You Can Run, But You Can’t Win?

You Can Run, But You Can’t Win?

Fairfax County fires attorney for winning city council seat.

Like many lifelong City of Fairfax residents, Nancy Fry Loftus is proud of her hometown’s character and charm — a Norman Rockwell postcard of small-town life in the heart of an increasingly urban, diverse and bustling region.

After winning a seat on the six-member City of Fairfax Council in May, Loftus was looking forward to celebrating Independence Day with her family and participating in the city’s annual old-fashioned July 4th extravaganza, which includes a colorful hometown parade, firefighter’s competition, and the largest fireworks display in the area.

But as she sat in historic Old Town Hall on Friday, July 4 — during the annual meet-and-greet luncheon with city leaders — Loftus started to tear up.

What she thought would be a moment of pure celebration had turned bittersweet.

A week earlier, on June 27, Loftus had been abruptly fired from her job as a Fairfax County assistant attorney by County Attorney David Bobzien.

“My computer was shut down, and I was locked out of the office … I had worked there for 17 years, and I always had great reviews. This was just humiliating,” Loftus said.

So why was Loftus terminated?

According to her attorney, state Sen. Chap Petersen (D-34), winning the non-partisan election — which comes with a $4,500 salary — cost Loftus her $85,000-a-year county job.

In fact, her termination followed two warnings from the County Attorney’s Office — the first on April 17, just 19 days before Election Day.

THOSE WARNINGS, Petersen said, stated that Loftus would be terminated unless she either withdrew from the election or declined the office.

Petersen released correspondence with the Fairfax County attorney’s office, which includes Bobzien’s 12-page dismissal letter. In the letter, Bobzien acknowledges that Virginia State Law allows Loftus to be a candidate, but claims the same law does not provide her with the right to actually hold office.

If Loftus accepted the will of the voters in the City of Fairfax — and held the office to which they elected her — it would create a terminal conflict of interest in matters that involve both the city and the county, according to the County Attorney’s office.

“I find that distinction to be an absurdity which would nullify the state law which specifically permits local government employees to be ‘candidates’ for public office,” Petersen said. “Nancy was terminated solely for being elected to the Fairfax City Council while being employed by the county. It’s bizarre. I mean, if someone gets too active in their church, are we going to fire them next?”

A former Fairfax City council member, Petersen said he called Bobzien several times to discuss alternatives to firing Loftus, but Bobzien never called him back. Petersen said he took the case for several reasons.

“I've known Nancy since we were elementary school students together in the 1970s. I have great respect for her honesty and integrity,” Petersen said. “I also think that the county attorney's actions are wrong, both as a legal matter and as a matter of fairness and consistency.”

Petersen said the core issue is one of “free speech.”

“Localities in Virginia cannot arbitrarily fire employees who exercise their First Amendment rights of political speech and participation. I am disappointed and frankly surprised that the county attorney’s office would ignore the law, especially after the County Attorney himself authorized Nancy’s candidacy back in February.”

Loftus said she approached her boss when she first thought about running for the seat. “If David had said no, I don’t think I would have run…He hired me as a clerk when I was in law school. He would ask me how the campaign was going, and we would joke about it in a friendly way, like ‘don’t campaign in your county uniform …’ I thought he was totally fine with it.”

Loftus said her first inkling that Bobzien might not be completely fine with her campaign came in a Feb. 12 email.

“He said, ‘I’m having some thoughts about conflict of interest, maybe we can meet one day next week.’ I called the office immediately, but it was during a snowstorm and the offices were closed. I emailed him that this was really, really important, and I said there are ways to deal with (any concerns), and state law was clear … Even if you work for the county, you don’t waive the right to the rest of your life … I asked him to please call me back,” Loftus said Friday, adding that Bobzien emailed her a note that night stating there was “no need to discuss this further. I see and accept your point.”

Loftus said her interactions with her boss after that exchange were cordial, and there was nothing out of the ordinary.

Until April 17 at 8:30 a.m., when she received a 30 –page memo from Bobzien informing her that she would be fired if she did not withdraw from the race.

“I was completely blindsided. It was just a few weeks before the election and the campaign had gotten heated … I thought I would be sick,” Loftus said Friday.

Loftus was concerned enough about the ethical questions Bobzien raised to contact the Virginia State Bar’s ethics hotline that same day. She received an email reply later that day from James M. McCauley, Ethics Counsel of the Virginia State Bar.

“You have asked "[i]s it unethical for me to be an Assistant County Attorney for Fairfax County and also serve on the Fairfax City Council?"

“The short answer to this question is "no" 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. Many lawyers have served in public office while practicing in a law firm at the same time, especially when the public position is only a part-time endeavor. To hold otherwise would mean that no lawyers could ever hold public office and practice law in a law firm. Obviously, that is not the position of the Virginia State Bar, Ethics Counsel or the Standing Committee on Legal Ethics.

Loftus also asked if it was unethical for the county attorney to “threaten to fire me if I participate in statutorily protected political activity?”

McCauley wrote that the question was “beyond the purview of the Rules of Professional Conduct and therefore I am not authorized to render an opinion on that issue.”

“I was satisfied that I was not violating VSB ethics,” Loftus said.

“They threatened her with her job. She had this ax hanging over her head for the rest of the campaign,” said Connell, Loftus’ husband, who brought Loftus a plate of food Friday at the Old Town Hall luncheon as she sat with well-wishers.

Connell Loftus, who also grew up in the City of Fairfax, said he had just started a new job when his wife was fired from hers.

“It was a catastrophic economic event for our family. We lost our insurance, and 50 percent of our family’s income. It’s been a stressful time,” Connell said.

Bobzien was not available for comment, but several county officials, who asked not to be named, said Bobzien’s concerns over a conflict of interest are justified and they supported his move to fire Loftus.

Bobzien’s correspondence shows he consulted with the Virginia state bar’s ethics counsel who advised that if Loftus won the election, a conflict of interest would be “imputed to every attorney” in the county attorney’s office.

For example, if Loftus — as a city council member — could not lobby the state legislature, then no one in his office could lobby in Richmond. He also listed potential legal conflicts between the city and the county, such as tax and zoning disputes.

Bobzien also mentioned the recent epic legal battle known as the “water wars,” triggered when Fairfax County enacted an ordinance in 2011 to regulate the city’s “high” water rates, and the city — seeing the ordinance as a blatant power grab for water systems the county didn’t own — sued the county.

THE SHOWDOWN ultimately embroiled the City of Fairfax, Fairfax County and two other government bodies, the U.S. Army Corps of Engineers and a billion-dollar utility company, who all spent a significant amount of time and money on legal counsel and PR campaigns battling each other for control. In the end, Fairfax County won.

Loftus acknowledged she publicly talked about the “water wars” during the campaign, and she said she wonders if those statements — on such a prickly subject — caused her job to be in jeopardy. But Loftus said that if that’s true, then Fairfax County should be pleased, since she stated she did not think the city should have sued the county.

As Loftus finished her Independence Day lunch, one well-wisher, Steve Caruso, a part-time City of Fairfax employee, came up to Loftus and said he wanted to shake her hand. “I just read about your plight in the paper. I think it’s totally unfair,” he said.

“That makes me feel good to know there are people supporting me in this,” Loftus said.