Ahmann v. Nebraska Dept. of Corr. Servs.

of photographs of the actual truck, including photographs of
the truck’s bumper with a warning decal affixed. There was no
abuse of discretion by the district court in excluding exhibits
30 and 31 at trial.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court in all respects.
A ffirmed.
ahmaNN v. NebraSka depT. OF COrr. ServS. 	29
Cite as 278 Neb. 29
John A hmAnn And nebrAskA A ssociAtion of P ublic
emPloyees Afscme locAl 61, APPellees , v.
nebrAskA dePArtment of correctionAl
services And the stAte of
nebrAskA, APPellAnts.
767 N.W.2d 104
Filed July 2, 2009. 	No. S-08-888.
1. Administrative Law: Judgments: Appeal and Error. a judgment or final order
rendered by a district court in a judicial review pursuant to the administrative
procedure act may be reversed, vacated, or modified by an appellate court for
errors appearing on the record.
2. ____: ____: ____. When reviewing an order of a district court under the
administrative procedure act for errors appearing on the record, the inquiry is
whether the decision conforms to the law, is supported by competent evidence,
and is neither arbitrary, capricious, nor unreasonable.
3. Judgments: Evidence: Words and Phrases: Appeal and Error. an appellate
court will not substitute its factual findings for those of the district court where
competent evidence supports those findings. Competent evidence means evidence
that tends to establish the fact in issue.
4. Judgments: Appeal and Error. Whether a decision conforms to law is by defi-
nition a question of law, in connection with which an appellate court reaches a
conclusion independent of that reached by the lower court.
5. Administrative Law: Courts: Appeal and Error. In a district court’s de novo
review of the decision of an administrative agency, the level of discipline imposed
by the agency is subject to the district court’s power to affirm, reverse, or modify
the decision of the agency or to remand the case for further proceedings. The
district court is not required to give any deference to the findings of the agency
hearing officer or the department director.
6. Termination of Employment: Words and Phrases. “Just cause” for dismissal is
that which a reasonable employer, acting in good faith, would regard as good and
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:50 AM CST

sufficient reason for terminating the services of an employee, as distinguished
from an arbitrary whim or caprice.
appeal from the district Court for Lancaster County: Jodi
nelson, Judge. affirmed.
Jon bruning, attorney General, and ryan C. Gilbride for
appellants.
dalton 	W. 	Tietjen, 	of 	Tietjen, 	Simon 	& 	boyle, 	for
appellees.
heAvicAn, c.J., connolly, G errArd, stePhAn, mccormAck,
and miller-lermAn, JJ.
mccormAck, J.
NaTUre OF CaSe
The Nebraska department of Correctional Services (dCS)
and the State of Nebraska appeal from the district court’s order
concluding that dCS terminated John ahmann’s employment
without just cause, in violation of their labor agreement. dCS
had made the decision to terminate ahmann’s employment
after a random drug test showed the presence of marijuana
in his system. because of ahmann’s “spotless” employment
record, the fact that his drug use was off duty, and his expressed
willingness to stop using marijuana, the court determined that
termination of employment violated the labor agreement, pro-
viding that dCS “shall not discipline an employee without just
cause, recognizing and employing progressive discipline.”
FaCTS
ahmann was hired by dCS in November 2002 as a recep-
tionist. by august 2004, he was promoted to Secretary II to
the deputy warden. In that position, ahmann was responsible
for filing incident reports; filing inmate grievances; maintain-
ing those files; entering data into databases; preparing monthly
reports, correspondence, and memorandums; taking meeting
minutes; and other general secretarial duties.
ahmann was a member of the Nebraska association of
public employees Local 61 of the american Federation of
State, County and municipal employees (Nape). Section 10.1
30 	278 NebraSka repOrTS

