STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD,

Petitioner,

vs.

ROBERT VANDEVENTER,

Respondent.

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) Case No. 04-4095

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RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on June 28 through 30, 2005, in Fort Myers, Florida, before Lawrence P. Stevenson, the designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: J. Paul Carland, II, Esquire

Lee County School Board 2055 Central Avenue

Fort Myers, Florida 33901-3916

Jason L. Odom, Esquire

Thompson Sizemore & Gonzalez P.A.

501 E. Kennedy Boulevard Suite 1400

Tampa, Florida 33602

For Respondent: Robert J. Coleman, Esquire

Coleman & Coleman Post Office Box 2089

Fort Myers, Florida 33902-2089

STATEMENT OF THE ISSUE

The issue is whether Petitioner, the Lee County School Board, may terminate Respondent's employment as an instructional employee based upon the conduct alleged in the Petition for Termination of Employment.

PRELIMINARY STATEMENT

On October 13, 2004, the Lee County School Board (the "School Board") filed a Petition for Termination of Employment (the "Petition") of Respondent, setting forth the allegations justifying the termination of Respondent's employment as an instructional employee. The Petition specifically alleged that Respondent committed sexual battery on a mentally handicapped student during the 2003-2004 school year. The Petition concluded that this activity violated Section 1012.33, Florida Statutes (2004), and/or Florida Administrative Code Rules 6B-

1.001 and 6B-4.009, in that it was "immoral" and as such was "just cause" for Respondent's termination.

On October 29, 2004, Respondent's counsel filed a letter contesting the charges and requesting a formal hearing. At a meeting on November 4, 2004, the School Board voted to suspend Respondent without pay and benefits pending termination of his employment. On November 5, 2004, the School Board referred the matter to the Division of Administrative Hearings ("DOAH") for

the assignment of an Administrative Law Judge and to conduct a formal hearing.

On January 3, 2005, Respondent filed a Motion for Attorney's Fees and Costs pursuant to Subsections 120.569(2)(e) and 57.105(1) and (3) and Section 120.595, Florida Statutes (2004). On March 7, 2005, Respondent filed an Amended Motion for Attorney's Fees and Costs, adding Section 1012.26, Florida Statutes, to the list of statutes cited as justification for the award of fees and costs.

This matter was originally scheduled for final hearing on January 19 through 21, 2005. The hearing was continued twice before being held on June 28 through 30, 2005. As explained more fully in the Findings of Fact below, the continuances revolved around the issue of the parties' efforts to secure the alleged victim's testimony over his mother's objections.

At the hearing, the School Board presented the testimony of Kelly Bach, the mother of the alleged victim; Becky Garlock, the School Board's investigator; and Detective Tim Fisher of the Lee County Sheriff's Office. Petitioner's Exhibit 9 is a videotaped interview of J.P., the alleged victim, conducted under the auspices of the Child Protection Team ("CPT") of the Lee County Sheriff's Office. Petitioner's Exhibit 9 is accepted as hearsay evidence pursuant to Subsection 120.57(1)(c), Florida Statutes

(2004). The School Board's Exhibits 1 through 8 were admitted into evidence at the final hearing.

Respondent testified on his own behalf and offered the testimony of Kathleen Mahan, an advanced registered nurse practitioner ("ARNP") with the Children's Advocacy Center of Southwest Florida, who examined J.P. at the request of the CPT; Nancy Busack, a teacher's aide at Mirror Lakes Elementary School ("Mirror Lakes") in Lehigh Acres, who worked in J.P.'s class; Robert Bates, the physical education teacher at Mirror Lakes; and Karen Holliday, the principal of Mirror Lakes. The deposition of Steve Knott, the golf pro at Mirror Lakes Golf Club in Lehigh Acres, was accepted in lieu of his live testimony, when Mr. Knott failed to appear pursuant to subpoena. Respondent's Exhibits 1 through 14 were admitted into evidence. Joint Exhibit 1, a photocopy of Respondent's current Florida driver's license, was admitted into evidence.

A four-volume Transcript of the hearing was filed at DOAH on August 2, 2005. On August 10, 2005, the School Board filed an unopposed request for an extension of the time for filing proposed recommended orders, which was granted by Order dated August 11, 2005. In accord with the Order granting extension, both parties filed their Proposed Recommended Orders on August 16, 2005.

FINDINGS OF FACT

1. Respondent has been employed by the School Board as an instructional employee since January 19, 1999. He is a member of the Teachers Association of Lee County ("TALC"), the collective bargaining unit for instructional personnel, and is covered by the collective bargaining agreement between the School Board and TALC.

2. Respondent is certified in the area of Physical Education, Grades K through 12. From the time of his hiring until the fall of 2004, Respondent was a physical education ("PE") teacher at the elementary and high school levels.

3. In the fall of 2003, Respondent applied and was hired for a position as an adaptive PE teacher. An adaptive PE teacher works exclusively with Exceptional Student Education ("ESE") students, generally those who have physical disabilities or are developmentally delayed. This adaptive PE teacher position was itinerant. Respondent drove a circuit of several schools, teaching one or two classes at each, including Mirror Lakes. Prior to the 2003-2004 school year, Respondent had never taught at Mirror Lakes. During the 2003-2004 school year, Respondent drove to the various schools in his personal car, a blue Nissan Altima.

4. Respondent commenced his duties as an adaptive PE teacher during the second quarter of the 2003-2004 school year,

   either in October or November 2003. He came to Mirror Lakes an average of once a week1 for two consecutive class periods.

   Respondent would arrive at the school between 8:30 a.m. and

   
   

   9:00 a.m. He would park his car in the visitor's parking lot at the front of the school. Respondent would enter the school office just inside the main entrance, sign in, and walk to the classroom to meet his first class of students. With the classroom teacher and the teacher's aides,2 Respondent would accompany the class outside to the PE field, where he would provide instruction to the ESE students.

5. Following completion of the first period, Respondent would accompany the students back to their classroom, in the company of their classroom teacher and the teacher's aides. Respondent would then go to the adjacent classroom, taught by ESE teacher Gail Joyal. Ms. Joyal, her two aides, and Respondent would walk the class of 14-to-16 ESE students through the hallway to the art and music rooms. Half of the class would stay for art or music, and the other half would walk outside to the PE field under the supervision of Ms. Joyal, her aides, and Respondent.

6. At the PE field, Ms. Joyal's class joined approximately

   
   

   50 students from other classes for instruction by PE teacher Robert Bates and his two aides. Ms. Joyal would return to her classroom, but her two aides would remain on the PE field to

   supervise the class. Thus, there would be at least six adults on the PE field with the students: Mr. Bates and his two aides, Ms. Joyal's two aides, and Respondent.

7. The PE field was about the size of a football field and was surrounded by a chain link fence. The field could be accessed through the school, as was done by the children going in and out for PE class, or via an outside gate. The outside gate was plainly visible from Mr. Bates' office and from the PE pavilion where the students gathered at the beginning and end of PE class.

8. At the beginning of PE class, the students would take their assigned spaces in the covered PE pavilion. Mr. Bates would lead the entire class in ten to 15 minutes of calisthenics. He would then explain the day's planned activity to the class.

9. Once the activity began, Respondent would work with the ESE students from Ms. Joyal's class. Among these students was J.P., a seven-year-old boy classified as educable mentally handicapped, with speech and language impairments. J.P. functions at the approximate level of a three-year-old. Respondent taught J.P. and the other ambulatory students as a group. The only student with whom Respondent worked one-on-one was wheelchair-bound.

10. The PE class lasted 45 minutes. Near the end of class, Mr. Bates would reassemble the students in their assigned spaces under the PE pavilion. Ms. Joyal's aides would take a head count of their students. Ms. Joyal would rejoin the class. Once Mr. Bates dismissed the class, Ms. Joyal and her aides would accompany the children back to their classroom.

    Respondent would walk with the class as far as the entrance to the school hallway, then would walk to the front office to sign out and move on to his next assigned school.

11. Kelly Bach, J.P.'s mother, testified that during the middle of the 2003-2004 school year, J.P. began telling her about someone at school named "Mr. Bob." J.P. told Ms. Bach that he had kissed Mr. Bob, which caused Ms. Bach no alarm because J.P. "kisses everybody." J.P. also mentioned something about "marrying Mr. Bob."

