State of California (Health Services) (PERB 0575S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JOYCE C. 	JOHNSTON,
Charging 	Party,
v.
STATE OF CALIFORNIA 	(DEPARTMENT
OF HEALTH 	SERVICES),
Respondent.
)
)
) 	Case 	No. 	S-CE-246-S
PERB 	Decision No. 	575-S
June 	20, 	1986
)
)
)
)
)
)
)
Appearances: 	Loren E. 	McMaster, 	Attorney 	for Joyce C. 	Johnston;
Marjory Winston Parker, 	Deputy Attorney General, 	for 	the 	State
of 	California 	(Department of Health Services).
Before Hesse, 	Chairperson; 	Porter and Craib, 	Members.
DECISION AND 	ORDER
HESSE, 	Chairperson: 	Joyce C. 	Johnston excepts 	to the
attached 	decision of 	the 	administrative 	law 	judge 	(ALJ)
dismissing 	her 	charges 	that 	the 	Department 	of 	Health 	Services
violated 	sections 	3519(a) 	and 	(b) 	of 	the State
Employer-Employee 	Relations 	Act 	(SEERA).'1 The 	Department 	of
Health 	Services 	excepts 	to one 	finding of 	fact made by 	the ALJ,
but 	not 	to 	the 	remaining 	findings 	or 	to his 	conclusions 	of 	law.
The 	Board has 	considered 	the 	entire 	record and 	the proposed
decision 	in light 	of 	the 	exceptions 	and briefs, 	and hereby
adopts 	the 	proposed 	decision and 	Order 	as 	the 	Decision and
1SEERA 	is 	codified 	at 	Government 	Code 	section 	3512 	et
seq. 	Unless 	otherwise 	indicated, 	all 	statutory references
herein 	are 	to 	the 	Government 	Code.
__)

Order of the Board 	itself. 	Accordingly, 	we DISMISS, 	in its
entirety, 	the unfair practice charge 	in Case 	No. 	S-CE-246-S.
Members 	Porter 	and Craib 	joined 	in this 	Decision.
N
2

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JOYCE 	C. 	JOHNSTON.
Charging 	Party.
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENT OF
HEALTH 	S E R V I C E S ) .
Respondent.
)
) 	Unfair 	Practice
Case 	N o . 	S-CE-246-S
PROPOSED 	DECISION
(10/23/85)
)
)
)
)
)
)
)
)
Appearances: 	Loren E. 	McMaster. 	Attorney, 	for
Joyce 	C. 	Johnston; 	Marjory 	Winston 	Parker. 	Deputy Attorney
General, 	for 	the 	State 	of 	California 	(Department 	of 	Health
S e r v i c e s ) .
Before 	Ronald 	E. 	Blubaugh, 	Administrative 	Law Judge.
PROCEDURAL 	HISTORY
A 	State-employed 	attorney 	attended 	a 	legislative 	hearing
despite 	her 	supervisor's 	denial 	of 	two 	hours 	of 	vacation 	time
to 	cover 	the 	absence. 	Following 	her 	subsequent 	grievance 	about
the 	denial 	of 	vacation 	time, 	the 	attorney was 	transferred 	to 	a
position 	she 	considered 	less 	desirable. 	The 	question 	presented
here 	is 	whether 	the 	transfer 	was 	an 	unlawful 	retaliation 	for
the 	protected 	filing 	of 	the 	grievance.
The 	charge 	which 	commenced 	this 	action was 	filed 	on
March 	1 2 , 	1985. 	by Joyce 	C. 	Johnston. 	As 	originally filed, 	the
charge 	named 	Richard 	H. 	Koppes, 	deputy 	director 	of 	the
Department 	of 	Health, 	as 	Respondent. 	The 	Public 	Employment
This Board agent decision has been appealed to
the Board itself and is not final. Only to the
extent the Board itself adopts this decision and
rationale may it be cited as precedent.
__ )

Relations 	Board 	(hereafter 	PERB) 	subsequently 	identified 	the
Respondent 	as 	State 	of 	California 	(Department 	of 	Personnel
Administration) 	in the 	complaint which was 	issued 	on April 	17.
1985. 	The 	identity of 	the Respondent was 	changed 	by
stipulation 	at 	the 	hearing 	to 	State 	of 	California 	(Department
of Health Services).
The 	complaint 	alleges 	that 	by 	filing 	a 	grievance 	on
September 	10. 	1984, 	the Charging Party engaged 	in conduct
protected 	under 	the 	State 	Employer-Employee 	Relations 	Act
(hereafter SEERA). 	By subsequently abolishing Ms. 	Johnston's
position 	as 	lead 	counsel 	and 	transferring 	her 	to 	another
position, 	the complaint alleges, 	the State retaliated against
Ms. 	Johnston for 	engaging 	in protected 	conduct. 	This 	action,
the 	complaint 	continues, 	violated 	SEERA subsections 	3519(a)
and ( b ) . 1
1Unless 	otherwise 	indicated, 	all 	references 	are 	to 	the
Government 	Code. 	The 	State Employer-Employee Relations Act 	is
found at 	section 3512 	et 	seq. 	In relevant part, 	section 3519
provides as 	follows:
It 	shall 	be unlawful 	for 	the 	state to:
(a) 	Impose 	or 	threaten to 	impose 	reprisals
on employees, 	to discriminate or 	threaten to
discriminate against 	employees, 	or 	otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise of
rights 	guaranteed 	by 	this 	chapter.
(b) 	Deny to 	employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
22

The 	State answered 	the 	charge 	on May 	14, 	1985. 	denying the
key allegations 	in 	the 	complaint 	and 	denying 	that 	it 	had
violated 	the 	SEERA. 	The 	State 	also 	raised 	several 	affirmative
defenses, 	including a 	contention that 	there was 	no nexus
between Ms. 	Johnston's 	protected 	conduct 	and 	the 	actions
affecting her 	job. 	In addition, 	the 	State alleged 	that 	the
decision to place Ms. 	Johnston 	in a 	different position was
motivated 	by 	legitimate 	business 	reasons 	and 	that 	in 	any 	event,
the 	change 	did 	not 	amount 	to 	an adverse 	action.
A hearing was 	conducted 	in 	Sacramento 	on August 	26 	and 	27,
1985. 	The 	parties 	filed 	simultaneous 	briefs 	on September 	23,
1985, 	on which date 	the matter was 	submitted 	for 	decision.
FINDINGS 	OF 	FACT
The Department 	of Health Services 	(Department) 	is 	a unit 	of
State 	government which 	administers 	some 	200 	health-related
programs. 	Among these are Medi-Cal, 	which funds 	health care
for 	low-income 	persons, 	and 	programs 	involving 	family planning,
genetic 	diseases 	and 	toxic 	chemicals. 	The Department 	is
included within 	the 	definition 	of 	"State 	employer" 	under 	SEERA.
The 	events 	at 	issue 	took 	place within 	the Department's
Office of 	Legal 	Services. 	During the 	relevant 	period, 	the
legal 	office was 	divided 	into 	five units: 	The Preventive
Health Section, 	the Medi-Cal 	Policy Section, 	the Audits and
Investigations 	Section, 	the Toxics 	and Environmental 	Health
Section 	and 	the Administrative Appeals 	Section.
w
	3

