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Department of Education settles lawsuit brought by lobbyist

File photo PAINE — Former State Superintendent of Schools Steve Paine.

CHARLESTON — A lawsuit brought by a lobbyist against a former state schools superintendent and a current Department of Education official was dismissed Wednesday after a settlement between the parties was reached.

According to a document filed Wednesday with the U.S. District Court for the Southern District of West Virginia, lobbyist Jason Webb, former state superintendent of schools Steve Paine, and Assistant State Superintendent of Schools Jan Barth agreed to a dismissal of the federal lawsuit.

According to the filing, both parties agreed to a dismissal of the lawsuit with prejudice, meaning the case cannot be re-filed. Both parties agreed to bear their own costs and fees associated with the lawsuit.

According to sources, the state agreed to pay out $500,000 to settle the case brought against Paine and Barth. Webb would neither confirm nor deny the amount of the settlement, but he did consider the matter a victory for his First Amendment rights.

“As I said from the beginning, this case was about an abuse of power. As my legal filings explain, top officials at the West Virginia Department of Education … used their government power to threaten and intimidate me for exercising my First Amendment rights. The case has settled on the eve of trial, and I have been completely vindicated.”

A request for comment from the Department of Education was not returned.

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. 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 its 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 a ruling in January, U.S. District Judge John Copenhaver granted a motion for summary judgment by Webb for two elements of count one, agreeing that Webb’s speech was protected by the First Amendment and actions by Paine and Barth were retaliation for that protected speech. Copenhaver’s decision paved the way for a jury trial scheduled for next week.

“In granting partial summary judgment to me, Judge Copenhaver wrote, ‘There is no genuine dispute of material fact that my social media posts or my lobbying activities generally are protected by the First Amendment,'” Webb said. “Not only did defendants Paine and Barth lose in a federal court order on several elements, but they also surely lost in the Court of Public Opinion.”

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.

“The lesson of this case is that the First Amendment matters, truth matters, and that it is important to stand up against those who would retaliate against private citizens for exercising their First Amendment rights,” Webb said.

(Adams can be contacted at sadams@newsandsentinel.com)

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