Can an Assistant County Attorney Sit on the Council of a City in the County?
According to <a href="http://www.washingtonpost.com/blogs/local/wp/2014/06/27/fairfax-county-…; target="_blank">an
article last week in the Washington <i>Post</i></a><i>, </i>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:<blockquote>
“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 <em>hold</em> public office.”</blockquote>
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. <a href="https://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+15.2-1512.2" target="_blank">Section 15.2-1512.2
of the Code of Virginia</a> 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.<br>
<br>
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.<br>
<br>
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 <a href="http://www.fairfaxtimes.com/article/20140702/NEWS/140709733/1117/counci…; target="_blank">another
article</a> 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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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