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Media Alerts - Loftus v. Bobzien -- Fourth Circuit
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April 13, 2017
  Loftus v. Bobzien -- Fourth Circuit
Lawyer-Legislator? Nope. Fourth Circuit Upholds Firing of Assistant County Attorney Elected to Fairfax City Council

Areas of Law: First Amendment, Employment Law

Issue Presented: Whether the Fairfax County Attorney's Office's termination of an assistant county attorney following her election to the Fairfax City Council violated the First Amendment.

Brief Summary
: The United States Court of Appeals for the Fourth Circuit held that the termination of the plaintiff's employment did not violate the First Amendment for two reasons. First, as the Supreme Court has made clear, public employers may bar their employees from running for elective office. Accordingly, it follows that a public employee can be barred from holding elective office while a public employee. Second, if the resign-to-run and automatic resignation provisions of the Texas Constitution - which stripped certain public employees of their office upon declaring their candidacy for the state's legislature - survived First Amendment scrutiny in Clements v. Fashing, 457 U.S. 957, 971-73 (1982), the termination of the plaintiff's employment only after her election to the City Council should too. In addition, the Fourth Circuit held that the plaintiff's state law claim failed because the cited statutes do not create a private cause of action. Therefore, the Fourth Circuit affirmed the district court's dismissal of the First Amendment and state law claims.

Extended Summary: From 1997 until her termination in 2014, Nancy Loftus was employed by the Fairfax County Attorney's Office in Virginia as an assistant county attorney. In February 2014, Loftus told David Bobzien, the County Attorney for Fairfax County, that she was considering a run for the Fairfax City Council in the next election. Bobzien expressed his concern that Loftus' election might conflict with her responsibilities as an assistant county attorney because of ongoing business, contractual, and governmental relationships between Fairfax County (the "County") and Fairfax City (the "City").

Bobzien expressed his concerns again after Loftus became an official candidate for the City Council. Bobzien emphasized that if elected, Loftus' conflict of interest would prevent all of the County's attorneys from representing the County not only in court proceedings adverse to the City but also in civil matters. Bobzien cautioned Loftus that if she was elected to the City Council she would not be able to continue her employment with the County Attorney's Office. Nevertheless, Loftus proceeded with her candidacy, was elected to the City Council in May 2014, and was sworn in on June 24, 2014. Thereafter, Bobzien terminated Loftus's employment with Fairfax County.

After exhausting her administrative remedies, Loftus filed a lawsuit against Bobzien and the County Executive in the district court. Loftus alleged that her termination was solely because she had been elected to the City Council and was retaliatory, in violation of her First Amendment right to hold elected office. In addition, Loftus alleged that her termination violated Virginia Code § 15.2-1512.2 and Fairfax County Ordinance § 3-1-19, both of which secure a public employee's right to participate in certain "political activities." Loftus sought declaratory and injunctive relief, as well as $6,000,000 in damages.

The district court dismissed Loftus's complaint for failure to state a claim. As to her First Amendment claim, the district court ruled that Loftus's termination, which was due to a perceived conflict of interest, did not violate her First Amendment rights. As to her state law claim, the district court concluded that neither Virginia Code § 15.2-1512.2 nor Fairfax County Ordinance § 3-1-19 created a private cause of action.

As to the First Amendment claim, the Fourth Circuit first noted that, although it had never recognized a First Amendment right to hold elected office, it need not decide whether such a right existed to resolve the case. Citing the Supreme Court's decision in United Pub. Workers of Am. v. Mitchell, 330 U.S. 75, 99 (1947), the Fourth Circuit found that public employers may permissibly bar their employees from participating in a wide array of political activities, including running for elective office. "If a public employee can be prohibited from running for office," the court observed, "it follows all the more strongly that she also can be barred from holding elective office while remaining a public employee."

To further support its conclusion, the Fourth Circuit cited the Supreme Court's decision in Clements v. Fashing, 457 U.S. 957, 971-73 (1982). In Clements, the Court upheld two provisions of the Texas Constitution, one of which barred elected judicial officers from seeking election to the state's legislature during his or her term (the "resign-to-run provision"). By operation of the second provision, any elected judicial officer who declared his or her candidacy for the legislature was automatically deemed to resign from the office then held (the "automatic resignation provision"). The Fourth Circuit found that if the resign-to-run and automatic resignation provisions in Clements - which applied upon the declaration of a candidacy - survived First Amendment scrutiny, the termination of Loftus' employment only after her election to the City Council should, too. Therefore, the Fourth Circuit held that Loftus' termination of employment did not violate the First Amendment.

As to the state law claim, the Fourth Circuit found that under their plain terms, neither Virginia Code § 15.2-1512.2 nor Fairfax County Ordinance § 3-1-19 create a private cause of action. Thus, the court lacked the authority to create a right under a state statute where the state's legislature had elected not to include that right. Accordingly, the Fourth Circuit affirmed the district court's dismissal of both the First Amendment claim and the state claim.

To read the full opinion, click here.

Panel: Judges Agee, Diaz, and Thacker

Argument Date: 10/25/2016

Date of Issued Opinion: 02/08/2017

Docket Number: No. 15-2164

Decided: Affirmed by published opinion

Case Alert Author: Maria Nazarova, Univ. of Maryland Carey School of Law

Counsel: ARGUED: John Chapman Petersen, SUROVELL ISAACS PETERSEN & LEVY PLC, Fairfax, Virginia, for Appellant. Sona Rewari, HUNTON & WILLIAMS LLP, McLean, Virginia, for Appellees. ON BRIEF: Jason Frank Zellman, SUROVELL ISAACS PETERSEN & LEVY PLC, Fairfax, Virginia, for Appellant.

Author of Opinion: Circuit Judge Agee

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/13/2017 04:28 PM     4th Circuit  

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