Can an Assistant County Attorney Sit on the Council of a City in the County?

According to an article last week in the Washington Post, the Fairfax County (VA) Attorney fired one of his office's assistant attorneys because she was elected to the council of a city within the county, even though he and his deputy who deals with personnel matters had given her permission to run for office. In a letter sent after the election, the county attorney explained the apparent contradiction as follows:

“I apologize if you were misled by the apparent ambiguity. 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, you can run for office, but you can't win. However, it's not a First Amendment issue, it's a statutory issue. Section 15.2-1512.2 of the Code of Virginia expressly allows local government employees to participate in “political activities” as long as they are out of uniform, on their own time, and are not trying to use their position to solicit donations or support. Included in the definition of “political activities” is “becoming a political candidate.” Any reasonable interpretation of this would include winning an election. The only question is whether the office won may be within the county, at least with respect to an assistant county attorney.

The assistant county attorney reasonably assumed that she could withdraw from matters where she would have a conflict. Since she handled primarily tax and bankruptcy matters, there would not likely be many such matters.

But three weeks before the election, the county attorney changed his tune. He wrote a memo stating that he had consulted with the state bar’s ethics counsel (although another article says that it was the assistant attorney who consulted the ethics counsel), and that his assistant's election would create “a conflict that would be imputed to every attorney in this Office” in cases involving the city whose council she would sit on. He cited numerous examples of cases where the city and the county might be on opposite sides of a matter. He also said that because a city council member is not allowed to lobby the state legislature, no one in his office could lobby the state legislature.

The problem with this position is that it is apparently based on cases involving private law firms. In private law firms, partners share the proceeds from each other's work, so they financially benefit from any work done by the firm. But more important, their legal relationship is that of partners. As partners, any one lawyer's client is every lawyers' client. Often, law firms say that they create a firewall to keep a conflicted partner out of the loop (personally and financially) regarding a particular client or transaction, but when it comes to appearances, such a firewall doesn't work, because there is no way to know whether or not it is being honored. And with respect to income, money is fungible and partnership percentages are the result of negotiations, so it is impossible to say that a partner received no income from a client or transaction.

In a county attorney's office, however, no one financially benefits from work done by the office, and the relationship of the lawyers is that of any employee in a government agency:  they report to the same individual. If the boss were a council member, this would cause problems. But when one employee has a conflict, withdrawal from participation is an adequate cure.

The new council member (as of yesterday) was terminated from her job with the county attorney's office last Friday. I wonder if any government ethics expert was consulted in this matter, or if it was treated solely as a legal ethics matter. If so, this is yet another example of how much lawyers confuse the two, treating government ethics situations as they would a legal ethics situation, and how they favor legal ethics when a situation involves both types of ethics issue. This shows how problematic it is for a county attorney office to have anything to do with government ethics, especially with giving ethics advice, as the county attorney did in this case.

Robert Wechsler
Director of Research-Retired, City Ethics

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