01-000001 Nassau County School Board vs. Bernice Lamar Miles Status: Closed DOAH Final Order on Tuesday, May 13, 2003.

Summary: Remand from First District Court of Appeal to set reasonable attorney`s fees in a School Board discipline case in which the Administrative Law Judge`s Recommended Order was reinstated on appeal.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NASSAU COUNTY SCHOOL BOARD, )

)

Petitioners, )

)

vs. )

) Case No. 01 - 0001

BERNICE LAMAR MILES, )

)

Respondent. )

)

FINAL ORDER

Pursuant to the ma ndate of the District Court of Appeal for

the First Appellate District and the Administrative Law Judge's

Order of October 10, 2002, this cause came on for formal

proceeding on January 13, 2003, in Tallahassee, Florida, before

P. Michael Ruff, Administrati ve Law Judge of the Division of

Administrative Hearings. The appearances were as follows:

APPEARANCES

For Petitioners: Brian T. Hayes, Esquire

Brian T. Hayes, P.A.

245 East Washington Street

Monticello, Florida 32344

For Respon dent: Mary F. Aspros, Esquire

Meyer and Brooks, P.A.

2544 Blairstone Pines Drive

Post Office Box 1547

Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern the

amount of reasonable attor ney's fees and costs due to the

Respondent in the underlying case, to which the attorney's fees

issue relates. 1/

PRELIMINARY STATEMENT

The proceeding was initiated pursuant to an order and

mandate of the Court of Appeal for the First District, issued on

A ugust 12, 2002. The court had determined, upon reviewing the

Final Order of the Nassau County School Board, that the

appellant in the case on appeal, Bernice Lamar Miles (the

Respondent below) was entitled to reasonable attorney's fees and

costs.

On Octo ber 21, 2002, the parties responded to an Order of

the Administrative Law Judge, indicating that they could not

agree as to a reasonable attorney's fee and that the Petitioner

desired an evidentiary hearing on the issue of reasonable fees

and costs. The h earing was then scheduled for January 13, 2003.

The matter came on for hearing as noticed. The Petitioner,

the Nassau County School Board, presented expert witness John

Carlson, Esquire and five exhibits which were admitted into

evidence. The Respondent , Bernice Lamar Miles, presented

witness Mary Aspros, Esquire and Jerry Traynham, Esquire, its

expert witness. The Respondent presented its exhibit one,

Ms. Aspros's time records.

Upon concluding the proceeding the parties had it

transcribed and chose to submit Proposed Final Orders. They

submitted these after one agreed - upon extension and the Proposed

Final Orders have been considered in the rendition of this Final

Order.

FINDINGS OF FACT

It has been stipulated between the parties that the costs

represe nted in the Respondent's Exhibit One in evidence, in the

amount of $1,739.49 are accurately stated, reasonable and

properly due to the Respondent. The hourly amount to be awarded

to Ms. Aspros, the attorney for the Respondent in the underlying

case is not in dispute. Both of the attorney's fee experts

testifying agree that a reasonable rate of pay for Ms. Aspros's

representation of Mr. Miles in this matter is $150.00 per hour.

This rate was assessed through a comparison of rates charged by

local law firm s for work performed by less experienced

associates who are somewhat similarly situated to Ms. Aspros in

terms of practice experience. Moreover, Mr. Carlson, the

attorney's fee expert for the Nassau County School Board, the

Petitioner in the case below (N CSB), did not challenge the

accuracy of the time billed by Ms. Aspros represented in her

Exhibit One as time actually spent by Ms. Aspros in the

representation of her client; rather, the NCSB and Mr. Carlson

as its expert witness, disputes whether that amo unt of time was

reasonable for an attorney prosecuting that type of litigation.

In the administrative and appellate proceeding to which

this case and order on remand relate, Ms. Mary F. Aspros,

Esquire, represented the Respondent therein, Mr. Miles.

Ms. Aspros was admitted to the bar in the year 2000 after

earning a juris doctorate degree from the Florida State

University College of Law. She became employed as an attorney

at the Law Firm of Myer and Brooks, P.A., in August of 2000 and

has practiced c ontinuously with that firm since that date and

during the entire course of the litigation at issue.