Joyce C. 	Johnston, 	the Charging Party, 	was 	employed by the
Department 	in May 	1980. 	She went 	to 	the Department 	at 	the
urging of Robert Tousignant. 	an assistant 	chief 	counsel, 	who
had worked with her 	in another 	State 	department 	while 	she was 	a
legal 	intern. 	Mr. 	Tousignant 	became 	her 	supervisor 	at 	the
Department 	of 	Health Services where 	she 	started 	as 	an entry
level 	attorney. 	As 	an attorney. 	Ms. 	Johnston held a 	job within
State employee 	bargaining unit 	no. 	2, 	which 	includes 	attorneys
and hearing officers. 	Even though Ms. 	Johnston was 	a 	lead
attorney 	during 	the 	relevant 	period 	and 	supervised 	the work 	of
others, 	she was 	not 	excluded 	from the 	bargaining unit 	as 	being
management, 	supervisory or 	confidential.
Ms. 	Johnston 	received 	rapid 	promotions 	following 	her
employment with the Department. 	She was 	admitted 	to 	the 	State
Bar 	in 	1977 	and 	before 	the 	end 	of 	1983 	she 	already had 	attained
the position of 	Staff Counsel 	III, 	the 	highest 	rank-and-file
job 	for 	attorneys within the Department. 	Ms. 	Johnston has
received 	a 	series 	of 	highly 	favorable 	evaluations 	throughout
her 	career with the Department. 	In January 	1982. 	she was 	rated
as 	"outstanding" 	in 	every 	category 	for 	her 	final 	probationary
report 	as 	a 	Staff 	Counsel 	II. 	On the 	narrative 	portion of 	the
evaluation form, 	her supervisor, 	Robert Tousignant, 	described
her 	as 	"one 	of 	the 	outstanding attorneys 	in the 	office" 	who 	in
"a relatively short time 	. 	. 	. 	has developed a thorough
knowledge 	of 	department 	programs 	and 	office 	practices."
4

In December 	1982, 	Mr. 	Tousignant gave Ms. 	Johnston a
favorable 	appraisal 	in a 	promotional 	examination 	for 	the
position of 	Staff 	Counsel 	III. 	He 	described 	her variously as
"extremely 	capable 	in 	the 	area 	of work management," 	"obviously
concerned about 	the 	needs 	of 	the department, 	her 	clients 	and
the 	office." 	a 	person who 	"effectively presents 	ideas 	both
orally and 	in writing," 	who 	"writes 	clearly and 	persuasively,"
whose work 	is 	"well-organized 	and 	logically 	presented."
Mr. 	Tousignant described Ms. 	Johnston as 	"among the most
creative 	and 	independent 	attorneys 	in 	the 	office" 	with
"analytical 	skill 	[that] 	is unsurpassed" 	who 	identifies
"publicly sensitive 	issues 	and 	responds 	to 	such 	issues 	in a
consistently proper 	manner." 	He wrote 	that Ms. 	Johnston 	"has
no 	difficulty 	in 	getting 	along with 	people 	in 	any 	context" 	and
said 	that 	she 	"gets 	along well with co-workers, 	program staff
and 	department 	management 	at 	all 	levels." 	Mr. 	Tousignant wrote
that Ms. 	Johnston 	"readily accepts 	the viewpoints 	of 	others 	on
most 	issues" 	and 	that 	"even on 	issues 	that 	she 	feels 	strongly
about, 	Joyce has 	developed a 	tolerance 	for 	the views 	of 	others."
Mr. 	Tousignant was 	joined 	by 	the Department's 	chief
counsel, 	Richard H. 	Koppes, 	in such high appraisals of
Ms. 	Johnston's work. 	In a July 	1983 	memorandum urging 	the
promotion of Ms. 	Johnston and 	several 	other attorneys,
Mr. 	Koppes 	praised Ms. 	Johnston's work as 	a 	lead attorney,
supervising 	the work of 	others. 	He wrote 	that 	she 	had 	"an
55

efficient 	and 	common 	sense 	approach 	to 	dealing with 	the
department's 	legal 	problems" 	and 	that 	she has 	"excellent
writing 	skills 	and 	ability 	to 	quickly 	grasp 	and 	analyze 	an
issue." 	In August 	1983, 	Mr. 	Koppes appended to a standard
certification 	for 	salary adjustment 	that Ms. 	Johnston 	"more
than" 	met 	the 	level 	of work expected 	and 	that 	he 	"highly"
recommended 	her 	for 	a merit 	salary adjustment.
Such praise-filled 	evaluations 	of Ms. 	Johnston's work 	from
both Mr. 	Tousignant 	and Mr. 	Koppes 	continued 	through 	the 	spring
of 	1984. 	There are no 	criticisms 	of 	her 	performance 	in the
record which were written 	prior 	to 	the 	controversy 	over 	her
attendance at 	the 	legislative hearing. 	By the 	fall 	of 	1984.
when 	the 	present dispute arose. 	Ms. 	Johnston had 	been 	in the
legal 	office 	for 	four years, 	had 	risen to 	the highest
rank-and-file 	class 	available, 	reviewed 	the work 	of 	five 	to 	six
attorneys 	and was 	considered 	by her 	supervisors 	to 	be 	one 	of
the Department's 	most 	skillful 	lawyers.
The 	legislative 	hearing which 	gave 	rise 	to 	the 	present
dispute was 	conducted 	by 	the 	Senate 	Health 	and 	Human 	Services
Committee on September 	11, 	1984. 	The hearing was 	scheduled 	by
its 	chair. 	Senator Diane Watson, 	to 	take testimony about
proposed 	Department 	changes 	in 	State 	family 	planning
contracts. 	The Department 	enters 	contracts with some 	140 	to
170 	organizations 	and 	institutions 	to 	provide 	family planning
assistance 	to 	California 	residents. 	The 	administration desired
6

