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					                            STATE OF IOWA
             BEFORE THE PUBLIC EMPLOYMENT RELATIONS BOARD

MICHAEL NEHRING,                                        )
     Appellant,                                         )
                                                        )
and                                                     ) CASE NO. 99-MA-05
                                                        )
STATE OF IOWA (IOWA LAW ENFORCEMENT                     )
ACADEMY),                                               )
     Public Employer.                                   )
                  FINDINGS, CONCLUSIONS AND ORDER

      Appellant     Michael          Nehring      filed     a   state     employee

disciplinary      action       appeal      with      the    Public      Employment

Relations      Board        (PERB     or     Board)        alleging     that    the

termination of his employment with the Iowa Law Enforcement

Academy (ILEA) was without just cause within the meaning of

Iowa Code §19A.14(2).               Pursuant to Appellant's request, a

public    hearing      of    his     appeal    was     conducted      before    the

undersigned on June 21-22, 2000, at PERB's office in Des

Moines, Iowa.       At hearing both parties were represented by

counsel, J. Campbell Helton for Appellant and Tim L. Guyer

for   Appellee.         Both       parties     filed       post-hearing       briefs
pursuant    to    an        agreed     upon     briefing        schedule       which

concluded in late August, 2000.1

                               FINDINGS OF FACT

      Except      as        otherwise          noted,        the      facts     are

uncontroverted.


      1
       Following the hearing and without filing a motion to reopen the
record, Nehring filed two additional documents entitled "Exhibit Q" and
"Supplemental Affidavit of Willis Roberts."      Since the hearing had
already been completed and the record closed, however, the documents
are not part of the record and have not been considered.
      The      Iowa      Law    Enforcement           Academy     (ILEA)       is     an

independent state agency responsible for the certification

and training of all law enforcement officers in the state,

including        city   and    county       officers     and     officers      in   the

departments        of      public     safety,         natural      resources         and

transportation.            ILEA      offices      are    located       in   Johnston,

Iowa.       ILEA also utilizes a firing range located at the

Iowa National Guard facilities at Camp Dodge.                           ILEA offers

a 12-week basic training course for officers, and advanced

and specialty training in a variety of areas, including

accident investigation and supervisor training.                             ILEA also

offers instructor training or "train the trainer" types of

courses in many areas, such as firearms, defensive tactics,

and chemical munitions.               ILEA is the regulatory entity for

all of the various law enforcement academies located around

the state, and approves their instructors and curriculum.

The     ILEA      employs      approximately            30   people,        including

administrators,          employees      in      law   enforcement       instruction
and     training        positions,      and      clerical        and    maintenance

employees.

      Gene       Shepard      has    been    the      Director    of    ILEA       since

appointed by the governor to the position in 1993, and is

ultimately responsible for the operation of ILEA, including

employment and disciplinary decisions.                       Arlen Ciechanowski,

who   was    a    general      law    enforcement        instructor         with    ILEA

commencing in 1982, was promoted to Assistant Director in
1996.       As Assistant Director, Ciechanowski is responsible


                                            2
for the day-to-day functioning of ILEA, including training

and supervision of employees.

      In    addition       to     its    other      functions,           the       ILEA

participated for a period of time in a tobacco compliance

program (which has since been discontinued) assisting the

federal    Food    and    Drug    Administration       (FDA)       in       enforcing

federal laws prohibiting the sale of tobacco to minors.

The program involved conducting "sting" operations using

tobacco compliance officers commissioned by the FDA who,

along with cooperating minors, would visit various retail

establishments where the minors would attempt to purchase

tobacco     products.            The    officers      would        observe         the

transactions, and fines would later be imposed on those

establishments      which       violated      the   law.    The    FDA       provided

grant    money     to    the    Iowa    Department     of    Health          for   the

program.     The ILEA received some of the grant money from

the     health    department      in exchange        for     which          the    ILEA

"loaned"     the        department      the     services      of        a     tobacco
compliance officer/instructor, who was an employee of ILEA,

first on a half-time basis, and later on a full-time basis.

That employee trained other tobacco compliance officers,

some of whom were employees of the department of health,

and some of whom were police officers around the state, and

also personally conducted tobacco compliance checks.

