15-001803F Randall B. Johnson vs. Department Of Corrections Status: Closed DOAH Final Order on Wednesday, September 30, 2015.

Summary: Petitioner is not entitled to attorney's fees award pursuant to sections 120.595, Florida Statutes, because DOC is not a non-prevailing adverse party.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RANDALL B. JOHNSON,

Petitioner,

vs. Case No. 15 - 1803F

DEPARTMENT OF CORRECTIONS,

Respondent.

_______________________________/

FINAL ORDER

Pursuant to notice, a formal hearing was held in this case

on July 28, 2015, in Tallahassee, Florida, before W. David

Watkins, a designated Administrative Law Judge of the Divisio n

of Administrative Hearings.

APPEARANCES

For Petitioner: M. Linville Atkins, Esquire

Theresa A. Flury, Esquire

Flury & Atkins, LLC

725 East Park Avenue

Tallahassee, Florida 32301

For Respondent: Todd Evan Studley, Esquire

Pamela Leatrice Hatcher, Esquire

Florida Department of Corrections

The Carlton Building

501 South Calhoun Street

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether pursuant to section 120.595, Florida Statutes

(2015) , 1/ Petitioner, Randall B. Johnson (Johnson) , should be

awarded reasonable costs and attorneyÓs fees incurred in defense

of an administrative proceeding initiated by Respondent.

PRELIMINARY STATEMENT

This matter came before the Division of Administrative

He arings (DOAH) on April 2, 2015 , when the Public Employees

Relation Commission (PERC) referred an ÐOrder Vacating Agency

Action and Referring AttorneyÓs Fees Petition to the Division of

Administrative HearingsÑ (PERC Order). The referral transmittal

letter accompanying the PERC Order st ated in pertinent part

that:

This order grants Randall B. JohnsonÓs

request that his petition for attorneyÓs

fees and costs filed pursuant to Section

120.595, Florida Statutes, against the

Department of Corrections be referred to the

Division of Administr ative Hearings (DOAH)

for resolution. This petition arises from a

career service appeal in which Mr. Johnson

challenged his dismissal from the Department

of Corrections. The dismissal action was

subsequently rescinded by the Department of

Corrections.

On May 5, 2015, the undersigned issued a Notice of Hearing

setting this matter for final hearing on June 25, 2015, in

Tallahassee , Florida . However, on June 8, 2015 , Respondent

filed an unopposed motion for continuance. That motion was

granted, and the h earing was rescheduled for July 8, 2015.

Prior to the hearing, Petitioner filed affidavits of reasonable

attorneyÓs fees and costs from M. Linville Atkins and Theresa A.

Flury. Billing records were attached to each of the affidavits.

On July 27, 2015, t he Department of Corrections (DOC or Agency )

filed a unilateral prehearing statement.

The hearing convened on July 28, 2015 , as scheduled.

Petitioner called Christopher Atkins, James Padgett, Marcia

Johnson, Todd Studley , and Elizabeth Willis. In additi on,

Johnson testified on his own behalf and offered five exhibits

which were received in evidence. Official recognition was taken

of Florida Administrative Code R ule 60L - 36.005. Respondent did

not call any witnesses or offer any exhibits in evidence.

A court reporter was not present at the hearing, and

accordingly, no hearing transcript has been filed with DOAH.

At the conclusion of the hearing , the parties requested

that they be given 15 days from the date of hearing to file

proposed orders. That requ est was granted, and both parties

subsequently timely filed proposed orders.

FINDINGS OF FACT

1. The procedural history of the underlying action is set

forth in the PERC Order, and includes a majority of the relevant

facts , which are not in dispute. Fi ndings of Fact 2 through 9

below are taken directly from the PERC Order.

2. On September 19, 2014, the Department of Corrections

(Agency) dismissed Randall B. Johnson pursuant to the

extrao rdinary dismissal procedure in s ection 110.227(5)(b),

Florida Sta tutes. The final action letter (September 19 Letter)

alleged that, four years earlier, on or about Septemb er 19,

2010, Johnson inappropriately participated in a use of force

incident that resulted in the death of an inmate. Johnson was

also informed that a copy of the investigation upon which the

charge was based would be available when it was completed.

