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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2006 Term
CAPTAIN EARL F. LEGG, JR.,
Plaintiff Below, Appellee
MAYOR DAVID A. FELINTON, and
THE CITY OF HUNTINGTON, WEST VIRGINIA, and
THE CITY OF HUNTINGTON, WEST VIRGINIA
FIREFIGHTER'S CIVIL SERVICE COMMISSION,
Defendants Below, Appellants
Appeal from the Circuit Court of Cabell County
The Honorable John L. Cummings, Judge
Case No. 05-C-0394
Submitted: September 13, 2006
Filed: October 5, 2006
Scott E. McClure
J. Roger Smith, II
Tyler B. Smith
Huntington, West Virginia
Huntington, West Virginia
Attorney for the Appellants
Attorneys for the Appellee
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. A final order of the Civil Service Commission based upon a finding of fact
will not be reversed by this Court upon appeal unless it is clearly wrong. Syllabus, Billings
v. Civil Service Commn.
, 154 W.Va. 688, 178 S.E.2d 801 (1971).
2. A final order of a police civil service commission based upon a finding of
fact will not be reversed by a circuit court upon appeal unless it is clearly wrong or is based
upon a mistake of law. Syl. Pt. 1, Appeal of Prezkop
, 154 W.Va. 759, 179 S.E.2d 331
3. An adjudicative decision of the Correctional Officers' Civil Service
Commission should not be overturned by an appellate court unless it was clearly erroneous,
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.
Review under this standard is narrow and the reviewing court looks to the Civil Service
Commission's action to determine whether the record reveals that a substantial and rational
basis exists for its decision. Syl. Pt. 1, In re Queen
, 196 W.Va. 442, 473 S.E.2d 483 (1996).
4. An appellate court may reverse a decision of the Correctional Officers' Civil
Service Commission as clearly wrong or arbitrary or capricious only if the Commission used
a misapplication of the law, entirely failed to consider an important aspect of the problem,
offered an explanation that ran counter to the evidence before the Commission, or offered one
that was so implausible that it could not be ascribed to a difference in view or the product of
Commission expertise. Syl. Pt. 2, In re Queen
, 196 W.Va. 442, 473 S.E.2d 483 (1996).
5. W.Va. Code § 8-14A-3(b) (1997) (Repl. Vol. 1998) requires that, before
a civil service officer may be disciplined through discharge, suspension, or reduction in rank
or pay, he/she must be afforded a predisciplinary hearing before a hearing board unless there
exist exigent circumstances that require the recommended disciplinary action to precede such
hearing. To the extent our prior decision in the Syllabus of City of Huntington v. Black
W.Va. 675, 421 S.E.2d 58 (1992), is inconsistent with this holding, it is hereby expressly
modified. Syl. Pt. 4, Alden v. Harpers Ferry Police Civil Service Commn.
, 209 W.Va. 83,
543 S.E.2d 364 (2001).
This is an appeal by the City of Huntington (hereinafter City) from an order of
the Circuit Court of Cabell County reversing a decision of the Firemen's Civil Service
Commission (hereinafter Commission) which upheld the City's suspension of Captain Earl
F. Legg, Jr., (hereinafter Appellee) based upon a drug test conducted upon the Appellee. The
City seeks reversal of the circuit court's order and a reinstatement of the Commission's
decision permitting the City to terminate the Appellee's employment. Upon thorough review
of the briefs, record, arguments of counsel, and applicable precedent, this Court reverses the
decision of the circuit court and reinstates the decision of the Firemen's Civil Service Commission.
I. Factual and Procedural History
On April 10, 2004, Huntington firefighter Michael Giannini, co-worker of the
Appellee, was arrested for possession of crack cocaine. In subsequent discussions among Mr.
