Saturday, November 10, 2007

KBE refuses payment to Ray and Associates, says botched search produced Erwin.

See at the bottom of this Post:
Kentucky School News and Commentary's
June interview with Dr. Gary Ray

Good job by Raviya Ismail this morning @ the Herald-Leader, reporting:

Search firm is refused payment
Consultant failed to do job

The state is refusing to pay bills submitted by a consulting firm that conducted a failed search for a new education commissioner earlier this year, and the two sides are fighting over the money in court.

State officials say the consulting firm, Ray and Associates of Cedar Rapids, Iowa, conducted an "unsuccessful and discredited search" marred by a lack of thoroughness and accuracy in checking the candidates' backgrounds...

On August 14th, Interim Commissioner Kevin Noland wrote to Ray & Associates President Gary Ray, noting the Board's initial payment of $15,030.44 but that the firm's "lack of thoroughness and accuracy," resulted in "an unsuccessful and discredited search," that cost the state seven months.

Noland then let Ray know that he could stop checking the mail for the $33,734.77 balance - it wasn't coming.
"We feel that because they didn't deliver a qualified successful candidate that they did not fulfill their end of the contract," Noland, interim commissioner and legal counsel for the board, said in an [H-L] interview yesterday. Ray and Associates "did not do a thorough vetting of the candidates that they recommended to us. It resulted in the problems that we had, and doing the search over."
On August 27th, Gary Ray responded by citing the firm's patience, professionalism and determination to get paid. Ray claimed they had "fulfilled all obligations" and even "exceeded usual and customary services by continuing to answer questions and inquiries submitted the Board of Education even after the new commissioner was hired."

Ray asserted that the board conducted interviews, noted "extreme scrutiny by the media and many other entities," but the board hired her anyway. He stopped short of claiming that the extreme scrutiny came from Ray & Associates.

We feel we conducted a solid search, brought them good candidates and they made a choice," William Newman, national executive director of Ray and Associates told the Courier-Journal in late July.

Erwin's file included her application, resume, a reference sheet with eight names, a summary sheet from the firm and 16 letters of reference from former school board members, teachers and principals. None of the letters, nor any information in the summary report, contained criticism concerning Erwin's tenure.

Newman said the firm did not provide the board with any negative comments regarding Erwin because "there were not any negatives we had a real concern about."

In mid July, Mark Hebert had reported:
According to the Iowa Secretary of State's Office, the I.R.S. has a lien on Ray and Associates because the company has failed to pay more than $5700 in federal taxes. ... [An] Iowa state web site also shows that Ray and Associates was administratively dissolved in 1994 and hasn't been in good standing with the state of Iowa since then." Until Mark told them...they didn't know it!
But with some pluck, Ray & Associates filed suit in Franklin County Circuit Court to compel payment of $50,000 they say they earned. Gary Ray says he is defending the firm's reputation.

Civil Action # 07-CI-1527 (20 September) claims that Ray & Associates:
  • entered into a personal service contract with the Kentucky Board of Education

  • identified individuals who were qualified to be candidates for Education commissioner

  • that on May 9, KBE appointed Barbara Erwin

  • that KBE made the first payment but 33,734.77 is still due

  • that KBE has breeched their contract

  • that Ray & Associates wants a 12% per month penalty for late payments since July

On October 12th, the Kentucky Board of Education responded with a counterclaim:

  • that Ray & Associates "breached its contractual failing to adequately investigate the background of Barbara Erwin and discover or disclose serious inaccuracies in her resume and a history of problems at other school districts where this candidate previously served.

  • KBE admits it entered into a contract, but Ray & Associates failed to thoroughly and accurately screen Barbara Erwin

  • that Erwin declined to accept the position on July 13th, "before she assumed her duties and before any paperwork was processed that would have officially made her an employee of the Commonwealth..."

  • that her failure to assume the position meant that Ray & Associates was not due any payment, "or it constitutes a frustration of purpose for the contract."

