Another case on workplace carry decided in Jan.

**PeteG** · February 20th, 2012, 04:15 PM

The Pa. Dep’t. of Labor and Industry has a policy prohibiting the carrying of weapons, including firearms, in Pa. Dept. of L&I property or vehicles. The Commonwealth Court has just held that for an employee to violate that policy by carrying at his office or in his car (on official business) constitutes “just cause” for termination. This termination was upheld against an argument that being armed is a fundamental right. The Commonwealth Court held that stricter standards which apply to speech protected under the First Amendment do not apply to Second Amendment rights.

These are excerpts from the Opinion. The whole opinion can be found at 2011 WL 7096415. I do not think it is in the Atlantic Reporter yet.

Perry [ the discharged employee ] next argues the Commission erred in determining that one instance of inadvertently bringing a licensed firearm into a workplace, in the context of an unblemished work record spanning more than 30 years, was just cause for removal from the classified service. He asserts the proffered explanation that termination was mandatory because “we are all aware of instances where individuals with a permit have killed their colleagues,” is contrary to L & I's weapons policy and represents an impermissible infringement on the rights guaranteed by Article 1, Section 21 of the Pennsylvania Constitution and the Second Amendment of the U.S. Constitution.

The Commission, and later the Court, found that the employee’s carrying was not “inadvertent.” The employee carried on purpose, and even showed his gun to another employee on one occasion. The issue was really whether licensed carry in violation of the Dept. of L&I policy was “just cause” for immediate termination.

Just cause must be merit-related, and the criteria for determining whether an appointing authority had just cause for removal must touch upon the employee's competency and ability in some rational and logical manner. . . . However, to be sufficient, the cause should be personal to the employee and such as to render the employee unfit for his or her position, thus making dismissal justifiable and for the good of the service. [Citations omitted.}

As things now stand, it is “just cause.”

Then we got to the Constitutional argument.

. . . .
As a final point, Perry asserts that he was “discarded by L & I because he exercised a right guaranteed by the Second Amendment to the federal constitution, and, in a much more straight forward manner, guaranteed by Article 1, Section 21 of the Pennsylvania Constitution....” . . . Perry further contends that “[w]hen the state, as an employer, disciplines one if its employees and an infringement of a constitutional right is implicated, there is a ‘calculus of injury’ required and the ‘government's obligation to react with caution, disciplining an employee, if at all, only when an injury to the agency is more than speculative.’ “ . . . Notably, however, Perry does not assert that L & I's Weapons Policy Statement is unconstitutional.

The emphasis is mine. This suggests that an attack on the entire policy is regarded by the Commonwealth Court as something different than an attack on the application of that policy in a specific case. Then we got to Heller:

Further, in District of Columbia v. Heller, . . . , in which the U.S. Supreme Court held that a District of Columbia statute that prohibited possession of handguns in the home violated the Second Amendment, the Court explained:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.... [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings ....

Based on the above authority, which recognizes that the right to bear arms is not unlimited, and may be restricted for the good of the order of society and the protection of citizens, R.H.S., and that a prohibition on carrying firearms in sensitive places such as government buildings is permissible, McDonald; Heller, we discern no infringement on Perry's constitutional right to bear arms based on the facts presented here.

The idea is that because regulation of firearms in public buildings does not violation the 2nd Amd., then firing someone for carrying in violation of a policy precluding firearms in public buildings does not violate the 2nd Amd.

There is a case, Sacks, that held a governmnet employee cannot be fired for a violation of policy that took the form of speech, unless the policy violation caused some real harm. Stated differently, technical violations of policy, without actual injury of some kind to the agency or the public, would not suffice to justify a termination. However, that is not going to be applied, at least at present, to Second Amendment rights:

Further, Perry's citation to Sacks omits the fact that the “calculus of injury” requirement referred to by our Pennsylvania Supreme Court in that case was limited to First Amendment government employee cases. Sacks involved a situation in which the Court ordered a state employee reinstated following a discharge for public comments critical of his agency employer. In explaining the applicability of the “calculus of injury” requirement, the Supreme Court stated: “As the foregoing discussion indicates, there is a calculus of injury required in First Amendment government employee cases in which as the First Amendment interest in the speech rises, so does the government's obligation to react with caution, disciplining an employee, if at all, only when injury to the agency is more than speculative.” Sacks, 502 Pa. at 215, 465 A.2d at 988 (emphasis added). Perry cites no authority, and our research fails to disclose any authority, that extends the “calculus of injury” requirement beyond a case involving the First Amendment. Therefore, we reject Perry reliance on Sacks.

So, violating a Dep’t. of L&I policy against carrying a weapon is “jsut cause” for termination, and the fact the right to be armed is a fundamental right makes no difference, at least where the policy violated prohibited carry in public buildings. This is because, according to the Commonwealth Court, the State can constitutionally restrict carry in public buildings.

**MDJschool** · February 20th, 2012, 06:40 PM

Jan 2012 version in entirety appears to be here:
http://scholar.google.com/scholar_ca...09806345892340

The term "just cause" is not defined in the Act. Woods v. State Civil Serv. Comm'n, 590 Pa. 337, 912 A.2d 803 (2006). Just cause must be merit-related, and the criteria for determining whether an appointing authority had just cause for removal must touch upon the employee's competency and ability in some rational and logical manner. Wei v. State Civil Serv. Comm'n, 961 A.2d 254 (Pa. Cmwlth. 2008).

What constitutes just cause for removal is largely a matter of discretion on the part of the head of the department. Woods; Pa. Bd. of Prob. & Parole v. State Civil Serv. Comm'n, 4 A.3d 1106 (Pa. Cmwlth. 2010). "However, to be sufficient, the cause should be personal to the employee and such as to render the employee unfit for his or her position, thus making dismissal justifiable and for the good of the service." Pa. Bd. of Prob. & Parole, 4 A.3d at 1112.

and citing the Civil Service Commission opinion,

[Perry], even despite his prior, presumably exemplary, service to [L&I], was appropriately removed for his failure to maintain the high standard of conduct required in such employment.

So carrying firearms reduces workplace competency and fitness, only irrational and illogical persons carry firearms, and the carry of firearms is a low standard of conduct? That's all I can take out of this. I feel like that's been an undertone of all sorts of state and federal orders/opinions on firearms...