Giannini, his girlfriend, and Deputy Chief Jerry Beckett, the Appellee was implicated in the
smoking of crack cocaine and the consumption of beer while on duty. Upon learning of the
Appellee's alleged involvement in such practices, Chief Greg Fuller determined that the
Appellee should be asked to take a reasonable suspicion drug test. Chief Fuller based this
decision upon the information provided by Mr. Giannini and his girlfriend; the Appellee's
September 2002 charge of driving under the influence; the Appellee's pattern of sick leave
usage; and an alteration in personality of the Appellee which had been observed by individuals
who worked with him. (See footnote 1)
Further, Chief Fuller premised his decision to test the Appellee upon the
provisions of Policy 19(J) of the City of Huntington's Policy and Procedure Manual,
permitting the City to request employees to submit to a reasonable suspicion drug screening
if the charging officer feels that the employee has exhibited behavior which may be consistent
with illegal drug use. Specifically, reasonable suspicion testing is defined as follows by Policy
Reasonable suspicion for requiring an employee to submit
to drug and/or alcohol testing shall be deemed to exist when an
employee manifests physical or behavioral symptoms or
reactions commonly attributed to the use of controlled
substances or alcohol. Such employee conduct must be
witnessed by at least one supervisor trained in compliance with
the City's Drug-Free Workplace Policy. Should a supervisor
observe such symptoms or reaction, the employee must submit
Pursuant to Chief Fuller's request, the Appellee submitted to a drug test. (See footnote 2)
Ernest Raba, the Medical Review Officer for Corporate Support Systems, Inc., reviewed the
results of the urine sample and determined that the sample provided by the Appellee had the
characteristics of water rather than human urine. Thus, the sample was characterized as a
Substituted-Refusal to Test. A second laboratory test confirmed this conclusion. (See footnote 3)
19(J) defines refusal to test as conduct that would obstruct the proper administration of a
test. Further, the policy provides that an employee engaging in prohibited conduct shall be
subject to termination of employment.
On April 22, 2004, Chief Fuller suspended the Appellee from duty without pay
due to the refusal to test and based upon exigent circumstances related to safety concerns
of drug usage by a firefighter. On July 14, 2004, a hearing board composed of three of the
Appellee's fellow firefighters determined that Chief Fuller lacked reasonable suspicion to
require the Appellee to submit to a drug test under the provisions of Policy 19(J). The City
appealed that decision to the Firemen's Civil Service Commission. By order dated February
17, 2005, the Commission found reasonable suspicion justifying the drug testing and exigent
circumstances justifying the suspension of the Appellee without pay pending termination.
Upon the Appellee's appeal to the Circuit Court of Cabell County, the
Commission's decision was reversed. The City now appeals to this Court.
II. Standard of Review
In the syllabus of Billings v. Civil Service Commission, 154 W.Va. 688, 178
S.E.2d 801 (1971), this Court stated that [a] final order of the Civil Service Commission
based upon a finding of fact will not be reversed by this Court upon appeal unless it is clearly
wrong. This Court has also held that this standard is applicable to a circuit court's review of
an administrative agency such as the Firemen's Civil Service Commission. In syllabus point
one of Appeal of Prezkop, 154 W.Va. 759, 179 S.E.2d 331 (1971), this Court held that [a]
final order of a police civil service commission based upon a finding of fact will not be
reversed by a circuit court upon appeal unless it is clearly wrong or is based upon a mistake of
In In re Queen, 196 W.Va. 442, 473 S.E.2d 483 (1996), we further explained
this standard of review in an appeal involving a decision of the Correctional Officers' Civil
Service Commission. In Queen, we stated that [o]ur review of the circuit court's decision
made in view of the Commission's action is generally de novo. Thus, we review the
Commission's adjudicative decision from the same position as the circuit court. 196 W.Va.
at 446, 473 S.E.2d at 487. In syllabus point one of Queen, this Court stated:
An adjudicative decision of the Correctional Officers'
Civil Service Commission should not be overturned by an
appellate court unless it was clearly erroneous, arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance
with the law. Review under this standard is narrow and the
reviewing court looks to the Civil Service Commission's action
to determine whether the record reveals that a substantial and
rational basis exists for its decision.
In syllabus point two of Queen, this Court continued as follows:
An appellate court may reverse a decision of the
Correctional Officers' Civil Service Commission as clearly
wrong or arbitrary or capricious only if the Commission used a
misapplication of the law, entirely failed to consider an important
aspect of the problem, offered an explanation that ran counter to
the evidence before the Commission, or offered one that was so
implausible that it could not be ascribed to a difference in view
or the product of Commission expertise.