3. On September 24, 2014, Franklin Correctional

Institution Warden , Christopher G. Atkins , contacted Johnson and

informed him that the September 19 Lett er was inaccurate and the

Agency needed to send him a corrected final action letter

(September 24 Letter). Atkins did not read the letter to

Johnson or tell him the substance of the allegations against

him. The amended final action letter was sent to Joh nson by

certified mail.

4. On September 29, 2014, Johnson filed an appeal with the

Commission challenging his dismissal , based on the September 19

Letter. Johnson stated in his appeal: "I was not involved in a

use of force incident that resulted in the death of an inmate,

as I was not working on September 19, 2010." A hearing officer

was appointed and a hearing was scheduled.

5. On October 1, 2014, the Agency filed a Notice of

Correct ed Final Action Letter with the Commission asserting

"that due to a clerical error, certain information contained in

the letter issued to the Employee on September 19, 2014, was

incorrect . . . ." The amended final action letter, dated

September 24, 2014, deleted the factual allegations from the

September 19 Letter and substituted the following:

Specifically, on or about June 6, 2013, the

Office of the Inspector General received

information alleging improper conduct of

some of its officers. Further invest igation

into the allegation revealed that you

submitted an inaccurate or untruthful

report, introduced contraband into Franklin

Correctional Institution, and engaged in an

unprofessional relationship with former

inmate and current supervised offender , Luke

Gruver/U01117.

The basis for these charges is contained in

an on - going investigation by the Inspector

General's Office, Case Number 13 - 7092; copy

available upon completion.

6. On October 6, 2014, Johnson filed a motion for summary

judgment and/or judg ment on the pleadings and a motion for

attorney's fees and costs. On October 22 , 2014 , the hearing

officer issued an order which, among other things, denied the

motions filed by Johnson on October 6 , 2014 . On October 28,

2014, Johnson filed a motion to d ismiss and motion for

attorney's fees. This pleading was followed on November 4,

2014 , by an amended motion to dismiss and motion for attorney's

fees. A hearing on Johnson's motions was held on February 2,

2015.

7. On February 4, 2015 , the hearing offic er issued an

order concluding that the September 24 Letter was vague and that

Johnson was prejudiced in his ability to defend himself by its

vagueness. Therefore, he denied the Agency's attempt to amend

the September 19 Letter with the September 24 Letter . The

hearing officer also determined that the September 19 Letter was

sufficiently detailed to provide Johnson with notice of the

charges against him. The Agency was directed to respond and

state whether it intended to proceed to a hearing on the

allega tions in the September 19 Letter. Finally, the hearing

officer deferred ruling on whether the A gency violated s ection

112.532(6), Florida Statutes, the Law Enforcement Officers' and

Correctional Officers' Bill of Rights, and whether Johnson was

entitled t o an award of attorney's fees pursuant to s ection

120.595 .

8. On February 11, 2015 , the Agency filed a notice with

the Commission that it was rescinding the September 19 Letter,

marking it void, and reinstating Johnson on February 13, 2015 ,

to the position of correctional officer at Franklin Correctional

Institution. The Agency also requested that the Commission

schedule a back - pay hearing. On February 13, 2015 , Johnson

filed an objection to the Agency's request for a back - pay

hearing and renewed his request for an award of attorney's fees

and costs.

9. On February 17, 2015 , the hearing officer issued his

recommended order concluding that Johnson was entitled to

reinstatement, back pay, and other benefits, as well as interest

at the lawful rate, commencing on September 19, 2014. He also

determined that the Commission did not have jurisdiction to

consider the issue of attorney's fees pursuant to s ection

120.595 , because that statute only authorizes fee awards to be

made by an Administrative Law Judge (ALJ) . However, he

recommended two alternative methods for the attorney's fees

issue to be referred to an ALJ at DOAH. On February 25, 2015 ,

Johnson filed five exceptions to the recommended order. A

transcript of the February 2 , 2015 , motion hearing was filed.

