07-002943TTS Duval County School Board vs. Thomas Payne Status: Closed Recommended Order on Wednesday, July 29, 2009.

Summary: Petitioner demonstrated just cause to terminate Respondent based upon Respondent's threat to kill a school official.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DUVAL COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 07-2943

)

THOMAS PAYNE, )

)

Respondent. )

)

RECOMMENDED ORDER

On May 21, 2009, a duly-noticed hearing was held by means of

video teleconferencing with sites in Tallahassee and

Jacksonville, Florida, before Lisa Shearer Nelson, Administrative

Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ernst Mueller, Esquire

Senior Deputy General Counsel

Office of General Counsel

117 West Duval Street

Jacksonville, Florida 32202

For Respondent: David A. Hertz, Esquire

General Counsel

Duval Teachers United

1601 Atlantic Boulevard

Jacksonville, Florida 32207

STATEMENT OF THE ISSUES

The issues to be decided are whether Respondent committed the acts alleged in the Administrative Complaint; and whether

those acts provide just cause for termination of his teaching

contract?

PRELIMINARY STATEMENT

On June 11, 2007, the Duval County School Board (School

Board) notified Respondent, Thomas Payne, that he was suspended

immediately without pay and that his employment contract would be

terminated. The School Board's actions were based on the

allegation that Mr. Payne had been arrested for threatening to

kill a School Board employee, thereby providing cause for

termination. The Notice of Termination of Employment Contract

and Immediate Suspension Without Pay (Notice of Termination)

asserts that Mr. Payne's conduct violates Section

Administrative Code Rules 6B-1.001(3) and 6B-1.006(5)(d).

Respondent disputed the allegations in the June 11, 2007, letter

and requested an administrative hearing. On July 2, 2007, the

case was referred to the Division of Administrative Hearings for

the assignment of an administrative law judge.

The final hearing was originally scheduled for October 24-

25, 2007. However, because of related criminal proceedings, the

parties requested that the formal hearing be delayed until the

criminal proceedings could be resolved. At a result, the matter

was rescheduled a number of times and placed in abeyance until

resolution of the criminal proceedings was accomplished.

Ultimately, the matter was rescheduled for May 21, 2009, and

proceeded as scheduled.

At hearing, the School Board presented the testimony of John

Williams, Kelly Coker-Daniel, and Vicki Reynolds. The School

Board also proffered the testimony of Beth Ann Wombaugh, subject

to argument in the parties' proposed recommended orders as to

whether Ms. Wombaugh's testimony was barred by the psycho-

therapist privilege in Section 90.503, Florida Statutes (2008).

After consideration of the issue, which will be discussed in the

Conclusions of Law below, Ms. Wombaugh's testimony is admissible

and has been considered in this proceeding. Respondent testified

on his own behalf and presented the testimony of Dale Howard and

Dr. Michael Zalewa. Joint Exhibits 1, 2(a), 2(b), 3, 4, 4(a),

and 5-14 were admitted.

The proceedings were recorded and a Transcript was filed

with the Division June 5, 2009. By agreement of the parties, the

deadline for submitting proposed recommended orders was extended

to June 22, 2009. Respondent filed his Proposed Recommended

Order on June 22, 2009. Petitioner requested an additional day

for filing its proposed order, which Respondent did not oppose.

Petitioner's Proposed Recommended Order was filed June 23, 2009,

and a Corrected Proposed Recommended Order filed June 24, 2009.

Both parties' submissions have been carefully considered in the

preparation of this Recommended Order.

Unless otherwise indicated, all references to Florida

Statutes are to the 2006 codification.

FINDINGS OF FACT

1. From July 1, 2000, to the present, Respondent has held

Florida Teachers Certificate number 83970. From 2000-2004, he

taught at Highlands Middle School, and from 2004 until May 2007,

he taught at Darnell Cookman Middle School. Because of the

allegations giving rise to these proceedings, Respondent is not

teaching in the Duval County School System at this time.

2. John Williams is the Director of Professional Standards

for the District and has held that position since 2002. In that

capacity, he coordinates the handling of disciplinary

investigations and actions relating to professional staff for the

Duval County School District.

3. In January 2004, Respondent was teaching at Highlands

Middle School. While assigned to that location, a female student

accused him of inappropriate sexual contact on two different

occasions. Upon receipt of the complaint, and consistent with

District policy, Respondent was removed from the classroom and

assigned to Bull's Bay, the District's Consolidated Services

Center, from February 17, 2004, to April 30, 2004. However, he

elected to use vacation time for part of this period, and worked

at the facility for the other part.

