WEST VIRGINIA RECORD

CHARLESTON – Justices of the West Virginia Supreme Court of Appeals fired a fireman whose urine sample suspiciously resembled tap water.

In the unanimous decision Oct. 5, the Justices ruled that the Huntington Firemen's Civil Service Commission properly terminated Capt. Earl Legg Jr.

The Justices reversed Cabell Circuit Judge John Cummings, who ruled last year that Fire Chief Greg Fuller lacked reasonable suspicion to test him for drugs.

Suspicion fell on Legg in 2004, as Fuller investigated firefighter Michael Giannini for possible use of crack cocaine. A Huntington policeman had caught Giannini near a crack house with a substance that field tested as crack.

Giannini and his girlfriend, in discussions with Deputy Chief Jerry Beckett, implicated Legg in crack smoking.

Beckett reported this to Fuller, who asked Legg to take a urine test.

Fuller told Legg his behavior had changed and he had missed a lot of work.

Legg took a sample bottle, left, and filled it.

Ernest Raba of Corporate Support Systems divided the sample and ran two tests. In both samples, he found the qualities of plain water.

Fuller suspended Legg without pay pending termination for refusal to test and for safety concerns.

A hearing board of three firefighters determined that Fuller lacked reasonable suspicion and that Legg should keep his job.

The city appealed to the Firemen's Civil Service Commission. At a hearing, Fuller said, "Captain Legg is not only a firefighter, he is also a fire officer. As such, he is responsible for the lives and property of the citizens in his district and sometimes throughout the whole city. He is also responsible for the safety of the firefighters under his command."

Fuller said a fire officer has keys to drug stores and banks.

Deputy Chief Tim Provaznik said Legg uncharacteristically used a substantial amount of excused and unexcused sick leave. He said he detected a change in Legg's personality.

In 2005, the commissioners found reasonable suspicion justifying the test and the suspension. They ruled that Legg substituted his sample.

Legg appealed, and Cummings overturned the commission's decision.

Cummings wrote that Fuller observed no symptoms of controlled substances on the day of the test. He wrote that Legg did not refuse to test. He wrote that the commission was unable to conclude that the sample was adulterated.

He wrote that Fuller could ask for a test only under "exigent circumstances."

The city appealed. Attorney Scott McClure of Huntington represented the city before the state Supreme Court. Roger Smith of Huntington represented Legg.

In reversing Cummings, the Justices wrote that he applied a standard of exigent circumstances when he should have applied reasonable suspicion.

They wrote, "Safety issues have consistently been identified as paramount concerns where an employee is possibly using illicit drugs."

Giannini, meanwhile, awaits a decision from the Justices on his job. Cummings ruled last year that he could keep it, but the city appealed.