16-002590 City Of Cape Coral vs. Audie Lewis Status: Closed DOAH Final Order on Wednesday, January 25, 2017.

Summary: City proved by preponderance of evidence that employee visited pornographic sites and downloaded material. Severe enough violation of city ordinances and computer-use policy to support termination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF CAPE CORAL,

Petitioner,

vs. Case No. 16 - 2590

AUDIE LEWIS,

Respondent.

_______________________________/

FINAL ORDER

John D.C. Newton, II, Administrative Law Judge of the

Division of Administrative Hearings (DOAH), conducted the final

hearing in this matter on October 26, 2016, by video

teleconference in Tallahassee and Fort Myers, Florida.

APPEARANCES

For Petitioner: Gail G. Roberts, Esquire

Steven D. Griffin, Esquire

Cit y of Cape Coral

1015 Cultural Park Boulevard

Cape Coral, Florida 33990

For Respondent: Jerry Brian Von Gruben, Esquire

Von Gruben Law, P.A.

3721 Kemper Street

Fort Myers, Florida 33905 - 7717

STATEMENT OF THE ISSUE

A. Did the Respondent, Audie Lewis, v iolate the Petitioner,

City of Cape CoralÓs (Cape Coral), End User Computing Policy and

ordinances of Cape Coral prohibiting an employee from

unauthorized use of equipment and conduct detrimental to the

interest of the city?

B. If he did, what discipline is proper?

PRELIMINARY STATEMENT

By letter dated April 20, 2016, Cape Coral told Mr. Lewis

that it intended to terminate his employment. Mr. Lewis

requested a formal administrative hearing to contest this action.

Cape Coral referred the dispute to DOAH f or conduct of the

hearing. The hearing was scheduled for July 21, 2016. After two

continuances the undersigned conducted the hearing on October 26,

2016.

Cape Coral presented testimony from Kimberly Bruns, Ryan

Irving, Elizabeth Merriken, and John Szer lag. Cape Coral

Exhibits 1 through 14 were admitted. Mr. LewisÓs Exhibits 1

and 2 were admitted. Mr. Lewis did not offer any testimony. The

parties were provided an opportunity to file proposed recommended

orders.

The parties ordered a transcript. Ca pe Coral moved for an

extension of time for filing proposed recommended orders. The

motion was granted. Cape Coral timely filed a proposed

recommended order. Mr. Lewis did not file a proposed recommended

order.

FINDING S OF FACT

1. At all times materia l to this case, Cape Coral employed

Mr. Lewis as a business recruitment specialist in the CityÓs

Economic Development Office. Until this matter, Mr. Lewis was a

satisfactory employee. He has no history of discipline.

2. The city manager is responsible f or deciding whether to

terminate the employment of Cape Coral employees who are not

supervised by a city department director. Mr. Lewis did not work

in an office with a department director. Consequently he was

under the supervision of the city manager.

3 . Chapter 2, section 2 - 31.1 of Cape CoralÓs Code of

Ordinances states that employees may only be disciplined for

cause. It also establishes progressive discipline as the usual

practice. But chapter 2, section 2 - 31.2 states: ÐThe city,

however, reserves the right to impose even the most severe

discipline as an initial measure when circumstances warrant.Ñ

Cape CoralÓs Administrative Regulation 46 (AR - 46) page 3(J)

states that every computer user must comply with all applicable

policies. It cautions: ÐN on - compliance may result in

disciplinary action up to and including discharge.Ñ

4. On April 20, 2016, the city manager terminated

Mr. LewisÓs employment pursuant to chapter 2, section 2 - 31.3 of

the Code of Ordinances and AR - 46, the CityÓs End User Comput ing

Policy. The relevant part of the Code section states:

One or more of the following reasons shall

constitute cause for disciplinary action :

* * *

(t) Unauthorized use of city personnel

services, supplies, property, facilities, or

equipment;

* * *

(hh) Actions or conduct detrimental to the

interests of the city;

5. In pertinent part, AR - 46, page 6(E), states:

Material that is fraudulent , harassing,

embarrassing , sexually explicit, profane,

obscene , intimidating, defamatory , or

o therwise unlawful or inappropriate may not be

sent by emai l or other form of electron i c

communication or displayed on or stored in the

CityÓs computers including , but not limited

to , messages and material with sexual

comments , obscenities , pornography , abu sive or

degrading language, antisocial behavior , or

inappropriate comments concerning race, color,

religion , sex, national origin , marital

status , or disability. Any message received

that contains intimidating , hostile , or

offensive material should be rep orted

immediately to management so that appropriate

measures can be taken.

