Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: EMPLOYMENT – there is competent substantial evidence in the record to support City’s termination of employee for improper use of city’s computer system – although city’s computer policy had not been consistently or routinely enforced, as a level three systems programmer, employee was in a greater position of trust and responsibility than other city employees – while hearing officer erred in not admitting newspaper articles, error was not serious enough to result in a gross miscarriage of justice – Petition denied.  Kulig v. City of Clearwater, No. 04-0081AP-88A (Fla. 6th Cir. App. Ct. Jan. 5, 2006). 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

MIGLENA KULIG,

                        Petitioner,

 

vs.                                                                                                Appeal No. 04-0081AP-88A

                                                                                                    UCN522004AP000081XXXXCV

 

CITY OF CLEARWATER,

                        Respondent.

________________________________________________/

 

 

ORDER DENYING PETITION FOR WRIT OF CERTIORARI

 

            THIS CAUSE came before the Court on the Petition for Writ of Certiorari, the Response, and the Reply.  Upon consideration of the same and being otherwise fully advised, the Court finds that the Petition must be denied as set forth below.

            The Petitioner, Miglena Kulig (Kulig), seeks review of the Order of Determination of Penalty, entered November 4, 2004, in which the Civil Service Board of the City of Clearwater (City), upheld the termination of Kulig as recommended by the City’s Hearing Officer in his Final Order, entered September 20, 2004.  In reviewing the administrative action taken by the City, this Court must determine whether Kulig was afforded procedural due process, whether the essential requirements of law were observed, and whether the City’s findings and judgment are supported by competent substantial evidence.  See Haines City Community Development v. Heggs, 658 So.2d 523, 530 (Fla. 1995)(setting forth the standard of certiorari review of administrative action).  In considering the City’s Motion to Strike Portions of the Petitioner’s Appendix, the Court will not consider the Public Records Request, Appendix (App.) 208, as it was not developed as part of the record below.  See Fla. R. App. P. Rule 9.190(c)(1).  The Court will consider the Memorandum, App. 209, Memorandum, App. 210, and the St. Petersburg Times articles, App. 644-651, only to the extent that the hearing officer considered these documents in making its rulings.  The Court will also consider the Unemployment Appeals Commission Order, App. 618-620, as the Final Order reflects in finding of fact #18, that the hearing officer considered the underlying administrative decision of the Appeals Referee.[1]

            The record shows that Kulig was employed by the City in the Information Technology Department from January 19, 1999, until her termination on April 21, 2004.  Kulig was responsible for the administration of the Utility Billing System, the system that produces the utility bills for customers and maintains customer information systems for the City.  Kulig’s final position was as a Senior Systems Programmer.  During Kulig’s employment with the City, she received several positive reviews and commendations.  In 2000, Kulig received the “Reaching for Excellence” award and was nominated for Employee of the Month.  In 2002 through 2004, Kulig’s reviews began to reflect performance concerns, particularly communication with management. 

            In 2003, Kulig was placed on a 4-month Action Plan, from April 29, 2003 to August 29, 2003, as a result of poor time management.  As stated in the Action Plan, Kulig’s supervisor was concerned about Kulig’s minimal interaction with other IT employees, excessive socializing, and long lunch breaks.  Kulig successfully completed the Action Plan.  There were no adverse comments in Kulig’s February 2004 work review, only the request that Kulig “[c]ontinue to develop open communication with IT management.” 

            On March 23, 2004, the City’s utilities server experienced a malfunction.  The following morning, the Information Technology help desk was contacted by the Utilities Department when its employees could not access the server.  The server was re-booted without incident.  It was determined that Kulig, or someone using her User ID and password, had accessed a line to the Utility Management System server during the evening of March 23rd, using a remote dial-up connection, for the purpose of checking e-mails and accessing the internet.  As stated in termination memo, prepared by Human Resources on April 15, 2004, this compromised the City’s Utility Billing System.  An investigation revealed that Kulig had used the same dial-up connection during work hours to access internet sites and to send personal e-mail to another city employee.[2]  On April 16, 2004, William Horne, the City Manager/Appointing Authority, issued Kulig a Termination and Dismissal Notice for violating Chapter 13, Section 3, to wit:

(h) Commitment of or participation in an activity or action which undermines the public confidence or otherwise significantly impairs the employee’s ability to perform his/her job productively.

 

(m)  Failure to conform to the dictates of corrective action, including but not limited to failure or inability to comply with an agreed upon “action plan”, or when the City believes that an employee is willful in refusing to adhere to established rules, regulations, or guidelines.

 

(n)         Violation of or failure to obey any lawful policy, regulation, and/or reasonable

direction made and given by a supervisor or other authority when such violation or failure to comply is insubordination or a serious breach of discipline.

 

            Kulig sought review of her termination before the City’s hearing officer.  A hearing was held on August 4, 2004, in which several witnesses testified, including: Daniel Mayer, Information Technology Director; David Laatsch, Systems and Programming Manager; Sharon Marzola, Network Technology Manager; Madhavarao Lakkaniki; Database Manager; Tom Arruda, Network Engineer; Joseph Roseto, Human Resources Director; and, Earl Gloster, from Human Resources.  Mr. Roseto testified that he believed the appropriate discipline was administered against Kulig, citing to several other cases resulting in termination that he deemed comparable.[3]  Mr. Roseto testified that the decision to terminate Kulig was based on policy violations, the seriousness of the server incident, as well as inappropriate e-mail use. 

