# Appendix — O'CONNOR v. Ortega > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0442%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1987 - **Citation:** 480 U.S. 709 ## Text 2 ‘ FILED MAR 18 1986 two EES -- 5S Fs EDSEPH F. SPANIOL, JR. eee ee Cee _- - CLERK . 23 -r1 so. G- -__——-— > —_—_—_———— ———— — — — —— Bee eS ee | ., Supreme Court, U.S. ‘ | 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 & = CS Oe ae eee oa oe ee ea = ee ae a eae Oe Or Coumset of Recor-ct: MAGNO J. ORTEGA Cim fPrcoprinra Ppwer-somna > 7239 Thompson AVeE:nuse Napa, Calir. <-4tS5oa Tels C4165) SOyr7- savovu 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 rn a ay ee , © Ose eee - ° ei ~~ b) ner," j bn. 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.