4. At the end of the investigation, it was determined that

there was insufficient evidence to prove or disprove the

allegations, and Respondent was so notified on April 6, 2004.

Although not immediately returned to the classroom, at the

principal's request, Respondent returned to teach at Highlands

Middle School before being transferred to Darnell Cookman.

5. John Williams had little to do with the investigation of

Respondent. He met with him, either in person or telephonically,

to discuss the assignment to Bull's Bay. He also notified

Respondent of the results of the investigation and, at the

request of the School Board, arranged for an Independent

Psychiatric Evaluation to be performed in April 2004 in order to

determine fitness for duty before Respondent returned to the

classroom. 1/ Mr. Williams had little or no other contact with

Respondent. However, to Respondent, apparently Mr. Williams

represented the School District's actions against him.

6. After Respondent was transferred to Darnell Cookman

Middle School, he developed an attendance problem. On

February 20, 2007, Kelly Coker-Daniel, the principal at Darnell

Cookman, sent Respondent a memorandum that included the

following:

Please be advised by way of this

correspondence that your attendance is at a

less than satisfactory level. Your continued

rate of absences is having a deleterious

impact on the quality and continuity of the

education program you are to provide.

Since 11/3/2006, you have been absent 20 days

on Leave With Out Pay. 6 of these absences

have occurred on either a Monday or a Friday.

At this time I am advising you that your

continued absenteeism will result in a

recommendation for disciplinary action.

F.S. 1012.61, Sick Leave, provides for the

requiring of a certificate of illness from a

licensed physician or from the county health

officer. Be advised that from this point

forward, for all future absences, you are

directed to bring a statement from your

attending physician identifying the date of

treatment, the nature of your illness and the

prognosis for future problems as it would

impact your attendance.

Additionally, as of 11/3/06, you have

exhausted your available balance of sick

leave. F.S. 1012.67, Absence without leave,

states, "Any district Board employee who is

willfully absent from duty without leave

shall forfeit compensation for the time of

such absence, and his employment shall be

subject to termination by the School Board.

Your failure or refusal to follow the

procedures identified above will result in a

recommendation for disciplinary action up to

and including termination of your teaching

contract.

7. According to Ms. Coker-Daniel, no further warning was

warranted and no request for disciplinary action was ever made.

John Williams had no knowledge of or involvement in Respondent's

attendance issues.

8. Beginning in August 2006 and until May 1, 2007,

Respondent was a patient of Beth Wombaugh, a mental health

counselor licensed pursuant to Chapter 491, Florida Statutes. He

consulted with Ms. Wombaugh to deal with a variety of issues,

including post-traumatic stress disorder, stemming in part from

the trauma of the accusation in 2004. Respondent was referred to

Ms. Wombaugh by Dr. Raul Soto Acosta.

9. When he began his patient relationship with Ms. Wombaugh

on August 2, 2006, Respondent was asked to sign an information

form entitled "Privacy of Information Policies" that described

those circumstances under which patient information could be

disclosed. The form included the following information:

It is my policy not to release any

information about a client without a signed

release of information except in certain

emergency situations or exceptions in which

the client information can be disclosed to

others without written consent. Some of

these situations are noted below, and there

may be other provisions provided by legal

requirements.

Duty to Warn and Protect

When a client discloses intentions or a plan

to harm another person or persons, the health

care professional is required to warn the

intended victim and report this information

to legal authorities. In cases in which the

client discloses or implies a plan for

suicide, the health care professional is

required to notify legal authorities and make

reasonable attempts to notify the family of

the client. I must and will abide by this

requirement.

Public Safety

Health records may be released for the public

interest and safety for public health

activities, judicial and administrative

hearings, law enforcement purposes, serious

threats to public safety, essential

government functions, military, and when

complying with worker's compensation laws.

10. Respondent signed the form below the statement, "I

understand the limits of confidentiality, privacy policies, my

rights, and their meanings and ramifications." He also signed a

Release of Information Form on November 19, 2007, indicating that

his entire record, except progress notes, could be used for

"Other," for which it was specified "court evidence purposes."

11. Sometime in November 2006, Respondent called

Mr. Wombaugh and expressed anger related to John Williams. At

that time, Ms. Wombaugh encouraged him to contract with her for

safety. In other words, she encouraged him to agree not to do

anything to harm Mr. Williams, and if he had any further thoughts

of harming Mr. Williams, he was to call her. If he could not get

in touch with her, he was to call 9-1-1 and seek help.

