USOE Negotiated $5.4M SAGE Contract with Florida without Board Knowledge or Legal Counsel Review

USOEIn recent weeks, the Utah Board of Education faced a strange situation when Judy Park, an assistant superintendent,  negotiated a contract estimated to be worth $5.4 million with Florida to share SAGE questions.  The State Office of Education did not give  full disclosure to the Board until after the fact, admitted that it lacked expertise in negotiating the contract, and did not conduct the negotiation with the advise of counsel.


If it seems like news coming out of  the Utah State Office of Education (USOE) and the Utah Board of Education (UBOE)  is a bit dysfunctional of late, there’s  a good reason for that.

With Superintendent Martell Menlove resigning after a little more than a year, the selection of a new superintendent is a priority for the UBOE.  The choice could not be more critical to the future success of education administration and governance in Utah.

Instead of an accomplished educator, the Board should select an executive with strong leadership qualities and the ability to assemble a competent leadership team with diverse skills outside of an education oriented. Teaching skills are useful–in the classroom–but if the recent negotiation with Florida by USOE staff are any indication, not the correct skill set for the management of a large bureaucracy that under the Utah constitution has near co-equal responsibilities with the Legislature and the Governor as it relates to education in the state. 

In an almost surreal discussion at their April Board meeting, Assistant Superintendent Judy Parks informed the UBOE that staff of the Utah Office of Education had engaged in talks and signed a contract to share SAGE questions with Florida without informing or seeking the consent of the full Board, without advice of counsel, and, as admitted by others, without the necessary expertise.

SAGE, or the Student Assessment of Growth and Excellence, is the test used by Utah to assess student progress.

The discussion at the April Board meeting makes for fascinating listening, revealing interesting insights into the competencies, and dysfunctions, of the USOE and UBOE. It highlights the need for executive leadership with competencies outside of the typical, accomplished educator mold that has, in recent years, been the primary selection criteria of the Board for superintendents.

In the discussion, Parks reports to the Board on the negotiation of  a “contract” to share SAGE test items with Florida. Valued at $1.50 per student per subject area, the test items are worth an estimated $5.4 million to Utah.  The assessment system was developed by Utah several years ago and is proprietary information. According to Parks, reporting to the board at the April meeting, Florida failed to prepare and opened negotiations with Utah to use Utah’s test items.

According to Parks, Florida would “lease” the items for the first year of the test until Florida can develop their own. Parks indicates that Utah has already entered into a contract to lease the items to Florida.

Parks repeatedly calls it a “contract” or a “leasing agreement,” saying that Utah would be “renting out the items, so to speak.” Utah would receive revenues for use of the items, ostensibly to be used for beefing up the SAGE item bank.

Board member Dave Thomas jumps in and corrects Parks that it is not a lease, per se, but a license of the items, and that Florida will pay up to $3 million for use of the items.

At this point, Board member Jennifer Johnson, noting that she only sees a letter of understanding, asks if there agreement has already been made, who has signed, and where the contract is.

Parks says the agreement has already been entered into.

Johnson asks “did [Superintendent] Martell [Menlove] sign? Or did you?”

Parks says that the “letter” of the agreement was signed by John Jesse, Director of Assessment and Accountability, but approved by her.

“What would have happened,” asks Board member Jeff Moss, “if we had voted ‘no’?”

Nervous laughter comes over the recording.

According to people who were in the room, nervous is the emotion that the USOE staff were conveying.

Martell Menlove, Utah Superintendent of Public Instruction, speaks with reporters at the State Board of Education office in Salt Lake City on Friday, Aug. 2, 2013. State Superintendent of Public Instruction Martell Menlove announced Friday his retirement from the post he has held for a little more than one year. Laura Seitz, Deseret News
Martell Menlove, Utah Superintendent of Public Instruction, speaks with reporters at the State Board of Education office in Salt Lake City on Friday, Aug. 2, 2013. State Superintendent of Public Instruction Martell Menlove announced on March 28, 2014 that he would retirem from the post he has held for a little more than one year. Laura Seitz, Deseret News

Fortunately, the deal is a good one for Utah, with funds coming to Utah from out of state. There is a sense, though, in listening to the recording, that the USOE got way out ahead of their authority as given by the UBOE.

“We will do a better job,” says Menlove on the recording. “This is a situation that simply I didn’t realize–I mean, I knew this was happening. I didn’t realize the magnitude. I thought we were talking a couple hundred bucks. Obviously more, but all of  a sudden when it comes back three weeks ago, now I find out, hey:  this was a significant opportunity for the state of Utah, that’s when I said to Judy, this has to go to the Board, okay, we’ve already gone this far, we’re honest with you. Again, I knew what was happening, I didn’t realize it was this kind of opportunity. And, quite honestly, we will keep you informed, but we anticipate other opportunities as significant as this in the future.”

Menlove goes on to explain that he will inform the Legislature and that the money will go to Utah teachers to create new items for the SAGE test.

Leadership of the Board asserts that it knew about the agreement, but that there would not be time to bring the agreement before the board.

The Board continues to question how the contract was negotiated:

  • How was the rate for the items set? (Based on vendors, but “we’ve probably set our rate,” says a Board member, because the precedent is set).
  • Is the vendor making any money on Utah’s items? Mark-up?
  • Does the vendor get a brokerage fee? Parks says she does not think so.
  • If Utah is the only game in town, do we want USOE to provide the items on an ongoing basis?
  • How should the items be priced to be competitive, but not leave money on the table?
  • What protections are there if items are exposed?
  • Does this restrict us from releasing the items to other states?
  • Does USOE have the right to sell the SAGE items without the UBOE’s approval as the fiduciary over the test?

Finally, someone on staff admits that the USOE staff are out of their wheelhouse.

“You’re talking beyond the expertise of this office.[…] We don’t have those in this office who have the experience or training to engage in this kind of activity.”

Kudos to the USOE for landing a revenue raising contract with Florida, but what was left out from the contract due to a lack of expertise? How might the USOE done better if it had brought in the Board earlier and obtained the right kind of advice to assist?

Listen to the entire sound clip here and find Superintendent Martell Menlove’s Memorandum on the discussion below.


Meanwhile, the search for a new superintendent is well underway, and the UBOE is taking lengths to avoid the criticisms that accompanied Menlove’s appointment–not of Menlove himself, but of the process. At the time, many in the legislature, while not dismayed at Menlove’s selection, felt that the selection was rushed.

This time around, the Board is taking steps to ensure that the process is thorough, careful, and deliberate. Dave Crandall, UBOE Chair, said that Board is considering hiring a recruiting firm to assist in the search and that a selection is expected by September.

The Announcement of the Position can be found here and below.  The best way to assure that the Board has a good slate of candidates to select from is to assure that competent individuals apply for the position. If you know anyone who should, please share with them the Announcement.

Utah Board of Education Superintendent Announcement


Memorandum on revenues and contracts, May 9, 2014, Utah Board of Education

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