6. The End User Computing Policy prohibits use of the

internet to view or download material that contains pornography or

that is sexually explicit. Mr. Lewis knew of the policy c ontained

in AR - 46.

7. The city manager based Mr. LewisÓs termination on

Ð[u] nauthorized use of city personnel services, supplies,

property , facilities or equipment,Ñ Ð[a]ctions or conduct

detrimental to the interests of the city,Ñ and Ð[v]iolation of

Admi nistration Regulation 46 End User Computing Policy.Ñ

8. Cape Coral maintains a Ðzero toleranceÑ policy for

pornography. This is a core part of Cape CoralÓs commitment to a

culture of professionalism. One reason for the policy is that the

proximity of computer users to each other means one userÓs display

of pornographic images may be viewed by other users.

9. On March 9, 2016, Cape CoralÓs ÐIntrusion

Prevent/Detection SystemÑ alerted the Information Technology

Services Department (ITS) that city compu ter Ðcm5465Ñ was

connected to a web server possibly associated with adult content.

The alert cautioned that the connection may lead to a malware

infection and recommended checking the computer to ensure it had

not been compromised. The computer was assig ned to and used by

Mr. Lewis. There is no persuasive evidence that others used the

computer.

10. On March 18, 2016, ITSÓ network security administrator,

Elizabeth Merriken, sent the human resources director a

memorandum advising her of the activity. Ms. Merriken attached a

report generated by Checkpoint, a security system the city uses

to monitor traffic to and from city computers through the

firewall. The system also monitors URLs visited and compares

them to lists of URLs for suspect sites, such as po rnography

sites. It reported visits from Mr. LewisÓs computer to 85

suspect sites. The system functions automatically and cannot be

manipulated. The report covered traffic for Mr. LewisÓs computer

from March 7 through 10, 2016.

11. ITS duplicate d the hard drive of Mr. LewisÓs computer

in order to analyze it and his internet activity. Ms. Merriken

conducted a forensic analysis of the duplicate hard drive.

12. The analysis did not find any evidence of a virus or

malware. An analysis using the fo rensic software program,

ÐMagnet Internet Evidence Finder,Ñ found several pornographic

items. It also found that a great deal of history had been

deleted shortly after Mr. Lewis learned of the inquiry into his

computer use. The analysis found over 100,00 0 pictures and more

than 1,500 videos.

13. During March 8 and 9, 2016, Mr. LewisÓs computer

accessed pornographic websites approximately 85 times.

14. ITS contracted with DR Data Security, LLC (Data

Security), to conduct further forensic analysis of the hard drive

from Mr. LewisÓs computer. Ryan Irving conducted the analysis

for Data Security.

15. Mr. Irving conducted his analysis using standard

forensic tools. They included SigCheck, Internet Evidence Finder

6.7, Winhex 18.7, IE Cache View, and SANS I nvestigative Forensic

Toolkit 3.0. His analysis corroborated the report from the

CityÓs analysis of March 8 and 9. It also identified similar

activity between June and December of 2015. Mr. Irving recovered

54 images from Mr. LewisÓs computer downloaded in December 2015.

The images include topless women and nude women, alone and paired

in sexually explicit poses.

16. The city manager notified Mr. Lewis of his intent to

impose discipline. Cape Coral complied with its due process

policies, providing M r. Lewis notice of the charges against him

and the evidence relied upon. It also gave him an opportunity to

rebut or explain the information.

17. Mr. LewisÓs statements during a pre - disciplinary

interview acknowledging that he might have ÐaccidentallyÑ seen

nude images while using Google to search for work - related

subjects corroborate the reports of the images and visits to

pornographic websites. The testimony that so many images would

have been displayed ÐaccidentallyÑ is implausible; there is no

expe rt testimony to support it and no testimony about what search

subjects would have generated the images. A brief list of search

terms and some of the sites visited demonstrates the

implausibility of the Ðaccidental visitation.Ñ They include:

Debbie Davis Playboy Centerfold, images.playboy.com, teen

pornmovies.ratedxblogs.com, lustfulpics.com, boobieblog.com,

glamourcenterfolds.com, and spylove.com, interspersed with URLs

for more prosaic sites, such as Amazon and Etsy.

