CHARLESTON – Folks in Huntington cannot decide if firefighter Michael Giannini should lose his job for getting busted near a crack house, so the West Virginia Supreme Court of Appeals must decide.
The Justices will hear arguments Oct. 3 for and against Giannini, who since his arrest has lost his job twice and won it back twice.
Police officer Levi Livingston arrested Giannini before dawn April 10, 2004, after observing his red truck at a crack house.
Livingston reported that he found a substance in the truck and identified it by field test as crack cocaine.
Police charged Giannini with misdemeanor possession of a controlled substance.
From the start Giannini received mixed messages about consequences.
After sunrise the chief deputy referred him to the fire department's rehabilitation program at St. Mary's Hospital. Giannini checked in.
Four days into his rehab, fire chief Greg Fuller suspended him without pay pending termination by mayor David Felinton.
Fuller quoted a rule requiring personnel to conduct themselves in a manner that would bring no reproach or reflection on the department or themselves.
Giannini asked the Firemen's Hearing Board to reinstate him.
At a hearing July 14, 2004, Fuller told the hearing board Giannini was never under the influence of controlled substances on the job.
Both sides agreed that Giannini was an exemplary firefighter who saved a life and never faced discipline.
Livingston did not testify.
The hearing board reinstated Giannini with back pay.
The city appealed to the Firemen's Civil Service Commission.
At a hearing Aug. 26, 2004, Livingston testified that he found a substance and determined it to be crack cocaine.
The Firemen's Civil Service Commission on Nov. 19, 2004, found just cause for Giannini's suspension.
Commissioners declared that his conduct brought reproach and negative reflection on the department.
Three days later mayor Felinton terminated Giannini.
On Feb. 9, 2005, a Cabell County judge dismissed the controlled substance charge.
Five days later Giannini filed a petition in Cabell County circuit court, appealing the decision of the Fire Civil Service Commission.
Circuit Judge John Cummings signed an order Aug. 26, 2005, finding no just cause for Giannini's termination.
Cummings wrote that termination was inconsistent because firefighters guilty of driving under the influence of alcohol were not terminated.
For the Firemen's Civil Service Commission and Felinton, attorney Scott McClure of Huntington appealed to the Supreme Court of Appeals.
McClure told the Justices that Cummings missed a clear distinction between driving under the influence and possessing an illegal substance.
He wrote that crack cocaine is devastating whereas alcohol, though sometimes potentially harmful, is legal.
He wrote, "The court's attempt to compare the two is like comparing apples and oranges."
He wrote that the Supreme Court found just cause for termination of two police officers with unexcused absences and one who drank alcohol in public in uniform.
He wrote that if the commission based its decision on substantial evidence and adequately explained the decision, a circuit court could not reverse it.
He wrote, "The circuit court cannot supplant the factual finding of the commission merely by identifying an alternate solution."
In response, attorney Matthew Vital of Huntington asked why the department would contract for rehab services if the reason for the services was a terminable offense.
Vital wrote, "The occupation of a firefighter is highly stressful. It is not uncommon for firefighters to turn to alcohol and drugs in an attempt to relieve the stress."
He wrote that terminations of police did not apply because the function of a police officer is to enforce laws.
He wrote, "Although a firefighter is held to certain standards in a community, a firefighter is not an enforcer of laws."
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