10 . In one of his exceptions to the recommended order,

Johnson challenged the hearing officerÓs conclusion that PERC

does not have jurisdiction to award attorneyÓs fees and costs

pursuant to s ection 120.595, because such a determination can

only be made by an ALJ. The PERC Order sustained the hearing

officerÓs conclusion that PERC does not have the authority to

consider an attorneyÓs fees request made pursuant to section

120.595. It also adopted the hearing officerÓs recommendation

tha t the request for attorneyÓs fees and costs be referred to

DOAH for consideration by an ALJ. Accordingly, the PERC Order

Ðshall serve as the CommissionÓs referral to DOAH of JohnsonÓs

request for attorneyÓs fees and costs from the Agency pursuant

to Secti on 120.595, Florida Statutes.Ñ

11 . The Notice of Corrected Final Action Letter filed by

DOC with PERC dated October 1, 2014 , sought to replace the

September 19 Letter with the September 24 Letter. The Correct ed

Final Action Letter stated DO C was filing a Ðcorrected final

actionÑ necessitated by a Ðclerical error. Ñ In fact, the

September 24 Letter does not correct clerical errors but rather

makes completely different factual allegations and charges

against Johnson and references the date of the incident ( or

incidents) as 2013.

12 . The extensive procedural history of this case, which

includes a recitation of all the pleadings filed by the parties

and the arguments therein, is set forth in the CommissionÓs

Order Vacating Agency Action and Referring A ttorneyÓs Fees

Petition to DOAH . As noted, the PERC Order refers this case to

DOAH for consideration of the issue of attorneyÓs fees and

costs.

13 . All pleadings filed by Johnson in both the

disciplinary case and the back - pay case before PERC were

prepar ed and filed on his behalf by the law firm of Flury &

Atkins. The billing statements admitted into evidence during

the DOAH proceeding reflect the time spent by counsel

researching and drafting motions and proposed orders in the

discipline and back - pay ca ses , as well as the time spent

reviewing the pleadings of the Agency, and the orders of the

PERC hearing officer.

14 . Attorney Elizabeth Willis, a former PERC hearing

officer, testified that the issues presented in JohnsonÓs cases

before PERC were unique and difficult. Ms. Willis testified she

reviewed the pleadings and orders of the underlying cases before

PERC , as well as the Billing Statement of Flury & Atkins, LLC.

Based upon her review and her knowledge of PERC proceedings and

the law in this area, s he concluded the hours expended by

counsel and the hourly rates charged were reasonable.

15 . While DOC asserted in its Proposed Recommended Order

that the amount of attorneyÓs fees and costs being sought by

Johnson is excessive, it presented no evidence t o support its

contention. Rather, the unrebutted evidence of record

established that the reasonable attorneyÓs fees and costs

incurred by Johnson in the proceedings before PERC was

$12,431.00.

CONCLUSIONS OF LAW

16 . The Division of Administrative Hearin gs has

jurisdiction over the parties and the subject matter of this

proceeding. S. 120.57(1) and 120.595(1), Fla. Stat.

17 . This matter was referred by PERC to DOAH to determine

JohnsonÓs entitlement to attorneyÓs fees and costs pursuant to

section 120.5 95, 2/ which provides:

(1) CHALLENGES TO AGENCY ACTION PURSUANT TO

SECTION 120.57 (1). Ï

(a) The provisions of this subsection are

supplemental to, and do not abrogate, other

provisions allowing the award of fees or

costs in administrative proceedings.

(b) The final order in a proceeding

pursuant to s . 120.57 (1) shall award

reasonable costs and a reasonable attorneyÓs

fee to the prevailing party only where the

non - prevailing adverse party has been

determined by the administrative law judge

to have parti cipated in the proceeding for

an improper purpose.

