Compton v. DC Bd. of Psychology, No. 02-AA-1416.

• Citation: 858 A.2d 470
• Decision Date: 23 September 2004
• Docket Number: No. 02-AA-1416.
• Parties: John W. COMPTON, Petitioner, v. DISTRICT OF COLUMBIA BOARD OF PSYCHOLOGY, Respondent.
• Court: Court of Appeals of Columbia District

858 A.2d 470

John W. COMPTON, Petitioner,
v.
DISTRICT OF COLUMBIA BOARD OF PSYCHOLOGY, Respondent

No. 02-AA-1416.

District of Columbia Court of Appeals.

Argued February 4, 2004.

Decided September 23, 2004.

As Amended December 2, 2004.

John W. Karr, Washington, DC, for petitioner.

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William J. Earl, Assistant Attorney General, with whom Robert J. Spagnoletti, Attorney General, and Edward E. Schwab, Deputy Attorney General, were on the brief, for respondent.¹

Before RUIZ and WASHINGTON, Associate Judges, and BELSON, Senior Judge.

RUIZ, Associate Judge:

John W. Compton petitions this court for review of an order issued by the District of Columbia Board of Psychology ("Board") revoking his license to practice psychology for engaging in sexual harassment of a patient and failing thereby to conform to the standards of acceptable conduct and prevailing practice within his profession. He asks us to decide whether evidence almost exclusively hearsay in nature constituted the critical mass of "substantial evidence" required under principles of administrative law to sustain the Board's decision. After a measured examination of the record commensurate with our limited standard of review, we hold that the particular hearsay evidence at issue in this case, which formed the core of the accusation, was too insubstantial to support the revocation order. We accordingly reverse and remand the case for further proceedings.

I.

A. Factual History

Dr. Compton has been a practicing psychologist since 1969. In 1981, he commenced a joint practice with Dr. Doree Waldbaum Lynn providing individuals and couples group therapy. They also developed a successful mentoring program for young mental health professionals establishing their careers. The joint therapy practice and professional mentoring program continued for fourteen years until the autumn of 1995 when Drs. Compton and Lynn dissolved their professional relationship.

During its lifetime, the partnership grew into "one of the largest ... in Washington, D.C.," propelling both doctors into successfully cross-marketed individual and joint practices. The instant case is an apt example. In 1986, Dr. Compton began treating Fatemeh Mina Klein, a licensed professional counselor herself. Apparently pleased with the individual mental health services she received, Klein commenced couples group therapy with her husband, which was co-led by Drs. Compton and Lynn. Klein's husband thereafter began a separate course of individual treatment with Dr. Lynn. Beginning in 1991, Klein was additionally mentored by Dr. Compton, and to a lesser extent by Dr. Lynn, in the management of her own professional practice. While Klein's individual therapy with Dr. Compton concluded in 1993, both the couples group therapy and professional mentoring continued until 1995 when the joint practice dissolved.

In October 1995, two years after her individual therapy with Dr. Compton had ended but while her couples therapy and practice mentoring were still on-going, Klein revealed to Dr. Lynn apparently during a therapy session that she "had some sort of sexual connection" with Dr.

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Compton, vaguely implying that he had engaged in sexual intercourse with her. Although the revelation was "muddled" and "confused," it prompted Dr. Lynn to write a letter to Klein on December 18, 1995, shortly after the joint practice had dissolved, expressing concern about the allegations, urging Klein to seek therapy on the matter, and suggesting that Klein release Dr. Lynn from her duty of confidentiality so that Dr. Lynn could report the matter to the appropriate authorities. Klein did not respond to the letter, and Dr. Lynn did not make a report to the licensing authorities

Several months later, in February 1996, Klein and her husband commenced a new treatment regime in the form of marital counseling with Dr. John Zinner. During these counseling sessions, the Kleins identified Dr. Compton's alleged sexual misconduct as the root cause of their marital discord. Thereafter, in August 1996, Klein commenced individual psychotherapy with Dr. Susan Lazar and again revealed Dr. Compton's alleged sexual misconduct.

B. Procedural History

Klein filed a lawsuit in 1997 in the Superior Court of the District of Columbia, alleging that Dr. Compton's sexual misconduct constituted medical malpractice and that Dr. Lynn had negligently failed to protect Klein from the abuse. Both Klein and Dr. Compton were deposed during discovery. The case ultimately settled before trial.

