Nancy Loftus v. David Bobzien
848 F.3d 278
| 4th Cir. | 2017Background
- Nancy Loftus was an assistant county attorney for Fairfax County from 1997 until terminated in 2014 after being elected to the Fairfax City Council (a separate municipality).
- County Attorney David Bobzien warned that Loftus’ service on the City Council would create conflicts with the County Attorney’s Office because the County and City have numerous interrelated legal and contractual matters.
- Bobzien relied on Virginia Rules of Professional Conduct and Virginia State Bar legal ethics opinions (LEO 1718, 1763, 1773) concluding lawyer-legislator status creates non-waivable conflicts that recusal cannot cure; Loftus received similar guidance from Ethics Counsel.
- After Loftus was sworn in (June 24, 2014) and before her term began, Bobzien placed her on leave and terminated her effective June 30, 2014, citing conflicts and County Personnel Regulation §4.16.
- Loftus pursued internal grievance and Civil Service Commission review (which affirmed termination) and then sued under 42 U.S.C. §1983 (First Amendment retaliation), Va. Code §15.2-1512.2, and Fairfax Ord. §3-1-19; the district court dismissed under Rule 12(b)(6).
- The Fourth Circuit affirmed: termination did not violate the First Amendment and the state statute and county ordinance do not provide a private cause of action nor protect holding office.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether termination violated a First Amendment right to hold elected office | Loftus: termination for being elected violated any constitutional right to hold office | Bobzien: public employers may restrict officeholding for employees to prevent conflicts and preserve efficiency | Court: No recognized unfettered First Amendment right; restrictions justified (Clements/Letter Carriers) — termination lawful |
| Whether termination violated First Amendment under Pickering balancing (public concern speech) | Loftus: Pickering balancing favors her free-speech/officeholding interests | Bobzien: employer need only show adverse effect reasonably apprehended; conflicts and ethics opinions justify termination | Court: Pickering balance favors County; potential intractable conflicts and efficiency interests outweigh minimal infringement |
| Whether Va. Code §15.2-1512.2 creates a private right to hold office or sue for wrongful termination | Loftus: statute’s broad "political activities" protection includes holding office; implies private remedy | County: statute protects off-duty political activity but contains no private cause of action and does not extend to holding office while employed | Court: No private cause of action implied; statute’s text doesn’t encompass governing/holding office; claim dismissed |
| Whether Fairfax County Ord. §3-1-19 provides a private remedy similar to state statute | Loftus: county ordinance protects political activity and supports a claim | County: ordinance mirrors state statute and provides grievance process (exclusive administrative remedy) but no private suit | Court: No private right of action; grievance procedure exclusive; ordinance claim dismissed |
Key Cases Cited
- United Pub. Workers of Am. v. Mitchell, 330 U.S. 75 (1947) (government may restrict political participation of public employees to protect service efficiency)
- United States Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, 413 U.S. 548 (1973) (upholding restrictions on civil service employees’ partisan political activities to preserve impartial government)
- Pickering v. Board of Education, 391 U.S. 563 (1968) (balancing public employee speech rights against employer efficiency interests)
- Clements v. Fashing, 457 U.S. 957 (1982) (upholding resign-to-run/automatic-resignation provisions as justified de minimis infringements on candidacy/officeholding)
- Connick v. Myers, 461 U.S. 138 (1983) (framework for assessing whether employee speech touches matters of public concern relevant to Pickering analysis)