David Crimm v. City of Grafton ( 2023 )

FILED
January 18, 2023
STATE OF WEST VIRGINIA EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS SUPREME COURT OF APPEALS
OF WEST VIRGINIA
David Crimm,
Plaintiff Below, Petitioner
vs.) No. 21-0921 (Taylor County 18-C-18)
City of Grafton,
Defendant Below, Respondent
MEMORANDUM DECISION
Petitioner David Crimm appeals the circuit court’s denial of his motion for summary
judgment and petition for a writ of mandamus in which petitioner sought to be restored to an
employment position with Respondent City of Grafton (“City”) with backpay and benefits,
removal of the termination from his record, and attorney’s fees and costs. 1 Upon our review, we
determine that oral argument is unnecessary and that a memorandum decision affirming the circuit
court’s order is appropriate. See W. Va. R. App. Proc. 21.
Petitioner was serving as the Chief of the Grafton Fire Department in 2018 when he was
questioned about recent fire hydrant testing and department training records. According to several
City employees, petitioner admitted directing subordinates to create or falsify those records.
Petitioner refused to resign, and his employment with the City was terminated in two separate
letters dated March 13 and March 14, 2018. Both letters informed petitioner he was being
terminated for “falsification of official city documents . . . .” The letters cited to the City’s
personnel handbook and provided that his termination was the result of “an action that reflects
discredit upon the City Government, falsifying or destruction of reports, records, documents,
employee information, applications for employment, and illegal action or actions which violate
Federal, State, or Municipal regulations that affect the City, its reputation, or its ability to conduct
any aspect of its business.” Petitioner initially requested a civil service hearing, but that request
was denied by the Grafton Firemen’s Civil Service Commission. He then filed a grievance with
the City regarding his termination, but he requested a continuance of that proceeding so that he
could pursue a petition for a writ of mandamus in circuit court. After filing his circuit court action,
petitioner sought summary judgment on his petition for a writ of mandamus. The circuit court
denied that motion and dismissed petitioner’s petition for a writ of mandamus, finding that
petitioner had no clear legal right to reinstatement of his employment as a firefighter with the City.
1
Petitioner is represented by Mark McMillian, and the City is represented by Tamara J.
DeFazio and C. Brian Matko.
1
In its order, the circuit court noted that the grievance matter “may now proceed, and it is the
appropriate forum to make factual determinations regarding the asserted reasons for [petitioner’s]
termination, as it was an available remedy which has yet to be exhausted.” Petitioner appeals from
that order. 2
The following standards are relevant to our consideration of petitioner’s contention that the
circuit court erred in finding that he was not entitled to civil service due process rights as a member
of the Grafton Fire Department:
“A de novo standard of review applies to a circuit court’s decision to grant
or deny a writ of mandamus.” Syllabus Point 1, Harrison Cty. Comm’n v. Harrison
Cty. Assessor, 222 W.Va. 25, 658 S.E.2d 555 (2008).
“‘To invoke mandamus the relator must show (1) a clear right to the relief
sought; (2) a legal duty on the part of the respondent to do the thing relator seeks;
and (3) the absence of another adequate remedy.’ Syllabus point 2, Myers v. Barte,
167 W.Va. 194, 279 S.E.2d 406 (1981).” Syllabus Point 3, Harrison Cty. Comm’n
v. Harrison Cty. Assessor, 222 W.Va. 25, 658 S.E.2d 555 (2008).
“‘Where the issue on an appeal from the circuit court is clearly a question
of law or involving an interpretation of a statute, we apply a de novo standard of
review.’ Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459
S.E.2d 415 (1995).” Syllabus Point 4, Harrison Cty. Comm’n v. Harrison Cty.
Assessor, 222 W.Va. 25, 658 S.E.2d 555 (2008).
Syl. Pts. 1-3, Cales v. Town of Meadow Bridge, 239 W. Va. 288, 800 S.E.2d 874 (2017).
Petitioner has not shown that the circuit court erred in denying his motion for summary
judgment or denying his petition for a writ of mandamus. The 1985 Grafton City Charter provides
for the office of fire chief, in sections 34 and 35, but neither section provides that the position is
subject to the statutory fire civil service system. On February 18, 2014, the City adopted Ordinance
814, which amended section 34 of the 1985 charter to provide, in part, that “[t]he Fire Operations
Chief shall be a non-civil service employee. If the Fire Operations Chief is promoted from a civil
service employee he/she may resign at any time and return to an open civil service employee
position in the Grafton Fire Department.”
Pursuant to West Virginia Code § 8-15-11(c) (2003),
[u]ntil the office of fire chief is placed under the civil service provisions of this
article by the governing body, the member of any paid fire department now
occupying such office or hereafter appointed to such office shall in all cases of
removal, except for removal for good cause, retain the status he or she held in the
2
The circuit court also entered a November 8, 2021, order stating that it failed to dismiss
the matter in its earlier orders. It specifically dismissed the mandamus action in that November 8,
2021, order.
2
paid fire department at the time of his or her appointment to the office of fire chief
or which he or she attained during his or her term as fire chief.
Here, the City ordinance reflects the City’s decision not to place the position of fire chief
under the civil service provisions. Because the position was not placed within civil service
provisions, he has failed to show that he is entitled to a civil service position within the Grafton
Fire Department. In addition, contrary to petitioner’s assertions, the City presented documentary
evidence to the circuit court regarding petitioner ordering subordinates to falsify the fire hydrant
and department training records for the Grafton Fire Department. That evidence included a June
of 2018 letter from the county prosecutor setting forth his belief that petitioner had falsified
documents and an April of 2018 letter from a state police sergeant detailing conversations with
several individuals, which support the City’s contention that petitioner directed subordinates to
falsify records. The purported training records, which were reportedly completely fabricated at
petitioner’s direction, and fire hydrant tests, which were presented as new data despite reusing
outdated data from previous years at petitioner’s direction, were also produced below and are
included in the record before this Court. This Court has found that good cause “means misconduct
of a substantial nature directly affecting the rights and interest of the public, rather than upon trivial
or inconsequential matters, or mere technical violations of statute or official duty without wrongful
intention.” Syl. Pt. 1, in part, Oakes v. W. Va. Dep’t of Fin. & Admin., 164 W. Va. 384, 264 S.E.2d
151 (1980). The proper operation of fire hydrants and training of fire fighters affect the interest of
the public.
Moreover, as a general rule, summary judgment is appropriate if, from the totality of the
evidence presented, the record could not lead a rational trier of fact to find for the nonmoving
party, such as where the nonmoving party has failed to make a sufficient showing on an essential
element of the case that it has the burden to prove. Syl. Pt. 2, Williams v. Precision Coil, Inc., 194
W. Va. 52, 459 S.E.2d 329 (1995). Here, however, petitioner did not present any evidence with
his motion for summary judgment; therefore, he failed to rebut the City’s evidence that petitioner
was dismissed for good cause. Thus, we find that petitioner has failed to establish he had a clear
right to the relief sought. Further, he has another adequate remedy, as at the time of the filing of
the instant appeal he still had a pending grievance proceeding. We, therefore, affirm the circuit
court’s order denying petitioner’s motion for summary judgment and petition for a writ of
mandamus.
Affirmed.
ISSUED: January 18, 2023
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn
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