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
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
vs. Appeal No. 04-0081AP-88A
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.
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
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. 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. 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
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 (
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.” 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.
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.
AND ORDERED in Chambers, at
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
Leslie K. Dougall-Sides,
 The Appeals Referee’s decision was
subsequently overturned. See Kulig
v. City of
 The employment action taken with this city employee, if any, is not in the record.
 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.
 See App./Transcript, pg. 48.