Friday, October 2, 2009

Collection of articles about ProCert and Howard Stephenson's drive to favor them with state education contracts

All underlining of sections of the articles was done by me.

1. The initial article bringing the issue to light. Excellent interviews and historical context. Top notch reporting by Robert Gehrke.
Did Utah senator's advocacy go too far?
Textbook case: Stephenson leaned on educators on behalf of an Orem company.

By Robert Gehrke

The Salt Lake Tribune
Updated: 11/29/2008 10:08:40 PM MST

It was past midnight and Sen. Howard Stephenson was livid.

Hammering out an early-morning e-mail to Utah education officials, the Draper Republican lashed out at "subversives" in the department for their shabby treatment of ProCert Labs, an Orem-based company whose services Stephenson had been advocating for years.

In a series of heated e-mails and phone calls, Stephenson, who heads the committee that sets the public education budget, threatened to withhold support from the Utah Office of Education, suggested it be downsized and have work outsourced and that the malcontents mistreating ProCert could be fired.

"This persistent, long-term and ongoing defiance on the part of [the two employees] is unacceptable and, in my opinion, is justification for termination of employment," Stephenson wrote.

The e-mail, and other angry phone calls and missives from Stephenson on ProCert's behalf, stunned state Superintendent Patti Harrington.

"When it gets to be a strained relationship around one vendor and irate e-mails around one vendor, that does get problematic, and it feels like we're being bullied," Harrington said. "I don't think that's an appropriate type of pressure to be put on a state agency."

But it was just one example of several since 2007 in which Stephenson had waded into the minutiae of contracts and vendors at the state education office, attempting to shape education programs created by the Legislature and the lucrative contracts
to implement them.

"I'm just trying to get the 21st-century tools into the hands of our teachers and I don't care who gets the bid," said Stephenson, who also is president of the Utah Taxpayers Association and a registered lobbyist. "When you're as committed to saving money, precious taxpayer resources, as I am, that's why I want to make sure we get the best bang for the buck."

He said his watchdogging stopped education officials from diverting $30 million meant for technology improvements into salaries and pushed stubborn bureaucrats into adopting new technology and upgrading Utah's lagging rate of computers in classrooms.

Records show that, on several occasions in the past two years Stephenson made detailed recommendations and suggested specific changes to criteria for picking companies to receive state funds, including revisions to a program to provide laptop computers to preschoolers.

That degree of legislative involvement is rare. Typically, lawmakers set policy, allocate funds and then let the executive branch award contracts. Occasionally legislators have called with input, but none, aside from Stephenson, has put any complaints or recommendations in writing.

Harrington said Stephenson is the "singular example" of a legislator who has weighed in with the education office and, as the senator who controls the education budget, his wishes are hard to ignore.

That type of interaction "is exactly what everyone doesn't want to have happen," said Steven Schooner, a George Washington University law professor who specializes in government contracting.

"It could be the people doing the purchasing were incompetent," Schooner said. "But if your Legislature is getting involved in individual procurements, the system isn't going to work in the long run."

Last summer, the Legislature's general counsel gave GOP lawmakers a primer on the propriety of intervening in government-contract issues, a response to Stephenson's actions and other factors.

The Legislature's ethics rules state that members "shall not exercise any undue influence on any governmental entity," but Stephenson maintains he's crossing no such lines.

"It's my job, as chairman of the committee," he said, "that the will of the Legislature is carried out when we do pass laws and make appropriations for these things."

Stephenson said he has no financial stake in any of the companies involved in the contracting issues. They have not contributed to his campaigns nor do they belong to the Utah Taxpayers Association. His only motivation, he said, is a passion to ensure teachers get the tools they need.

Harrington said she respects Stephenson's vision and drive for using technology in classrooms, and they frequently see eye to eye.

At the same time, her department no longer provides advance copies of "requests for proposals" to legislators, rules have been adopted to insulate the contracting process, and she now makes the final determination on high-profile contracts to protect her staff from political pressure.