of the labor agreement between Nape and the State governs
discipline of Nape employees:
discipline will be based upon just cause and will in no
case be effective until the employee has received writ-
ten notice of the allegations describing in detail the issue
involved, the date the alleged violation took place, [and]
the specific section or sections of the contract or work
rules involved . . . . The employer shall not discipline an
employee without just cause, recognizing and employing
progressive discipline. When imposing progressive dis-
cipline, the nature and severity of the infraction shall be
considered along with the history of discipline and perfor-
mance contained in the employee’s personnel file.
prior to ahmann’s termination of employment, job perfor-
mance evaluations showed that ahmann consistently exceeded
the performance level expected of him. he never received an
evaluation that was less than satisfactory and had never been
disciplined or counseled for any misconduct. ahmann’s work
performance was described as “complete and accurate.” In June
2004, ahmann was selected as employee of the month because
of his dependability, efficiency, positive working relationship
with the staff, and willingness to take on extra work whenever
the department was short staffed.
In may 2006, ahmann was subjected to a random urinalysis
and tested positive for marijuana. The testing was part of the
“employee drug Testing program,” policy directive 04-005.
The introductory section to the directive states that dCS “has
zero tolerance for illicit drug use/abuse” and that to preserve
security and protect the personal safety of employees, volun-
teers, inmates, and the general public, employees were not per-
mitted “to perform their duties or enter departmental facilities
or offices while under the influence of alcohol, illegal drugs
and/or controlled substances.”
The directive states that when test results are positive, dCS
has the following courses of action to consider: (1) supplemen-
tal training, (2) supervisory counseling, (3) employee assistance
program referral or treatment referral to a licensed substance
abuse professional, (4) performance improvement plan, or (5)
disciplinary action. The directive explains that dCS will take
ahmaNN v. NebraSka depT. OF COrr. ServS. 	31
Cite as 278 Neb. 29

disciplinary action only “for just cause, while considering any
mitigating information.” It further states:
however, employees who test positive for drugs may be
disciplined for any illegal actions they engage in, includ-
ing possessing, manufacturing and trafficking in illegal
drugs. employees who test positive for illegal drugs may
also be disciplined for failing to fully cooperate with an
employer investigation, into the positive drug test, and the
circumstances surrounding their drug use.
On June 1, 2006, ahmann was suspended without pay pend-
ing an investigation into the positive urinalysis. That same
date, ahmann submitted a letter to dCS “[i]n an effort to
resolve [the] issue as quickly as possible . . . .” ahmann admit-
ted that he had, “on occasion,” used marijuana. but ahmann
explained that he had never used marijuana either before or
during his work hours and had never possessed marijuana on
dCS property.
ahmann stated that he understood marijuana was against the
law, but that he had “made a conscious choice to accept the
civil penalty involved if [he] were to be ticketed.” possession
of less than an ounce of marijuana is, for the first offense, nei-
ther a felony nor a misdemeanor—it is an infraction, punish-
able by a $300 fine.1 ahmann pointed out that failing to wear
a seatbelt was also against the law, similarly punishable by a
fine.2 ahmann denied using any other drugs.
ahmann stated he did not believe that his “quite minimal”
use of marijuana “had any negative effect on [his] performance,
quality, efficiency or accuracy” at his job or that it had ever
“risked the safety, security and good working order of the
institution.” he understood the test results could not “simply
be overlooked,” but hoped any disciplinary action would be the
equivalent of the civil penalty he would have been subject to
1 See, Neb. rev. Stat. §§ 28-416(13)(a) and 29-431 (reissue 2008); Miller
v. Peterson, 208 Neb. 658, 305 N.W.2d 364 (1981), disapproved on other
grounds, Jacobson v. Higgins, 243 Neb. 485, 500 N.W.2d 558 (1993).
2 See Neb. rev. Stat. §§ 60-6,267 (Cum. Supp. 2008) and 60-6,268 (reissue
2004).
32 	278 NebraSka repOrTS

had he been charged with possession. ahmann emphasized that
he wished to return to work as quickly as possible.
On June 5, 2006, ahmann was notified he was being charged
with violating article 10.2, subsections (a), (d), and (m), of the
labor agreement. as relevant, article 10.2 states that appropri-
ate disciplinary action, subject to just cause, may be taken for
the following: (a) “[v]iolation of, or failure to comply, with the
Labor Contract, State constitution or statute; an executive order;
regulations, policies or procedures of the employing agency; or
legally promulgated published rules”; (d) “[u]nlawful manu-
facture, distribution, dispensation, possession or use of a con-
trolled substance or alcoholic beverage in the workplace or
reporting for duty under the influence of alcohol and/or unlaw-
ful drugs”; or (m) “[a]cts or conduct which adversely affects
the employee’s performance and/or the employing agency’s
performance or function.”
dCS also attached to the letter a copy of its “drug Free Work
place policy.” The policy concerns drug abuse and use “at the
work place,” for which disciplinary action may be imposed.
The policy also states that the possession or use of illicit drugs
“in the community at large” is “in the direct conflict with the
mission of this department.” Furthermore, referring specifi-
cally to the “Code of ethics and Conduct,” the drug-free work-
place policy warned employees to be aware of other regulations
and policies concerning the possession and use of illicit drugs
outside the workplace.
The Code of ethics and Conduct provides, under the heading
of “personal accountability,” that “[a]n employee is expected
to maintain and promote professionalism towards inmates,
coworkers and the public” and that such promotion includes
“exemplifying the department’s mission.” more specifically,
the code states that any employee who is arrested or issued
a citation for a violation of the law, other than a minor traf-
fic violation, will be subject to investigation. Further, “[a]ny
alleged illegal activity on the part of the employee will be con-
sidered to have an impact on his or her ability to perform as a
correctional employee and may result in immediate suspension
from the job pending the outcome of any litigation.” Under the
more specific category of “drug abuse,” the Code of ethics
ahmaNN v. NebraSka depT. OF COrr. ServS. 	33
Cite as 278 Neb. 29