  • that Erwin was selected, but never assumed her duties as a result of Ray & Associates failures and breach of contract

  • that Ray & Associates owes the Commonwealth all monies paid and damages

  • that Ray & Associates failed in its obligation to serve "in good faith"

  • that Ray & Associates "knew or should have known that Barbara Erwin made several false misstatements on her resume"

  • including: Supt of Year award from an organization that does not give such an award; claiming conference presentations she did not make; that the Scottsdale Board of education bought out her contract to get rid of her (KSN&C could never confirm this one); the St Charles investigation over her missing personnel file

  • that Ray & Associates either failed to investigate or was so eager to receive its commission that it failed to reveal "significant facts"

  • that Ray & Associates had claimed to be 100% successful in their searches and their proposal included a satisfaction guarantee that Ray & Associates breached

  • and therefore, Ray & Associates should provide the Commonwealth a full refund, and interest
The H-L article also notes

State Board Chairman Joe Brothers said the search firm promised the board candidates that were highly qualified and reputable.

"We were assured there would not be anything that would surface that would embarrass the state in the process of hiring any applicant that they brought to us," he said. "The taxpayers and the state of Kentucky should not be paying for this

Attorney Robert C. Moore of Frankfort-based Hazelrigg & Cox is representing the search firm and said the board had plenty of opportunity to select another candidate.

"It's extremely odd that the Board of Education didn't pay the remaining amount due on the contract when they actually hired the candidate that was identified by Ray and Associates," he said.

It will be interesting to see how the court looks at this situation. Ray & Associates clearly fell short of fulfilling its obligations to the citizens of Kentucky, and in my opinion, should withdraw the complaint. We are a long way from 100% satisfaction. Failing that, they should lose the case.

But the board of education failed, too. In my view, whatever redress may be indicated should be supplied apolitically, for the benefit of Kentucky's children and in support of competent government. Given plenty of reason to be suspicious of Ray & Associates assurances, the board chose instead to believe what they wished to be true.

Unfortunately, my concerns about Ray & Associates were largely confirmed by a conversation I had with Dr. Gary Ray in early June. My read is that the firm's performance departed from the promise to provide professional and reliable service.

I'm am quite certain the firm was effective at collecting and organizing material supplied to them by the candidate. Clearly they were less inclined to invest the half hour it would have taken to reveal a pattern of specific concerns about Barbara Erwin.

It also seems clear that they had something to sell.

KSN&C Interview with Dr. Gary Ray, June 7th

(After identifying one another)

Kentucky School News and Commentary: I'm not sure if you are aware that Dr. Erwin listed some things on her resume that have not been verifiable.

Dr Gary Ray: "I'm not sure where you get that. We had a couple questions; some people might have said that, and everything's been verified as much as possible, I mean they have been accurate, so I'd like to know a little bit more specific what you're asking about."

KSN&C: Sure, well...

Ray: "I mean, you know, just to make that statement wouldn't necessarily be a; that's a pretty broad statement, so I'd like to know just exactly what you're asking about."

(So, KSN&C listed
  • ...Claimed to be a presenter at the 2006 Triple I Conference

  • Claimed AASA Exec Board 10 years

  • Claimed she was still on the Scottsdale Chamber of Commerce

  • Has not yet explained how she received an Indiana teaching certificatebefore her IU diploma
  • Claims of post doctoral degrees from USC and Columbia.)

KSN&C: Is that something you would typically do; to do degree verifications?

Ray: "Yeah, we would be able to do that. I tell ya, the person I could have you talk with, because he has verified her resume and has done a good job in that regard, would be Dr. Don Cusmo, and if I can get your name and number, I'll just have Don call you."

(We exchanged contact information)

Ray: Have you spoken with her?

KSN&C: I have not. I have written to her but haven't heard back yet.

(We exchanges pleasantries about the time of year and how busy everyone was)

KSN&C: Let me make you aware of another thing that concerns me, but that I also have not been able to confirm yet. One of the items she had to complete on her background check as part of her application in Kentucky was whether or not she had ever been involved in litigation. And I didn't know if you all were aware that she was sued by [a] board [member] in Arizona, but yet, she marked that she had not been [sued], on her application.

Ray: Uh huh, well, I think there's a story that goes with that... I'm pretty comfortable that she's OK with that...

KSN&C: So you guys are aware of that.

Ray: "Sure. You know people can make claims all the time..."

(and he told the story of a case where a reporting error got into print where a claim of a lawsuit just wasn't true.) Understand, these things, kind of, not always are on the surface, what they might appear to be."

KSN&C: Sure. I certainly understand that and that's why it's so important to verify this stuff. This is an important position for us in Kentucky and my concern is that there appear to be a few of these and that's an uncomfortable pattern.

Ray: "Yeah, I think you'll find when it's all done, it will shake out very well."

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