Judge Urged to Dismiss Wrongful Termination Lawsuit Against Loudoun Sheriff

ALEXANDRIA — Former Loudoun County Sheriff’s Office investigator Mark McCaffrey got a day in court Friday as federal Judge Anthony J. Trenga heard an hour of lawyers’ arguments about why his $6.3 million wrongful termination lawsuit should be immediately dismissed—or immediately upheld.

The lawsuit alleges Sheriff Michael Chapman violated McCaffrey’s constitutional right to free speech by not re-hiring him to serve in Chapman’s second term after McCaffrey supported a different candidate in the 2015 Republican primary.

Legal precedents give elected sheriffs, like Chapman, broad leeway to terminate employees, including for partisan actions. However, McCaffery’s attorneys are arguing that an agreement between the Board of Supervisors and the Sheriff’s Office that extended the county’s employee policies to Chapman’s staff should have provided McCaffrey and other deputies with additional protections.

In court Friday morning, Trenga heard arguments on several motions. Chapman’s attorney, Alexander Francuzenko, sought the immediate dismissal of the lawsuit. Assistant Loudoun County Attorney Courtney R. Sydnor sought to have the Board of Supervisors and the county government dismissed as defendants in the case. And McCaffery’s attorney, Robert J. Cynkar, sought a summary judgement in which the judge would find substantial evidence to rule in the plaintiff’s favor without a trail.

Trenga took no action, but said he would issue a ruling quickly.

“The law is clear that Sheriff Chapman was within his rights to not re-swear [McCaffrey],” Francuzenko said.

Sydnor said that the agreement between the county and Sheriff’s Office made it clear that Chapman’s employees were not subject to the county government’s grievance policies and that Chapman retained “full authority” over his employees.

Cynkar argued that the agreement was significant and that county leaders should have prevented Chapman from dropping McCaffrey from the staff in an act of political retribution because the general government personnel policies specifically protect employees’ political activities.

One factor that could play into Trenga’s decision is whether McCaffrey, a lead major crimes investigator at the time, was it a policy-making position within the agency.

Cynkar argued that he was not.

“Loudoun County is not Mayberry,” he said, noting the LCSO is the largest sheriff’s office in Virginia, with more than 600 employees.

“Mark McCaffrey is a deputy. He is far down that 600-member heap,” Cynkar said.

Francuzenko argued that McCaffrey was a high-profile member of the Sheriff’s Office, handling major cases and representing the agency with the Commonwealth’s Attorney’s Office and other law enforcement agencies.

A primary precedent case—a 1994 lawsuit initiated in Buncombe County, NC—upheld the firing of deputies who did not support the sheriff’s election bid. In that case, the Appeals Court ruled that deputies are policymakers and serve as alter egos of the sheriff, with the sheriff liable for their conduct.

Trenga questioned Cynkar on how McCaffrey’s case differed from others in which the sheriffs’ firing authority has been upheld. Cynkar said, in this case, the county government had a responsibility to provide a “backstop” to Chapman’s action.

“Without the cooperative agreement we wouldn’t be here,” he said.

When the judge asked what action the county could have taken against Chapman for his political retribution against McCaffrey, Cynkar suggested county leaders could have withheld or reduced funding for the Sheriff’s Office. “They knew and they did nothing,” he said.

Francuzenko said that other federal judges have repeatedly dismissed assertions that agreements like the one between the LCSO and Loudoun’s government limited ability of elected sheriffs to fire employees. “The county has absolutely nothing to do with this case,” he said.

“This case should be cut off now,” he said.

One thought on “Judge Urged to Dismiss Wrongful Termination Lawsuit Against Loudoun Sheriff

  • 2017-10-07 at 10:32 am

    It looks like this case will be dismissed.

    First, the county agreement is a non-issue. That agreement was between the sheriff and the county. Only the county can make a claim against it. It was not between the employees of the sheriff and the sheriff himself. Virginia law gives him powers that the county cannot take away. The county could, in theory, raise a claim against the sheriff under their contract, but they are not taking such action. And it’s unclear what remedy the county could even receive. The agreement is irrelevant for McCaffrey.

    Second, the case revolves around whether the position was a “policymaking” one. The discussion at the hearing appears to revolve around whether law enforcement deputies are policymaking positions. In Jenkins v Medford, the 4th Circuit (which is the oversight court for Virginia) held that all sheriff deputies performing law enforcement duties out in the public (can arrest) were policymaking. That case was reviewed in the 2013 case Bland v Roberts. In Bland, the 4th Circuit ruled that only a few sheriff employees, such as dispatchers or jailers, who have ministerial-type duties but no discretion in effecting arrests are outside of the policy-making realm and thus have partisan First Amd protections. All other deputies can still be let go for political reasons. (look up page “377” in the above case) They cite the Elrod-Branti exception which says while gov’t employees cannot be fired in general for their partisan speech, a governor can certainly hire/fire his assistants who are politically loyal and share the same agenda. The court says the public is presumed to have hired the sheriff to implement an agenda and the sheriff has broad discretion in picking employees to help him carry that agenda out.

    Given that Judge Trenga is a law-and-order type of guy who sides with the gov’t, this case will almost certainly be dismissed. In contrast to my earlier prediction, I don’t foresee McCaffrey appealing this one now.

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