Investigation: Nashville schools broke law, misled school board about contracts

Posted at 11:03 AM, Feb 04, 2019

NASHVILLE, Tennessee — Metro Nashville Public Schools steered $1.8 million in no-bid contracts to a software company with whom Director of Schools Dr. Shawn Joseph had done business in the past, violating state purchasing laws, a NewsChannel 5 investigation has discovered.

Our exclusive investigation also uncovered evidence that, in doing so, Joseph and his team repeatedly misled members of the Metro School Board about key aspects of the deals.

"That just raises red flags for me," said school board member Amy Frogge, who has emerged as a frequent critic of how Joseph's administration has handled the district's business. “Those are alarm bells.”

In a written statement, Metro Schools insisted that mistakes were made “in good faith.”

The contracts in question involve Performance Matters, a Utah-based firm that markets student assessment software to help educators track student progress and professional development software to monitor training that teachers are required to complete.

Joseph, who took control over the Nashville school system in July 2016, had appeared in a slickly produced video that touted how Performance Matters' student assessment software had been utilized in his previous job in Prince George's County, Maryland.

Performance Matters video

A complimentary quote from Joseph was included in the company's promotions. He had even been the keynote speaker at a Performance Matters conference in 2014.

Metro Schools insisted Joseph’s relationship with Performance Matters was “professional, ethical and aboveboard.”

But, just six weeks after starting as the director of Metro Schools, Joseph's calendar shows he was hosting Performance Matters salesman Roderick “Rocky” Sams in the district offices.

A month later, chief academic officer Dr. Monique Felder directed MNPS staff to get to work on a contract with the company for its Unify student assessment platform, according to emails obtained by NewsChannel 5 Investigates under the Tennessee Public Records Act.

"Dr. Joseph wants to pilot Performance Matters in the Priority Schools," Felder said in an email, referring to the district's lowest performing schools.

Frogge told NewsChannel 5 Investigates that, about the same time, she began to hear rumblings about the relationship between Joseph and Sams.

"Multiple employees were coming to me with serious concerns about Performance Matters," Frogge said. "They said that both the salesman and the project manager for Performance Matters told them, 'You are going to get these products.'"

We asked, "Whether you want them or not?"

"Right," Frogge replied. "And there were conversations along the lines, you know, we've got Dr. Joseph on speed dial. If you don't do this, we'll call your boss -- that kind of thing."

A separate Metro Schools source confirmed similar conversations.

Emails show employees questioned need

Internal emails show that veteran employees were not sure what Performance Matters' Unify platform could do that the school system's own “data warehouse” did not already do.

The data warehouse is an in-house product that was developed specifically to meet the district’s needs in tracking student progress.

Metro Schools argues “there was confusion among staff” who simply did not understand the intentions of their new leadership.

In fact, the emails reveal frustrations that Joseph and his team had seemingly not taken the time to learn what MNPS' existing system could do before they turned to Performance Matters.

"No one here really knows what the intent [is] for this," wrote Dr. Tina Stenson, the district's director of research and evaluation.

Toni Russell, then the executive director of technology and information resources, was trying to figure out "what problem are we trying to solve?"

"My first impression of what I saw with Performance Matters was it was simply a way of presenting data in the DW [data warehouse] pretty," Russell continued.

Dr. David Williams, then the interim executive director of curriculum and instruction, admitted, "Honestly, I don't know the answer to hardly any of your questions."

"I don't know the rationale for moving in this direction," Williams added, "other than our new leadership has experience with it and likes the product."

We showed the emails to Frogge.

"Those are exactly the kinds of concerns I was hearing," the school board member said.

Metro Schools says the intention was to replace another assessment platform that the district was using, although no other companies were invited to demonstrate their products.

In fact, the emails also show that a potential competitor got wind that Performance Matters was in the building and wanted to know whether her company would have a chance to vie for the district's business.

Paul Changas, MNPS’ executive director for research, assessment and evaluation, assured the competitor that the district would eventually release a formal Requests for Proposals (RFP) to all interested bidders.

"I expect an RFP process and an opportunity for vendors to have the same opportunity," Changas emailed.

But that never happened.

"What I have seen time and again with this administration is that our employees are trying to do the right thing, but the administration has shown that they have been willing to skirt the rules, to violate the policy in some instances," Frogge said.

"And they are hiding information about spending."

