97-003540F Ernest Sellars vs. Broward County School Board Status: Closed DOAH Final Order on Thursday, September 25, 1997.

Summary: Motion for attorneys fees failed to state statutory or other basis for award. Motion denied and case dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ERNEST SELLARS, )

)

Petitioner, )

)

vs. ) Case No. 97-3540F

)

BROWARD COUNTY SCHOOL BOARD )

)

Respondent. )

________________________________)

FINAL ORDER

THIS CAUSE came before the undersigned for consideration of

the Motion for Attorneys Fees and Costs filed with the Division

of Administrative Hearings ("Division") by Ernest Sellars on

July 31, 1997. In the motion, Mr. Sellars requested that he be

awarded attorney's fees and costs incurred for his defense in the

case of Frank Petruzielo, Superintendent of Broward County

Schools v. Ernest Sellars , DOAH Case No. 96-0322 (Final Order

entered August 5, 1997). In DOAH Case No. 96-0322, Mr. Sellars,

a teacher in the Broward County school system, prevailed in an

administrative proceeding in which he challenged the School

Board's proposed termination of his employment. Although the

motion carried the style and case number of this underlying case,

it was treated as a petition for attorney's fees, a new file was

opened, and the parties were re-aligned to reflect Ernest Sellars

as the Petitioner and the Broward County School Board ("School

Board") as the Respondent.

The case was assigned on August 5, 1997; counsel for

Mr. Sellars was contacted on August 6, 1997, and asked to contact

counsel for the School Board and arrange a telephone hearing for

the purpose of scheduling the formal hearing in this case. On

August 14, 1997, counsel for Mr. Sellars notified the

undersigned's office that a telephone hearing had been arranged

for August 18, 1997. Also on August 14, 1997, counsel for

Mr. Sellars filed a Motion to Set Hearing for Attorneys Fees and

Costs, and counsel for the School Board filed his Notice of

Appearance.

A telephone hearing was held on August 18, 1997, with

counsel for both parties in attendance. Counsel for the School

Board asked for leave to file a response to the motion/petition

no later than August 25, 1997; the request was granted without

objection, and counsel for Mr. Sellars stated that he would file

a reply no later than September 4, 1997. The School Board timely

filed its response to Mr. Sellars' motion/petition, in which it

requested that the Motion for Attorneys Fees and Costs be

dismissed; Mr. Sellars filed his answer to this response on

September 9, 1997.

Mr. Sellars bases his request for fees and costs on the

following allegations:

1. The Court entered an Order on April 10,

1997, following a 3 day trial wherein the

Respondent was exonerated of all charges

which alleged that he violated various

Florida Statutes and Broward County School

Board Policies.

2. The Court recommended that the Broward

County School Board enter a Final Order

dismissing the Administrative Complaint filed

by the superintendent, against Mr. Sellars.

3. The Court found that the Superintendent

failed to carry his burden of proof by a

preponderance of credible evidence.

4. The superintendent alleged in paragraphs

F, G, I, J, K, L and M that Mr. Sellars

physically abused students that were assigned

to his class and committed other alleged

violent acts, in violation of Broward County

School Board policies and Florida statutes.

There is no credible evidence that

Mr. Sellars committed any acts of violence

against his students, nor did he

inappropriately discipline them.

Additionally, the superintendent offered no

evidence at the formal hearing/trail to

support the aforementioned allegations made

by him. In fact, the Court found that the

Superintendent "failed to present any

evidence used as a basis of a finding of fact

that Mr. Sellars committed the acts alleged

in paragraphs F, G, I, J, K, L and M." The

aforementioned allegations were made for

[the] purpose [of] harassing the Respondent

and/or to increase the cost of litigation for

the Respondent, or for some other improper

purpose.

5. The Respondent was forced to obligate

himself to pay counsel for the extra time

required to prepare for and litigate against

aforementioned charges made by the

superintendent because he failed to dismiss

the allegations listed in his Complaint, at

paragraphs, F, G, I, J, K, L and M.

