Loftus v. Bobzien

• Decision Date: 08 February 2017
• Docket Number: No. 15-2164,15-2164
• Citation: 848 F.3d 278
• Parties: Nancy LOFTUS, Plaintiff–Appellant, v. David BOBZIEN, County Attorney, Fairfax County; Edward L. Long, County Executive, Fairfax County, Defendants–Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

848 F.3d 278

Nancy LOFTUS, Plaintiff–Appellant,
v.
David BOBZIEN, County Attorney, Fairfax County; Edward L. Long, County Executive, Fairfax County, Defendants–Appellees.

No. 15-2164

United States Court of Appeals, Fourth Circuit.

Argued: October 25, 2016
Decided: February 8, 2017

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.

Before AGEE, DIAZ, and THACKER, Circuit Judges.

Affirmed by published opinion. Judge Agee wrote the opinion, in which Judge Diaz and Judge Thacker joined.

AGEE, Circuit Judge:

David Bobzien ("Bobzien"), the County Attorney for Fairfax County, Virginia, terminated the employment of Nancy Loftus ("Loftus"), an assistant county attorney, following her election to the Fairfax City, Virginia, City Council (the "City Council"). After an unsuccessful grievance proceeding, Loftus filed suit in the United States District Court for the Eastern District of Virginia, challenging Bobzien's decision to terminate her employment "solely because she had been elected to the City Council." J.A. 4. Loftus contended Bobzien's actions violated her rights under the First Amendment to the United States Constitution as well as a Virginia statute and Fairfax County ordinance. The district court dismissed Loftus' complaint, concluding the termination of her employment did not violate the First Amendment, Virginia law or the local ordinance. For the reasons set out below, we affirm the district court's judgment.

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I.

From 1997 until her termination in 2014, Loftus was employed by the Fairfax County Attorney's Office as an assistant county attorney.¹ In early 2014, Loftus contemplated becoming a candidate for the Fairfax City Council, the governing body of a separate and independent municipality from Fairfax County under Virginia law. See Va. Const. art. VII, § 2 ; Va. Code Ann. § 15.2–204. In February 2014, Loftus told Bobzien she was "considering a run" for the City Council in an election scheduled for May 2014. J.A. 10. As of February 2014, however, she had not announced her candidacy and had not formally filed to become a candidate.

Bobzien initially expressed misgivings about Loftus' intentions, stating in an email to her that election to the City Council might conflict with her responsibilities as an assistant county attorney because the County Attorney's Office "routinely ha[s] dealings with the City that can lead to contention." J.A. 27. At the time, Fairfax County and Fairfax City had a number of "ongoing business, contractual and governmental relationships," including "numerous agreements and memoranda of understanding" that provided for services such as "police, fire, library, health, welfare and social services, and sanitary sewer and waste disposal." J.A. 32. In response to Bobzien's concerns, Loftus represented that she had "never been involved in any case against, or even with, the City" in her duties as an assistant county attorney. J.A. 26.

On April 17, 2014, once Loftus had become an official candidate for City Council, Bobzien sent her an extensive and thorough letter that again expressed concern about the conflict of interest that Loftus' election to the City Council would create. In particular, the letter noted that if Loftus were to win the election, her duties as a member of the City Council would conflict with her responsibilities as an assistant county attorney because of the numerous legal relationships between the City and County. Bobzien also expressed concern that Loftus' conflict of interest would be imputed to every attorney in the Fairfax County Attorney's Office. In that circumstance, all of the County's attorneys would be prevented from representing Fairfax County not only in court proceedings adverse to Fairfax City but also in civil matters. In view of that apparent conflict, Bobzien cautioned Loftus that "if you decide to continue to pursue your election to the City Council, and you are successful, you will not be able to continue your employment with this Office once you take office as a member of the Fairfax City Council." J.A. 32.

