Two weeks ago, Evan Jenkins was serving as a Justice on the West Virginia Supreme Court with over two years left on his term. This week, he was working as a private attorney trying to convince the Legislature to pass a pro-business bill.
That is quite a U-turn.
Jenkins resigned from the court as of February 6, saying he was interested in promoting economic development for the state. Shortly after that, he announced he joined Jenkins Fenstermaker in Huntington, a law firm started by his grandfather.
Jenkins got to work quickly.
On Wednesday, Jenkins testified before the House of Delegates Banking and Insurance Committee in support of HB 4394. As our Brad McElhinny explained, the bill “would eliminate lawsuits contending injuries or fatalities that occurred because employers knowingly did not put up proper safeguards.”
The following morning, Jenkins testified at a public hearing at the Capitol in support of the bill. In both instances, Jenkins was acting as a representative for Allegheny Wood Products, a timbering company that is leading the effort to change the law.
Allegheny and some other companies contend the cost of insurance to protect against lawsuits from “deliberate intent” cases, where workers are injured on the job, makes West Virginia uncompetitive. Trial attorneys and several severely injured workers testified at the public hearing that the lawsuits are necessary because the state’s Workers Compensation program is not adequate.
Jenkins’ appearance on behalf of Allegheny sparked questions about whether his advocacy violates the state ethics law. That law requires lobbyists to register with the state, and Jenkins has not. It also prohibits public officers, including members of the Supreme Court, from lobbying “during or up to one year” after they leave office.
The intent of the law is to prevent a “revolving door” at the Capitol where an individual leaves their position in state government and then immediately cashes in on their influence by lobbying lawmakers. The year-long prohibition serves as a “cooling off” period.
The lobbying question arose during Jenkins’ committee testimony. The Charleston Gazette’s Lacie Pierson reported, “Jenkins told the committee the company retained him as an attorney and asked him to represent its interests in the Legislature. After the meeting, Jenkins said he considered the matter a ‘non-issue’ since he had cleared it with the Ethics Commission.”
When I contacted the Ethics Commission, executive director Kimberly Weber told me in an email that she could not “confirm or deny whether Mr. Jenkins has conferred with the Ethics Commission.” However, Weber did confirm that Jenkins had not registered as a lobbyist.
She also pointed me in the direction of a section of the ethics code that says the term “lobbyist” does not include “persons who limit their lobbying activities to appearing before public sessions of committees of the Legislature, or public hearings of state agencies.”
That may provide a convenient explanation for Jenkins, but it also feels like a distinction without a difference.
When Jenkins resigned, he said, “There is no decision that motivated my exodus from the Court. It’s really just to get back out and engage.”
Unfortunately, Jenkins has already engaged a little too closely. The line is blurry, but Jenkins appears to be standing right on top of it.