CHARLESTON, W.Va. — Asphalt companies being sued by the state are defending the time Attorney General Patrick Morrisey took to decide whether to jump into the lawsuit and criticizing the state Department of Highways for plowing ahead.
If you’re keeping track of the different parties criticizing each other over the asphalt lawsuits filed last fall, you probably need a flow chart.
- On Oct. 12, 2016, the cities of Charleston, Parkersburg, Beckley and Bluefield filed antitrust lawsuits against West Virginia Paving and related companies. The state Transportation department filed its own lawsuit two days later, using private counsel Bailey & Glasser, the lawyers leading the suits for the municipalities.
- The issue became campaign fodder when Morrisey’s Democratic opponent, Doug Reynolds, said the attorney general was dragging his feet. “For over a year they’ve been pushing for him to get involved, and he’s stonewalled it,” Reynolds said.
- The Legislature got involved when the Joint Legislative Oversight Commission on Department of Transportation Accountability asked in consecutive hearings why the Transportation department had signed on with private counsel rather than using the state Attorney General.
- Morrisey’s office filed its own asphalt antitrust lawsuit on Jan. 11. In the announcement, Morrisey was critical of the highways department for going forward with the lawsuit with private counsel. “Highways has no authority to retain its own outside counsel,” he said.
- Mike Folio, the director of the legal division with the highways department, sent a letter to the transportation oversight commission: “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.”
Now West Virginia Paving and its attorney, former U.S. Attorney Booth Goodwin, a former Democratic candidate for governor, are firing criticism at Folio and the highways department.
Goodwin sent his own letter this week to the Joint Legislative Oversight Commission on Department of Transportation Accountability:
MORE: Goodwin’s letter
“Mr. Folio tells this commission that he and a Charleston plaintiffs’ firm have been urging the Attorney General to sue my clients for some time now, but until recently, the Attorney General declined to do so,” Goodwin wrote.
“Still, it is clear from DOH’s actions to date and Mr. Folio’s letter that the DOH acted hastily and with suspect information in filing suit against several paving companies, including my clients. The DOH suit is unfounded.”
The lawsuit filed by Morrisey’s office alleges that asphalt companies doing business in West Virginia gobbled each other up or entered into noncompetitive agreements, driving out competitors and pushing asphalt prices higher. Eleven companies are named.
Bob Brookover, the president of West Virginia Paving, sent out his own statement, disagreeing with the claim and singling out Folio for criticism.
MORE: Statement from West Virginia Paving
“It is clear from his communication to the Joint Commission, and his actions since filing the lawsuit, that Mr. Folio is looking to pass the blame of DOH’s inaction and inefficiency onto hard working West Virginians who work day and night to provide safe roads for everyone to travel,” Brookover wrote.
“We have reached out to the Attorney General and look forward to a solution-driven discussion about how we can better serve the people of West Virginia.”
West Virginia Paving and the other asphalt companies being sued claim that prices could be lower under a variety of scenarios that have met resistance. One possibility is making the requirements for asphalt mix more flexible, including raising the amount of allowable recycled material, the asphalt companies say.
The companies also point to factors such as proximity to asphalt plant locations, existing terrain conditions and vicinity to aggregate quarries.
“It is facts like these which would understandably give the Office of the Attorney General pause in bringing or continuing this lawsuit,” Goodwin wrote in his letter.
“Indeed, this is the role that such office is supposed to serve: by having all legal actions go through one democratically elected constitutionally appointed officer like the Attorney General, rogue agency lawyers are less likely to bring ill-advised, half-cocked lawsuits that start fights that the state cannot win.”