( c) In proceedings pursuant to

s. 120.57 (1), and upon motion, the

administrative law judge shall determine

whether any party participated in the

proceeding for an improper purpose as

defined by this subsection. In making such

determination, the administrative law judge

shall consider whether th e non - prevailing

adverse party has participated in two or

more other such proceedings involving the

same prevailing party and the same project

as an adverse party and in which such two or

more proceedings the non - prevailing adverse

party did not establish either the factual

or legal merits of its position, and shall

consider whether the factual or legal

position asserted in the instant proceeding

would have been cognizable in the previous

proceedings. In such event, it shall be

rebuttably presumed that the non - prevailing

adverse party participated in the pending

proceeding for an improper purpose.

(d) In any proceeding in which the

administrative law judge determines that a

party participated in the proceeding for an

improper purpose, the recommended orde r

shall so designate and shall determine the

award of costs and attorneyÓs fees.

(e) For the purpose of this subsection:

1. ÐImproper purposeÑ means participation

in a proceeding pursuant to s. 120.57 (1)

primarily to harass or to cause unnecessary

delay or for frivolous purpose or to

needlessly increase the cost of litigation,

licensing, or securing the approval of an

activity.

2. ÐCostsÑ has the same meaning as the

costs allowed in civil actions in this state

as provided in chapter 57.

3. ÐNonp revailing adverse partyÑ means a

party that has failed to have substantially

changed the outcome of the proposed or final

agency action which is the subject of a

proceeding. In the event that a proceeding

results in any substantial modification or

conditi on intended to resolve the matters

raised in a partyÓs petition, it shall be

determined that the party having raised the

issue addressed is not a non - prevailing

adverse party. The recommended order shall

state whether the change is substantial for

purpose s of this subsection. In no event

shall the term Ðnonprevailing partyÑ or

Ðprevailing partyÑ be deemed to include any

party that has intervened in a previously

existing proceeding to support the position

of an agency.

18 . When construing a statute, one looks first to the

statute's plain meaning. Moonlit Waters Apts., Inc. v. Cauley ,

666 So. 2d 898, 900 (Fla. 1996). Furthermore, "[w]hen the

language of the statute is clear and unambiguous and conveys a

clear and definite meaning, there is no occasion fo r resorting

to the rules of statutory interpretation and construction; the

statute must be given its plain and obvious meaning." Holly v.

Auld , 450 So. 2d 217, 219 (Fla. 1984) (citing A.R. Douglass,

Inc. v. McRainey , 137 So. 157, 159 (1931)).

19 . Attorney's fees and costs in a case such as this

cannot be awarded against DOC as a non - prevailing adverse party .

In s ection 120.595(1)(e)3 . , a "nonprevailing adverse party" is

defined as "a party that has failed to have substantially

changed the outco me of the proposed or final agency action which

is the subject of a proceeding." DOC is the agency proposing to

take action against Johnson (dismissal). 3/ Therefore, even

though Johnson was arguably the prevailing party in the

underlying administrative action, DOC is not a "nonprevailing

adverse party." See Ernest Sellar s v. Broward C nty . Sch . Bd . ,

Case No. 97 - 3540F (Fla. DOAH Sept. 25, 1997). Stated

diffe rently, DOC , by definition , cannot be a non - prevailing

adverse party since it is the agency that is proposing to take

action, not a party that is trying to change the proposed

action. See Rafael R. Palacios v. DepÓt of Bus. and ProfÓl

Reg . , DOAH Case No. 99 - 4163 , et seq . (November 20, 2000). 4/

20 . Inasmuch as Respondent cannot be a non - prevailing

adverse party in this instance , it is unnecessary for the

undersigned to determine whether Respondent participated in the

proceeding for an improper purpose as that term is defined in

section 120.595(1)(e)1 .

21 . Johnson is not entitled to attorneyÓs fees pursuant to

s ection 120.595 .

OR DER

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is ORDERED the claim of Petitioner for attorneyÓs

fees and costs pursuant to se ction 120.595 is dismissed.

DONE AND ORDERED this 30th day of September , 2015 , in

Tallahassee, Leon Cou nty, Florida.