to 	change 	those 	contracts 	for 	the 	1983-84 	fiscal 	year 	to 	ensure
that 	no 	State money would 	be 	spent 	on abortion. 	There were
some 	delays 	in 	issuing 	the 	contracts 	because 	of 	the 	changes 	and
some 	legislators, 	including Senator Watson, 	were upset 	about
both 	the 	delays 	and 	the 	nature 	of 	the 	proposed 	changes.
Senator 	Watson 	had 	attempted 	unsuccessfully 	to 	subpoena 	the
director 	of 	the Department 	to 	compel 	attendance 	at 	the
hearing. 	The 	subject 	of 	the 	hearing 	had 	become 	highly visible
and 	there was 	extensive 	news 	reporting 	about 	it 	throughout
California.
Because 	of 	the 	charged 	atmosphere, 	the Department wanted 	to
restrict 	the 	number 	of 	staff 	members 	who would 	attend 	the
hearing. 	The Department 	director 	and 	members 	of 	the 	executive
staff were 	fearful 	that 	legislators 	might 	try 	to 	call 	staff
members 	from the 	audience 	to 	testify at 	the 	hearing. 	The
Department 	wanted 	to 	avoid 	such 	an 	eventuality 	by 	limiting
employee 	attendance. 	Mr. 	Koppes 	testified 	that 	the Department
director 	was 	"very 	concerned 	about 	just 	who 	might 	be 	summoned
up there."
The 	forthcoming 	legislative 	hearing was 	a 	subject 	of
discussion within 	the Department. 	During 	lunch on 	September 	7,
Ms. 	Johnston mentioned to her supervisor. 	Mr. 	Tousignant, 	that
she 	thought 	the 	hearing would 	be 	interesting 	and 	she 	would 	like
to attend. 	However, 	from that 	first mention of 	interest 	by
Ms. 	Johnston. 	Mr. 	Tousignant discouraged 	the 	idea. 	He told her
77

that 	it would 	not 	be 	prudent 	for 	her 	to 	attend 	and 	that 	he did
not 	think 	she 	should 	do 	it. 	She 	told 	him that 	she was
considering 	the 	submission 	of 	a 	vacation 	absence 	form 	but
Mr. 	Tousignant was 	negative 	about 	her 	even making a 	request.
Ms. 	Johnston quoted 	him as 	telling her. 	"if you 	told me what 	it
was 	for. 	I'd 	deny 	it." 	Mr. 	Tousignant 	did 	not 	contradict 	this
testimony.
The 	then-existing Department 	policy 	on 	legislative 	contacts
contained 	no 	prohibition 	against 	employee 	attendance 	at
legislative hearings 	on an employee's 	own time. 	Indeed, 	the
policy 	specifically 	permitted 	employees 	to 	testify 	before 	the
Legislature 	as 	private 	citizens.
Department 	policy on vacations 	existing 	at 	the 	time 	of 	the
hearing 	likewise 	contained 	no 	restriction 	that 	would 	have
prevented Ms. 	Johnston 	from using vacation 	time 	to 	attend 	the
legislative 	hearing. 	There was 	no 	policy 	prohibiting
employees 	from 	taking vacation 	in 	an 	increment 	as 	small 	as 	two
hours. 	There was 	no 	policy restricting what 	an employee 	could
do 	during 	his 	or 	her 	vacation 	and 	the 	Department 	did 	not 	have 	a
practice 	of 	reviewing 	the 	purpose 	for which an 	employee
requested 	a vacation. 	No witness 	at 	the 	hearing could 	recall
any 	previous 	situation where 	a 	vacation 	request 	by 	an 	attorney
had 	been denied, 	although 	employees 	have 	been 	requested 	to
change dates 	because 	of workload 	pressures.
8

On September 10, 	1984. 	Ms. 	Johnston completed the
Department's 	standard 	absence 	notice. 	She 	requested 	to 	be
absent 	the 	entire 	morning 	of 	September 	11 	for 	"personal
business 	(vacation)." 	Ms. 	Johnston testified 	that as 	soon as
Mr. 	Tousignant 	saw the vacation slip 	in her 	hand, 	he 	began to
say. 	"No. 	no. 	no." 	She testified 	that 	she asked him why she
should 	not 	make 	the 	request 	and 	he 	responded 	that, 	"You 	don't
have 	any 	business 	being 	there." 	She 	responded 	that what 	she
did 	during vacation was 	her 	own 	business 	to which
Mr. 	Tousignant 	responded 	that 	the 	Department 	could 	always 	deny
a vacation for 	"press 	of 	business."
Either when he 	first 	saw the 	vacation 	request 	or 	at 	a 	later
time 	prior 	to 	the 	hearing 	the next day. 	Mr. 	Tousignant 	told
Ms. 	Johnston that 	he would 	be 	conducting 	interviews 	on
September 	1. 	He 	said 	that 	because 	he would 	be 	busy 	he wanted
her 	to 	be 	in charge during 	the 	time 	he was 	interviewing. 	The
interviews were 	conducted 	in Mr. 	Tousignant's 	office 	and he did
not 	leave 	the 	office 	during 	them.
At 	the 	time Mr. 	Tousignant 	first 	rejected Ms. 	Johnston's
request 	for 	two 	hours 	of vacation, 	he 	told 	her 	that 	although he
was 	declining the 	request 	she 	could 	appeal 	to Mr. 	Koppes.
Ms. 	Johnston immediately filed an appeal with Mr. 	Koppes. 	In a
note, 	she advised Mr. 	Koppes 	that 	she wished to attend 	a
legislative 	hearing 	as 	a 	private 	citizen 	on her 	own 	time. 	She
promised 	that 	she would 	not 	participate 	in 	the 	hearing 	or
9

identify 	herself 	as 	a 	Department 	employee 	but 	would 	merely
observe. 	She 	requested 	to 	take 	off 	two 	hours 	of 	vacation and
offered 	to 	make up 	the 	time 	by 	lengthening 	her work 	shift 	if
necessary.
Ms. 	Johnston took the note to Mr. 	Koppes' 	office and 	left
it with his 	secretary 	in the 	early afternoon on September 	10.
Mr. 	Koppes 	did 	not 	see 	the 	request until 	after 	5:00 p.m.
because 	he 	had 	been meeting 	all 	day with 	the 	Department's
executive 	staff 	to make 	plans 	for 	the 	legislative 	hearing.
When Mr. 	Koppes' 	secretary handed 	him the 	note, 	she 	told 	him
that. 	"Bob refuses 	to deal with this." 	Mr. 	Koppes understood
the 	remark 	to mean that Mr. 	Tousignant 	had 	not 	taken action on
the vacation 	request 	and 	his 	initial 	focus 	was 	on why
Ms. 	Johnston's 	immediate 	supervisor 	had 	side-stepped 	the
request. 	He 	called 	but was unable 	to 	reach Mr. 	Tousignant who
had 	left 	for 	the 	day.
Mr. 	Koppes 	responded 	to 	the 	request 	by writing 	on the
absence 	form 	that 	he,
. 	. 	. 	would prefer that you not attend 	[the]
hearing and 	that you 	report 	to work as 	usual
unless 	you 	have 	an 	illness 	or 	emergency 	to
attend 	to.
He 	gave 	the 	note 	to 	his 	secretary who 	placed 	it in
Mr. 	Tousignant's 	communications 	basket.
Ms. 	Johnston, 	meanwhile, 	was concerned that 	by 	late 	in the
afternoon 	she 	still 	had 	not 	received 	a 	response 	to 	her 	vacation
10

