The state's high court has said a prison secretary fired after testing positive for using marijuana should not have lost his job over it.

John Ahmann consistently had positive job performance evaluations, never had used marijuana before or during his work hours and had expressed a willingness and desire to follow prison policy and stop using marijuana, according to the order.

The Nebraska Supreme Court decision, which came down Thursday, upheld a ruling last year by Lancaster County District Judge Jodi Nelson.

"…The district court was correct to conclude that a reasonable employer, acting in good faith, would not regard the infraction as good and sufficient reason for immediate termination of Ahmann's employment," the supreme court said.

On May 12, 2006, Ahmann, then secretary to the deputy warden at Lincoln Correctional Center, submitted a urine sample for drug testing that tested positive for marijuana.

At a pre-disciplinary hearing, he admitted he had smoked marijuana off duty.

Ahmann said he knew the Department of Correctional Services had a drug-free workplace policy and was willing to quit using marijuana entirely. He also said he didn't see marijuana as a major problem and compared using it to not wearing a seat belt.

"Nevertheless, he indicated that he knew it was a problem for DCS, indicated he would stop using, expressed that he had done so in the past, declined any assistance from DCS in helping him to quit and expressed a desire to return to work," Nelson wrote.

On June 30, 2006, he was fired, despite an otherwise spotless employment record and above-average evaluations, she said.

Warden Diane Sabatka-Rine said she fired him because she didn't have confidence he would stop using marijuana.

Yet, Nelson said there was no evidence his marijuana use ever affected his performance on the job or in any way jeopardized the safety and security of the institution.

In her order, she said DCS had good cause to discipline Ahmann.

"However, the court finds that the imposition of termination as a sanction exceeds the nature and severity of the infraction for which it was imposed," she wrote.

Nelson reversed the State Personnel Board's decision and remanded the case to the board to determine the appropriate sanction - short of termination.

The Attorney General's Office appealed.

In the opinion Thursday, the supreme court said the decision to fire Ahmann was based in large part on his attitude, "much of which stemmed from his correct assertion that he was not strictly violating all the provisions cited by DCS against him."

The court said the policy prohibits the unlawful manufacture, distribution, dispensation, possession or use of a controlled substance in the work place.

The high court also pointed out that between 2004 and 2006 five prison employees tested positive for marijuana, yet three resulted in suspension.

The court said the prison shouldn't have ignored progressive discipline, which could have including further drug testing, considering Ahmann's otherwise "spotless" work record and his willingness to comply with DCS policy.

Reach Lori Pilger at 473-7237 or lpilger@journalstar.com.