Court: Firing of Fairfax County lawyer was justified
Woman was allowed to run for Fairfax City Council — but not to win
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.”