See also Collins v. City of Bridgeport, 206 W.Va. 467, 472, 525 S.E.2d 658, 663 (1999).
Utilizing these standards for our review, we address the issues presently before this Court.
A. Reasonable Suspicion to Test
The Firemen's Civil Service Commission found that reasonable suspicion
existed to require drug testing of the Appellee. Specifically, the Commission cited the
testimony of Chief Fuller, Deputy Chief Beckett, and Deputy Chief Tim Provaznik, all
explaining that the actions and behaviors of the Appellee were consistent with illicit drug
usage. Each of these individuals had been trained and certified in the City's Drug-Free
In testimony presented to the Commission, the Appellee's charge of driving
under the influence of alcohol was discussed as a potential indicator of dependence problems.
Additionally, Deputy Chief Provaznik stated that the Appellee had utilized a substantial amount
of excused and unexcused sick leave, a usage pattern which was perceived as uncharacteristic
for the Appellee. Deputy Chief Provaznik further testified that excessive absenteeism is one
of the factors to be evaluated in determining whether a reasonable suspicion test should be
conducted. Deputy Chief Beckett explained that he suspected that the Appellee was using
illegal drugs based upon information received from Mr. Giannini and his girlfriend, as well as
the DUI, excessive absenteeism, and a change in personality.
On appeal of this matter to the circuit court, the Commission's decision was
reversed. In the circuit court order, the standard to be employed in the determination of
whether to require an employee drug test was improperly identified as exigent
circumstances. The appropriate standard, explicitly stated in Policy 19(J) and properly
employed by the Commission, is reasonable suspicion. (See footnote 4)
Utilizing the exigent circumstances standard, the circuit court determined as
follows: The Court does not agree with the position of the Defendants that exigent
circumstances existed on April 18, 2004 so as to allow the City of Huntington, through Fire
Chief Fuller, to request a reasonable suspicion drug test. . . . The circuit court's order is
replete with such references to the absence of exigent circumstances.
Furthermore, the circuit court relied upon the fact that no symptoms commonly
attributed to the use of controlled substances were observed on the day of the drug testing.
The circuit court reasoned that if exigent circumstances existed, the City would not have
waited four days to request that Captain Legg [the Appellee] take a reasonable suspicion drug
test. . . . A review of the policy, however, reveals no requirement that the behaviors,
symptoms, or actions justifying testing actually occur on the day of testing. Thus, the circuit
court introduced and relied upon a requirement which does not exist.
As explained above, the circuit court's standard of review of the Commission's
order is limited. Even assuming that the circuit court inadvertently identified the standard as
exigent circumstances when in fact the court was correctly evaluating the issue under the
standard of reasonable suspicion to test, this Court finds that the circuit court erred in
reversing the Commission's finding of reasonable suspicion to test. The Commission based
it conclusions upon extensive testimony and evidence presented during the hearing. This Court
fails to perceive any defect in the Commission's conclusion that could be characterized as
clearly erroneous, arbitrary, capricious, an abuse of discretion, or otherwise contrary to law.
Review of the record clearly indicates that a substantial and rational basis exists for the
Commission's decision with regard to the reasonable suspicion to test the Appellee.
B. Exigent Circumstances Justifying Punitive Action Prior to Hearing
West Virginia Code § 8-14A-3(b) (1997) (Repl. Vol. 2003), addresses the
requirements for a hearing where a civil service officer faces punitive action and provides as
When a civil service accused officer faces a recommended
punitive action of discharge, suspension or reduction in rank or
pay, but before such punitive action is taken, a hearing board must
be appointed and must afford the accused civil service officer a
hearing conducted pursuant to the provisions of article fourteen,
section twenty [§ 8-14-20], or article fifteen, section twenty-five
[§ 8-15-25] of this chapter: Provided, That the punitive action
may be taken before the hearing board conducts the hearing
if exigent circumstances exist which require it.
