Former Bluefield firefighter loses appeal

By Lawrence Smith | Apr 4, 2013

CHARLESTON – The state Supreme Court has affirmed a lower court’s decision that upheld a former Bluefield firefighter’s termination.

The court on March 29 voted 4-1 to uphold Mercer Circuit Judge William J. Sadler’s 2012 decision denying Mitchell Barker’s appeal of the Bluefield Fireman’s Civil Service Commission decision to fire him.

In a two-page memorandum opinion, the court said Sadler was correct to deny the appeal since Barker could not prove the commission made any errors in its decision to fire him five years ago.

Justice Robin Jean Davis cast the dissenting vote.

Memorandum opinions are issued by the court in cases that would not be significantly aided by oral arguments, and present not new questions of law.

According to court records, Barker began experiencing back problems sometime in 2007. This caused him to intermittently miss work that year and early 2008.

Though he submitted some medical excuses, BFD disputed the sufficiency to cover all his absences. Following an evidentiary hearing on April 8, 2008, the commission upheld the fire chief’s decision terminating Barker for excessive absences and insubordination.

Three months later, Barker appealed the decision to circuit court.

After receiving Barker’s appeal, Sadler said he could not rule on it since the commission did not submit proper findings of fact and conclusions of law in compliance with state law. Though records do not specify when he ordered them, the commission submitted a “sufficient final order” on Jan. 18, 2012.

A week later, Sadler issued his order denying Barker’s appeal.

In his appeal to the court, Barker argued the case should be remanded back to Sadler on several grounds, including that the findings made by the commission were not supported by the evidence. Specifically, Barker maintained “he was not insubordinate because he substantially complied with the Chief’s instructions regarding his medical excuses.”

However, the court said Sadler was correct to defer to the commission’s ruling. Citing its prior decisions in the 1971 and 2006 cases of Billings v. Civil Service Commission and Giannini v. Firemen’s Civil Service Commission of City of Huntington, the court said, “[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.”

Barker was represented by Charleston attorney Andrew J. Katz. The city was defended by Princeton attorney John W. Feuchtenberger.

West Virginia Supreme Court of Appeals, case number 12-0296

Mercer Circuit Court, case number 08-C-388

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