West Virginia Record

Sunday, October 13, 2019

Lobbyist sues state education officials


By Kyla Asbury | Jun 17, 2019

CHARLESTON — West Virginia lobbyist Jason Webb filed a lawsuit against two state education officials for trying to get him fired.

Webb claims several times in 2018 and 2019, State Superintendent of Schools Steven Paine called top officials of ACT Inc., one of Webb's clients, and threatened to end ACT's business with the state if it did not fire him, according to a complaint filed June 12 in the U.S. District Court for the Southern District of West Virginia.

"This case is about the abuse of power," the complaint states. "Top officials at the West Virginia Department of Education, Superintendent Steve Paine and assistant superintendent Jan Barth, have used their government power to threaten and intimidate a private citizen, Jason Webb, for exercising his First Amendment rights—specifically, for expressing his political views and advocating for a client and state vendor that Paine and Barth oppose."

Paine and Barth threatened ACT on multiple occasions, according to the suit.

Webb claims Paine and Barth's inappropriate and retaliatory actions violated Webb's First Amendment rights and constituted "tortious interference" with Webb's business relationship with ACT.

In 2017, a bill was introduced in the House of Delegates that would require the state Board of Education to adopt a standard, curriculum-based college entrance exam and the House Education Committee amended the assessment language to reflect Gov. Jim Justice and the then-Legislature's desire to have that test by the ACT.

Another bill was also going through the Senate that dealt with data privacy law related to the educational opportunity service that would allow students who take the ACT test to check a box if they would like to have their scores shared with colleges or universities, scholarships and the military.

Later, Webb learned that Paine was trying to get the Senate bill vetoes by Justice and when the governor's office asked Webb for his views, he advocated for its enactment on behalf of his client, according to the suit.

Webb claims Paine then called a national lobbyist for ACT that he knew personally and told him if ACT wanted anything in West Virginia it better "get a handle" on Webb because both ACT and Webb were being "too heavy handed."

Paine wanted the Senate bill vetoed because he did not want to reopen a debate over "Common Core," according to the suit, but, Webb believes that is pretext and that Paine had ulterior motives.

Webb claims after speaking with the national lobbyist, they concluded that the best course of action was to attempt to get along with Paine, so he called the governor's office and told them it was fine to veto the Senate bill, which Justice did.

After that, the House bill was changed to reove the five subject-matter components of the assessment that would effectively make it easier for the board to choose the SAT as the statewide assessment instead of the ACT, according to the suit.

"On April 6, Webb learned of the committee amendment and immediately confronted several officials in the Governor’s office," the complaint states. "Webb warned them that what the Department was doing to the bill demonstrated that the Department was intent on choosing the SAT despite the Governor, the Legislature, and most educational groups’ preference, and the popularity of the ACT in West Virginia."

Later in the year, the board chose SAT testing for grades 3 through 8 instead of ACT's version of testing for those grades. Webb continued to advocate for ACT testing.

On Jan. 28, 2018, Paine contacted the senior vice president for state and local programs at ACT and told him that Webb's public criticism was "getting under his skim" and that the ACT needed to "handle it or else."

In December 2018, Paine and Barthe both complained to the senior vice president of programs at ACT and told him to prevent Webb from posting on social media criticizing SAT, according to the suit.

Webb claims he told ACT he would "tone down" his posts on Twitter, however, in February and March, Paine and Barth called the program director again and told him to fire Webb of ACT wouldn't do business in West Virginia.

Paine then spoke with the CEO of ACT by phone and the CEO responded to Paine that if "Webb had done something wrong, then Paine should file a complaint with the West Virginia Ethics Commission."

"Paine told the CEO that if ACT still had Webb under contract as their lobbyist when the statewide assessment came up again (for a new RFP process), then ACT would be disqualified as a result.

Webb is seeking compensatory and punitive damages with pre- and post-judgment interest. He is represented by J. Zak Ritchie and Michael B. Hissam of Hissam Forman Donovan Ritchie.

U.S. District Court for the Southern District of West Virginia Case number: 2:19-cv-00447

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