        Michael Nehring was employed by ILEA in 1990 as a law

enforcement instructor.              Prior to that time, Nehring had
been a deputy and detective for the Polk County Sheriff’s


                                         3
office from 1973-1975, a police officer for the City of Des

Moines from 1976-1985, and personnel and security director

for a private company from 1985-1989.                         When Nehring was

employed by ILEA in 1990, he was at first a general law

enforcement       instructor,       and        later     became        a    firearms

instructor.        During     his     tenure     as     firearms       instructor,

Nehring     himself     continued         to     take        numerous       firearms

courses, and, by 1998, was very highly trained and was the

lead firearms instructor.             It was also common knowledge at

ILEA   that   Nehring        was   very       active    in    Democratic          party

politics and campaigns, a fact which sometimes made Nehring

the subject of ribbing from others, since many of his co-

workers     and   his   superiors         were    Republicans.              In     mid-

November, 1998, shortly after Governor Vilsack was elected,

Nehring submitted an application to the Vilsack transition

team to be considered for appointment to Shepard’s position

as director of ILEA.

       On   December    4,    1998,    Nehring         received    a       memo    from
Shepard that, effective January 1, 1999, Nehring would no

longer be the lead firearms instructor, but would instead

be responsible for the tobacco compliance program.                                 John

Metzger, who had been hired approximately one year earlier

to handle the tobacco compliance program, would become the

lead firearms instructor.             Nehring was given no explanation

for this decision.           He considered it to be a demotion, and

had not been informed of any problems with performance in
the firearms program.          He was particularly dismayed because


                                          4
he    had   received      approximately             $20,000    worth      of    firearms

training in the preceding two years alone, and believed he

was one of the most highly trained firearms instuctors in

the state, while Metzger was considerably less qualified.

       Shepard     testified         that     he     was   unaware     of      Nehring’s

application        for    the    Director          position     at    the      time   the

decision     was    made       to    remove        Nehring    from     the     firearms

program,     but    learned         of   it       sometime    prior    to      Nehring’s

termination.         He    said      the      decision       was     made    to     remove

Nehring from the firearms program and assign him to the

tobacco compliance program because of unspecified "safety

concerns"     with       the    firearms          program.      When      pressed      for

detail, Shepard discussed incidents involving the throwing

of keys and inappropriate language for which Nehring had

received     either       non-disciplinary            clarifications           or    minor

discipline between 1991 and 1995.                          Ciechanowski testified

that Nehring was removed from the firearms program because

"Mr. Shepard and I felt that, philosophically, we didn’t
like where the firearms program was going, and we felt that

we had someone that we wanted to put into that position,

and    we   thought       that      Mike      could    handle      this     particular

position, and so we made that change."                          Ciechanowski also

referenced "safety issues," but did not provide specifics.

Neither Shepard nor Ciechanowski ever discussed any safety

concerns      or     philosophical                differences        concerning        the

firearms program with Nehring prior to removing him from
the program.


                                              5
       Nehring        was        not     provided       with     any            training,

instructions,         or     a     job     description         for        the     tobacco

compliance       position         from    Shepard      or    Ciechanowski.               He

attended a four-hour training course taught by Metzger on

how to do the compliance checks and reports, and received

additional training from the department of health on how to

be an instructor for the program.                       Nehring received some

materials from FDA which he had to sign and return in order

to be     commissioned by the FDA for the project. Neither

Shepard    nor        Ciechanowski         ever       told   Nehring            that    the

carrying    of    a    weapon          during   the    checks    was       allowed       or

prohibited,      nor       was    the     issue   addressed          by    the     health

department or in the FDA materials.                      However, Metzger told

Nehring that he "would be crazy to do it without a gun,"

and Nehring understood that Metzger had carried a weapon

when he was doing compliance checks.2

       On May 25, 1999, Nehring and a sixteen-year-old male

were    conducting         tobacco       compliance      checks.            The        minor
accompanying Nehring had done compliance checks before with

police officers who were armed.                   Nehring and the minor went

to a café in Millersburg, Iowa, where Nehring observed the

2
 Metzger denied that he had carried a gun while doing compliance checks
and denied making this statement to Nehring.   Based on my observation
of the witnesses and their demeanor, I find Nehring’s testimony to be
more credible on this point.   In addition, it is reasonable to assume
that Metzger would be less than enthusiastic about making such
admissions in this proceeding, knowing the reason given for Nehring’s
termination.   I note further that Metzger admitted he applied for a
permit to carry a gun shortly after Nehring’s termination, suggesting
the termination may have prompted his belated recognition of the need
to avoid a similar problem.


                                            6
minor purchase cigarettes from a clerk, who checked the

minor’s identification but sold him the cigarettes anyway.