W. Va. Code § 8-14A-3(b) (emphasis provided). In Alden v. Harpers Ferry Police Civil
Service Commission, 209 W. Va. 83, 543 S.E.2d 364 (2001), this Court held that the express
language of West Virginia Code § 8-14A-3(b) requires a predisciplinary hearing unless exigent
circumstances exist to preclude such a proceeding. Specifically, this Court explained as
follows in syllabus point four of Alden:
W.Va. Code § 8-14A-3(b) (1997) (Repl.Vol.1998)
requires that, before a civil service officer may be disciplined
through discharge, suspension, or reduction in rank or pay, he/she
must be afforded a predisciplinary hearing before a hearing board
unless there exist exigent circumstances that require the
recommended disciplinary action to precede such hearing. To the
extent our prior decision in the Syllabus of City of Huntington
, 187 W.Va. 675, 421 S.E.2d 58 (1992), is inconsistent
with this holding, it is hereby expressly modified.
In addressing this issue of exigent circumstances in the present case, the
Commission found that exigent circumstances existed to justify punitive action prior to
conducting a hearing, based upon public safety concerns. On appeal, the circuit court
essentially bypassed this issue by finding that the Appellee did not refuse to test and therefore
should not have been suspended or terminated. The circuit court based its conclusion upon its
interpretation of the Commission's findings, reasoning that the Commission was unable to
conclude that the urine sample as submitted by the Plaintiff was adulterated or what happened
to it. . . .
A review of the Commission's order, however, indicates the miscalculation in
the circuit court's reasoning. During the hearing, members of the Commission did engage in
discussion concerning the possible causes for the laboratory results of the urine testing.
Commissioner Bagley explained that the Commissioners had
great concern about the fire fighters and the dangers of any sort
of drug use or alcohol use while on duty. And we certainly don't
want any of that sort of thing happening in the Huntington Fire
Department. But at the same time, we know that there is a human
factor about these things and that mistakes can happen, but we
don't know what happened to this specimen that was given. We
don't know whether it was adulterated or what happened to it.
The possibility of hair follicle testing was thereafter discussed, and it was ultimately
determined that the Commission would rule once the record was prepared and reviewed. In the
written decision rendered on February 17, 2005, the Commission specifically stated its
ultimate finding that the Appellee did violate Policy 19(J) of the City of Huntington's Policy
and Procedure Manual. Policy 19(J) prohibits conduct that would obstruct the proper
administration of the test. The Commission finds that the accused officer, by substituting his
urine sample as testified to by Dr. Raba, has engaged in such conduct.
It is a paramount principle of jurisprudence that a court speaks only through its
orders. See State v. White, 188 W.Va. 534, 536 n. 2, 425 S.E.2d 210, 212 n. 2 (1992)
([H]aving held that a court speaks through its orders, we are left to decide this case within the
parameters of the circuit court's order. (citations omitted)); State ex rel. Erlewine v.
Thompson, 156 W.Va. 714, 718, 207 S.E.2d 105, 107 (1973) ( A court of record speaks only
through its orders[.] (citations omitted)). This principle has been relied upon where
conflicting signals are presented by a circuit court. State ex rel. Kaufman v. Zakaib, 207
W.Va. 662, 671, 535 S.E.2d 727, 736 (2000). In Tennant v. Marion Health Care
Foundation, Inc., 194 W.Va. 97, 459 S.E.2d 374 (1995), this Court explained the proper
approach as follows:
As an initial matter, it is clear that where a circuit court's
written order conflicts with its oral statement, the written order
controls. Therefore, we are left to decide this case within the
parameters of the circuit court's order. State v. White, 188
W.Va. 534, 536 n. 2, 425 S.E.2d 210, 212 n. 2 (1992). See also
Harvey v. Harvey, 171 W.Va. 237, 241, 298 S.E.2d 467, 471
(1982) ([t]hat a court of record speaks only through its records
or orders has been generally affirmed by this Court in subsequent
cases). Considering the above authority, we believe it is
necessary to give greater credence to the circuit court's order.
Thus, we find in this case that the defendants' concerns of the
difference between the circuit court's ruling from the bench and
the subsequent written order have no merit.
