[420 Girl]

A secretary to a state prison warden can keep his job despite testing positive for use of marijuana, the Nebraska Supreme Court ruled Thursday.

The ruling in the case of John Ahmann upholds an earlier ruling by Lancaster County District Judge Jodi Nelson and touches on whether an employee's attitude toward marijuana use should be a factor in firing them.

The court affirmed the judge's ruling that Ahmann's "spotless" employment record, his expressed willingness to stop using marijuana, and that the pot use came during off-duty hours requires the Nebraska Department of Correctional Services to consider other disciplinary action, short of dismissal.

In June of 2006, Ahmann, a secretary to a deputy warden in Lincoln, was suspended by the department after testing positive for marijuana during a random state drug test. Ahmann admitted that he had used the drug, but never during or prior to work hours. He said his "quite minimal" use of marijuana did not deter his work or had jeopardized the performance of the agency.

While he told his employers that he didn't feel what he did was "wrong" and that alcohol use was more dangerous that using marijuana, Ahmann said he planned to quit the drug because it was in his best interests.

He requested punishment for his act to be similar to that of possession of marijuana, which is a criminal infraction, like a traffic ticket, rather than a more serious misdemeanor or felony crime

The department, though, fired the secretary, citing its “drug-free workplace” rules and its code of ethics, which states that any alleged illegal activity will be presumed to affect a worker's performance.

Ahmann appealed to the State Personnel Board, stating that it appeared he had been fired because he wasn't sufficiently contrite about his offense. That board upheld his firing, stating that although the department had not always fired employees found to be using marijuana, Ahmann's attitude and the seriousness of the offense warranted termination.

Nelson reversed the firing, saying firing was too harsh in light of Ahmann's willingness to quit, the lack of harm to the department and his spotless employment record. Addressing Ahmann's opinions about marijuana, the judge stated that “attitudes and beliefs that are contrary to those of (the department) do not in and of themselves demonstrate risk of harm such that termination of employment is necessary.”

The Supreme Court agreed, saying the “immediate” firing of Ahmann violated the state labor agreement, which requires “just cause” for termination. Ahmann's attitude seemed to be a major factor in his firing, but the court ruled that most of the attitude stemmed from Ahmann's “correct assertion” that he had not strictly violated all the policies cited by the Corrections Department, including use of marijuana on the job.

Ahmann had worked at the Lincoln Correctional Center at the time of his dismissal. The court ordered that he should keep his job and that the state consider discipline short of firing.

A spokesman for the corrections department said the agency was awaiting new disciplinary action imposed by the state personnel board. Kyle Poppert, the spokesman, said the department will continue to do random drug-testing of employees "because we strongly believe that off-duty drug use is inconsistent with our mission."

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