E-Alert Case Updates

The U.S. Court of Appeals for the Fourth Circuit holds that a public employee may be lawfully terminated when elected to public office because of inevitable conflicts of interest.

Nancy Loftus v. David Bobzien
No. 15-2164 (February 8, 2017) United States Court of Appeals for the Fourth Circuit
by Julia L. Houp, Law Clerk
Semmes, Bowen & Semmes (www.semmes.com)

Available at: http://www.ca4.uscourts.gov/Opinions/Published/152164.P.pdf

From 1997 until her termination in 2014, Nancy Loftus was employed by the Fairfax County Attorney’s Office as an assistant county attorney. In early 2014, Loftus contemplated running for Fairfax City Council, the governing body of a separate and independent municipality from Fairfax County. In February 2014, Loftus told David Bobzien, the County Attorney for Fairfax County, that she was “considering a run” for the City Council election in May 2014.

Initially, Bobzien expressed his concern about Loftus’ intentions in an email, worried that her election to the City Council may conflict with her duties as an assistant county attorney because the County Attorney’s Office “routinely ha[s] dealings with the City that can lead to contention.” On April 17, 2014, after Loftus became an official candidate for the City Council, Bobzien sent her a lengthy and detailed letter that again expressed concern about the conflict of interest that Loftus’ election to the City Council would create. Specifically, the letter explained that if Loftus were to win, her duties as a City Council member would conflict with her duties as an assistant county attorney because of the numerous legal relationships between the City and County. Additionally, Bobzien stated that Loftus’ conflict of interest would be attributed to every attorney in the Fairfax County Attorney’s Office.¹ Because of such inevitable conflicts, Bobzien warned Loftus that if she decided to run for city council and won, she would be terminated as an assistant county attorney once she took office as a member of the City Council.

To supplement his concerns in the April 17 letter, Bobzien also referenced Virginia’s Rules of Professional Conduct and three legal ethics opinions (“LEOs”) from the Virginia State Bar’s Standing Committee on Legal Ethics (“Standing Committee”) interpreting the rules. All three LEOs explain the ethical dilemma in which a lawyer-legislator will face, along with an impermissible conflict of interest. Based on the LEOs, Bobzien concluded that Loftus’ election to the City Council would create an obvious conflict of interest for both Loftus and the Fairfax County Attorney’s Office.

Following Loftus’ election to the City Council, but before she took office, Bobzien placed her on paid administrative leave and again explained the unavoidable conflict of interest. Loftus was sworn in as a member of the City Council on June 24, 2014, however. As a result, Bobzien terminated her employment with Fairfax County effective June 30, 2014.

Loftus filed a grievance in July 2014 challenging the grounds for her termination, which was heard and denied by the Fairfax County Attorney’s Office. After exhausting all administrative appeals and remedies, Loftus filed this action in the district court, alleging that she had been terminated in violation of 42 U.S.C. § 1983, Virginia Code § 15.2-1512.2, and Fairfax County Ordinance § 3-1-19. The district court dismissed Loftus’ § 1983 action for failure to state a claim. The court also dismissed her state law claims, finding that neither created a private right of action.

In order to state a successful claim under § 1983, a plaintiff “must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” Crosby v. City of Gastonia, 635 F.3d 634, 639 (4th Cir. 2011). Here, the Fourth Circuit found that lengthy jurisprudential history makes clear that public employees who wish to hold elected office face restrictions that are different from those faced by non-public employees because of the special trust and responsibilities of being a public employee. This is especially true for lawyer-legislators who are public employees, since they are further bound by the ethical requirements of their profession. For the last seventy years, courts have consistently approved a variety of restrictions on a wide range of political activity by public employees, including running for or holding public office. Given such precedent, the court ruled that Loftus’ § 1983 claim must fail.

In addition to her federal claim, Loftus states that her termination violated her rights under Virginia Code § 15.2-1512.2, arguing that this section gives her an absolute right to hold public office as a public employee. The statute holds that “no locality shall prohibit an employee of the locality . . . from participating in political activities while . . . off duty, out of uniform and not on the premises of [her] employment with the locality.”

The court ruled that this claim fails for two reasons. First, section 15.2-1512.2 includes no express private cause of action. Second, even if the court implied a private right of action, Loftus’ argument—that section 15.2-1512.2 protects the right to hold office—is inconsistent with the language of that statute. Section 15.2-1512.2 does not specifically create a right to hold office, and when interpreting a statute, the court must apply its plain meaning, “unless the terms are ambiguous or applying the plain language would lead to an absurd result.” JSR Mech., Inc. v. Aireco Supply, Inc., 786 S.E.2d 144, 146 (Va. 2016). Thus, her state law claim must fail.

Loftus also argues that Fairfax County Ordinance § 3-1-19 gives her a similar right comparable to section 15.2-1512.2. Again, this ordinance does not establish a private cause of action, but instead adopts a right to a grievance proceeding before the Fairfax County Civil Service Commission. The court held that, because the ordinances calls exclusively for a grievance procedure, a private right of action cannot be inferred when the legislative body has declined to do so. Therefore, Loftus’ claims must fail, and the judgment of the district court is affirmed.

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