6. The superintendent did nothing to

propsecute [sic] the allegations listed in

his Complaint, at paragraphs F, G, I, J, K, L

and M. This evidence that these allegations

were baseless and/or unfounded. The

Respondent was forced to spend the time and

money to defend against them. If the

superintendent had dismissed them,

Mr. Sellars cost of litigation would have

been less. However, he did not and

Mr. Sellars cost of litigation was greater

because of this.

7. Mr. Sellars presented, to the

superintendent, the names and addresses of

witnesses who possessed facts, that were not

previously considered by the superintendent,

before he determined that he had probable

cause to believe that Mr. Sellars committed

the acts alleged. These facts would have

exonerated Mr. Sellars. The superintendent,

nor his committee interviewed any of the

witnesses before making a rush to judgment.

Therefore, the probable cause finding, by the

superintendent was faulty. The witnesses

were not interviewed intentionally, to

bolster the case against Mr. Sellars. This

evidences an improper purpose, or to harrass

[sic] the Respondent and/or increase his cost

of litigation.

8. Mr. Sellars prevailed at trial and is

entitled to attorney fees and cost

reimbursement because of the aforementioned

facts.

In its response to the motion/petition, the School Board

asserts both that Mr. Sellars is not entitled to an award of

attorney's fees and costs incurred in defending himself in the

underlying administrative action and that the Division of

Administrative Hearings does not have jurisdiction to award fees

in this case because Mr. Sellars did not "plead entitlement to

attorney's fees or costs at any time prior to or during the

administrative hearing." The School Board relies, first, on the

decision of the Florida Supreme Court in Stockman v. Downs , 573

So. 2d 835 (Fla. 1991), as authority for its position that, by

failing to plead entitlement, Mr. Sellars waived his claim for

attorney's fees and costs. The School Board further argues that

the Division does not have jurisdiction to decide Mr. Sellars'

motion/petition because, in contrast to the teacher in Krueger v.

School District of Hernando County , 544 So. 2d 331 (Fla. 5th DCA

1989), he did not request attorney's fees and costs either during

the hearing or in his proposed recommended order.

Finally, the School Board argues that, even if Mr. Sellars'

claim for attorney's fees and costs was properly presented in the

underlying proceeding, he would not be entitled to an award of

attorney's fees and costs pursuant to Section 120.595, Florida

Statutes (Supp. 1996), because he failed to prove that the

superintendent of schools brought the underlying administrative

action against him for an "improper purpose" and because no such

finding was included in the recommended order entered in the

underlying proceeding. In the alternative, the School Board

argues that the issue of the superintendent's "improper purpose"

was determined in the School Board's favor in the recommended

order entered in the underlying case in which it was concluded

only that "the evidence did not support the allegations contained

in the Administrative Complaint."

In his answer to the School Board's response, Mr. Sellars

sets out certain facts relating to his claim for attorney's fees

and costs. First, he states that he made his initial demand for

attorney's fees and costs to the School Board on April 28, 1997,

after the recommended order had been entered in the underlying

case and the matter was before the School Board for final agency

action. Mr. Sellars further states that he filed a motion with

the School Board on July 15, 1997, which included his claim for

an award of attorney's fees and costs but that, even though the

School Board voted to reinstate him, it refused to give him an

evidentiary hearing on his request for attorney's fees and costs.

Mr. Sellars cites the Final Order entered by the School Board on

August 5, 1997, in which it stated that "as to reasonable costs

and attorney's fees, those issues are not included in the

Recommended Order and is [sic] therefore rejected." Finally, he

states that he filed with the Division the Motion for Attorneys

Fees and Costs which is the subject of this proceeding on

July 25, 1997, after the School Board refused to give him an

evidentiary hearing on his request for attorney's fees and costs.