Thereafter, Drs. Zinner and Lazar filed on their own initiative a joint complaint with the Board regarding Dr. Compton's alleged misconduct. The Board acted on the complaint by issuing a notice of intent to bring disciplinary proceedings against Dr. Compton, charging him with engaging in sexual harassment of a patient² in violation of the standards of acceptable conduct and prevailing practice within the psychology profession.³ Dr. Compton filed a timely request for a hearing, and the matter was assigned to a D.C. Department of Health administrative law judge ("ALJ").⁴

During a preliminary hearing on March 19, 2002, the government moved to admit into evidence portions of Klein's deposition testimony from the 1997 civil suit. The government explained that it intended to call Klein to the witness stand only in rebuttal, if at all.⁵ Dr. Compton objected to substituting Klein's deposition for her live testimony, arguing that her designation by the government as a rebuttal witness established her availability, thus obviating the government's need to rely on the deposition in its case-in-chief. The ALJ overruled the objection, reasoning that

the fact that the person is not here, not testifying live, not in a position where I can observe her, and is not tested by cross-examination or not available to answer questions that I might have in reading her testimony all goes to the weight that I will give that [deposition.] But I have no basis to -I've had other

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circumstances ... where the complaining witness's testimony has come in as hearsay and is evaluated as such.

So I don't see a reason that I can exclude it. Whether or not that winds up hurting [the government] or helping you [Dr. Compton], we'll see what happens.

The ALJ indicated that he was willing to entertain Dr. Compton's future motions to admit whatever additional portions of the deposition were necessary for impeachment purposes.

Evidentiary hearings commenced on April 2, 2002. To prove its allegations, the government relied almost exclusively on Klein's deposition testimony. As the ALJ would later summarize in his report, in her deposition,

Klein testified that Dr. Compton began making sexual overtures to her shortly after she began individual therapy with him in 1986, and that he engaged in sexual intercourse with her in his office on one occasion in June or July 1991. She asserted that there were numerous other instances when he "acted sexual" toward her and "put a lot of pressure on me to be sexual with him." As [two] examples of that conduct, she testified that he "convinced me to get undressed in his office" during therapy sessions, "licked ... and kissed my neck," "grabbed [me] ... and kissed me on my lips," "sat next to me on the couch and asked me to put my head on his shoulder across his chest," and "sucked on my breast." According to Ms. Klein, Dr. Compton also would tell her "you have the body of a whore," and "I want to fuck you," and, after the fall of 1991 also would ask her "when are we going to fuck again?" According to Ms. Klein, Dr. Compton's sexual advances and conversations occurred in about [twenty-five percent] of her sessions with him between 1987 and 1995, except for a period of about [one and one-half] years during 1988 and 1989 when she was pregnant and nursing her son.

Drs. Zinner and Lazar also testified during the government's case-in-chief to corroborate Klein's deposition. They both indicated that when Klein discussed her allegations with them, she was clear and articulate, and at no point did either detect an inconsistency in her account despite multiple and repeated discussions of the subject over the course of their respective treatment sessions.⁶

To rebut the government's case, Dr. Compton testified that Klein's allegations were false. He described her as "flirtatious" and "manipulative," and expressed the view that it was not unusual for patients to have sexual fantasies about their therapists.⁷ Dr. Compton also testified

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that he believed Klein was seeking revenge and monetary profit after she perceived that Dr. Compton had favored Klein's business partner during the time when Dr. Compton had been mentoring both of them during an earlier fledgling, and ultimately failed, partnership. He admitted, however, that a year after Klein's partnership efforts failed, he referred "a couple of very good clients to her in about 1995" because at the time he believed her to be a capable therapist. He further admitted that he would have continued to lend her his professional support had her allegations against him not surfaced. Until that time, he said, it would have been reasonable for Klein to have expected that he would continue to be a source of referrals. Dr. Compton also noted that at the time he dissolved his business relationship with Dr. Lynn in 1995, thus ending their joint couples therapy group, Klein's relationship with her husband appeared to be improving

As it had announced before the hearing, the government called Klein as a rebuttal witness to contradict limited portions of Dr. Compton's testimony. Klein primarily denied ever having discussed her sexual fantasies with Dr. Compton. Defense

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counsel cross-examined Klein following her direct testimony on rebuttal, but the scope of cross-examination was limited by the ALJ to matters raised on direct and to matters relevant to credibility generally

C. The ALJ's...