request. 	At 	5:20 p.m.. 	she went 	to Mr. 	Koppes' 	office. 	As 	she
stood 	at 	the 	door 	his 	secretary announced 	her 	arrival.
Ms. 	Johnston 	testified 	that Mr. 	Koppes 	never 	looked 	up 	from his
desk 	and 	before 	she 	could 	say anything 	he 	stated 	simply, 	"the
answer 	is 	no." 	She 	asked whether 	he 	knew the 	question and
after 	some 	brief verbal 	sparring 	between 	them. 	Mr. 	Koppes
stated 	that 	he 	already had 	sent 	the 	answer 	back 	to
Mr. 	Tousignant. 	She asked what 	he had written to
Mr. 	Tousignant 	and 	he 	responded 	that 	he 	"would 	prefer" 	that 	she
not 	attend 	the 	hearing. 	She 	excused 	herself 	and went 	to
Mr. 	Tousignant's 	office 	to 	search for 	the written response.
She found 	it 	on Mr. 	Tousignant's desk.
At 	home 	that 	evening. 	Ms. 	Johnston decided 	that 	she wanted
to 	attend 	the 	legislative 	hearing despite Mr. 	Koppes' 	statement
of 	preference. 	She wrote 	another 	note 	to 	him stating 	that 	she
understood 	his 	position as 	a 	statement 	of 	preference 	that 	she
not 	attend 	the 	legislative 	hearing 	but 	that 	he was 	leaving 	the
ultimate 	decision up 	to 	her. 	She 	promised 	that 	her 	attendance
at 	the 	hearing would 	not 	cause 	"embarrassment 	to you 	or 	to 	the
administration." 	However, 	she continued, 	if she had
misinterpreted 	his 	position 	and 	he 	planned 	to 	disapprove 	her
request 	for 	two 	hours 	of 	vacation, 	then 	she wanted 	"to 	know the
reason 	for 	such disapproval, 	and you may consider 	this 	as 	a
grievance 	regarding 	the 	denial 	of 	the 	requested 	two 	hours'
vacation time."
11

The 	next morning Ms. 	Johnston delivered 	her memorandum 	to
Mr. 	Koppes' 	office and gave a copy to Mr. 	Tousignant. 	After he
read the document. 	Mr. 	Tousignant went to Ms. 	Johnston's office
and 	emphasized 	to 	her 	that 	he 	had 	denied 	her 	request 	for
vacation. 	He 	told 	her 	"it was 	inappropriate 	for 	her 	as 	an
attorney 	for 	the Department 	to 	attend 	a 	hearing 	related 	to
matters 	that 	she 	had worked 	on." 	Mr. 	Tousignant 	testified 	that
he also,
. 	. 	. 	told her that 	I thought it as
potentially 	embarrassing 	to 	the 	Department
and 	to Rich 	to 	have 	her 	there 	because 	her
views 	on 	the 	issues 	related 	to 	the hearing
were well 	known and 	it was 	clear 	that 	she
wasn't 	representing 	the Department 	at 	the
hearing.
Ms. 	Johnston's 	second note was 	sitting on Mr. 	Koppes' 	desk
when he 	arrived 	at work on the morning 	of 	September 	11. 	When
he 	saw the note he 	sent 	it 	to Mr. 	Tousignant with the
instruction to 	"Please handle 	this matter." 	He 	also wrote, 	"I
repeat 	my preference 	that 	she 	not 	attend 	[the] 	hearing."
Mr. 	Koppes 	testified 	that 	he 	read Ms. 	Johnston's 	note 	"very
quickly" 	and 	did 	not 	notice 	the 	statement 	that 	he 	should
consider 	the memo 	a 	grievance 	if 	he 	chose 	to deny her 	request
for 	two 	hours 	of vacation.
Once he received Mr. 	Koppes' 	note, 	Mr. 	Tousignant went 	to
Ms. 	Johnston and 	stated 	that 	the note meant 	that 	she had 	been
denied 	permission to 	take 	two 	hours 	of vacation. 	Ms. 	Johnston
asked 	the 	reason for 	the 	denial 	and, 	she 	testified.
12

Mr. 	Tousignant 	responded, 	"press 	of 	business." 	This was
explained 	to 	be 	the 	interview process 	which would 	keep
Mr. 	Tousignant 	tied up 	in his 	office 	throughout 	the day.
Ms. 	Johnston 	replied 	that 	she 	had 	requested 	the 	grievance 	to 	be
resolved 	before 	10:00 a.m. 	but Mr. 	Tousignant 	stated 	that 	he
believed 	he 	had 	five 	days 	to 	respond 	and 	that 	he would 	check
with 	the Department's 	labor 	relations 	office.
Just before 10:00 a.m. 	on September 	11. 	1984. 	Ms. 	Johnston
made 	arrangements with two 	other 	attorneys 	to 	be 	in 	charge 	of
the office 	in her absence, 	wrote a note 	to Mr. 	Tousignant and
left 	for 	the 	hearing. 	In her 	note 	she advised Mr. 	Tousignant
which attorneys would 	be 	in charge, 	told 	him that 	she was 	going
to 	the 	hearing 	and when 	she would 	return. 	She 	arrived 	at 	the
hearing 	just 	as 	it was 	about 	to 	commence. 	She 	entered 	through
a 	side 	door 	and was 	immediately observed 	by Mr. 	Koppes 	and
other 	representatives 	from the Department. 	She was 	offered 	a
seat with 	the 	group 	from 	the 	Department 	but 	she 	declined 	and
sat 	several 	rows 	behind 	them. 	Ms. 	Johnston brought 	only a 	pen
and writing materials with her. 	She 	did 	not 	testify and 	did
nothing 	to 	call 	attention 	to 	herself. 	The 	hearing 	lasted 	until
about 	12:30 p.m. 	at which time Ms. 	Johnston returned 	to work.
That afternoon. 	Mr. 	Koppes went to Ms. 	Johnston's 	office
but 	departed without 	speaking when he 	saw that 	she 	had 	a
visitor. 	Ms. 	Johnston returned 	the visit 	later 	in the day and
13

