Assistant county attorney properly terminated for election to city council – Fourth Circuit

6,307 Comments / By Brandon J. Huffman / April 3, 2017 April 3, 2017 / Fourth Circuit

Loftus v. Bobzien. Bobzien, the Fairfax, Virginia, County Attorney, fired Loftus, an assistant county attorney, after she was elected to Fairfax City Council. The termination was “solely because she had been elected to the City Council.”

Loftus sued claiming the termination violated her First Amendment rights, as well as Virginia Statute and a local Fairfax County ordinance. The district court dismissed the complaint, and the Fourth Circuit affirmed.

Prior to her run, Loftus had been informed by Bobzien that election to the City Council could create conflicts because the County had continued interactions and contracts with the City. When she announced her candidacy, he sent her a letter again expressing the same and an additional concern about imputed conflicts of interest for the other attorneys in the office under the state bar’s rules of professional ethics. In that letter, he informed her that if she won, she would be terminated.

Loftus called the state bar’s ethics hotline, and Bobzien requested an informal advisory opinion from the state bars Standing Committee on ethics. They received conflicting information, with the hotline saying it was not per se unethical to serve in both capacities, and the Standing Committee referring back to prior ethics opinions (which Bobzien had referenced in his letter to Loftus) and declining to provide further comment.

After taking office, she was terminated.

Loftus brought two First Amendment arguments to the district court. First, she argued that she has an “unfettered and inherent First Amendment right to hold public office.” Second, she argues that she should prevail in a balancing test of her First Amendment rights and the concerns of her employer.

The Fourth Circuit begins its analysis by pointing out that they have never recognized a First Amendment right to hold public office. Without reaching a conclusion on that question, they point out that 70 years ago, the U.S. Supreme Court affirmed that a government-employer may circumscribe the rights of its employees to engage in political activity and has since consistently approved restrictions on various activities, including holding public office.

In such cases, courts defer to the legislative body or government entity charged with making determinations about the overlap between public employment and elected office. The opinion recognizes the Letter Carriers test in which a restriction is upheld based on four principles: the restriction

helped ensure the unbiased administration of the law,
avoided the appearance of impropriety,
preserved meritbased government employment and prevented corruption, and
ensured the independence of all government employees.

The opinion then looks at a litany of precedents from around the country and from the Second, Fifth, Seventh and Eighth Circuits concluding that various restrictions or prohibitions public employees on holding elected office were upheld. The Fourth Circuit is not swayed by her arguments that those precedents are distinguishable because she is working in a different municipality or because the office she was elected to is a nonpartisan office.

With respect to the balancing argument, the Fourth Circuit concludes that the balance of interest weighs in favor of Bobzien’s decision to terminate:

On one side of the equation is the extent to which Bobzien’s decision to terminate Loftus’ employment infringed on any assumed First Amendment right she might have to hold public office. We conclude any infringement was minimal, as Bobzien’s decision to terminate Loftus only after she was elected to a position on the City Council regulated her speech with a limited touch, if at all. Nowhere does Loftus plausibly allege that she was prevented from speaking on issues pertinent to her campaign or any other issues of public import. Nor does she allege she was prevented from conducting her campaign for City Council. Loftus’ complaint alleges no restraint on her First Amendment rights except the fact her employment was terminated “solely because she had been elected to the City Council.”

On the other side of the equation is Bobzien’s interest, which also is Fairfax County’s interest, in the efficient operation of the Fairfax County Attorney’s Office. As a general matter, the County was not required to sit idly by as one of its employee lawyers took on additional “duties or allegiances to another locality or political constituency whose interests are or could be adverse” to its own. The possibility that Loftus’ duties as a member of the City Council would conflict with her duties as an assistant county attorney was more than mere speculation, given the history and reality of the relationship between the two municipalities. Because Loftus’ membership on the City Council potentially was inconsistent with her position as an assistant county attorney, Bobzien reasonably apprehended serious inefficiencies arising from that arrangement.

In particular, Bobzien believed that Loftus’ membership on the City Council and position as an assistant county attorney would create a far-reaching and intractable conflict of interest, not only for Loftus but also for the entire Fairfax County Attorney’s Office. Prior to terminating Loftus’ employment, Bobzien contacted the Standing Committee, which pointed him to LEOs 1718 and 1763. Both of those LEOs strongly suggested that Loftus’ continued employment as an assistant county attorney and her membership on the City Council would create an incurable conflict of interest, one which would prohibit any attorney in the Fairfax County Attorney’s Office from representing the County in matters, adverse or otherwise, with the City.

Loftus’ own correspondence with Ethics Counsel confirms the reasonableness of Bobzien’s position.

The opinion also evaluates her claims under Virginia law and a local ordinance. The court declines to read into each provision a private right of action that does not exist in the plain terms of the law.

In short: if you are a public employee, and you run for public office, be ready to walk away from your current job to take the office. It’s another barrier to entry for many who might otherwise be drawn to public office, yes, but in this case the potential for conflict seems pretty apparent.

Brandon J. Huffman

Brandon is the founder of Odin Law and Media. His law practice focuses on transactions and video games, digital media, entertainment and internet related issues. He serves as general counsel to the International Game Developers Association and is an active member of many bar associations and community organizations. He can be reached at brandon at odin law dot com.