Werthman v. School Bd. of Seminole County, Fla., 91-1821

• Decision Date: 15 May 1992
• Docket Number: No. 91-1821,91-1821
• Citation: 599 So.2d 220
• Parties: Thomas M. WERTHMAN, Appellant, v. SCHOOL BOARD OF SEMINOLE COUNTY, FLORIDA, Appellee. 599 So.2d 220, 75 Ed. Law Rep. 683, 17 Fla. L. Week. D1245
• Court: Florida District Court of Appeals

Page 220

599 So.2d 220

Thomas M. WERTHMAN, Appellant, v. SCHOOL BOARD OF SEMINOLE COUNTY, FLORIDA, Appellee.

No. 91-1821.

599 So.2d 220, 75 Ed. Law Rep. 683, 17 Fla. L. Week. D1245

District Court of Appeal of Florida,

Fifth District.

May 15, 1992.

John J. Chamblee, Jr., Tampa, for appellant.

Ned N. Julian, Jr., Stenstrom, McIntosh, Julian, Colbert, Whigham & Simmons, P.A., Sanford, for appellee.

PER CURIAM.

Thomas Werthman (Werthman) appeals from a final order issued by the School Board of Seminole County, Florida (the Board), denying him back pay for the 1991 summer session and denying him reimbursement for the costs and attorney's fees that he incurred in connection with the reinstatement hearing. We affirm.

Werthman was employed by the Board as a teacher at Lake Brantley High School. In May 1990, the Board suspended him without pay based on allegations of sexual misconduct involving a student. Werthman requested and was granted an administrative hearing under Chapter 120, Florida Statutes (1989), in connection with the termination proceeding brought by the Board under section 231.36(3)(e), Florida Statutes (1989). The hearing officer found that the evidence failed to support the Board's allegations and recommended to reinstate Werthman to his position and to award him the back pay and benefits which had been withheld from the date of his suspension.

Based on the hearing officer's recommendations, Werthman applied to the Board for reinstatement and requested attorney's fees under sections 230.234 and 448.08, Florida Statutes (1989). Werthman also sought "payment of all monies he would have earned teaching summer school but for his suspension." The Board voted unanimously to adopt the hearing officer's recommendations and reinstated Werthman in April 1991. The Board initially assigned Werthman to the Student Museum in Sanford, Florida and retained jurisdiction for the purpose of determining Werthman's entitlement to benefits and fees.

At a special hearing on June 6, 1991, the Board considered the testimony of three witnesses, including Werthman, concerning the likelihood that Werthman would have taught summer school at Lake Brantley in 1990 but for his suspension. The Board also considered whether Werthman would have been able to teach summer school at Lake Brantley during the 1991 summer session despite his reassignment to the Student Museum in Sanford. Although Werthman testified that his "understanding" was that he could not apply to teach summer school at Lake Brantley unless he was teaching in that system, he admitted that he had not applied anywhere to teach summer school for the 1991 summer session.

At a second hearing on July 16, 1991, the Board awarded Werthman back pay for the 1990 summer session after finding that he would have taught summer school during 1990 but for his suspension. However, the Board found that Werthman was not entitled to back pay for the 1991 summer session. The Board further denied Werthman's request for attorney's fees and costs after the Board's Special Counsel advised them that the law provided no basis for such an award.

On appeal from the Board's final order, Werthman contends that he was entitled to an award of attorney's fees and costs under section 448.08, Florida Statutes (1989), which provides:

The court may award to the prevailing party in an action for unpaid wages [the] costs of the action and a reasonable attorney's fee.

However, Werthman's reliance on this statute is misplaced. Section 448.08 provides for the payment of attorney's fees in an "action" involving accrued, but unpaid wages. We decline to extend its reach to administrative proceedings such as those involved here. See Chavez v. City of Tampa, 560 So.2d 1214 (Fla. 2d DCA), review denied, 576 So.2d 285 (Fla.1990). We note that other courts have utilized this statute to award attorney's fees in connection with administrative proceedings. See Greene v. School Bd. of Hamilton County, 501 So.2d 50 (Fla. 1st DCA 1987); Doyal v. School Bd. of Liberty County, 415 So.2d 791 (Fla. 1st DCA 1982). Cf. Metropolitan Dade County v. Stein, 384 So.2d 167 (Fla. 3d DCA 1980). However, none of these cases expressly considers whether an administrative hearing is the equivalent of an "action" within the meaning of section 448.08. Furthermore, none of these cases involves termination proceedings brought by a school board under Chapter 231, which does not involve proceedings to recover "unpaid wages," except in the most tangential sense.

Werthman also contends that he was entitled to attorney's fees under section 230.234, Florida Statutes (1989), which provides in pertinent part:

The school boards of the several districts are authorized to provide legal services for officers and employees of said boards who are charged with civil or criminal actions arising out of and in the course of the performance of assigned duties and responsibilities. The school board shall provide for reimbursement of reasonable expenses for legal services for officers and employees of said boards who are charged with civil or criminal actions arising out...