left a note that she was available. 	However, 	Mr. 	Koppes did
not 	attempt 	again to 	contact 	her.
Immediately 	after 	returning 	to 	the 	office 	upon 	completion
of 	the hearing. 	Mr. 	Koppes went 	to Mr. 	Tousignant and 	told him
to 	relieve Ms. 	Johnston from her 	duties 	as 	a 	lead 	attorney.
This 	meant 	that 	she 	no 	longer would 	be 	reviewing 	the work 	of
other 	attorneys 	and would 	be 	responsible 	only 	for 	her 	own
work. 	At 	the PERB hearing. 	Mr. 	Tousignant was 	asked 	if 	the
removal 	of 	the 	designation 	of 	lead 	attorney was 	because
Ms. 	Johnston attended 	the hearing. 	He 	responded: 	"That was
the. 	sure, 	that was 	a reason." 	When asked 	if 	the removal was
because of her attendance at the hearing. 	Mr. 	Koppes
responded: 	"Well, 	that was one reason. 	There were others."
On September 	14. 	Mr. 	Tousignant went 	to 	lunch with
Ms. 	Johnston. 	On the way to 	the 	restaurant 	he 	told 	her 	that
Mr. 	Koppes 	had 	directed 	the 	reorganization of 	the 	office 	to do
away with the 	position 	of 	lead 	attorney. 	He 	also 	told 	her 	that
it was 	indiscreet 	of 	her 	to attend 	the hearing and 	that 	it was
unlikely 	but 	not 	impossible 	there would 	be 	adverse 	disciplinary
action against 	her. 	Mr. 	Tousignant 	said 	that 	he 	personally had
been 	angered 	by 	her 	attendance 	at 	the 	hearing 	but 	that 	he 	ha.d
cooled. 	However. 	Ms. 	Johnston testified, 	Mr. 	Tousignant told
her 	that Mr. 	Koppes 	had 	been 	"livid 	and 	pounding on 	the 	desk"
and 	had 	not 	cooled. 	Mr. 	Koppes 	testified 	that 	he 	had 	not
14

pounded 	on the 	desk and Mr. 	Tousignant 	denied 	that 	he 	had 	told
Ms. 	Johnston that Mr. 	Koppes 	had pounded 	on the desk.
Later on September 	14. 	Mr. 	Tousignant met with Ms. 	Johnston
in an 	informal 	grievance meeting. 	The Department's 	labor
relations 	office had 	told Mr. 	Tousignant 	to 	treat
Ms. 	Johnston's 	September 	11 note as a 	grievance. 	The meeting
was within 	the 	time 	deadlines 	set 	out 	in 	the 	contract 	between
the 	State 	and 	the 	Association 	of 	California 	State Attorneys 	and
Administrative 	Law Judges, 	the 	exclusive 	representative 	of
employees 	in bargaining unit 	no. 	2. 	During the meeting,
Mr. 	Tousignant 	told Ms. 	Johnston that 	he 	believed 	the
Department 	had 	the 	right 	to 	prohibit 	attorneys 	from attending
legislative 	hearings 	concerning matters 	they had worked 	on. 	He
focused 	on 	the 	political 	embarrassment 	to 	the 	Department 	for
Ms. 	Johnston to 	be at the 	hearing. 	The 	two agreed 	that 	the
matter 	could 	not 	be 	resolved 	at 	the 	informal 	level.
Following 	the meeting. 	Mr. 	Tousignant 	prepared 	a memorandum
to 	the 	staff 	explaining 	the 	reorganization which would 	remove
Ms. 	Johnston from the position of 	lead attorney. 	Ms. 	Johnston
requested 	that Mr. 	Tousignant 	not 	send 	out 	the memo until 	she
had 	a 	chance 	to 	speak with Mr. 	Koppes 	because 	once 	the memo
became 	public 	there would 	be 	no 	possibility of 	turning 	back.
Despite 	her 	request, 	the memo was 	distributed 	to 	employees 	on
September 	17. 	The 	change was 	justified 	in the memo as 	a 	step
to 	"increase 	the 	efficiency 	of 	the 	section 	by eliminating
15

duplicate 	review of 	some 	assignments 	and 	by enabling Joyce 	to
work 	on 	additional 	assignments." 	The 	memo 	also 	explained 	that
the 	existing procedure 	had 	isolated Mr. 	Tousignant 	from 	"a
significant part of 	the 	section's work." 	In the future, 	he
wrote, 	all work assignments 	should 	be 	sent 	to 	him for 	review.
Mr. 	Koppes was 	on business 	in Washington during 	the week of
September 	17 	and Mr. 	Tousignant was 	the 	acting 	chief 	counsel.
On September 	18. 	Mr. 	Tousignant met with the other 	assistant
chief 	counsels 	to 	tell 	them about 	the 	problem with
Joyce Johnston and 	to 	solicit 	their 	suggestions 	for 	how to 	deal
with the 	situation. 	Mr. 	Tousignant 	testified 	that 	at 	the
conclusion of 	the meeting 	there was 	a 	consensus 	that
Ms. 	Johnston should 	be 	transferred 	to 	the 	"appeals 	section."
also 	known as 	the Audits 	and 	Investigations 	Section. 	In that
section, 	attorneys 	act 	as 	advocates 	for 	the Department 	at
health 	care 	provider 	reimbursement 	hearings. 	Attorneys working
in 	the 	section are 	subject 	to 	frequent 	travel 	and 	some 	consider
the 	section 	an undesirable 	assignment.
Mr. 	Koppes 	returned 	from Washington on September 	24 	and 	he
met with 	the 	assistant 	general 	counsels 	on 	September 	27 	to
discuss 	the Johnston situation. 	When he 	convened 	the meeting,
he 	told 	the 	assistant 	counsels 	that 	he wished 	to 	discuss 	a
number 	of 	incidents 	involving Ms. 	Johnston 	including her
attendance at 	the hearing. 	Mr. 	Koppes 	testified 	that 	his
original 	plan was 	to 	keep Ms. 	Johnston 	in the Preventive Health
16

