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Federal judge rules in lobbyist lawsuit against state education officials

Photo Provided Steve Paine, former state superintendent of schools, greets Gov. Jim Justice at the 2018 State of the State speech

CHARLESTON — A federal judge ruled in part that a former state superintendent of schools and Department of Education officials retaliated against a lobbyist for his critical social media posts.

U.S. District Judge John Copenhaver granted a motion Monday for summary judgment by lobbyist Jason Webb for two elements of count one that accused former state superintendent of schools Steve Paine and Jan Barth, an assistant superintendent of schools at the Department of Education, of retaliation against Webb’s First Amendment rights.

The next step for the case is a jury trial scheduled for Tuesday, March 30, at 9:30 a.m. to decide on the part of count III that claims there was a civil conspiracy by Paine and Barth to violate Webb’s First Amendment rights.

“We look forward to taking these claims to trial,” said J. Zak Ritchie, Webb’s attorney, in a statement Wednesday afternoon.

Webb, the owner of government affairs firm Capitol Advocates and a lobbyist registered with the West Virginia Ethics Commission, filed suit on June 12, 2019, in the U.S. District Court in the Southern District of West Virginia. Webb accused Paine and Barth of using government power to intimidate him from exercising his First Amendment right to free speech.

Formerly under contract with college test-prep company ACT, Webb accused Paine and Barth of threatening ACT over Webb’s public comments, resulting in ACT dropping Webb as a lobbyist one month after Webb filed the lawsuit.

Webb was critical of Paine and the Department of Education on social media platforms after the department changed its stance on a student data bill that passed the West Virginia Legislature in 2017. The department urged Gov. Jim Justice to veto the bill, which would have allowed ACT to use their standardized tests in public schools and allow students to opt-in to allow ACT to send them information on scholarships and colleges.

Another bill in 2017 would have allowed ACT to be used for standardized testing, but was changed in the Senate allowing for other tests, such as the SAT, to be used for standardized tests. A 2018 bill that would have allowed counties to choose between ACT and SAT tests was pulled from a committee agenda. The actions were followed by Webb posting his criticisms of the department on social media.

In his ruling, Copenhaver agreed Webb’s speech was protected by the First Amendment and actions by Paine and Barth were retaliation for that protected speech.

“There is no genuine dispute of material fact that Webb’s social media posts or his lobbying activities generally are protected by the First Amendment,” Copenhaver wrote. “While defendants highlight the derisive tone and allegedly misleading nature of plaintiff’s social media posts … they never contest that the posts fall within First Amendment protection.”

According to court filings, Paine reached out to ACT numerous times to complain about Webb’s social media posts, using threats to pull contracts directly to ACT’s former CEO. Barth was accused of using department staff to monitor Webb’s social media posts and encourage SAT to hire a lobbyist of its own to “neutralize” Webb.

“The causal connection here, that is, whether (Paine and Barth’s) communications with ACT officials were caused by (Webb’s) protected activity, is plain and uncontroverted in the evidence,” Copenhaver wrote. “(Paine and Barth) collected (Webb’s) social media posts and sent those posts to ACT with the apparent purpose of having ACT do something about it.”

“(Paine and Barth) also directly contacted agents of ACT on other occasions to complain of (Webb’s) comments. Moreover, the actions were close in time to the protected activity. (Paine and Barth) have not raised an argument that there is not a causal connection between (Webb’s) speech and (Paine and Barth’s) conduct. Therefore, summary judgment in favor of (Webb) is appropriate with regard to the third element.”

While Copenhaver did rule in favor of the first and third elements on count I, the second element, whether the conduct of Paine and Barth adversely affected Webb’s right to free speech or standing, was denied. Copenhaver ruled in favor of Paine and Barth by denying count II, tortious interference with business relations.

Copenhaver also denied part of count III to the extent that count III was based on Paine and Barth’s interference in the business relationship between Webb and ACT. Webb was dropped by ACT as their lobbyist shortly after Webb filed the lawsuit and have not contracting with anyone else since 2019.

“ACT decided to not continue its engagement in West Virginia for three reasons: the filing of this lawsuit by Webb, the ‘political landscape’ changing in the West Virginia Legislature, and the fact that ACT was ‘getting nowhere with the [WVDE] with regard to District Choice,'” Copenhaver wrote, citing the testimony of Chris Kratzer, ACT’s senior director of U.S. government relations.

“Indeed, Kratzer testified that ACT has not employed an outside lobbyist in West Virginia since terminating (Webb),” Copenhaver wrote. “Thus, (Webb) has not shown a material issue of fact supporting his claim that (Paine and Barth) caused the termination of his relationship with ACT. Rather, ACT, having chosen to withdraw, had no further need for (Webb’s) lobbying services.”

Paine was state superintendent of schools under Govs. Joe Manchin and Earl Ray Tomblin from 2005 to 2011, returning in 2017 under Justice. He retired last year. Barth remains at the Department of Education.

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