194 W.Va. at 107 n. 5, 459 S.E.2d at 384 n. 5.
In the circumstances of this case, we believe these principles regarding judicial
proceedings should be applied to the administrative proceeding before us here. Since there
is no dispute about the content of the record made before the Firemen's Civil Service
Commission, we believe it is appropriate to rely upon the findings of the Commission as
reflected by its final order, rather than to base our judgement on one short passage taken from
the record that appears to run counter to the Commission's clearly expressed findings and
conclusions. Thus, this Court should rely on the Commission's order in examining the
soundness of its reasoning. Prior hypothetical discussion notwithstanding, the Commission
explicitly states the finding in its written order that the Appellee violated Policy 19(J) by
substituting his urine sample. Consequently, we find no basis for the circuit court's conclusion
that the Commission's ruling was flawed in that regard.
The Commission's order regarding the existence of exigent circumstances
justifying punitive action prior to a hearing must stand. Safety issues have consistently been
identified as paramount concerns where an employee is possibly using illicit drugs. See Twigg
v. Hercules Corp., 185 W.Va. 155, 158, 406 S.E.2d 52, 55 (1990) (holding that drug testing
is not violative of public policy where job responsibility involves public safety or the safety
of others). Furthermore, safety issues have also been identified as primary considerations in
evaluating the issue of whether exigent circumstances exist. In State ex rel. Sweikert v.
Briare, 588 P.2d 542 (Nev. 1978), for instance, the Nevada court held that the danger to the
public from structural and fire hazards resulting from a casino remodeling project improperly
approved by a building inspector were sufficient exigent circumstances to warrant the
immediate termination of the inspector. 588 P.2d at 544. Likewise, in Bowie v. City of
Jackson Police Department, 816 So.2d 1012 (Miss. App. 2002), the court explained that
extraordinary circumstances warranted an exception to procedural due process requirements
where a police officer was suspended without pay. 816 So.2d at 1016. The court found that
the officer's use of excessive force in an arrest indicated that his continued employment would
result in injury to the public or to private citizens. Id.
In the present case, Chief Fuller testified that the safety of other firefighters, as
well as citizens of the City of Huntington, would be endangered by the continued employment
of the Appellee. In discussing the exigent circumstances standard, Chief Fuller explained that
[i]t means an emergency, something urgent, you have to take action to prevent further damage
or loss of property and life. Chief Fuller further elaborated as follows:
Captain Legg is not only a fire fighter, he is also a fire
officer. As such, he's responsible for the lives and property of
the citizens in his district and sometimes throughout the whole
city. He's also responsible for the safety of the fire fighters
under his command.
A fire fighter has great latitude statutorily locally by
ordinance. A fire officer has access to . . . keys which give
access to drugstores, banks, all nature of businesses.
The duties of a fire fighter involve - - are very physical.
They involve life and death decisions. To have a fire fighter that
may be under the influence of a substance performing these types
of duties to me constitutes an exigent circumstance.
This Court holds that the evidence was sufficient to support the determinations
of the Commission regarding the existence of exigent circumstances. There is no indication
that any of the Commission's findings were clearly wrong, based upon mistake of law,
arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. Consequently, we
find that the circuit court improperly reversed the decision of the Commission. The order of
the Circuit Court of Cabell County is reversed. We direct that the order of the Commission
Chief Fuller testified as follows:
There was some uncharacteristic behavior, the DUI, which was
uncharacteristic for Captain Legg, the pattern of sick leave usage,
the nervousness and agitation, the irritability, and a general - - I
would characterize as a general change in personality. And
coupling that with this report [from Giannini and his girlfriend],
I felt that there was not only clear reasonable suspicion to have
Captain Legg tested, but I felt like I had an obligation and a
custodial duty to do so.
When Chief Fuller addressed the issue of the screening test with the Appellee,
the information received from Mr. Giannini and his girlfriend was discussed. Additionally, the
attendance issues and unusual behavior patterns were discussed as justification for the drug
screening. The Appellee thereafter exited the Chief's company for approximately ten minutes
prior to traveling to the laboratory where the urine sample was taken.
The urine provided by the Appellee was actually divided into two samples which
were tested separately. Both tests revealed the same results. The urine sample had a creatinine
level of less than one. According to analysts, such creatinine level indicated that the sample
had the qualitites of water and could not be considered human urine.
The exigent circumstances standard, as discussed in the following section of
this opinion, is to be applied in the determination of whether the employee can be subjected
to punitive action without a hearing.