Stephenson said he suspects educators may be criticizing him now because in tough budget times he has resisted their effort to ax many reforms he championed, such as performance pay for teachers and laptops for preschoolers.

"Collectively, these things I've been pushing have a toll on the state office and there is a desire to neutralize me as chairman of education appropriations, and I think this reaction is an attempt to do that," he said, adding that he won't stop pushing the office for reforms.

The most striking example of Stephenson's activism involved ProCert Labs, which is seeking to review Utah's textbooks, pinpointing where concepts in the state's core curriculum are taught to help instructors teach the required lessons. The work could be worth millions.

ProCert President Paul Hoffmann, who is the son-in-law of prominent lobbyist Ruland Gill, said the company has clashed with some education officials for years for reasons he doesn't understand, but suspects the bureaucrats might feel threatened by privatization.

In 2003, a legislative committee, which included Stephenson, took the unusual step of writing specifications for innovative education programs, then awarded handpicked vendors, including ProCert, money to bid for the programs. But when the Legislature tried to fund the ProCert contract the next year, then-Gov. Olene Walker vetoed the project.

Walker said she felt having lawmakers award contracts to specific vendors was inappropriate.

"The Legislature has the right to make policy and set divisions of power, but it's the executive branch's job to implement them," Walker said last week, "and I felt quite strongly about that separation of powers."

At the time, Stephenson accused Walker in his taxpayer-association newsletter of caving to the teachers union. "In hindsight," he now says, "after reflecting on it, she probably did the right thing."

Harrington has been no fan of private "curriculum alignment." She says the panel of educators that has screened textbooks for more than eight decades has done it well.

Stephenson dismisses those in-house screenings as "schlock reviews" that are practically useless for teachers.

In 2007, Stephenson helped pass a bill requiring private textbook reviews, leaving it to state education officials to pick qualified reviewers. But when he felt ProCert was being treated unfairly by the state office, he made his displeasure known.

"I've had it!" Stephenson wrote in an e-mail. "It is obvious that [the program directors] are subversives who will stop at nothing to prevent the effective alignment of the texts to the core. … Perhaps downsizing USOE or outsourcing is the answer."

In another e-mail from his Senate account, he said, "I've never seen anything more outrageous in my 15 years in the Legislature."

Harrington replied that the office had "reached out to ProCert beyond what we have to others," and if Stephenson wanted to give ProCert the contract, "then we do have a problem that will need a broader remedy."

Stephenson says his e-mails were "advocacy for fairness." After a bidding process that dragged on for months, the Legislature amended the law last March and the contract has yet to be awarded.

2. A Tribune editorial a couple days later, criticizing Stephenson for his inherent conflict of interest as an industry lobbyist and violating the separation of powers between the branches of government.
Throwing weight
Senator should stick to legislating

Tribune Editorial
Updated: 12/01/2008 09:41:58 PM MST

Thanks to Utah's open-records law, we know that Sen. Howard Stephenson, R-Draper, who does questionable double duty as both a legislator and a lobbyist, inappropriately lambasted the State Office of Education for failing to hand a contract to a company that Stephenson likes.

Stephenson ignored the boundaries that constitutionally separate the branches of government and has, far too often, tried to bully education officials into applying laws and rules in ways that suit his purposes. It seems the good senator needs a lesson in how the separation of powers is supposed to work.

Here's a primer: The legislative branch's job is to appropriate funds and make the laws that broadly dictate how the Office of Education should run public schools for all Utah's children. A necessary line is drawn between legislating and the management of day-to-day functions of the various state bureaucracies.

In specific terms, a legislator isn't in charge of deciding what companies get contracts to provide the services that schools need in order to function. But Stephenson seems to believe otherwise, and he's not shy about wielding his funding power to get what he wants.

Stephenson, who chairs the Senate committee that holds the education pursestrings, stepped over the line when he angrily threatened in e-mails and phone calls to cut funding to the education office, get some of its work outsourced and have employees who defied his orders fired.