Respondent agreed to do so and came to see Ms. Wombaugh, at which

time he was able to calm down and look at things differently. He

again contracted for safety and the issue of anger against

Mr. Williams seemed to be resolved.

12. Sometime in April 2007, however, Respondent was injured

in a car accident. As a result, he was experiencing significant

discomfort. On May 1, 2007, he attended a session with

Ms. Wombaugh and appeared to be in pain, to the extent that he

was required to lay down on her couch during his counseling

session. Ms. Wombaugh encouraged him to take some time off and

deal with his injuries.

13. Respondent explained that he could not take any

additional leave, because he had already taken more than his

employment contract allowed. Ms. Wombaugh suggested he speak to

the principal about the issue, given his level of pain. She

testified that Respondent told her that because he was in

violation of his contract, they could fire him, and if he got

fired, he was going to kill Mr. Williams. Ms. Wombaugh tried to

discuss the consequences of doing so, and asked him to commit to

not harming Mr. Williams several times during the session, but he

refused. According to Ms. Wombaugh, his response was, "Contract

with you not to -- not to harm the guy who messed up my life?

No." Ms. Wombaugh also advised him that she would have to report

this threat, which would most likely result in his losing his

job, and he stated, "You got to do what you got to do."

14. With respect to the consequences of making a threat to

Mr. Williams, Ms. Wombaugh also testified as follows:

Q. Well would you just address that aspect

of it for me as -- just tell us once more

what you told him was going to happen --

A. Uh-huh.

Q. --if he did not go ahead and agree to

contract with you or agree with you?

A. I told him that I would have to call the

police. I told him that -- you know, that

even if Mr. Williams down the line is

murdered, that they'll always suspect him

because that'll be on file and that he would

most certainly lose his job; because I

couldn't imagine that the school board would

continue to allow him to teach at that

school, having made the threat.

Q. And at least up to that point, nobody had

heard about the threat, to your knowledge,

except you; right?

A. Correct.

Q. I asked him again, you know, "There's no

way that I can get you to commit?"

And he said, "No. And I -- and he said,

"Well, its in your hands."

And I said, "You know, Tom, it’s really

not in my hands; it’s in your hands, if you

would just, you know, just commit to safety."

And he refused. And I asked him to take

care of himself and he left our session.

(Transcript at 73-74).

15. Respondent's appointment with Ms. Wombaugh began at

4:00 p.m., and lasted a little over an hour. She had another

appointment immediately after Respondent's. After the conclusion

of her appointments for the day, at approximately 7:45 p.m., she

finished her notes from the sessions, and then received a call

from Respondent because he had forgotten to pay for his

counseling session. She told him he could pay the next time.

She did not broach the subject of contracting for safety during

the phone call because he had stated several times already that

he would not do so.

16. After speaking with Respondent, Ms. Wombaugh attempted

to contact John Williams at the Duval County School District, but

given the time of day, the offices were closed. She considered

the threat against Mr. Williams to be a conditional threat, i.e. ,

a threat of action that would occur only if Respondent was fired.

Because it was after school hours and he could not be fired that

day, she did not consider it to be an "imminent" threat or the

basis for Baker Act proceedings. However, she considered the

threat to be serious and testified that Respondent indicated he

had the means to carry out the threat.

17. When she could not reach Mr. Williams by telephone,

Ms. Wombaugh called the Jacksonville Sheriff's Office, who

referred her to the School District Police. She spoke with

Lieutenant Burton later that evening and to a member of the

Jacksonville Sheriff's Office the next day.

18. Mr. Williams was notified of the threat at about one

o'clock in the morning and advised not to go to work the next

day. Mr. Williams ultimately elected to attend work, and was

provided an armed escort. The School District has taken measures

to insure that access to Mr. Williams' office area is restricted.

19. Respondent was arrested on May 2, 2007, in connection

with the threat against Mr. Williams, and charged with corruption

by threat of a public servant, in violation of Section

838.021(1)(a), Florida Statutes, a felony. Information regarding

the threat and the arrest was carried on the local news and the

local newspaper. The School District's Office of Human Resources

received a number of phone calls and e-mails regarding the

matter, which was widely discussed. Ultimately, on December 23,

2008, the charge against Respondent was reduced to a charge of

threatening physical harm to the person or property of another,

in violation of Section 614.120, Jacksonville Municipal Code. On

February 11, 2009, Respondent entered a Deferred Prosecution

Agreement wherein prosecution was deferred for a period of twelve

months conditioned on Respondent's refraining from violating any

criminal law; notifying the State Attorney's office of any change

of address; and Respondent's agreement not to have any direct or

indirect contact with John Williams, with the exception of work

or employment related contact. Contrary to Respondent's

assertions, the Deferred Prosecution Agreement did not dismiss

the charges against him upon its execution.