Ms. Aspros submitted her exhibit one at hearing. That

exhibit set forth a total of 495 hours spent on the proceeding

from December 11, 2000 through Sept ember 16, 2002, as well as

the remaining balance of the costs accrued for the litigation.

In compiling exhibit one Ms. Aspros voluntarily extracted

some of the time she spent on the case by removing all time

which she deemed excessive or not related dire ctly to the issues

in the case. She also ended the billing record represented by

exhibit one as of September 16, 2002, when the court's mandate

was issued in the appellate portion of the proceeding, thus

voluntarily excluding some time she spent on a moti on to enforce

the mandate and to tax costs.

That billing record set forth the time spent rendering

services, the date services were rendered and the type of

services provided. The billing record includes billing at the

full hourly price for all travel ti me, which would primarily be

travel between Tallahassee and Nassau County or the City of

Fernandina Beach. That record was maintained in and extracted

from a data entry computer system maintained in Ms. Aspros

office, for attorney time - record keeping. Ms . Aspros followed a

regular practice of entering all billing information into the

computer on a daily or weekly basis after which the office

bookkeeper would create a billing statement. The billing

statement would be reviewed by Ms. Aspros for accuracy an d then

sent to the client for payment. The client paid all bills it

received from Ms. Aspros for her representation of the client,

Mr. Miles. The evidence does not reflect clearly what bills

Mr. Miles actually received nor the amount of each of them.

Th at information is not really material to the issue in this

proceeding since the reasonableness of attorney's fees for the

services rendered at all stages of this litigation is at issue

rather than simply reimbursement for the amounts paid by

Mr. Miles, the client.

In testimony and Exhibit One, Ms. Aspros maintains that she

spent 182 and one - half hours from the date she began

representing Mr. Miles on December 11, 2000, up to and including

the formal evidentiary hearing conducted on June 22, 2001.

During that time she participated in extensive discovery,

including preparing for and traveling to five depositions in

Nassau County from Tallahassee. She also drafted

interrogatories and document requests and reviewed many

documents. It was crucial to spend a significant amount of time

contacting numerous students who were present at the time of the

alleged incidents and who may have seen the complained - of

activity. Her efforts were successful and she produced a

favorable witness who testified at hearing, whi ch testimony was

instrumental in absolving Mr. Miles of the charges against him.

Prior to hearing, Ms. Aspros had to prepare several

pleadings including a motion for continuance, a motion to redact

names of minor students from the records of the Division of

Administrative Hearings, as well as a motion in limine. A

significant amount of time was necessary in researching issues

involved in the motion in limine. The motion was never filed

for strategic reasons, but the issues contained within it were

succes sfully argued at hearing. Through objections at hearing,

based upon her research, Ms. Aspros was able to prevent the NCSB

from introducing documentary evidence and eliciting testimony

pertaining to prejudicial and unproven alleged, prior bad acts

("Willia ms Rule" issues). This successful legal position was

pivotal in securing a favorable result for her client,

Mr. Miles.

Ms. Aspros prepared extensively for the evidentiary hearing

which was obviously crucial to successful representation of her

clie nt. Her preparation included evidentiary research as well

as the creation of special exhibits to be used during cross -

examination of key NCSB witnesses. Because of this

investigation into the allegations and a thorough preparation

for trial, she secured a favorable result in the recommended

order entered by the administrative law judge, to the effect

that the charges had not been proven and that Mr. Miles should

be reinstated as a teacher.

The NCSB's expert witness, Mr. Carlson, allotted in his

ana lysis slightly more than 46 hours for the work required for

this entire portion of the case. This portion of the case

through the evidentiary hearing was obviously crucial because

the evidence in support of the administrative law judge's

findings of fact was brought forward, established and protected

during the course of the proceeding, such that Ms. Aspros

secured favorable findings of fact, conclusions of law and a

recommendation from the administrative law judge, obviously a

critical result to the futur e of Ms. Aspros's client's teaching

career. The evidence does not reflect that Mr. Carlson

considered the quality of work and the importance to the client

of the favorable result at this point in the case.