The senator should get a better grip on what's in his job description. If he needs help with that, he might very well check out the text of the Utah Constitution, the part, Article 5, titled "Distribution of Powers."

Stephenson says his meddling on behalf of ProCert, a textbook-review company, is necessary watchdogging to make sure taxpayers get "the best bang for the buck." But there's a difference between oversight and micromanaging.

Stephenson is no education expert, though he obviously sees himself as one. Instead, he is president of the Utah Taxpayers Association and a registered legislative lobbyist for that nonprofit group funded by businesses. As both lawmaker and lobbyist, he can argue for the policies he favors both on and off the floor of the Senate. That should keep him busy enough, without trying to do others' jobs, too.

In his questionable dual role, he is on shaky ethical ground and not in a good position to be flouting the Utah Constitution's express division of powers by throwing his senatorial weight around where it doesn't belong.

3. Tribune article detailing Stephenson's use of his Red Meat Radio show to attck the State Office of Education..."Stupid in Utah."

Lawmaker rips office of education
'Stupid in Utah' » Stephenson claims Tribune article spurred his rant on radio show.

By Lisa Schencker

The Salt Lake Tribune
Updated: 12/07/2008 07:58:27 PM MST

Tension between state education leaders and lawmakers over the years has been no secret.

Saturday morning, however, it noisily burst into public earshot with a two-hour radio show hosted by Sen. Howard Stephenson, R-Draper, titled, "Stupid in Utah: How the Utah State Office of Education hurts kids and teachers." Stephenson heads the legislative committee that shapes the state education budget.

"I thought the title for his show was beyond the pale," said State Superintendent Patti Harrington after hearing the show Saturday. "I was disappointed in that from Sen. Stephenson."

For two hours, Stephenson mostly slammed the state office for "subversiveness," dishonesty and for, he said, in some cases, resisting implementing state law.

He said an article that ran in The Salt Lake Tribune last week spurred him to air his complaints during his regular Saturday morning K-TALK AM 630 radio show, "Inside Utah Politics." That article revealed that Stephenson had pressured state education leaders with threatening e-mails regarding the process of selecting vendors vying for state education contracts.

"I have worked behind the scenes to try and get improvement there," Stephenson said. "But in defending myself against the Tribune attacks, I have to tell you why I was so involved in the State Office of Education."

He maintains that without his involvement, money allocated by lawmakers, in several cases, might not have been used for what lawmakers intended. For example, he said $30 million meant for classroom technology would have instead paid for support staff had he not examined the office's guidelines for the money, which were changed at the last minute by office employees. Harrington said she took "corrective action" toward those employees when she learned of the issue.

In another case, Stephenson said he became involved after he believed the state office showed bias against one company, ProCert Labs, which sought to gain state approval as a vendor aligning textbooks to curriculum.

Stephenson said Saturday he suspected the office was biased against ProCert because the company helped bring Saxon Math, a system that teaches math partly through drills and repetition, to Utah.

Harrington said Saturday she has only good things to say about Saxon Math and no bias against ProCert, which she said Saturday was "an excellent vendor."

Despite the public attack on education officials Saturday both Stephenson and Harrington said they don't think continuing to work together on state education issues in the future will be a problem.

Stephenson said the tension between him and education leaders will not guide his decisions during the upcoming legislative session.

"I don't punish those who speak against me, and I don't reward those who speak for me," Stephenson said in a phone interview after the show. "The policies we make during this coming session will not be affected by negative things said last Sunday." He also acknowledged during his show that most public education employees are dedicated and hard-working.

Harrington said she still worries about the pressure Stephenson puts on the state office regarding contracts and vendors, but she respects him as an overall education leader.

"I frankly believe you can disagree agreeably and still have a relationship that builds upon collaboration," Harrington said.

Stephenson said he hopes all the talk improves lawmakers' relationships with education leaders.

"Hopefully, it will be a healthier working relationship because we'll be open, honest and frank with each other," Stephenson said.


