West Virginia’s assistant schools superintendent over testing successfully urged the seller of the SAT test to hire the state Republican Party’s former chairman as a lobbyist.
Assistant Superintendent Jan Barth said Conrad Lucas would, as she put it in an email, “neutralize” a lobbyist for the competing ACT test. This means Barth, who oversees statewide learning standards, in addition to standardized testing, recommended the hiring of a legislative representative for an organization, the College Board, that’s paid roughly $1 million annually by Barth’s agency.
And the College Board might seek to extend that contract in the future.
ACT vs. SAT
Barth — alongside then-state schools superintendent Steve Paine, according to Barth — urged the College Board to hire Lucas after it already won the initial contract from the West Virginia Department of Education to sell the state government the SAT.
In 2018, through that contract, the SAT became the required standardized test for public high school students.
ACT Inc., seller of the ACT test, lost the bidding competition. But it continued afterward to push in the West Virginia Legislature for individual counties to be allowed to replace the SAT with the ACT locally.
Jason Webb, the ACT’s lobbyist at the time, publicly criticized the education department and its selection of the SAT. He did this on Twitter. Barth argued that these tweets were unfair. She took her complaints about Webb to ACT officials and urged the College Board to hire Lucas.
She said she’s never spoken to Webb.
Shortly before the ACT fired Webb last year, Webb filed a federal lawsuit against Barth and Paine. The lawsuit argues that they violated his freedom of speech and interfered with his business.
That lawsuit made public the emails cited in this report, and this report also quotes from testimony Barth and others gave when questioned by Webb’s attorney, J. Zak Ritchie.
In response to Ritchie’s questioning, Barth testified that Paine “frequently” requested that the College Board buy him dinner and drinks. Paine testified to only two dinners and said he didn’t request them.
Paine, in his deposition, denied receiving benefits or gifts of any kind from the College Board — before Ritchie pointed out in Paine’s resume a 2006 or 2007 trip to China the College Board sponsored.
Paine said he represented the College Board on that trip, which occurred when he was state superintendent during an earlier tenure. But he denied any relationship between that and the College Board winning the contract a decade later.
The College Board didn’t respond to specific questions from the Gazette-Mail, such as how much it spent on entertaining Paine or how Lucas came to be hired.
Instead, a spokeswoman wrote in an emailed response that the “College Board is proud to partner with West Virginia to offer the SAT to students across the state, helping to clear a path to college for them” and the “College Board was in compliance with applicable vendor procurement rules in obtaining the state contract.”
Lucas brought on
Lucas, who also did not return requests for comment, chaired the state GOP from about 2012 to 2018, before mounting an unsuccessful congressional run.
Paine’s and Barth’s stories diverge on who — the College Board or Paine — first raised the idea of hiring a new lobbyist. Paine said he believes College Board officials asked for suggestions, so Paine said he recommended Lucas and one or two others.
“He is a lobbyist that I know has excellent connections in the Legislature,” Paine said of Lucas in his deposition, “and that was what the College Board indicated that they really needed.”
Paine said then-state Sen. Paul Hardesty, D-Logan, was another suggestion he made. Hardesty was a prolific lobbyist before becoming a senator, and he is not running for reelection.
“He was still interested in doing some lobbying,” Paine said. “I believe he was preparing to step down as a state senator.”
Hardesty told the Gazette-Mail he is not planning to step down and was not soliciting business while in office, and he said he might not even return to lobbying.
He said the College Board called him at some point, he told them he couldn’t lobby and “they were definitely looking for someone at the Capitol, and I just couldn’t fit that bill for them.”
In Barth’s telling, the first suggestion to hire a lobbyist came from Paine.
“[The College Board] came to us in December  and they asked what they could do to promote their company and their situation,” Barth said. “And Dr. Paine told them that they needed to hire a lobbyist that had access.”
College Board officials, Barth said, were concerned that the Legislature was going to circumvent the fact that they won the testing contract through the official bidding process.
They asked how they could respond, she said. So, according to Barth, Paine suggested hiring a new lobbyist, then Barth asked Paine if he had any in mind, and Paine suggested Lucas.
After that, Barth said, “Dr. Paine was asking me regularly if this was going to be happening.”
In April 2019, a College Board official emailed Barth saying the organization was working on setting up Lucas’ contract.
“Thank you,” Barth replied. “Conrad will neutralize Webb and effectively dispatch him to the curb! Again. The sooner the better!!!”
“It will make all of our lives easier,” Barth wrote. “Especially Dr. Paine’s, knowing Conrad is coming on board to combat Webb.”
Webb’s lawsuit against Barth and Paine, which cites many more arguments and pieces of evidence beyond Lucas’ hiring, continues. Jan Fox, an attorney for Barth and Paine, declined to comment for this report.
Fox has requested that U.S. District Judge John Copenhaver dismiss the case before it goes to trial, arguing that, whatever evidence Webb has, it’s not enough to support his claims for damages.
“Separating the wheat from the considerable amount of chaff, the claims actually brought by [Webb] in his Complaint are subject to summary dismissal,” Fox wrote.
She also wrote that Webb can’t, in effect, sue for damages that the ACT itself allegedly suffered.
The ACT, for its part, decided against continuing its past official protest of the College Board winning the contract. The ACT declined to comment for this report.
Barth, who has not responded to the Gazette-Mail’s requests for comment, testified that she took issue with Webb publicly criticizing the SAT as a Common Core test while lobbying for the ACT. The ACT previously also said its test measured Common Core national learning standards, and it supported their creation.
And — while education leaders might be loath to admit it after Common Core became controversial — West Virginia’s English and math standards are still largely Common Core. And West Virginia needs a test that measures the standards that its students are being taught.
Michael Farrell, chairman of the state Higher Education Policy Commission board, also is representing Paine in the case. Asked about Paine recommending that the College Board hire a lobbyist, Farrell said, “The substantive quality of the College Board test was to Dr. Paine the important issue that the Legislature needed to understand and that was his basis for his advocacy.”