20. Respondent categorically denies ever threatening John

Williams. He claims that he was unhappy with Ms. Wombaugh's

counseling and was upset with her because he felt he knew more

about post-traumatic stress disorder than she did, and felt he

was making no progress. Respondent claims that during the

counseling session on May 1, Ms. Wombaugh made a comment to the

effect that he needed to learn to get past the events that

occurred in 2004, and that he told her how frustrated he was. He

thought he hurt her feelings, but said that there were no raised

voices, and he could not think of any real motive for her to

claim he threatened Mr. Williams. His testimony at trial, which

is not credited, differs from his reported response at the time

he was arrested, when he said that he lost his temper during the

session but did not remember making a threat to kill

Mr. Williams.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569, 120.57(1), and

1012.33(6)(a)2., Florida Statutes (2008).

22. Section 1012.33, Florida Statutes, provides the

authority for the School District to suspend or terminate

Respondent's contract, and states in pertinent part:

(1)(a) Each person employed as a member of

the instructional staff in any district

school system shall be properly certified

pursuant to s. 1012.56 or s. 1012.57 or

employed pursuant to s. 1012.39 and shall be

entitled to and shall receive a written

contract as specified in this section. All

such contracts, except continuing contracts

as specified in subsection (4), shall contain

provisions for dismissal during the term of

the contract only for just cause. Just cause

includes, but is not limited to, the

following instances, as defined by rule of

the State Board of Education: misconduct in

office, incompetency, gross insubordination,

willful neglect of duty, or conviction of a

crime involving moral turpitude.

* * *

(6)(a) Any member of the instructional

staff, excluding an employee specified in

subsection (4), may be suspended or dismissed

at any time during the term of the contract

for just cause as provided in paragraph

(1)(a). The district school board must

notify the employee in writing whenever

charges are made against the employee and may

suspend such person without pay; but, if the

charges are not sustained, the employee shall

be immediately reinstated, and his or her

back salary shall be paid. If the employee

wishes to contest the charges, the employee

must, within 15 days after receipt of the

written notice, submit a written request for

a hearing. Such hearing shall be conducted

at the district school board's election in

accordance with one of the following

procedures:

* * *

2. A hearing conducted by an administrative

law judge assigned by the Division of

Administrative Hearings of the Department of

Management Services. . . . The recommendation

of the administrative law judge shall be made

to the district school board. A majority

vote of the membership of the district school

board shall be required to sustain or change

the administrative law judge's

recommendation. The determination of the

district school board shall be final as to

the sufficiency or insufficiency of the

grounds for termination of employment.

See also § 1012.22(1)(f), Fla. Stat.

23. The School District is required to prove the

allegations against Respondent by a preponderance of the

evidence. Cropsey v. School Board of Manatee County , 2009 Fla.

App. LEXIS 3957, *9, 34 Fla. L. Weekly D879 (Fla. 2d DCA May 1,

2009); Dileo v. School Board of Dade County , 569 So. 883, 884

(Fla. 3d DCA 1990).

24. Florida Administrative Code Rule 6B-4.009 defines by

rule, as required by Section 1012.33(1), those terms that trigger

the School District's authority to suspend or terminate a

teacher's contract, including the following:

(1) Incompetency is defined as inability or

lack of fitness to discharge the required

duty as a result of inefficiency or

incapacity. Since incompetency is a relative

term, an authoritative decision in an

individual case may be made on the basis of

testimony by members of a panel of expert

witnesses appropriately appointed from the

teaching profession by the Commissioner of

Education. Such judgment shall be based on a

preponderance of evidence showing the

existence of one (1) or more of the

following:

(a) Inefficiency: (1) repeated failure to

perform duties prescribed by law (2) repeated

failure on the part of a teacher to

communicate with and related to children in

the classroom, to such an extent that pupils

are deprived of minimum educational

experience; or (3) repeated failure on the

part of an administrator or supervisor to

communicate with and related to teachers

under his or her supervision to such an

extent that the educational program for which

he or she is responsible is seriously

impaired.

* * *

(2) Immorality is defined as conduct that is

inconsistent with the standards of public

conscience and good morals. It is conduct

sufficiently notorious to bring the

individual concerned or the education

profession into public disgrace or disrespect

and impair the individual's service in the

community.