Mr. Sellars cites the holding in Krueger v. School Board of

Hernando County as authority for his entitlement to an

evidentiary hearing on his claim for attorney's fees and costs.

He argues that, like the teacher in Krueger , he raised the issue

of attorney's fees and costs "at least four times during the

administrative process": Once in his exceptions to the

recommended order filed with the School Board; once in the motion

he filed with the School Board; once in the motion/petition he

filed with the Division; and once in the Motion to Set a Hearing

for Attorneys Fees and Costs filed with the Division on

August 14, 1997. He also argues that, as in Krueger , his request

for attorney's fees and costs was denied by the School Board

without an evidentiary hearing.

Mr. Sellars argues that the issue of attorney's fees and

costs was not litigated at the final hearing in the underlying

case because the issues to be litigated in that hearing were

limited "to the issue of child abuse" and that he had not waived

his right to an evidentiary hearing on his claim for attorney's

fees and costs because he gave the School Board timely notice of

his demand for attorney's fees and costs by virtue of the

pleadings itemized in the previous paragraph. He cites Stockman

v. Downs for the proposition that it is not improper to

adjudicate attorney's fees after the merits of the underlying

case have been resolved and Procacci Commercial Realty, Inc., v.

Department of Health and Rehabilitative Services , 690 So. 2d 603

(Fla. 1st DCA 1997) for the proposition that, absent agreement of

the parties as to the amount of fees and costs, an evidentiary

hearing on this issue is required. Finally, Mr. Sellars disputes

the School Board's assertion that it was resolved in the

recommended order that the Superintendent did not have an

"improper purpose" in initiating the underlying action.

Based upon careful consideration of the grounds set out in

the Motion for Attorneys Fees and Costs, of the representations

and arguments of counsel in the response to the motion/petition

and in the answer to the response, and of statutory and case law,

it is concluded that the Motion for Attorneys Fees and Costs must

be denied and the case dismissed. There is simply no basis to

support Mr. Sellars' request for an evidentiary hearing and an

award of attorney's fees and costs under the circumstances

presented in this case.

First, Mr. Sellars admitted that he did not request

attorney's fees and costs until a recommended order had been

entered in the underlying case. Rather, he made his first

request for fees and costs to the School Board, which considered

the request and denied it without an evidentiary hearing in the

final order it entered on August 5, 1997. 1 Relief from this

final order can only be had through judicial review, as set out

in Section 120.68, Florida Statutes. Because Mr. Sellars is not

asking the Division to review the School Board's final order, the

request for an evidentiary hearing to determine attorney's fees

and costs presented herein can only be collateral to the

underlying case in which the School Board entered a final order. 2

Mr. Sellars has not cited any statutory or contractual basis

for his request for an award of attorney's fees and costs in the

motion/petition which is the basis for this administrative

proceeding. 3 He has, however, asserted that the School Board had

an "improper purpose" in including certain charges in the

Administrative Complaint.

The Administrative Procedures Act contains two provisions,

Sections 120.569(2)(c) and .595(1), Florida Statutes (Supp.

1996), which authorize an administrative law judge to award

attorney's fees and costs in a proceeding conducted, as was the

underlying case, pursuant to the provisions of Sections 120.569

and 120.57(1), Florida Statutes (Supp. 1996). Neither of these

provisions provides a basis for an award of attorney's fees and

costs in this case because no request for attorney's fees and

costs was made until after the recommended order was entered and

sent to the School Board for final agency action.

Section 120.569(2)(c), Florida Statutes (Supp. 1996),

formerly Section 120.57(1)(b)5, authorizes a presiding officer in

a case proceeding under Section 120.569 to impose sanctions upon

a party if it is found that the party filed a "pleading, motion,

or other paper" for an "improper purpose." The sanction may

include "reasonable expenses incurred because of the filing of

the pleading, motion, or other paper, including a reasonable

attorney's fee." In a proceeding under Section 120.57(1) in

which the presiding officer is an administrative law judge, the

finding of "improper purpose" must be included in the recommended

order since the decision of the administrative law judge to

impose sanctions against an agency cannot be rejected by the

agency and is subject to review only in a district court of

appeal in an appellate proceeding initiated under Section 120.68.

