Update: Political Retaliation Lawsuit Dismissal Appealed

The same day a federal judge dismissed former Loudoun detective Mark McCaffrey’s $6.3 million lawsuit against Sheriff Michael Chapman and the county, McCaffrey’s attorney filed a notice of appeal.

McCaffrey’s attorney, Robert Cynar, said he will challenge the court’s conclusion that sheriff’s deputies are covered by a patronage exemption that allows some public employees to be fired for political reasons.

“That was a legal judgment that the court made that we feel was in error, and that’s really where the focus is,” Cynkar said. “I think there were some other legal errors that were more technical.”

In an opinion dated Thursday, Oct. 12, Judge Anthony Trenga dismissed the wrongful termination lawsuit against Sheriff Michael Chapman and the county McCaffrey filed after being fired for supporting a different candidate in the Republican primary election for sheriff.

McCaffrey alleged his right to freedom of expression had been violated by his firing.

McCaffrey’s attorney sought to overcome court precedent which gives elected sheriffs broad authority to fire their deputies, including for political reasons. The court has found that when government employees in policymaking positions have a political disagreement with their elected leader, it can interfere with their ability to do their job, and their protections against politically motivated firing are moot. Because sheriff’s deputies operate autonomously, the court has found sheriff’s deputies are effectively making policy with their decisions.

McCaffrey was one of a handful of employees not re-sworn at the beginning of the sheriff’s second term in 2016. At the time, he was the lead investigator in the ongoing case of Braulio M. Castillo, one of Loudoun’s most high-profile murder cases in recent years, causing consternation to county prosecutors. He was subsequently hired by Commonwealth’s Attorney Jim Plowman until Castillo’s case ended in a conviction.

Cynkar argued that McCaffrey was relatively low-ranking deputy in a department of more than 600 and was not in a policymaking position. He also argued  that an agreement between the county government and sheriff extending county human resources policies to sheriff’s office employees should have afforded McCaffrey additional protections.

The lawsuit also alleged a great number of other bad practices in the agency, from mismanaging the budget, to awarding contracts to or hiring campaign contributors, to protecting friends from law enforcement, to poor morale among officers. At the time, Chapman called that “a reprised chronicle of false allegations, conjecture, innuendo and/or grossly exaggerated stories designed to smear me, our staff, and the honor and integrity of the entire Loudoun County Sheriff’s Office” in a statement.

Trenga found that the same protections for sheriffs other courts have staked out previously apply in this case. In his opinion, the judge refers to McCaffrey’s original complaint, in which he is described as “the lead detective in complex, high-profile cases, including rape, robbery, and homicide investigations,” with years of experience and authority to directly request the resources of the Commonwealth’s Attorney and the Medical Examiner’s Office.

“A deputy with McCaffrey’s alleged experience, seniority and responsibilities within a sheriff’s office is a policymaker,” Trenga wrote.

That cooperative agreement between Chapman and the Board of Supervisors, which provides most of the sheriff’s budget, was central to McCaffrey’s argument against the county, but ultimately did not factor into the court’s decision. In a footnote in the decision, Trenga wrote that, because McCaffrey had not demonstrated that his rights had been violated, the court “need not consider whether the Cooperative Agreement creates in McCaffrey’s favor rights in addition to those prescribed by the United States and Virginia Constitutions, as any such rights would be contractual in nature” and the federal district court lacks jurisdiction over that dispute.

Chapman said, “the judgment speaks for itself.”

“I’m happy with the outcome, I’m happy that the judicial process worked, and that it reaffirmed the constitutional authority of sheriffs in Virginia,” he said.

This article was updated Oct. 13 at 12:35 p.m.

rgreene@loudounnow.com
@RenssGreene

3 thoughts on “Update: Political Retaliation Lawsuit Dismissal Appealed

  • 2017-10-13 at 12:09 am
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    A few comments based on the opinion that can be read here.

    1. On a technical point, federal courts can rule on state law matters (e.g. contracts). However, in order to get your claim in federal court, there must be a federal/constitutional issue involved in the case. If there are no federal claims, then the court cannot consider just state law claims. If there is at least one federal claim, the court has the option to consider state law claims as well. For example, in my case against the Loudoun BOS/Randall, Judge Cacheris initially ruled the 11th Amd barred the court from considering any state law claims against a public body even if there was also a valid constitutional claim. He was wrong. But when I pointed this out in a follow-on motion, he agreed but said he would decline to consider the state law FOIA claim. Here, the cooperative agreement would only give the Loudoun BOS a claim against Chapman (no claim by McCaffrey) since the county was the only party to the agreement. However, even if McCaffrey were a party to the agreement (in “privity” in the contract), his contract claims can’t be submitted in isolation in federal court. However ….

    2. McCaffrey could have brought a separate lawsuit on the cooperative agreement in state court even after this one was dismissed. Normally, you can’t bring the same claim twice. However, since the federal court ruled it did not have jurisdiction over the contract claim, it is as if the claim was never truly before the federal court. Thus, the claim could be refiled in state court. However, I believe the statute of limitations has expired for the contract claim in state court (1 year). Claims brought under the federal civil rights statute (“1983”) have 2-year statute of limitations. That is likely how McCaffrey brought a claim for action in Dec 2015 to court in the middle of 2017. So it looks like he cannot refile just the contract claim in state court now because more than 1 year has passed.

    3. The ruling on the free speech claim is exactly on point. Agree or not, the courts have decided that partisan positions like the advisors to a governor or even any sheriff’s deputy with significant discretion (who to arrest) are “policymaking” positions. Thus, they can be fired for pure partisan reasons. Don’t like it? Vote differently. But most understand you can’t have a police force looking to embarrass their boss when they are vested with such powers.

    4. McCaffrey has already filed an appeal with the court today. That is foolish but I guess the attorney needs to convince his client that his advice wasn’t faulty. Rather than admit incompetence, the attorney will just waste more of his client’s money.

    Lastly, to the clown who commented on a previous article that described other commenters’ analysis as “rudimentary”, maybe you should learn to interpret the law. It’s pretty much a given that comment was made by McCaffrey’s attorney, as much to convince his client he was right than any objective viewpoint. Trying to interpret a judge’s ruling by a few offhand comments from the judge in court is silly. If he hasn’t learned that lesson in 20 years, the attorney is unlikely to ever learn it. It certainly didn’t take anywhere near 10 days to determine this case was frivolous because the law is so clear.

  • 2017-10-17 at 2:26 pm
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    “……authority to directly request the resources of the Commonwealth’s Attorney and the Medical Examiner’s Office.”

    A policymaker does not need authority. A policymaker is the authority.

    McCaffrey would notify the Medical Examiner when there was a deceased individual, that would construe a “policy decision?” It would also be a “policy decision” when McCaffrey would speak with the Commonwealth’s Attorney about a case they would ultimately be prosecuting? It must also be a “policy decision” when the corrections officer makes a decision to serve green beans with lunch, instead of carrots…..

  • 2017-10-17 at 9:15 pm
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    Ted, it’s quite simple. This is the law in Virginia. Laegislators can change the law. Heck, they have already changed multiple laws because of the cases I brought.

    Work to change the law if you don’t like it. But you can’t argue that it isn’t the law given the precedents are 20+ years old and no changes in Virginia law on this subject have occurred since. But be careful. You will likely end up with factions trying to show how effective/ineffective the current policies are as employees for political reasons.

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