Appendix — O'CONNOR v. Ortega
Supreme Court brief1987
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‘ FILED
MAR 18 1986
two EES -- 5S Fs EDSEPH F. SPANIOL, JR.
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| ., Supreme Court, U.S.
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IN THE SUPREME COURT
OF THE UNITED STATES
October Term, 1°785
Mennis M. Aa"*Conr:ror, et al--
FPetitciorer-=z,;
ws.
Magna J. Orctega>,
Respondent
On Writ of Cer-ti or zi
to the United States
Courts of Appeal for;
the Nimth Cir-cesi &
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MAGNO J. ORTEGA
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EDITOR'S NOTE
THE FOLLOWING PAGES WERE
AT THE TIME OF FILMING.
BETTER COPY CAN BE OBTAIN
WILL BE ISSUED.
POOR HARD COPY
IF AND WHEN A
ED, A NEW FICHE
TABLE OF CONTENTS
(numerical/alphabetical/chronological)
Exhibits
1-21 Petitioners’ at SPB Hearings
A-000 Respondent's in Opposition
i-xxiv Respondent's for Mandamus
Testimony
I. Oct. 29, 1981
II. Nov. 16, 1981
III. Nov. 17, 1981
IV. Dec. 29, 1981
V. Dec. 30, 1981
VI. Feb. 2, 1981
Folio VII
Pages/NATURE OF CONTINUING CONTROVERSY
135/Preliminary Observations/Comparisons
/Past, Recent and Present Controversy
139/Supplementary Statement for the Brief
141/A. New Charge in Brief for Petitioners
151/1. State Personnel Board Rules Broken
154/2. Privacy Violations Started/Defended
169/3. Privacy and Dignity are Trampled
172/B. Specific List of Alleged Violations
173,187 203/b) Incompetency
173,183,204/c) Inefficiency
173,205/f) Dishonesty
174,206/0) Wilful disobedience
Appendix-ii
174,207/p) Misuse of state property
175,207/t) Other failure of good behavior
176/C. Federal Court Version of Above List
177,186/1) Sexual Harassment
180,198/2) Coercion
182,200/3) Purchase of a Computer
182/4) Violation of G.C. Sec.19572
184/D. False State Personnel Board Version
208/E. Latest (Barrel-Bottom) Allegation
211/Far Better Administrative Alternatives
INDEX OF CROSS-REFERENCES TO EXHIBITS
Whenever practical, [excerpts] appear where
relevant, instead of just citing cross-
references to the listing below, from which
they are therefore omitted.
Those that cannot be excerpted (e.g.,
graphics of grievance channels or list of
alumni to show rate of successful candidates
for board certification in psychiatry at
higher than national average and percentage
that stayed in public service) are to be
found with the rest that came with court
letter of transmittal from which the
following were excerpted to refute all new
(sic), recent (sic), and old charges under
"Nature of Continuing Controversy":
Page/Content excerpted from the record:
Appendix-iii
PAST, RECENT AND PRESENT CONTROVERSY
138/Exx. H, xiv; U.S. v. NIXON (1974) 418 U.S.
683,709
SUPPLEMENTARY STATEMENT FOR BRIEF
139/SHIVELY v. Stewart (1966) 65 Cal 2d 475, 55
CR 217 :
140/11:103/21, III:9/12
NEW CHARGE IN BRIEF FOR PETITIONERS
142/G.C. Sec. 19574.5
143/SPB rule 361a, Ex. 21, 1I1:104, 1:50,52,55,
IV:40
144/SPB Rule 368
147/S.P.B. Rules 361 and 368
149/Ex. 21
BROKEN RULES, REGULATIONS, LAWS
151/State Civil Service Act, Bill of Rights,
1972 amendment of the California State
Constitution
i N, xiv, G.C. Sec. 18714, [SPB Rule
540
193/)360:2+ 540.3, G.C. Sec. 18714(a), G.C.
19793
PRIVACY VIOLATIONS STARTED/DEFENDED
154/Cf. I1:100-102 (App62), BUMPER v. WN.
~ Carolina, 391 US 543, 1968
155/Fifth Amendment
156/Ex. 19
157/WHITE v. Davis, 1975, 13 C3d 757, 773, 120
CR 94,104; Sec. 1, Art. 1, California
Constitution
158/PEOPLE v. BELLO (1975) 45 CA3d 770, 119 CR
838), [VII:(80)32]
159/PEOPLE v. SUDDUTh, 1966, 65 C2d 543,546, 55
CR 393,395; Privacy Act of 1974
160/Cf. I1:167 (A 769)
161/Cf. I1:112 (App73): Who misled whom?,
Appendix-iv
[III:7: Notes withheld during hearing]
162/[G.C. 19851 (r. 28): Right to subpoenas],
Ex. H, I1I:150 APE?) [I1:151] :
Hy CE Sec. 11507.6], Ex. H
164/L[III:20 (Only Dr. Reynolds came forth) ],
Ev. C. Sec. 776
165/[G.C. Sec. 11500. Admin. Adjudication,
Dept. of Developmental Services, G. C. Sec
11513 (b), Attorney General's Opinion (No.
116, 1948), O'MARA v. State Board of
Pharmacy (1966) 246 Cal.App.2d 8, 54
Cal.Rptr. 862
aes: 19582 (b), G.C. 18500]
167/|G.C. 18703] Article XXIV of the
Constitution, [G.C. 18714, Art. XXIV (Civil
Service Act), Sec. 6]
168/[Cf III:19: Dr. Laskay stayed too long]
PRIVACY AND DIGNITY ARE TRAMPLED
169/[III:91: Ex. 17 was accepted as evidence! ]
FEDERAL COURT VERSION OF CHARGES
177/11:103, III:9
SEXUAL HARASSMENT
aL | eg versonnel Board Ex. 000]
178/|G.C. 19059: Temporary employees’ rights],
sSHEPHERD v. SPB (1957) 307 P2d 4, 48 C2d 4}
179/[Sexual Harassment Policy ee MIMS
Vv. LeA. Comm. Col. Dist. (1981 116
Cal.App.3d 95, 172 Cal.Rptr. 524, VIELEHAR v.
SPB (1973) 107 CR 852, 32 CA3a 187
186/[I:14 (a. 27): ASSISTED fantasies; 1:15
(a. 16): STUDENT not employed]
187/[1:15 (a. 28): No harassment; 1:23 (a. 3):
Fantasies WISHFUL; I:25-26: Hearing officer
biased }
190/[1:26-26 (r. 48): No bad blood at all;
1:34 (a. 28): Student wanted to help]
atte AN. (a. 15): Father unworried]
192/|1:37/7-24 (a. 20): Hearing officer bias ]
Appendix-v
193/[1:39 (r. 48): UNSURELY "harassed"; 1:41
(a. 16, 28): Notice NOT timely if, in fact,
sexually UNINTERESTED |
194/[1:42/7 - 43/10 (a. 24): No harassment]
195/Cf. 1:42 (App50): "Recall" re-promised,
Ex. H, [1:89-90 (r. 24): Had denied role]
196/(I:37, Appi92), [Ex. M]
COERCION
180/MAX. A.M.S. MACH. CO. v. International
Assoc. of Machinists, Bridgeport Lodge, No.
30, 102 A 706,709, 92 Conn. 297; II:103,
III:9; Ex. T-2 (App21): Statement by Chief
Resident
199/[Ex. xv-I: Residents’ Recollections]
UNAUTHORIZED PURCHASE OF COMPUTER
wd Tt (r. 7): Evidence withheld]
201/[1:95: Pre-empted Chief Resident (a. 14)];
MOORE v. Calif Minerals Products Corp.
" 53) 252 P2d 1005, 115 CA2d 834
202|/[Personnel Administrative Manual (SAM),
Electronic Data Processing Provisions,
Procedures (2/6/81), 4819.3 (Cf. a-17)]
VIOLATION OF GOVERNMENT CODE SEC. 19572
182/Kinney v. Glenn, 198 So. 250,254, 29 Ala.
Supp. 478; G.C. Sect. 19572 (b, c, f, 0, P,
t
SPECIFIC LIST OF ALLEGED VIOLATIONS
INCOMPETENCE
172/Ex. SS, LAWS, 1921, c. 669, Sec. 350.
SAUSBIER v. Wheeler, 299 N.Y.S. 466, 473,
252 App.Div. 267, III:122 (a. 29, Apps89)
vas/f 11:50 (r. 9): Accountant testifies]
203/Cf. III:71 (App84): On alumni who passed
board examinations in psychiatry at higher
rate than the national average and stayed in
public service, Ex. xvi-b(1,2)
Appendix-vi
INEFFICIENCY
173/[G.C. Sec.14780 (r. 8): Re contracts],
CONLEY v. Board of Ed. of City of New
Britain, 123 A.2d 747,751, 141 Conn. 488
as I:119 (App56): Re $1800 contract;
II:30 (r. 8): GC 14780 Violation]
204/III:74 (r. 60, App85): Inefficiency
trumped-up
205/Exx. 16a,b; G.C. Sec. 14780
DISHONESTY
173/III:122 (a. 28, Apps9)
174/STATE ex rel. NEAL v. State Civil Service
Commission, 72 NE2d 69,71, 147 Ohio St. 430
205/1:112
WILFULL DISOBEDIENCE
174/McNAMARA v. St. Louis Transit Co., 81 S.W.
880,881, 182 Mo. 676, 66 L.R.A. 486, quoting
U.S. v. TAYLOR, 2 Summ. 586, 28 Fed. Cas. p.
31; STATE ?x re. RICHARDSON v. Board of
Regents or Univ. of Nevada, Nev., 269 p2d
265,276; N#ELY v. CSPB (1965) 47 CR 64, 237
CA2d 487
MISUSE OF STATE PROPERTY
175/Eric v. Walsh, 61 A.2d 1,4, 135 Conn. 85;
Cf. III:62 (App 82): Who owns computer?
OTHER FAILURE OF GOOD BEHAVIOR
175/[I11:126 (a.37): Ex-director, now staff],
Blake v. SPB (1977) 102 CR 50, 25 CA3d 541
176/Orlandi v. SPB (1968) 69 CR 177, 263 CA2d
32
D. FALSE PERSONNEL BOARD VERSION
185/II:103, III:9
206/[Ex. xv-J: Peer Recommendations: ]
207/Cf. V:14 (App103) on "dismissal"
|
Appendix-vii
E. LATEST (Barrel-Bottom) ALLEGATION
208/Dr. O'Connor's deposition, p. 60, and Ex.
xxi in Argument "2-d"
210/Cf. "“Open-ward management of disturbed
mental patients of both sexes,"
HYGIENE, January, 1962
MENTAL
FAR BETTER ADMINISTRATIVE ALTERNATIVES
212/Article XXIV of the State Constitution
213/Article I of the State Constitution
213/Fourteenth Amendment
3/10 (r. 46)
4/13a (r. 7): Approved subpurchases
/13b (r. 10): To link data bases
/14 (r. 7): "Thank-you" to residents
5/15a-1: "Forgotten" thank-you note
/15a-2 (r. 5): $2000-printer donated
6/15b-3 (r. 7): 15a-1, but signed
APPENDED EXHIBITS AND TYPED RECORDS
PAGES where EXHIBITS are elaborated on:
p/Ex (+x-ref to reply or its appendix):
PETITIONERS' EXHIBITS for S.P.B.: 1-21
1/1 (a. 15): Writer not employed
2/2 (a. 16): Intern not an employee
2/3a (r. 12): LOA changed to 6 months
/4 (r. 12): Dr. Ortega must void LOA
/7 (r. 14): Mrs. Owen quotes ex-con
Computer "disappears"
/i6a (r. 8): “Unprocessed" contract
/16b-1 o 2): Same as 16a but signed
/16b-2 (r. 8): Approved Jul 15, 1981
6/17 (r. 27): Dr. Onne's photograph
/18 (r. 27):
Her Valentine Card
Appendix-viii
/19 (r. 27): Classic book of poems
7/21 (r. 11): vs. automatic dismissal
RESPONDENT'S (A-000) IN OPPOSITION
7/D (r. 5): Prior Feasibility Study
8/D-1 (r. 9): Computer for training
9/E (a. 19): A senior resident
13/G (a. 40): Due Process Violations
14/H (r. 28): Superior Court Order:
16/J re vs. "false deadline"
/L (r. 22): Before the hearing
17/M os 4h Biased Hearing Officer
/N (r. 21): Grievance channel
18/0 (r. 60): Demurrer
19/P (r. 23): "“Rebutted" by souvenirs
21/T-2 i 1338 Chief Resident noted
25/T-3 (r. 18): Senior Resident noted
29/U-2 (a. 19): Missing Testimony
30/Z (a. 15, 16): Complaint ritual
29/CC: Agenda for Union Board Meeting
31/JJ-2 (r. 26): Threat of scandal
31/JJ-3 (r. 28, 64): Subpoenas denied
33/SS (r. 21): Investigate conflicts?
38/CCC (r. 14): Final Query
Appendix-ix
EXHIBITS FOR MANDAMUS PETITION: i-xxiv
42/viii (r. 33, a. 26): 2nd delay
43/x-a (a. 15): Exceptions to findings
44/xi-a (a. 36): Undocumented opinion
44/xv (a. 28): Exhibits in VII:192-8
/xv-A (73): Stanford assessment
45/xv-C-2 (8): Dr. O'Connor's ex-boss
/xvi-c (a. 28): An alumnus' report
46/xvii (a. 40): Hearing premature
STATE PERSONNEL BOARD HEARINGS, 1981
p/Folio:Page (+x-ref: reply, appendix)
HEARING OFFICER's Reversible Errors
49/I:2 (a. 14): Dr. Vaughn recalled
/I:8 (a. 10): False first promise
50/1:36 (a. 24, 28): Access promised
/1:42 (a. 24): Third false promise
Dr. VAUGHN's Testimony
51/1:47 (r. 12, 54): Ex-con credible?
52/1:55-56 (r. 13): "Get Ortega"?
More HEARING OFFICER's Promises/Errors
/I:79 i 14% Recall promised
/1:80 (r. 25): To AWAIT discovery
/1:88-89 (a. 25): Access 0.K.
Mr. FRIDAY's Testimony
/I:112 (r. 7): Documents withheld
/1:119 (r. 8): Contract approved
M U
/ 2
BIN's Confession as NAPA Counsel
(a. 16): Incomplete materials
Appendix-x
More HEARING OFFICER's Promise/Error
57/1:124 (a. 11): Another promise
/TI:2,5 (r. 21): re Skelly
59/II:52 (r. 28): Subpoenas touted
Dr. O'CONNOR's Testimony
60/1I:85,86 (r. 51): A.L. illegal
61/II:88 (r. 16): DUE process denied
63/II:100-102 (a. 6): "Routine" call?
65/I1I:103 (a. 20): No coercion found
66/11:118-119 (r. 20-21): Rule 131?
67/II:112 (a. 20, 22): Who was misled?
/II:114 (r. 8): When aggrieved?
68/I1I:126 (r. 16): Vacation requested
More HEARING OFFICER's Errors
68/TI:143 (a. if Subpoenas refused
69/II:150 (a. 39): Defy court order
Dr. LASKAY's Testimony
69/11:167-171 (r. 17): "Forgery"?
74/III:1 (m. 1): ILLEGAL appointment
/TII:6-8 (a. ae Who complained?
75/III:9/ (a. 20): No coercion found
76/III:10-11 (a. 14, 25): Relevant?
/TII:11-12 (a. 11}: Repudiation
77/III:20-21 (m. 1, r. 29): Empty
More HEARING CFFICER's Errors/Mistakes
78/III:21-23 (r. 29-31): Illegal
79/III:21 et. seq. (a. 20): Arrogance?
/III:39 (r. 9): Incomplete materials
80/III:44-45 (a. 23): "Abrasive"?
Napa Counsel (Mr. RUBIn) gives in
81/EII:47-48 (a. 24): Surrenderea
82/III:62 (a. 58): Computer secured
Stanford Chairman (Dr. GONDA) testifies
83/III:69 (r. 10): Stanford important
Appendix-xi
84/III:71 (r. 10): Work not an issue
HEARING OFFICER re INEFFICIENCY charge
85/III:74 (r. 60): MTrumped-up charge
Dr. SUTTON's Testimony
85/III:81-82 (a. 30): Uncorrupt power
86/III:90 (r. 26): To inhibit support
Child Consultant's Testimony
88/III:110 (r. 10): Losing UCSF link
Ex-DIRECTOR's Assessment of Respondent
89/III:122 os 4 Director fr 1964
90/III:126 (a. 37): Director as staff
Contributor Explains Contributions
90/III:131 (a. 30): Resident -> staff
RESEARCH CONSULTANT's Testimony
91/III:137 (r. 5): Feasibility Study
More HEARING OFFICER's Dissimulation
92/IV:3-7 (a. 8): Sham indecision
Mr. DONOVIEL's Testimony
94/IV:40-41 (r. 13): "Get Ortega"
Assistant Business Manager's Testimony
95/IV:19 (r. 8, 21): Second Friday
/IV:20 (a. 10): “Recall” Dr. Ortega
96/IV:21/24: Purchasing uncertainties
Testimony by CONSUMERS of Information
98/IV:54 (r. 10,25): 1st yr resident
100/1V:68/26 - 69/26 (a. 30): Leading
Ex-EXECUTIVE PIRECTOR's Testimony
102/V:10 (r. 9): Supporting decisions
103/V:13-15 (r. 7): Poor management
105/V:18 (r. 51): When is A.L. needed?
Appendix-xii
More CONSUMER Testimony
106/V:28 (a. 24): How to treat talent?
Ex-EXECUTIVE DIRECTOR's Testimony
107/V:35 (r. it Budget wanged by UCD
/V:41 (r. 42): Before Dr. O'Connor
More CONSUMER Testimony
nm 19): Ex-con not believed
r. 20): 2nd year resident:
(a. 28): Alumnus at hearing
(r. 5) Senior resident:
More HEARING OFFICER's Errors
/V:91 (r. 31): Fair hearing?
/V:95-96 (a. 26): Is this fair?
/V:110-111 (r. 31): Hearing denied
/V:110-111 (r. 32-33): No hearing
/VI:4-5 (r. 34): Collusion sensible
Dr. ORTEGA's Testimony
118/VII:47 (r. 15,18): Volunteerism
119/VII:137 (r. 18,48): Lawlessness
/VII:173 (r. 36,43,48: Sexual irony
121/VII:225 (r. 58): Homosexual scorn
122/VII:387-9 (a. 19,37): MTurn-around!
131/VII:440 (r. 56, a.19): Trumped-up!
132/VII:443 (r. 56): What did happen?
134/VII:523 (r. 37): What will happen?
Cross-references, EXHIBITS, TESTIMONY
2/[Sexual Harassment Policy due June 15,
1981: ex post facto. |
6/[Under G.C. Sec. 14780, no further
approval is necessary.