12. Ms. Bach thought Mr. Bob might be another student at Mirror Lakes. Out of curiosity, she asked J.P.'s teacher, Ms. Joyal, if there was someone at the school called Mr. Bob. Ms. Joyal told Ms. Bach that "Mr. Bob" was the students' name for Respondent. This fact was confirmed at the hearing by Respondent.

13. Ms. Bach testified that two or three months passed with J.P. making no mention of Mr. Bob. Then, one evening in late May 2004, J.P. told her that he had ridden in Mr. Bob's

    car.3 Ms. Bach questioned J.P. further, but he was reluctant to say more. J.P. told Ms. Bach that "Mr. Bob is going to be mad at me, and Daddy is going to be mad at me, and Daddy is going to give me a spanking."4

14. After Ms. Bach assured J.P. that no one was going to hurt him, J.P. told her a disjointed story about being taken away from school, having his pants removed, being handcuffed, and having his "butt" touched by a person variously identified as "Mr. Bob," "Big Bird," and "Christmas tree." J.P. told his mother that "Brian" was supposed to save him but didn't. "Brian" is the lead character in the film "The Fast and The Furious," which J.P. watched repeatedly at home.

15. Ms. Bach held J.P. out of school on May 27, 2004, and took him to the emergency room of Lehigh Regional Medical Center to be examined for a suspected sexual battery. The hospital referred her to the Children's Advocacy Center of Southwest Florida. The Lee County Sheriff's Office was also contacted because of the nature of the allegations, and the Lee County CPT became involved. Lee County Sheriff's Office Deputy Kim Swanson responded to the hospital and interviewed Ms. Bach. Deputy Swanson filed an incident report recounting the interview with Ms. Bach. Deputy Swanson did not interview J.P. The relevant portions of Deputy Swanson's report stated:

    Ms. Bach advised that the victim described being brought by Mr. Bob during his physical therapy session on 5/26/04[5] to a white car parked at the school. The victim stated to his mother that the car was dark inside and he couldn't see outside. Victim stated there was country music playing in the car. The victim told his mother that Mr. Bob took off his clothes and was naked and that

    Mr. Bob took off the victim's pants so the victim was naked from the waist down. Then the victim told his mother that Mr. Bob hurt him in the butt, bit his butt, put something in his butt and touched the victim on different parts of his butt. The victim advised his mother that Mr. Bob slapped his face with an open hand when he started to cry. The victim also told his mother that Mr. Bob put "handcuffs" on his hands and then cut them off. Ms. Bach advised the victim stated he was "scared of his arms getting cut." Ms. Bach stated she asked the victim what he used to cut the handcuffs and the victim said a "knife." Ms. Bach advised that the victim was scared of Mr. Bob finding out that he told. Ms. Bach advised that off and on while making his statements about the events, the victim would say that the events happened to the Spider Man doll he was holding during the conversation.

    
    

    Ms. Bach advised that the victim has not seen any movies or TV that would demonstrate such events as the victim was describing and Ms. Bach believes that the event(s) may have been ongoing during the school year from 8/03 to 5/27/04 but does not know how many times. Ms. Bach stated that Mr. Bob provides physical therapy to other of the students as well.

    
    

    Ms. Bach advised after this conversation she recalled previous incidences during the past months when the victim had occasional episodes of blood on the toilet paper when she wiped him after going to the bathroom and stated "it hurts" when she wiped him.

    On other occasions the victim would come home from school mad and state he was sad because someone hurt him but the victim would not say who it was. Ms. Bach advised that the victim stated he wanted his friend to go to school and beat up Mr. Bob.

    Ms. Bach advised that the victim used to love school and now does not want to go and is scared to go. Ms. Bach also advised he takes a bath with his younger brother and that the victim has been touching his younger brother's private areas while bathing but she thought it was normal behavior for his age.

    
    

16. Also on May 27, 2004, at the request of the Lee County CPT, J.P. was examined by Kathleen Mahan, an ARNP with the Children's Advocacy Center. Before the exam, Ms. Bach told

    Ms. Mahan that J.P. had complained of pain in his buttocks and said someone had abused him. Also prior to the exam, Ms. Bach told Ms. Mahan that the hospital examination had revealed blood in J.P.'s rectum. However, Ms. Mahan never received confirmation of this statement from the hospital. No such confirmation was offered in evidence at the hearing.

17. Ms. Mahan's examination revealed no conclusive evidence that J.P. had been sexually assaulted. She found no marks on J.P.'s body consistent with the allegations that he had been bitten, hit, or cut with a knife. She found a minor fissure in J.P.'s rectum, but testified that such fissures are a "nonspecific finding" that could result from penetration, but could also be caused by a bowel movement.

18. Ms. Mahan testified that she spoke to J.P. during the examination. She stated that J.P. was unable to state a timeframe for the abuse, which was consistent with Ms. Bach's testimony that J.P. had no concept of time and would state that any past event had occurred "yesterday." Ms. Mahan asked J.P. if anyone had hurt him. J.P. said that Mr. Bob had hurt him.

    J.P. also told Ms. Mahan that his wrists hurt because Mr. Bob had handcuffed him, that Mr. Bob "touched my penis with his penis," and that Mr. Bob "touched my butt, and he was naked."

19. Also on May 27, 2004, Shaston Boyd, a therapist at the Children's Advocacy Center, conducted a videotaped interview with J.P.6 At the outset, Ms. Boyd established that J.P. could recite the alphabet and count to ten. She used crayons to establish that J.P. knew his colors. Ms. Boyd next attempted to establish that J.P. could distinguish "things that are real" or that "really happened" from "things that are fake." J.P. understood that a Mickey Mouse doll was a "fake" mouse, not a real one. He also assented to the proposition that Brian from "The Fast and The Furious" was not real. Nonetheless, J.P. persistently volunteered that he had raced cars with Brian and that he sees Brian at school.

20. Throughout the interview, J.P. would return to the topic of Brian and race cars at every opportunity. J.P. was also preoccupied with his shoes and socks, because of some sand

    in his shoes. Ms. Boyd had great difficulty keeping J.P. focused. His responses were often simply free associational statements having nothing to do with Ms. Boyd's questions.

21. When Ms. Boyd first asked about Mr. Bob, J.P. volunteered that he had watched fire safety movies with Mr. Bob and that he would go to lunch in the cafeteria with Mr. Bob. In fact, Respondent's only contacts with J.P. occurred on the PE field.

22. Unable to get J.P. to volunteer sexual allegations about Mr. Bob, Ms. Boyd began to lead the child toward the topic. She asked J.P. about Mr. Bob's car. J.P. told her that he listened to country music in the white car with Mr. Bob.

    J.P. later specified that Mr. Bob drove a white Toyota.7 He played with Mr. Bob, ate a sandwich, and got a Dr. Pepper. J.P. said that they raced in Mr. Bob's car. J.P. also mentioned Spider-Man and his Aunt Tracy in connection with riding in

    Mr. Bob's car.

    
    

23. After several minutes of questions focused on Mr. Bob, with still no mention of sexual allegations, Ms. Boyd directly asked J.P. whether anyone had ever touched him on his butt.

    J.P. said that Mr. Bob had touched him on his butt, and it "felt brown."8 Mr. Bob's clothes were on. Mr. Bob called J.P. "stupid" and told him to "shut up."

24. Ms. Boyd asked what Mr. Bob did to his butt. J.P. answered, "Clock," because he had noticed the clock on the wall.

    J.P. then told Ms. Boyd that he had a new car, but that it didn't work because it needed "big, big batteries." Ms. Boyd again asked J.P. what Mr. Bob had done to his butt. J.P. answered, "Couch," then talked about "black speakers" that he had seen in a dream, and said that the smoke detector at his old house scared him. He said that "fire safety" had been in the car with Mr. Bob and him.

25. In response to Ms. Boyd's gentle but persistent questioning, J.P. said that Mr. Bob had cut him with a "white knife" and that Mr. Bob had called him a "butthead." Contradicting his earlier statement, J.P. said that Mr. Bob's clothes were off when he touched J.P.'s butt. Ms. Boyd asked where else Mr. Bob touched him. J.P. answered, "My race car." A little later, Ms. Boyd repeated the question, and J.P. answered, "My shoe."

