Justices seem skeptical in case of firefighter caught with crack

By Steve Korris | Oct 5, 2006

CHARLESTON – Michael Giannini might as well push a rock uphill as try to win back his job as a Huntington firefighter after getting caught with crack cocaine.

Justices of the West Virginia Supreme Court of Appeals in oral arguments Oct. 3 sounded skeptical about Giannini's right to reclaim his job.

"If you can push that rock uphill, start pushing," one Justice told Giannini's attorney, Matthew Vital of Huntington.

When Vital said his client was not convicted of crack possession a Justice said, "You are in the wrong place to make that argument."

A Justice said Vital had to tell the Court how to reach a decision that crack does not interfere with performance of a firefighter's duty.

Huntington city officials want the Justices to overturn Cabell County Circuit Judge John Cummings, who ordered reinstatement of Giannini last year.

Cummings ruled that termination was inconsistent with punishment of firemen who drove while under the influence of alcohol.

Giannini had already lost his job, won it back, and lost it again before Cummings reinstated him.

That makes the Justices tie breakers in a best of five series.

Police officer Levi Livingston arrested Giannini before dawn April 10, 2004, after observing his red truck at a crack house.

Livingston found a substance in the truck and identified it by field test as crack.

Police charged Giannini with misdemeanor possession of a controlled substance.

Fire chief Greg Fuller suspended him without pay pending termination.

Giannini asked the Firemen's Hearing Board to block his termination.

On July 14, 2004, Fuller told the hearing board that Giannini was never under the influence of controlled substances on the job. 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.

Commissioners on Nov. 19, 2004, found just cause for suspension. They declared that Giannini's conduct brought reproach and negative reflection on the department.

Three days later mayor David Felinton terminated Giannini.

On Feb. 9, 2005, a Cabell County judge dismissed the misdemeanor charge.

Five days later Giannini filed a petition in circuit court, appealing the decision of the Fire Civil Service Commission.

Cummings signed an order Aug. 26, 2005, finding no just cause for Giannini's termination.

The city appealed.

McClure wrote to the Justices that comparing crack and alcohol was like comparing apples and oranges.

In response Vital wrote, "It is not uncommon for firefighters to turn to alcohol and drugs in an attempt to relieve the stress."

He wrote, "Although a firefighter is held to certain standards in a community, a firefighter is not an enforcer of laws."

In oral arguments McClure told Justices there was no testimony refuting that Giannini possessed crack. He said the other side tried to muddy the waters about that.

In covering the hearing by webcast the West Virginia Record could not identify Justices because the Court camera showed only attorneys.

Court spokeswoman Jennifer Bundy said afterward that a camera on the Justices would cost $60,000. She said they were working on it.

She said she would try to match quotes with speakers.

Chief Justice Robin Davis, recognizable by voice as the only female Justice, greeted Vital and told him the Legg case was very similar.

Vital said it was different. He said Legg was fired for trying to alter a drug test.

Davis said, "I will give you this. Your guy didn't try to alter it."

A Justice said firefighters could be called out any time. He said a firefighter on crack presented a danger to fellow workers, other people and property.

Vital said Giannini checked into a drug abuse program.

A Justice said, "Yeah, because he had his butt in the wringer." He said Congressman Foley went into rehab for the same reason.

Vital said Giannini carried a woman out of a burning building. He said, "Clearly there was no effect on his job performance."

A Justice said, "To date."

When Vital said again that there was no conviction, Davis said, "What bearing should that have on us?"

Vital said it was an accusation.

A Justice said, "Didn't he admit it?"

Vital said, "I don't believe that is part of the record." He said the city never tested the sample.

A Justice said the problem with that was the commission finding that Giannini possessed a tan chunky substance which field tested as crack.

He said, "We have no basis on which to overturn that finding of fact."

A Justice asked Vital if he attacked that at the hearing. Vital said he was not Giannini's counsel then.

Davis said Livingston testified that Giannini said his arrest was the best thing for him.

A Justice asked Vital to give his best argument for pushing the rock uphill.

Vital said Giannini's termination would set a precedent allowing mayors and fire departments to fire anyone for bad press.

He said it would open a door for political firings.

McClure in rebuttal said that at the commission hearing Giannini's attorney admitted there was uncontroverted evidence of crack.

The Justices will decide it and issue an opinion.

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