13/G.C. Sec. 18714, 18703, Ex. 13a, SPB
Rule 540, 540.2, 540.3
Appendix-xiii
14/Skelly Hearing 16/Ex. xv-J
19/Exhibit E, BRYANT v. SPB, 1950, 96 CA
2a 423, 215 P 2a 512, SKELLY decision
26/G.C. Sec. 19574.5
29/Exx CC, ZZ, Argument "1-c", G.C. Sec.
3528
30/[1:122] 32/(Exhibit xviii):
36/Exhibit 16b 37/(Exhibits 13a,b)
38,40/Rule 131 42/(Cf. Exhibit E)
42/(Cf. Exhibit P) 43/G.C. Sec. 18714
43/(Exhibit G) 44/Ex. xiv, graphic
44/(2 CAC 540-3) 44/(Exhibit N)
44/VII:192-8 47/({17], r- 27)
55/Discovery Act 58/Rule 61 Skelly
73/(Exhibit xxi) 76/Exhibits 17-19
76/Exhibit H 78/under 776
93/V:95 93/V:96
97/Ex. SS 118/SPB Rule368
119/GC 19302a 121/Rule 303
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EXHIBITS
All had been designated for inclusion
in the Joint Appendix. The copies from
the court files from which the following
and those in body, addendum and appendix
of the brief had been excerpted have
been submitted to the Court with letter
of transmittal from the clerk of the
Napa County Superior Court, whose
administrative record was asked to be
noticed by federal court at the behest
of petitioners. |
Ex. 1 (a. 15): Writer not employed:
"Sept. 4, 1981
"Dear Dr. O'Connor:
During my employment in the Prof.
Library at the hospital I had some
unpleasant contact with Dr. Ortega.
For the first nine months I. saw
little of him..."
[Temporary nine-month employment as
student professional assistant was over
Appendix-2
after respondent was dismissed by phone
when additional charges were invited. ]
Ex. 2 (a. 16): Intern not an employee:
"To Whom It May Concern:
"This letter is a ‘statement
regarding contact I had with Dr.
Ortega as a social work intern
during the academic year of 1978-79.
"
[Sexual Harassment Policy invited from
NAPA by June 15, 1981: ex post facto.]
EX.
EX.
EX.
3a (r. 12): LOA changed to 6 months:
"I have NOT requested and/or
authorized any leave of absence from
my position due to family illness or
Obligations and in no way intend to
be away from my job until January 8,
1982, which the form claims is my
date of return."
s/Dr. Vaughn
4 (r. 12): Dr. Ortega must void LOA:
"Return at an earlier date is only
with the approval of the appointing
power",
7 (r. 14): Mrs. Owen quotes ex-con:
"felt the decision not to allow him
to change his rotation period and
work here during the month of July
Appendix-3
was a way of reprimanding hin.
", . .if we wanted any statement
from him he would be glad to supply
it. He indicated that he enjoyed
the residency program, that he was
getting good recommendations from
other staff, and that he hoped to
make a career in state service. The
only part he disliked was the fact
that Dr. Ortega used his position to
press the residents in certain
areas."
Ex. 10 (r. 46): Computer "disappears":
"8/17/81 1120 hrs - Officer to
Professional Education to take
report of missing property.
"Officer talked with Mrs. CIRAULO
(RP) who stated she received a call
from Dr. ORTEGA (S) this morning
between O800 and oO8i0 hrs. He
wanted to know what appointments he
had. He then advised her that he
had the computer.
"The computer .. . is kept in Rm.
1363. It is made up of four units.
"Tt has an approximate value of
$5,000 .00
"Tt is unknown when ORTEGA came to
the hospital and removed the
computer. Itis believed it was
sometime this weekend. (8/15 or
8/16)."
Appendix-4
"RECOMMENDATIONS: R/O recommends this
matter be turned over to the
committee who are reviewing Dr.
Ortega's department at this time, to
determine if any criminal activity
has occurred.
s/JBH/jgv/ml
Ex. 13a (r. 7): Approved subpurchases:
"Disk II IF (for faster correlation)
$645
"BW Monitor (to relieve overcrowding)
240
"Applewriter (software, not a printer)
75"
Ex. 13b (r. 10): To link data bases:
MODEM and Timer (for access to USF,
Stanford) $350"
Ex. 14 (r. 7): "Thank-you" to residents:
"April 13, 1981
"TO WHOM IT MAY CONCERN:
"I want to thank all who have
contributed to the acquisition of
the Apple Computer for the
Professional Education Department of
Napa State Hospital. It will be
used exclusively for training of
psychiatrists.
"Sincerely,
"s/D.M.O"
EX.
EX.
Appendix-5
15a-1: “Forgotten" thank-you note:
"Apr. 13°
Dear Mr. M:
"Thank you for your magnanimous
donation of a printer and the
associated hardware (total of
$2,210.00) to the Professional
Education Deprtment of Napa State
Hospital.
"We share your hope that this will
facilitate the dissemination of
learning among all professionals.
"Sincerely,
"(Unsigned)"
15a-2 (r. 5): $2000-printer donated
"April 4, 1981
"Dear Dr. Ortega,
"T am pleased to inform you that
management have approved donation of
a printer and the associated
hardware for hook-up with your Apple
computer to be used for education
and research at the Napa State
Hospital. We hope you will accept
this donation as a small token of
our willingness to participate in
your program.
"The above equipment is covered by a
90-day warranty. If you have any
question on this matter please don't
o
Appendix-6
hesitate to call me.
"Sincerely,
"S/A. M."
| Apple has an agreement with
California to introduce micro-computers
state-wide for mutual benefit.]
Ex. 15b-3 (r. 7): 15a-1, but signed:
"s/D.M.0."
Ex. 16a (r. 8): "Unprocessed" computer
training contract.
Ex. 16b-1 (r. 9): Same as 16a but
approved . by Chief, Systems Review,
Health and Welfare Agency.
EX. 16b-2 (r. 8): "(E)ffective from date
of such approval" (July 15, 1981, before
respondent was placed on A.L.)
[Under G.C. Sec. 14780, no further
approval is necessary. |]
Ex. 17 (r. 27): Dr. Onne's photograph as
a model.
Ex. 18 (r. 27): Valentine Card to rebut
Dr. Sutton.
19 (r. 27): Classic love poems for
"rebuttal"
[If a wrongly worded warning can save
Appendix-7
criminals from any prosecution, surely
wrongful acts can reverse dismissals. |
Ex. 21 (r. 11): vs. automatic dismissal:
"June 19, 1981
"To: Mrs. Owens, Personnel Officer
"From: Magno J. Ortega, M.D.
"Subject: Richard M. Vaughn, M.D.
"Dr. Vaughn requests delay of his
next rotation and will be on Leave
of Absence from July 1, 1981 until
he reports at Highland Hospital.
"We will let you know when he
reports there."
"s/M.J.0.
Ex. D (r. 5): Prior Feasibility Study:
"March 18, 1981
"Dear Magno:
"Here are the justifications and
specifications for the APPLE system
that I recommended for your training
program. . .
"Note that the MODEM and Timer may
best be purchased through the
University. . . The Timer would
allow carrying out on-line reaction
time experiments and the Modem would
allow you to address the University
EX.
Appendix-8
computer center or any other of the
various data nets that night
interest you including, of course,
the Libraries of Congress and NIH
(e.g. Medlars) and so on.
", . . (I)t would allow residents
to have hands-on experience with a
computer. They would be able to
learn Basic programming, compute
simple statistics for themselves and
have access to the computer center
at the University of California for
more elaborate and detailed multi-
varied statistics. ..
" - - It could, of course, very
easily be totally usurped by people
like library and clerical services
Since it also makes preparation of
manuscripts and automated printing
of letters very easy.
", . . I hope this is the sort of
information that you want.
"With best personal regards,
"s/Noch"
D-1 (r. 9): Computer for training:
"Memorandum
"May 22, 1981
"Magno Ortega, M.D.
"Your contract for Professional
Education's computer is being
reviewed by Mr. Friday. I would ask
Appendix-9
you to please make an appointment at
your earliest convenience to see him
and discuss this contract.
"s/D.M.0."
Ex. E (a. 19): A senior resident:
"A. Overtime Compensation. This al-
legation is completely out of focus
and perspective. It fails to re-
cognize ° . ° the active
participatio of the residents, in
conference with Dr. Ortega, to seek
ways and means of raising money to
purchase a mini-computer. The(ir)
interest .. . arose, in large part,
from my work with similar computers
under the direction and supervision
of Dr. Enoch Callaway, Director of
Research .. . University of Cali-
fornia, SFO. This work was one day
per week in January, February, and
March of 1981, and was part of my
residency in Psychiatry... MThis
led to our conferences previously
mentioned . ..It is not at all
clear that Dr. Ortega violated any .
- policies or regvlations since
nothing was really done...
"C. Sub-paragraph 4 of this
allegation states clearly, suc-
cinctly, and sufficiently all that
needs to be said about this alleg-
ation: "4. The contract has not
been approved and Mr. Saeedi has not
been paid." I would ask then this
simple question: Where and what is
the evidence or substantiation for
any punitive action when no one has
Appendix-10
a basis for complaint? Is the State
Mr. saeedi's advocate for this
action? ... ;
"E. Deception. This entire
allegation is patently absurd for a
responsidle executive director or
administrator to present. It
reflects as much upon the ineptness
and inability of the executive to
administer and to manage as it does
upon the subordinate to present do-
cuments for consideration and sig-
nature.
Sub-paragraph E11) states: This
was done under the guise of an emer-—
gency and after you refused the Ex-
ecutive Director's order to go
through the chain of command“ Are
we to believe that the Executive
Director is unable to give cogent
orders? Further, in this instance,
what is the chain of command? (I
believe it to be Director of Pro-
fessional Education to Executive
Director.) Again, as in previous
allegations, the sub-purchase orders
were never executed, no money. was
Spent and nothing was. purchased.
(Now if you were fishing, your catch
would have escaped because you
attempted too early to pull the
hook.
"Next, we read in this allegation
direct Statements regarding Dr.
Ortega's intentions with Dr.
O'Connor to "deliberately mislead",
"actively deceive" and to not follow
NSH policy and procedure. Now, I
Appendix-11
ask you, if Dr. O'Connor is fully
aware of these policies and
procedures, why did he not cause
this interchange to come toa halt
and why did he not counsel Dr. Or-
tega on his apparent, patent and ev-
en blatant disregard for these po-
licies? It is apparent to me that
Dr. O'Connor was a willing
participant in this matter, neither
misled nor deceived until some
subordinate later brought this to
his attention.
"Paragraph F 1) alleges that Dr.
Ortega removed the computer and
printer from NSH on August 15-16,
1981, without authorization and took
them to his home. Ownership of this
equipment has not been established;
therefore it seems ludicrous to
allege that authorization is needed
for one person to remove personal
property from one place to another.
It does not belong to NSH or to the
State of California; it does not be-
long to any indivdual who has filed
a law enforcement or legal complaint
and there appears to be no valid
reason for accusing Dr. Ortega of
anything.
"G. Leave of Absence... One thing
is clear through personnel policy
and Dr. Ortega's previous actions:
Dr. O did have the basic authority
to place the medical resident on a
leave of absence ...I do not
understand nor are here given any
explanation of why it became neces-
sary for someone to (a)void a leg-
Appendix-12
itimate, duly authorized Leave of
Absence "in order to honor the
State's obligation to an employee".
This smacks again of administrative
incompetence anda real failure of
the executive director to support a
department head. Furthermore, it is
not at all clear what "inappropriate
personnel practices" were carried
out by De. Oe « © «
a Sexual Harassment of Female Re-
sident. This allegation is nearly
unbelievable in California... To
allege misconduct of an American ci-
tizen ten or more years after the
alleged misconduct is so ludicrous,
so far out of the bounds of common
law as to be unworthy of addressing
by this hearing... Do we ask why
no other similar incidents are men-
tioned? .. . Or do we question why
this lady has continued a close
professional relationship on the
staff of the Department of Profes-
Sional Education in the light of her
serious allegation?
"STANDARDS: . . . He is uniquely
incisive, stimulating, challenging,
and especially is he personally pro-
fessional. For each resident
trainee Dr. 0 applies himself to as-
sure the best possible training
progran. In no other residency
program with which I am familiar is
the Professor so intimately involv-
ed, so fully committed to the train-
ing cf his residents...
"This hearing has, in our view, no
Appendix-13
other recourse than to reverse the
improper dismissal of Dr. 0. and to
reinstate him..."
Ex. G (a. 40): DUE PROCESS VIOLATIONS:
"The Personnel Board Rules’ were
promulgated under mandate of
Government Code Sec. 1874:
"(a) Nothing in this part shall
preclude the board from providing py
rule for a system of adjusting
employee grievances which SHALL be
administered WITHIN the department
BEFORE recourse to any remedy
provided in this part (which
includes:
(Sec. 18073. The board shall provide
for dismissals, demotions, sus—
pensions and other punitive action
for or in the State civil service in
accordance with Article XXIV of the
Constitution and this part.)
"THUS, VIOLATIONS THEREOF VIOLATE
MORE THAN THE RULES:
a. SPB Rule 540. A grievance exists
whenever an employee believes’ that
he/she ithas in any manner been
adversely affected in employment by
an action or failure of action by
the appointing power, a supervisor,
or another employee.
"540.2 PURPOSE AND OBJECTIVES. .
Every reasonable effort should be
made intially by the employee con-
cerned and the employee's immediate
EX.
Appendix-14
Supervisor to resolve the grievance
informally. If such efforts do not
produce a solution, the objectives
in following’ the more formal
procedure are first to establish
what the facts of the situation are
and then to arrive at an appropriate
solution under these facts rather
than dealing in personalities...
at as early a stage in the procedure
as practicable, sY SOMEONE NOT IN-
VOLVED IN THE IMMEDIATE SITUATION or
direct line of supervision.
540.3 SCOPE .. . Employees SHOULD be
encouraged to use the less formal-
ized grievance procedure unless they
BELIEVE this procedure will not
afford them adequate consideration
of their grievance.
[This is the justification for the
Skelly Hearing: if the aggrieved is the
Supervisor, he must have all the
materials on which his grievance is
based for the supervisee to explain away
and only if the conflict cannot be
resolved informally may the supervisor,
at his discretion, decide on formal
disciplinary action. ]
H (r. 28): Superior Court Order:
Appendix-15
"Judge Hon. PHILIP A. CHAMPLIN, Dept.
One, 11/2/81
"MAGNO J. ORTEGA, M.D., Petitioner, In
Pro Per
"D. M. O'CONNOR, M.D., Respondent, ASHER
RUBIN, Deputy Attorney General
"ORDER TO SHOW CAUSE FOR STAY ORDER:
COURT NO. 43403
"MOTION TO PRODUCE:
"After hearing arguments of
counsel and the matter having been
submitted, the Court orders that the
Motion to Produce be granted as
follows:
7". That copies of all sub-purchase
orders be furnished to Petitioner;
"2. That Petitioner be furnished any
statements taken relating to persons
in connection with the investi-
gation;
"3. That Petitioner be furnished any
rebuttal documents to Dr. Sutton's
statement.
"The Court further orders that the
stay be denied provided the Attorney
General complies with the discovery
order.
[Can denial of stay still be vacated
since the Attorney General did not
Appendix-16
comply with the discovery order?]
Ex. J (6): vs. charge of false deadline:
"DEPOSITIONS and STATEMENTS
by NAPA EXECUTIVE DIRECTORS:
"What is the significance in state
Operations of April 15?
"Dr. Linn: It is the last day of the
fiscal year for purchasing equip-
ment.
"Dr. Spratt: It's the date that
budget requests for the next fiscal
year must be submitted to the De-
partment.
"Dr. O'Connor: I'm not sure (on the
witness stand)."
[For other summarized disagreements, see
Exhibit xv-J.]
Ex. L (r. 22): BEFORE the hearing:
"The Superior Court
"Napa County, Calif
"Your Honor,
at received a strange telephone
warning today that I might be
arrested like another doctor was
this week...
"What makes me suspicious is that I
got a hearing date three months
ahead of the on-going schedule:
EX.
EX.
Appendix-17
within a month, almost to the day,
that I received notice of punitive
action, unless I resign.
"And I can't get a continuance of
hearing except for good cause if I
am under arrest.
"Hence this anticipatory writ for
habeas corpus, if this is permis-
sible.
"Sincerely yours,
"s/M.J.0.
"2 October 1981"
M (r. 24): Biased Hearing Officer:
"To Whom It May Concern:
"This is what I heard the hearing
officer, Mr. Waller, say before the
hearing on Oct. 29, 1981, started:
"'Oh - We have what we need
here, this won't take long... .'
etc., etc.
"Signed under penalty of perjury."
N (r. 21): Denied grievance channel:
"This is a true copy of my plea to SPB
for informal hearing by law of prior
grievances before the Secretary of
Health:
"AN APPEAL
EX.
Appendix-18
"I WAS UNJUSTLY DEPRIVED OF MY
JOB, A JOB WHICH I THOROUGHLY
ENJOYED WITHOUT BEING ABLE TO SAY:
"I don't know what the charges are
-- I don't think anything came out
that I wouid consider a charge. . .
"I thought I had satisfied every
question they brought up...
"I am at a loss to go into detail.
"There was no evidence raised...
"The fact is, I even offered my
resignation that first day...
"I understand the Secretary is a
reasonable man. Is it possible for
you to make an appointment for me to
see him?
"I DON'T EVEN KNOW IF SAYING ANY
OF THESE WOULD HAVE MADE A
DIFFERENCE AT ALL NOW!
"S/M.J.0.
"31 Aug. 81"
O (r. 60): DEMURRER (Pres., S.P.B.):
"To Dr. O'Connor, delivered October
28, 1981:
"'"Granting that all you say in
your complaint is true, you still
have no legal claim against me,
because we are in the wrong court,
(or) the complaint just does not
Appendix-19
state facts sufficient to constitute
a cause of action, (or) there is a
wrongful misjoinder of parties or
causes of action.' (Cf. Exhibit E.)
"Bryant v. SPB, 1950, 96 CA 2d 423,
215 P 2d 512: ‘If notice is
required, the complaint must state
sufficient facts to show that the
accused committed some type of
prohibited conduct.' (The ‘accused'
in this landmark case was not even a
'permanent' employee. )
[The Skelly decision recognizes the
property interest of permanent employees
in tenured employment. ]
Ex. P (r. 23): "“Rebutted" by souvenirs:
"October 23, 1981
"Hearing Office Section
"State Personnel Board
"Dear Sirs:
"Dr. Ortega has organized and
directed an outstanding psychiatric
residency training program that has
produced many extremely qualified
psychiatrists who now staff Dept. of
Health and Dept. of Corrections in-
stitutions. . « The quality of
training given has enabled the
graduates to treat the most diffi-
cult patients and to assume posi-
tions of leadership within the De-
partments. . . Finally, the rate of
Appendix-20
passage of specialty board . exami-
nations of the graduates has. been
excellent and has exceeded the rate
of most other residency programs. .