From June 25, 2001, after the formal evidentiary hearing,

to November 15, 2001, before the filing of the appeal,

Ms. Aspros contends that she spent 107.3 hours representing her

client's interests, as reflected in her exhibit one. During

this time she prepared a proposed recommended order which

c omprehensively set forth all factual and legal arguments

supporting her client's position. In preparing this document

she was required to do extensive additional legal research

concerning sexual harassment decisions due to that issue being

raised by NCSB for the first time at the evidentiary hearing, in

that the NCSB asserted for the first time at the hearing that

her client's alleged conduct violated the school board's policy

on sexual harassment.

Upon entry of the Recommended Order by the administrati ve

law judge, had the NCSB accepted that recommended order in its

findings of fact and conclusions of law, the case would have

ended at that point. However, the NCSB chose to file exceptions

to the Recommended Order and therefore Ms. Aspros was required

t o do additional research and draft a response to those

exceptions. She spent a significant amount of time preparing

the response to the exceptions and preparing for the hearing

before the school board on those exceptions. That hearing was

held on Decembe r 15, 2001, before the NCSB. Obviously the

NCSB's decision would be pivotal to the case and would have an

enormous impact on Mr. Mile's career in the future. It did have

such an impact on her client, delaying a final and just

resolution of the matter an additional eight months. The record

does not reflect clearly that the NCSB's expert witness,

Mr. Carlson, in testifying that no more than 14 hours should

have been expended on this entire phase of the case, considered

a number of pivotal factors cont ained in Rule 4 - 1.5 of the Rules

of Professional Conduct (and case law) concerning the

significance of the subject matter of the representation, the

responsibility involved in the representation, the results

obtained and the importance of the representatio n and the result

to the client's interests.

Ms. Aspros contends that she expended 205.2 hours on the

appellate portion of the case, between the dates of

November 16, 2001, and September 17, 2002. Following the NCSB's

reversal of the recommended orde r she filed a notice of appeal

with the District Court of Appeals for the First District and

handled all of the appellate work in the case. Prior to

drafting the appellate brief Ms. Aspros acquired the tapes of

the exceptions hearing before the NCSB and a ssisted in the

accurate transcription of the hearing for the appellate record.

In preparing the initial appellate brief she thoroughly reviewed

all the pleadings and transcripts related to the proceeding

before the administrative law judge and the NCSB, in cluding the

NCSB final order. She was required to file a motion for

extension of time to file the brief due to NCSB's late filing of

the appellate index. She also prepared and won the motion for

attorney's fees which resulted in the matter now before the

administrative law judge in the instant proceeding.

In preparing the reply brief Ms. Aspros was required to

further scrutinize all prior pleadings and conduct additional

research because in its answer brief the NCSB had argued that

one of the issues was one of first impression. In any event,

the appellate court ruled in Mr. Miles' favor rejecting the

arguments of NCSB.

Thereafter, NCSB filed a petition for clarification and re -

hearing and Ms. Aspros was required to do additional work and

research to res pond to the petition for re - hearing.

Mr. Jerry Traynham testified as an expert witness on

attorney's fees for the Respondent and Mr. John Carlson

testified as an attorney's fee expert for the Petitioner. Both

have practiced a substantial amount in the area of

administrative law and procedure over the course of many years

of law practice. Both of them, particularly Mr. Traynham, have

prosecuted a substantial number of cases arising under

Chapter 120, Florida Statutes, and both, particularly

Mr. Traynham, have handled a substantial number of Chapter 120

administrative law cases on appeal.

Mr. Traynham thoroughly reviewed the files pertaining to

this case, as well as the billing records contained in

Respondent's Exhibit One and prepared by Ms. Aspros. He

consulted with Ms. Aspros about her case on three or four

occasions regarding her work and her billing records. A

banker's box full of Ms. Aspros's files was delivered to

Mr. Traynham's office in early December 2002, at which time he

revie wed the entire case file. The files were again produced to

him just days before the hearing on the fees issue. At that

time he again refreshed his memory concerning the case.

Mr. Carlson spent only approximately two hours reviewing the

records in t he case provided by Mr. Hayes and only an hour or so

reviewing Ms. Aspros's files. He never consulted with

Ms. Aspros and did not review the billing records generated by

Ms. Aspros until the day of the hearing, for unknown reasons.

