WEST VIRGINIA RECORD

CHARLESTON – Once again, the West Virginia Supreme Court of Appeals has fired a Huntington firefighter for getting mixed up with crack cocaine.

The Justices decided Nov. 16 that Cabell Circuit Judge John Cummings committed an error by giving Michael Giannini's job back to him.

Justice Joseph Albright wrote for a unanimous Court that "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 importance."

He wrote that crack possession "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."

The Justices upheld the Huntington Firemen's Civil Service Commission, which voted to terminate Giannini.

In October, the Justices ordered the termination of Capt. Earl Legg Jr., reversing Cabell Circuit Judge John Cummings' ruling that said the Huntington Firemen's Civil Service Commission properly terminated him after Fire Chief Greg Fuller had said there was a lack of reasonable suspicion to test him for drugs.

Huntington police officer Levi Livingston arrested Giannini in 2004 near a crack house on Lincoln Avenue, around four in the morning.

Livingston found a tan chunky substance that field tested as crack cocaine.

Prosecutors charged Giannini with possession of a controlled substance.

Fuller suspended him, relying on a rule that personnel must bring no reproach or reflection on the department.

Three months later, before the Firemen's Hearing Board, Fuller testified that Giannini was not under the influence of controlled substances while on the job.

Witnesses praised Giannini as an exemplary firefighter who saved a life.

Livingston did not testify.

The hearing board ordered reinstatement with back pay.

The city appealed to the Firemen's Civil Service Commission.

At a commission hearing, Livingston testified that he found crack cocaine. He said Giannini admitted a drug problem.

The commission reversed the hearing board and terminated Giannini.

In February 2005, prosecutors dismissed the possession charge.

That August, Cummings found no just cause for termination. He held that the city did not prove that the substance was crack.

Cummings also found the punishment inconsistent with earlier suspensions of firefighters guilty of driving under the influence of alcohol.

The city appealed. Scott McClure and Christopher Dean of Huntington represented the city. Matthew Vital of Vital & Vital in Huntington represented Giannini.

The Justices held that the Firemen's Civil Service Commission concluded that the substance was cocaine. They held that Giannini admitted a drug problem.

They wrote that a criminal proceeding requires proof beyond reasonable doubt, while an administrative proceeding requires a preponderance of evidence.

They agreed with the city that Giannini could not compare his offense to that of firefighters driving under the influence.

Albright wrote, "... one involves abuse of a legal substance and one involves acquisition and possession of an illegal substance."