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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2006 Term
Plaintiff Below, Appellee
THE FIREMEN'S CIVIL SERVICE COMMISSION
OF THE CITY OF HUNTINGTON, and
DAVID A. FELINTON, MAYOR OF
THE CITY OF HUNTINGTON,
Defendants Below, Appellants
Appeal from the Circuit Court of Cabell County
The Honorable John L. Cummings, Judge
Civil Action No. 05C-0126
Submitted: October 3, 2006
Filed: November 16, 2006
R. Matthew Vital
Vital & Vital, L.C.
Huntington, West Virginia Huntington, West Virginia
Attorney for the Appellants
Attorney for the Appellee
JUSTICE ALBRIGHT delivered the Opinion of the Court.
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
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
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
5. 'W.Va.Code 29-6-15 , requires that dismissal of a civil service
employee be for good cause, which means misconduct of a substantial nature directly
affecting the rights and interests of the public, rather than upon trivial or inconsequential
matters, or mere technical violations of statute or official duty without a wrongful intention.'
Syl. 1, Oakes v. West Virginia Department of Finance and Administration, 164 W.Va. 384,
264 S.E.2d 151 (1980). Syl. Pt. 1, West Virginia Department of Corrections v. Lemasters,
173 W.Va. 159, 313 S.E.2d 436 (1984).
6. A firefighter's possession of cocaine or crack cocaine constitutes
misconduct of a substantial nature specifically related to and affecting the ability to perform
tasks inherent in the employment and directly affecting the rights and interests of the public.
A firefighter's job is characterized by his or her responsibility to the public, and the health
and mental acuity of public safety personnel are of utmost significance.
7. The dismissal of criminal charges that prompted initial disciplinary action
against a public employee does not preclude a public official from administering further
disciplinary action, including discharge. Syl. Pt. 2, Neely v. Mangum, 183 W.Va. 393, 396
S.E.2d 160 (1990).
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 termination of firefighter
Michael Giannini (hereinafter Appellee) based upon his possession of cocaine. The City
seeks reversal of the circuit court's order and 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, the Appellee was arrested for possession of crack cocaine.
According to testimony of Officer Levi Livingston of the City of Huntington Police
Department, Officer Livingston observed the Appellee exiting a known crack house
residence on Lincoln Avenue in Huntington, West Virginia, at approximately 4:00 a.m. on
April 10, 2004. The officer thereafter pulled the Appellee's vehicle over on a traffic
violation, and the Appellee consented to a search of his vehicle. Officer Livingston found
five pieces of a tan chunky substance which field tested positive for crack cocaine. No
laboratory testing was conducted on the substance.
On April 14, 2004, the Appellee's employment with the City of Huntington
Fire Department was suspended. The City contends that the Appellee's possession of
cocaine violated Paragraph Two of the City of Huntington Fire Department General Rules
and Regulations. That paragraph provides that personnel shall be governed by the ordinary
rules of good behavior observed by self-respecting, law-abiding citizens and shall conduct
themselves in such a manner as will bring no reproach or reflection upon the Department, the
company or themselves.
By decision dated July 14, 2004, the Firemen's Hearing Board concluded that
the Appellee should be reinstated with back pay. Testimony elicited during the Board
hearing indicated that the Appellee had been an exemplary firefighter, had received a
commendation of valor, and had no prior disciplinary action against him while working as
a firefighter. Chief Greg Fuller testified that the Appellee was not under the influence of
controlled substances while on the job and that two other firefighters had not been terminated
after being found guilty of misdemeanor DUI offenses. Officer Livingston did not testify at
the Board hearing.
Upon appeal by the City, a hearing was held before the Firemen's Civil Service
Commission on August 26, 2004. Testimony again included evidence of the Appellee's
exemplary record of service. Officer Livingston testified regarding the Appellee's departure
from the crack house, the traffic stop, the Appellee's consent to search his vehicle, and the
removal of five pieces of a substance which field tested positive for crack cocaine.
Testimony was introduced regarding the discussion between Officer Livingston and the
Appellee which ensued during the April 10, 2004, arrest. Officer Livingston testified that
the Appellee had stated as follows: He [the Appellee] just stated that, you know, this was
probably the best thing for him to get himself straightened up, get his life straightened up.
