Court: Fir­ing of Fair­fax County lawyer was jus­ti­fied

Woman was al­lowed to run for Fair­fax City Coun­cil — but not to win

The Washington Post Sunday - - LOCAL OPINIONS - VIR­GINIA BY TOM JACK­MAN tom.jack­man@wash­

Fair­fax County was legally jus­ti­fied when it fired one of its staff at­tor­neys for win­ning elec­tion to the Fair­fax City Coun­cil in 2014, a fed­eral ap­peals court has ruled.

The opin­ion marked the end of a nearly three-year saga for Nancy Fry Lof­tus, who had worked as an as­sis­tant Fair­fax County at­tor­ney for 17 years, han­dling tax col­lec­tion and bank­ruptcy mat­ters. A na­tive of Fair­fax City, she asked her boss, then-Fair­fax County at­tor­ney David Bobzien, in early 2014 if she could run for City Coun­cil. Lof­tus said Bobzien and an­other county at­tor­ney gave her their ap­proval, and she filed her can­di­dacy.

But two weeks be­fore the elec­tion, Bobzien sent her a memo telling her that she would be ter­mi­nated if she won. The in­ter­ac­tions be­tween Fair­fax County and Fair­fax City could cre­ate in­tractable con­flicts, Bobzien said, cit­ing ethics opin­ions from the Vir­ginia State Bar. Although there is a Vir­ginia law that bars lo­cal­i­ties from pro­hibit­ing its em­ploy­ees’ par­tic­i­pa­tion in pol­i­tics, Bobzien said there was no right to ac­tu­ally hold of­fice.

Sim­ply, she could run, but she could not win.

Lof­tus ran, she won, and she was fired. Her part-time coun­cil job paid about $4,500, while her county at­tor­ney job paid about $85,000 an­nu­ally.

A three-judge panel of the U.S. Court of Ap­peals for the 4th Cir­cuit ruled unan­i­mously Wed­nes­day that the fir­ing was per­mis­si­ble. “Pub­lic em­ploy­ees who de­sire to hold elected of­fice,” Judge G. Steven Agee wrote, “face re­stric­tions dif­fer­ent from those faced by non­pub­lic em­ploy­ees by virtue of the spe­cial trust and re­spon­si­bil­i­ties of be­ing a pub­lic em­ployee. This is par­tic­u­larly true for lawyer-leg­is­la­tors who are pub­lic em­ploy­ees, as they are fur­ther bound by the eth­i­cal re­quire­ments of their pro­fes­sion.”

Lof­tus ar­gued that fir­ing her in­fringed on her First Amend­ment right to free speech. “We con­clude any in­fringe­ment was min­i­mal,” Agee wrote. He said that “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.’ ”

And even though Vir­ginia has a law stat­ing that “no lo­cal­ity shall pro­hibit an em­ployee of the lo­cal­ity . . . from par­tic­i­pat­ing in po­lit­i­cal ac­tiv­i­ties . . . while off duty,” the ap­peals court ruled that the law did not pro­vide for any pri­vate law­suit if vi­o­lated and does not men­tion ac­tu­ally hold­ing of­fice as a pro­tected right.

J. Chap­man “Chap” Petersen, a Vir­ginia state sen­a­tor from Fair­fax City who rep­re­sented Lof­tus, said “that ba­si­cally makes the ‘right to run’ law mean­ing­less.” He said the rul­ing “leaves Vir­ginia pub­lic em­ploy­ees with­out any rem­edy if they are threat­ened by their boss with ter­mi­na­tion if they be­come a can­di­date for pub­lic of­fice.”

Fair­fax County of­fi­cials de­clined to com­ment on the rul­ing. Bobzien re­tired last year.

Lof­tus was dis­ap­pointed the rul­ing.

“I tried to fol­low the rules and do the right thing,” she said. “David Bobzien gave me per­mis­sion, in writ­ing, to serve on the city coun­cil and to con­tinue work­ing for the county . . . . Then, by for some rea­son, two months into the cam­paign, some­thing — or some­one — sud­denly changed David’s mind. Just two weeks be­fore the elec­tion, he sum­moned me to his of­fice and threat­ened that if I did not drop out of the race, he would fire me if I won.”

Lof­tus noted the ap­peals rul­ing cited other ju­ris­dic­tions that had “Hatch Act”-type poli­cies against po­lit­i­cal par­tic­i­pa­tion by em­ploy­ees, but Fair­fax does not. “In fact, other Fair­fax County em­ploy­ees, even other at­tor­neys, have held elected of­fice in Fair­fax City with­out any reper­cus­sions. I was sin­gled out and treated dif­fer­ently. That is the an­tithe­sis of free speech.”

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