Nehring and the minor left the café, drove a few blocks

down the street in their unmarked ILEA vehicle, and pulled

over so that Nehring could fill out the required paperwork

and package and label the evidence.                In the meantime, the

owner of the café had realized what had happened and had

followed the unmarked car in a pickup truck.                   Nehring saw

the pickup truck bearing the name of the café on its door

pull up beside him, and observed the café owner get out of

the truck, appearing to be very upset and irate.                  In order

to avoid a confrontation, Nehring put his car in gear and

left the scene, whereupon the café owner began to follow

the unmarked car in his pickup truck.               Nehring got on his

cell phone and began attempting to contact the sheriff’s

office for assistance, initially having difficulty making a

good connection on the cell phone, but eventually making

contact and arranging to have two deputies meet him a few
miles ahead at North English.              Since the obviously irate

café    owner      was    tailgating   Nehring’s    car   very    closely,

Nehring felt he and the minor were in possible jeopardy and

felt he needed to be prepared to protect himself and the

minor if necessary.           Nehring reached into the back of his

car    and   got    his    unloaded,   holstered     handgun     out   of   a

suitcase, and placed it between his bucket seat and the

large console that was between him and the minor’s seat.
Nehring carried the ammunition for the gun in his left


                                       7
front pants pocket.        Nehring told the minor that he didn’t

anticipate needing the gun, but wanted to have it available

if he needed it.

       Upon arriving in North English where the two deputies

were   waiting    for   him,   Nehring       and    the   café    owner      both

exited their vehicles.           Nehring left the gun in the car

where he had placed it, between the seat and the console.

The minor stayed in the car with the doors locked.                           The

café owner was yelling and attempting to get to the minor

to get the cigarettes back, but was prevented from doing so

by Nehring and a deputy, who blocked his way and began to

discuss the situation with him.              Eventually they managed to

get the café owner calmed down and he left in his pickup

truck.    Nehring and the minor, who was very frightened and

upset by the episode, then returned to the minor’s car,

where the minor was dropped off.

       Nehring called Ciechanowski at home later that night

to tell him about the incident.                    He also filled out a
report on the incident for the department of health, with a

courtesy copy to Ciechanowski.            Nehring did not mention the

weapon   to   Ciechanowski     or    in   his      report    to   the   health

department.      Nehring said he did not mention the weapon in

his    reports   because   the      weapon    was    never    used      in   any

fashion and was not an issue in the confrontation.                      It was

never out of the holster or loaded or pointed at anyone.

Pursuant to his training as a police officer, any use of
force must be reported, but only when a weapon is used for


                                     8
something.      Similarly, Metzger had told him that if he used

force, he was to report it, but no force had been used in

the incident.

      Sometime        after    the    May      25    incident,       Nehring    told

Ciechanowski that he believed he should be issued the same

equipment provided to most of the other officers who were

doing tobacco compliance work in the state, i.e., a radio,

a firearm, handcuffs, and chemical agents, because of the

increasing      potential       for       violence     in   these      situations,

especially given recent increases in the level of fines.

Ciechanowski      told        him    he    should      talk     to    the     health

department about it, as he thought the health department

should pay for any such equipment through the grant.

      In July, 1999, Officer Glandon of the Sigourney Police

Department,      who    had     trained        the    minor    who    accompanied

Nehring previously, called the minor to ask if he would

assist in more tobacco compliance checks.                        The minor and

his mother both spoke with Glandon on the telephone, and
informed him that the minor was no longer interested in

participating in the program.                  They described the incident

of   May   25    to    the     officer,        and   expressed       concern    over

Nehring’s production of the gun and the dangers involved in

doing   the     tobacco       compliance       checks.        Glandon    contacted

officials     from     the     department       of   health,     who,    in    turn,

requested a meeting with Shepard and Ciechanowski on July 8

to discuss the situation and to ask them to look into the
incident, since Nehring was their employee.


                                           9
    On July 12, 1999, Ciechanowski called officer Glandon

and the minor to get their statements.            Also on July 12,

Cieshanowski called the Polk County Sheriff’s Office and

the Iowa Department of Public Safety to find out if Nehring

had a permit to carry a concealed weapon, and determined

that he did not.

    On July 13, 1999, Shepard and Ciechanowski interviewed

Nehring about the May 25 incident, and asked him if he had

produced   a   handgun.     Nehring    answered    their     questions

honestly and matter-of-factly, describing the circumstances

involving the gun.      Following this discussion, Shepard gave

Nehring    a   letter   informing    him   that   he   was   on   paid

suspension pending further investigation.

    On July 28, 1999, Shepard gave Nehring a letter of

termination which provided, in relevant part:

             Effective    immediately    you           are
           discharged from employment with             the
           Iowa Law Enforcement Academy.