Following a comprehens ive, critical review of the files and

billing records Mr. Traynham extracted approximately 35 hours

from the hours claimed in the Respondent's Exhibit One. He

decreased some of the hours in areas of billing that he believed

to be excessive. He concluded that the remaining 452.5 hours

Ms. Aspros spent working on this case were reasonable and

necessary and that she should be paid an attorney's fee

therefor.

In reaching this determination concerning his reasonable

opinion as to the number of hours reasona ble and properly

expended, Mr. Traynham considered the severity of the charges

against the Respondent, the possible severe consequences to

Mr. Miles and his career had he lost the case, the quality of

the result produced and the quality of the work perform ed by

Ms. Aspros.

Mr. Traynham opined that a high number of hours was

justified due to the severity of the allegations to the client,

which involved alleged inappropriate touching of three minor,

female students. If the allegations had been sustained the

Respondent's entire teaching career would have been destroyed

and he would never have been able to find employment in that

field again. Consequently, Mr. Traynham believed that, because

of the severe, substantial ramifications of losing such a case,

Ms. Aspros was justifiably very zealous in representing her

client's interests. She thus expended a high number of hours of

attorney time and he opined that she should be compensated for

her successful efforts in that regard.

Mr. Traynham also described the very high quality of work

in this case as having an effect on his opinion regarding a

reasonable fee. He stated that Ms. Aspros had done very

competent work, far beyond what you normally expect from a

lawyer with two years' experience. Concerning her ap pellate

work in this case, and her brief, he opined that he had seen at

least one hundred appeals and had rarely seen work that good.

The undersigned has considered the testimony of the experts

for the Petitioner and the Respondent, Mr. Carlson and

Mr. Tr aynham. It is determined that both are qualified as

expert witnesses, both having substantial experience in

administrative law and procedure in the area of law involved in

the subject litigation.

Mr. Traynham made a more detailed review of the documents

a massed in this case at all levels of the proceeding. Moreover,

he consulted with Ms. Aspros on several occasions. He also

reviewed the documents a second time shortly before the hearing

on this attorney's fee issue. Mr. Traynham also considered a

number of factors typically used in assessing reasonable

attorney's fees and delineated in the conclusions of law below.

He, for instance, considered the typical fees for an attorney

with Ms. Aspros's experience level, the severity of the

allegations against he r client and the possible ramifications to

the career of her client if she lost the case. He also

considered the quality of the result achieved and the high

quality of the work that was produced by Ms. Aspros in achieving

the successful result. He consid ered all these factors while

looking at the file and the billing records in a critical

fashion. He ultimately determined that 452.5 hours was a

reasonable amount of time to be expended by Ms. Aspros and that

she should be reimbursed with an attorney's fee representing

that many hours.

Mr. Carlson did not spend as much time reviewing the

documents in the file and did not consult with Ms. Aspros at

all. Additionally, the record does not reflect that Mr. Carlson

considered all of the various factors delineat ed above and in

the authority cited in the conclusions of law below, including

the factors contained in Rule 4 - 1.5 of the Rules of Professional

Conduct, cited below, in assessing a reasonable fee, under the

circumstances presented by this case and these pa rties. Rather,

Mr. Carlson more relied on his own approximate 30 years

experience as a lawyer in determining what he considered would

be a reasonable amount of time (83.58 hours) that he might

expend in handling this case, from Ms. Aspros's and her client 's

standpoint. Both Mr. Carlson and Mr. Traynham are certainly

well - qualified in the field of administrative law to render

opinions on the issues presented in this case, but

Mr. Traynham's somewhat more detailed delving into the facts and

circu mstances supportive of a reasonable fee determination is

accorded somewhat more weight.

That being said, however, the opinion of Mr. Carlson that

83.58 hours would be a reasonable amount of time to attribute to

Ms. Aspros's representation in this case and Mr. Traynham's

determination that 452.5 hours would be a reasonable amount of

attorney time to be reimbursed in this case are both rejected as

not being reasonable under all of the relevant facts and

circumstances attendant to determining a reasonable fee .

