West Virginia’s former superintendent of schools and a prominent lobbyist are each asking a federal judge to swiftly decide the merits of a federal lawsuit that accuses the former schools chief of bullying.
Charleston lobbyist Jason Webb filed a motion for summary judgment contending the evidence is overwhelming that Paine “retaliated against Mr. Webb by directly interfering with — and eventually destroying — his business relationship with ACT.”
Paine, who resigned as superintendent earlier this year, has also filed a motion for summary judgment, asserting that Webb hasn’t made his case that he was damaged by a series of incidents starting in 2017.
The conflict is notable because of the bad blood that first spilled out over social media like Twitter and now the federal courts system between a longtime lobbyist at West Virginia’s Capitol and a two-time leader of West Virginia’s K-12 school system.
Paine has been the state Superintendent of Schools twice, serving first from 2005 to 2011 and then returning in 2017. He received an exemplary performance evaluation last year from the state Board of Education and then suddenly announced his retirement in early February, citing desire to focus on his family.
Webb’s Capitol Advocates lobbying firm has included clients like AFLAC, Airbnb, Uber, K12 and the American Electric Power. In this case, it was his work on behalf of the standardized testing company ACT that led to conflict.
“This case is straightforward,” begins the memorandum for Webb’s summary judgement request.
“Mr. Webb advocated as a registered lobbyist on behalf of his education industry client and national testing company ACT, Inc. At the same time, Mr. Webb publicly expressed his individual views concerning education policy on social media. This upset then-superintendent Steve Paine and assistant superintendent Jan Barth, who disagreed with Webb.
So, Webb contends, Paine took the unusual steps of asking for compilations of the lobbyist’s tweets and confronting leaders of the national testing company ACT. Webb’s lawsuit also names Barth and says she pushed for rival SAT to bring on board a lobbyist who could counter Webb.
Paine and Barth counter that the Department of Education believed Webb was using his social media accounts for misleading and insulting commentary, particularly about Common Core math. They contend their efforts were to track what was being said and set it straight.
But they could not name other instances where they reacted similarly to other criticism.
Webb first filed suit against Paine and Barth in U.S. District Court for the Southern District of West Virginia last summer. After that, ACT ended its contract with the lobbyist for a variety of reasons, including attention to its costs across the country.
The lawsuit contends those actions violated Webb’s First Amendment rights and “constitutes tortious interference with Webb’s business relationship with his client ACT.”
Depositions of the key players over the past year included testimony from Barth that Paine “wasn’t happy” about some of Webb’s tweets because they were “not supportive of the Department of Education,” and that Paine “wanted to do something about it.”
The politics of ACT versus SAT, another standardized test run by the College Board, runs through the lawsuit’s narrative.
The lawsuit has its origins in 2017 when West Virginia officials were talking about adopting ACT as its official statewide assessment. That was also the year Paine returned as superintendent.
During Webb’s lobbying efforts that year, the lawsuit contends, Paine called a national lobbyist he already knew at ACT to say the company better “get a handle on Jason Webb.” The lawsuit also contends Paine insinuated ACT would be shut out of future statewide assessment contracts.
The conflict peaked during a public bidding process for two statewide assessments, one for grades 3-8 and another for grade 11. A blackout period was supposed to take effect when discussion between the bidders and the Department of Education was prohibited.
On June 20, 2017, Webb was at Stonewall Jackson Resort for a West Virginia Association of School Administrators conference. He was visiting with a client in T.J. Muskies Bar & Grill when Paine came in with some other participants, broke away from his group and approached. Webb stood to greet the superintendent.
Webb, in his deposition, recalled Paine telling him “You all — meaning ACT — may win the RFP for the 11th grade test, but we — meaning the Department of Education — are not going to use that 3 through 8 test, the Aspire or whatever you call it. It’s junk.”
Paine then walked away. Webb described himself as dumbfounded.
Paine’s deposition was different. The superintendent testified that he did not remember the encounter at all.
Q: “Do you remember running into Jason Webb at Stonewall Jackson during the blackout period?”
A: “I do not.”
Q: “You don’t recall telling him that the Department was not going to use the ACT’s 3 through 8 test, ACT Aspire, because you told him it was quote, ‘junk’?”
A: “I don’t recall that, and that would be that I very seriously doubt I would say.”
Q: “Do you deny saying it?”
A: “I don’t recall. I don’t recall saying it.”
Q: “So you could have said it. You just don’t remember it.”
A: “I don’t. I don’t remember saying that at all.”
ACT Aspire wound up losing the bid for that 3rd through 8th grade standardized test. Then the 11th grade test was subject to a re-bid and was won by SAT.