No-bid contract awarded to Performance Matters

Instead, Joseph's team convinced the school board to give Performance Matters what turned out to be a million-dollar, no-bid contract -- without waiting for the results of a pilot program and without giving any other company a chance to compete.

Under the terms of the 2016 contract, Metro Schools agreed to pay up to $72,000 for the last six months of the 2016-17 school year for the pilot project, then $387,000 per year for 2017-18 and 2018-19 for all 86,000 Nashville students. (View Performance Matters contracts here.)

Joseph and his team defended the no-bid contract, saying they engaged in a practice called "piggybacking" -- in this case, duplicating a Performance Matters contract with Orange County Public Schools in Florida, which had been put out for bids.

Advocates argue piggybacking can help governments save money.

But former Baltimore County Schools superintendent Dallas Dance, who served on Joseph's transition team when he came to Nashville, was sentenced to six months in jail last year for failing to disclose money he took from a vendor.

Court records show Dance steered no-bid contracts to that vendor using the piggyback method after the vendor indicated “his least favorite letters are RFP.”

At a recent board meeting, Joseph responded to those concerns, saying: "We have had people across the country do bad things. We have not."

Still, in Tennessee, state law only allows local governments to piggyback on contracts that have been put out for bids by other governmental units "of this state."

"The way I read the code it does not speak to piggybacking on contracts outside the state," said retired state auditor Dennis Dycus, who headed up the division in the state Comptroller's Offices that watchdogs municipal governments.

Metro Schools agreed that the contract did violate state law.

In its written statement, the district said staff simply misinterpreted the law, insisting they “were acting in good faith and with the full intention of being good steward of taxpayers’ dollars."

A district spokesperson also noted that the contract was signed by an attorney with the Metro Department of Law.

Metro Law Director Jon Cooper said the attorney’s signature was designed to show approval of how the contract was drafted, not for the procurement process.

“There is nothing legally objectionable about the terms of the contract itself,” Cooper said in an email to NewsChannel 5 Investigates.

Still, “in hindsight,” Cooper said, “the attorney who signed the contract should probably have recognized that the underlying contract was procured by an out-of-state government entity and raised a question about it.”

State law also says piggyback contracts “shall be made on the same terms … as regular purchases of the purchasing entity.”

But, in this case, the Florida contract had one set of compensation terms; Metro Schools negotiated completely different terms.

"It has to be the same contract, there cannot be any changes in that contract," Dycus said.

Orange County pricing vs. MNPS pricing 

Generally speaking, those kinds of scenarios, the retired auditor said, raise all sorts of red flags.

"Being the mindset I have as an auditor, I have to ask the question: why did they change?" he added. "And, as a rule, they change it to benefit somebody -- and I would want to know why."

Second no-bid contract awarded to Performance Matters

But that wasn't the only contract that Dr. Joseph's team steered to Performance Matters.

In 2016, MNPS signed a second contract for $845,651 -- again with no bids -- for the company's TrueNorthLogic platform. That platform is designed to track professional development training for teachers.

At the time, internal emails show Metro Schools was paying another company $6,250 a month for its SchoolNet service.

Performance Matters offered its product for what turned out to be a $118,000 set-up fee, plus $12,862 a month – more than double the previous monthly cost.

MNPS claimed that higher offer was piggybacked on a Shelby County contract with Performance Matters, although the district again changed the terms of the deal.

In the end, Joseph's team decided to go with the higher price.

We showed the numbers to Amy Frogge.

"That's just an absurd jump," Frogge said. "I don't know why we would be paying that much more for the same product."

In June 2018, MNPS director of purchasing Jeff Gossage told the school board that, while he did not work for the district when those contracts were signed, he had been told that Metro Schools was facing a time crunch that forced them to go with Performance Matters without conducting its own bidding process.

MNPS officials blame time crunch (June 2018)

"My understanding is we were at a point where we didn't have time to conduct a normal RFP process," Gossage said.

Joseph did not attempt to correct Gossage during that board meeting, nor did any member of his team.

In fact, the district had initially been told that SchoolNet planned to stop offering that professional development service in April 2017.

But emails obtained by NewsChannel 5 Investigates show that then-director of purchasing Gary Appenfelder learned in mid-November 2016 that SchoolNet would keep offering its program at least through June 2018 at the same price of $6,250 a month.

The company had “further agreed to discuss service support continuance beyond that point, if desired,” Appenfelder said in a later email.