Section 	but 	to 	isolate 	her 	from the 	issues 	of 	family planning,
abortion and 	nursing 	homes. 	Mr. 	Tousignant 	objected 	to 	that
proposal 	saying 	it would 	be 	disruptive 	and 	that 	he would 	have
difficulty 	supervising 	her 	under 	the 	situation. 	The 	counsel
discussed 	the various 	sections 	into which Ms. 	Johnston might 	be
transferred 	and 	ultimately 	agreed 	that 	the 	best 	place would 	be
the Medi-Cal 	Policy 	Section.
Mr. 	Koppes 	notified Ms. 	Johnston on September 	28 	that he
wanted 	to meet with her 	on October 	3. 	The 	purpose 	of 	the
meeting was 	to 	discuss 	office work assignments. 	Prior 	to 	the
meeting. 	Ms. 	Johnston advised Mr. 	Tousignant that 	she would 	be
bringing her attorney, 	Loren McMaster. 	with her 	to the
meeting. 	After conferring with Mr. 	Koppes. 	Mr. 	Tousignant
advised Ms. 	Johnston that Mr. 	Koppes was 	"not anxious" 	to have
an attorney attend 	the meeting. 	Mr. 	Tousignant 	told
Ms. 	Johnston that 	the subject was 	to 	be 	office 	organization and
that 	a 	discussion about 	that 	subject would 	not 	occur 	if
Ms. 	Johnston appeared with her 	attorney. 	She 	insisted 	that 	she
wanted 	an 	attorney 	to 	accompany 	her 	to 	the 	meeting.
Mr. 	Tousignant 	responded 	that 	if 	an attorney appeared with her
then the meeting would 	be 	on 	"her 	agenda." 	Ms. 	Johnston
replied 	that 	she would 	take 	the 	meeting 	any way 	she 	could 	get
it.
On October 	2, 	1984, 	Ms. 	Johnston filed a written grievance
about 	the 	denial 	of 	her 	request 	to 	take 	two 	hours 	of 	vacation
17

time 	on September 	11. 	In 	the 	grievance 	she 	charged 	that 	the
request 	was 	either 	improperly 	disapproved 	because 	of 	her 	desire
to 	attend 	the 	legislative 	hearing 	or 	approved 	by 	the 	chief
counsel 	and 	later 	disapproved 	by 	the 	assistant 	chief 	counsel.
As 	a 	remedy 	she 	requested 	a 	determination 	that 	the 	request
either was 	granted 	or 	improperly denied, 	a 	clarification of 	the
office 	rules 	about 	such 	requests, 	and 	the 	removal 	from her
monthly work 	report 	of 	a 	notation by Mr. 	Tousignant 	that 	she
had 	been absent without 	leave 	for 	two 	hours 	on September 	11.
The 	absence without 	leave 	designation 	on 	the 	form would 	mean
that 	she would 	be 	docked 	for 	two 	hours 	of 	pay.
Ms. 	Johnston said 	that 	she 	filed 	the 	request 	on October 	2
because 	that was 	the 	last 	day under 	the 	contract 	that 	she 	could
file 	the 	grievance 	in a 	timely manner. 	She 	said 	she waited
until 	the 	last 	day 	because 	she 	had 	been hoping 	to 	resolve 	the
dispute 	informally. 	When 	it 	became 	apparent 	that 	she would 	not
reach an 	informal 	resolution prior 	to 	the 	deadline, 	she
testified, 	she filed 	the formal, 	written grievance.
The October 	3 	meeting was 	attended 	by Mr. 	Koppes,
Mr. 	Tousignant. Ms. 	Johnston and Mr. McMaster. 	her attorney.
At 	the start of 	the meeting, 	Mr. 	Koppes 	said 	to Ms. 	Johnston
and Mr. 	McMaster, 	"It's your meeting, 	go ahead." 	Mr. 	McMaster
stated 	that 	he 	hoped 	to 	help 	the 	parties 	resolve 	their
differences 	and 	not 	to make 	the 	situation worse. 	He 	said 	that
the 	meeting was 	a 	grievance 	meeting 	and 	he 	hoped 	that 	the
18

dispute 	could 	be worked 	out 	informally. 	To 	these 	comments,
Mr. 	Koppes 	said nothing. 	Mr. 	McMaster 	tried 	to draw Mr. 	Koppes
into 	a 	discussion about 	the 	dispute 	but Mr. 	Koppes would 	not
speak. 	He 	refused 	to answer 	questions. 	He 	only 	listened.
Toward 	the 	end 	of 	the meeting, 	Mr. 	McMaster 	stated 	that 	if
the dispute 	could 	not 	be 	resolved at 	the meeting, 	Ms. 	Johnston
would 	have 	no 	alternative 	but 	to 	pursue whatever 	other 	remedies
she had available. 	At 	this Mr. 	Koppes urged Ms. 	Johnston 	"to
exercise all 	of your 	rights, 	and 	I 	intend 	to exercise mine."
Mr. 	McMaster 	replied 	that 	the 	comment 	sounded 	like 	a 	threat.
Mr. 	Koppes 	did 	not 	respond. 	Then Mr. 	Koppes 	indicated 	that 	the
meeting was 	over 	and 	he 	told Mr. 	McMaster 	that 	he 	intended 	to
meet with Ms. 	Johnston afterwards. 	Mr. 	McMaster 	said 	he 	could
not 	prevent 	that 	but 	it would 	not 	be 	appropriate 	for Mr. 	Koppes
to 	discuss 	the 	grievance 	or 	to 	take 	any action against
Ms. 	Johnston at 	the 	subsequent meeting. 	Mr. 	Koppes 	stated 	that
he 	intended 	only 	to 	discuss 	work 	assignments.
Mr. 	McMaster 	left 	the 	building and Ms. 	Johnston was 	told 	to
report 	to Mr. 	Koppes' 	office at 	11:15 	a.m. 	At 	the meeting,
Mr. 	Koppes 	told Ms. 	Johnston 	that 	the management 	team believed
that 	her 	skills 	could 	best 	be used 	in 	the Medi-Cal 	Section.
Ms. 	Johnston replied with a 	quip 	that 	she 	thought 	the 	transfer
would 	be 	to Mr. 	Lockett's 	section, 	referring to William Lockett
who 	supervised 	the 	administrative 	law 	judges. 	Mr. 	Koppes
replied 	that 	it 	could have 	been to Mr. 	Outright's 	section which
19