and Conduct specifically prohibits the unlawful manufacture,
distribution, dispensation, possession, or use of a controlled
substance “in [dCS’] work place” and subjects to discipline
“[a]ny employee violating this policy.”
a predisciplinary meeting between ahmann and the warden,
diane Sabatka-rine, took place on June 9, 2006. at the meet-
ing, ahmann questioned whether he was in fact in violation of
the specific rules cited against him. he further explained that he
did not think what he did was “wrong.” Nevertheless, ahmann
explained that he had decided to stop using marijuana, because
that would be in his best interests, and was willing to submit
to followup urinalyses. he stated he did not foresee needing
any assistance in quitting, pointing out that he had been able to
quit in the past. ahmann explained that he had known when the
drug-free workplace policy was issued that he was taking the
chance of getting caught with a positive urinalysis. Still, he did
not think he actually violated the drug-free workplace policy,
as written. ahmann “apologize[d] for any inconvenience with-
out admitting guilt.”
Sabatka-rine issued a letter terminating ahmann’s employ-
ment on June 30, 2006, citing violations of article 10.2(a) and
(m) of the Nape labor agreement. ahmann filed a grievance
with the dCS director, who issued a written decision agreeing
with Sabatka-rine’s decision to terminate ahmann’s employ-
ment. In accordance with the employee grievance procedure,
ahmann appealed to the State personnel board (the board).
On February 28, 2007, a hearing was held before a hear-
ing officer appointed by the board. The witnesses testifying at
the hearing were ahmann, Sabatka-rine, and keith ernst, the
human resources manager for dCS.
ahmann again stated that he was never under the influ-
ence of marijuana while on the job. he further stated that
although he “[o]ccasionally” came into contact with prison
inmates, he had never accepted marijuana from an inmate or an
inmate’s family.
ahmann admitted that he knew off-duty marijuana use
“might” subject him to discipline. ahmann testified he was
aware of the drug-free workplace policy. but ahmann stated
that it was his understanding that even if some form of
34 	278 NebraSka repOrTS

discipline was appropriate under that policy, he did not expect
it to be severe. ahmann noted that in the policy, “discipline”
was last on the list of possible dCS responses to a positive
urinalysis. ahmann thought that given his employment his-
tory, he would not be subject to discipline for a first offense.
Furthermore, being aware of the progressive discipline policy,
ahmann did not believe that discharge would be appropriate
for a single positive urinalysis. ahmann explained that he knew
of instances where employees actually showed up for work
under the influence of alcohol and were only put on disciplin-
ary probation.
ahmann admitted it was his personal view that marijuana
was less harmful than alcohol and that it should be legalized.
ahmann reiterated, however, that he was willing to discontinue
his use of the drug in the interest of maintaining his employ-
ment. ahmann tried to explain that it had been his intention to
be honest and that he “took it like a man.” but he felt that the
decision to terminate his employment had been made because
he was not sufficiently contrite.
ernst testified that there was no evidence that ahmann’s off-
duty marijuana use affected ahmann’s job performance. ernst
instead opined that the off-duty drug use affected dCS’ ability
to carry out its “mission.” Sabatka-rine elaborated that the
mission of dCS related to the safety and security of the facility
and that it was hypothetically possible that an employee using
marijuana could be buying from someone related to an inmate
or who later becomes an inmate.
ernst and Sabatka-rine agreed that a positive urinalysis
did not automatically result in termination of employment.
The disciplinary abstract showed that discipline for a posi-
tive urinalysis for marijuana had been imposed on five dCS
employees between 2004 and 2006. Three incidents resulted in
a disciplinary suspension, and not termination of employment.
Termination of employment was imposed for ahmann and two
other employees. Sabatka-rine explained that one of those
two employees discharged had previously tested positive, but
had been given a 20-day suspension after he claimed the test
was the result of one bad decision at a party. after a second
random test was positive for marijuana and it was apparent
ahmaNN v. NebraSka depT. OF COrr. ServS. 	35
Cite as 278 Neb. 29