. (I)t is totally inappropriate to
fire him on the basis of the charges
presented(:) ...
"1) Allegations concerning the com-
puter. I feel that it is not im-
proper for residents or other en-
ployees to donate money to purchase
equipment that they would like to
use in their work or training which
the state cannot provide. .. Fur-
thermore it is always possible to
disagree or refuse his suggestions.
"2) Payment of consultant to train re-
sidents on the usage of computer.
For at least the last ten years all
consultants have been paid for a
full days salary when they come to
give a guest presentation. .. Many
times travel expenses would far ex-
ceed the amount they are paid in the
customary fashion. .. Dr. O'Connor
and other hospital administrators
have been well aware of this prac-
tice for many years.
"3) Allegation that Dr. Ortega 'took
home state property'. .. In the
first place, Dr. Ortega's home has
been regularly used by residents as
an off-campus training site for at
least ten years. .. Dr. Ortega
designed the architecture of his
home in order to facilitate group
meetings and other training ses-
sions.
ee et ee
+ eee
Appendix-21
"4) It is alleged that Dr. Ortega
deceived Dr. O'Connor into signing
hospital requisitions to purchase
minor parts for the computer. I
feel it is Dr. O'Connor's respons-
ibility as an administrator to re-
view materials before he signs them.
"S) Charges of sexual harassment. . .
In these ten years I have never
heard of any incidents of ‘'sexual
harassment’.
"In summary. : . These
irregularities that may exist are
relatively minor when you consider
the overall performance of Dr.
Ortega and inno way justify the
decision to dismiss him.
"T hereby certify under penalty of
perjury, etc."
"s/Dr. Sutton
Ex. T-2 (r. 19): Chief Resident noted:
"Fr, 31 July 81:
"When we got to the hospital, we
found Mr. Friday talking to the
secretaries and we were soon told
that Dr. Ortega's office was locked,
the locks were changed, and that Dr.
Ortega had been asked to take a
vacation.
"Mo, 3 Aug:
", . . The meeting was requested
Appendix-22
by Dr. O'Connor to tell us what was
going on. He was sorry for the in-
vestigation but it was the first
time that two people had complained,
in writing, and he was obliged to
look into it.
"He was very positive nothing
would change and he spoke very
fondly and highly of Dr. Ortega. He
related, at length, his own
application to Napa State Hospital
and choice of the program in spite
of having been accepted by many
other reputable programs in the
country. It was Dr. Ortega's
creative approach that had attracted
him to the program. He also spoke
about his problems with Dr. Ortega
when he did not want to go to Mt.
Zion Hospital, but during his Board
examination had been grateful to Dr.
Ortega for making him go to Mt.
Zion.
"He was so positive that all would
he well... but got Dr. Vaughn (or
Dick as Dr. O'Connor called him)
sufficiently worried to make him ask
about possible retaliation when Dr.
Ortega returned. Dr. O'Connor
reassured him by saying that Dr.
Ortega was not that type of person.
"Fr, 7 Aug:
", . « I was asked questions about
- « « the difficulties I had with
Dr. Ortega. I remember feeling
rather angry during the week-end
that followed at the way the inter-
Appendix-23
view had concentrated only on the
negative events. . .
"“Week-end of 15-16 Aug:
"The computer 'disappeared' and as
a result we were told that his va-
cation had been made ‘indefinite'.
"Tu, 1 Sep:
"Before the 10:30 A.M. conference,
Dr. Brannick said that he had an an-
nouncement to make. He said that he
had been instructed by Dr. O'Connor
to inform us that Dr. O'Connor had
decided to dismiss Dr. Ortega. Dr.
O'Connor wanted us to hear of the
news before it was announced to the
rest of the physicians at the
Medical Staff Meeting on Wednesday
afternoon, the 2nd of Sept.
"The shock of the news and the
discussion that followed led tothe
cancellation of the case conference
that morning. We tried to meet with
Dr. O'Connor but he was not
available -- in spite of the fact
that he knew that Tuesday was’ the
only day when all the residents were
at Napa. Therefore a letter was
drafted to Dr. O'Connor and was
hand-delivered. . .
"We, 2 Sep:
"Dr. O'Connor agreed to meet with
us for a “brief" period in the af-
ternoon before the Medical Staff
Meeting but the meeting lasted for
Appendix-24
1-1/2 hours.
"., . « To the question "Why now"
he said .. . because of written in-
formation he had received some six
weeks ago. He had received simul-
taneously in writing two separate
issues from two separate people ab-
Out two separate people...
"Dr. M. asked if Dr. Ortega was
investigated for the two allegations
only.
“_ had commented that it had
looked like his whole life had been
investigated.
"Dr. O'Connor then said that Dr.
Ortega had offered his resignation
but that Dr. O'Connor would not ac-
cept it. Instead, Dr. Ortega would
go on vacation and they would in-
vestigate him while he was away.
"Dr. O'Connor then said that on
Friday last (August 14th), Dr.
O'Connor had agreed to accept the
resignation but Dr. Ortega had
refused to resign and therefore Dr.
Ortega had to be dismissed.
"Dr. §S. asked if he would find a
new Chief who is as creative and cne
who would be able to maintain all
the affiliations that our program
now enjoyed.
"Dr. O'Connor said that he could
not promise some quite as creative
but that he would look all over the
be law tee ——
EX.
“4
Appendix-25
U.S.A. if necessary to get the best
replacement and that he would always
be there to take care of our inter-
est.
"Whereupon Dr. P. asked Dr. O'Con-
nor that he was promising all this
but would he still be there to keep
his’ pror‘se.
"Dr. O'Connor assured her that he
would still be there unless a
resident decided to stay there for
20 years.
"He informed us that we may see
Dr. Ortega informally and that le
hoped that he too wo.ld be able to
see Dr. Ortega.
", . +» He had serious charges
against Dr. Ortega and that even if
Dr. Ortega went to the Supreme Court
and won, he would never be able to
come back to Professional Education.
"Then Dr. C. asked about Dr. Or-
tega's pension rights and we were
told that a person loses all pension
rights when he is fired.
"e/A.G."
T3 (r. 18): Senior Resident noted:
. Dr. O'Connor mentioned that
complainer (?) had stipulated in
letter that if Administrator of NSH
would not look into his complaint
the State investigators would be
called in...
Appendix-26
"(S)aying that it was customary .
- « tO put the program directors on
administrative leave. To some ex—
tent he speculated that
investigators would not be inhibited
in doing their job."
[ Another choice between not using
"insiders" to investigate or violating
G.C. Sec. 19574.5.]
al” , ° He solicited our
cooperation in the investigative
procedures. ..,
"Mr. Stratton: 'Is it a common
practice among Filipinos to call one
another aunts and uncles even if
they are not relatives?!
". « « I felt very uncomfortable
then. If this was an investigation
and if I had a lawyer “hen, would he
have allowed me tc _ go through
further interrogation? I question
the partiality of the investigators
at this point...
"There were side-comments about
attracting the residents into buying
the computer by promising com—
pensation time if they work on it on
a holiday and the expectation to be
reimbursed. Dr. Laskay commented
that it appeared as if it was being
given as a gift when it was not.
"There were no questions on sexual
cite, Se tg a ew
Appendix-27
harassment as warned by Dr. Vaughn
would be one of the issues to be
investigated. Dr. Vaughn brought
this up after the first meeting with
Dr. O'Connor.
"Q-2~8'
"The residents’ brought up
uncomfortable feelings generated
during the interrogation by the in-
vestigation committee. We learned
from Dr. O'Connor himself that the
issue abovs Dr. Laskay attempting to
interview Dr. Metcalf was not
documented in the committe's report
to Dr. O'Connor. Neither was it
documented that I was asked a racial
question.
[It is natural not to try to
incriminate one's self. Since these
excerpts leave tne rest to the
imagination, it must pass the test used
in making a summary judgments, which
deliberately errs towards maximum
leniency towards the party against whom
the judgment is sought without going
through trial by ordeal. ]
"The general feeling was that it
was a biased investigation but Dr.
O'Connor responded that it was rot.
Appendix-28
The credibility of an allegation
of sexual harassment which occurred
years ago was questioned.
"Complimentary Statements about
Dr. Ortega as a unique and competent
chief were brought up by the
residents. .. .
"I asked Dr. O'Connor whether the
memorandum still holds about
residents not being allowed to
contact Dr. Ortega officially or
unofficially was still binding. He
said that Dr. Ortega was no longer
officially connected with NSH and
that the residents should feel free
to contact him. He said he would
call Dr. Ortega himself one day.
"I also asked Dr. O'Connor if the
residents were still expected to
produce the checks and "thank-you"
letters Or else expect adminis-—
trative action for insubordination.
Mrs. Owens stated that we did not
have t9, unless there was a court
order to do so.
[Being sued for fraud is still being
held over Dr. Ortega's head for plea-
bargaining purposes.]
"., .« « Dr. O'Connor reassured the
residents that UC Davis wouldn't
take over the NSH program and that
he'll always try to protect the
interests of the residents.
we S PALA]. b ORO Mw ee ered
Appendix-29
m . « Dr. Metcalf, one of the
faculty, .. . brought up the fact that
he had been called by one of the
investigators who asked him -- Tell me
all the bad things you know about Dr.
Ortega. He said this made him ver
angry and upset and that he could (not
have asked it in a less subtle way.
"Tl declare under perjury that the
foregoing is true and correct.
"s/"(Cf. Ex. ZZ, Argument "1-c")
U-2 (a. 19): MISSING FROM TESTIMONY:
(18)108: ", . +. Both chiefs of
residents before and after my
dismissal attended a physician's
union meeting which questioned
whether I should be represented
against the hospital whose executive
director was rumored to be a part of
the bargaining team. .. And _ the
agenda of that meeting (Exhibit CC)
I now introduce as evidence of
violation of code provisions on
legitimate representation of public
employees.
G.C. sec. 3528. Employment
organizations shall have the right
to represent their members in their
employment relations, including
grievances, with the state. . .
Ex. Z (a. 15, 16): COMPLAINT PROCEDURES:
"Time limits defined in these sec-
tions shall be adhered to unless a
mutual WRITTEN agreement exists bet-
EX.
Appendix-%30
ween the aggrieved person and the
appropriate reviewers.
[No such written agreement was
discovered even after court ordered that
all investigative notes be produced.
Counsel for Napa acknowledged [1:122]
not having sent this document before
petition for discovery was granted. |]
", «. «. The initial contact with
the counselor must be:
"(1) Within 30 days of the alleged
discriminatory action or decision
affecting the employee(s); or
"(2) Within 30 days of such action or
decision having come to the
attention of the employee. . ."
Ex. CC: STATE EMPLOYED PHYSICIANS
ASSOCIATION BOARD OF DIRECTORS
MEETING, Saturday, Sept. 19, 1981:
(8) New Business (da) Defense of
management as members (this item
discussed the longest).
JJ-2 (r. 26): Threat of scandal:
"Oct. 30, 1981
"Dear Dr. Ortega:
.. . - (I)f you intend to
we en A ells Ses ae Sia
Appendix-31
introduce that document we will be
compelled to offer rebuttal evidence
which is in our possession... In
the interest of fairness, however,
we are hereby informing you that we
do have relevant evidence bearing on
Dr. Sutton's credibility and we do
intend to use it should it be ne-
cessary. . . Finally, if you do in-
troduce the declaration of Dr. Sut-
ton, please so inform us by tele-
phone so that we can subpoena her
for cross-examination.
"Very truly yours,
"s/Deputy Attorney General
[Surely if one can threaten to subpoena
the innocent supporter of the accused,
absence of confrontation with accusers
without benefit of a single subpoena can
dismiss all dismissals. ]
. dJ-3 (r. 28, 64): Subpoenas denied:
"Q November 1981
"Dear Mr. Waller
"Kindly inform Mr. Rubin that as
head of the hearing office you have
not received a copy of Dr. Joyce
Sutton's statement, as he alleges in
a letter to me, with copy to you.
"The following are the witnesses I
*
Appendix-32
would like subpoenaed:
"Ms. Sharon Loris (civil rights
specialist, Dep. of Dev. Serv.)
"Dr. O'Connor
"Witnesses [I have not cross-
examined before the court granted my
petition for discovery.
From true copy of handwritten list
(Exhibit xviii):
"Mr. Friday, Mrs. Owen and
Heskett, Drs. Brannick, Jackson,
Vaughn, Carnazzo, Gandhi, Hoheneck,
Sutton
"Alice (hearing office secretary)
has @ handwritten list of all the
names, which she kindly copied for
me, and so does Mr. Rubin have one
given him at court when the petition
for discovery was heard.
"1 subpoena duces tecum for NSH
personnel folders of parties and
witnesses to this hearing.
[Mr. Rubin has free access to them. ]
"I must again protest, as I did to
the Executive Officer of the State
Personnel Board, that delays in
issuing subpoenas is detrimental to
patients the doctors must inconve-
nience for purely procedural consi-
derations. ..
"Their number will partly also
I il oe tame Oe Spy. rasan be de bts
Appendix-33
depend on the process of discovery
which you assert the hearing itself
is.
"Sincerely, despite overt disagree-
ments,
"s/M.J.0.
. SS (r. 21): Investigate conflicts?
"FOR YOUR INVESTIGATION
"T0 : The Attorney General
"THRU: The Director of Mental Health
(acting deputy director was on academic
leave from UCD
"FROM: Magno J. Ortega
"As Chief of Professional Educa-
tion, I have served the State of Ca-
lifornia for a third of my life.
During my tenure, at one-tenth less
the cost at other centers, the alun-
ni of our residency training program
has consistently showed better than
the national average pass rate for
board certification in psychiatry.
. And from other sources than state
taxes, we have a one-way vision room
(for family therapy), a video studio
and a computer to help us in
psychiatric education and research.
"We had survived two surveys in
tandem by a National Accreditation
Board for Psychiatric Residency
Training, which was prompted by the
Appendix-34
past chairman of (a) neighboring
university. . . Had the fine-toothed
comb used by. the hand-picked
surveyor found us wanting, our
residency training program would
have been disaccredited and our
funds up for grabs to compensate for
Our neighbor's lost federal funds
and community-supported training in
a sister state hospital.
"The pretext for the survey was
that our residents have to commute
to UCSF and SFGH. They overlooked
that (UCD's) Sacramento General
Hospital was further away. They
made Highland Hospital and Mount
Zion Hospital affiliations prime
requirements, as well as (hospital)
research. Research (/did) need
beefing up, even if the present
(acting) university chairman's last
two published papers were written
jointly with two of our alumni.
"But now, oddly enough, we also
have a tempest brewing in our
teapot. The tempest, like hurri-
canes, has aname. It is called
COERCION. Tempests have a way of
throwing up dirty debris, and it is
in this sense that I suggest in-
vestigation of the following. I
hope it is not seen as washing dirty
linen in public.
"I have worked well with all the
medical directors for the past 17
years and until now, with all the
clinical directors (before Mr.
Donoviel) and business adminis-
ee
Appendix-35
trators (before Mr. Friday). Othe-
rwise, I could not have accomplished
more than prior and other educator-
administrators in the civil service
systen. (Prior C.P.E. directed a
joint Napa-Sonoma Hospital Residency
Program.
"Coercion No. 1 took the form of a
Clinical Director's attempt, against
the wishes of the new Medical Dir-
ector (Dr. O'Connor), to exclude me
from the Governor's briefing room
when the doctors threatened strike
action. He (Mr. Donoviel) asked me
if I'd like to leave the briefing
room to talk to him and I. replied
that we had nothing to talk about. .
; At that meeting, I told the
Governor that Asian resident
trainees who had passed California
licensure examinations but were not
graduates of American medical
schools were paid half the stipend
of Caucasian doctors who had not
taken those exams. He promised the
inequity would be rectified and
asked me to help qualify more
doctors for state service. I have
and the inequity disappeared by re-
interpreting regulations (graduates
of approved medical schools became
applicants whom the state licensing
examinations and [ accepted from
anywhere in the world).
"Coercion No. 2 shows the tip of the
iceberg indirectly. The Business
Manager (Mr. Friday) erased my name
from the court-ordered parking space
one night. A couple of years later,
Appendix-36
when he thought the incident might
have been forgotten, he handed me
the spray paint can at a Christmas
party. More recently, my car was
given a parking ticket on a Sunday
for stopping at the door to my
office in a separate wing from the
hospital).
"Coercion No. 3 was when a non-
Caucasian resident was refused
quarters because she had a child. .
- I put her up in my house 5 miles
away until she could find lodgings
in town. (The child was quiet as a
mouse).
"(. . . Their fetish for silence
backfired recently, when a tenant
quietly died and was discovered only
because odor assails the senses
silently. ° ° No amount of
management training can replace
native talent for absurd decisions.
"Coercion No. 4 was a joint effort by
the Clinical Director and Business
Manager during the Medical Direct-
or's absence. In the dead of night,
they arranged for the copying ma-
chine to be moved to the furthest
wing from the Professional Education
Department...
"Coercion No. 5 was the Business
Manager's refusal to honor contracts
already approved in Sacramento (Cf.
Exhibit 16b) and the purchase orders
for uccessory computer components
already signed by the Medical
» Ee
Appendix-~37
Director (Exhibits 13a,b).
"Coercion No. 6 was when the Business
Manager insisted I not be allowed to
finish a (Friday) case conference in
order that the donation of the
computer itself to the hospital can
be further investigated.
[The special investigator assigned
to Napa was going to be away on
vacation by then, and the hospital
can start the investigation itself.
The Business Manager could not wait
even that long and had the locks to
my hospital office changed before
office hours Friday morning. |
"T was alleged to have coerced
contributors to donate towards the
purchase of the computer. .. By my
arousing their curiosity about a re-
volutionary tool in research instead
of guilt over not having done more
research, the residents contributed
the equivalent of one to two days'
pay on the understanding that if
they spent holiday time laying their
hands on the computer instead of
patients, they would get com-
pensatory time off, but not at the
expense of their schedule,and
subject to my approval. . .
"But I've perhaps opened my mouth
once too often on learning that the
hospital bus has dangerously thin
tires and that replacement won't be
forthcoming until Halloween. I
suggested that the patient govern-
ment will not hesitate to help out
EX.
Appendix-38
if invited, even if the state does
not mind delaying any outing to save
the hospital from embarassment in
case of accident...
"The Clinical Director had just
reported attending a two-minute
meeting of administrative echelons
400 miles from Napa. I hazarded
that if the president of the patient
government were invited, their
pressing needs would be funded in-
stead. An administrator (Mr.
Friday's better respected assistant)
agreed, and that was probably the
last straw, for the Clinical Dir-
ector (Mr. Donoviel) adjourned the
meeting with ‘Are there any other
jollies?'
"I doubt with all my heart that
Coercion Nos. 1 to6 could have
happened if I had been Caucasizn.
- None profited patient or hospital.
- « And the name of the game may be
Conflict of Interest. ..
"s/M.J.0.
"28 Aug 81"
CCC (r. 14): Final Query (not plea):
"oe Mississipi, blacks who
register to vote were arrested for
reckless driving through stop signs
when none existed.