would 	have 	been worse with 	the 	travel 	and 	all. 	James 	Cutright
was 	in 	charge 	of 	the Audits 	and 	Investigations 	Section.
Mr. 	Koppes asked Ms. 	Johnston if 	it was 	clear 	that 	she had
been 	transferred. 	She 	said 	that 	it was 	clear 	and 	asked 	for 	a
reason. 	Mr. 	Koppes 	responded, 	"The reasons are your 	conduct."
She 	asked 	how her 	conduct 	had 	changed 	since 	the 	"glowing
reports" 	she had 	received 	the month before. 	Mr. 	Koppes
identified 	her 	"actions 	designed 	to 	embarrass 	the 	Department
and 	the 	administration." 	She 	asked 	him 	to 	be 	specific 	but 	he
said 	no more. 	Ms. 	Johnston was 	transferred 	effective
October 	15 	to 	the Medi-Cal 	Section. 	The 	transfer was 	announced
in an October 	10 memo 	from Mr. 	Koppes 	to 	the 	staff.
On October 15, 1985. 	Ms. 	Johnston filed 	an employee
complaint 	about 	the 	denial 	of 	her 	request 	for 	vacation 	on
September 	11 	and 	the 	subsequent 	actions 	taken against 	her. 	A
complaint, 	as 	distinguished from a grievance, 	involves 	an
alleged 	violation of 	a written departmental 	rule. 	The 	highest
level 	of 	appeal 	for 	a 	complaint 	is 	to 	the Department 	head.
The Department 	offers 	a 	series 	of 	justifications 	for 	the
removal 	of Ms. 	Johnston 	from 	the 	lead 	attorney position and 	her
transfer 	from Preventive Health to Medi-Cal. 	Mr. 	Koppes
testified 	that 	by 	her 	appearance 	at 	the 	legislative 	hearing 	and
other 	acts, 	Ms. 	Johnston caused a 	loss 	of 	confidence 	in her 	by
Departmental 	clients. 	Mr. 	Tousignant described Ms. 	Johnston's
attendance 	at 	the 	hearing 	as 	"putting 	her 	personal 	interests
20

ahead 	of 	her 	client's 	interests." 	Mr. 	Tousignant 	said 	that
Ms. 	Johnston's 	attendance at 	the hearing 	"made 	it 	extremely
difficult 	to 	have 	her work 	closely with 	the 	family 	planning
program." 	He 	said 	he had 	a 	"lack 	of 	confidence 	in her 	ability
to deal discreetly with family planning issues and 	. 	. 	. 	was
not 	anxious 	to 	organize 	the 	section 	in a way so 	that work of
one 	of 	the 	client 	organizations 	that we 	deal 	with would 	need 	to
be done 	in secret."
Other 	justifications 	advanced 	by Mr. 	Koppes, 	both 	in his
answer 	to Ms. 	Johnston's 	employee 	complaint, 	and 	on the witness
stand 	include what 	became 	known as 	the 	PKU 	incident.
Ms. 	Johnston's 	expressions 	of political 	beliefs 	in the office.
Ms. 	Johnston's 	role 	in negotiations 	over 	some 	nursing home
legislation. 	Ms. 	Johnston's 	role 	in negotiations 	over problems
at 	the 	San Francisco General Hospital, 	and 	the disappearance of
any 	further 	need 	for 	lead 	attorneys.
The 	PKU 	incident 	occurred 	during 	the 	month 	of 	November
1983. 	Phenylketourea 	(PKU) 	is 	a 	progressive disorder which can
result 	in 	serious 	and 	irreversible 	brain damage 	in 	children 	if
not 	controlled 	by diet. 	Babies 	are 	routinely given blood 	tests
shortly 	after 	birth 	to 	identify 	the 	potential 	existence 	of 	the
disease. 	The 	case 	that 	gave 	rise 	to 	the 	criticism of
Ms. 	Johnston 	involved 	an Orange 	County 	child whose 	blood 	test
was 	inconclusive. 	The 	child's 	parents 	had 	refused 	to 	allow a
repeat 	blood 	test, 	reportedly on religious 	beliefs.
21

Ms. 	Johnston was 	asked 	to 	review a 	draft 	of 	correspondence 	to
the 	parents 	encouraging 	them 	to 	permit 	the 	second 	blood 	test.
After 	reading 	the materials 	on the 	case. 	Ms. 	Johnston
raised 	the 	question 	of whether 	the 	parents 	might 	be 	guilty of
the 	crime 	of 	child 	endangerment. 	She 	suggested 	that 	their
action 	be 	reported 	to 	law enforcement 	agencies 	in Orange
County. 	After 	several 	days 	of 	discussions 	among Department
administrators. 	Ms. 	Johnston was 	advised 	that Department
officials 	had 	concluded 	it was 	not 	yet 	appropriate 	to 	refer 	the
matter 	to 	law enforcement. 	She was 	directed 	to 	prepare 	a
stronger 	letter 	to 	the 	parents, 	urging 	their 	consent 	to 	the
second 	blood 	test.
The 	next 	day. 	Ms. 	Johnston telephoned 	the 	office 	of 	the
Orange 	County 	District 	Attorney 	and 	reported 	the 	information
she had 	about 	the potential 	criminal 	activity. 	Ms. 	Johnston
made 	the 	telephone 	call 	from her 	home 	and 	advised 	the 	District
Attorney's 	office 	she was 	reporting 	the 	incident 	as 	an
individual. 	She 	subsequently 	informed 	both Mr. 	Tousignant 	and
Mr. 	Koppes 	of 	the action she had 	taken. 	Ms. 	Johnston told her
supervisors 	that 	she 	had 	researched 	her 	legal 	and 	ethical
obligations 	under 	the 	situation and 	concluded 	that 	neither 	the
attorney-client 	privilege 	nor 	confidentiality 	rules 	regarding
medical 	information 	relieved 	her 	of 	the 	duty to 	report 	the
suspected 	crime.
22

Mr. 	Koppes 	testified 	that 	given 	the 	religious 	convictions
of 	the parents, 	he and 	other 	attorneys 	in the Department 	did
not 	believe 	that 	the 	parents' 	objection to 	testing 	could 	be
considered 	a 	crime. 	He 	said 	the 	consensus within the
Department was 	to 	send 	the 	parents 	a 	letter 	and 	approach 	the
case 	"one 	step 	at 	a 	time." 	He 	said 	he was 	concerned 	that
Ms. 	Johnston had 	used 	information gained 	in 	the 	attorney-client
relationship. 	He 	said 	he 	challenged 	her 	action 	on 	this 	ground
but was 	unable 	to 	reach an agreement 	with her 	about 	her 	action.
The 	PKU 	incident was 	not 	mentioned 	in an evaluation
Ms. 	Johnston received on April 	2. 	1984. 	She was marked
"outstanding" 	in 	every 	rating 	classification and 	she was
specifically praised 	by Mr. 	Tousignant 	for 	earning 	"the 	respect
and 	trust 	of 	your 	co-workers 	and 	supervisor." 	To 	this 	comment
Mr. 	Koppes 	appended 	the 	remark, 	"excellent 	and well 	deserved
report."
Regarding the 	expression of 	political 	opinions. 	Mr. 	Koppes
testified 	that 	he 	had 	received 	complaints 	from 	employees 	about
Ms. 	Johnston's 	"strong, 	vocal, 	widely announced beliefs." 	He
testified 	that 	the employees 	"either 	felt 	intimidated, 	or
upset, 	or pressed, 	or whatever, 	offended 	by the remarks." 	He
said 	she 	also 	posted 	political 	commentaries 	on 	her 	office 	door
and 	circulated 	newspaper 	articles. 	He 	asked Mr. 	Tousignant 	to
counsel Ms. 	Johnston about 	such expressions 	of 	opinion 	in the
work 	place.
23

