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Highways lawyer writes that Morrisey was asked three times to jump in on asphalt lawsuit

CHARLESTON, W.Va. — A lawyer for the state Department of Highways says Attorney General Patrick Morrisey was asked on multiple occasions about leading the state’s entry into an antitrust lawsuit against asphalt companies.

The Attorney General’s participation in the lawsuit has been questioned for months, first by Morrisey’s Democratic opponent in last fall’s election and then by state legislators who wanted to know why the highways department hired private counsel Bailey & Glasser to lead the lawsuit.

“Even though the Attorney General claims  that DOH’s antitrust pleading is ‘flatly prohibited by law,’ the Attorney General rejected the opportunity to file such a necessary suit on three separate occasions over a nearly 1.5 year period,” wrote Mike Folio, director of the legal division of the highways department.

Responding today to the claims in Folio’s letter, Morrisey’s office said time was needed to assess the asphalt case.

“We fully investigate matters,” stated Curtis Johnson, spokesman for the Attorney General’s office. “As such we don’t simply take complaints prepared by outside counsel. We have a competitive bidding process that everyone must comply with. We could be asked 1,000 times by a private firm to blindly take a case and not comply with the competitive bidding law, but we will never do that.

“This is further demonstrated, in this case, by the fact that the initial complaint filed by the private firm was withdrawn and a new case filed. Our complaint also fixed defects from the original filing to improve the state’s chance of prevailing.”

Lawmakers twice in recent months grilled Folio about why the Attorney General hadn’t taken the lead on the asphalt lawsuit and why the highways department wound up being represented by private counsel. Folio twice responded that the highways department was engaged in helpful conversations with the Attorney General but, at the time, said he couldn’t say much else.

Frustrated by what members of the Joint Legislative Oversight Commission on Department of Transportation Accountability saw as a lack of response, the lawmakers wrote a series of questions.

Folio provided written response at the time, saying: “As I had informed the Commission at its Dec. 6, 2016, meeting, the West Virginia Department of Transportation, Division of Highways, is working with the office of the West Virginia Attorney General in connection with DOH’s ongoing antitrust investigation. It is anticipated that the Attorney General’s Office will be in a position to provide more substantive information about your request in the near future.”

Last month, Morrisey’s office filed its own version of the asphalt antitrust suit and said the DOH never should have gone on without it. “We will always do the right thing and not rush an action forward,” Morrisey said during a news conference in his office at the Capitol.

He said his office did not previously authorize the Department of Transportation to enter an agreement with Bailey & Glasser.

“Highways has no authority to retain its own outside counsel,” he said.

On Tuesday, Folio provided a longer response to legislators detailing the highways department’s version of its interactions with Morrisey’s office over the past months. The letter was addressed to Delegate Marty Gearheart, the Republican co-chairman of the Joint Legislative Oversight Commission on Department of Transportation Accountability.

Folio wrote that he is now able to provide answers more fully because the original lawsuit filed by Bailey & Glasser has been thrown out and replaced by one filed by Morrisey’s office.

He wrote that the second time he was questioned by the commission, he had been asked by counsel for the Attorney General’s office to reply only ‘Highways is in cooperative discussions with the Attorney General’s office and to give no further comment on the matter [antitrust suit].”

Folio wrote that he learned about Morrisey’s Jan. 11 press conference about filing the asphalt lawsuit about 15 minutes before its start.

“At that time, I learned for the first time that DOH’s counsel would publicly disparage his client and not work cooperatively with his client to announce the filing of the suit,” Folio wrote.

Folio wrote that Bailey & Glasser had previously provided a draft antitrust complaint to Morrisey and had encouraged the Attorney General to file an antitrust suit on three separate occasions over nearly a 1.5 year period.

“Bailey & Glasser told me that the Attorney General’s office rebuffed the firm’s invitation to file this historic and necessary suit,” Folio wrote.

Folio said a senior attorney with the Attorney General’s office told him the office lacks the capacity and expertise to prosecute the antitrust suit. That’s also something  Morrisey said during his announcement that his office would take the lead; he said the office would seek outside counsel for expertise and help.

“The senior attorney in the Attorney General’s Office specifically told me to continue working on the antitrust suit after Bailey & Glasser had filed DOH’s antitrust complaint,” Folio wrote.

He wrote that DOH recognizes and respects the role of Attorney General as West Virginia’s chief legal officer “and DOH further acknowledges that it does not — and should not — have unbridled authority to hire outside counsel.”

But DOH maintains it has authority under parts of the state code to hire its own outside counsel.

On Oct. 12, 2016, the cities of Charleston, Parkersburg, Beckley and Bluefield filed lawsuits against West Virginia Paving and related companies. The state Transportation department filed its own lawsuit two days later. Folio said DOH first made contact with Bailey & Glasser on Oct. 13.

The lawsuits contend that the asphalt suppliers working in parts of West Virginia have engaged in predatory practices, undercutting and sometimes absorbing competitors.

Throughout the fall, Morrisey said his office could make no public comment about the asphalt case as an investigation took shape. During those months, a spokesman for the office stated, “Our office and the Department of Transportation are engaged in cooperative discussions to handle this matter appropriately. There is no further comment at this time.”





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