             This action is being taken as a
           result of your taking a handgun with
           you to work and displaying it in the
           presence of the youth who was working
           with you, which is a violation of the
           work rules of this agency in the form
           of the State of Iowa Violence-Free
           Workplace Policy, and also a violation
           of Iowa Code section 724.4.
    Iowa law prohibits the carrying of concealed weapons

without a permit except under certain circumstances.              Iowa

Code section 724.4 provides:
             724.4 Carrying weapons.
             1.   Except as otherwise provided in
          this section, a person who goes armed
          with a dangerous weapon concealed on or


                                10
about the person, or who, within the
limits of any city, goes armed with a
pistol or revolver, or any loaded
firearm of any kind, whether concealed
or not, or who knowingly carries or
transports in a vehicle a pistol or
revolver,    commits     an    aggravated
misdemeanor.
   2.   A person who goes armed with a
knife concealed on or about the person,
if the person uses the knife in the
commission of a crime, commits an
aggravated misdemeanor.
   3.   A person who goes armed with a
knife concealed on or about the person,
if the person does not use the knife in
the commission of a crime:
   a.     If the knife has a blade
exceeding   eight   inches   in   length,
commits an aggravated misdemeanor.
   b.     If the knife has a blade
exceeding five inches but not exceeding
eight inches in length, commits a
serious misdemeanor.
   4.   Subsections 1 through 3 do not
apply to any of the following:
   a.   A person who goes armed with a
dangerous weapon in the person's own
dwelling or place of business, or on
land owned or possessed by the person.
   b.     A peace officer, when the
officer's duties require the person to
carry such weapons.
   c.   A member of the armed forces of
the United States or of the national
guard or person in the service of the
United States, when the weapons are
carried in connection with the person's
duties as such.
   d. A correctional officer, when the
officer's duties require, serving under
the authority of the Iowa department of
corrections.
   e.    A person who for any lawful
purpose carries an unloaded pistol,
revolver, or other dangerous weapon
inside a closed and fastened container
or securely wrapped package which is
too large to be concealed on the
person.
   f.    A person who for any lawful
purpose   carries    or   transports   an
unloaded   pistol   or  revolver   in   a
vehicle inside a closed and fastened


                   11
container or securely wrapped package
which is too large to be concealed on
the person or inside a cargo or luggage
compartment     where     the   pistol    or
revolver will not be readily accessible
to any person riding in the vehicle or
common carrier.
    g.    A person while the person is
lawfully engaged in target practice on
a range designed for that purpose or
while    actually    engaged    in    lawful
hunting.
    h.    A person who carries a knife
used in hunting or fishing, while
actually engaged in lawful hunting or
fishing.
    i. A person who has in the person's
possession and who displays to a peace
officer on demand a valid permit to
carry weapons which has been issued to
the person, and whose conduct is within
the limits of that permit.         A person
shall not be convicted of a violation
of this section if the person produces
at the person's trial a permit to carry
weapons which was valid at the time of
the alleged offense and which would
have    brought    the   person's    conduct
within this exception if the permit had
been produced at the time of the
alleged offense.
    j.   A law enforcement officer from
another state when the officer's duties
require the officer to carry the weapon
and the officer is in this state for
any of the following reasons:
    (1) The extradition or other lawful
removal of a prisoner from this state.
    (2)    Pursuit   of    a   suspect    in
compliance with chapter 806.
    (3) Activities in the capacity of a
law    enforcement     officer   with    the
knowledge and consent of the chief of
police of the city or the sheriff of
the county in which the activities
occur or of the commissioner of public
safety.
    k. A person engaged in the business
of    transporting    prisoners    under   a
contract with the Iowa department of
corrections or a county sheriff, a
similar agency from another state, or
the federal government.



                    12
     Prior       to    1995,     when   Scot       Moline     was    the    Assistant

Director        of    ILEA,     Ciechanowski         was     the     lead    firearms

instructor           and      Nehring     was        an     assistant        firearms

instructor,          Moline    routinely       arranged       for    all    the    ILEA

instructors to get professional weapons permits annually.