4. kcpw's recap of the radio blast and Stephenson saying he thinks the USOE is trying to "subvert the Legislature's intent." If they want one of his wasteful "reforms" cut, they are "out of control" and hurting Utah's children.

Sen. Stephenson Slams Office of Education

12.09.2008 by KCPW

(KCPW News) Senator Howard Stephenson has taken his beef with the State Office of Education public. He featured the USOE on his weekly talk show, Inside Utah Politics: Red Meat Radio. Stephenson says the public should know the state office is "out of control."

"The public generally doesn't know what's happening with that 500 plus bureaucracy that basically has general governance of education in Utah," Stephenson says. "And they needed to know the kinds of things that were happening there that hurt children and hurt teachers, that make it harder for teachers to do their job and make it harder for children to do better in school."

Stephenson's discontent with the office of education stems from a six-year-old debate about whether a private company should be paid to determine whether school districts are using textbooks aligned to the state curriculum. But more recently, Stephenson takes issue with the state's education leaders for wanting to cut three education reform programs passed last year: pay for performance, differentiated pay for math and science teachers and a computer-based preschool program. He says the office is trying to subvert the Legislature's intent.

"The state office and the state school board has shown its hostility toward many of the things that the Legislature has enacted, especially those things that are market driven, those things that give pay for performance, those things that satisfy teacher shortages," Stephenson says. "And the state board of education has officially said it wants those things cut."

Despite the tension, Stephenson says he doesn't hold grudges and will continue to work with the Office of Education. State Superintendent of Public Education Patti Harrington declined to comment on this story, but previously called the radio show "beyond the pale."

5. Letter to the editor from ProCert President, Paul Hoffman.

Stephenson wronged

Public Forum Letter
Updated: 12/09/2008 10:08:26 AM MST

In his story about Sen. Howard Stephenson and ProCert Labs, reporter Robert Gehrke wrote that I am "prominent lobbyist" Ruland Gill's son-in-law. I am not ("Did Utah senator's advocacy go too far?", Tribune, Nov. 30). He also implied that Stephenson supported textbook alignment based on my relationship with Gill. Wrong again.

Utah teachers deserve to know which sections of the thick, nationally published textbooks apply to Utah's curriculum without having to spend countless hours sorting through the textbooks themselves. That curriculum is the basis for student testing and grading teacher effectiveness.

What the Tribune story missed is that ProCert's detailed review would have identified on the Internet what textbook sections would be used in the testing of school children. It would allow parents access to information about what their children are learning.

Utah teachers go above and beyond to compensate for the lack of modern tools to help them. Sen. Stephenson is working diligently to bring useful modern education tools to them. I applaud him for holding the Utah State Office of Education accountable and making sure that taxpayer money is well spent.

Paul Hoffmann
President, ProCert Labs

Cedar Hills

6. Paul Rolly weighs in. He repeats Gehrke's initial claim that Hoffman is related to Rulon Gill which was stringly refuted by Hoffman. He adds that Rulon Gill was frequently involved in lobbying for the ProCert bill. Why? Rolly also details other instances of the legislature selcting individual companies for special treatment.

Contracting with Utah? Helps to know a legislator

The Salt Lake Tribune
Updated: 12/14/2008 08:46:13 AM MST

Since The Salt Lake Tribune published a story Nov. 30 that detailed Sen. Howard Stephenson's outrage at state education officials for not issuing a contract to a private company Stephenson favored, the Draper Republican has been on a public rampage.

He railed against the State Office of Education on the Saturday morning radio program the Republican legislative caucus sponsors and Stephenson co-hosts, and the Republican Senate site on the Internet has urged readers to listen to Stephenson's rants or read them on that site.

But the senator's aggressive advocacy for ProCert labs getting the nod over any other potential bidder is nothing new for Stephenson, R-Draper, or other members of the Legislature who have tried to use their power to benefit one particular company.