(3) Misconduct in office is defined as a

violation of the Code of Ethics of the

Education Profession as adopted in Rule 6B-

1.001, F.A.C., and the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6B-

1.006, F.A.C., which is so serious as to

impair the individual's effectiveness in the

school system.

25. The Notice of Termination provided to Respondent,

alleges violations of Section 1012.795, Florida Statutes, and

provisions of the Florida Administrative Code which Petitioner

alleges amount to cause for termination. Specifically, the

Notice of Termination alleges violations of Section

1012.795(1)(b)(incompetence to teach or to perform duties as an

employee of the public school system); Section

1012.795(1)(f)(having been found guilty of personal conduct which

seriously reduces the person's effectiveness as an employee of

the school district); Section 1012.(1)(i)(violating the

Principles of Professional Conduct for the Education Profession

prescribed by the State Board of Education Rules); and violations

of Florida Administrative Code Rules 6B-1.001(3) and

6B-1.006(5)(d). These two rules provide as follows:

6B1.001 Code of Ethics of the Education

Profession in Florida.

* * *

(3) Aware of the importance of maintaining

the respect and confidence of one's

colleagues, of students, of parents, and of

other members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

6B-1.006 Principles of Professional Conduct

for the Education Profession in Florida.

* * *

(5) Obligation to the profession of

education requires that the individual:

* * *

(d) Shall not engage in harassment or

discriminatory conduct which unreasonably

interferes with an individual's performance

of professional or work responsibilities or

with the orderly processes of education or

which creates a hostile, intimidating,

abusive, offensive, or oppressive

environment; and, further, shall make

reasonable effort to assure that each

individual is protected from such harassment

or discrimination.

26. As a threshold matter, pivotal to the findings of fact

made in this Recommended Order is the determination that

Ms. Wombaugh's testimony regarding Respondent's statements to her

in a counseling session are admissible as an exception to the

psychotherapist privilege provided in Section 90.503, Florida

Statutes (2008). This decision requires an examination of not

only the evidentiary privilege contained in Chapter 90, Florida

Statutes, but the exceptions to the privilege contained elsewhere

in the law.

27. Section 90.503 provides in pertinent part:

(2) A patient has a privilege to refuse to

disclose, and to prevent any other person

from disclosing, confidential communications

or records made for the purpose of diagnosis

or treatment of the patient's mental or

emotional condition, including alcoholism and

other drug addiction, between the patient and

the psychotherapist, or persons who are

participating in the diagnosis or treatment

under the direction of the psychotherapist.

This privilege includes any diagnosis made,

and advice given, by the psychotherapist in

the course of that relationship.

(3) The privilege may be claimed by:

(a) The patient or the patient's attorney on

the patient's behalf.

(b) A guardian or conservator of the

patient.

(c) The personal representative of a

deceased patient.

(d) The psychotherapist, but only on behalf

of the patient. The authority of a

psychotherapist to claim the privilege is

presumed in the absence of evidence to the

contrary.

(4) There is no privilege under this

section:

(a) For communications relevant to an issue

in proceedings to compel hospitalization of a

patient for mental illness, if the

psychotherapist in the course of diagnosis or

treatment has reasonable cause to believe the

patient is in need of hospitalization.

(b) For communications made in the course of

a court-ordered examination of the mental or

emotional condition of the patient.

(c) For communications relevant to an issue

of the mental or emotional condition of the

patient in any proceeding in which the

patient relies upon the condition as an

element of his or her claim or defense or,

after the patient's death, in any proceeding

in which any party relies upon the condition

as an element of the party's claim or

defense.

28. The confidentiality of communications to

psychotherapists is also addressed in Sections 456.059 and

491.0147, Florida Statutes (2008). Section 456.059, which by its

terms relates to psychiatrists as opposed to professionals

licensed pursuant to Chapters 490 or 491, provides as follows:

Communications confidential; exceptions.--

Communications between a patient and a

psychiatrist, as defined in 394.455, shall be

held confidential and shall not be disclosed

except upon the request of the patient or the

patient's legal representative. Provision of

psychiatric records and reports shall be

governed by s.456.057. Notwithstanding any

other provision of this section or s.90.503,

where:

(1) A patient is engaged in a treatment

relationship with a psychiatrist;

(2) Such patient has made an actual threat

to physically harm an identifiable victim or

victims; and

(3) The treating psychiatrist makes a

clinical judgment that the patient has the

apparent capability to commit such an act and

that it is more likely than not in the near

future the patient will carry out that

threat, the psychiatrist may disclose patient

communications to the extent necessary to

warn any potential victim or to communicate

the threat to a law enforcement agency. No

civil or criminal action shall be instituted,

and there shall be no liability on account of

disclosure of otherwise confidential

communications by a psychiatrist in

disclosing a threat pursuant to this section.