In other words, contrary to what the board was told, there actually had been time to put the contract out for bids.

"The only reason that the PM (TrueNorthLogic) PD Management product has been considered and pursued is because … it is immediately available without going through a formal solicitation," Appenfelder wrote in an email to MNPS leadership.

"But the immediacy of that need has been removed."

Still, Joseph’s team presented that Performance Matters contract to the board for approval on November 29, 2016, and executed the final contract about a month later.

Frogge said the emails confirm her suspicions.

"The administration is not being truthful with us, they are just not being truthful," the school board member said.

We noted, "It sounds like they didn't want to bid this out."

"No," Frogge agreed. "I think that's the consistent theme on this particular contract. They didn't want to bid it. They wanted to rush it through."

MNPS goes beyond school board's contract approvals

As NewsChannel 5 Investigates previously revealed , the school board approved a two-year, $594,000 contract for the Performance Matters student assessment platform, but Joseph's team signed a three-year, $1 million contract.

The board approved a two-year, $530,000 professional development contract; then the district signed a three-year, $845,000 contract.

Altogether, contracts that should have been drawn up for $1.1 million were increased to $1.8 million.

At the June 2018 meeting, Joseph told the school board that the former purchasing director, Gary Appenfelder, went off on his own and negotiated new terms -- to get a better price --without even telling his boss, chief operating officer Chris Henson.

Joseph blames ex-purchasing director (June 2018)

"He was able to re-negotiate a cheaper rate than what the board originally approved. It did extend the contract, but because it was a cheaper contract, he went ahead and did it. He did it without consulting with me,” Joseph said.

Turning to Henson, the director of schools continued: “I'm not sure if he spoke with you. I believe he had not consulted with you on the issue, but he was looking for the best interest of the district to get a cheaper rate and went ahead and did that."

In reviewing hundreds of pages of emails involving the Performance Matters contract, NewsChannel 5 Investigates never saw any indication that Appenfelder engaged in any such negotiations that resulted in a lower price in exchange for a longer term nor that he informed his bosses that they were signing contracts that differed from what the board had approved.

Metro Schools was unable to provide any documentation to back up Joseph’s claims.

However, the emails do reveal that Performance Matters was eager to enhance the numbers on its books before the end of 2017.

"Dec 31 is the end of the PM fiscal year," Appenfelder emailed. "Their primary objective is to have executed contracts in hand before the end of the FY. This is doable."

A few weeks later, it was announced the Performance Matters had been sold to PeopleAdmin for an undisclosed price.

District leaders promise contracts to be put out for bid

Then, in June 2018, Joseph's team brought forward a last-minute request for the school board to approve the third year of those two Performance Matters contracts, warning of dire consequences for teacher training if the deals were not approved.

Still, they promised the professional development contract would soon be put out for bids -- to let other companies compete -- if the school board approved the yearlong extension.

MNPS officials promise RFP process (June 2018)

"It is for 12 months," Gossage told the board. "The plan is -- internally, we've had a discussion about that -- is doing an RFP during that time."

The head of research, Paul Changas, told the board, "We would probably have to have that RFP out sometime this fall."

"Maybe sooner," Gossage quickly added.

Now, seven months later, WTVF television station in Nashville has learned that Joseph's team never followed through on that promise either -- and the district has no plan to give any other company a chance to compete for the contract to track professional development for teachers.

In its statement, the district said “MNPS is still working toward that goal.”

Frogge is frustrated.

"Again, the board is not being told the truth on a lot of issues -- and this seems to be some sort of coverup," she explained.

Despite the urgency three years to piggyback off a Florida contract for the student assessment software, now Joseph and his team have no plans to continue that million-dollar contract with Performance Matters either, a district spokesperson acknowledged.

Metro Schools released the following statement:

“In 2016, a transition team made up of local, state and national experts shared that Nashville needed to focus on student achievement -- with a sense of urgency. MNPS did not have a user-friendly platform for student assessment and professional development. Performance Matters was the right product at the right time.

“On Wednesday, Jan. 30, 2019, Metro Legal advised that while acting in good faith, MNPS purchasing staff made an error in interpreting state law that governs the use of out-of-state jurisdictions’ contracts to secure competitive rates on products. Their use of in-state competitive contracts for this product was
appropriate. Metro Legal will meet with procurement to ensure that their practices are in line with state law. MNPS is following-up with the individual who made the error.”

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NC5 Investigates: Metro Schools