26. J.P. told Ms. Boyd that Mr. Bob had a tattoo on his belly. Respondent does not have a tattoo on his stomach. J.P. also stated that Mr. Bob had a "green ball" on his belly.

27. J.P. told Ms. Boyd that Mr. Bob "hit me on my face."

    
    

    J.P. said that a policeman saw Mr. Bob hit him and that J.P. told a fireman that Mr. Bob had hit him.

28. At no point during the interview did J.P. appear upset. He raised his voice at one point late in the interview, saying, "I am telling the truth." In the context of J.P.'s conversation and demeanor throughout the 45-minute interview, this statement was extraordinary. It was the first time J.P. indicated any concern with Ms. Boyd's response to anything he was saying or doing. It also did not impress the undersigned as a statement this child would have spontaneously conceived on his own, without adult coaching.

29. Toward the end of the interview, J.P. remarked that someone named "Mikey" had also touched his butt. Ms. Boyd did not follow up on this statement to ascertain the identity of "Mikey."9

30. For reasons explained in the Conclusions of Law below, the videotaped interview of J.P. is admissible only as hearsay pursuant to Subsection 120.57(1)(c), Florida Statutes (2004). Even if the tape were admissible over objection pursuant to the hearsay exception in Subsection 90.803(23), Florida Statutes, no findings of fact could be derived from this interview, aside from the recitation of J.P.'s statements. The child's imaginary statements were so commingled with his "real" statements about Mr. Bob that it is impossible to separate them with any degree of confidence. "Brian" seemed as real to J.P. as "Mr. Bob."

    J.P. related the story of Mr. Bob with the same level of emotion

    he evinced when speaking of the sand in his shoes. Verifiable portions of J.P.'s stories about Mr. Bob were not true, if Respondent was indeed "Mr. Bob": Respondent did not drive a white Toyota or any kind of white car, Respondent did not have a tattoo on his stomach, Respondent did not have lunch with J.P. in the school cafeteria, and Respondent did not watch fire safety movies with J.P.

31. Detective Tim Fisher of the sex crimes division of the Lee County Sheriff's Office witnessed J.P.'s interview. Both he and his supervisor believed that the interview provided grounds for an investigation. Though he obtained approval from the state attorney's office to conduct his own interview of J.P., Detective Fisher did not conduct the interview because of J.P.'s difficulties in articulating. Detective Fisher hoped that counseling might help J.P. to "get it out," and he decided to wait until some future date to interview J.P.10 As of the date of the hearing in this matter, the interview had not occurred.

32. Detective Fisher interviewed Ms. Bach on some date shortly after J.P.'s examination. By this time, Ms. Bach claimed that J.P. had given her more details about events with Mr. Bob. According to Ms. Bach, J.P. told her that, during the school day, Mr. Bob drove him to Mirror Lakes Golf Club and bought him a sandwich and a Dr. Pepper. Mr. Bob sexually abused him on this excursion. Because Mirror Lakes Golf Club is less

    than a half-mile from the school, this story seemed plausible to Detective Fisher.

33. Even later, Ms. Bach came forward with additional allegations against Mr. Bob. J.P. told her that on a class bowling trip, Mr. Bob smacked him in the head and called him "stupid" and told him that "he needs to fix his brain."

    Ms. Bach also stated that J.P. told her that Mr. Bob bled on him, that it was "white blood," and that Mr. Bob put it on his back and stomach. Detective Fisher could not recall Ms. Bach telling him these details.

34. On June 10, 2004, after the 2003-2004 school year had ended, Detective Fisher phoned Karen Holliday, the principal of Mirror Lakes. He told her that J.P. had been physically assaulted by a male teacher at the school and had been removed from campus by this teacher several times during the school year. He provided a general description of the assailant and asked Ms. Holliday for the names of male personnel who might have had contact with J.P. Detective Fisher requested that

    Ms. Holliday wait to notify the School Board, because he did not want a School Board inquiry to interfere with his own investigation. Ms. Holliday agreed.

35. However, one week later, during a face-to-face meeting, Detective Fisher told Ms. Holliday that Respondent was the target of his investigation. At this point, she told

    Detective Fisher that she could not keep the matter from her superiors. Ms. Holliday contacted the School Board counsel's office and was referred to Becky Garlock, an investigator in the School Board's human resources department. Ms. Garlock opened her own investigative file.

36. Ms. Holliday testified that she saw Ms. Bach with J.P. on the Mirror Lakes campus twice during the summer of 2004.11 On both occasions, Ms. Bach was walking J.P. up and down one hallway leading to and from the PE field. Ms. Holliday told both Detective Fisher and Ms. Garlock that she was concerned about these visits. Ms. Holliday stated that J.P. was "impressionable" and Ms. Bach could have been attempting to influence the investigation by planting ideas in J.P.'s mind.

37. On this point, Ms. Bach testified that she was following Detective Fisher's instructions to have J.P. show her how Mr. Bob got him out of the school. Detective Fisher did not testify on this point, though his testimony generally indicated that he spent a lot of time dissuading Ms. Bach from being a "little detective" and obstructing his investigation.

38. Ms. Garlock officially opened her investigation in June 2004. She was contacted by Detective Fisher, who requested that she delay her investigation until the criminal investigation was completed. Ms. Garlock notified her superior of the request, and the School Board agreed to hold its

    investigation in abeyance until Respondent returned to work after the summer break.

39. In June 2004, Detective Fisher, acting on Ms. Bach's information, went to Mirror Lakes Golf Club.12 Detective Fisher interviewed Steve Knott, the golf pro at the club. Detective Fisher testified that he verbally described J.P., who is red- haired, somewhat overweight, and wears glasses. Mr. Knott recognized J.P. from the description, even without a photograph to confirm it. Detective Fisher testified that he then conducted a photo lineup that included Respondent's driver's license photograph. According to Detective Fisher, Mr. Knott went straight to the photo of Respondent and identified him as "the guy that brings" J.P. Mr. Knott stated that he had seen Respondent at the club "many times."

40. Mr. Knott was an extremely reluctant witness. He did not appear at the hearing, though he was subpoenaed by Respondent. In lieu of live testimony, Mr. Knott's deposition was admitted into evidence. Mr. Knott's sworn version of the interview was very different from Detective Fisher's.

41. Mr. Knott confirmed that Detective Fisher first asked about J.P. and that he did remember that J.P. had come to the golf club. Then, Detective Fisher showed Mr. Knott a photograph of Respondent, and asked if he looked familiar. Mr. Knott said that Respondent did look familiar, but that he sees hundreds of

    people every day and could not positively say whether he had seen Respondent. Then, Detective Fisher "showed me a lineup and the same picture [of Respondent] was in the lineup." Mr. Knott said, "Well, I'm not an idiot," and picked Respondent's photo out of the lineup.

42. Mr. Knott testified that he recalled J.P. coming to the golf club twice, the second time with Ms. Bach. Mr. Knott could not recall who J.P. was with the first time, though he remembered J.P. pounding on the fish tank in the pro shop. However, Mr. Knott could not say that he had seen Respondent with J.P. In fact, Mr. Knott could not say definitely that he had ever seen Respondent, even after meeting him in person at the deposition. He could only say that Respondent looked "familiar," but that "a lot of guys look the same."

43. At the hearing, Detective Fisher was questioned as to Mr. Knott's version of events. Detective Fisher stated that he did not recall showing Mr. Knott the picture of Respondent prior to showing him the lineup, but that he was willing to take

    Mr. Knott at his word. Detective Fisher candidly admitted that, if Mr. Knott's version of events was accurate, then "that would have made my lineup worthless." Detective Fisher elaborated:

    You're telling me that he is giving you a statement contrary to what he gave me. That is not the statement he gave me, sir. If he is saying that this is his sworn statement that you're looking at right now [i.e., Mr.

    Knott's deposition], then I can't say that Mr. Bob is Robert Vandeventer. [Emphasis added]

    
    

44. Detective Fisher conceded that Mr. Knott was the only witness who could place Respondent and J.P. together away from the Mirror Lakes campus. Detective Fisher also conceded that he had been unable to establish probable cause sufficient to arrest Respondent. Though the criminal case had not been officially closed, Respondent had not been arrested or charged with any crime as of the date of the hearing.