During the questioning of Officer Livingston at the hearing, he was thereafter asked, Did
he [the Appellee] admit to you that he had used either crack or some cocaine-based derivative
drug before? Officer Livingston answered, Yes, he has.
The Commission issued a November 19, 2004, decision reversing the Board
and finding that the Appellee had violated the General Rules and Regulations of the Fire
Department. The Commission further found that the City properly suspended the Appellee's
employment pending termination. On November 22, 2004, the Appellee's employment was
terminated. On February 9, 2005, a criminal charge against the Appellee arising from the
arrest for possession of a controlled substance was dismissed with prejudice.
On August 26, 2005, the circuit court reversed the Commission's decision,
finding that the City lacked just cause to terminate the Appellee's employment. 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 explained that this standard of review is applicable to a circuit
court's review of an administrative agency such as the Firemen's Civil Service Commission.
Syllabus point one of Appeal of Prezkop
, 154 W.Va. 759, 179 S.E.2d 331 (1971), stated as
follows: 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.
In In re Queen
, 196 W.Va. 442, 473 S.E.2d 483 (1996), this Court 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.
West Virginia Code § 8-15-25 (1996) (Repl. Vol. 2003) provides in pertinent
part that [n]o member of any paid fire department subject to the civil service provisions of
this article shall be removed, discharged, suspended or reduced in rank or pay except for just
cause. . . . In Johnson v. City of Welch
, 182 W.Va. 410, 388 S.E.2d 284 (1989), this Court
defined just cause as follows:
Just cause has been defined as a substantial cause which
specially relates to and affects the administration of the office,
and must be restricted to something of a substantial nature
directly affecting the rights and interest of the public. An officer
should not be removed from office for matters which are trivial,
inconsequential, or hypothetical, or for mere technical violations
of statute or official duty without wrongful intention. 67 C.J.S. Officers § 120b (1936). See also City of Logan v. Dingess, 161
W.Va. 377, 381, 242 S.E.2d 473, 475 (1978); Thurmond v.
Steele, 159 W.Va. 630, 225 S.E.2d 210 (1976); Guine v. Civil
Service Commission, 149 W.Va. 461, 141 S.E.2d 364 (1965).
182 W.Va. at 413, 388 S.E.2d at 287; see also McDonald v. Young, 173 W.Va. 168, 313
S.E.2d 445 (1984); Kendrick v. Johnson, 167 W.Va. 269, 279 S.E.2d 646 (1981). This
clarification of the expression just cause is very similar to the explanation provided in
syllabus point one of West Virginia Department of Corrections v. Lemasters, 173 W.Va.
159, 313 S.E.2d 436 (1984), setting forth the standard for judging good cause for
dismissal under the state civil service system:
W.Va.Code 29-6-15 , requires that dismissal of
a civil service employee be for good cause, which means
misconduct of a substantial nature directly affecting the rights
and interests of the public, rather than upon trivial or
inconsequential matters, or mere technical violations of statute
or official duty without a wrongful intention. Syl. 1, Oakes v.
West Virginia Department of Finance and Administration, 164
W.Va. 384, 264 S.E.2d 151 (1980).
Pursuant to these established definitions of just cause, dismissal is appropriate
where the alleged misconduct constitutes a substantial violation directly affecting the rights
and interests of the public. The burden of proving such just cause is upon the City, pursuant
to this Court's statements in Mangum v. Lambert, 183 W.Va. 184, 394 S.E.2d 879 (1990),
wherein the burden of proving just cause for a deputy's dismissal was held to be upon the
sheriff who took such action. 183 W.Va. at 188, 394 S.E.2d at 883. Thus, the salient issue
for this Court's determination is whether the Appellee's possession of a substance field
tested as cocaine is just cause for termination of the Appellee's employment.
Providing due deference to the Commission's findings, we note that the
Commission determined that just cause existed, based upon the Appellee's violation of the
General Rules and Regulations of the Fire Department . . . by conducting himself in such
a manner as to bring reproach and negative reflection upon the Department. [The Appellee]
further failed to observe the ordinary rules of good behavior observed by self-respecting,
law-abiding citizens. Pursuant to the applicable standards of review, the Commission's
order should not have been reversed unless it was clearly wrong, arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.
