Prison job safe despite pot use

LINCOLN — A secretary to a state prison warden can keep his job despite testing positive for the 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 the person.

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

In June 2006, Ahmann, who works for a deputy warden in Lincoln, was suspended after testing positive for marijuana during a random state drug test.

Ahmann admitted that he had used the drug but never during or before work hours. He stated that his “quite minimal” use of marijuana did not have a detrimental effect on his work or jeopardize the agency’s performance.

Though he told his employer that what he did wasn’t “wrong” and that alcohol use was more dangerous than marijuana use, Ahmann said he planned to quit the drug because that was in his best interests.

He requested that punishment for his act 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.

The department, though, fired the secretary, citing its “drug-free workplace” rules and its ethics code, 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 the penalty 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: “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.

The court ordered that Ahmann should keep his job and that the state consider discipline short of firing.