45. On August 6, 2004, Detective Fisher contacted Respondent at a school where Respondent was participating in a training session for the upcoming 2004-2005 school year. Respondent agreed to drive across town to the Sheriff's Office and submit to an interview with Detective Fisher. Respondent testified that, as he drove to the Lee County Sheriff's Office, he telephoned a friend who works in the criminal justice system. This friend advised Respondent to cooperate with Detective Fisher, but to stop the interview and ask for a lawyer if any of the questions made him uncomfortable.

46. During the interview, Detective Fisher attempted to elicit a confession from Respondent by falsely suggesting that a witness had seen Respondent removing J.P. from the Mirror Lakes campus. Respondent immediately declined to answer any more questions without a lawyer. Detective Fisher told Respondent

    that his refusal to continue the interview just made him look guilty, but did not pursue the interview any further.

47. After hiring a criminal defense lawyer, Respondent contacted Detective Fisher to reschedule their interview. Respondent answered all of Detective Fisher's questions and submitted to a voice stress analysis test conducted by another Lee County Sheriff's Office employee. The test indicated that Respondent's denial of having committed abuse on J.P. was truthful. The test was inconclusive as to Respondent's denial of ever having been to Mirror Lakes Golf Club.13

48. After the initial interview on August 6, 2004, Detective Fisher notified Ms. Garlock that he had interviewed Respondent and that Respondent had refused to answer his questions. The School Board immediately suspended Respondent with pay, pending the outcome of its own investigation, which was activated at that time.

49. Ms. Garlock phoned Ms. Bach to arrange an interview, which was scheduled to take place at Ms. Bach's home. When

    Ms. Garlock arrived at the appointed time, Ms. Bach was not home and had left no explanatory message for Ms. Garlock. After

    Ms. Garlock made several attempts to reschedule the interview, Ms. Bach agreed to meet with her at the School Board's office on September 2, 2004.

50. During this interview, Ms. Bach told Ms. Garlock that

    
    

    J.P. had identified Mr. Bob's car as a white Toyota SUV.

    
    

    Mr. Bob had a camera in the car with a green light just like a camera owned by J.P.'s uncle. Ms. Bach stated that J.P. told her that he hated it when Mr. Bob would fold down the seats and place the camera on a speaker in the back, because that is when

    J.P. would get hurt.

    
    

51. J.P. accompanied Ms. Bach to the interview, but

    
    

    Ms. Bach would not allow Ms. Garlock to speak with J.P. During the interview, Ms. Bach told Ms. Garlock about the CPT interview and reports and offered to provide them to Ms. Garlock.14

    Ms. Bach never provided those materials to the School Board. Ms. Bach also agreed to prepare a written statement for

    Ms. Garlock. She never provided a written statement, claiming that Detective Fisher had told her that doing so would impede his criminal investigation. At the hearing, Detective Fisher could not recall telling Ms. Bach that she should decline to cooperate with the School Board's investigator.

52. On September 10, 2004, Ms. Garlock interviewed Respondent. In the interest of speeding up the interview, Respondent declined Ms. Garlock's offer to have his attorney present. Ms. Garlock described Respondent as cooperative and to all appearances open and honest during the interview.

53. Respondent told Ms. Garlock that he always signs in and out of the offices of the schools on his schedule and that he is never alone with students, including J.P. Respondent explained to Ms. Garlock the procedure for taking the children as a group to and from PE class, and recounted that there were always four or five other adults on the Mirror Lakes PE field during the period in which he taught J.P.'s class.

54. Respondent told Ms. Garlock that he had been driving a blue Nissan Altima for more than a year, had previously driven a blue Ford Escort, and had never driven someone else's car to work. In other words, during the relevant period, Respondent had never driven a white car, a white SUV or a white vehicle of any kind.

55. Respondent told Ms. Garlock, as he had Detective Fisher, that he had no tattoos on his stomach.

56. After interviewing Respondent, Ms. Garlock contacted the principals of all eight schools at which Respondent provided adaptive PE services. Each principal reported that no complaints of any kind had been lodged against Respondent by any parent, student, teacher, or administrator.

57. On September 15, 2004, Ms. Garlock interviewed

    
    

    Mr. Knott at the Mirror Lakes Golf Club. Mr. Knott identified a Mirror Lakes yearbook photo of J.P. as a boy who had been to the golf course "a few times." Mr. Knott also identified a driver's

    license photo of Respondent as someone he had seen at the golf course. Mr. Knott could not say "for sure" whether Respondent and J.P. had been at the course together.

58. Ms. Garlock interviewed and obtained written statements from Mr. Bates, the Mirror Lakes PE teacher, and from Ms. Joyal's two teacher's aides, Nancy Busack and Teresa Rosales. Each of these three interviewees told Ms. Garlock that he or she never saw Respondent alone with J.P. Both Mr. Bates and Ms. Busack stated that they did not see how Respondent could arrange to be alone with a student, given the logistics of the PE class. Mr. Bates also stated that he did not see how Respondent could take J.P. off the campus in his car, drive to the golf course, and return during the PE class because of the time involved and because at least one of Ms. Joyal's aides was always with him.

59. Ms. Garlock did not seek to obtain the results of the voice stress analysis test taken by Respondent or of the medical exam performed on J.P. by Ms. Mahan, though Ms. Garlock was aware of them. Ms. Garlock made no further efforts to obtain the CPT records after Ms. Bach failed to provide them as promised during her interview.

60. Though every piece of adverse information about the alleged abuse available to Ms. Garlock had been filtered through Ms. Bach,15 Ms. Garlock conducted no inquiry regarding Ms. Bach's

    background or credibility. At the hearing, Ms. Garlock conceded that ascertaining the credibility of the sole witness against Respondent would probably be important.

61. At the hearing, Ms. Bach admitted that she had pled no contest to a child abuse charge for allowing J.P. to be bitten on the head by a snake at a friend's residence when he was an infant, an incident that possibly caused his mental disability. Ms. Bach also admitted to having been convicted of petit theft, admitted to having been a victim of repeated domestic violence that J.P. had witnessed, admitted to having multiple live-in boyfriends, and admitted to having had three children by three different fathers. Though Ms. Bach claimed to have exposed J.P. to nothing that could have caused him to invent the allegations he made against Mr. Bob, her background at least suggests otherwise. Ms. Bach's stated intention to sue the School Board if she could prove the allegations against Respondent,16 coupled with her criminal history and her refusal to allow J.P. to testify in any way (including her defiance of this tribunal's subpoena),17 gives rise to an adverse inference regarding

    Ms. Bach's motive to fabricate the details of J.P.'s story.

    
    

62. J.P. never testified in this proceeding. Over the strenuous objection of Respondent, the undersigned has considered the videotaped interview conducted by Ms. Boyd at the Children's Advocacy Center, pursuant to the hearsay provision of

    Subsection 120.57(1)(c), Florida Statutes (2004). As noted above, even if it met the standard for a hearsay exception, the statement would be wholly unreliable as the basis for findings of fact due to J.P.'s constant commingling of apparent reality and obvious fantasy. At no time prior to the hearing in this case did the School Board have access to this videotaped statement or to any other direct evidence that Respondent committed sexual battery on J.P.18

63. The medical examination was inconclusive, and the alleged eyewitness, Mr. Knott, refused to give the School Board a written statement or to confirm in any way that he saw Respondent and J.P. together at Mirror Lakes Golf Club. The School Board's own employees, including Ms. Holliday, Mr. Bates, and Ms. Busack, were skeptical that these allegations could be true,19 both because of Respondent's observed behavior on the PE field and because of the logistics of the situation. In the space of approximately 45 minutes, Respondent supposedly managed to take J.P. off the PE field, walk him across campus to the visitors' parking lot, put him into his car, drive off campus to the golf course, strip naked and sodomize J.P., re-dress himself and J.P., then drive back to campus and return J.P. to the PE field in time to line up with his class. In at least one instance, Respondent allegedly also bought J.P. a sandwich and Dr. Pepper at the golf club. Further, Respondent supposedly

    managed to do all this, on several occasions, without ever being noticed by anyone at the school.

