                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS



Michael L. Buracker, Plaintiff Below,                                            FILED
Petitioner                                                                     September 3, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
vs) No. 12-1264 (Berkeley County 11-C-514)                                    OF WEST VIRGINIA


The Berkeley County Council, a political
corporation, Defendant Below, Respondent

                                 MEMORANDUM DECISION

       Petitioner Michael Buracker’s appeal, by counsel Barry P. Beck, arises from the Circuit
Court of Berkeley County’s August 31, 2012 order granting respondent’s motion to dismiss.
Respondent Berkeley County Council (“Council”), by counsel Brian M. Peterson, filed a
response. On appeal, petitioner alleges that the circuit court erred in granting respondent’s motion
to dismiss because he alleged sufficient facts to support a claim for a violation of his right to
privacy.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Petitioner worked as a deputy for the Berkeley County Sheriff’s Office when he was
required to submit to a non-random drug screen on April 14, 2011. Sheriff Kenneth Lemaster
ordered one of petitioner’s superior officers to physically escort petitioner to the site where the
drug screen was to be conducted. The results of the drug screen were negative. Petitioner asked
Sheriff Lemaster why he had been required to submit to the drug screen, and, according to the
complaint, Sheriff Lemaster stated that he heard a rumor that petitioner was using illegal drugs. In
June of 2011, petitioner filed a complaint against Respondent Council alleging invasion of
privacy. In October of 2011, respondent filed a motion to dismiss arguing that under Twigg v.
Hercules Corp., 185 W.Va. 155, 406 S.E.2d 52 (1990), the drug test did not violate petitioner’s
right to privacy because his job responsibility involves public safety and the safety of others. The
circuit court granted the motion to dismiss in August of 2012, and it is from this order that
petitioner appeals.

       “‘Appellate review of a circuit court’s order granting a motion to dismiss a complaint is de
novo.’ Syl. pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac–Buick, 194 W.Va. 770, 461
S.E.2d 516 (1995).” Syl. Pt. 1, Posey v. City of Buckhannon, 228 W.Va. 612, 723 S.E.2d 842
(2012). Upon our review, the Court finds no error in the circuit court’s order granting

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respondent’s motion to dismiss. In ruling on the motion to dismiss, the circuit court found that
respondent’s action could not be considered a violation of petitioner’s right to privacy because
“his job responsibility involved public safety and the safety of others.” We have previously held
that

       “[d]rug testing will not be found to be violative of public policy grounded in the
       potential intrusion of a person’s right to privacy where it is conducted by an
       employer based upon reasonable good faith objective suspicion of an employee’s
       drug usage or while an employee’s job responsibility involves public safety or the
       safety of others.” Syllabus Point 2, Twigg v. Hercules Corp., 185 W.Va. 155, 406
       S.E.2d 52 (1990).

Syl. Pt. 2, Baughman v. Wal-Mart Stores, Inc., 215 W.Va. 45, 592 S.E.2d 824 (2003). On appeal,
as in the circuit court, petitioner argues that his right to privacy was violated because the sheriff
did not have a reasonable good faith objective suspicion of drug use, and he instead required
petitioner to submit to the drug screen based on rumor. However, as the circuit court noted,

       [petitioner] is asking the [c]ourt to interpret Syl. Pt. 2 of Twigg . . . in such a way
       as to transform the word ‘or’ into the word ‘and’ as well as to add a limitation that
       such an exception only pertains to ‘random’ drug testing.

        The Court agrees with the circuit court in rejecting petitioner’s argument, and that
Syllabus Point 2 of Twigg is dispositive of the issue. Syllabus Point 2 of Twigg states that
requiring an employee to submit to a drug test is not a violation of the individual’s right to
privacy where it is conducted while the employee’s job responsibility involves public safety or
the safety of others. It is undisputed that a law enforcement officer’s job responsibility involves
public safety and welfare. See Ullom v. Miller, 227 W.Va. 1, 11, 705 S.E.2d 111, 121 (2010)
(recognizing that law enforcement officers have community safety and welfare duties beyond
their criminal investigatory duties). Further, it is clear that Syllabus Point 2 of Twigg does not
additionally require a reasonable good faith objective suspicion of drug use or require that such
testing be done at random. For these reasons, the circuit court did not err in granting respondent’s
motion to dismiss.

       For the foregoing reasons, the circuit court’s August 31, 2012 order granting respondent’s
motion to dismiss is hereby affirmed.
                                                                                        Affirmed.

ISSUED: September 3, 2013

CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II

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