It was a tradition for everyone to sit down and fill out

their professional gun permit application forms at the same

time, and Moline arranged to have the applications approved

by   the    Director          and   submitted,        and     the     permits      were

received.        Sometime after Shepard became ILEA Director, he

discontinued          this    practice.            Shepard    refused       to    allow

Moline     to    provide       application         forms   for      the   instructors

because he believed that the use of weapons at ILEA always

falls    under       the     exceptions       to    Iowa     Code    section      724.4

provided in either subsection 724.4 (4)(e), (f) or (g).                              He

felt that, because weapons were used only for instructional

purposes on the range and were otherwise always unloaded or

kept in closed or locked containers, including while being
transported, no permits were needed.                       There is no evidence

that Shepard's reasoning for his decision to not obtain

permits for the instructors was ever fully explained or

communicated to the instructors.                      Ciechanowski learned of

it through Moline, and never discussed it directly with

Shepard.         Shortly       after    the    decision       was    made,    Nehring

asked Ciechanowski what the instructors should do about the

gun permits, and whether they would have to go out and buy
the permits themselves.                Ciechanowski said, "Who will ever


                                          13
check you?," and Nehring said "Okay."                Ciechanowski told

Nehring and other instructors that the gun permit issue was

"no big deal."

    Shortly after this discussion, Nehring began working

part-time as a deputy United States marshal, and did not

need a gun permit in that capacity.              It is not clear from

the record how long this service continued, but it had

apparently     discontinued      before    Nehring   became       a    tobacco

compliance officer.       Nehring believed that his service as a

commissioned     law   enforcement        officer    for    the       FDA   was

similar   to    the    service    to     the   United      States      he   had

performed as a deputy marshal, and was similarly excepted

from any gun permit requirement.

    In 1996 the State of Iowa promulgated a "Violence-Free

Workplace Policy" for all executive branch employees.                       The

policy provides, in relevant part:

                           State of Iowa
                  VIOLENCE-FREE WORKPLACE POLICY
                                For
                    Executive Branch Employees
          I.     Definitions

                  Violence is any act which is
                  intended to intimidate, annoy, or
                  alarm another person; or any act
                  which is intended to cause pain or
                  injury to, or which is intended to
                  result in physical or personal
                  contact which will be insulting or
                  offensive to another, coupled with
                  the apparent ability to execute
                  the act.      (Iowa Code sections
                  708.1 and 708.7)
                  A    dangerous          weapon     is   any
                  instrument   or          device    designed


                                    14
                   primarily for use in inflicting
                   death or injury upon a human being
                   or animal, and which is capable of
                   inflicting death or injury upon a
                   human being when used in the
                   manner for which it was designed.
                   Additionally, any instrument or
                   device of any sort whatsoever
                   which is actually used in such a
                   manner as to indicate that the
                   individual   intends      to    inflict
                   death or injury upon the other,
                   and   which,   when   so     used,   is
                   capable of inflicting death upon a
                   human   being,    is    a     dangerous
                   weapon.         Dangerous       weapons
                   include, but are not limited to,
                   any   offensive    weapon,      pistol,
                   revolver,    or     other      firearm,
                   dagger,       razor,          stiletto,
                   switchblade knife, or knife having
                   a blade exceeding five inches in
                   length. (Iowa Code section 702.7)
                                    ***
              III. Prohibitions

                     A.    Employees are prohibited from
                           the     possession,      sale,
                           transfer,   or   use  of   any
                           dangerous      weapon    while
                           engaged in state business, or
                           on state property or the
                           employer's premises.
      Chris     Peden,      a   Personnel     Officer       with    the      Iowa

Department of Personnel, was the coordinator of the team
that drafted the policy pursuant to an executive order of

the governor.        Peden said that the committee was well aware

that there were no exceptions in the policy for the ILEA or

law   enforcement         personnel.    The       committee      discussed     at

length the issue of whether to put exceptions in the policy

for   those    who    needed    "weapons"     as     part   of    their   jobs,

including     IPTV    employees    who      use    cable-splicing      knives,
kitchen workers who use knives and blades, and ILEA and



                                       15
corrections          employees     who    use      weapons          as    part     of      their

jobs.         The    committee        decided      against          it.        Peden       said,

"Rather       than     bog      the     policy        down      with        all       of     the

exceptions, . . . we decided to go with this and then put

the Governor in charge of having those conversations about

what     was        allowed     and     what       wasn’t       allowed           with       the

department          directors,        because      he     is    their          supervisor."

There is no evidence that such communications ever took

place between the Governor’s office and the ILEA Director,

or     that    any      exceptions        to       the    policy          or     directives

regarding "what was allowed and what wasn’t allowed" were

ever     communicated         to      ILEA        employees.              Instead,          ILEA

employees,          including      Nehring,        were       given       copies      of     the

policy as drafted by Peden’s committee in July, 1996 and

signed    acknowledgements             that       they    had       reviewed       and      were

subject to it.            The policy was a "laughing stock" among

ILEA employees at the time and there was a good deal of

kidding and joking about it because it was so obviously
incompatible          with    ILEA       activities.                 Nehring          had     no

discussion with his supervisors about the policy at the

time,    and    it     was    never      again      mentioned            until    Nehring’s

termination.