64. On August 6, 2004, Respondent received notice that the School Board was suspending his employment with pay and benefits pending the outcome of the School Board's investigation. A pre- determination conference was scheduled for and held on

    October 1, 2004. Respondent appeared at the conference with his criminal defense attorney, Joseph A. Simpson. Also at the conference were Georgianna McDaniel, the School Board's director of personnel services; Cynthia Phillips-Luster, the School Board's director of professional standards, equity, and recruitment; and J. Paul Carland, II, the School Board's staff attorney.

65. At the outset, Mr. Carland stated that Respondent had the Fifth Amendment right not to speak at the conference and to communicate through his counsel. Mr. Simpson answered that Respondent was there to disclose all he knew. Respondent answered all questions put to him at the conference, and

    Mr. Simpson made a detailed presentation refuting the factual allegations as they were then understood.20 Among the telling points made by Mr. Simpson: Respondent did not drive a white car, every School Board employee actually on the PE field stated that Respondent was always in plain sight and never alone with J.P., Ms. Holliday was concerned that Ms. Bach had led J.P.

    through the school to coach him in making a statement, Mr. Knott refused to give the School Board a written statement, and Detective Fisher had told Ms. Garlock that his case against Respondent was going nowhere.

66. Nonetheless, by letter dated October 7, 2004, the School Board informed Respondent that it had found probable cause for disciplinary action and was recommending to the Superintendent of Schools that Respondent be terminated from his position.

67. On October 13, 2004, the School Board filed the Petition, alleging that Respondent "committed a sexual battery on a student during the 2003-2004 school year." In a letter dated October 29, 2004, counsel for Respondent notified the School Board of Respondent's intention to seek an award of attorney's fees should the School Board elect to proceed with its intended action.

68. The Petition was heard by the School Board on November 4, 2004. The School Board voted to suspend Respondent without pay and to forward the Petition to DOAH for a formal hearing. The case was forwarded to DOAH on November 12, 2004. Respondent filed a motion for attorney's fees on January 3, 2005, and filed an amended motion on March 7, 2005, seeking an award of attorney's fees pursuant to Subsections 120.569(2)(e)

    and 57.105(1) and (3) and Sections 120.595 and 1012.26, Florida

    
    

    Statutes (2004).

    
    

69. On January 20, 2005, the School Board filed a motion for protective order seeking to prevent counsel for Respondent from taking J.P.'s deposition "now or in the future," because his therapist at the Child Advocacy Center believed that the deposition would be "detrimental to his emotional stability." The motion also disclosed that the School Board had become aware of the existence of the videotaped interview and offered that tape to Respondent in lieu of taking J.P.'s discovery deposition. After a telephonic hearing, an order was entered denying the motion on January 21, 2005.

70. On January 25, 2005, the parties filed an agreed motion for an order directing the Lee County CPT to release the confidential videotaped statement to both the School Board and Respondent, pursuant to Subsection 39.202(6), Florida Statutes (2004). By Order dated February 9, 2005, the undersigned denied the motion because the cited statute provides for release of these confidential CPT materials pursuant to "order of the court." Because DOAH is an executive branch tribunal, not a "court," the undersigned concluded that he was without authority to enter the requested order.

71. On February 9, 2005, Ms. Bach and J.P. were subpoenaed to testify at the final hearing on March 15, 2005. On March 8,

    2005, counsel for Ms. Bach entered an appearance and filed a motion for protective order on behalf of J.P., pursuant to Section 92.55, Florida Statutes (2004). On March 11, 2005, counsel for the School Board filed an emergency motion for continuance, which related the following: "Counsel [for Ms. Bach] also advised the undersigned today that should the motion [for protective order] be denied, the mother has stated that she will not make the student/victim available to testify despite having been subpoenaed to do so." Ms. Bach never retreated from this position. As noted above, Ms. Bach reiterated at the final hearing that she would not permit J.P. to testify, at least not under circumstances that would allow counsel for Respondent to cross-examine the child.

72. Respondent testified without contradiction that he had received a supplemental coaching contract worth approximately

    $1,600.00 annually every year he was employed by the School Board. Respondent's undisputed testimony was that he had been offered the supplemental coaching contract for the 2004-2005 school year and that he would have signed the contract had he not been suspended.

73. In summary, it is found that the School Board failed to prove by a preponderance of the evidence that Respondent committed a sexual battery on J.P. during the 2003-2004 school year. In fact, the School Board produced no evidence that would

    cause a reasonable person to suspect that Respondent did or even could have done the acts attributed to him. J.P. did not testify, and his videotaped interview was unreliable. The sole alleged eyewitness, Mr. Knott, denied having seen Respondent with J.P. At the hearing, the School Board was reduced to asking its own employees whether it was "possible" that Respondent could have taken J.P. off the campus and back, unseen, during the 45-minute PE period, after those employees testified as to the extreme unlikelihood of that scenario.

74. The undersigned cannot find that Ms. Bach formed her allegations from whole cloth, despite her stated intent to sue the School Board. She took the fragmentary elements of J.P.'s May 26 conversation and constructed a narrative that implicated Respondent. She later came forward with details that became increasingly less likely to have originated with J.P. It cannot be stated with any degree of certainty whether J.P. was initially relating something that actually happened to him or was telling a story based on something he had witnessed, either in a movie or at home. The hearsay statement of Ms. Joyal rings true in this regard: "[J.P.] is simply innocent and not socially aware enough to make up such a horror story. It would not be in his realm of awareness to imagine such a thing."

75. Whatever embellishments his mother added to his story,21 J.P. may well have been the victim of sexual abuse. It

    certainly made sense that the police and the School Board investigated the matter. It also made sense that Respondent would be the initial focus of the investigation, given that he was apparently the only "Mr. Bob" known to J.P. However, at some point well before the filing of the Petition, it should have been obvious to any objective observer that it was a virtual certainty Respondent was not and could not have been the perpetrator. The School Board conceded that Respondent's only point of contact with J.P. was during the 45-minute PE class, obviously not time enough for Respondent to accomplish without notice the acts of which he stands accused. The School Board's own investigator believed that the factual scenario offered by the School Board was "implausible." Nothing in the record of this proceeding gives reason to dispute Ms. Garlock's

    conclusion.

    
    

    CONCLUSIONS OF LAW

    
    

76. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding pursuant to Section 120.569 and Subsections 120.57(1) and 1012.33(6)(a), Florida Statutes (2004).

77. The School Board has the burden to establish by a preponderance of the evidence the grounds for disciplining Respondent. See, e.g., McNeill v. Pinellas County School Board, 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Sublett v. Sumter County

    School Board, 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995); Allen v. School Board of Dade County, 571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v. School Board of Dade County, 569 So. 2d 883, 884 (Fla. 3d DCA 1990).

78. Respondent is an instructional employee as defined by Subsection 1012.01(2), Florida Statutes (2004). The School Board has the authority to suspend or terminate instructional employees pursuant to Subsections 1012.22(1)(f) and 1012.33(6)(a), Florida Statutes (2004).

79. The standard for termination of instructional personnel is "just cause," pursuant to section 6.024 of the School Board's collective bargaining agreement with the TALC and Subsection 1012.33(1)(a), Florida Statutes (2004). Respondent did not challenge the proposition that sexual battery on a student would, if proven, establish "just cause" for the School Board to terminate his employment.

80. The School Board contends that the videotaped statement of J.P. should be admitted pursuant to the hearsay exception set forth in Subsection 90.803(23), Florida Statutes (2004), which provides:

    1. Unless the source of information or the method or circumstances by which the statement is reported indicates a lack of trustworthiness, an out-of-court statement made by a child victim with a physical, mental, emotional, or developmental age of

11 or less describing any act of child abuse

or neglect, any act of sexual abuse against a child, the offense of child abuse, the offense of aggravated child abuse, or any offense involving an unlawful sexual act, contact, intrusion, or penetration performed in the presence of, with, by, or on the declarant child, not otherwise admissible, is admissible in evidence in any civil or criminal proceeding if:

1. The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability. In making its determination, the court may consider the mental and physical age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, the reliability of the child victim, and any other factor deemed appropriate; and

   
   

2. The child either:

   
   

   1. Testifies; or

      
      

   2. Is unavailable as a witness, provided that there is other corroborative evidence of the abuse or offense. Unavailability shall include a finding by the court that the child's participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm, in addition to findings pursuant to s. 90.804(1).[22]

* * *

(c) The court shall make specific findings of fact, on the record, as to the basis for its ruling under this subsection.