that the employee had lied, Sabatka-rine made the decision
to discharge. The other employee discharged for a positive
urinalysis had stood mute to his charges and had given “no
indication that he was going to stop his behavior and comply
with [dCS] policy.”
Sabatka-rine testified that ahmann’s wrongdoing stemmed
from the positive urinalysis and not any other specific act. She
determined that discharge was the proper discipline because
ahmann failed to admit guilt, expressed no regret, and mini-
mized the severity of his infraction. Sabatka-rine stated fur-
ther that ahmann had apparently displayed this behavior over
a long period of time and had chosen to continue it despite
knowing it was in violation of dCS policy. Sabatka-rine stated
that ahmann did not leave her with any indication he would
comply with dCS policy in the future.
The hearing officer concluded that ahmann violated article
10.2(a) of the collective bargaining agreement, but that dCS
had failed to prove ahmann violated article 10.2(m). The
hearing officer explained: “While it is obvious that [dCS]
is and should be concerned about its employees using mari-
juana or other drugs, concern is not sufficient proof that
an employee’s use of marijuana while off-duty adversely
affects the employee’s work performance or [dCS’] perfor-
mance or function.” The hearing officer noted that, in fact,
ahmann was a dependable employee with “‘above satisfac-
tory’” performance.
The hearing officer recommended that the grievance be
sustained in part and that ahmann be reinstated but suspended
for 20 days. The hearing officer concluded that dCS acted
arbitrarily when it decided termination of employment was the
appropriate discipline, because it did not prove that ahmann’s
conduct was so egregious that progressive discipline should
be ignored. Furthermore, the hearing officer found it had been
established by the record that dCS had, in previous incidents,
most frequently opted for a disciplinary suspension when its
employees tested positive for marijuana. While dCS claimed
ahmann’s attitude raised a question of whether he could be
trusted to actually quit using marijuana, the hearing officer
explained that this was an insufficient cause for termination
36 	278 NebraSka repOrTS

of employment, because dCS had the authority to monitor
ahmann with drug testing.
The board voted to accept the hearing officer’s findings
of fact and the conclusion that ahmann had violated article
10.2(a), but not article 10.2(m). but the board rejected the
hearing officer’s conclusion that there was no just cause for
termination of ahmann’s employment. Instead, the board con-
cluded that termination of employment was justified in light of
the seriousness of the offense and ahmann’s attitude toward
the same.
ahmann appealed under the administrative procedure act3
to the district court. after a de novo review on the record,
the district court reversed the board’s decision to terminate
ahmann’s employment. The court concluded that while there
was just cause to discipline ahmann, there was not just cause
for immediate termination of his employment. The court noted
that there was no evidence ahmann’s use of marijuana “ever
affected his performance on the job or in any way jeopardized
the safety and security of the institution.” The court concluded
that “attitudes and beliefs that are contrary to those of dCS do
not in and of themselves demonstrate risk of harm such that ter-
mination of employment is necessary.” The court explained that
this was especially true in this case, because ahmann stated he
was willing to cooperate and discontinue using marijuana. The
court also considered that ahmann had an otherwise “spotless”
employment record. The court concluded that termination of
employment as a sanction exceeded the nature and severity of
the infraction for which it was imposed.
The court remanded the case for further proceedings to
determine the appropriate sanction short of termination of
employment. dCS appeals.
aSSIGNmeNTS OF errOr
dCS asserts that the district court erred (1) in finding no
evidence that the positive test for marijuana use posed a risk
of harm to the safety and security of the institution and (2) in
finding that the imposition of termination of employment as a
3 See Neb. rev. Stat. §§ 84-901 to 84-920 (reissue 2008).
ahmaNN v. NebraSka depT. OF COrr. ServS. 	37
Cite as 278 Neb. 29