Department of Health and Rehabilitative Services v. S. G. , 613

So. 2d 1380, 1384-85 (Fla. 1st DCA 1993). Consequently, if

Mr. Sellars' claim for attorney's fees and costs is based on the

provisions of Section 120.569(2)(c), it cannot be adjudicated in

this collateral action. This provision would be applicable only

if the request had been made timely so that a finding on the

issue of "improper purpose" could be included in the recommended

order issued April 10, 1997.

Likewise, if Mr. Sellars' claim for attorney's fees and

costs is based on the provisions of Section 120.595(1), the claim

can not be adjudicated in this collateral action. Section

120.595(1) provides for an award of attorney's fees and costs to

a prevailing party if the "nonprevailing adverse party" is found

to have "participated in the proceeding for an improper purpose

as defined by this subsection and s. 120.569(2)(c)." First, the

statute, by its terms, requires that the determination of

"improper purpose" be made only "upon motion" and that the

determination of improper purpose be included in the recommended

order. Section 120.595(1)(b),(d), Florida Statutes. By his own

admission, Mr. Sellars raised the issue of attorney's fees and

costs for the first time before the School Board after the

recommended order had been entered and sent to the School Board

for final agency action.

Second, attorney's fees and costs in a case such as this

cannot be awarded against the School Board as a nonprevailing

adverse party. In Section 120.595(1)(e)3, a "nonprevailing

adverse party" is defined as "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." The School Board

is the agency proposing to take action against Mr. Sellars.

Therefore, even though Mr. Sellars was the prevailing party in

the underlying administrative action, the School Board is not a

"nonprevailing adverse party."

In addition to these two provisions of Chapter 120,

attorney's fees and costs may be awarded by an administrative law

judge pursuant to the Florida Equal Access to Justice Act

("Act"), Section 57.111, Florida Statutes. A prevailing small

business party can file a claim for attorney's fees and costs

under this section by filing a petition with the Division of

Administrative Hearings "within 60 days after the small business

party becomes a prevailing small business party." Section

57.111(4)(b). The statute and Rule 60Q-2.035, Florida

Administrative Code, prescribe the contents of a petition for

attorney's fees and costs under the Act. Mr. Sellars'

motion/petition contains none of the allegations required by

statute and rule to establish entitlement to an award.

Furthermore, Mr. Sellars cannot, as a matter of law,

establish that he is a "prevailing small business party" as that

term is defined in Section 57.111(3)(c),(d). In Thompson v.

Department of Health and Rehabilitative Services , 533 So. 2d 840,

840 (Fla. 1st DCA 1988), the court stated that it "reject[ ed]

Thompson's contention that a state employee involved in a

regulatory proceeding to determine his eligibility for continued

employment is entitled to the protection of this act [Florida

Equal Access to Justice Act]." The court further observed that

"[b]y definition, the Florida Equal Access to Justice Act does

not apply to individual employees such as Thompson." 4

The issue of fees and costs was not addressed in the

recommended order in the underlying case because the issue was

not raised by pleading or otherwise in the proceedings before the

Division. Had Mr. Sellars timely requested attorney's fees and

costs pursuant to Section 120.569(2)(c), his claim could have

been evaluated and, if appropriate, a finding of "improper

purpose" included in the recommended order. However, Mr. Sellars

did not plead entitlement to attorney's fees and costs or

otherwise give the School Board notice that he was seeking fees

and costs until after the recommended order in his employment

termination action had been entered and the case was before the

School Board for final agency action. Upon consideration of

Mr. Sellars' request for attorney's fees and costs, the School

Board refused to remand the case to the Division for an

evidentiary hearing and a determination of the amount of fees and

costs because it denied Mr. Sellars' request. If Mr. Sellars'

believed this action was in error, the appropriate remedy was

through the appellate process set out in Section 120.68.