1. In this case, J.P. did not testify. The School Board did not establish that J.P. was unavailable as a witness.

   J.P.'s mother, Ms. Bach, simply refused to comply with this tribunal's subpoena because she did not wish to put the child through the ordeal of testifying. Ms. Bach's opinion regarding J.P.'s sensitivity is not the equivalent of "a finding by the court" that J.P.'s participation in the proceeding would likely cause him severe emotional or mental harm. The videotaped interview of J.P. is not admissible pursuant to Subsection 90.803(23), Florida Statutes (2004). The interview is admissible pursuant to Subsection 120.57(1)(c), Florida Statutes, which provides:

   Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.

   
   

2. Even if the videotaped statement were admissible over objection pursuant to the hearsay exception of Subsection 90.803(23), Florida Statutes (2004), it would be of little use in establishing that Respondent committed a sexual battery on

   J.P. The child's disjointed conversation indiscriminately mixed possible fact and obvious fantasy, making it unreliable as the basis for findings of fact.

3. The School Board failed to establish by a preponderance of the evidence that Respondent committed sexual battery on J.P. The School Board failed to provide any direct

   evidence that Respondent committed sexual battery on J.P. The child did not testify. Ms. Bach's credibility was suspect. The medical evidence was inconclusive. Mr. Knott, the sole witness purported to have seen Respondent with J.P. away from the Mirror Lakes campus, stated otherwise in his sworn testimony.

   Detective Fisher conceded that, without Mr. Knott's identification of Respondent, he had no case against Respondent. The School Board employees who worked on the Mirror Lakes PE field with Respondent never saw him dealing one-on-one with J.P. and did not believe that Respondent could have taken J.P. off the campus without their noticing. The School Board's own investigator found the alleged factual scenario implausible.

4. Respondent's Amended Motion for Attorney's Fees and Costs, filed March 7, 2005, seeks an award of fees and costs pursuant to Subsections 120.569(2)(e) and 57.105(1) and (3) and Sections 120.595 and 1012.26, Florida Statutes (2004). Section 120.595, Florida Statutes, provides, in relevant part:

   1. Challenges to agency action pursuant to section 120.57(1).--

      
      

      1. The provisions of this subsection are supplemental to, and do not abrogate, other provisions allowing the award of fees or costs in administrative proceedings.

         
         

      2. The final order in a proceeding pursuant to s. 120.57(1) shall award reasonable costs and a reasonable attorney's fee to the prevailing party only where the nonprevailing adverse party has been

         determined by the administrative law judge to have participated in the proceeding for an improper purpose.

         
         

      3. 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 the nonprevailing 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 nonprevailing 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 nonprevailing adverse party participated in the pending proceeding for an improper purpose.

         
         

      4. In any proceeding in which the administrative law judge determines that a party participated in the proceeding for an improper purpose, the recommended order shall so designate and shall determine the award of costs and attorney's fees.

         
         

      5. For the purpose of this subsection:

         
         

         1. "Improper purpose" 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. "Costs" has the same meaning as the costs allowed in civil actions in this state as provided in chapter 57.

         3. "Nonprevailing adverse party" 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 condition intended to resolve the matters raised in a party's petition, it shall be determined that the party having raised the issue addressed is not a nonprevailing adverse party. The recommended order shall state whether the change is substantial for purposes of this subsection. In no event shall the term "nonprevailing party" or "prevailing party" be deemed to include any party that has intervened in a previously existing proceeding to support the position of an agency.

            
            

5. Though the Findings of Fact set forth above make clear that the School Board's pursuit of this matter should never have proceeded to hearing, the consistent view of DOAH has been that attorney's fees are not recoverable against an agency pursuant to Subsection 120.595(1), Florida Statutes, (2004), when the agency is the initiator of the proceeding. The reasoning was cogently set forth in Palacios v. Department of Business and Professional Regulation, Case Nos. 99-4163F and 99-4164F (DOAH November 20, 2000):

   Section 120.595(1), Florida Statutes, requires that the administrative law judge make a determination that the nonprevailing adverse party has participated in the proceeding for an improper purpose. "Nonprevailing adverse party" is defined to be a party that has failed to substantially change the outcome of the agency's proposed action. The Department by definition cannot be a nonprevailing adverse party. It is the

   agency that is proposing to take action, not a party that is trying to change the proposed action. [Emphasis added]

   
   

   See also South Florida Water Management District v. Berryman &

   
   

   Henigan, Inc., Case No. 02-4286 (DOAH May 12, 2003); HHCI

   
   

   Limited Partnership v. Agency for Health Care Administration, Case No. 02-1951F (DOAH November 21, 2002); Sellars v. Broward County School Board, Case No. 97-3540F (DOAH September 25, 1997). Respondent's motion for attorney's fees and costs must be denied as unavailable under Section 120.595, Florida Statutes (2004).

6. Section 1012.26, Florida Statutes (2004), provides:

   
   

   Each district school board may provide legal services for officers and employees of the school board who are charged with civil or criminal actions arising out of and in the course of the performance of assigned duties and responsibilities. The district school board shall provide for reimbursement of reasonable expenses for legal services for officers and employees of school boards who are charged with civil or criminal actions arising out of and in the course of the performance of assigned duties and responsibilities upon successful defense by the employee or officer. However, in any case in which the officer or employee pleads guilty or nolo contendere or is found guilty of any such action, the officer or employee shall reimburse the district school board for any legal services which the school board may have supplied pursuant to this section. A district school board may also reimburse an officer or employee of the school board for any judgment which may be entered against him or her in a civil action arising out of and in the course of the

   performance of his or her assigned duties and responsibilities. Each expenditure by a district school board for legal defense of an officer or employee, or for reimbursement pursuant to this section, shall be made at a public meeting with notice pursuant to s.

   120.525(1). The provision of such legal services or reimbursement under the conditions described above is declared to be a district school purpose for which district school funds may be expended.

   
   

7. By its terms, Section 1012.26, Florida Statutes (2004), applies to "civil or criminal actions," not administrative disciplinary proceedings brought by a school board against an employee. Further, Subsection 1012.33(6)(a), Florida Statutes, provides that the School Board must immediately reinstate and award back pay to an employee who has prevailed in a disciplinary proceeding, but is silent as to an award of attorney's fees. See Werthman v. School Board of

   Seminole County, Florida, 599 So. 2d 220, 221-222 (Fla. 5th DCA 1992) (under predecessor employee reimbursement statute, Section 230.234, Florida Statutes (1989), court determined that employee who had prevailed against charges of sexual misconduct involving a student was not entitled to reimbursement of attorney's fees; silence of predecessor reinstatement provision, Subsection 231.36(6)(a), Florida Statutes (1989), as to attorney's fees was "compelling").

8. Subsection 120.569(2)(e), Florida Statutes (2004), provides:

   All pleadings, motions, or other papers filed in the proceeding must be signed by the party, the party's attorney, or the party's qualified representative. The signature constitutes a certificate that the person has read the pleading, motion, or other paper 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 expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee.

   
   

9. Under existing case law, an objective standard is used to determine "improper purpose" for the imposition of sanctions on a party or attorney under Subsection 120.569(2)(e), Florida Statutes (2004), and predecessor statutes. As stated in Friends of Nassau County, Inc. v. Nassau County, 752 So. 2d 42, 50 (Fla. 1st DCA 2000):

   [C]ourts should not delve into an attorney's or party's subjective intent or into a good faith-bad faith analysis.

   Instead, if a reasonably clear legal justification can be shown for the filing of the paper in question, improper purpose cannot be found and sanctions are inappropriate.

10. In Procacci Commercial Realty, Inc. v. Department of Health and Rehabilitative Services, 690 So. 2d 603, 608 n.9 (Fla. 1st DCA 1997), the court stated:

    The use of an objective standard creates a requirement to make reasonable inquiry regarding pertinent facts and applicable law. In the absence of "direct evidence of the party's and counsel's state of mind, we must examine the circumstantial evidence at hand and ask, objectively, whether an ordinary person standing in the party's or counsel's shoes would have prosecuted the claim." Pelletier v. Zweifel, 921 F.2d 1465, 1515 (11th Cir. 1991).