       The "Violence-Free Workplace Policy," and, apparently,

Iowa Code section 724.4 have been routinely violated at

ILEA,     under        circumstances              known        to        Shepard        and/or

Ciechanowski.           Weapons        are     used      as    part       of    the     ILEA’s
instructor's jobs for demonstrations at ILEA and on the


                                             16
firing range. Ciechanowski and other witnesses acknowledged

that weapons are not always in the appropriate containers,

including when they are being transported to and from the

firing range, as required by law.                        Some employees carry

personally owned guns on their persons on a daily basis.

Others, including the ILEA legal instructor who does not

use    weapons       for   instructional        purposes,         keep      personally

owned guns in their office desks.                     Some employees have guns

and swords in their offices for display purposes.                                  Major

gun companies, such as Beretta, loan weapons to ILEA for a

period of months, and then offer them for sale to ILEA

employees,       with      sales    and    transfers         conducted       at    ILEA.

Nehring      routinely          took    weapons       with     him     to    training

sessions around the state and out of state.                            No employees

have ever been asked to produce gun permits, and management

has had no way of knowing who has a permit and who does

not.         Until     Nehring’s        termination,         no      one    was        ever

disciplined under the "Violence-Free Workplace Policy."
       Nehring       had    previously         been    the     subject       of        non-

disciplinary          clarifications           or     counseling           and      minor

disciplinary actions on a few occasions over the years of

his    employment          at    ILEA     concerning         unrelated           matters.

Nehring      was     shocked      by    his    termination        because         it    was

completely unexpected.

       At the time of Nehring’s termination, Shepard reported

the    May    25     tobacco       compliance       incident      to       the    County




                                          17
Attorney   by   telephone.        However,   no   charges    were   filed

against Nehring.

                       CONCLUSIONS OF LAW

    Nehring's     appeal     is   brought    pursuant   to   Iowa    Code

§19A.14(2), which provides:

             2.    Discipline resolution.      A merit
           system employee, except an employee
           covered by a collective bargaining
           agreement,      who     is      discharged,
           suspended,     demoted,    or     otherwise
           reduced in pay, except during the
           employee's    probationary    period,   may
           bypass steps one and two of the
           grievance procedure and appeal the
           disciplinary action to the director
           within seven calendar days following
           the effective date of the action.       The
           director shall respond within thirty
           calendar days following receipt of the
           appeal.

             If not satisfied, the employee may,
           within thirty calendar days following
           the director's response, file an appeal
           with the public employment relations
           board. The employee has the right to a
           hearing closed to the public, unless a
           public hearing is requested by the
           employee.   The hearing shall otherwise
           be conducted in accordance with the
           rules   of    the   public    employment
           relations    board    and    the    Iowa
           administrative procedure Act.    If the
           public employment relations board finds
           that the action taken by the appointing
           authority was for political, religious,
           racial, national origin, sex, age, or
           other reasons not constituting just
           cause, the employee may be reinstated
           without loss of pay or benefits for the
           elapsed    period,    or   the    public
           employment relations board may provide
           other appropriate remedies.    Decisions
           by the public employment relation board
           constitute final agency action.




                                    18
Iowa Department of Personnel (IDOP) rules relating to a

state agency's authority to discharge an employee provide,

in relevant part:

         581--11.2(19A)      Disciplinary actions.
         Except   as    otherwise      provided,    in
         addition to less severe progressive
         discipline measures, any employee is
         subject   to    any    of    the   following
         disciplinary actions when based on a
         standard of just cause: suspension,
         reduction of pay within the same pay
         grade,    disciplinary       demotion,     or
         discharge.          Disciplinary       action
         involving     employees        covered     by
         collective bargaining agreements shall
         be in accordance with the provision of
         the agreement.        Disciplinary action
         shall be based on any of the following
         reasons: inefficiency, insubordination,
         less than competent job performance,
         failure to perform assigned duties,
         inadequacy    in    the    performance     of
         assigned duties, dishonesty, improper
         use of leave, unrehabilitated substance
         abuse,    negligence,       conduct     which
         adversely affects the employee's job
         performance      or     the     agency     of
         employment,    conviction      of   a   crime
         involving    moral    turpitude,      conduct
         unbecoming      a      public      employee,
         misconduct, or any other just cause.

