Roughly two hours into the meeting of the House Banking and Insurance Committee, lawmakers turned to the final bill on their agenda. Typically, the committee is not a place for high-profile bills. But the next 45 minutes, and the bill being considered in them, would be among the most scrutinized of the entire 2022 regular session.
The bill aimed to repeal a provision known as “deliberate intent,” which allows injured workers to sue employers who knowingly exposed them to unsafe conditions. And the person who entered the room to advocate for it on behalf of his new private law client was Evan Jenkins — less than two weeks removed from his position as a justice on the West Virginia Supreme Court of Appeals.
Jenkins opened his testimony by reassuring lawmakers. He told them, “My appearance here is within the law.”
The law Jenkins referred to is the West Virginia Ethics Act, which bars certain public officials from lobbying for at least a year after they leave office. But as Jenkins’ rapid flip from Supreme Court justice to timber company attorney highlighted, the law leaves plenty of wiggle room. He was able to speak directly to legislators, as well as propose specific language — all within weeks of holding a powerful position in government.
At committee meetings, Jenkins was allowed to speak on behalf of a client because of an exception that clarifies anyone is allowed to speak to lawmakers at public hearings, a free speech protection.
But in the following weeks, Jenkins continued to attempt to influence legislation. An email containing his signature and proposed amendments to another bill being considered was forwarded by his client’s registered lobbyist to at least one lawmaker’s inbox. The same document, minus Jenkins’ signature, would wind up in other lawmakers’ hands.
To be sure, Jenkins followed the law, and regardless of whatever influence his former judicial position gave him, he was unable to convince lawmakers to pass the legislation he was hoping for.
Delegate Barbara Fleischauer, D-Monongalia, co-sponsored the 2011 bill creating West Virginia’s lobbying prohibition period after then-Gov. Joe Manchin’s chief of staff left office to become a lobbyist. She said that the exemptions Jenkins used exist in part due to a lack of lawmaker imagination.
“I don’t think anyone ever would have guessed that a Supreme Court justice would resign and then immediately start lobbying,” she said. “Everyone was shocked.”
Jenkins did not answer detailed questions about his employment and advocacy, but issued a statement via email. “Since stepping down from the bench and returning to the practice of law, a number of people have asked me to be their attorney on a wide range of issues,” he wrote. “Like any attorney representing clients, West Virginia’s lobbying law clearly states that your professional services in drafting legislation or in advising or rendering opinions to clients on proposed or pending legislation are exempt.”
John Crites, the President of Allegheny Wood Products, who hired Jenkins, did not respond to a request for comment.
So-called “revolving door” laws like West Virginia’s are intended to prevent regulators and elected officials from seeking personal gains while in office by trading favors with potential future employers. They also prevent companies from hiring lobbyists with institutional knowledge of sometimes confidential matters.
“Hiring someone for lobbying immediately after leaving office is somewhat similar to having a nonvoting public official as your lobbyist,” said Pete Quist, the deputy research director at the nonprofit OpenSecrets, which tracks money in politics. “It creates unequal access for members of the public.”
While the Ethics Commission has never explicitly weighed in on the purpose of West Virginia’s ban on public officials lobbying for a year, commission Executive Director Kim Weber pointed to a 2005 advisory opinion, written before the broader lobbying prohibition was in place. It notes that these types of rules are as much about the appearance of impropriety as they are about preventing actual conflicts of interest. “The ‘revolving door’ provision is intended to prohibit a public servant from exploiting the personal prestige he may have established as a former official,” the commissioners wrote.
When Jenkins appeared at the Capitol, lawmakers were well aware of his credentials. Besides his time on the Supreme Court, he spent more than 20 years as a state lawmaker and was elected to two terms in the U.S. House of Representatives.
For committee chair Delegate Steve Westfall, R-Jackson, Jenkins’ history in powerful government positions assured him of the former justice’s ability to navigate murky waters ethically.
“I thought if anybody could tell the truth, it would be Evan Jenkins, for sure,” Westfall said.
By late February, the deliberate intent bill’s future was uncertain in the Legislature. Injured mine workers and their loved ones had rallied against the bill at a public hearing, where its defenders included Jenkins and Crites of Allegheny Wood.
So Jenkins began working behind the scenes to amend another worker’s comp-related bill in a way that would have helped Allegheny Wood limit its financial responsibility to injured workers.
On Feb. 25, Jenkins emailed the company’s registered lobbyist, Phyllis Cole, suggesting changes to an uncontroversial bill that would have lessened his client’s workers’ comp burden in another way.
That bill updated language in existing workers’ comp laws, but made no substantive policy change. Jenkins’ proposed amendments would have allowed companies like Allegheny Wood to avoid paying workers’ comp to employees subcontracted through smaller outfits serving as middlemen, a common practice in the timber industry.
Within minutes, Cole forwarded the email to Hott, the deliberate intent bill’s sponsor. Jenkins did not respond to a question about whether he was aware that Cole would forward his email to a lawmaker.
Cole did not respond to multiple requests for comment.
Jenkins’ proposed changes were never introduced and, ultimately, the bill passed both houses of the Legislature unanimously.
Weber said that, while it might be considered lobbying for a lawyer to send proposed legislation benefiting their client directly to lawmakers, having suggestions sent through a third party likely wouldn’t. A provision in the revolving door law allows former government officials barred from lobbying to take jobs that require legislative analysis for clients without having to register as lobbyists.
Still, the legal definition of a lobbyist in West Virginia includes someone who does that work indirectly through “an agent,” but the Ethics Commission has never defined who qualifies as an agent.
Presented with them individually, Weber also said each action Jenkins took was legal. However, when asked about the totality of his actions, performed by a public figure barred from lobbying, she said the commission has never been asked to weigh in on such a case.
“It’s really unresolved,” she said. “I think that this just is a gray area.”
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