29. Similarly, Section 491.0147, Florida Statutes, which

applies to licensed mental health counselors, provides:

Confidentiality and privileged

communications.-- Any communication between

any person licensed or certified under this

chapter and her or his patient or client

shall be confidential. This secrecy may be

waived under the following conditions:

(1) When the person licensed or certified

under this chapter is a party defendant to a

civil, criminal or disciplinary action

arising from a complaint filed by the patient

or client, in which case the waiver shall be

limited to that action.

(2) When the patient or client agrees to the

waiver, in writing, or, when more than one

person in a family is receiving therapy, when

each family member agrees to the waiver, in

writing.

(3) When there is a clear and immediate

probability of physical harm to the patient

or client, to other individuals, or to

society and the person licensed or certified

under this chapter communicates the

information only to the potential victim,

appropriate family member, or law enforcement

or other appropriate authorities.

30. Section 456.059, Florida Statutes, was analyzed by the

Fifth District Court of Appeal in Guerrier v. State of Florida ,

811 So. 2d 852 (Fla. 5th DCA 2002). In Guerrier , the defendant

was arrested for aggravated stalking in connection with his

continued and persistent pursuit of a former girlfriend. While

in jail, he obtained counseling from a jail psychiatrist and

during his counseling sessions, made threats to kill the

girlfriend and himself. The psychiatrist determined that

Guerrier had the ability to carry out his threats and had his

nurse call the former girlfriend to warn her about the threat.

He was also allowed to testify in the criminal proceedings

against Guerrier about the threats.

31. The Fifth District determined that it was permissible

to allow the psychiatrist, the nurse and the victim to testify

about the threat and the warning. In doing so, the court

discussed at length the scope of evidentiary privileges, noting

"the precept that privileged communications are an exception to

the rule that all relevant evidence is admissible." 811 So. 2d

at 854. The court reasoned that the reason for the common law

rule of disclosure is no less significant when the Legislature

considers adoption of a privilege, and the dangerous patient

exception to the privilege in Section 456.059 is not subject to

the same strict statutory construction as the privilege itself.

32. The Guerrier court recognized that the language of

Section 456.059 did not specifically provide that the

psychiatrist may testify regarding the threat in any subsequent

trial where the patient is prosecuted for crimes against the

victim. The court focused on the intent behind enacting Section

456.059, i.e. , the goal of providing protection to the victim.

The Court stated:

By enacting section 456.059, the Legislature

has expressed its conclusion that the need

for full disclosure by the patient to the

psychiatrist is outweighed by the need to

protect the victim from harm by a dangerous

patient. The Legislature has thus returned

to the common law preference for disclosure

of relevant testimony to the extent necessary

to fully protect the victim, which includes

allowing the psychiatrist to testify in trial

proceedings wherein the patient is prosecuted

for the commission of a crime against the

victim. Therefore, we conclude that the

application of the narrow interpretation

advanced by the Defendant would thwart the

intent of the Legislature in enacting section

456.059. It would render an absurd result if

this court were to hold that the

psychiatrist, who reports pursuant to the

statute, is prevented from testifying in the

trial of the patient who is alleged to have

committed a crime against the victim in

accordance with the threat previously made.

See Florida Dep't of Bus. & Prof'l

Regulation, Div. of Pari-Mutual Wagering v.

Investment Corp. of Palm Beach , 747 So. 2d

374 (Fla. 1999).

811 So. 2d at 856.

33. The same rationale applies with respect to Section

491.0147. At least one court has recognized that the two

provisions are similar in import and serve the same function.

Green v. Ross , 691 So. 2d 542 (Fla. 2d DCA 1997)(comparing

Section 491.0147 to Section 455.2415, which was subsequently

renumbered as 456.059). The Legislature has also provided a

duty-to-warn exemption from confidentiality for psychologists

licensed pursuant to Chapter 490, Florida Statutes. § 490.0147,

Fla. Stat. (2008). Given the Legislature's efforts to insure

that confidentiality is limited for all three licensure

categories of health care professionals providing psychotherapy

services, it would be an illogical result to allow the testimony

of psychiatrists but not other health care professionals to whom

a dangerous patient may confide.

