Judge shields Rivkees from deposition in mask fight

An administrative law judge Thursday rejected an attempt to have Florida Surgeon General Scott Rivkees testify in a legal fight about the state’s efforts to prevent school mask mandates.

Judge Brian Newman sided with the Florida Department of Health, which argued that Rivkees should be shielded from giving a deposition. The deposition was sought by attorneys for school boards and parties such as the NAACP that are challenging a Department of Health rule that requires parents to be able to “opt out” their children from any school mask mandates during the COVID-19 pandemic.

Newman held a nearly hour-long hearing Thursday morning and later issued a protective order to prevent the deposition. The judge cited what is known in the legal world as the “apex doctrine,” which generally shields high-ranking government officials from having to give depositions if information can be obtained from other sources.

In a six-page decision, Newman wrote that “Dr. Rivkees shall not be deposed in this proceeding unless, and until, those requesting his deposition have demonstrated that they have exhausted other discovery, that such discovery is inadequate, and that Dr. Rivkees has unique, personal knowledge of information discoverable in this consolidated rule challenge proceeding.”

School boards in Broward, Alachua, Orange, Miami-Dade and Leon counties and other parties, including the Florida State Conference of the NAACP, have challenged the mask rule issued Aug. 6 by the Department of Health. Their attorneys want to question Rivkees, who, as surgeon general, heads the department and signed the rule.

At least in part, they contend that the effort to prevent mask requirements in schools conflicts with past statements by Rivkees about masks helping curb the spread of COVID-19.

“It matters what the surgeon general was thinking in this case,” David Ashburn, an attorney for the school boards in Broward, Alachua and Orange counties, said during Thursday morning’s hearing

But Ed Lombard, an attorney for the Department of Health, focused on the apex doctrine and said the attempt to depose Rivkees should be blocked.

“They (attorneys for the challengers) have means to ascertain the information they want,” Lombard said. “It’s not the surgeon general they need to start with.”

Newman’s decision came as the rule challenges, which have been consolidated, are moving quickly. The judge has scheduled a hearing Monday on motions by the Department of Health to dismiss the challenges. If the challenges move forward, he has scheduled a full hearing to begin Sept. 24.

In part, the challenges contend the Department of Health overstepped its legal authority in issuing the emergency rule, which was an outgrowth of a July 30 executive order by Gov. Ron DeSantis to prevent schools from requiring students to wear masks during the pandemic. The challenges also argue that the rule is “arbitrary and capricious” and goes against the department’s role in preventing the spread of diseases.

“Rather, the emergency rule is facilitating the spread of COVID-19 by banning masks in public schools,” said one of the challenges, filed by the NAACP, the Florida Student Power Network and several families.

But in the motions to dismiss the challenges, the Department of Health contended that the school boards and other parties do not have legal standing to fight the rule. In a motion filed Tuesday, department attorneys said school boards have an obligation to follow state laws and the rule.

“At bottom, the school boards disagree with the substance of the department’s emergency rule,” the motion said. “However, as the public officials charged with operating in accordance with state law, the school boards must presume that state laws applicable to their duties are valid. As such, the school boards lack standing to initiate litigation for the purpose of invalidating the very laws they are duty bound to follow. Put simply, the school boards do not get to pick and choose which state laws they want to follow.”

Rivkees, who previously served as chairman of the University of Florida College of Medicine’s Department of Pediatrics, is scheduled to step down as surgeon general on Monday. In arguing that he should be deposed in the case, attorneys for the challengers pointed to his background in pediatrics and his past actions supporting the use of masks during the pandemic.

“Dr. Rivkees’ personal knowledge and unique professional experience, including being a renowned pediatrician, make him singly able to answer the questions related to his statements on masks and the efficacy for, and effects on, children,” attorneys for the challengers wrote in a document filed Wednesday. “Given his role, and his history of public health advisories admonishing the public to wear masks, only to reverse them following the direction in Executive Order 21-175 from the governor (at whose pleasure he serves), Dr. Rivkees is in a unique position to explain the actions of the DOH and whether, in fact, the DOH rule’s parental opt-out provisions control (as opposed to increase) the spread of communicable disease.”

But in the request for a protective order, the department’s attorneys wrote that Rivkees does not “possess … unique, personal knowledge about the disputed issues in this proceeding that his staff does not otherwise possess. In his position as Florida’s surgeon general, Dr. Rivkees is responsible for overseeing the operations of the state health office, county health departments, and certain area and regional offices throughout the state. He is not, however, involved on a granular level with the enactment of every department rule.”