practice.”
“We were moving in a direction collaboratively and cooperatively with ACT nationally, and I wanted to make sure Mr. Roorda knew we are committed to doing that and working with you, but it’s getting pretty difficult in the state because we have a lobbyist that is, the best way to say it, is creating some negative information that detracts from the collaborative effort that we have and where we’re moving forward with this thing,” Paine said when asked by Ritchie about the Roorda phone call. “It’s really distracting a lot of people.”
In another email, Barth encouraged SAT to hire a lobbyist of its own to counteract Webb’s lobbying efforts at the Legislature. The College Board hired Conrad Lucas, the former chairman of the West Virginia Republican Party, to be its lobbyist.
“Thank you! Conrad will neutralize Webb and effectively dispatch him to the curb,” Barth wrote to Greg Walker, vice president of the College Board’s Midwestern Regional Office. “The sooner the better!”
“It was frustrating to have to deal with the different types of issues that we were dealing with the Common Core and the e-mails or the tweets that were being put out, so we were interested in having someone…who had the same kind of access that Jason had to be able to go in there and explain what we were doing,” Barth said when asked about the email in her deposition.
“…By dispatching him to the curb, I’m actually talking about the fact that he had access with most of the people that were writing language for the laws, that were looking for things to do and we wanted to have another voice in there,” Barth continued.
In their motion for summary judgement to dismiss Webb’s case, attorneys for Paine and Barth argue that Webb has no standing to pursue claims on behalf of ACT regarding the department choosing SAT. In regard to Webb’s claims of suppression of his 1st Amendment rights, Paine and Barth point out that officials at ACT never asked Webb to delete or tone down his tweets.
“ACT’s dispute, if it has one, is not (Webb’s) to prosecute,” wrote Jan Fox, attorney for Paine and Barth. “(Webb) simply has no standing to pursue any arguments ACT may have regarding its nonselection as a test provider in West Virginia…the only relevant facts surrounding this case are (Webb’s) issue with (Paine and Barth’s) complaints to ACT about his ‘tweets.’ ACT, however, never asked (Webb) to stop tweeting, delete them or tone them down.”