34. Respondent argues that the Guerrier decision only

allows the testimony in a criminal prosecution, as opposed to a

proceeding such as this one, where the School District seeks to

remove Respondent from his teaching position. However, the

Court's summary of its holding requires a different conclusion:

The balance shifts, however, when a patient

communicates a threat that the treating

psychiatrist perceives as likely to occur.

Because such communications do not create a

net benefit to the public that warrants

application of the privilege, the rationale

that underpins the privilege vanishes, or, at

least, significantly diminishes in force.

Thus, to the extent of the parameters of the

dangerous patient exception, we have traveled

full circle to the common law rationale that

favors access to relevant and probative

evidence. Thus, in turn, favors application

of the dangerous patient exception to allow

the psychiatrist's testimony in court

proceedings when the victim of the threat has

become the victim of crime. (Emphasis

supplied.)

35. Here, allowing the mental health professional to

testify serves a similar purpose as allowing the testimony in a

criminal proceeding. The victim of the threat is a school

official. The Respondent is a teacher in the same school

district. The School District is seeking to take action that

serves to protect not only the actual victim of the threat, but

to take preventive action for the protection of all of those the

School District is mandated to serve.

36. The undersigned is also mindful of different standards

governing the admissibility of evidence in administrative

proceedings. As stated in Department of Business Regulation,

Division of Alcoholic Beverages v. Malio's, Inc. , DOAH Case No.

85-1434 (Recommended Order Oct. 24, 1985),

Section 120.57(1) proceedings are not

judicial proceedings; agencies are not

courts. The strict exclusionary rules of

evidence common to jury trials and courts do

not apply to APA hearings. See DeGroot v.

Sheffield , 95 So. 2d 912 (Fla. 1957); Kasha

v. Department of Legal Affairs , 375 So. 2d 43

(Fla. 3d DCA 1979); 5 C. EHRHARDT, FLORIDA

EVIDENCE, Section 103.1 (1977)("the strict

rules of evidence, and therefore the

[Evidence] Code, are inapplicable in . . .

administrative proceedings held under Chapter

120 . . . .").

21. Rather, the rules of evidence applicable

to APA proceedings are codified in Section

120.58(1)(a) [now Section 120.569(2)(g)]:

Irrelevant, immaterial, or unduly

repetitious evidence shall be

excluded, but all other evidence of

a type commonly relied upon by

reasonably prudent persons in the

conduct of their affairs shall be

admissible, whether or not such

evidence would be admissible in a

trial in the courts of Florida. . .

37. Finally, it must be noted that, as noted in finding of

fact numbers 9-10, Respondent was notified in advance that

Ms. Wombaugh had a duty-to-warn policy she would follow, and he

acknowledged in writing that he understood the policy and its

ramifications. She reiterated that warning during the session.

He also signed a release form, for some reason, indicating that

records could be released for court purposes. Under these

circumstances the testimony of Beth Wombaugh is admissible.

38. Further, the testimony of Ms. Wombaugh is also the more

credible evidence presented. Ms. Wombaugh gains nothing by her

testimony. Indeed, she provided the testimony at some risk to

her reputation as a counselor and, should she have abused the

duty to warn, subjected herself to possible disciplinary action.

Indeed, she refused to testify unless ordered to do so. Her

testimony is consistent and straightforward.

39. While Respondent tried to undermine Ms. Wombaugh's

credibility by pointing to the length of time between the therapy

session and the first call to the police and to Mr. Williams,

that time period, under the facts of this case, is reasonable.

The threat, while determined to be serious, was conditional,

i.e. , dependent upon Respondent losing his job. Similarly, the

defendant in Guerrier was actually in jail at the time of the

threat. Given that the School District offices were closed by

the time Respondent left Ms. Wombaugh's office, there was no

realistic threat of his losing his job that same day. She acted

promptly upon finishing her patient load for the day and

finishing her session notes. Her actions served to alert the

appropriate authorities before it was possible for the condition

upon which the threat was based to be carried out. That there

was a three-hour delay between the session and the phone call was

not significant under the unique facts of this case.

40. Likewise, the fact that she did not reintroduce the

subject of the threat when Respondent called to ask about payment

did not diminish the credibility of her testimony. It appeared,

taking into account the testimony of both individuals, that the

phone call was short. As she stated, Respondent was adamant in

his position during the session. Raising the subject again would

have served little purpose, and may have even heightened the

urgency for Respondent to take action against Mr. Williams.

