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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

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.

FILED

January 18, 2023

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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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. 
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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