"Is Rule 131 that does not apply
to any doctor the Napa version of a
stop sign?"
i
Appendix-39
"Must the hearing officer reconm-
mend the personnel officer for a re-
primand for inefficiency and incom-
petence in citing the wrong rule in
its notice of punitive action? Or
for negligence with malice afore-
thought in padding the allegations?
"Should he also cite himself for
accepting the charges unamended when
it contains such gross error... .?
"Can the board recommend to the
Board of Equalization that damages
be awarded to the victin of
inefficiency, incompetence, negli-
gence, malice and misrepresentation?
", . « Hobbes-like, bureaucrats
assert:
"All power comes from the State,
now that God is dead, and where
there is a ruler (appointing power),
he has been placed in his position
by the State (God if it is king).
Wherefore, whoever offers resistance
to the ruling powers offers
resistance to the State (the ancient
crime of sedition, called heresy
even earlier).
"The State (God) can take your
sons into his army (crusades), he
will take your daughters to serve
him (as long as you don't ‘harass’
her), he will take your best clive
fields (unmatched by any public
hospital training program outside
Kansas), and distribute them among
his servants (academic bureaucrats).
Appendix-40
"Thus, there are bureaucrats,
theocrats, and aristocrats. The
first is upheld by mediocrity, the
middle by mediocrity and grace, the
last by grace and excellence. . ”
[Rule 131 does not apply to Medical
Residents and only requires that:
("In order to be compensable by
cash OR compensating time off,
overtime in Work Week Group 1 and in
Subgroups 4A, 4B, aud 4D must be
authorized in advance, except in an
emergency, by the appointing au-
thority or its designated repre-
sentative. This authorization must
also be confirmed in writing not
later than 10 days after the end of
the pay period during which the
overtime was worked. Each state
agency shall maintain complete and
accurate records of all compensable
overtime worked by its employees."
[4C employees are not entitled to cash
payment for overtime worked. Even staff
doctors who go on night duty can only
earn compensatory overtime. Residents
who can only be assigned overnight work
on Fridays in order not to. be sleepy
during training sessions can only add
Appendix-41
their compensatory overtime to their
40 nD a we att
vacation. because their schedule is
always full. Wita a computer, future
patients stood to gain at the expense of
present assignments, and so they can
only practice learning it oa holidays.
Since Dr. Ortega has established the
priority of training even before night
duty, no one has questioned his requir-
ing residents to spend week-ends in
training seminars without compensatory
overtime. Do doctors in private prac-
tice charge their patients for attending
Continuing Medical Education Programs,
Or can they charge more because they
know more afterwards?
[Residents expect to earn more and are
willing to sacrifice half what they can
already earn as licensed physicians to
become specialists.
["Coercion" had become “arranged for"
,
EX.
Appendix-A2
and back to "coercion" when the
Overwhelming evidence of the hearing was
that the residents arranged to obtain
the kind of computer they wanted, and to
have it demonstrated to the other
residents, and then refused to let Napa
keep it before, during, ard after the
hearing. |]
[Can this Court undo the damage tha:
the State Personnel Board has done in
refusing to refer to the Board of Eq-
ualization what the Court of Appeals de-
cided warranted the award of damages? ]
[The rest of the Notice of Punitive
Action is equally absurd «nd hence not
dignified even by the state who has
omitted it from their Appendix.
Residents (Cf. Exhibit E) agree and
alumni (Cf. Exhibit P) agree.]
viii (r. 33, a. 26): 2nd delay:
* "We (Napa) hereby request that the
ee ee os
[What was arranged was to advance the
hearing before written testimony was
finished
adjourning when NAPA's,
Apperdix-43
hearing currently scheduled for
February 19 be continued to some
date the following week, . .
"s/Deputy Attorney General"
counsel refused to re-cross—examine. ]
EX.
x-a (a. 15): Exceptions to S.P.B.
"Findings" in "Proposed" Decision:
"1) "THE ABOVE DISMISSAL EFFECTIVE
SEPTEMBER 22, 1981 AND APPELLANT'S
APPEAL THEREFROM COMPLY WITH THE
PROCEDURAL REQUIREMENTS OF THE STATE
CIVIL SERVICE ACT." That statement
is false.
"In fact, the Act mandates, under
G.C. Sec. 18714 (Exhibit G), early
and informal resolution of griev-
ances and the establishment of chan-
nels (Ex. xiv oe} for process-
ing then (2 CAC 540-3) according to
SPB's own rules:
"When the aggrieved reports to the
same offical as the person against
whom he has a grievance, that
official decides and if he does not
resolve the grievance to the
satisfaction of both, they must be
referred to the next official in
and to deny oral testimony by
now §S.P.B.'s
Appendix-44
line (Exhibit N)...
"(Peon) asked that SPB refer his
grievance to the Secretary before
there were any written charges, but
SPB #£ ignored its mandate and
(mis) interpreted the specific
request for referral as an appeal to
written charges which came on
September 16, 1981. (Ex-peon)
appealed directly to the SPB the
Same day by registered mail and
(appeal) was received on September
21, 1981. But acknowledgement of
his "appeal" was dated Sept. 18,
1981. . .
[The rest of Exceptions to Proposed
Decision have been summarized in reply
to petition for certiorari and sup-
porting citations. ]
Ex. xi-a (a. 36): Undocumented Decision:
"June 1, 1982:
"Enclosed is Volume V.. . Volumes
IV and VI will be forwarded shortly.
"s/Hearing Reporter"
[Why was the hearing transcribed out of
chronological order? ]}
Ex. xv (a. 28): Exhibits in VII:192-8:
"xv-A (73): $‘Stanford Professor and
Nobel Prize nominee:
", . .I want to state simply that I
believe that the Napa State
residency has become one of the very
best in the State under Dr. Magno
Ortega's leadership in the _ sense
that ysis residents remain open,
; inquiri.g, and dedicated psychia-
trists."
:
' Appendix-45
|
|
)
"xv-C-2 (8): Dr. O'Connor's ex-boss:
"Administratively, it is poor
practice for an investigating body
to recommend disciplinary action.
Investigators should investigate and
other advisers help decide what to
do.
"With special investigators, I'd
: not want recommendations from him.
! I'd ask him for the facts he'd
found, and ask others for recon-
; mendations."
xvi-c (a. 28): An alumnus, now peer:
"Through collaborative arrange-
ments, 21 Department of Corrections
Career Psychiatric Residents have
been assigned to Napa State Hospital
Psychiatric Residency program for
psychiatric training for past 15
years. Under the directorship of
Magno Ortega, M.D., the Napa
Residency Program provided excellent
training for the 21 Corrections
Career Residents, who have become
well trained clinicians and compet.-
ent psychiatrists serving different
)
Appendix-46
correctional institutions."--Dr.
. Luke Kim, Chief of Professional
Education, California Medical
Facility, Vacaville.
Ex. xvii (a. 40): Hearing premature:
"At its meeting on January 3,
1969, the State Personnel Board
adopted the following policy on
employee discipline:
"4. Appropriate positive corrective
efforts such as training, perform-
ance evaluation, and counseling usu-
ally should be pursued before taking
a@ punitive action. When corrective
action is not successful, punitive
action should be taken. In the
absence of justifying circumstances,
a severe punitive action should be
preceded by less severe action or
other positive corrective efforts. .
"<. Punitive action should not be
based on isolated trivial offenses.
Such offenses usually should not be
included as a collateral basis for
punitive action taken because of a
serious offense.
"6. The Board will NOT tolerate any
burden upon the use of the appeal
procedure. There MUST be NO re-
prisal or harassment of ANY nature,
direct or indirect, expressed or
implied, of employees for the
exercise of their rights of appeal
to the Board."
:
|
ee
Tate the OE co Bt A AE RUPE
ow
tae Scale
eet ees
~
:
:
Appendix-47
[Peon took S.P.B. policy as the ground
rules for more than a decade, since they
have not been r vised, and cannot
understand why he is now an ex-peon.
Punitive action against him was decided
before corrective action was attempted.
Was there nothing to correct? The last
straw (r. 27) may have been the
photograph (Ex. 17). Dr. Sutton had
been president of the physician's union
opposite whicn Dr. O'Connor as_ state
representative must now sit at the
collective bargaining table. In fact,
she got the Executive Secretary of the
Union himself to come to Dr. Ortega's
interrogation, at which his role was
questioned and she was denied admission.
But miscegenophobia was not perceptible
as racial sexism until hearing officer
Saw Dr. Ortega arrive with another
alumna carrying legal reference books,
Appendix-48
when he visibly ‘grimaced, probably
involuntarily.
ORAL AND WRITTEN TESTIMONY UNDER OATH
Petitioners requested the United
States District Court "to take judicial
notice of the records... . of the
Superior Court ... of California,
County of Napa in the action entitled
MAGNO ORTEGA v. STATE PERSONNEL BOARD
No. 44526.
The volumes of the record will be
designated Chronologically, I to VII.
The pages of cross-reference in the
reply (r.), appendix (a.), motion (m.)
to proceed in forma pauperis, and in
affidavit supporting (s.) it will be
enclosed in parentheses after the
Outdented pages/lines of the record,
followed by statements/questions which
can not be invalidated/nor unanswered.
‘
'
i
Appendix-49
Folio I
(Hearing on Oct. 29, 1981)
| I:2/1-9 (a. 14): Dr. Vaughn recalled:
INDEX
(Order of) WITNESSES DIRECT CROSS
FOR THE RESPONDENT:
Elizabeth Reynolds 8
Edith Elizabeth Morgan 12 23
Kay Ann Thompson 39
Richard M. Vaughn 44, 97 59
Dorothy Owen 72
William Carnazzo 80
[AS soon as cross-examinations of Mrs.
Owen and Dr. Carnazzo were deferred, Dr.
Vaughn was recalled without prior
permission. Thereafter, Mrs. Owen and
Dr. Carnazzo were beyond "recall". ]
, 1:8/11-15 (a. 10): False first promise:
Dr. Ortega: May I ask when you
ask for weaknesses (sic) and I've no
way of finding out how to defend
myself against their testimony, can
I recall them afterwards?
Appendix-50
Hearing Officer: Certainly,
you may recall any witness you want.
1:36 (a. 24, 28): Access again promised:
Dr. Ortega: ...-=— can I ask
again, I can have the witnesses
brought back?
Hearing Officer: Well, if it
becomes extremely important upon an
offer of proof but normally in an
administrative hearing we finish
witn the witness at the time they're
called so we inconvenience those
people as little as possible. But
yes, there's a distinct possibility
if their testimony or continued
testimony is necessary to call them
back.
Dr. Ortega: Because as I have
Said earlier, my not having full
discovery limits my ability to mount
a defense, and if you are proceeding
with me not able to defend my case,
it's forming conclusions.
Hearing Officer: This is no
Such proceeding. We're attempting
to determine all the facts in each
case. If it becomes necessary to
recall a witness we'll attempt to do
so.
1:42/15 (a. 24): Third false promise:
Hearing Officer: Do you have
any questions of this witness?
Dr. Ortega: (No audible
response).
Hearing Officer: Apparently
Appendix-51
not. Witness will be excused.
Dr. Ortega: I reserve the
right to ask her back.
Hearing Officer: Well, if
something becomes relevant at a
later time you can assure me as_ to
what reasons we would recall her and
what you would like to ask her, then
certainly that may be possible.
We're not going to keep all these
witnesses sitting around the hearing
room, Dr. Ortega.
Dr. Ortega: I'm not talking
about now. I have no way of
preparing for her, for this, because
this is new.
Hearing Officer: If it becomes
necessary she can be recalled.
Dr. Ortega: I thought at the
beginning we had agreed because I
have not had full discovery, we will
be able to recall any witnesses we
Saw now.
Hearing Officer: I don't think
there was any finding you hadn't had
full discovery. The question is, it
may become appropriate to recall 2
witness and if we find it
appropriate to recall the witness,
we'll recall the witness.
The witness will be excused.
1:47 (r. 12, 54): Ex-con compelling?
Dr. Vaughn: .. .I was a frequent
verbal critic of Medicade in the
State of Virginia. . . And I placed
them in a position that either bring
Appendix-52
Some charges against me and allow me
to answer them or that I was going
to bring suit against them, at which
time they broug*t the Federal
Government in the case and brought
mail fraud charges against me, since
certain of my billings were
considered. not appropriate and were
delivered through the mail... I
was tried, convicted, and sentenced
to six years. And ordered to pay
(costs and) make restitution. . . I
Organized a@ reading program and
taught over a hundred inmates to
read who were previously illiterate.
1:55/24 - 56/26 (r. 13): "Get Ortega"?
Dr. Vaughn testified on 10/29/81 that
he waited while petitioners Mrs. Owen
and Mr. Donoviel talked;
". . « He asked me if -- if [I |
would allow him to proceed (sic) me
in speaking to Mrs. Owens about five
minutes, and I said certainly and so
he proceeded me talking to Mrs.
Owens. And then I went in and Mrs.
Owens could not have been more :
polite, .. . and told me not to be .
alarmed; that they had a way of
dealing with this and that I would
receive my check in very short
order."
a
1:79/13-25 (a. 14): Recall promised:
Mrs. Owen: I said (to Dr.
Ortega) what you really should have
Appendix-53
done if you were to do a punitive
action (can't punish the unsure for
being true to themselves), that he
(Dr. Vaughn) was, you know, being
insubordinate (reluctant to resume
rotation), then it's not a leave of
absence as requested by employee
(notice did not say it was
requested).
Mr. Rubin: [I have no further
questions of this witness at this
time, Mr. Hearing Officer.
For purposes of organization,
with respect to some of the other
allegations in the notice, I will
probably want to recall this witness
on the other charges if -- I just
think it will facilitate the
organization.
Hearing Officer: Well, this
witness of course is the personnel
officer and she's going to be her
for the entire hearing. So I think
it would be appropriate in her case.
1:80/5-16 (r. 25): To AWAIT discovery:
Hearing Officer: Therefore
it's granted.
Mr. Rubin: Thank you, sir. So
at this time [I have no further
questions.
Hearin,, Officer: Dr. Ortega,
do you have any questions of Mrs.
Owen?
Dr. Ortega: I have a statement
to make. If as you said this
Appendix-54
( hearing) is the practice of
discovery, because itis a fact-
finding hearing, I do not want to
participate, because it might mean
I'm waiving my rights to full
discovery. So have no questions (at
this time).
Hearing Officer: You will be
excused, Mrs. Owen.
Mr. Rubin: Your Honor, I'd
like to call Dr. Carnazzo.
1:88/8 - 89/5 (a. 25): Access O.K.:
Mr. Rubin: No further
questions, Your Honor.
Hearing Officer: Just on
minute.
Do you have any Questions of
this witness?
Dr. Ortega: Same position
Statement. I don't want to waive my
rights to full discovery by asking
any questions (now).
Hearing Officer: Well, as [
informed you earlier, administrative
proceedings are in effect a
discovery process. We're trying to
find out what the facts are at this
time. I don't want you to be misled
in that you have some sort of valid
reason for overturning these
proceedings by not asking appro-
priate questions during the course
of this hearing. If that's your
intent, you should be advised that
that's nota probability. This is
the proceeding where we do discover
what the facts are,
Appendix-55
Do you have any questions? You
should ask them at this time. This
will be your only opportunity.
Dr. Ortega: He works here.
There will be no inconvenience to
him. The stake of my career is far
greater than just simple inconve-
nience. So I beg to be excused from
this procedure until the courts hear
on the question of full discovery.
The Discovery Act in California are
very liberal and they were intended
to be. And it is no one's decision
except whoever needs it to decide
what he needs. Unless it is
privileged.
Hearing Officer: All right.
Your position is clear. The witness
will be excused.
[He was NOT "recalled" and when Dr.
Ortega called Mrs. Owen as his witness,
she was REFUSED. He was denied the
chance to correct her testimony as in-
dicated inside parentheses above, AND to
unravel the threads of the conspiracy
"to get Ortega". |
1:112/15-25 (r. 7): Documents withheld:
Mr. Rubin: So these orders
then were not for the actual
purchase of the computer itself; is
that right?
Appendix-56
Mr. Friday: That's correct.
Q: So you declined to process =
these at that time, is that correct?
A: That's correct. |
Q: Was that because you felt
that you couldn't authorize a
purchase of a printer and other
collateral equipment if the hospital
did not have title to a computer
itself? (Napa's Volunteer Services
had one.)
A: That's right.
Mr. Rubin; .. . have alleged
that Dr. Ortega submitted a contract
for Mr. Saeedi to be paid a total of
$1800 and we say that contract has’
not been approved; is that correct?
Mr. Friday: Is that the one
for this fiscal year?
|
|
|
|
|
1:119/1-6 (r. 8): Contract was approved:
Q: That's correct.
A: Yeah. That's correct. It
hadn't been processed.
I1:122/1-5 (a. 16): Incomplete discovery:
Mr. Rubin: .. . There may be
one, the policy directive on sexual
harassment, which we only recently
discovered which he might not have
had at that time. I'd submit that
there's no prejudice in that
connection.
[Directive requires written report of
Appendix-57
Civil Rights Specialist at every stage
of investigation, none were produced.
Court ordered that "all investigative
notes" be furnished Dr. Ortega, but not
a single one was ever produced. |]
1:124/15-22 (a. 11): Another promise:
Hearing Officer: Well, if it
is possible to continue this to the
fourth (of November), we'll continue
it on the fifth, if that's
necessary.
Dr. Ortega: And [I'll be
permitted to present all the
witnesses I need to make my case?
Hearing Officer: Certainly
we're not going to cut everybody
Short on time in the presentation of
evidence.
Dr. Ortega: Thank you.
Folio II
(Hearing on Nov. 16, 1981)
II:2/1-16, 5/10-18 (r. 21): re Skelly:
Dr. Ortega: (Present
petitioners) were instructed by
Superior Court to show cause why
discovery was not complete.
Respondents (then) promised to
have them mailed by the end of
business that day.
The next hearing was’ supposed
to be on November 4th and 5th, 1981,
Appendix-58
but the demanded documents (speci-
fied as the subpurchase orders) were
not mailed as promised, and my wit-
nesses had to be told the hearing
was postponed -- by whose request I
have not been told -- to 10:30 a.m.
today, November 16th, 1981.
Some of my witnesses (Dr.
Sutton, for one) have been
threatened. Some of the residents’
basic placements to meet California
license requirements have been
denied indefinitely.
Now I have the documents
(missing sub-purchase orders) on
which the charges are based, I
demand a (Skelly) hearing without
further delay, and it's 10:30,
November 16th, 1981.
Hearing Officer Waller: ...,
On the issue of the Skelly Hearing,
Skelly Hearings are, of course,
important and Rule 61 covers Skelly
Hearings. But if there's actually
no Skelly Hearing at all, the remedy
is for the State Personnel Board to
place a new effective date of
dismissal, and I am not prepared at
this time to rule whether there was
or was not effective Skelly
proceedings.