    
    

11. In Mercedes Lighting and Electrical Supply, Inc. v.

    
    

    Department of General Services, 560 So. 2d 272, 278 (Fla. 1st DCA 1990), in discussing predecessor statute Subsection 120.57(1)(b)5., Florida Statutes (2004), the court held that:

    courts should not delve into an attorney's or party's subjective intent or into a good faith-bad faith analysis. Instead, if a reasonably clear legal justification can be shown for the filing of the paper in question, improper purpose cannot be found and sanctions are inappropriate. . . .

    [I]mproper purpose may be manifested by excessive persistence in pursuing a claim or defense in the face of repeated adverse rulings, or by obdurate resistance out of proportion to the amounts or issues at stake.

    
    

12. In the case at hand, the paper in question is the Petition, which accuses Respondent of committing a sexual battery upon J.P. Subsection 794.011(1)(h), Florida Statutes (2004), defines "sexual battery" to mean "oral, anal, or vaginal

    penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object. . . ." Sexual battery committed by an adult upon a child younger than 12 years old constitutes a capital felony, punishable by death or life imprisonment without parole.

    § 794.011(2)(a), Fla. Stat. (2004). Though this is not a criminal proceeding, these penalties are recited to emphasize that sexual battery upon a child is an infamous crime, the nature of which should have been a consideration when the School Board made its decision to prosecute this claim on the available evidence.

13. Respondent argues that the School Board filed the Petition in fear of the negative publicity it would receive if it did not move to dismiss a teacher accused of the heinous act of committing sodomy on a mentally handicapped child while the child was attending school. The School Board argues as follows:

    Regardless of the fact that Respondent has denied the claims, the facts that led to the filing of the Petition included claims of sexual battery on a student with a developmentally delayed disability. The student, J.P., who was known to demonstrate some level of difficulty in communicating with adults, except for of course his mother, gave sufficient information to his mother that, if true, proved that a sexual battery had occurred. The Respondent on the other hand denied any wrongdoing. The School Board therefore was left with one party claiming a sexual battery, and the other party claiming nothing happened. Such

    a factual and credibility dispute is within the purview of DOAH, not Petitioner. [Emphasis added]

    
    

14. The flaw in the School Board's argument is that, of the two parties making claims, only one could offer direct testimony. Though the School Board's argument attempts to bootstrap J.P. into the position of "party claiming sexual battery," in fact the sole accuser was J.P.'s mother.

    Ms. Bach's hearsay claims, standing alone, could not establish a "factual and credibility dispute" between her testimony and Respondent's first-hand testimony. Ms. Bach's hearsay testimony could not prove that a sexual battery occurred.

15. It might be argued that, at the time the Petition was filed, the School Board could have entertained a reasonable hope that J.P. might testify, if not in person at the final hearing, then in some format that would result in admissible direct testimony. However, the fact remains that at the time the Petition was filed, the School Board had no direct evidence that Respondent had committed a sexual battery.

16. The School Board might argue that it could not have been expected to anticipate that Ms. Bach would continue to refuse all access to J.P. However, the School Board knew at the time the Petition was filed that Ms. Bach had refused to allow either Detective Fisher or Ms. Garlock to speak to J.P. The

    School Board knew that it had no first hand statements from J.P.23

17. The School Board knew that Detective Fisher's purported eyewitness, Mr. Knott, had either changed his testimony or had never told Detective Fisher that he had seen Respondent and J.P. together at the golf club. The School Board knew that no one who worked on the PE field with Respondent believed that he could have done the acts of which he was accused. The School Board knew that some of the corroborative details provided by Detective Fisher, who had seen the videotaped statement, such as the stomach tattoo and the white car, were wrong.

18. Reading Ms. Garlock's investigative summary and the summary of the pre-determination conference, it is difficult to disagree with Respondent's contention that the magnitude of the accusation overwhelmed the good judgment of the School Board as to the lack of substance behind the accusation. There is nothing in the record to support a conclusion that the School Board had a "reasonably clear legal justification" for filing the Petition. The School Board had no basis to believe that it could prove the allegations of the Petition with competent substantial evidence. Respondent is entitled to a reasonable attorney's fee under Subsection 120.569(2)(e), Florida Statutes (2004).

19. Section 57.105, Florida Statutes (2004), provides, in relevant part:

    1. Upon the court's initiative or motion of any party, the court shall award a reasonable attorney's fee to be paid to the prevailing party in equal amounts by the losing party and the losing party's attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party's attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:

       
       

       1. Was not supported by the material facts necessary to establish the claim or defense; or

          
          

       2. Would not be supported by the application of then-existing law to those material facts.

          
          

          However, the losing party's attorney is not personally responsible if he or she has acted in good faith, based on the representations of his or her client as to the existence of those material facts. If the court awards attorney's fees to a claimant pursuant to this subsection, the court shall also award prejudgment interest.

          
          

    2. Paragraph (1)(b) does not apply if the court determines that the claim or defense was initially presented to the court as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success.

       
       

    3. At any time in any civil proceeding or action in which the moving party proves by a preponderance of the evidence that any action taken by the opposing party,

       including, but not limited to, the filing of any pleading or part thereof, the assertion of or response to any discovery demand, the assertion of any claim or defense, or the response to any request by any other party, was taken primarily for the purpose of unreasonable delay, the court shall award damages to the moving party for its reasonable expenses incurred in obtaining the order, which may include attorney's fees, and other loss resulting from the improper delay.

       
       

       * * *

       
       

       (5) In administrative proceedings under chapter 120, an administrative law judge shall award a reasonable attorney's fee and damages to be paid to the prevailing party in equal amounts by the losing party and a losing party's attorney or qualified representative in the same manner and upon the same basis as provided in subsections (1)-(4). Such award shall be a final order subject to judicial review pursuant to s.

       120.68. If the losing party is an agency as defined in s. 120.52(1), the award to the prevailing party shall be against and paid by the agency. . . .

       
       

20. For the reasons set forth in the above discussion concerning Subsection 120.569(2)(e), Florida Statutes (2004), it is concluded that Respondent is entitled to a reasonable attorney's fee under Subsection 57.105(1), Florida Statutes. Prior to the filing of the Petition, the School Board knew or should have known that its allegations against Respondent were not supported by the material facts necessary to establish its claim.

21. The School Board is an "agency" as defined in Subsection 120.52(1), Florida Statutes (2004). Sublett v.

    District School Board of Sumter County, 617 So. 2d 374, 377 (5th DCA 1993); Mitchell v. Leon County School Board, 591 So. 2d 1032, 1033 (Fla. 1st DCA 1991). Therefore, the award of a reasonable attorney's fee will be against the School Board and not its attorneys.

22. Jurisdiction of this case will be retained by DOAH for the limited purpose of entry of a final order on the amount of attorney's fees and costs to be awarded pursuant to Subsections 57.105(1) and (5) and 120.569(2)(e), Florida Statutes (2004).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the School Board enter a final order dismissing the Petition and reinstating Respondent as an assistive physical education teacher with the Lee County School Board, with an award of back pay and benefits to include his supplemental coaching contract for the period in question.

Jurisdiction is reserved to enter a final order, pursuant to Subsections 57.105(1) and (5) and 120.569(2)(e), Florida Statutes (2004), that the School Board shall pay Respondent his reasonable attorney's fees and costs in connection with the

defense of this case. If the parties are unable to agree upon the amount of fees and costs to be awarded pursuant to this paragraph, and document this agreement, within 60 days from the date of the School Board's final order, Respondent shall file a motion seeking a hearing on, and determination of, the amount of such fees and costs. If Respondent fails to do so within 180 days from the date of the School Board's final order, Respondent shall have waived his right to obtain such an award.

DONE AND ENTERED this 19th day of October, 2005, in Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(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 19th day of October, 2005.

ENDNOTES

1/ Mirror Lakes employed a six-day scheduling system, in which PE rotated with art and music classes. Due to the six-day system, as well as field trips, there were weeks when Respondent taught no classes at Mirror Lakes. When he came, Respondent always taught the same two classes.

2/ The current term for these employees is "education paraprofessional." § 1012.37, Fla. Stat. (2004). This Order employs the more commonly understood term "teacher's aide" with no intent to slight or to minimize the importance of the position.