            The hearing officer considered several forms of evidence, including hearsay evidence presented by both parties.  The hearing officer denied Kulig’s request to admit articles from the St. Petersburg Times which, as explained in Kulig’s statement dated July 10, 2004, that was admitted into evidence, profiled two at-will City employees that were disciplined, but not terminated, for inappropriate use of the City’s computer system.  The hearing officer also considered the decision of an Appeals Referee who denied Kulig’s application for unemployment benefits.  Following the hearing, on September 16, 2004, Kulig filed a Motion to Hearing Officer to Admit Newly Discovered Evidence or Alternatively to Take Notice that Such Documents Exist and Were in Possession of the City at the Time of the Hearing; the Motion attached the memorandums issued by William Horne to the two City employees for inappropriate use of the City’s e-mail system.  This Motion was denied.  The hearing officer entered its Final Order on September 20, 2004, which was upheld by the City in its Order of Determination of Penalty, entered November 4, 2004.

            Before this Court, Kulig argues that the City’s decision is not supported by competent substantial evidence and that the City departed from the essential requirements of law in not accepting hearsay evidence and denying Kulig’s subsequent motion to admit new evidence.  Initially, in addressing these issues the Court reiterates the standard of review of administrative action.  As set forth in Haines City, the circuit court review of an administrative agency decision is governed by a three-part standard:  whether procedural due process has been accorded; whether the essential requirements of law were observed; and, whether the findings and judgment are supported by competent substantial evidence.  See Haines City, 658 So.2d at 530.  The Court is not entitled to reweigh the evidence or substitute its judgment for that of the agency.  See id.  As Kulig does not argue that she was denied due process, the Court need not address that prong. 

            In reviewing the first issue, the Court finds that there is competent substantial evidence in the record to support the City’s conclusion that there was just cause for Kulig’s termination.  See Department of Highway Safety and Motor Vehicles v. Trimble, 821 So.2d 1084, 1087 (Fla. 1st DCA 2002)(describing competent substantial evidence as such evidence that is “sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached”).  In reaching this conclusion, the Court recognizes that no employee for the City had ever been terminated for improper use of the City’s computer system.  Additionally, there was testimony presented that the City’s computer use policy was not consistently and/or routinely enforced.  The IT Director, Mr. Mayer, explained that the procedure for an employee to request permission to use the computer for incidental personal use would be “any form of communication to your director,” but that he had never given his permission even though he was “certain” that employees used the Internet for personal purposes.[4] 

            However, Mr. Mayer also distinguished Kulig’s personal computer use, finding it was unacceptable as “the dial-up account was specifically given [to Kulig] for support of that system, in the event of a crisis or the need for 24/7 support” and that “[t]he records clearly show that this dial-up account was used, regularly, for only personal use.”[5]  It was undisputed that Kulig accessed the utility server for her personal internet use rather than using the internet server available to all City employees.  There was also testimony presented that Kulig allowed her daughter to access the internet via the utility server as well.  The Court finds that, as a level three systems programmer, Kulig was in a greater position of trust and responsibility than other City employees and should have been aware of the City’s computer policies and related security protocols.  While the decision to terminate Kulig without progressive discipline may appear harsh in this case, this Court cannot reweigh the evidence or substitute its judgment for the hearing officer to arrive at a different conclusion.  See id.; see also Haines, 658 So.2d at 530.

            In reviewing the second issue, the Court finds that the hearing officer erred in not admitting into evidence the St. Petersburg Times newspaper articles proffered by Kulig.  The Court finds that technical rules of evidence did not apply in the proceedings below.  See City’s Code of Ordinances, § 2.285(2).  Indeed, the record shows that the hearing officer did admit several forms of hearsay evidence from both parties.  While it was error to not admit the newspaper articles, the Court cannot conclude that the error was serious enough to result in a gross miscarriage of justice.  See Haines, 658 So.2d at 527; see also Housing Authority of the City of Tampa v. Burton, 874 So.2d 6, 8 (Fla. 2d DCA 2004)(explaining that in determining whether there has been a departure from the essential requirements of law, the appellate court “should not be as concerned with the mere existence of legal error as much as with the seriousness of the error”).

           

            Lastly, the Court finds no error in the hearing officer’s decision to not admit “newly discovered evidence.”  It is clear that Kulig had ample time to prepare for the hearing and it was in the hearing officer’s discretion to not admit additional evidence after the hearing had concluded.  Accordingly, the Court finds that Kulig’s request for certiorari relief must be denied.

            It is therefore,  

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is hereby denied.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of December 2005.

 

 

 

                                                _______________________________

                                                JOHN A. SCHAEFER

                                                Circuit Judge, Appellate Division

 

 

 

 

 

 

_______________________________                      ______________________________

LAUREN LAUGHLIN                                              JAMES CASE

Circuit Judge, Appellate Division                                   Circuit Judge, Appellate Division

 

Copies furnished to:

Nicholas J. Taldone, Esquire

2536 Countryside Boulevard

Clearwater, FL  33763

 

Leslie K. Dougall-Sides, Assistant City Attorney

112 South Osceola Avenue

Clearwater, FL  33756

 



 

[1]  The Appeals Referee’s decision was subsequently overturned.  See Kulig v. City of Clearwater, U.A.C. Order No.  04-09282 (Fla. Unemployment Appeals Commission 2004); aff’d, City of Clearwater v. Unemployment Appeals Commission, No. 2D04-5766 (Fla. 2d DCA Oct. 21, 2005).

[2] The employment action taken with this city employee, if any, is not in the record. 

[3] None of the termination cases submitted involved inappropriate use of the City’s computer system.  The Court is at a loss as to how the City could find some of the cases even remotely comparable, i.e. terminations resulting from dealing in stolen property, sale and possession of crack cocaine, felony possession of marijuana with intent to sell, burglary, and capital sexual battery.

[4] See App./Transcript, pg. 48.

 

[5] See App./Transcript, pg. 49.