In conveying his concerns to Loftus in the April 17 letter, Bobzien referenced Virginia's Rules of Professional Conduct (the "Rules") and three legal ethics opinions ("LEOs") from the Virginia State Bar's Standing Committee on Legal Ethics (the "Standing Committee") interpreting the Rules: LEO 1718, LEO 1763, and LEO 1773. In relevant part, LEO 1718 provides that "if a law firm represents clients before a governing body when one of its

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lawyers is a member, there is the appearance, if not the fact, of conflicting loyalties." J.A. 50. LEO 1718 explains the ethical dilemma for the lawyer-legislator:

The law firm, which includes the lawyer who sits on the governing body, owes a duty of loyalty to the client and must use all available resources to achieve the client's lawful objective. The duty of loyalty is diluted and the available resources impaired, however, when the law firm must exclude the lawyer-legislator from the representation, and the law firm cannot enlist his knowledge of the subject matter or of the governing body in the representation. The lawyer-legislator may have acquired non-public or even confidential information as a member of the governing body that would serve the client's interest. The client is denied the benefit of such information, however. If the law firm seeks client-consent to the limitation on its resources, the law firm might well be asking for consent to less than adequate representation.

Similarly, the lawyer-legislator has a duty to the governing body on which he/she serves and to his/her constituents. When he/she abstains from the governing body's decision-making because it involves his/her law firm's representation of a client, then his/her personal interest is elevated over his/her duty as a public servant. Both the governing body and the lawyer-legislator's constituents are deprived of the benefit of his/her voice in the decision-making process.

J.A. 50. The LEO concludes "it is not ethically permissible for a law firm to represent a client in a matter before a governing body when one of the law firm's lawyers is a member of the governing body even if he/she discloses the conflict and abstains from participation and voting in the matter." J.A. 50.

In LEO 1763, the Standing Committee reaffirmed LEO 1718 and concluded: "for an attorney/board member to recuse himself from a matter before his board in order that his law firm may accept representation of a private client creates an impermissible conflict of interest.... [and, thus,] an attorney may not accept representation of a client in a matter that would require an appearance before a board, or other public body, of which any member of that attorney's firm is a member." J.A. 52. Finally, in LEO 1773, the Standing Committee referenced LEO 1718 and LEO 1763 as describing an "obvious" conflict, which cannot be cured by recusal because "recusal would violate the attorney/board member's obligations to his constituents." J.A. 53. Based on those LEOs, Bobzien concluded Loftus' election to the City Council would create a similar and intractable conflict of interest both for her and the Fairfax County Attorney's Office, as she had been advised in the April 17 letter.²

In response to Bobzien's concerns, Loftus contacted the "Ethics Hotline" of the office of the Virginia State Bar's Ethics Counsel ("Ethics Counsel"). She inquired: "is it unethical for me to be an [a]ssistant [c]ounty [a]ttorney for Fairfax County and also serve on the Fairfax City Council?" J.A. 57. Answering by letter, Ethics Counsel stated that the "short answer" is "it is not per se unethical for a lawyer to be employed in a law firm or government attorney's office and concurrently hold a public position or office." J.A. 57. Ethics Counsel then qualified his abstract answer

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by cautioning "lawyers that serve on public bodies will create conflicts of interest if the law firm in which the public official practices also interacts with the public body on which one of its lawyers sits." J.A. 57. The letter continued:

LEOs 1718 and 1763 address this type of conflict and further opine that the public official's disclosure, recusal and non-participation in the matter brought by her law firm does not cure the conflict from a legal ethics standpoint while recognizing that state and local government officials' conflicts of interest laws are satisfied by those curative measures. In other words, lawyers that hold public office are held to a stricter standard than non-lawyers holding public office.

J.A. 57. Ethics Counsel concluded that "[t]his [stricter standard] is not new and has been repeatedly emphasized by the Standing Committee on Legal Ethics going back to opinions issued long before LEOs 1718 and 1763, although those opinions provide the best guidance and analyses of the issue." J.A. 57. Notwithstanding these ethical "red flags," Loftus proceeded with her candidacy—and was elected to the City Council in May 2014.

Following his April 17 letter, Bobzien confirmed his...