Giannini v. Firemen's Civil Service Com'n

• Decision Date: 16 November 2006
• Docket Number: No. 33074.,33074.
• Citation: 640 S.E.2d 122
• Court: West Virginia Supreme Court
• Parties: Michael GIANNINI, Plaintiff Below, Appellee, v. THE FIREMEN'S CIVIL SERVICE COMMISSION OF THE CITY OF HUNTINGTON, and David A. Felinton, Mayor of the City of Huntington, Defendants Below, Appellants.

640 S.E.2d 122

Michael GIANNINI, Plaintiff Below, Appellee, v. THE FIREMEN'S CIVIL SERVICE COMMISSION OF THE CITY OF HUNTINGTON, and David A. Felinton, Mayor of the City of Huntington, Defendants Below, Appellants.

No. 33074.

Supreme Court of Appeals of West Virginia.

Submitted: October 3, 2006.

Decided: November 16, 2006.

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 (1971).

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 29-6-15 [1977], 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).

Scott McClure, Christopher Dean, Huntington, for the Appellants.

R. Matthew Vital, Vital & Vital, L.C., Huntington, for the Appellee.

ALBRIGHT, Justice.

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...