Webb took out his frustrations publicly on Twitter, criticizing rival SAT as well as positions taken by the state Department of Education.
For example, one of Webb’s tweets criticized the results the bid for 11th grade assessments by using a meme from “Ghostbusters.”
Webb testified in a deposition, “I put on Twitter the second scene in the original ‘Ghostbusters’ movie where Bill Murray’s character, whose name was Professor Venkman . . . was conducting an ESP test where he had a coed with blonde hair to his right and a shorter, littler guy with dark hair to his left, and he would hold up a card and ask them if they could tell him what the shapes were.
When he would ask the coed what the shapes were, she would be absolutely wrong, and he would be astonished and give her points for it. When the other guy guessed and got it right, he would say, ‘No,’ and he would shock him with a little buzzer.”
In another example of a critical post, Webb tweeted, “Since the adoption of #CommonCore standards by the #WestVirginia State board of #Education, math scores keep going down”.
Leaders at the Department of Education testified in depositions that they were offended by those social media messages and others.
Under Paine’s direction, the department compiled Webb’s tweets, with the involvement of a variety of agency employees.
From Barth’s deposition:
Q: “Paine asked you to find someone to gather them?”
A: “Yes, sir.”
Q: “How many times did that happen?”
A: “He asked me once and I took care of it.”
Q: “OK.”
A: “I didn’t get back to him quickly enough and so we gathered them up and I took a hard copy down to him shortly after he requested it.”
Q: “Uh-huh. And what did he say about it?”
A: “He 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 in this bid process.”
Q: “And he wanted to do something about it?”
A: “Yes.”
Barth sent emails in 2019 to ACT, Inc.’s competitor, College Board, urging them to hire another lobbyist in West Virginia, Conrad Lucas, to “neutralize Webb and effectively dispatch him to the curb! Again. The sooner the better!!!”
Her messages said bringing on a lobbyist to counter Webb “will make all of our lives easier and especially Dr. P’s,” according to exhibits of the emails entered into evidence.
Emails About Lobbyist to Combat Webb (Text)
As the conflict continued, text messages from Paine to ACT representatives in 2019 criticized them for failing “to hold Webb in check,” despite being asked by Paine to do so “on at least two occasions.”
“For the last time, you have a shady, dishonest lobbyist in Webb who has attacked my personal integrity and as a constitutional officer I take that very seriously,” Paine wrote in one text that was submitted into evidence. “I suggest you take it seriously as well.
“We also have compiled tweets and social media posts where Webb has sought to discredit the WVDE.”
Paine’s texts continued, “On a personal level, I’ve had it with Webb.” Paine indicated his frustration had built to the point that he’d reached out to his own attorney.
“I asked you on at least two occasions to work collaboratively with us and to hold Webb in check. To date that (has) not happened,” Paine concluded in that text. “I am sincere and very disappointed.”
Matters came to a head shortly after that, the lawsuit states, on a telephone call between Paine and the chief executive of ACT.
“He only addressed the role of Jason Webb, who he said has a bad reputation,” ACT chief executive Marten Roorda wrote in an internal email that was admitted into evidence.
“I said I heard no complaints about Jason’s behavior and from my position was not able to assess the situation. I advised him to file a complaint with the Ethics Board. Mr. Paine said he was still considering what action to take. He also said that WV may be doing business with ACT in the future and indicated that the issue with Webb could have implications.”
The CEO responded that if Webb had done something wrong then Paine should file a complaint with the West Virginia Ethics Commission.
Roorda concluded, “His counsel said that regulations for purchase practicing could effect 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.”
ACT Email About Paine Call (Text)
The conflict continued until Webb filed suit, ACT dropped its contract with the lobbyist and Paine retired.
Paine’s motion for summary judgment contends that Webb wasn’t actually hurt and that if anyone would have a complaint, it’s ACT:
“Putting aside his lack of standing to claim ACT’s alleged injury as his own, Plaintiff concedes that no one from ACT asked him to cease or ‘tone down’ his social media posts about education issues, and that was echoed by ACT’s corporate representative.”
Additionally, the Paine motion continues, “Drs. Paine and Barth have qualified immunity from suit and the complained-of conduct was justified.”
Webb contends Paine and Barth attempted to suppress his First Amendment rights and that they attempted to interfere with his business relationship with ACT.
His motion says the harm includes the lost lobbying contract, added day-to-day burdens, emotional distress and mental anguish.
“Defendants engaged upon a systematic pressure campaign to use his client ACT — the other party in his business relationship — to force Webb to back down.”