Appeals Court Upholds Termination of WV Fire Lieutenant

A West Virginia fire lieutenant who was terminated after a series of off-duty altercations, has lost his appeal before the Intermediate Court of Appeals. Nicholas Graley was terminated by the City of South Charleston in 2020 following three separate incidents, each of which resulted in his arrest. Two of the incident involved the use of firearms.

Lt. Graley’s termination was upheld by an internal Fire Department hearing board, but reversed by the South Charleston Fire Civil Service Commission in part because one of the complainants, (the mother of his child),  “went on to essentially walk back everything she had told to police” regarding two of the incidents. The city appealed the Commission’s decision to the Circuit Court of Kanawha County seeking to have the fire chief’s termination order reinstated.

The Circuit Court concluded that “the Commission’s order was factually deficient” in that “the Commission failed to consider any of the uncontroverted evidence of the May 30, 2019, incident and the Commission’s decision was counter to the evidence presented regarding the two other incidents. The Circuit Court overturned the order of the Commission and concluded that the termination of Mr. Graley was just and proper.”

Lt. Graley appealed that decision to the Court of Appeals, seeking to have the Commission’s decision reinstated. Quoting from the Court of Appeals decision:

  • On appeal, Mr. Graley asserts that the circuit court erred by essentially undertaking a de novo review of the case.
  • While the wording used by the circuit court appears to suggest that the circuit court improperly usurped the role of fact finder due to the lack of fulsome findings of fact in the Commission’s final order, because we review the Commission’s decision from the same position as the circuit court, this alleged error by the circuit court is not dispositive.
  • Rather, the issue before this Court is whether the record reveals a substantial and rational basis for the Commission’s decision.
  • After review of the record, we find that the decision of the Commission is not supported by a substantial and rational basis.
  • Further, the final order of the Commission is reversed because the Commission entirely failed to consider important aspects of the case and offered explanations that ran counter to the evidence.
  • For instance, the Commission failed to consider any of the facts related to the May 30, 2019, incident wherein Mr. Graley was involved in an altercation while drinking in public then followed members of that altercation home after being asked not to, discharged his firearm from his vehicle, and initially lied to law enforcement about his actions.
  • The Commission also failed to consider that Mr. Graley lied about, or minimized, his actions concerning this incident [when he explained what occurred] to Chief White.
  • As it relates to Mr. Graley’s two arrests for domestic assault, the Commission’s finding that the incidents were “heated conversations of a domestic nature” between “co-antagonists” runs counter to the evidence before the Commission.
  • Although Ms. Wilson’s testimony before the Commission attempted to minimize her statements to police, she specifically testified that she was “absolutely not” recanting her prior statements.
  • As outlined above, those statements include troubling threats by Mr. Graley, disrespectful behavior by Mr. Graley toward Ms. Wilson and her mother, Mr. Graley wielding a firearm during the first incident, and Ms. Wilson expressing a fear for her safety, the safety of her children, and the safety of law enforcement.
  • Likewise, the Commission’s finding that Mr. Graley was not disrespectful to Mr. Morrison runs counter to the evidence before the Commission.
  • Both Mr. Morrison and Ms. Wilson testified that Mr. Graley told Mr. Morrison that he was going to kill him while wielding steak knives.
  • Mr. Morrison also testified that Mr. Graley got in his face and “chest bumped” him. Such actions are clearly disrespectful of Mr. Morrison, if not worse.
  • “A firefighter’s job is characterized by his or her responsibility to the public, and the . . . mental acuity of public safety personnel [is] of utmost significance.”
  • Here, as discussed above, Mr. Graley had been drinking and followed people home with whom he had been in an altercation, after being asked not to, discharged his firearm while driving, lied to law enforcement, lied to or misled his supervisor, threatened others with deadly weapons on multiple occasions, was arrested multiple times, and repeatedly disrespected others.
  • Such actions demonstrate poor judgment, recklessness, and an inability of Mr. Graley to manage his anger; all of which call into question his mental acuity, ability to reason and to make decisions as a firefighter that affect public safety.
  • Such actions by Mr. Graley constitute misconduct of a substantial nature specially related to and affecting Mr. Graley’s ability to perform tasks inherent in being a firefighter.
  • Accordingly, there was just cause for Mr. Graley’s immediate termination.

Here is a copy of the decision:

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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