3/ Ms. Bach testified at one point that J.P. told her about this incident on a Sunday. At another point, she testified that it occurred on May 26, 2004, which was a Wednesday. She readily conceded that she was not positive of the exact date, only that the school year had not ended and that she held J.P. out of school the next day. Mirror Lakes records indicated that J.P. was "absent excused" on May 21, 25, 26, and 27, 2004.

4/ "Daddy" referred to Ms. Bach's husband, J.P.'s stepfather. Ms. Bach testified that J.P.'s biological father has "nothing to do with" J.P.

5/ Much testimony was elicited at the hearing regarding Deputy Swanson's statement that Ms. Bach claimed this incident occurred on May 26, 2004, when in fact it could not have occurred on that date because J.P. was not in school. Ms. Bach testified that she told Deputy Swanson that May 26 was the date

on which J.P. told her about the incident, not the date on which the incident occurred. Ms. Bach believed that Deputy Swanson must have misunderstood her statement. Though Ms. Bach was less than a model witness, her testimony on this point is plausible and accepted. Deputy Swanson did not testify at the hearing.

6/ Neither the School Board nor Respondent was aware of the existence of this videotaped interview until some time in January 2005.

7/ J.P. actually said, "I have a white Toyota." However, in further discussion with Ms. Boyd, he appeared to agree with the proposition that it was Mr. Bob who had a white Toyota. In any event, J.P. unequivocally stated that Mr. Bob's car was white.

8/ Detective Tim Fisher of the Lee County Sheriff's Office's sex crimes division took "it felt brown" as an indication that

J.P. had been anally penetrated. Absent this surmise, J.P. gave no indication that he had been penetrated, only that his butt had been "touched." By definition, "sexual battery" requires penetration. See Subsection 794.011(1)(h), Florida Statutes (2004), set forth in Conclusion of Law 92, infra.

9/ "Mikey" may be the name of the brother referenced in Ms. Bach's statement to Officer Swanson, which would explain Ms. Boyd's failure to follow up on J.P.'s statement. The brother's name was not given at the hearing.

10/ On August 24, 2005, Detective Fisher told district investigator Becky Garlock that his case was "dying on the vine" due to his inability to get information from J.P. He told

Ms. Garlock that, because there was no statute of limitations on sexual battery and because Respondent was suspended and, thus, in no position to cause further harm to J.P., he would prefer to wait and "get a better case down the road."

11/ She also testified that she believed Ms. Bach entered the campus a third time to meet Detective Fisher. Ms. Holliday was not present for that meeting, but testified that Detective Fisher told her that he was going to meet Ms. Bach at Mirror Lakes. Detective Fisher did not testify as to whether this anticipated meeting actually occurred. The tone of Detective Fisher's testimony indicated that he was trying to discourage Ms. Bach from involving herself in his investigation. However, Ms. Bach testified that Detective Fisher did have her come to Mirror Lakes to show him what J.P. had shown her on a prior visit as to Respondent's supposed route in taking J.P. off the campus during the school day.

12/ As noted above, Ms. Bach testified that J.P. told her that Mr. Bob took him to Mirror Lakes Golf Club. Detective Fisher testified that Ms. Bach told him that J.P. did not name the place where Mr. Bob had taken him for a sandwich and Dr. Pepper. Detective Fisher testified that certain of the details in J.P.'s description as conveyed by Ms. Bach, such as a stone wall at the entrance and a fish tank in the pro shop, led him to conclude that J.P. was describing Mirror Lakes Golf Club. Detective Fisher's version is the more credible account. To her credit, Ms. Bach may simply have been abbreviating the exchange when she stated that J.P. told her he was taken to Mirror Lakes Golf Club.

13/ Respondent testified that he later recalled having been to the club many years previously, shortly after his high school graduation, and speculated that this hazy memory may have caused his inconclusive response to the question. The results of the voice stress analysis are mentioned only because they were the subject of a good deal of testimony at the hearing, without objection by either party. The undersigned places no

evidentiary value, exculpatory or incriminating, on the results of the analysis.

14/ Ms. Bach did not reference the CPT videotape during this interview. The School Board did not learn of the videotape until January 2005.

15/ Ms. Garlock testified that, aside from Respondent's denial of the allegations, "the information we were getting was consistent . . . what the mother was telling me, what the police report said and Detective Fisher. We were getting consistent information from everyone as far as the investigation."

Ms. Garlock's statement inadvertently emphasizes the limitations of her investigation. Ms. Bach was the source of the police report, and Ms. Bach was the source of Detective Fisher's information. Given that Ms. Bach was the sole source of information, it should not have impressed Ms. Garlock that "everyone" was providing "consistent information".

16/ Ms. Bach's statement at the hearing was, "Hell, yeah, I'm gonna fucking sue."

17/ Ms. Bach testified that she did not wish to put J.P. through the ordeal of testifying. She was particularly adamant that she would not allow J.P. to be cross-examined by Respondent's counsel, even if a court ordered her to produce

J.P. to testify.

18/ Ms. Garlock testified that Detective Fisher told her that

1. picked Respondent's picture from a photo lineup and identified him as Mr. Bob. In fact, Detective Fisher had no contact with J.P. Whether Detective Fisher misled Ms. Garlock, or whether she misunderstood something he told her, the fact is that J.P. did not pick Respondent's photo from a lineup.

   
   

   19/ At the hearing, even Ms. Garlock admitted that the story related by Ms. Bach and Detective Fisher struck her as "implausible." However, because her role in the investigation was that of factfinder, Ms. Garlock did not offer her opinion to the School Board.

   
   

   20/ One matter then in dispute was whether the events in question occurred on May 26, 2004. As explained in note 5, supra, this was simply a misunderstanding by Deputy Swanson in making her report. Ms. Bach told Deputy Swanson that J.P. related his story to her on May 26, and Deputy Swanson mistakenly wrote that the events happened on that date.

   21/ Ms. Bach's post-May 27, 2004, revelation regarding "white blood" was not credible as having originated with J.P.

   Ms. Bach's statements to the police and to this tribunal regarding J.P.'s being afraid to tell his story and crying as he told it on May 26 cannot be credited in light of J.P.'s behavior in the May 27 videotaped interview.

   
   

   22/ Subsection 90.804(1), Florida Statutes (2004), provides:

   
   

   1. DEFINITION OF UNAVAILABILITY.-- "Unavailability as a witness" means that the declarant:

      
      

      1. Is exempted by a ruling of a court on the ground of privilege from testifying concerning the subject matter of the declarant's statement;

         
         

      2. Persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so;

         
         

      3. Has suffered a lack of memory of the subject matter of his or her statement so as to destroy the declarant's effectiveness as a witness during the trial;

         
         

      4. Is unable to be present or to testify at the hearing because of death or because of then-existing physical or mental illness or infirmity; or

         
         

      5. Is absent from the hearing, and the proponent of a statement has been unable to procure the declarant's attendance or testimony by process or other reasonable means.

However, a declarant is not unavailable as a witness if such exemption, refusal, claim of lack of memory, inability to be present, or absence is due to the procurement or wrongdoing of the party who is the proponent of his or her statement in preventing the witness from attending or testifying.

23/ At the time the Petition was filed, the School Board was unaware of the existence of J.P.'s videotaped statement. The first indication of the School Board's awareness of the videotape was its January 20, 2005, motion for protective order, in which it offered the tape to Respondent as a "discovery tool" in lieu of taking J.P.'s deposition. The School Board grasped at the straw of offering the videotape in lieu of J.P.'s testimony as a witness at the hearing only after the circuit court declined to enforce the School Board's administrative subpoena.

COPIES FURNISHED:

Robert Dodig, Jr., Esquire Lee County School Board 2055 Central Avenue

Fort Myers, Florida 33901-3916

Robert J. Coleman, Esquire Coleman & Coleman

Post Office Box 2089

Fort Myers, Florida 33902-2089

Jason L. Odom, Esquire

Thompson Sizemore & Gonzalez P.A.

501 E. Kennedy Boulevard Suite 1400

Tampa, Florida 33602

Daniel J. Woodring, General Counsel Department of Education

325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400

Honorable John L. Winn Commissioner of Education Department of Education Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Dr. James W. Browder, III, Superintendent Lee County School Board

2055 Central Avenue

Fort Myers, Florida 33901-3988

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 04-004095

Orders for Case No: 04-004095