S

W. DAVID WATKINS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.s tate.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of September , 2015 .

ENDNOTES

1 / Unless otherwise noted, statutory references are to the 2015

version of the Florida Statutes.

2 / I n his Motion for AttorneyÓs Fees and Costs filed October 6,

2014, Petitioner also cited section 120.569, Florida Statutes

(2014) , as authority for an award of attorneyÓs fees and costs.

Section 120.569(2)(e) provided :

(e) All pleadings, motions, or other papers

filed in the proceeding must be signed by

the party, the partyÓs attorney, or the

partyÓs qualified representative. The

signature constitutes a certificate that the

person has read the pleading, motion, or

other pap er and that, based upon reasonable

inquiry, it is not interposed for any

improper purposes, such as to harass or to

cause unnecessary delay, or for frivolous

purpose or needless increase in the cost of

litigation. If a pleading, motion, or other

paper is signed in violation of these

requirements, the presiding officer shall

impose upon the person who signed it, the

represented party, or both, an appropriate

sanction, which may include an order to pay

the other party or parties the amount of

reasonable expe nses incurred because of the

filing of the pleading, motion, or other

paper, including a reasonable attorneyÓs

fee.

Unlike section 120.595, the above provi sion authorized the

Ðpresiding officerÑ (who is not necessarily an ALJ) to award

attorneyÓs fees against a party who has filed a pleading,

motion, or other papers for an improper purpose. Thus, had the

PERC hearing officer determined that any of the papers filed by

DOC in the dismissal appeal were interposed for any improper

purpose , she would have been authorized by section 120.569(2)(e)

to impose sanctions, including the award of reasonable

attorneyÓs fees, while that matter was pending before her.

3/ The billing rec ords of Flury & Atkins reflect 6.25 billable

hours ($2,187.50) following iss uance of the hearing officerÓs

R ecommended O rder on February 17, 2015 , recommending

reinstatement, back pay, other benefits , and interest. Those

legal efforts appear to be related to a back - pay hearing.

However, the record is devoid of any evidence as to who the

prevailing or non - prevailing party at the back - pay hearing may

have been, or even if the parties disagreed as to the

appropriate amount of back pay.

4 / The inherent unfairness of an agency being immunized from an

award of attorneyÓs fees and costs where, as here, a Petitioner

successfully contests the proposed agency action is tr oubling.

However, as noted, ALJ s are required to apply the law as

written, n ot as they would have it written. Rather, correcting

the current inequity of section 120.595(1)(e)3 . is sol ely within

the province of the L egislature.

COPIES FURNISHED :

Theresa A. Flury, Esquire

Flury & Atkins, LLC

725 East Park Avenue

Tallahassee, Florida 32301

(eServed)

M. Linville Atkins, Esquire

Flury & Atkins, LLC

725 East Park Avenue

Tallahassee, Florida 32301

(eServed)

Pamela Leatrice Hatcher, Esquire

Florida Department of Corrections

The Carlton Building

501 South Calhoun Street

Tallahass ee, Florida 32399

(eServed)

Todd Evan Studley, Esquire

Florida Department of Corrections

The Carlton Building

501 South Calhoun Street

Tallahassee, Florida 32399

(eServed)

Barry E. Dunn, Clerk of Commission

Public Employees Relations Commission

Suite 300

4708 Capital Circle Northwest

Tallahassee, Florida 32303

(eServed)

Stephen Meck, General Counsel

Public Employees Relations Commission

Suite 300

4708 Capital Circle Northwest

Tallahassee, Florida 32303

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to section 120.68, Florida

Statutes. Review pr o ceedings are governed by the Florida Rules

of Appel late Procedure. Such proceedings are commenced by

fili ng the original notice of administrative appeal with the

agency clerk of the Division of Administrative Hearings within

30 days of rendition of the order to be r e viewed, and a copy of

the notice, accompanied by any filing fees prescribed by law,

with the c lerk of the District Court of Appeal in the appellate

district where the agency maintains its he a dquarters or where a

party resides or as otherwise provided by law.