The circuit court reversed the Commission's decision and held that just cause
did not exist for the City's chosen disciplinary action against the Appellee. The circuit court
explained in its order that the City did not prove that the substance found in the Appellee's
vehicle was actually crack cocaine. The circuit court also explained that the Appellee's
termination based solely on an arrest for possession of a controlled substance is inconsistent
with past disciplinary actions . . . wherein other firefighters were not terminated when not
only arrested for, but found guilty of, misdemeanor DUI.
A. Possession of Controlled Substance as Just Cause
In reversing the Commission and concluding that the City lacked just cause
to terminate the Appellee's employment, the circuit court relied upon the reasoning of the
Court of Appeals of Minnesota in Recommendation for Discharge of Kelvie
, 384 N.W.2d
901 (Minn. App. 1986). In that case, firefighter John Kelvie had been arrested and charged
with three misdemeanor counts of possession of marijuana, injection equipment, and drugs
not in an original container. In finding that no just cause existed for the termination of Mr.
Kelvie's employment as a firefighter, the court analyzed the rules of the Minneapolis Civil
Service Commission, providing that incompetence, insubordination, disgraceful conduct,
or other justifiable causes shall constitute sufficient cause for removal or discharge. 384
N.W.2d at 903.
The court found no relationship between Mr. Kelvie's possession of a small
quantity of marijuana and his job performance. 384 N.W.2d at 904. The court emphasized
that the issue of whether the Commission had just cause to discharge Mr. Kelvie was a
question of fact and that the Commission's findings were supported by the record. Id.
the court did not reverse the findings of the Commission. Further, the court observed that
the administrative law judge had found that 'the main reason John Kelvie was discharged
was because of his failure to respond to the questioning . . . on Fifth Amendment grounds.' Id
. at 905.
In addressing the issues surrounding just cause for termination in the present
case, the circuit court order did not include an analysis of a Court of Appeals of Minnesota
case decided subsequent to the Kelvie
decision. In City of Minneapolis v. Moe
, 450 N.W.2d
367, 370 (Minn. App. 1990), the court addressed the Kelvie
decision and noted that the
decision to discharge in Mr. Kelvie was principally based upon the firefighter's assertion
of his Fifth Amendment rights. 450 N.W.2d at 370. The Moe
court stated that the Kelvie
decision is therefore distinguishable on that basis. Id
. In evaluating the Moe
circumstances, the Minnesota court found that the police officer's felonious possession of
cocaine constituted misconduct striking at the very essence of law enforcement. Id
court explained that such felonious misconduct
is inconsistent with the public trust and
continued as follows:
The image of integrity and trust is essential to the performance
of a police officer's duties. There must be public confidence in
law enforcement, and to ignore felonious possession of cocaine
by a police officer could only serve to undermine public
confidence in that office.
This is a time in our society when the scourge of cocaine
is running rampant in many parts of our country. We cannot be
blind to society's concern about the adverse influence of
cocaine in our midst.
Id. Significantly, the Moe court specified that [f]elonious possession of cocaine, a violation
of the law, must be distinguished from possession or use of alcohol, which is not illegal.
450 N.W.2d at 371. We find this comment instructive and relevant to the tasks before us.
As this Court explained in State ex rel. Ashley v. Civil Service Commission, 183
W.Va. 364, 395 S.E.2d 787 (1990), circumstances which have been considered just cause
[for dismissal] are involvement in activity which casts aspersions or doubt on a law
enforcement officer's honesty and integrity and which directly affects the public's rights and
interests. 183 W.Va. at 368, 395 S.E.2d at 791. See also McMillian v. Ashley, 193 W.Va.
269, 273, 455 S.E.2d 921, 925 (1995). In the case sub judice, this Court holds that a
firefighter's possession of cocaine or crack cocaine constitutes misconduct of a substantial
nature specifically related to and affecting the ability to perform tasks inherent in the
employment and directly affecting the rights and interests of the public. A firefighter's job
is characterized by his or her responsibility to the public, and the health and mental acuity of
public safety personnel are of utmost significance.