Therefore, I'm going to proceed
with the hearing and that ruling
will be made in the course of
preparing the proposed decision for
the State Personnel Board.
(Mr. Waller at lunch recess told Mr.
Rubin Dr. Ortega did NOT have a Skelly
Appendix-59
Hearing but Mr. Rubin argued that it
will just mean having to start all over
AGAIN. This hearing had ALREADY been
pre-scheduled in disregard of Agency
Procedures for Invoking discovery and
then re-scheduled twice BESIDES. At the
END of his. proposed decision, Mr. Waller
went along with Mr. Rubin: "During the
hearing the appellant made repeated
assertions that he was denied prehearing
discovery. Those assertions are without
merit. He was provided all relevant
information and documents." He made NO
reference to the contrary Superior Court
finding. ]
I1:52/5-23 (r. 28): Subpoenas touted:
Dr. Ortega: May I ask about
the subpoenas for my witnesses?
Hearing Officer: What we're
going to do on subpoenas, Dr.
Ortega, is that some of -- some of
these individuals that you've
requested to be present are actually
state employees here at the state
Appendix-60
hospital. So, there will not be a
necessity to issue a subpoena. I'm
merely going to ask the state
hospital to have those people
present.
Then the other people who would
be requested on a subpoena, we'll
give you a subpoena to serve upon
them to give them adequate time and
notice as to when we're actually
going to listen to them.
In other words, I don't want
people from, say, Palo Alto to show
up pursuant to a subpoena and sit
around all day when there's no
chance of us to hear their
testimony.
So when it becomes apparent
their testimony is necessary and
relevant and a time can be set for
them to be heard, then we'll issue
the necessary subpoena.
II:85, 86 (r. 51): Casual A.L. illegal:
Dr. O'Connor: .. . You were
trying to get me to allow you to
come back on the grounds the next
day, and I wanted to make sure that
you did not.
Dr. Ortega: Why not.
A: Because I felt it would
seriously encumber the investiga-
tion.
Q: How? |
A: By having you present with
the residents and the other people
that were concerned in this matter.
Appendix-61
[Either Dr. Ortega was awesome as a
mesmerist or the locksmith was also
going on vacation and will not be
available for investigators to get
inside Dr. Ortega's locked DRAWERS.
[(Freud would find this funny: A
healthy father may be curious about his
daughter's diary, but not in his son's,
Peers exaggerate in the locker room to
defend against homosexual doubts, but
also to indulge their curiousity about
peer performance.)
[The residents saw through the
subterfuge and there was an outburst
which prompted the hearing officer to
bare his heart: "These are public
hearings only so long as the public does
not become involved in the procedure." |
Dr. Ortega: In your
consultation to arrive at that
decision, what encumbrances would I
have presented?
Appendix-62
Mr. Rubin: Mr. Hearing
Officer, I'm going to object. The
question has been essentially asked
and answered.
Hearing Officer: He stated he
didn't want you there. I. don't
know. We could all speculate.
II1:88/7-19 (r. 16): DUE process denied:
Dr. Ortega: I take exception
to that because an administrative
leave involves deprivationof
property rights, and there must be
procedures followed for doing that,
and they're important. And it's
important that they know what those
procedures are. Without their being
known, anybody can be deprived of
income for capricious purposes.
Hearing Officer Waller: Do you
want to respond?
Mr. Rubin: Yes, sir. If Dr.
Ortega is under the impression that
the procedures with respect to
administrative leave were not
properly followed, then he's free to
file a grievance or bring a lawsuit
for loss of salary or Salary that
has been properly denied him, but
that matter is not relevant in these
proceedings.
[It is especially relevant WHEN a token
"routine inventory" is undertaken after
legal consultation Simply because of an
Appendix-63
ex-con's speculation at great emotional
and financial cost to his victim. ]
II:100-102 (a. 6): “Routine” procedure?
Dr. Ortega: Did you authorize
searching my personal papers.
Dr. O'Connor; After we had
consulted with the attorney in the
department, we felt that we could,
indeed, go into state property,
which was your office, and look into
the state property.
Q: Did you look into my
private letters?
A: Did I?
Q: Yes.
A: No.
Q: Did you authorize it?
A: I authorized people going
into your office, yes.
Q: Looking into my private
files?
A: Well, I don't consider
those to be private files. Those
are on state hospital grounds.
They're supposed to be state
hospital business, and I would say
that I authorized people to go into
the state office that you had
occupied previously and look into
whatever is in that state office.
Yes, indeed, I did that.
Q: And use my private papers?
Hearing Officer Waller: I
Appendix-64
think he's answered the question.
Dr. Ortega: Could you use my
private papers?
Hearing Officer Waller; The
answer is he didn't consider any of
the papers in that office to be
private. That's why he authorized
them to go through all of the papers
that were there.
Now, if you want to prove
Something else later on, perhaps you
can do that. I think we've covered
that subject.
Dr. Ortega: One of the
discovery papers that the court
demanded was a photograph.
Did you know about that
photograph?
A: Yes.
Q: When did you know about the
photograph?
A: I'm not sure of the exact
date on that. It was sometime
during the investigation.
Q: Before I was dismissed?
A: Again, I'm stating I'm not
Sure about the exact date of that.
Q: Did you decide then that
you would use it?
A: I am not sure what the
question is. ,
Q: Use the photograph.
Hearing Officer Waller; I
think that's Mr. Rubin's decision as
to what he uses and does not use,
Appendix-65
You can question him about that.
It serves no useful purpose to
continue to talk to Dr. O'Connor
about what he intends to use, or
what he does not intend to use.
It's not a personal matter between
you and Dr. O'Connor is what I am
trying to explain.
Reducing this to a personal
conflict between yourself and Dr.
O'Connor really doesn't serve any
useful purpose.
Dr. Ortega: Mr. Hearing
Officer, it is more than personal.
This is constitutional.
[Was "I'm not sure... " a signal for
hearing officer to testify? The ques-
tion of "What?" is as important as
"When?" in DUE process issues. |
1I:103/19-24 (a. 20): No coercion found:
Dr. Ortega: And who were those
who were complaining about having
contributed?
Dr. O'Connor: I don't
recollect as far as our
investigation is concerned. I've
never said that anybody complained
except the one person that I just
mentioned who had written a letter
that, among other things, mentioned
that.
Q: And he was the only one who
Appendix-66
complained about it?
A: As far as I know. As far
as the donations, that's correct.
No residents complained to me about
the fact that they had given money
to the state hospital for the
computer.
Q: And did this resident
contribute to the computer?
A: I believe he stated in
testimony here that he did not.
[The residents whom he criticized for
contributing did NOT want his money.]
T1:118/11 - 119/7 (r. 20-21): Rule 131?
Dr. Ortega (to Dr. O'Connor):
Before you recommend punitive
action, you must know what you're
Charging the person with violating?
Hearing Officer Waller: He's
alleged that it's all here. I mean,
we have to determine whether or not
it's true and whether, in fact —--
Dr. Ortega (to Dr. O'Connor):
Separate from that, there must be
laws that you allege to have been
violated. Do you know what they
are?
Mr. Rubin: I'll object.
Hearing Officer Waller:
Objection sustained.
Dr. Ortega: Mr. Hearing
Officer, is it your contention that
the violation need not Specify any
laws?
Appendix-67
Hearing Officer Waller: I'm
not contending anything, Dr. Ortega.
I'm merely trying to determine facts
by listening to witnesses, and
determine whether or not the
allegations are true or false, and
if true or false, what would be an
appropriate penalty. They's my sole
purpose of being here.
Dr. Ortega: For the record, I
would like to state that it is
unconstitutional to be vague about
what one is accused of.
II:112/22 (a. 20, 22): Who was deceived?
Dr. Ortega: The question is:
In all the time you knew me as Chief
of Professional Education, have you
been misled by me?
Dr. O'Connor: Only you know
that.
1I:114/11-20 (r. 8): When aggrieved?
Dr. Ortega: Isn't it a fact that
before you placed me on adminis-
trative leave, we had not spent a
half hour in your office?
Dr. O'Connor: I don't know
that that's exactly right. The
things that I recall are that you
were in my office much . more
frequently over the last several
weeks before you were placed on
vacation than you had usually been
in my office, because you were
concerned about the contracts not
being signed by Mr. Friday and were
trying to encourage me to get Mr.
Appendix-68
Friday to handle the contracts for
you.
II:126 (r. 16): "Vacation" BY REQUEST:
Dr. O'Connor remembered: "You thought
that it would not look good, in
light of the university and so on,
and you asked me instead of going on
administrative leave, would it be
permissible to allow ycu on vacation
- - « for two weeks. .. I was init-
ially talking about a period of
about a week."
[Respondent NEVER envisioned invasion of
private files inside his locked desk
drawers; it continued after dismissal! ]
I11:143/8-19 (a. 25): Subpoenas refused:
Hearing Officer: Now, before
we call the next witness, we should
have some preliminary matters to
discuss insofar as_ the hearing
tomorrow. You have now been
provided, Mr. Rubin, with the copy
of the witness list that was made —-
was given to me by Dr. Ortega.
Now, I notice that certain of
those witnesses have already
testified in this action. Certain
witnesses have not testified, but
are state employees who are employed
at Napa State Hospital.
Perhaps you could make the
employees of Napa State Hospital
available tomorrow without the
necessity. of subpoenas so we could
Appendix-69
continue this hearing.
1I1:150/16-25 (a. 39): Defy court order:
Hearing Officer Waller: Well,
if he's going to testify from his
notes, of course, they should be
made available to the:other side.
If he can testify without looking at
those notes, then they're certainly
not subject to discovery.
So I ask you, Doctor, to state
now, do you need those notes in
order to testify, or can you testify
from your own memory?
Dr. Laskay: I can testify from
my memory.
Hearing Officer Waller: All
right then.
11:167/20 - 171/7 (r. 17): "Forgery"?
Dr. Ortega: Do you know why,
in these thank you notes, one is
signed and one is not?
Mr. Rubin: I'll object to
that.
Hearing Officer: I'm sure he
doesn't know. Even Dr. O'Connor
doesn't know, the man who was
supposed to have signed them both.
Perhaps when you testify, you will
tell me.
Dr. Ortega: You did not, in
fact, take this copy from my office?
Dr. Laskay: That is -- is this
the one to Mr. Manshouri?
Appendix-70
.Q: Yes, without a signature.
A: That's correct. We found
that in a file marked "Computer."
Q: And when you were asked,
you were checking whether forgery
had been involved? Do you recall
that?
A: Not in regard to that
document, no, we did not.
[Caught off-guard, denial disowned. ]
Q: So, you were looking for
instances of forgery?
A: Among other things, yes.
Q: And you are an expert in
forgery?
A: No, I am not.
Q: Now, what were you going to
do when you suspect forgery --
Mr. Rubin; I am going to
object.
Hearing Officer Waller: The
objection is sustained.
Q: When did you start
suspecting forgery?
Mr. Rubin: I'm going to object
to this, Your Honor. There's no
indication that there's any forgery
involved in any of the documents
which are germane to this proceed-
ing, and unless some foundation is
laid with respect to this --
Dr. Ortega: I thought I did.
Hearing Officer Waller: Well,
Appendix-71
he stated he's an investigator asked
to invstigate this. I suppose if he
found some forgery, he might have
mentioned it.
So you might ask him first if
he found some forgery.
Dr. Ortega: I wasn't
listening.
Hearing Officer Waller: Ask
him if, during the course of
investigation, he found any forged
documents.
Dr. Ortega: That was not my
question, Your Honor.
Hearing Officer Waller: Well,
I want to get right to it. If he
didn't find any, then there's
nothing to talk --
Dr. Ortega: Mr. Hearing
Officer, you and and district
attorney are asking me to conduct
the hearing the way you would.
Hearing Officer Waller:
Doctor, what I'm trying to do is
keep you from asking irrelevant
questions and continuing to go into
long, tedious matters in a very
repetitious manner.
Dr. Ortega: The witness
testified that he was looking for
forged documents.
Hearing Officer Waller: If I
were investigating this, I would be
looking for forged documents as well
as everything else that went along
with it.
Appendix-72
Dr. Ortega: And my question
is; When did he start looking for
forged documents?
Hearing Officer Waller: All
right. You may answer the question.
Dr. Laskay: There were two
occasions on which this arose. The
first one is when Dr. O'Connor
himself did not originally recall
Signing anything other than the two
sub-purchase orders. He later
decided that that was his signature
and he must have signed it at the
same time that he signed those two
sub-purchase orders.
The second issue-
Dr. Ortega: That's the first
instance? He could not recall what
he did that day?
A: He recalls signing the two
Ssubpurchase orders. He does not
specifically recall signing the
thank-you letters.
Q: Please continue.
A: And he had absolutely no
recollection about the letter with
the printer.
The second instance was when
Mr. -— when we asked Mr. Saeedi
himself about when he had indeed
Signed the contract to provide the
training, and whether he had signed
the individual invoices eachof the
times he arrived at the state
hospital.
He said that he did not
recollect signing something at the
beginning. He did not -- he stated
Appendix-73
that he could not recall any
specific details about it, and he
‘said that he did not recall finding
any invoices subsequently.
When we asked the secretaries
themselves who handled the invoices
whether or not Mr. Saeedi had signed
them, they stated that they had
witnessed him signing the invoices
each time that they handed it to
him.
At that point we dropped the
issue.
[But not the investigation of fraud,
since coercion cannot be established.
Field investigation of Medi-Cal patient
billings were pursued (Exhibit xxi) and
inquiries about sexual conduct reached
alumni who have already moved out of
state. No information was worth paying
anyone to testify with a free trip to
California, and so the charges were
padded. |
Appendix-74
Folio III
(Hearing on Nov. 17, 1981)
III:1/19 (m. 1): ILLEGAL appointment:
Dr. Ortega: How long have you been
Medical Consultant?
Dr. lLaskay: I was actually
appointed on a permanent basis
beginning Oct. 1st. I was appointed
On a limited term basis on June ist,
and I've been practicing since Nov.
15th of 1980. .
Q: So, you have been acting
for how long?
A: In an acting position
almost a year. It's been a year.
III:6/23 - 8/15 (a. 15): Who complained?
Dr. Ortega: What prompted
investigation about sexual
harassment?
Dr. Laskay: I received a
letter —_ first I received a
communication stating that an
individual wished to talk to us
about the matter of sexual
harassment.
Q: And this individual was
who? |
A: Dr. Elizabeth Reynolds.
Q: That is not in the
Statement in discovery.
Mr. Rubin: Just a moment.
I'll object.
Dr. Ortega: Never mind. We'll
III
Appendix-75
introduce that particular document
later.
Q: So, that was the start of
it?
A: Yes.
Q: And then you proceeded to
ask residents whether they slept
with me?
A: I never asked a resident if
they slept with you.
Q: What did you ask them about
sexual harassment?
A: The question, I believe,
was always phrased, "Do you ever
recall having been harassed in a
sexual manner by Dr. Ortega?"
Q: You never asked them if
they had sex with me?
A: I do not recall ever asking
any resident if they had sex with
you.
Q: On the telephone to someone
who was on vacation?
A: Not on the telephone.
:9/7-13 (a. 20): No coercion found:
Dr. Ortega: You also investigated
the computer?
Dr. Laskay: That's correct.
Q: And the person who
complained about being coerced,
wasn't he someone you referred for
training in the program?
A: I do not recall any of the
Appendix-76
residents saying they had been
coerced. That was not the charge.
III:10/21 - 11/9 (a. 14, 25): Relevant?
Dr. Ortega: Dr. Carnazzo.:
Hearing Officer: He's already
testified.
Dr. Ortega: Yes, but that was
before I had discovery, and you had
agreed we could cross-examine those.
Hearing Officer: Mr. Rubin? .
Mr. Rubin: That is a total
fabrication. « As I indicated on the
record, when we went to court, there
was no additional discovery ordered
with the exception of the materials
that we had volunteered to produce
Since it had appeared as a recent
development that some additional
materials would be relevant.
(Thus, Exhibits 17-19 which were STOLEN
from respondent were NOT RELEVANT until
after the investigation was all over.
Furthermore, Exhibit 4 is court-ordered
discovery of sub-purchase orders’ that
were testified to but not produced in
evidence on the first day of hearings. |]
III:11/23 - 12/14 (a. 11): Repudiation:
Hearing Officer: (To Mr.
Rubin) Your objection will be
Appendix-77
sustained. We're not recalling any
witnesses who have already
testified. :
With that ruling, go ahead and
complete your questioning.
Dr. Ortega: I object because
there was a clear understanding that
we can proceed because the witnesses
willbe inconvenienced otherwise.
Hearing Officer: If there was
a clear understandig that those
people's further testimony wasn't
necessary after you had completed
some form of discovery, then they
may be recalled.
Apparently, that's not true.
You were given full discovery. You
were given an adequate opportunity
to question those witnesses. They
will NOT BE RECALLED. (Emphasis
added.)
(Even Mr. Friday, also co-petitioner, --
who testified about sub-purchase orders
WITHOUT producing them -- was NOT
subpoenaed, though the documents
negating his testimony were ordered
produced by court.]
III:20/24 - 21/12 (m. 1, r. 29): Empty:
Dr. Ortega: Now, in your
investigation, did you come up with
anything then?
Dr. Laskay: At that time?
Appendix-78
Q: Yes. When you questioned
me.
A: Ih. vad the discussion
already with the one female
resident.
Q: And that was the only one
you had?
A: At that time, that's
correct.
Q: Right. What matters did you
drop after that questioning?
Hearing Officer Waller: Well,
here again, the main instance is not
the investigation. The problem is:
What's been alleged, and can it be
proved or not proved?
I'm going to go ahead and
excuse Dr. Laskay. I think he's
testified long enough.
III:21/13 - 23/19 (r. 29-31): Illegal:
Hearing Officer Waller: Is
that the last witness you had?
Mr. Rubin: Yes. That con-
cludes our case.
Hearing Officer Waller: Well,
then, I'm going to suggest to you
that you call Dr. Ortega as an ad-
verse witness, under 776, so we can
actually find out what the issues
are in this case. Then we can go
ahead and proceed in an orderly
manner without groping for facts and
statistics.
[Is this to force self-incrimination by
Appendix-79
another interrogation when the other
came up empty? Can Dr. Ortega testify
and represent himself at the same time?
If he did, will it force a recess? If
he did not, will he be asked to testify
BEYOND earshot? ]
III:21/23 (a. 20): "“Arrogance" charged?
Dr. Ortega: I do not want to
do that. I should be permitted to
present my own defense. If I_ have
not testified, you can not call me
as an adverse witness.
Hearing Officer: We're going
to have you called as a witness, and
we're going to identify what are the
real issues in this case. We have
broad boundaries in the discretion
in an administrative hearing.
Dr. Ortega: I don't think you
have that discretion.
Hearing Officer Waller: I
don't care to argue. You'll be
called as a witness and sworn.
Dr. Laskay, you'll be excused.
