Home Legal Issues City has reinstated firefighter fired in 2004

City has reinstated firefighter fired in 2004

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A Huntington firefighter who was fired last year after he was arrested on misdemeanor drug charges has been reinstated. Cabell County Circuit Court Judge John Cummings ruled Friday that Mayor David Felinton did not have “just cause” to fire Michael D. Giannini in November. The ruling further ordered that Giannini receive back pay retroactive to April 14, 2004, and that the city pay his attorney fees.

Giannini was arrested for possession of a controlled substance on April 10, 2004, in the 1700 block of 8th Avenue. According to a Huntington Police Department report, officers found 0.3 grams of a substance that field-tested positive for crack cocaine in Giannini’s truck after they observed him swerving in traffic.

Giannini was suspended without pay four days later. Felinton fired the decorated firefighter on Nov. 22, 2004, after the Firemen’s Civil Service Commission upheld the suspension. An internal fireman’s hearing board had previously reversed Giannini’s suspension.

The drug charges against Giannini were dropped in February because test results of the substance found in his truck were not analyzed at the West Virginia State Police’s crime lab in the required time period, said Matt Vital, Giannini’s attorney.

Cummings’ order cited testimony from Huntington Fire Chief Greg Fuller during both the internal fireman’s board and Civil Service Commission hearings that Giannini “was never under the influence of controlled substances on the job and that two other firemen were previously found guilty of a misdemeanor DUI and were not terminated.”
Vital said he was pleased with the judge’s ruling.

“We believe that the mayor should never have fired Mr. Giannini prior to the outcome of the criminal charges,” Vital said. “Since the criminal charges were dismissed, it was proper to reinstate Mr. Giannini to his position with the Huntington Fire Department.”

Mayor David Felinton said he was disappointed with the decision and that the city plans to appeal.

“On one hand, we’re trying to clean the streets of drugs,” Felinton said. “At the same time, we are forced to hire back someone to protect the public who (has faced drug charges). It’s very frustrating. This decision really takes away our ability to protect the public.”

Giannini is the second Huntington firefighter to be reinstated by Cummings in as many months. In July, the judge ruled in an unrelated case that “exigent circumstances” did not exist when Fuller requested Capt. Earl Legg to take a reasonable suspicion drug test on April 18, 2004. The preliminary results of Legg’s drug test came back from the testing facility as “substituted/refusal to test.” Legg was placed on suspension without pay April 22, 2004, even though the city did not receive the official test results until two weeks later.

The fireman’s internal hearing board ruled in July 2004 that reasonable suspicion did not exist for Legg to take the drug test. The Fireman’s Civil Service Commission overturned the board’s ruling in February, even though it acknowledged that the city failed to prove that Legg tampered with the drug test, according to Cummings’ order.

The Civil Service Commission’s actions were “arbitrary and capricious and an abuse of discretion given the commission’s finding to the contrary as contained in the record,” Cummings wrote in his order.

Legg was awarded back pay retroactive to April 22, 2004, and the city was ordered to pay his attorney fees.

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