Accordingly, in addition to weighing the testimony of the

two expert witnesses concerning reasonable attorney's fees, the

undersigned has conducted an exhaustive review and consideration

of the billing record contained in Ms. Aspros's Exhibit One and

ha s considered the various factors depicted in the above

findings of fact and the conclusions of law below, as well as in

court decisions and court rules cited herein concerning how a

reasonable fee should be assessed; considering also the

undersigned's own substantial experience in administrative law

and practice. The undersigned has thus considered such factors

as the nature of the services rendered and responsibility placed

upon counsel for Mr. Miles, the skills required in successful

prosecution of the l itigation at all stages of the proceedings,

the circumstances in which it was rendered, the value and

beneficial results of Ms. Aspros's services to her client and

the consequences of those results to her client (i.e. the

effective saving of his career as an educator). Also considered

are the time and labor involved, the novelty, complexity and

difficulty of the questions involved, or the relative lack

thereof, the experience, reputation, diligence, and ability of

the lawyer performing the service, the eff iciency of effort

reflected in the actual providing of the services. All of these

factors have been considered in justification of the reasonable

fee found by the undersigned, in addition to consideration of

only the time and rate factors.

There is no que stion and indeed it is undisputed that

Ms. Aspros expended the hours she depicted herself as expending

in furtherance of her client's claim at all stages of the

proceedings. Not all of those hours are determined to be

reasonable and necessary, howeve r, although a substantial number

of them are. In fact, through the course of the representation,

particularly in the appellate phase of the proceeding, a

significant number of hours seemed to exceed that which is

reasonable and necessary. The instances o f travel time between

Tallahassee and Nassau County at $150.00 per hour have been

deleted. Under the circumstances of this case, while travel

expense might be reimbursable, attorney time spent in vehicle

travel is not reasonably compensable at six hours p er round

trip. There were extensive client conferences after the

evidentiary hearing, for instance, and a seemingly excessive

amount of time devoted to revision of the brief and reply brief,

as well as a significant amount of time expended in consulting

w ith other persons during Ms. Aspros's preparation of the brief,

reply brief, response to petition for rehearing, etc. which were

not shown to be necessary. In fact, there is no real detailed

testimony or evidence to justify why some of these time billings

were reasonable and necessary. Accordingly, upon conducting an

extensive review of the billing records and in considering the

factors enumerated above, the undersigned determines that a

reasonable compensable time for all stages of this proceeding,

in ac cordance with the court mandate and decision, is 293.54

hours. This results in a reasonable attorney's fee, given the

undisputed rate of $150.00 an hour, of $44,031.00.

In assessing this fee the undersigned is mindful of the

fact that the District Court o f Appeal for the First District

decided the attorney's fee entitlement based upon

Section 120.595(5), Florida Statutes, which provides that "upon

review of agency action that precipitates an appeal, if the

court finds that the agency improperly rej ected or modified

findings of fact in a recommended order, the court shall award

reasonable attorney's fee and reasonable costs to a prevailing

appellant for the administrative proceeding and the appellate

proceeding." In that regard, the court implicitly found that

the agency has participated in the appellate portion for an

improper purpose for purposes of Section 120.595, Florida

Statutes, because it improperly rejected or modified findings of

fact, substituted findings of fact which were not supported b y

the substantial, competent evidence of record and improperly

substituted its determination of the credibility of witnesses

for that of the administrative law judge. The court ironically

cited the case of MacMillan v. Nassau County School Board , 629

So. 2d 226 (Fla. 1st DCA 1993), in support of its opinion; a

case involving essentially the same issues concerning improper

rejection or modification of findings of fact and substituting

findings of fact based upon a re - weighing of evidence; in which

the same counsel and/or law firms were involved, with the same

party school board. It is readily apparent that a substantial

number of the hours of attorney time expended in litigating this

case and for which fees are to be assessed by order of the

court, could ha ve been obviated if due regard had been made to

the well - settled principles of law with regard to an

administrative law judge's findings, conclusions, and judgment

as to witness credibility enunciated in the MacMillan decision.