III:39/8 (r. 9): Incomplete discovery:
Mr. Rubin: Now, just so I
understand your testimony, Dr.
Ortega, you're testifying that the
contract with Mr. Saeedi which is
referred to in this Notice of
Punitive Action, was, in fact,
III
Appendix-80
approved and that you saw a copy of
that approved contract, is that your
testimony.
Dr. Ortega: Yes.
Q: And you've also testified
that you will produce that copy?
A: No. I said I saw such a
copy. The copy should be around if
it is approved.
Mr. Rubin; Mr. Hearing
Officer, I believe that he did
testify --
Dr. Ortega: I'll make sure we
produce one if I have to go to
Sacramento, if it is that important.
Mr. Rubin: All right. I would
then request -~ formally request
tuat that document be produced.
Hearing Officer Waller: He's
Stated he would produce it.
:44/20 - 45/16 (a. 23): "Abrasive"?
Hearing Officer Waller: Now,
this might be appropriate for a
hospital worker who may indicate
that they don't understand what's
being discussed, that they don't
understand the question, that they
don't understand the issues, but it
certainly is not impressive by a
person who is Chief of Professional
Education.
So I'm going to recess this
hearing at this time for fifteen
minutes. [I'll let you consider your
position in this case, and then we
will resume the questioning.
Appendix-81
Dr. Ortega: May I ask a
question before we recess?
Hearing Officer Waller: fes.
Dr. Ortega: The standards you
have announced, are they somewhere
written up?
Hearing Officer Waller: This
is the typical question that I wish
you would reconsider and actually
try to put your best foot forward
and present your side of the case
rather than just a total argument-
ative stance.
Dr. Ortega: Mr. Waller, I try
to save him some time. He won't let
me.
Hearing Officer Waller: This
hearing will be in recess for
fifteen minutes.
[But too late to coach Mr. Rubin who
declined offer of an earlier recess. ]
III:47/21 - 48/9 (a. 24): Surrendered:
i'r. Rubin: During the recess,
I had an opportunity to confer with
some members of the hospital
administration here, and we were
puzzled by Dr. Ortega's testimony
that he had seen a signed copy of a
contract. We think we know what he
might be referring to. It is not a
signed contract, but this may have
misled him slightly.
The actual notice at the back
of that exhibit, the document 1
Appendix-82
brought to your attention, is not
Signed by anyone.
Now, I have a copy which I will
introduce into evidence which has a
Signature of a department official
in Sacramento on the request to
initiate a contract and it my be
bhis signature on the request to
initiate a contract which misled Dr.
Ortega.
[Dr. Ortega had been dealing with such
contracts for 17 years, LONGER than
anyone in the hospital administration. ]
III:62/7 (a. 58): Computer was secured:
Mr. Rubin: So, you didn't have
Ownership personally of that
computer, isn't that right.
Dr. Ortega: No, never.
Q: Now, to your knowledge, did
that computer ever acquire a
hospital number as part of the
hospital's inventory of equipment?
A: No, never.
Q: But you placed that
computer on hospital property,
didn't you.
A. Yes.
Q: Dic you ever --
A: So is my car on hospital
property.
Q: Did you ever process this
donation through the property
Appendix-83
department of the accounting office
of the hospital?
A: Neither Dr. O'Connor nor I
know what those procedures were.
Q: So, I take it then that you
never did process it that way?
A: Yes.
[Thus, only WHAT HAS BEEN SO PROCESSED
IS HOSPITAL PROPERTY, @-8-, 4 desk, but
NOT its CONTENTS until also processed. |
IIL:69 (r. 10): Stanford is important:
Mr. Hearing Officer: I think
the yuestion to you, Dr. Gonda, is:
Is the residency program at Napa
State Hospital linked in some way
with Stanford, and if so, how, and
what's your connection with it?
Dr. Gonda: Yes, it is. It's
linked with us in several ways.
Number one, we have members of
our faculty who are consultants that
come here and lecture on a regular
basis. That is, each individual
doesn't necessarily come on a
regular basis, but members of the
faculty come on a regular basis.
We have also made provisions
for residents from Napa to take
special training in aread of their
special interest if we have those
aread of interest represented in
Stanford. Our work connection is
both ways.
Appendix-84
III:71 (r. 10): Work done not an issue:
Dr. Gonda elaborated thusly: "At that
time (1964) we had many more State
Hospitals than we do now, and it was
in conjunction with this that I set
forth a program with the Chiefs of
Professional Education that, Number
One, would educate the people who
are already there and not
Specialists in the field at the
various State Hospitals and, ‘Two,
that the Professional Education
Chief would also attempt to work out
the very best possible residency
programs.
"I just hada brief look at
that, but if my eyes weren't
deceiving me, this is almost -- it's
very difficult to believe the
tremendously high percentage. If I
am interpreting this right, these
graduates, alumni it says here, of
the program here at Napa State
Hospital, and I would venture to say
that well over 80 percent of them
are in full-time practice as staff
psychiatrists in either a State
Hospital or a correctional facility.
I didn't even dream a result like
this."
Hearing Officer: Perhaps it
would help the record if you would
state what your position is at
Stanford.
Dr. Gonda: Currently, I'm the
Chairman of the Department of
Psychiatry and Behavioral Sciences.
Appendix-85
III1:74 (r. 60): MTrumped-up charges:
Hearing Officer: :
although it states on the very
beginning of the punitive action
that part of this cause for
dismissal is inefficiency, there are
no specific allegations of ineffi-
ciency in the performance of hospi-
tal duties except insofar as you
could relate not submitting the pro-
per documents concerning the com-
puter and that type of thing with
inefficiency.
(All documents were, including optional
feasibility study, there and in order.
Mr. Friday delayed computer consultant
contract and Mrs. Owen revoked ex-con's
legal leave without authority.]
1I1I:81/24 - 82 (a. 30): Uncorrupt power:
Dr. Ortega: What I suggested
to you was not something that you
would have done?
Dr. Sutton: No. What Dr.
Ortege is referring to is the fact
that he -- his assignment of me _ to
the California Medical Facility at
one point during my residency re-
sulted in a great deal of profes-
sional and personal growth for me.
That requirement ultimately resulted
in my career choice of correctional
or forensic psychiatry.
III
Appendix-86
Basically what happened is I
was frightened of physically violent
patients during my residency, and in
order to deal with the patients, you
can't feel that way. So, I was
assigned to the California Medical
Facility to a program that was. set
up to deal with violent patients.
As a result of that, I overcame
my fears and became rather inter-
ested in it and chose to work at Ca-~
lifornia State prisons upon my gra-
duation. I say this because it says
a@ lot about Dr. Ortega's style of
handling problems. Basically, he
does an excellent job. He promotes
the professional and personal growth
of residents, many times through
assigning them on rotation to areas
where they often don't want to go
because he feels it is good for
then. At least in my own case,
assignments of this type I found to
be helpful, even though at times [I
resisted them.
There is another assignment
which I resisted during my resi-
dency. I had no liking for psycho-
analysis, and he felt I should have
exposure. And out of that rotation,
even though I fought it all the way,
I also grew professionally...
:90 (r. 26): Support to be inhibited:
Dr. Sutton: .. . I was rather
infatuated with Dr. Ortega.
Mr. Rubin: Did you have sexual
intercourse with him?
A: No, I never did.
Appendix-87
Q: You never did?
A: I never did, and Dr. Ortega
always treated me with respect and
jecency. He never took advantage of
my feelings of attraction towards
him.
Q: Did he ever kiss you?
A: Yes.
Q: Has he ever embraced you?
A: Yes, but not in a sexual
fashion, in an affectionate fashion,
almost the way you might kiss a
child.
Q: All right. Is this a pho-
tograph of you?
A: Yes, that is. That was
taken in a photo studio by a
professional photographer.
Q: And did you send this to
D>. Ortega?
A: I probably did. I don't
have a specific recollection of it.
There were many photos taken of me
during that time and subsequent
years.
Q: Dr. Sutton, my question
was: Did you send it to Dr. Ortega?
That was the question. What's your
answer?
A: I don't know if I sent it
or I gave it.
Q: But you delivered it into
his possession.
A: Yes, I'm sure I did.
Appendix-88
Mr. Rubin: I'd like to intro-
duce this as our next exhibit.
Dr. Ortega: Objection.
Hearing Officer Waller: Well,
there again, it has very limited
relevance, but as long as we are off
on this tangent, it will be marked
Exhibit 17, and it will be admitted.
[How it is EVEN TANGENTIALLY RELATED to
the work Dr. Ortega does is left open. ]
III:110/6 (r. 10): Breaking UCSF link:
Dr. Ortega: So, why was your
payroll check held up?
Dr. Metcalf: Well, that's what
I wanted to ask the administration,
and I did ask the administration.
Q: What did they say?
A: They said they needed to
account for my time. Since I was
paid two-fifth time, they wanted to
Know what I did with sixteen hours a
week.
Q: And before that happened,
why was there any reason to 1ook
into that?
A: Well, there never had been
any reason to look into it before,
but I was presented with that rea-
sonable request. I objected to the
way the request was couched, but I
think it's a reasonable request.
Q: How was the request couch-
IIIs
Appendix-89
ed?
A: I received a letter saying
that they had to have that inforn-
ation and that my check was being
held up and had already been held up
for several days until they got that
information.
Q: And before that you were
asked to participate in an invest-
igation?
A: Yes.
Q: About me?
A: Yes, I was contacted by te-
lephone.
Q: By whom?
A: Dr. Laskay.
Q: Can you tell us what hap-
pened?
A: Well, I got a telephone
call at home, and I don't remember
-- I'm thinking back on it, whether
it was a week-end or not -- but it
was about 9:00 in the evening, and
Dr. lLaskay said words to the effect
that he would like to know if I had
had any difficulty with Magno Orte-
ga.
122 (a. 28): Director from 1964:
Q: In all the time you have
known me, have I deceived you?
A: Not that I am aware of.
Q: Did my --
A: You irritated me at times,
but never deceiveu me.
II!
III
Appendix-90
Q: Did my department change
during that time?
A: Yes, it grew considerably.
Q: While the hospital was
shrinking?
A: While the hospital was
Shrinking, and I will say that I
always admired you for that, that
you were able to maintain this
residency program under the op-
position of the Department of Mental
Health in Sacramento.
In fact, as far as I know, you
were the only one that maintained an
accredited residency program in a
State Hospital in California.
7126 (a. 37): Director, now staff:
Dr. Ortega: Did I ever bring
discredit to the hospital?
Dr. Spratt: Not that I am
aware of.
7131 (a. 30): Ex-Resident, now staff:
Q: Dr. Jackson, without any
prompting on my part, you came to me
and said you knew what I was doing
about the contributing. What did
you tell me?
A: I don't know if I was’ so
bold to say I knew what you were
doing, but I knew that I -- that the
one thing I thought the overall
effect was that the investment of
time and money and that the level of
attention and involvement in the
computer would be heightened, and
Appendix-91
that if a computer suddenly appear-_
ed, it would probably be treated
with some disinterest unless there
was an active involvement and in-
terest on the part of the residents.
This was, I think, an effective
way of heightening and making some
kind of an investment in it in
either time or money.
[Ex-trainees could receive TWICE as much
working as learning. But even after his
installment check bounced while a
resident, he made good on his promise to
pay for the computer they needed for
training. |
1II:137 (r. 5): UCSF feasibility study:
Dr. Ortega: You had told us, in
fact, that we needed a series of
equipment, but not -- but having the
equipment will not be the answer if
we did not have exclusive use or
first claim on the computer, is that
right? .
Dr. Callaway: (Witness nods
head.
Hearing Officer: You'll have to
answer audibly.
A: Can I answer the question
as something to that intent. I'm not
exactly sure of the words.
Q: And that you recommended it
a
Appendix-92
be used primarily for teaching and
research because it could be totally
usurped by library and clerical
services, something to that effect?
A: We discussed that. Exactly
who thought of that problem of
usurping first, I'm not sure, but I
certainly agreed with that.
Q: And in your work with the
residents, it would be important to
have a modem and timer for the
computer that's here in the hospi-
tal, is that right?
A. <A modem and a timer.
Q: Right. That's what I mean.
A: Yes.
[The wording of the thank-you note for
the printer left NO room for business
take-over or donation of equipment. ]
.
|
Folio Iv
(Hearing on Dec. 30, 1981)
IV:3-7 (a. 8): Indecision pretended: |
Hearing Officer: ... (T)his
is the time for the presentation of
Dr. Ortega's case. He indicated he
wanted to immediately recall opr.
‘Connor and Mrs. Owen. Mr. Rubin
indicated he was going to object to
that procedure, and I made a
Statement that Dr. Ortega insisted
gO on the record. And that is that
we'll hear from his witnesses first
and his testimony, -- (can pr.
Appendix-93
Ortega be "recalled" and by whom?
objected to on V:95, answered on V:96)
-- we'll complete his side of the case
-- (to see if "recall" will outweigh
adverse testimony so far) -- and then
we'll separately consider whether or not
any of these witnesses that have
previously testified should be recalled.
Do you have anything further you
would like to add to that, Dr. Ortega?
Dr. Ortega: Yes. I think this is
unfair, I think there are precedents to
show that a party can ask for his
witnesses without being bound by the
fact that they have been called by the
adverse party before. As you will
remember during Dr. O'Connor's’ cross-
examination you limited him to what Dr.
Rubin -—- Mr. Rubin, wanted him to
testify about and he only wanted to
testify about one allegation in fact. I
think I should examine him about
directly what other matters besides
those since it is on his authority that
I'm being dismissed. . . He was a
resident in my program, and I think what
has happened between then and now are of
relevance. . .
Hearing Officer: You wish to
comment before I rule, Mr. Rubin?
Mr. Rubin: » « « IT would very
strongly urge that you not permit this
to be undertaken, and WE are confident
that this record will stand up in any
further judicial proceedings if that's
necessary. And we're satisfied that. .
- you have done everything you could to
protect his rights, to give him every
Opportunity. And as I, say we're con-
fident that should WE be calied upon to
Appendix-94
defend that at some subsequent proceed-
ings, that the record is clear he's been
accorded every possible protection.
Dr. Ortega: Mr. Waller?
Hearing Officer: Well, I'm not
going to rule finally on that issue of
recall at this time. I'm going to
adhere to my original ruling this
morning and that is that we will not
recall witnesses at this time...
Dr. Ortega: I think it is a
mistake to think of it as recall,
because they have been called once, but
called by their own Counsel. I'n
calling them for the first time, so this
is not recall.
Hearing Officer: Well, I don't
care to discuss that issue further at
this time. We'll discuss it, as I said,
later before we close the proceedings.
If you have other witnesses or wish to
testify yourself, let's go ahead and
continue, Dr. Ortega.
Dr. Ortega: I take exception to
this because this really turns ny
defense backwards.
IV:40/14 - 41/18 (r. 13): "Get Ortega":
Mr. Donoviel himself testified on
12/29/81 that "I suggested that Dr.
Vaughn go directly to Mrs. Owen
about his complaint of not being
paid .for I believe it was a month's
service. And that event, that pack-
age, tripped off further comments
about your conduct and that led to
the investigation."
Appendix-95
(Hearing reporter omitted "deal" after
" package". |
Iv:19 (r. 8, 21): Second to Mr. Friday:
Dr Ortega to Mr. S: How is the
contract approved?
A: It's approved both locally
and at headquarters.
Q: What happens if it is not
approved locally?
A: Then it remains unapproved
and to my knowledge you would have
severe problem.
Q: What happens if that
disapproval was protested?
A: Well, I believe then there
would be a meeting of the minds
between the protester, the reviewing
party probably at headquarters and
the person that needs the
consultant.
Q: So you'd have a three way
meeting at least?
A: I would -- am speaking from
my other case. I would assume there
would be this, yes.
Iv:20 (a. 10): Dr. Ortega "recallable":
Hearing Officer: "Well, I
assume you can testify to that if
you have personal knowledge of it at
the time you're recalled if you
wish to further testify" (about all
Appendix-96
contracts being required to be
transmitted with all recommendation,
and never held up because of
doubts). °
IV:21/24: Purchasing uncertainties:
Dr. Ortega: You (Mr. Friday's
second in command) are also a member
of the Clinical Executive Committe?
A: I am.
Q: And at one meeting were
asked about the expected delivery of
hospital bus tires. Do you remember
that?
A: Yes.
Q: And this was the middle of
Summer and the delivery date was
after Halloween; is that right?
A: I said [I wouldn't be
Surprised if they didn't show up,
you know, until Halloween. But I
was surprised, as often is the case,
because the tires had been ordered
and the process cleared and things
did arrive and (patients) were able
to go to the fair.
Q: And we also talked about
getting patients involved in those
Outings. Do you have any
reservations about getting them
involved in any way?
Mr. Rubin: Mr. Hearing
Officer, I'm going to object to this
question. It's not relevant to
anything. I should have objected to
the question concerning bus tires,
Appendix-97
but it slipped by. No, I'm going to
-- this is clearly irrelevant.
Hearing Officer: Be sustained.
[In fact, involving the patients was the
last exchange in the Clinical Executive
Committee meeting chaired by Mr.
Donoviel, where he reported on a recent
wasteful junket when there are funding
priorities that face uncertain futures.
That just happened to be Dr. Ortega's
LAST clinical executive committee
meeting before being placed on UNPAID
administrative leave.
[Dr. Ortega asked the group whether
patients would CHIP IN and get tires
instead of being cooped up inside hot
day rooms to forego the risk of a
blowout on the road on their way to the
fair. He also mentioned it to the
Attorney General and invited him TO
INVESTIGATE possible conflicts of
interest. Ex. SS.]
Appendix-98
Dr. Ortega: Why were you not
one of the investigators?
Mr. Rubin; I'll object to
that. ;
Hearing Officer: Sustained.
IV:54 (r. 10,25): First year resident:
Q: Do you remember meeting with
Dr. O'Connor at the start of the in-
vestigation?
A: Yes.
Q: Do you remember his
mentioning that the person who
Started it stipulated that if the
administrator did not look in his
complaints, State investigators
would be called in?
A: Yes.
Q: Do you remember Dr.
O'Connor talking at great length
about his experience under my
directorship?
A: Yes, he had mentioned that
he had come here because of your --
the novel way you had let him
interview the patients during his
application time.
Q: And he had been accepted in
many other places?
A: Yes.
Q: Do you remember his talking
about some unhappiness he had also?
A: I think he mentioned about
your telling him to go to Mt. Zion
for (rotation) and he was not happy
about it because of the commute or
Appendix-99
something but after going to
(rotation) he was glad he had gone
through it and it had helped him
pass the boards. (Reporter heard
"meditation" for "rotation" both
times! )
Q: Do you remember seeing Dr.
Vaughn the first day of your
orientation in July?
A: Yes.
Q: Do you recall my telling
him he should be in Highland?
A: Yes.
; At the meeting with Dr.
O'Connor did that resident worry
about reprisal?
A: Yes.
Q: Did he worry because Dr.
O'Connor was oh, so positive that
all would turn out well?
A: Yes.