                             ***
            11.2(4)   Discharge.    An appointing
         authority may discharge an employee.
         Prior to the employee being discharged,
         the appointing authority shall inform
         the employee during a face-to-face
         meeting of the impending discharge and
         the reasons for the discharge, and at
         that time the employee shall have the
         opportunity to respond.        A written
         statement   of   the  reasons   for  the
         discharge shall be sent to the employee
         within 24 hours after the effective
         date of the discharge, and a copy shall
         be    sent to   the   director   by  the
         appointing authority at the same time.



                              19
       Pursuant to §19A.14(2), the State has the burden in

this proceeding of establishing that Nehring's discharge

was for just cause.          The presence or absence of just cause

must be determined solely upon the reasons stated in the

employer's       written    notice        of     termination.             Hunsaker     v.

Department of Employment Services, 90-MA-13 at p. 46, n. 27

(PERB 1991).

       There is no fixed test for determining the presence or

absence of just cause.                 Rather, a §19A.14(2) just cause

determination      requires       an      analysis       of    all       the    relevant

circumstances concerning the conduct which precipitated the

disciplinary action, and need not depend upon a mechanical,

inflexible application of fixed "elements."                               Hunsaker v.

Department of Employment Services, 90-MA-13 at p. 40 (PERB

1991).

       The Board has previously noted that one of the types

of     factors    which     may      be        relevant       to     a    just     cause

determination,       depending         on      the     circumstances,           includes
whether    the    employee     has      been      given       forewarning        or   has

knowledge    of    the     employer's          rules    and    expected         conduct.

Hoffman v. Department of Transportation, 93-MA-21 at p. 22

(PERB 1995).

       In the present case, the State argues that Nehring

knew he was subject to the requirements of the Violence-

Free     Workplace       Policy,       as        evidenced         by     his     signed

acknowledgement of it.            As a firearms instructor, the State




                                            20
argues      Nehring        was     also       aware      of    the       law    concerning

firearms permits.

      Regarding           the      application            of       the      Violence-Free

Workplace Policy, it is axiomatic that, in order to be

enforceable, a policy should be clearly understandable, as

well as consistently and equitably enforced.                                   This policy

was neither.

      Although the policy seems clear enough on its face, it

was plain to everyone, including those who drafted it, that

it    was    not     written        with       the       regular     duties       of    ILEA

employees in mind.                ILEA employees knew when they signed

the statements acknowledging that they were subject to the

policy that they were, in fact, in daily violation of it

because of the very nature of their jobs.

      Even aside from the policy’s inherent incompatibility

with employees’ regular instruction and training duties,

the   policy       was     routinely       violated           by   ILEA     employees     in

other       respects        with         no     disciplinary              repercussions.
Employees carried personally-owned guns to and from work

and during working hours, kept weapons in their offices,

and   bought        and    sold     weapons         on    ILEA      premises.          While

Shepard and Ciechanowski indicated their belief that such

violations should be distinguished from Nehring’s conduct

because      they    took        place    in    the      "closed         environment"     of

ILEA,       there     is     simply        no       evidence         that      they     ever

communicated to employees what the actual rules were as to
when the policy was applicable and when it was not.                                      If


                                               21
Nehring entertained any doubts about what the rules were

when he assumed his new role of tobacco compliance officer,

they would naturally have been dispelled when Metzger, the

former tobacco compliance officer and the person entrusted

by management to train Nehring for his new duties, told him

he would be crazy not to carry a gun when functioning in

this capacity.

       Regarding the State’s claim that Nehring’s conduct on

May 25 violated Iowa Code section 724.4, the State has not,

in my view, conclusively established that Nehring was in

violation of that provision while on duty on that occasion.

Nehring appears to have reasonably believed that he was

functioning "in the service of the United States" within

the meaning of the exceptions listed in that section, since

he was acting at the time in the capacity of an officer of

the FDA, commissioned by that agency to enforce a federal

law.    It was plainly a law enforcement function, similar to

his previous experience as a part-time United States deputy
marshal,     where   no     weapons     permit    was   required.      In

addition,    no   charges    were     brought    against   Nehring,   even

though the police were aware of the incident in question

and    Shepard    called    the   county   attorney     specifically   to

report it.

       Even if Nehring’s actions while on duty on May 25

violated Iowa Code section 724.4, Nehring had been led to

believe that violations of the permit requirement would be
overlooked by his supervisors while he was performing work


                                      22
for ILEA. Nehring routinely observed other violations of

the permit requirement while at work.                       When Nehring had

asked Ciechanowski whether he should obtain his own permit,

Ciechanowski had told him and other instructors that it was

"no   big    deal,"    and      said,    "Who      will    ever     check    you?"