Mr. Sellars has cited no authority which vests jurisdiction in

the Division to resolve the issue of attorney's fees and costs

under the circumstances herein.

CONCLUSION

Based on the foregoing, the Motion for Attorneys Fees and

Costs is denied, and this case is dismissed.

DONE AND ENTERED this 25th day of September, 1997, in

Tallahassee, Leon County, Florida.

___________________________________

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of September, 1997.

ENDNOTES

1/ Mr. Sellars' reliance on Krueger v. School District of

Hernando County , to support his argument that he is entitled to

an evidentiary hearing before an administrative law judge on the

motion/petition filed July 31, 1997, is misplaced. Importantly,

the decision in Krueger was rendered on appeal from the school

board's order refusing to remand the case back to the hearing

officer for an evidentiary hearing and denying the request for

attorney's fees. It is clear from the district court's

recitation of the facts in Krueger that the four requests for

attorney's fees in that case were made prior to entry of the

recommended order. The appellate court found that, under these

circumstances, it was error to refuse to remand the case to the

hearing officer for an evidentiary hearing on attorney's fees and

ordered the school board to do so.

2/ In this respect, Mr. Sellars' reliance on Stockman v. Downs

and Procacci Commercial Realty, Inc. v. Department of Health and

Rehabilitative Services is misplaced. In Stockman , the court

observed that, when a proper and timely request for attorney's

fees is made, "it is not improper to adjudicate entitlement to

attorney's fees after resolution of the other claims." 573 So.

2d at 837. In Procacci , the claim for attorney's fees and costs

was presented to the administrative law judge in "a motion to

dismiss/petition for attorney's fee, damages, and costs" filed

pursuant to Section 120.57(1)(b)5, now Section 120.569(2)(c).

690 So. 2d at 607.

3/ In an administrative as well as a civil proceeding, an award

of attorney's fees generally must be based on a right granted by

statute or by contract. Dade County v. Pena , 664 So. 2d 959

(Fla. 1995); Jory v. Department of Professional Regulation , 583

So. 2d 1075, 1077-78 (Fla. 1st DCA 1991). Several district

courts have held, however, that school boards have the authority

to award attorneys fees and costs in the absence of a statutory

or contractual provision. In Sulcer v. McFatter , 497 So. 2d

1349, 1350 (Fla. 4th DCA 1986), the court held that "a county

school board has the discretionary authority to award attorney's

fees and costs to an employee who prevails in an administrative

proceeding." The court concluded that this authority derives

from the provision of section 230.03(2), Florida Statutes, which

provides that a school board "may exercise any power except as

expressly prohibited by the State Constitution or general law."

Id . See also Davis v. School Board of Gadsden County , 646 So. 2d

766, 769 (Fla. 1st DCA 1994)("school boards have authority to pay

fees and costs incurred by employees in circumstances like these

[employee reinstated after an evidentiary hearing in a

termination proceeding]"; "the School Board could lawfully have

reimbursed appellant for the attorney's fees he incurred, Krueger

v. School District of Hernando County , 544 So 2d 331 (Fla. 5th

DCA 1989); Sulcer v. McFatter , 497 So. 2d 1349 (Fla. 4th DCA

1986)"). Mr. Sellars has not cited any authority recognizing a

similar discretionary power in the Division of Administrative

Hearing.

4/ Even if Mr. Sellars were to fit within the definition of a

small business party with respect to an endeavor outside his

employment as a teacher in the Broward County school system, he

would not be entitled to fees under the Act because the "final

judgment or order" must be entered "in favor of the small

business party." Section 57.111(3)(c)1. Mr. Sellars

participated in the administrative proceeding in the underlying

case solely as an employee of the School Board.