41. Respondent, on the other hand, was less credible. His

expectations with respect to leave, for example (expecting the

School District to reinstate the leave he chose to take during

the 2004 investigation), were unrealistic. His recollection of

the counseling session involved a detailed list of things

discussed, including his dissatisfaction with Wombaugh's

counseling methods and his opinion that he knew more about post-

traumatic stress disorder than she did, based upon his

unwillingness to move past the trauma of the 2004 investigation

against him. He tended to place responsibility and blame on

others while minimizing any role his own actions might have. His

statements were self-serving and simply not credible.

42. The Administrative Complaint charges Respondent with

violating Section 1012.795(1)(b), by having been proven to be

incompetent to teach or perform duties as an employee of the

public school system. Given the definition of incompetency

provided in Florida Administrative Code Rule 6B-4.009(1) and the

method of determining incompetency encompassed in the rule, this

violation has not been proven in this case. None of the evidence

presented has dealt with teaching deficiencies demonstrated by

Respondent in the classroom. Therefore, a violation of Section

1012.795(1)(b) should not serve as a basis for terminating

Respondent's contract.

43. The Administrative Complaint also charges Respondent

with violating Section 1012.795(1)(f), by having been found

guilty of personal conduct which seriously reduces the person's

effectiveness as an employee of the school district. The

impairment contemplated under this provision may be demonstrated

by direct evidence or may be inferred from the conduct itself.

Purvis v. Marion County School Board , 766 So. 2d 492 (Fla. 5th

DCA 2000); Walker v. Highlands County School Board , 752 So. 2d

127 (Fla. 2d DCA 2000). In this case, news of the threat against

Mr. Williams was publicized in both print and television media.

The School District received calls and e-mails in response to the

publicity, and testimony was offered to the effect that

Respondent lost the respect of students, community members,

parents, and teachers, and that it would not be appropriate to

place him in a classroom alone with children. Given the nature

of the threat, and the irrationality of it, this conclusion drawn

by school officials is a reasonable one. The School District has

demonstrated a violation of Section 1012.795(1)(f).

44. The Administrative Complaint also alleges a violation

of Section 1012.795(1)(i), which depends upon whether violations

of Florida Administrative Code Rules 6B-1.001 and 6B-1.006 have

been proven. Florida Administrative Code Rule 6B-1.001 requires

Respondent to strive to achieve and sustain the highest degree of

ethical conduct. Almost by definition, threatening to kill a

school official is a violation of any ethical standard. Teachers

are individuals to whom children are entrusted during the day to

receive instruction and guidance. Threatening another school

official breeds fear and distrust, and distracts from any

semblance of a learning environment.

45. Similarly, Rule 6B-1.006 prohibits an instructor from

engaging in "harassment or discriminatory conduct which

unreasonably interferes with an individual's performance of

professional or work responsibilities or with the orderly

processes of education or which creates a hostile, intimidating,

abusive, offensive, or oppressive environment." Measures had to

be taken to restrict access to Mr. Williams, but there was no

evidence presented that providing the armed escort or other extra

protections for Mr. Williams actually interfered with his

performance, work responsibilities or the orderly processes of

education. However, making a death threat against a school

official certainly creates an intimidating environment for the

target of the threat, and affects the tenor of the environment in

the School District as a whole.

46. By proving violations of Florida Administrative Code

Rules 6B-1.001 and 6B-1.006, Petitioner has demonstrated

violations of Section 1012.795(1)(i), Florida Statutes. These

violations, coupled with the violation of Section 1012.795(1)(f),

amount to just cause for termination of Respondent's contract as

an instructor for the Duval County School District, as

contemplated by Section 1012.33(1), Florida Statutes, and Florida

Administrative Code Rule 6B-4.009(3).

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

That a final order be entered finding Respondent has

violated Sections 1012.795(1)(f) and (i), Florida Statutes, and

that such violations provide just cause for termination pursuant

to Section 1012.33(1), Florida Statutes; and terminating

Respondent's contract with the School District.

DONE AND ENTERED this 29th day of July, 2009, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of July, 2009.

ENDNOTE

1/ The psychiatrist concluded that Respondent currently had no

acute symptoms and could return to teaching.

COPIES FURNISHED:

David A. Hertz, Esquire

Duval Teachers United

1601 Atlantic Boulevard

Jacksonville, Florida 32207

Ernst D. Mueller, Esquire

City of Jacksonville

Office of General Counsel

117 West Duval Street, Suite 480

Jacksonville, Florida 32202

Joseph Wise, Superintendent

Duval County School Board

1701 Prudential Drive

Jacksonville, Florida 32207-8182

Richard A. Mullaney, General Counsel

City of Jacksonville

Office of General Counsel

117 West Duval Street, Suite 480

Jacksonville, Florida 32202

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.