18. After considering all of the in formation, the city

manager issued a ÐFinal Notice of DisciplineÑ letter to

Mr. Lewis, terminating his employment, stating the grounds for

the termination, and advising Mr. Lewis of his right to seek

review.

19. Mr. Lewis repeatedly used his city compute r to view

websites with pornographic images. This activity was an

unauthorized use of city equipment.

20. Mr. Lewis used his city computer to display

pornography.

21. Mr. Lewis used his city computer to intentionally view

and download electronic materia l that contains pornography and was

sexually explicit from the internet.

22. Mr. LewisÓs activities, summarized in paragraphs 19

through 21, were willful.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has

jurisdiction over the parties a nd subject matter pursuant to the

contract between Cape Coral and DOAH and section 2 - 3.25(h) Code

of Ordinances of the City of Cape Coral.

24. Cape Coral must prove its charges by a preponderance of

the evidence. § 2 - 3.25(g), Code of Ordinances of the Ci ty of

Cape Coral. "Preponderance of evidence is defined as evidence

'which as a whole shows that the fact sought to be proved is more

probable than not.' State v. Edwards , 536 So. 2d 288, 292 n.3

(Fla. 1st DCA 1988)." Dufour v. State , 69 So. 3d 235, 252 (Fla.

2011), see also Escambia Cnty. Elec. Light & Power Co. v.

Sutherland , 61 Fla. 167, 193, 55 So. 83, 92 (1911).

25. Cape Coral met its burden. It proved that Mr. Lewis

violated chapter 2, section 2 - 31.3 of the Code and the CityÓs

AR - 46.

26. A key dispute in this case is whether Cape Coral may

terminate Mr. LewisÓs employment instead of imposing some lesser

discipline in light of his employment history.

27. Viewing pornography on an employerÓs computer is just

cause to terminate an employee, even i f the employee does not have

a history of discipline. Miami - Dade Cnty Sch. Bd. v. Epstein ,

Case No. 03 - 4041 (Fla. DOAH May 26, 2004; Miami - Dade Cnty. Sch.

Bd. July 19, 2004). In this case, Mr. Lewis repeatedly visited

pornographic websites and viewed por nographic imageseating

this as a case involving one offense does not square with the

facts. This is one disciplinary action for multiple violations

of Cape CoralÓs Code and policies. The fact that Mr. Lewis had

to repeatedly type terms such as Ðplay boy,Ñ Ðporn,Ñ and ÐlustfulÑ

to reach the sites demonstrates willful violation of the rules.

There is also no uncertainty or ambiguity in the prohibitions

that Mr. Lewis violated. Terminating Mr. LewisÓs employment is

reasonable. Cape Coral has just caus e to terminate Mr. Lewis.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, the undersigned finds just cause for Petitioner, City of

Cape Coral, to terminate the employment of Respondent,

Audie Lewis.

DONE AND ORDERED this 25th da y of January, 2017, in

Tallahassee, Leon County, Florida.

S

JOHN D. C. NEWTON, II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(8 50) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of January, 201 7 .

COPIES FURNISHED:

Gail G. Roberts, Esquire

City of Cape Coral

1015 Cultural Park Boulevard

Cape Coral, Florida 33990

(eServed)

Jerry Brian Von Gruben, Esquire

Von Gruben Law, P.A.

3721 Kemper Street

Fort Myers, Florida 33905 - 7717

(eServed)

Steven D. Griffin, Esquire

City of Cape Coral

Post Office Box 150027

Cape Coral, Florida 33915

(eServed)

John Szerlag, City Manager

City of Cape Coral

1015 Cultural Park Boulevard

Cape Coral, Florida 33990

Lisa Sonego, Director of Human Services

City of Cape Coral

1015 Cultural Park Boulevard

Cape Coral, Florida 33990

NOTICE OF RIGHT TO JUDICIAL REVIEW

Chapter 2, Division 8, section 2 - 32.5(i), City of Cape Coral

Ordinances, provides that Ð[a]any party who is adversely affected

by the final order of the [Administrative Law Judge] may apply to

the local circuit court for judicial relief within 30 days afte r

rendition of the final order by the [Administrative Law Judge].

The proceedings in circuit court shall be commenced by the filing

of a petition for writ of certiorari.Ñ