Q: Did Dr. O'Connor answer him
that Dr. Ortega was not that type of
a person?
A: Yes.
Q: Were you told by the same
resident(s) after the meeting to ex-
pect questions about sexual harass-
ment?
A: We had gone from the meeting
with Dr. O'Connor. We went to our
usual conference room and were
discussing about the investigation.
I men the -- your leave, and he ha
said expect questions about --~- "I've
Appendix-100
something else for you" he said. He
told us and said expect questions on
sexual harassment.
Q: While all this was
happening none of you could see me;
is that right?
A: Yes, we had received a memo
that we could not see Dr. Ortega
during office hours.
Q: And yet you are not on a
40-hour week, are you?
A: No.
Q: Did Dr. O'Connor’ reassure
the residents that UC Davis would
not take over the training program?
A: Yes.
Q: Has there been a signifi-
cant increase in sick leave since my
dismissal?
A: I don't know.
: I have to ask these
questions. Did the Hearing Officer
accuse me of harassing him and
pounding the table on the first day
of the hearing?
A: Yes.
Q: Did he promise witnesses
will be returned for Cross
Examination?
A: Yes.
IV:68/26 - 69/26 (a. 30): Leadership:
Dr. Ortega: Would it be fair
to say you know me better than the
Appendix-101
residents who have testified so far?
Ex-executive: Yes.
Q: Would it also be fair to
say I know you better than I. know
them?
A: Yes, I think so.
Q: When you met with Dr.
O'Connor, and he talked about having
to go to Mt. Zion, did the same
thing happen to you?
A: Yes, a very similar
situation occurred for me in April
1981.
Q: What makes you think I can
insist on that?
A: Well, I've -- I have spent
some time as I've been here trying
to, you know, figure out how these
things work because I think it's
quite informative to a psychiatrist,
and it seems tome that at least a
good part of it is rather indepth
and intense study that you make of
each one of us to the point that you
feel that you know us very well.
And I think that youdo. So, you
know our strengths and weaknesses
and areas where we might do well to
have additional training or where we
might excel and add to our knowledge
and ability as psychiatrists. I
think Mt. Zion especially to work in
the crisis clinic was, there was an
area where you thought that I would
both do well, and gain a great deal
of pertinent experience. You did
insist that I do that and gave me a
very clear ultimatum so to speak
Appendix-102
‘ which I had no difficulty
understanding that either continue
with that rotation or quit the
residency. |
Q: Why didn't I offer the same
ultimatum to Dr. Vaughn?
A: Well, it's a matter of my
Opinion about it is that my -- that
you would not feel Dr. Vaughn could
tolerate such an ultimatum. In
response to it you had characterized
me as -— as defiant at least at one
point and [I think that's probably
accurate.
[He was correct about Dr. Ortega and
Dr. Vaughn. In fact, Dr. Ortega TESTED
Dr. Vaughn and found he could tolerate
physical stress (losing all, repeat all,
the big points in tennis) BETTER than
being away from his wife.]
Folio V
(Hearing on Dec. 30, 1981)
V:10/10 (r. 9): Supporting decisions:
Dr. Ortega: If your’ business
manager had not tried to obtain
approval for training contracts
routed through him in the use of
computers, would you tell him to do
so without delay.
Dr. Clanon (ex-director of
correctional facility): I guess it
Appendix-103
would depend on the circumstances.
Depend on the circumstances. If he
was negotiating, certainly I would.
If he was negotiating to do
something that he should have been
doing.
Q: How would you determine
that?
A: Disputes of that kind were
not uncommon between business
department and other departments.
Or misunderstandings, disputes and
so forth and I guess the most common
way I would resolve that is to tell
the business manager and department
head, the two people involved, to
meet and then come tell me or give
me some understanding of what the
disagreement was or else resolve it.
Q: And if it was unresolved?
A: Well, then it's my job, it
was my job to resolve it, basically,
to make a decision.
Q: Would you call both of
them?
A: Yeah, usually I would. I
would have both people. I would
meet with both people at the same
time and we would discuss it and so
that both understand; whatever’ the
decision was it would be understood
by both of them.
V:13/28 - 15/14 (r. 7): Poor management:
Dr. Ortega: Or would you
instead initiate an investigation of
administrative practices in pro-
Appendix-104
curement of data processing equip
ment and training by your Department
of Education and Research?
Dr. Clanon: No, I -- you know,
I would not. It was such a common
occurrence in my experience that
people would submit inaccurate or
improper kind of requests for
equipment out of -- usually out of
ignorance of what was required that
no, if I had taken each such in-
Stance as evidence of some mis-
conduct, there would have been a lot
of investigating. The usual, as I
have indicated already, the usual
response that was appropriate to
that kind of thing was to get the
department head and the business
manager to sit down and communicate
about what was going on.
Q: You have some understanding
of what has happened and the reason
why this hearing is taking place.
Do you have some thoughts you would
like to share about how it could
have been headed off?
A: Well, I don't know that I
have a full understanding of or all
information about this hearing, but
what understanding I have is that a
primary charge against youis that
has todo with this -- this -- some
misconduct in relation to purchasing
or attempting to purchase some
accessories for a computer. And ©
that there are several factors
involved. One has to do with some
question about coercion and -- of
the residents to contribute money to
purchase this thing, the original
Appendix-105
computer, and secondly some improper
things done to purchase, through the
State, accessories for the computer
and contract for training in the use
of the computer, so forth.
You know those things sound, as
I've indicated in the answer to the
previous question, what I know about
that, suggests to me that an action
for dismissal of you and under an
apparently unfavorable kind of
condition, does not seem appropriate
to me. It seems to me that, as I've
indicated that that -- that, you
know, the knowledge of how to comply
with regulations, purchasing regul-
ations, that change yearly and some-
times more often than once a year
and are not communicated to people
in positions such as you, is not an
-- is not a, may be a cause for some
supervisory action and may even be a
cause for some disciplinary action
in some cases, but not -- not of --
not of dismissal.
V:18/10 (r. 51): When is A.L. needed?
Dr. Ortega: In a setting like
yours where security is more sen-
sitive, when does it become neces-
sary for some one to go on admin-
istrative leave?
Dr. Clanon: Well, usually it
would be a situation where their
presence in the institution or their
continued discharge of the duties of
whatever their job was, you know,
would pose a threat of some kind to
security. The, you know, to get
more specifically to what I know
Appendix-106
about the facts of this case,I don't
know of any aspect of this case that
would have led me as a_e superin-
tendent to place you on adminis-
trative leave. You know, pending
the resolution of a pending discip-
linary action.
V:28/3 (a. 24): How do you treat talent?
Dr. Ortega: Do you. remember
when you first came to Napa?
Dr. Magbitang (last Chief
Resident): Yes, what about it.
Q: Do you remember being so
shy?
A: Yes.
Q: And stuttering when you had
to criticize somebody?
A: Yes.
Q: But succeeding eventually
in fighting for minorities in
Sacramento?
A: Yes.
Q: And being lionized in
Stanford?
A: Yes.
Q: Do you remember when you
were an intern and you lost 20
pounds and you came tome, and
instead of reducing your work load,
I gave you some of my private
patients; a family that I was
seeing?
A: Yes.
Appendix-107
Q: Do you understand why? How
all this happened?
A: Which one?
Q: How it is possible for you
to get over being bashful?
A: Well, I think you forced me
to my limit anddrew out all ny
potentials. And that's -- I didn't
know I had those potentials and you
drew it from me.
[From her GENES, her grandmother was a
self-made millionaire, her grandfather
the governor of their province. ]
V:35 (r. 11): Budget coveted by U.C.D.:
Dr. Linn, Dr. O'Connor's ex-boss as
hospital director, testified on Dec.
30, 1981, about the then UCD Dir-
ector of Residency Training:
"Well, I do recall one incident
at, when he was working for
University of California at Davis,
involved with obtaining funds for
their training programs that he
admitted to me that informally that
his main purpose was to obtain
sufficient money from residency pro-
grams throughout the State to keep
his own training program going."
V:41/14 (r. 42): Dr. O'Connor's ex-boss:
Dr. Ortega: .. . If from what
you have gathered in the way th.ese
things are happening about the
Appendix-108
computer, would you have instructed
the business manager to approve the
training contracts?
A: I believe I would, yes.
Q: And purchase accessories
for a computer used for training and
research in the Department of
Professionai Education?
A: I think so, yes.
Q: If the computer was alleged
to have been purchased because of
coercion on the basis of coercion of
contributors who happened to be the
residents, would you investigate the
Chief of Professional Education?
Q: An allegation of that sort
would be a very serious one and
would certainly merit looking into,
yes.
Q: How would you proceed?
A: If there are still special
investigators present at -- in State
service as they were when I was the
director, I would assign that
investigation to that individual.
Q: Why him?
A: Because his training is in
criminal type investigations and
this is an allegation which is very
close to a criminal ailegation here.
Q: If you did not have a
special investigator available, what
would you do if an investigation is
necessary.?
A: Well, I would obviously try
to choose the most unbiased group of
Appendix-109
individuals that I could find. One
who had, perhaps from another
hospital that had no connection with
any of the parties involved.
V:53/19 (a. 19): Ex-con not supported:
Dr. Ortega: And you had your
orientation with other residents who
came after you in July?
Second year resident: July
ist.
Q: Do you remember seeing Dr.
Vaughn come tc the first day of
orientation?
A: Yes.
Q: Do you recall my telling
him he should be in Highland?
A: Yes, because you said it in
a loud voice.
Q: And you had met with Dr.
O'Connor after I was placed on
administrative leave?
A: Yes. We -- I learned about
it Friday morning when I came to
work that you were gone. We we got
the, I think the memo that we have
to ask for, we were to meet with Dr.
O'Connor for the following Monday.
Q: Did Dr. O'Connor say if he
did not start the investigation, a
special investigator would?
A: Yes.
V:57 (r. 20): Second year resident:
Q: Did Dr. Brannick announce
Appendix-110
that Dr. O'Connor officially
terminated Dr. Ortega on the first
of September?
A: It think it was on Tuesday
when we were having our regular
conferences that Dr. Brannick told
us as acting Chief of Professional
Education that Dr. O'Connor has
terminated Dr. Ortega.
Q: Did Dr. O'Connor mention
that he had offered Dr. Ortega the
option of resigning?
A: Yes.
Qs And now that he was
dismissed, he was not -eligible for
time and benefits?
Q: If I remember right, one of
the residents asked if you still
have those benefits and Dr. O'Connor
said since you refused to resign
then you, and you were terminated,
then you don't, you are not entitled
to the benefits.
Q: Did he say that he
consulted with other officials
before deciding to dismiss me?
A: Yes.
V:77 (a. 28): Alumnus at the hearing:
Q: Your experience with me
over the years that we have known
ech other, can you say something
about that?
A: I think you're autocratic.
It's the first word that came to
mind. Your're also an excellent
teacher, one of tne most creative
Appendix-111
that I've met.
Q: In that -- I'm sorry, Mr.
Hearing Officer. In your -- can you
elaborate further on the autocracy?
A: In all the time that I've
known you, you have made decisions
about who should go where and do
what and when. Seemingly regardless
of what they wanted. Many residents
have resented that. I've talked
with many of them. I myself have
resented that at times and in all
that I never felt, and even in re-
trospect never felt that any of
those decisions were made for other
than concerns about their education
and turning out quality psy-
chiatrists.
V:82 (r. 5) Senior psychiatric resident:
Q: -+-Simply: Why would you
give $80 that you did not have at
the time and that you did not have
until July, for a computer?
A: Well, it's for educational
and research purposes, and I was --
and JI am next on the line to do
research, so I am interested in it.
Q: You expect to use it in
your research?
A: Yes, I used it recently. I
have a-- most of the data because
I'm doing research on immunology and
making some correlations with
psychosis.
Q: You expect to finish that
research?
Appendix-112
A: With the help of Dr.
Callaway of UC (San Francisco), yes,
I hope so.
Q: You expect to use the
computer for that?
A: I expect to use it more
often.
Q: When was the last time you
used it?
A: Just recently. In your
house. I don't -- maybe a month
ago.
[The following week, residents received
a memo that they cannot use computer! ]
Q: Do you want your $80 back?
A: No, _I voluntarily
contributed it for the computer.
Q: Incidentally, is it costing
you more to attend these hearings?
A: Yes, it would.
Q: How much have you spent of
your Own money to attend these
hearings?
A; Oh, I've taken vacation
time.
Q: How many days?
A: Since the start of the
hearing.
Q: In cash, how much would
that be?
A: I'm not sure. Would it be
-- if it is $10 or $11 per hour, so
Appendix-113
I took vacation. I don't know how
many days already.
Q: And you did not have that
money in July to give?
No. e
A
Q: Why do you -- why do you
A: Well--
Q: This is not a movie.
A: I -- I feel I have a lot of
strong feelings about this. I don't
understand why you were dismissed
and why so precipituously. I still
don't understand.
Q: You've been to all these
hearings?
A: Yes.
Q: And you cannot understand
from what has happened so far?
A: I don't know.
V:91 (r. 31): Is this a fair hearing?
Dr. Ortega: Mr. Hearing
Officer, when Dr. Gand'i was called,
I objected because she was my wit-
ness. And so I want to call her
now.
Hearing Officer: Well, I think
this is as good a time as any to
settle that issue. You were advised
at the time that it was well
established procedure of the State
Personnel Board to call a witness
Only once. No matter which party
called the witness. And at that
Appendix-114
time the witness would testify to
all relevant facts. Therefore I am
not going to continue this hearing
by calling all of these witnesses or
any of them for the second time. So
your motion to recall these people
is denied.
Dr. Ortega: We have a
precedent in this hearing about
recalling people, so that's not true
in the first day of the hearing.
It's different now that I am
presenting my defense.
Hearing Officer: No, you were
put on notice fully «nd completely,
Dr. Ortega, that thes: people would
not be recalled. You choose to
ignore that warning as you have many
others. And therefore those people
will not be recalled now. If you:
have other witnesses that have not
testified in this matter, you may
call then.
Dr. Ortega: Mr. Hearing
Officer, one of the(ir) witnesses
was recalled on that first day.
Hearing Officer: I don't care
to argue it, Dr. Ortega. Do you
have further witnesses you want to
call or do you want the matter
submitted.
Dr. Ortega: No, I don't want
the matter submitted.
V:95/21 - 96/15 (a. 26): Is this fair?
(T)he Appellant in this matter,
appearing in his own behalf, having
Appendix-115
been previously duly sworn, assumed
the stand and proceeded to further
testify as follows:
Hearing Officer: You're
reminded that you have been sworn
before and that you're under oath,
Dr. Ortega.
Mr. Rubin: Well, Mr. Hearing
Officer, Dr. Ortega has already
testified. (Fact: only cross-
examined under protest.)
Hearing Officer: Well, he
testified pursuant to my direction.
He's entitled --
Dr. Ortega: I @Bnnot be cross-
examined any more because [ have
been cross-examined the --
Hearing Officer: Now, wait a
minute, Dr. Ortega. You can be
cross examined, and you're permitted
to téstify on your own behalf at
this time. Now, this is not an
appropriate time for argument. This
is the time for facts.
Dr. Ortega: Right.
Hearing Officer: Arguments,
I'm going to ask the parties if you
wish to present any argument, to
prepare the argument in writing and
submit it to me. I will allow 15
days after the case is submitted for
written argument.
so this is not a time for
argument. This is atime for any
facts that you wish to testify
about.
V:11
Mr.
V311
Appendix-116
O - 111 (r. 31): Hearing denied:
Waller found respondent's
testifying in open court "a(n)
intolerable burden, no question and
answer format, which is the normal
procedure for taking testimony for a
hearing reporter, I'm going to give
you an opportunity to put your
testimony in writing, and then I'm
going to take a look at it and Mr.
Rubin can take a look at it, and
then we'll reconvene for the purpose
of cross-—examination, if any."
(What is the message, "if any"?)
0-111 (r. 32-33): No more hearing:
Hearing Officer: - « e« When I
receive the testimony in writing,
then I'll set an additional hearing
date at which time we limit the
hearing to Cross Examination, if
any, and rebuttal testimony, if any.
Dr. Ortega: And (re)rebuttal?
Hearing Officer: Yes, but (re)-
rebuttal is limited to what's pre-
sented on rebuttal. We're not re-
opening this case.
Witness: I understand that. I
understand that.
Mr. Rubin: Mr. Hearing
Officer, Dr. Ortega --
Hearing Officer: Perhaps we
can handle this off the record.
Mr. Rubin: Yes, sir.
Appendix-117
Folio VI
(Hearing on Feb. 2, 1982)
VI:4-5 (r. 34): Collusion consummated:
"Well, I think what I'll do in order
to be fair to both parties, or at
least attempt to be fair with both
parties is, we'll consider the test-
imony concluded; however, I'll hold
the record open for another fifteen
days and at that time you can submit
all of the exhibits or any addi-
tional testimony that you want to
present, Dr. Ortega. And I'll re-
quest that you give a copy of it to
Mr. Rubin. At the end of fifteen
Qqays, I'm going to consider’ the
record closed. At that time I'm go-
ing to prepare a proposed decision
for the California State Personnel
Board. The decision will be in
writing; the decision will contain
findings of fact; the decision will
be mailed to all the parties; and it
will be the decision of not just the
Hearing Officer but it will be the
decision of the California State
Personnel Board. And under’ those
circumstances, I'll consider’ the
case submitted."
Appendix-118
Folio VII
(a) ordered submitted on Dec. 29, 1981
for distribution before Feb. 16, 1982;
(bd) incomplete testimony distributed on
Feb. 2, 1981 with three pages missing;
(c) further submissions ordered without
any further hearing or public sharing
VII:(14)047 (r. 15, 18): Another resident
had complained of training as a
volunteer (education should not depend
on regular budget movements):
— ; : Before I left on
administrative leave, (Dr. O'Connor)
told me that the investigation
concerned coercion of contributors
(to get training computer), and that
the flap over the leave of absence
(on which I had placed Dr. Vaughn
until he resumed scheduled training
rotation) was history.
[S.P.B. Rule 368 disallows docking in
excess of 11 days in any 22-day span,
and delay of rotation anticipated ex-
ceeds both. He reported to Highlind on
Aug. 1, 1981. ]
"He also told me not to accept
anymore residents without pay, which
is against the official intent to
encourage volunteerism at all levels
of government. (In fact, Volunteer
Appendix-119
Services had the only other computer
in the hospital.)
", ,. . Even the investigator (Dr.
Laskay), who was careful not to ask
the (Apple) distributor about sub-
purchase orders, is still ignorant
about the basic facts of how
computers work, namely that a
printer (which Napa thought the
Applewriter in the sub-purchase
order was) without a computer is a
seeing-eye dog without a master.
"His bias is so abysmal (or deep) he
even asked the residents if I gave
the newspaper the item about sexual
harassment that has destroyed my
reputation after the hearing
(officer has) dropped one charge and
left the others very much in doubt
(after one day of hearing). He (Dr.