COPIES FURNISHED:

Willie Jones, Esquire

One River Plaza, Suite 721

305 South Andrews Avenue

Fort Lauderdale, Florida 33409

Charles T. Whitelock, Esquire

WHITELOCK & ADAMS, P.A.

Barnett Bank Plaza, Suite 601

Fort Lauderdale, Florida 33301

Frank R. Petruzielo, Superintendent

Broward County School Board

600 Southeast Third Avenue

Fort Lauderdale, Florida 33301-3125

Frank T. Brogan

Commissioner of Education

The Capitol

Tallahassee, Florida 32399-0400

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 proceedings are governed by the Florida Rules Of Appellate

Procedure. Such proceedings are commenced by filing one copy of

a notice of appeal with the Agency Clerk of the Division of

Administrative Hearings and a second 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.

1 Mr. Sellars' reliance on Krueger v. School District of

Hernando County , to support his argument that he is entitled to a

hearing before an administrative law judge on the motion/petition

filed July 31, 1997, is misplaced. Importantly, the decision in

Krueger was rendered on appeal from the school board's order

refusing to remand the case back to the hearing officer for an

evidentiary hearing and denying the request for attorney's fees.

It is clear from the district court's recitation of the facts in

Krueger that the four requests for attorney's fees in that case

were made prior to entry of the recommended order. The appellate

court found that, under these circumstances, it was error to

refuse to remand the case to the hearing officer for an

evidentiary hearing on attorney's fees and ordered the school

board to do so.

2 In this respect, Mr. Sellars' reliance on Stockman v. Downs

and Procacci Commercial Realty, Inc. v. Department of Health and

Rehabilitative Services is misplaced. In Stockman , the court

observed that, when a proper and timely request for attorney's

fees is made, "it is not improper to adjudicate entitlement to

attorney's fees after resolution of the other claims." 573 So.

2d at 837. In Procacci , the claim for attorney's fees and costs

was presented to the administrative law judge in "a motion to

dismiss/petition for attorney's fee, damages, and costs" filed

pursuant to Section 120.57(1)(b)5, now Section 120.569(2)(c).

690 So. 2d at 607.

3 In an administrative as well as a civil proceeding, an award

of attorney's fees generally must be based on a right granted by

statute or by contract. Dade County v. Pena , 664 So. 2d 959

(Fla. 1995); Jory v. Department of Professional Regulation , 583

So. 2d 1075, 1077-78 (Fla. 1st DCA 1991). Several district

courts have held, however, that school boards have the authority

to award attorneys fees and costs in the absence of a statutory

or contractual provision. In Sulcer v. McFatter , 497 So. 2d

1349, 1350 (Fla. 4th DCA 1986), the court held that "a county

school board has the discretionary authority to award attorney's

fees and costs to an employee who prevails in an administrative

proceeding." The court concluded that this authority derives

from the provision of section 230.03(2), Florida Statutes, which

provides that a school board "may exercise any power except as

expressly prohibited by the State Constitution or general law."

Id . See also Davis v. School Board of Gadsden County , 646 So. 2d

766, 769 (Fla. 1st DCA 1994)("school boards have authority to pay

fees and costs incurred by employees in circumstances like these

[employee reinstated after an evidentiary hearing in a

termination proceeding]"; "the School Board could lawfully have

reimbursed appellant for the attorney's fees he incurred, Krueger

v. School District of Hernando County , 544 So 2d 331 (Fla. 5th

DCA 1989); Sulcer v. McFatter , 497 So. 2d 1349 (Fla. 4th DCA

1986)."). Mr. Sellars has not cited any authority recognizing a

similar discretionary power in the Division of Administrative

Hearing.

4 Even if Mr. Sellars fits within the definition of a small

business party with respect to an endeavor outside his employment

as a teacher in the Broward County school system, he would not be

entitled to fees under the Act because the "final judgment or

order" must be entered "in favor of the small business party."

Section 57.111(3)(c)1. Mr. Sellars participated in the

administrative proceeding in the underlying case solely as an

employee of the School Board.