Stephenson, as outlined in the Nov. 30 story, wrote a series of heated e-mails and made phone calls threatening the budget of the Utah Office of Education and suggesting education staffers not cooperating with the ProCert agenda be fired.

ProCert employs a system of evaluating Utah's textbooks, pinpointing where concepts in the state's core curriculum are found to help instructors teach the required lessons.

The initial legislation that singled out ProCert for the contract was vetoed by then Gov. Olene Walker, who said it was inappropriate for legislators to award contracts to specific contractors.

Subsequent legislation included procurement requirements favorable to ProCert's program, but ProCert officials have complained that public education officials have not been cooperative.

The contract is yet to be awarded.

Stephenson has said he has no financial interest in ProCert, but one of the company's executives is Scott Hoffmann, the son-in-law of lobbyist Ruland Gill, who is on the board of the Utah Taxpayers Association, which employs Stephenson as its president. Education officials said Gill approached them several times on Pro-Cert's behalf in 2007.

Meanwhile, Stephenson got involved in the bidding process for a pilot program the Legislature approved to provide educational software for preschoolers. The request for proposals was tailored to a program developed by Waterford Schools, whose lobbyist is Republican insider Cap Ferry.

Other custom-fit programs approved by the Legislature favoring one vendor include:

» A database for posting student test scores was the subject of intense scrutiny by some legislators, including Stephenson, in which a company named Digital Bridge was invited several times to make presentations. The RFP was subject to several challenges with Digital Bridge allegedly receiving unusually favorable treatment by lawmakers.

» Stephenson and former Rep. Jim Ferrin pushed a bill in 2006 to prevent local municipalities from refusing to issue building permits for schools in their cities. The bill paved the way for those who wanted to build charter schools in residential neighborhoods. Ferrin, former Rep. Glenn Way and Rep. Mike Morley were in the business of financing and constructing buildings for charter schools.

» Rep. Becky Lockhart sponsored a bill to study the feasibility of privatizing the state's mental hospital in Provo after she and several other lawmakers were invited to Florida to tour a private mental facility there. Her bill would have had the Legislature's Executive Appropriations Committee review proposals for the project rather than the State Purchasing Office, which normally handles contract proposals.

» Rep. Greg Hughes sponsored a bill last year allowing the state to contract with a private company to evaluate sex offenders to determine the likelihood of them reoffending. When Sen. John Greiner amended the bill in the Senate because of concerns it was written for just one specific company, an angry Hughes aggressively confronted Greiner.

The amendment was taken out and the bill passed in its original form. But, because of a mistake, the bill was filed with the amended language. So far, because of that glitch, the program has not been implemented.

7. Rolly details the fears of education officials during the 2009 session that Stephenson's SB 64 was aimed at attacking their employees for disagreeing with him.

Beware the wrath of Stephenson

By Paul Rolly

The Salt Lake Tribune
Updated: 03/10/2009 03:50:38 PM MDT

Sen. Howard Stephenson, known for his tempter tantrums when state agencies don't give contracts to his favorite vendors, has a bill this year that would allow the Administrative Rules Review Committee to examine how the agencies spend money appropriated to them.

If an agency does not obey the intent of the Legislature, according to Stephenson's SB64, it will be reported to the Legislature's Executive Appropriations Committee.

The bill has passed the Senate and has been pending in the House since Thursday. Word is that some House members, as well as the governor's office, are concerned about the potential intimidation factors in the bill.

If an agency doesn't find a favored company to be the best fit for a contract that the Legislature funds, for example, will it be punished financially for its impudence?

Stephenson, R-Draper, who is co-chair of the Administrative Rules Review Committee, was scheduled to meet with the State School Board last Friday to explain the bill, since the Office of Education has most often borne the brunt of his wrath. But he didn't show.

Stephenson has gone apoplectic in the past when his favorite bidder, ProCert, was not awarded the contract for textbook review; when his designated vendor did not get the nod for a pilot gifted and talented program; and when the State Procurement Office didn't steer the bidding process the way he wanted on a student database system.

8. The House never did vote on SB 64.


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