See also McPherson v. Schoo l Board of Monroe County , 505 So. 2d

682, 683 (Fla. 3rd DCA 1987); Forehand v. School Board of

Washington County , 481 So. 2d 953, 955 (Fla. 1st DCA 1986);

Heifetz v. Department of Business Regulation , 475 So. 2d 1277

(Fla. 1st DCA 1985) and Holmes v. Turli ngton , 480 So. 2d 150

(Fla. 1st DCA 1985).

CONCLUSIONS OF LAW

The order of the District Court of Appeal for the First

District entered in Case No. 1D01 - 4793, pursuant to Section

120.595, Florida Statutes, remanded this matter to the Division

of Administra tive Hearings and the undersigned administrative

law judge for a reasonable attorney fee to be established, the

court having already determined that the Respondent was entitled

to an award of attorney's fees. Accordingly, the Division of

Administrative He arings and the undersigned administrative law

judge has jurisdiction of the parties to and the subject matter

of this proceeding.

The Respondent seeks to establish an amount of reasonable

attorney's fees to be awarded and thus bears the burden to

demonstr ate by preponderant evidence what the amount of

reasonable attorney's fees should be. See Department of

Transportation v. JWC Company , 396 So. 2d 778 (Fla. 1st DCA

1981); Balino v. Department of Health and Rehabilitative

Services , 348 So. 2d 349 (Fla. 1st DCA 1977).

It is well - settled that factors which may be considered in

assessing the amount of a reasonable attorney fee include:

Services rendered, responsibility incurred,

the nature of the services, the skill

required, the circumstances under which it

was rendered, the ability of the litigant to

respond, the value of the services to the

client and the beneficial results, if any,

of the services.

Pfohl v. Pfohl , 345 So. 2d 371 (Fla. 3rd DCA 1977); Donner v.

Donner , 281 So. 2d 399 (Fla. 3rd DCA 1973). I t is also well -

settled that the quality of the work produced is a factor to be

considered in the calculation of fees. ID.

Additional factors, and to some extent the same factors,

have also been enumerated in Rule 4 - 1.5 of the Rules of

Professional Condu ct which states as follows:

(b) Factors to Be Considered in Determining

Reasonable Fees. Factors to be considered

as guides in determining a reasonable fee

include:

(1) The time and labor required, the

novelty, complexity, and difficulty of the

questio ns involved, and the skill requisite

to perform the legal service properly;

(2) The likelihood that the acceptance of

the particular employment will preclude

other employment by the lawyer;

(3) The fee, or rate of fee, customarily

charged in the locali ty for legal services

of a comparable or similar nature;

(4) The significance of, or amount involved

in, the subject matter of the

representation, the responsibility involved

in the representation, and the results

obtained;

(5) The time limitations imp osed by the

client or by the circumstances and, as

between attorney and client, any additional

or special time demands or requests of the

attorney by the client;

(6) The nature and length of the

professional relationship with the client;

(7) The experi ence, reputation, diligence,

and ability of the lawyers performing the

service and the skill, expertise, or

efficiency of effort reflected in the actual

providing of such services; and

(8) Whether the fee is fixed or contingent,

and, if fixed as to amoun t or rate, then

whether the client's ability to pay rested

to any significant degree on the outcome of

the representation.

In the manner described in the above findings of fact, the

preponderant evidence shows that 293.54 hours at $150.00 dollars

an hour results in a reasonable fee for Ms. Aspros's

representation of Mr. Miles in the administrative and appellate

cases. The NCSB is therefore responsible for reimbursement of

$44,031.00 for attorney's fees plus the $1,739.49 amount agreed

to for costs which are due.

It is stipulated and established through the testimony at

the hearing that a reasonable hourly rate to be awarded

Ms. Aspros is $150.00 per hour. Both experts agreed that this

is a reasonable hourly rate given to attorney's comparable with

Ms. A spros's level of experience. A lower rate is customarily

awarded to an attorney with less experience to compensate for

the increased amount of time necessary to complete the same or

equivalent work as a more experienced attorney. More

experienced attorne ys might be awarded increased hourly rates,

even as high as $300.00 per hour, because of their ability to

reach the same result in less time. Therefore the lower rate

agreed upon herein does justify some of the additional time

expended by Ms. Aspros neces sary to adequately prosecute her

client's interests. In addition to Ms. Aspros's level of

experience, such factors as were treated and found in the above

findings of fact and delineated in the above - cited court rule

and decisional authority must be consid ered, such as the

seriousness of the charges against Mr. Miles and the possible

ramifications of an adverse ruling after the hearing, after the

filing of exceptions and the board's final order or by the

appellate court. One must also consider the addition al time

expended in the extensive search for and location of an

exculpatory witness, which should be credited and reimbursed to

the Respondent and Ms. Aspros.