Although    Ciechanowski        now     contends    that     he   intended     his

remarks to apply only to the closed environment of ILEA

premises and the firing range, there is no evidence that he

clearly communicated any such restrictions or distinctions

to Nehring or the other instructors, who could reasonably

have received the impression that permit requirements would

be disregarded while they were engaged in ILEA business.

Nehring had routinely taken weapons off of ILEA premises

with Ciechanowski’s knowledge in the past.                          Under these

circumstances, it is simply not fair to discipline Nehring

for an alleged violation of the law.

      The    Violence-Free        Workplace        Policy     and     Iowa    Code

section 724.4 were routinely violated by employees at ILEA,
yet Nehring was the only employee ever disciplined for this

reason.     In   addition,      Nehring      had   been     removed    from    his

firearms instructor position and transferred to the tobacco

compliance       program   in    the     first     place    under     suspicious

circumstances.3

3
 Nehring believes that he was transferred to the tobacco compliance
position in the first place and soon terminated because of political
differences with his supervisors, and because he sought to be appointed
to the position held by Shepard.    While it is difficult to determine
exactly what the supervisors’ reasons might have been, the removal of
Nehring from his position as firearms instructor, for which he
possessed superior training and qualifications, with no explanation to


                                        23
       Nehring      acted       reasonably        and     according         to   his

extensive experience and training during the May 25 tobacco

compliance        incident.           Although        Ciechanowski,         in   his

investigatory reports concerning the incident, neglects to

mention this fact, it is clear that the gun was unloaded

and    holstered,       and   the     ammunition      remained       in    Nehring's

pocket, so the gun posed no threat to the minor during the

short period of time Nehring left the vehicle.

       Considering all of the circumstances, I conclude the

State    has    failed     to    establish       just    cause      for    Nehring’s

discharge.       In light of the lack of clarity and consistency

in     management’s      actual       policy     regarding        possession      of

weapons    by     employees      at      work,   as     well   as    the    State’s

failure to establish that Nehring acted unreasonably, no

discipline was warranted in this case.

       Having determined that the State failed to establish

just      cause      for        Nehring’s        discharge,          it     is   my

responsibility, pursuant to section 19A.14(2) to provide an
appropriate remedy.             In this type of case, a common remedy

involves reinstatement with back pay and benefits, minus

any interim earnings.            However, I lack information, such as

specific dollar figures, necessary to fashion a complete

remedy    at     this    time.      In     addition,      since      the    tobacco

compliance program has been discontinued, a determination


Nehring, coupled with the failure of Shepard and Ciechanowski to
provide any clear or convincing explanation of their reasons for the
transfer decision at hearing, lend credence to Nehring’s suspicions
that he was being targeted for some reason that was not legitimate.


                                          24
must be made as to which position Nehring should occupy

upon    his   return.    Accordingly,   I   hereby   issue   the

following:

                             ORDER

       The Iowa Law Enforcement Academy and Michael Nehring,

or their representatives, shall, within fourteen (14) days

of the date below, meet with a representative of the Public

Employment Relations Board for the purpose of formulating

the appropriate and precise terms of a remedy for Nehring’s

unlawful termination.    I retain jurisdiction of this matter

in order to approve the precise terms of any remedy so

formulated, or to immediately schedule a hearing on the

precise terms of the appropriate remedy should the parties

fail to reach agreement thereon.

       This matter is not concluded before the administrative

law judge, does not constitute a proposed decision within

the meaning of Iowa Code section 17A.15(3), and is not

appealable to the full Public Employment Relations Board
until such time as the appropriate remedy has been approved

or determined by the administrative law judge.

       DATED at Des Moines, Iowa, this 4th day of December,

2000.

                               /s/ Diane Tvrdik
                               Administrative Law Judge




                              25
 purpose of formulating

the appropriate and precise terms of a remedy for Nehring’s

unlawful termination.     I retain jurisdiction of this matter

in order to approve the precise terms of any remedy so

formulated, or      to immediately schedule a hearing on the

precise terms of the appropriate remedy should the parties

fail to reach agreement thereon.

       This matter is not concluded before the administrative

law judge, does not constitute a proposed decision within

the meaning    of   Iowa Code   section   17A.15(3),   and   is   not

appealable to the full Public Employment Relations Board

until such time as the appropriate remedy has been approved

or determined by the administrative law judge.

       DATED at Des Moines, Iowa, this 4th day of December,

2000.

                                  /s/ Diane Tvrdik
                                  Administrative Law Judge




                                 25

				
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