Laskay) is not a very nice man."
VII:(21)137 (r. 18, 48): GOVERNMENT CODE:
NEGLECTED OR VIOLATED
19302a. Appointing powers shall
prepare performance reports and keep
them on file as prescribed by board
rule after discussing it. (Subpoena
duces tecum for Napa personnel
folders also denied.)
", . » THE INVESTIGATION WAS CARRIED
OUT BY THE VERY PEOPLE ABOUT WHOM I
HAD GRIEVIOUS COMPLAINTS."
VII:(25)173 (r. 36, 43, 48): Irony of
sexual harassment charges:
Appendix-120
", . . (The computer) facilitated
the pulling together of material. .
- that can be correlated during a
two-week intensive orientation
period.
"The correlations discovered that
all men undergo a sex change
operation before the recommended
period for legal abortion is over.
And so all .. . who are exiled from
the womb before the first trimester
are female...
", . . (R)esident who resented the
implication of the endocrinological
events inside the womb and the
obstetrical intervention for. safe
abortions . .. came here on the
recommendation of another alumni who
was the first to come out of the
closet. He had asked me if I liked
homosexuals. And I said [I liked
lesbians best. (Because, as
reproductive mammals, they were not
flat-chested. One unappreciated
sexual harassment complainant was.
But only in public trials can that
datum be processed without entering
the record.)
"And so we have
"1) greed for money in an _ ex-felon
lus
"oy resentment at being treated less
than the best in an investigator
(Dr. Laskay), whose sexual
orientation is not a matter of
choice but (as likely) a _ revolt
(endocrine) against a sex change
Operation as a fetus and
Appendix-121
"3) a computer whose purchase must not
by-pass the bureaucrats who are
threatened by redundancy because
they cannot compete with computers
(and)
"4) racism that makes what the hearing
officer calls "limited" sexual
harassment of Caucasian women, no
matter how plain, by an Orientl a
credible charge against a
professional with unsullied reput-
ation.
"If I had not just happened to make
use of the computer's capacity for
correlation at the wrong time, the
resident who complained of being
Overwhelmed during July's orienta-
tion would not be the angriest but
the least confused...
VII:225 (r. 58): Personal harrasment by
homosexual alumnus:
"EVEN HOMOSEXUAL SECURITY AGENTS ARE
NOT SUBJECTED TO SUCH HARASSMENT AS
MY SUPPORTERS AND I HAVE BEEN, FOR
BOTH SEXIST AND RACIST REASONS.
[SPB Rule 303 should have excluded all
evidence of untimely sexual harassment,
Since it protects whomever is unfairly
surprised for not having reasonable
ground to anticipate whatever was
thereafter offered. |
Appendix-122
VII:(44)383-401 (a. 19): APPELLANT'S
BURDEN OF DISPROOP:
A. "An excellent chief of profes-
sional education would:
"1) find it intolerable not to
have a computer available for...
residents who must cape with
patients everyone has failed to help
before they meet.
"4) not make patients compete for
time with the computer against
paper-hungry bureaucrats.
"8) mot wait for approval in
getting ready for the future under
time pressures.
"13) Support residents while
uncertain if also weak, instead of
demanding uniform compliance to a
calendar of expectations.
"., . .« Any Chief of Professional
Education WHO CANNOT MEET ABOVE
STANDARDS SHCULD SIT BEHIND A DESK
AND WAIT FOR PENNY-PINCHERS TO PASS
THE BUCK.
VII:(44)387-9 (a. 19, 37): Who is truly
more incompetent?
B. Levels of and responsibilities for
incompetence:
"4) For an official (Dr. O'Connor)
to (a) approve of exclusive use of
Gata processing equipment for
training and research and (b) agree
Appendix-1 23
to buy accessories and then say (c)
he's sorry, he did not know it has
to be donated to be augmented, and
(d) it needed to be cleared when
applicable UDP policies exempt such
purchas.: ° also (four-squarely)
borders on incompetence. . .
6) And for a business manager (Mr.
Friday) to boast of getting a
computer but not know the first
thing about it, confusing hardware
with software, and a $2,000 item of
equipment witha $75 worth of
prog-ammed diskette is more then
incompetence, it is IGNORABISSIMUS.
7) And not to he able to read a
shipping invoice to discover that
the software was marked undelivered
is incompetence even in a shipping
clerk. BUT NOT TO BE ABLE TO
DISTINGUISH BETWEEN A STOCK NUMBER
AND A REGISTRATION NUMBER WILL NOT
GET ONE EMPLOYED EVEN AS A_ STORE
CLERK.
C. Inefficiency (small work output,
excessive delays) assumes competency
but should not:
"1) To take 12 weeks for 3 in-
vestigators hand-picked by the
business manager to come up empty
except with hearsay evidence.. .
is inefficiency unmatched by
armchair amateurs like me (who must
investigate, charge, and defend).
All I did was enter their statements
into the computer and share it with
those they investigated and ask for
Appendix-124
their comments.
*2) And (for Mr. Friday, the
business manager) not to investigate
the equipment except for one glance
at it while he was passing by in the
hall, but to miss it the week after
he finally persuaded his boss
(forgetful Dr. O'Connor) that I had
deceived him is self-deception or
wish-fulfillment that is unworthy of
a professional. (Or is that
restraint of curiosity I insisted on
when I interrupted his regular
rlirting with my secretaries? ...
"3) For the executive director
(Dr. O'Connor) not to know about
feasibility studies when he is’ the
Only one who may order it in the
case of exempt equipment (all under
$75,000.00) is not efficient
administration. It is dependent
management which leates one at the
mercy of those who might not be
dependable even if they are (more)
knowledgeable. . . All it takes is.
‘ - a few thoughtful questions
whenevery you suspect that
projection takes the place of
performance. You should at least
know what you don't know and ask,
instead of assuming those who know
will act. . . But in a bureaucracy,
information is an instrument of
barter. So one needs to be even
more hard-nosed in inquiring.
"4) (For Dr. O'Connor) (t)o think
of computers as no more necessary
than "a sink or a screen", and not
Appendix-125
entitled to more careful consider-
ation is not to know how much time
and temper can be saved by comput-
SFO. «+ «
D. "INSUBORDINATION (mutinous,
disrespectful coduct):
at | deal with sister hospitals
directly, and with other hospitals
here or out of state or out of the
country, and nobody except our
sister hospitals knows who our
executive director (Dr. O'Connor)
is. . .
"The only (other) time I wrote a
letter for his signature was in
reply to an inquiry by (acting)
chief deputy director (Dr. Barter)
of the department, pretending in-
terest in our meeting new accred-
itation (training) requirements.
"I wrote a paragraph saying it wes
my policy to exceed all accredit-
ation requirments, and we will
succeed without a hitch if we get
more computer power and replacements
Tor old video equipment. He signed
that (letter) because the inquiry
was directed at him. (It probably
opened the door to talking about
electronic educational
capabilities.) Could he have
forgotten the implicit promise in
that letter for more computer power?
THE CHANCES ARE THAT HE CANNOT
HONESTLY RECOLLECT WHAT HE SPEcIF-
ICALLY SIGNED!
Appendix-126
"ONLY TWICE DID HE ASK ME TO DO
SOMETHING, AND BOTH TIMES IT
CONCERNED THE SAME PERSON (Dr.
Laskay).
"a) The first time he asked it as
a (personal) favor, to pay Dr.
Laskay (a training stipend) from the
start; and then he relented later,
after hearing some unflattering
things about Dr. lLaskay. I
reassured him Dr. Laskay's patients
are well taken care of. (And so are
Dr. Vaughn's, or neither would have
continued as my supervisees.) ...
"b) The second time was when he
wanted me to go an administrative
leave: He said I should not start
residents without pay. He said HE
SAID HE WAS AFRAID THE ATTORNEY
GENERAL WOULD FIND IT ILLEGAL. He
did not know there is a_ specific
provision in the Governmert Code
encouraging all agencies to accept
volunteers.
"E. DISHONESTY (corruption, lying,
cheating, stealing):
"1) IF the B.M. (Mr. Friday) knew
that the printer costs more than the
entire total of the sub-purchase
orders, it is DISHONEST of him to
mislead the C.E.0O. (Dr. O'Connor)
into believing that the subpurchase
orders included a printer.
"2) And it is DISHONEST of
respondents to present FALSE
instruments as exhibits, not only
Appendix-127
one but thrice: (a) an unsigned
thank-you note to the donor of the
printer, (b) and unsigned contract
for the computer consultant, and (c)
the first (computer consultant)
contract, purported to be disap-
proved when it was not forwarded at
all.
"ALL WERE FILE COPIES AND TWO (a and
b) HAD SIGNATURES BY THOSE WHO NEED
TO SIGN THEM.
"3) It is compounding DISHONESTY
with DECEPTION (of the deputy
attorney general) when it is alleged
(on the basis of disinformation)
that the hospital is more than just
an agent when a contract has’ been
approved by duly constituted
authorities.
"NOT ONCE IN MY 17 YEARS HAS THE
HOSPITAL DELAYED PROCESSING MY
CONTRACTS NOR DELAYED COUNTER-
SIGNING (RUBBER-STAMPED RECEIPT OF)
APPROVAL BY DULY CONSTITUTED
AUTHORITIES. . .
8) It is CORRUPT to confiscate my
papers and select from them what
weapons to use against me (to defend
themselves). Ca) And CORRUPT to
threaten me with what friends
entrusted to me personally, and use
them to get at me without their
permission. (bo) And (CORRUPT) to
try to suborn testimony by blackmail
and proceed to blacken the personal
reputation of a professional testi-
fying to impersonal and professional
Appendix-128
matters. (c) And (CORRUPT) to imply
she is perjuring herself (to be
consistent) with a ten-year-old
Valentine Card. |
"13) And it is LYING to claim that
the computer consultant contract was
held up because there had been no
inventoried data processing equip
ment.
"14) And it is LYING to say that
no purchases can be made without
feasibility studies (of which one is
ignorant) when the amount involved
is under the maximum that is exempt
(and there was a feasibility study
on file).
"15) And it is LYING to allege
that the consultant will have been
Overpaid because he is no expert
when (after) he has been adjudged
one and his contract has been
approved by better experts than
local pretenders.
"16) It is DISHONEST (of Dr.
O'Connor) to send me on adminis-
trative leave secure in the belief
that the investigation will not dis-
cover coercion of contributors
because there had been none, and
then announce that one had suspected
deception even before the complaint
of coercion came up.
"17) And it is (a) LYING to the
residents to reassure them that
nothing will change .. ., and when
the (two-week) investigation came up
Appendix-129
empty, (b) MISREPRESENTATION to say.
he (Dr. O'Connor) extended my leave
to rest all rumors about me...
"148) And it is NOT HONEST bot Dr.
O'Connor) not to offer that (a) we
wanted what we bought for ourselves
and (b) he promised support for
training accessories to maintain
accreditation and serve our patients
better (which Dr. O'Connor never
retracted).
"Q) DISOBEDIENCE (violation of command
or prohibition
"1) The B.M. (Mr. Friday) disobeys
legislative intent when on two
separate occasions he refused to
transmit (to headquarters and to Dr.
Ortega) the consultant contracts.
"3) (H)is team .. . disobeyed the
C.E.O. if Dr. O'Connor honestly
wanted to know the facts.
"P) EXPROPRIATION: misuse of an-
other's property:
"2) It is misuse of state care
(for Mr. Rubin, deputy attorney
general) to recall an investigator
back to the hospital from his home
to claim four hours of overtime to
deliver illegally a stamped envelope
containing a blackmail threat.
"3) It is expropriation to demand
the residents not use their own
computer (even after they have
Appendix-130
already been interviewed by the
investigators).
“=e OTHER MISCONDUCT indisputably
discrediting agency:
"14) It reflects on the hospital
for its officials (a) to present. .
‘ false instruments .. . as
exhibits, (b) disrespectful of the
hearing officer, (c) contemptuous of
the State Personnel Board, (d) also
illegal even if one is not under
oath, and (e) probably worse that
perjury which is easier to remedy.
"2) Further to sensationalize
- by publicity releases when it is
not the usual hospital practice also
reflects on the hospital, and not to
its credit.
"3) It is not creditable (liter-
ally and figuratively) for a hospi-
tal to demand residents give up per-
sonal holiday and vacation time to
attend hearings that may decide
their future.
"4) It is abuse of power under
color of office to discourage right
of peaceful assembly.
"S) It is abuse of power under
color of office to deny owners’ the
use of their property.
"6) It is abuse of power under
color of office to withhold salary
of faculty protesting against the
bias of a witch hunter (Dr. Laskay),
Appendix-1 31
alter his teaching schedule, and
then offer duties not in his
contract to make him depart from a
program he helped build at the risk
of disaccreditation by default.
"None of the above, (unlike the
causes for dismissal under the same
headings,) are make-weight, since
they all form a pattern of
performance. . . Only because the
pattern is undeniable does the
motivation emerge as irresistible.
"Tf it takes 5 different individuals
67 specific separate or joint acts
or omissions to allege and try 9
alleged against me, it is truly a
mismatch, and it is the state and
not my accusers I must confront.
"And it took only half as long as it
took three investigators three
months for me to discover and even
to document them. If that makes me
six times more efficient as an
amateur, I am not surprised. But I
am not being tried as an amateur
investigator, but as Chief of
Professional Education. (In that I
have no peer in state service.)
VII:(44)440 (r. 56, a. 19): Evolution of
baseless charges:
"We stopped to pick up my mail on
our way back from vacation, and
found my office locked up but not
the computer.
"Tl thought they did change locks of
Appendix-1%32
the offices because of theft. It
soon turned out I was the one they
didn't want inside my own office.
"T am allege(d) not to have followed
proper donation procedures to obtain
an inventory number for delivered
equipment. I doubt that anyone even
now knows for sure which procedures
apply to equipment not intended for
general hospital use but must be
traceable in case of loss..."
(44)443 (r. 56): Was there reasonable
cause to suspect?
[1) I dictated the thank-you
notes.
[ 2) Their wording precludes
hospital use of computer equipment.
(3) Dr. O'Connor tried to defend
Sub-purchase orders of accesories by
repeating my justification that they
are modular (interchangeable).
[4) He had thanked the contri-
butors for obtaining a training
computer.
[5) Without hospital inventory
numbers, Mr. Friday can defer
transmission of contracts.
(6) Having them finally processed
and approved, better allege trespass
when the computer is picked up over
the week-end.
(7) Date administrative leave so
Appendix-1 33
that it does not seem trespass.
[8) Repeat belief in hospital's
ownership.
(9) But thank-you notes belie the
belief.
[10) Allege forgery for donor
whose signed letter may turn up
missing.
(11) Better stick to the truth,
that I dictated the letters.
(12) And the sub-purchase orders
at the same time (to make the April
15 deadline).
[13) Deny the deadline.
[14) Claim short vacation was
foreshortened by alleging deadline
to sign.
(15) Not waiting is willful
disobedience.
(16) The subpurchase order was
copied from another list of
equipment and shares one identical
error.
(17) The list says some _ had
already been delivered.
(18) Why have two disk drives and
two monitors (deny overcrowding)?
(19) A computer can only use one
printer at a time, why get an
Appendix-134
Applewriter.
[20) Mr. Friday says it's a
printer, and its his ignorance
against the facts.
[21) Let's make his L.0.A_ memo
less air-tight with notes of our
own.
[22) Repeat what we noted in
Notice of Separation.
(23) Find others who will complain
about hin.
[24) Another allegation was also
outside statute of limitations, so
let's add it and then amend later.
[24) Let's get two warm bodies
before it is too late to amend. ]
523 (37): SPB sustained dismissal now
still being appealed:
"Will the State Personnel Board
stand by and watch the rape of a
career and the murder of a profes-
sional? OR sanctify it with a
ritual sacrifice in the altar of a
secular god whose name is State but
begins with B for Big Bureau.
"OR refuse to bless an unholy mar-
riage (between Napa and Davis)? AND
choose to commend one grandfather
for his progeny (including Dr.
O'Connor)? ;
Appendix-135
NATURE OF CONTINUING CONTROVERSY
PRELIMINARY OBSERVATIONS/COMPARISONS
As in Reply ('1 ) to Petition for Writ
of Certiorari ('C'), this integral but
separable part of respondent's brief
(RB) is appended (App.) to document
refutation of (i) new allegations, both
specified and non-specific, in current
petitioners' brief (PB) and the amicus
curiae brief for the U.S. (US), as well
as (ii) less recent charges "noticed" in
federal court by hearing counsel for
NAPA before the State Personnel Board,
and (iii) its own proposed findings as
appended (without Notice of” Punitive
Action which it purportedly sustains) in
the petition for writ of certiorari.
PAST, RECENT AND PRESENT CONTROVERSY
What is purported to be an investi-
gative inventory allowed petitioners to
treat respondent as a criminal, from
whom their employees must be protected.
Appendix-1 36
NGfURE OF CONTINUING CONTROVERSY
The investigators were biased, peon
dismissed before there were written
charges, his protest and request for
referral to Agency Secretary accepted as
a fornal appeal against dismissal, the
hearing scheduled before formal appeal
against written charges was’ received,
key witnesses examined before discovery
was complete, cross-examination and
Subpoenas denied after court ordered
full discovery, peon cross-examined
before he could present his witnesses,
the decision to dismiss sustained before
the proceedings nad been reported, and
the hearings transcribed out of
chronological order, filled with
prejudicial errors (e.g., pronoun
changes) so that only careful reading,
which discourages the casually
interested, discovers the context and
Original content of the printed record.
Appendix-137
NATURE OF CONTINUING CONTROVERSY
If NAPA had been a prison instead of a
hospital, respondent's "house arrest"
throughout his illegal administrative
leave would be equivalent to an
irdeterminate isolation during the time
he is held in administrative segregation
as a suspect following an alleged
offense, pending indictment. Like
Hinckley's, but for different reasons,
his papers will be impounded (command-
eered without war or hot pursuit). His
segregation for an indeterminate period
of time, when his illegal administrative
leave was extendec indefinitely, and the
manner in which the state conducted its
investigation indicates that petitioners
had committed itself to prosecute.
If petitioners elected to employ an
adversary system -- instead of the
established channels for resolving
grievances provided by State Civil
Appendix-138
NATURE OF CONTINUING CONTROVERSY
Service (Ex. xiv) -- then all issues
must be contested before a court of law.
Justice would be defeated if judgments
were to be founded on a partial or
speculative presentation of facts.
The need to develop all relevant
facts in an adversary systez is both
fundamental and comprehensive. . .
The very integrity of the judicial
system and public confidence in the
system depend on a full disclosure
of all the facts, within the
framework of the rules of evidence.
U.S. v. Nixon (1974) 418 U.S. 683,
709.
Some of the material discoverable
during the S.P.B. hearings were withheld
despite Stat Superior Court order (Ex.
aH) specifying that they be furnished.
"Preliminary investigative notes" were
then secretly submitted to federal
district court, after it had already
issued its summary judgment! They wer
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