sanction exceeded the nature and severity of the infraction for
which it was imposed.
STaNdard OF revIeW
[1,2] a judgment or final order rendered by a district court in
a judicial review pursuant to the administrative procedure act
may be reversed, vacated, or modified by an appellate court for
errors appearing on the record.4 When reviewing an order of a
district court under the administrative procedure act for errors
appearing on the record, the inquiry is whether the decision
conforms to the law, is supported by competent evidence, and
is neither arbitrary, capricious, nor unreasonable.5
[3] an appellate court will not substitute its factual findings
for those of the district court where competent evidence sup-
ports those findings.6 “Competent evidence” means evidence
that tends to establish the fact in issue.7
[4] Whether a decision conforms to law is by definition
a question of law, in connection with which an appellate
court reaches a conclusion independent of that reached by the
lower court.8
aNaLYSIS
[5] In a district court’s de novo review of the decision of
an administrative agency, the level of discipline imposed by
the agency is subject to the district court’s power to affirm,
reverse, or modify the decision of the agency or to remand the
case for further proceedings.9 The district court is not required
to give any deference to the findings of the agency hearing
officer or the department director.10 In this case, the district
4 Holmes v. State, 275 Neb. 211, 745 N.W.2d 578 (2008); Rainbolt v. State,
250 Neb. 567, 550 N.W.2d 341 (1996).
5 Id.
6 Rainbolt v. State, supra note 4.
7 Hammann v. City of Omaha, 227 Neb. 285, 417 N.W.2d 323 (1987).
8 Stejskal v. Department of Admin. Servs., 266 Neb. 346, 665 N.W.2d 576
(2003).
9 Rainbolt v. State, supra note 4. See, also, § 84-917(5).
10 Trackwell v. Nebraska Dept. of Admin. Servs., 8 Neb. app. 233, 591
N.W.2d 95 (1999).
38 	278 NebraSka repOrTS

court determined that the immediate termination of ahmann’s
employment violated the labor agreement. We hold that this
decision conforms to the law and was neither arbitrary, capri-
cious, nor unreasonable.
[6] The labor agreement requires that dCS have “just cause”
for its discipline of an employee and that it recognize and
employ “progressive discipline.” “Just cause” for dismissal is
that which a reasonable employer, acting in good faith, would
regard as good and sufficient reason for terminating the ser-
vices of an employee, as distinguished from an arbitrary whim
or caprice.11 progressive discipline is not specifically defined
by the agreement, but the common meaning of “progressive”
is to develop “gradually,” “in stages,” or “step by step.”12 both
parties agree that a progressive discipline policy does not
require that the employer always impose some measure short
of termination of employment for a first offense.13 however, in
accordance with the terms of the labor agreement, before mak-
ing the decision to terminate employment, dCS must consider
“the nature and severity of the infraction . . . along with the
history of discipline and performance contained in the employ-
ee’s personnel file.”
Considering the nature and severity of the infraction in
this case, along with ahmann’s history of discipline and per-
formance, 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. ahmann did knowingly
violate article 10.2(a) of the labor agreement, which subjects
employees to discipline for violating a state statute. his posi-
tive urinalysis was sufficient, under the agreement, to show
that ahmann was in possession of marijuana, an infraction
under state law.14
11 See Stejskal v. Department of Admin. Servs., supra note 8.
12 Concise Oxford american dictionary 707 (2006).
13 See Nebraska Dept. of Health & Human Servs. v. Williams, 16 Neb. app.
777, 752 N.W.2d 163 (2008).
14 See § 28-416(13)(a).
ahmaNN v. NebraSka depT. OF COrr. ServS. 	39
Cite as 278 Neb. 29

but the court was also correct to conclude that ahmann had
not violated the other subsections under which dCS had origi-
nally sought discharge. article 10.2(d) concerned drug use “in
the workplace” and was not ultimately cited as a ground for
discharge. article 10.2(m) concerned acts adversely affecting
performance or function. It was neither arbitrary, capricious,
nor unreasonable for the district court to find that ahmann’s
use of marijuana did not affect his job performance or in any
way jeopardize the safety and security of dCS.
Clearly, dCS’ treatment of other employees who tested posi-
tive for marijuana shows that dCS does not consider off-duty
drug use to be a per se justification for immediate discharge.
In fact, the employee drug testing program specifically contem-
plates numerous courses of action short of discharge when test
results are positive. The district court found that the decision to
discharge ahmann was based in large part on his attitude, and
the court did not err in concluding that it was unreasonable for
dCS to discharge ahmann for that reason. much of ahmann’s
“attitude” stemmed from his correct assertion that he was
not strictly violating all the provisions cited by dCS against
him. ahmann also failed to admit that what he had done was
“wrong.” but ahmann expressed a desire and willingness to
comply fully with dCS policy in the future and to cease all use
of marijuana. as the district court noted, dCS has the means
to monitor whether this actually occurs. To the extent that atti-
tude is a factor in whether there is just cause for immediate
discharge, the district court was not wrong to conclude that
ahmann’s attitude did not significantly change the fundamental
analysis that the nature and severity of ahmann’s infraction,
when considered in conjunction with his positive work history,
do not warrant ignoring progressive discipline.
CONCLUSION
For the foregoing reasons, we conclude that the district
court did not err in remanding ahmann’s case to the board for
further proceedings to determine what sanction, short of dis-
charge, would be appropriate.
A ffirmed.
WriGht, J., participating on briefs.
40 	278 NebraSka repOrTS