Fairfax County fired one of its assistant county attorneys Friday afternoon because she won election last month to the Fairfax City Council, allegedly creating an incurable conflict in legal matters that might involve both the city and the county.
Nancy Fry Loftus worked on the staff of County Attorney David Bobzien for 17 years, mostly in tax collection and bankruptcy cases. A native of Fairfax City, she said in early February she asked Bobzien both orally and in writing if she could run for city council in the jurisdiction of 23,000. “He said, ‘Great, good for you,’” Loftus said Friday evening. She said Bobzien suggested she speak with the deputy county atttorney for personnel, who told her, “Not only can you run, we can’t prohibit you from running.”
Bobzien was not available for comment Friday, but his correspondence in the case, including his 12-page dismissal letter, was released by Loftus’s attorney, Virginia state senator and former Fairfax City councilman Chap Petersen (D).
In a Feb. 12 email, Bobzien first raised his concern that Loftus may have a conflict of interest if she served on the Fairfax City council. Loftus immediately responded that, under Virginia law, the county could not prevent a county employee from running. “No need to discuss further,” Bobzien replied, “I see and accept your point.”
Loftus launched her campaign, and said she had jovial conversations with her boss discussing it. But on April 17, three weeks before the election, Bobzien suddenly sent her a memo telling her she would be terminated if she won. Bobzien said he had consulted with the state bar’s ethics counsel, and that Loftus’s election in Fairfax City would create “a conflict that would be imputed to every attorney in this Office” in cases involving Fairfax City. Bobzien cited numerous examples of cases where the city and the county might be on opposite sides of the legal table, including the recently concluded “Water Wars” dispute between Fairfax County and Fairfax City, zoning disputes, tax disputes and issues involving policing, health services and libraries. Bobzien also said that as a Fairfax City Council member Loftus could not lobby the state legislature, and therefore no one in his office could lobby in Richmond.
Loftus stayed in the election and won a seat on May 6, a part-time post which pays $4,500 annually. Her job with the county pays about $85,000 annually.
On May 29, while at her desk, Loftus said her computer access was shut down. She was told to leave. Petersen sent a letter to Bobzien, asking in part about the county attorney’s earlier guidance seemingly supporting her candidacy. “I apologize if you were misled by the apparent ambiguity,” Bobzien wrote. “I have never disputed that [Virginia law] bars localities from prohibiting its employees from participating in political activities…There is no right, however, under the First Amendment or otherwise that guarantees that an attorney can hold public office.”
In other words, she could legally run, but she could not legally win.
If elected, couldn’t she recuse from matters involving both sides? Bobzien cited an ethics counsel’s opinion that “the public official’s disclosure, recusal and non-participation in [a] matter brought by her law firm does not cure the conflict from a legal ethics standpoint.”
Petersen said interpreting state law that a government employee may run for office, but may not hold office, “would negate the entire statute. The ethical opinions that they cite are not relevant. They deal with situations where an attorney works with a particular law firm that lobbies that governing body.”
Placed on paid leave on May 29, Loftus received notice Friday afternoon that she was terminated. She was sworn in to the Fairfax City Council on Tuesday, and formally takes her seat July 1.
“I’m in shock and I’m heartbroken,” she said. “I held out hope that they weren’t going to do this. I loved my job for the county. I love my hometown. I wouldn’t have run for city council if I didn’t think it was important.”
Petersen said the firing of Loftus was “a fairly blatant violation of both Virginia law and her First Amendment right to participate in the political process.” He said he was “considering all legal options.” Loftus said she would begin her city council term next week.