Furthermore, Ms. Aspros's competent appellate work rescued

her client from a disastrous consequen ce to his career. He had

been terminated for allegedly touching three young female

students in a sexual manner but, as a direct result of the

quality of her legal representation, including the time

expended, the court ultimately upheld the administrative law

judge and ordered Mr. Miles reinstatement and that he be made

whole by the NCSB. This ultimate result took a significant

amount of time expended by Ms. Aspros in mounting a successful

defense and a great deal of the amount of time she expended,

reflec ted by the time shown in her billing records, is directly

proportional to the importance Ms. Aspros attributed to the case

and to her client's circumstances.

The Pfohl court recognizes, in addition to the criteria

discussed above, that the quality of th e work produced is a

factor in assessing the reasonableness of an attorney's fee.

The preponderant evidence shows, as Mr. Traynham testified, that

Ms. Aspros displayed a high level of competency in performing

the work necessary to a successful conclusion for her client in

this case. This is one of the considerations he used in

computing a reasonable fee, in his opinion, and has been

considered by the administrative law judge in arriving at a

reasonable fee.

In summary, the undersigned has considered an d weighed the

testimony of record and has considered the factors enumerated in

the above findings of fact and the conclusions and legal

authority referenced above; See also Patients Compensation Fund

v. Rowe , 472 So. 2d 1145 (Fla. 1985). It is thus determ ined

that preponderant evidence and the above analysis establishes

that a reasonable fee is based upon reasonable and necessary

time expended of 293.54 hours which, when multiplied by the

accepted and reasonable rate of $150.00 per hour results in a

reason able attorney's fee to be awarded of $44,031.00.

Accordingly, having considered the preponderant evidence of

record, the above Findings of Fact and Conclusions of Law, the

candor and demeanor of the witnesses, and the pleadings and

arguments of the partie s, it is, therefore,

ORDERED:

That a reasonable attorney's fee of $44,031.00 is hereby

awarded to the Respondent, together with costs of $1,739.49,

which amount shall be paid by the Nassau County School Board to

Respondent's counsel, Ms. Aspros.

DONE AND ORDERED this 13th day of May, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 323 99 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of May, 2003.

ENDNOTE

1/ At the hearing, the parties erroneously identified the

Respo ndent as the Petitioner and vice versa. The style of this

case accurately reflects Mr. Miles as the Respondent represented

by Mr. Meyer and Ms. Aspros, and the Nassau County School Board

as the Petitioner, represented by Mr. Hayes. Throughout this

order the School Board will be referred to as the Petitioner and

Mr. Miles as the Respondent, to be consistent with their status

in the underlying case when it was before the undersigned.

Consequently, the identification of exhibits is hereby changed

so that th e Petitioner's exhibits shall be entitled Respondent's

exhibits and the Respondent's exhibits shall be entitled the

Petitioner's exhibits with the present respective numbering

remaining unchanged.

COPIES FURNISHED :

Brian T. Hayes, Esquire

Brian T. Hayes, P.A.

245 East Washington Street

Monticello, Florida 32344

Mary F. Aspros, Esquire

Meyer and Brooks, P.A.

2544 Blairstone Pines Drive

Post Office Box 1547

Tallahassee, Florida 32301

John L. Ruis, Ed.D

Superintendent of Schools

Nassau County School Dist rict

1201 Atlantic Avenue

Fernandina Beach, Florida 32034

Honorable Jim Horne

Commission of Education

The Capitol, Level 08

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

ent itled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original notice of appeal with the Clerk of the

Division of A dministrative Hearings and a copy, accompanied by

filing fees prescribed by law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.