B. Consistency of Disciplinary Action
The Appellee argues that his dismissal is inconsistent with prior disciplinary
action chosen by the City. He contends that he was treated unfairly and was disciplined more
harshly than other employees of the City. Specifically, he references two other firemen
found guilty of DUI and not terminated. In analyzing this assertion, this Court must
acknowledge that the imposition of discipline is based upon a subjective determination with
respect to a specific set of factual circumstances, unique and distinct from all other occasions
of misconduct. The fact that the form of discipline imposed upon individuals committing a
DUI offense was less severe than that imposed upon the Appellee is not cause for reversal
of the Commission's decision in this case. As the City emphasizes, in comparing the
Appellee to the DUI offenders, two distinctly different violations exist; one involves abuse
of a legal substance and one involves acquisition and possession of an illegal substance. In
response to a similar uniformity of discipline argument, the Court of Appeals of Indiana
recognized as follows in General Motors Corporation v. Review Board of Indiana
Department of Workforce Development, 671 N.E.2d 493 (Ind. App. 1996):
Treating offenders who violate its policy by using or possessing
illegal drugs differently from those offenders who violate the
policy by selling illegal drugs does not mean that GM does not
uniformly enforce its drug policy rules. The two classes of
offenders are different, present different risks, and are treated
differently under our criminal statutes.
671 N.E.2d at 498 (footnote omitted); see also Everett v. Board of Education, 334 N.W.2d
320, 321 (Iowa App. 1983) (holding that the concept of just cause is a flexible one; each
case depends on its own circumstances). Further, as referenced above, the Moe court
succinctly observed that possession of cocaine is properly distinguished from possession or
use of alcohol. Moe, 450 N.W.2d at 371.
C. Absence of Laboratory Testing and Dismissal of Criminal Charge
The Appellee also argues that the absence of laboratory testing of the
substance and the dismissal of the criminal charge should impact the administrative decision
in this matter. However, this case arises from an administrative proceeding, rather than a
criminal prosecution. Therefore, the applicable standard of proof is not the criminal standard
of beyond a reasonable doubt. The standard of proof in the present case is preponderance
of the evidence.
The Commission's order clearly addresses the issue of the identification of the
substance and concludes that the substance was indeed cocaine. To substantiate this finding,
the Commission had before it testimony specifying the trustworthiness of the field testing
as indicating that the substance was cocaine. Officer Livingston testified that his prior years
of experience had instructed him that the field testing is a very accurate method of
determining the identity of the substance. Testimony was also presented from the arresting
officer indicating that the Appellee admitted having a drug problem. Based upon all
evidence of record, we find that the Commission's order is founded upon credible evidence
and is not clearly wrong.
In similar vein, we find that the dismissal of the criminal charge against the
Appellee does not affect the propriety of the City's discipline against him. In syllabus point
two of Neely v. Mangum
, 183 W.Va. 393, 396 S.E.2d 160 (1990), this Court explained as
follows: The dismissal of criminal charges that prompted initial disciplinary action against
a public employee does not preclude a public official from administering further disciplinary
action, including discharge. This Court recently employed the reasoning of the Neely
v. State Police, 215 W.Va. 511, 600 S.E.2d 223 (2004). In Montgomery
a police criminalist sought judicial review of an administrative decision upholding his
discharge from the state police. 215 W.Va. at 513, 600 S.E.2d at 225. The criminalist
contended that he should not have been discharged in an administrative proceeding since he
was acquitted of the criminal charges.
In analyzing the contentions raised in Montgomery
, this Court explained as
Just as the continued employment of an individual
charged with wrongdoing in Mangum was determined to be a
valid consideration notwithstanding the dismissal of criminal
charges, the employment status of Appellant was analogously
subject to this kind of appropriate scrutiny. Like the sheriff's
office for whom Mrs. Neely was employed, the State Police has
a legitimate interest in limiting employment to individuals who
can uphold a high standard of conduct _ a standard that clearly
requires that employees report to work in a sober state and
refrain from engaging in criminal conduct, on or off the job.
Id. at 515, 600 S.E.2d at 227. There are many reasons, including a higher burden of proof
and stricter evidentiary rules, that may affect whether a criminal defendant is convicted. For
example, the heightened level of proof required in a criminal DUI proceeding accounts for
many cases in which administrative action is taken against an individual without an
accompanying criminal conviction. Id. at 516, 600 S.E.2d at 228 (footnote omitted); see
also Jordan v. Roberts, 161 W.Va. 750, 757-58, 246 S.E.2d 259, 263 (1978) (discussing
differences between administrative and criminal DUI proceedings).
Upon thorough review of this matter, this Court concludes that the evidence
presented to the Commission was sufficient to support its ultimate holding. The
Commission's findings were not 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 be