Mr. 	Tousignant met with Ms. 	Johnston sometime prior 	to
April 	1984 	and 	asked 	her 	not 	to 	talk 	so 	much 	in 	the 	common area
of 	the office about 	political matters. 	Mr. 	Koppes 	testified
that 	by April 	1984 	he was 	satisfied 	that 	she 	had 	made 	progress
in controlling 	her 	expressions 	of 	opinion. 	He 	said 	that 	after
that conversation, 	"she seemed to have gotten 	. 	. 	. 	her views
. 	. 	. 	under control." 	The evidence also establishes 	that
Ms. 	Johnston was 	not 	alone 	in placing 	editorial 	cartoons 	on her
door 	or 	in 	circulating articles 	about 	political 	subjects.
These 	practices were 	rather 	common and Mr. 	Koppes 	himself
circulated 	articles 	about 	the 	issue 	of 	abortion.
Mr. 	Koppes 	also 	cited 	two 	situations 	in which he was
advised 	by persons 	outside 	of 	the Department 	that Ms. 	Johnston
had 	been difficult 	during negotiations. 	In early 1984, 	some
licensing 	problems 	developed 	at 	San Francisco 	General 	Hospital
that 	were 	sufficiently 	serious 	that 	the 	State 	could 	have 	closed
the hospital. 	Because of 	the 	importance of 	the hospital, 	the
Department 	director 	did 	not want 	to 	take 	that 	step, 	so
Ms. 	Johnston and 	a 	chief 	deputy were 	assigned 	to 	negotiate
about desired 	changes. 	Mr. 	Koppes 	testified 	that 	it was
reported 	to 	him 	that Ms. 	Johnston did 	not 	believe 	negotiations
were 	appropriate 	and 	that 	the 	hospital 	should 	have 	been
closed. 	However. 	Mr. 	Koppes 	never complained to Ms. 	Johnston
about 	this 	position 	she 	supposedly had 	taken.
24

Moreover, 	in Ms. 	Johnston's April 2, 	1984, 	evaluation.
Mr. 	Tousignant 	specifically 	cited 	her work 	in 	the 	San Francisco
General 	Hospital 	negotiations 	as 	an example 	of 	her 	handling of
a 	difficult 	case 	"in a 	timely and 	expert 	manner." 	He 	testified
that 	he 	had 	not 	heard 	about 	the 	criticism at 	the 	time 	he wrote
the 	evaluation.
The 	other 	situation 	in which Ms. 	Johnston was 	accused 	of
being 	difficult 	in 	negotiations 	involved 	legislation 	pertaining
to nursing homes. 	In August and 	September 	1984. 	the Department
had 	been directed 	by 	the 	Governor's 	Office 	to 	explore 	every
possible 	method 	of 	reaching 	a 	legislative 	compromise 	over 	some
nursing 	reform bills. 	Ms. 	Johnston was 	one of 	the 	senior
attorneys working 	in 	the 	area 	of 	nursing 	home 	licensing 	and 	she
was 	assigned 	to work 	on 	the 	negotiations 	toward 	a 	compromise.
For various 	reasons, 	the negotiations 	did 	not 	produce 	a
compromise. 	In September 	1984. 	Mr. 	Koppes was advised by a
lobbyist 	from the 	nursing home 	industry that 	"Ms. 	Johnston had
not 	been very helpful 	in negotiations."
In 	justification for 	removal 	of Ms. 	Johnston from the 	lead
attorney position. 	Mr. 	Koppes 	contended 	that 	lead 	attorneys
were 	no 	longer 	needed 	in the Department. 	He 	testified 	that 	at
one 	time 	the 	Department's 	legal 	staff 	was 	much 	larger 	and 	each
assistant 	chief 	counsel 	had 	responsibility 	for 	some 	12 	to 	13
attorneys. 	At 	that 	time, 	he said, 	lead attorneys were
necessary to 	assist 	in the 	supervision of 	a 	portion of 	the work
25

force 	in 	each 	section. 	When the 	legal 	office was 	made 	smaller,
he 	continued, 	the 	assistant 	chief 	counsels 	could 	carry 	out 	the
supervisory 	responsibilities 	without 	the 	assistance 	of 	lead
attorneys.
Gradually, 	most 	of 	the 	lead 	attorney positions were
eliminated. 	Ultimately, 	the 	Preventive Health Section was 	the
only unit 	which 	continued 	to 	have 	a 	lead 	attorney 	position.
Mr. 	Tousignant 	had 	complained 	to Mr. 	Koppes 	that 	he did not
have 	enough work 	to 	keep 	him 	busy 	but 	he 	rejected 	the
elimination 	of 	the 	lead 	attorney position held 	by Ms. 	Johnston
because 	of 	his 	friendship with her. 	Mr. 	Koppes 	testified 	that
the 	removal 	of 	the 	position 	from Ms. 	Johnston merely brought
the 	Preventive 	Health Section 	into 	line with 	the 	practice 	in
the 	other 	sections.
Neither 	the 	removal 	of 	the 	lead 	attorney's 	designation nor
the 	transfer 	of Ms. 	Johnston 	from Preventive Health 	to Medi-Cal
caused 	any 	loss 	of 	pay. 	She 	likewise 	did 	not 	lose 	any 	other
benefit 	such as 	a window office 	or 	favorable working 	conditions,.
On October 	17. 	1984. 	Mr. 	Koppes 	retroactively granted
Ms. 	Johnston's 	request 	for 	two 	hours vacation on September 	11.
Her 	time 	reporting 	form was 	changed 	to 	reflect 	that 	she 	no
longer 	would 	be 	charged with 	two 	hours 	absence without 	leave
for 	that 	day. 	He 	testified 	that 	he 	restored 	the 	lost 	time
because 	he 	"did 	not want 	to 	be 	punitive" 	and 	"taking 	away two
hours 	from someone, 	I 	think, 	is serious." 	In restoring the
26

hours. 	Mr. 	Koppes 	reviewed his version of 	the 	incident 	but
noted 	the 	high quality of work 	performed 	by Ms. 	Johnston and
her willingness 	to work 	long hours.
LEGAL 	ISSUE
Did 	the State 	by 	its 	removal 	of Joyce C. 	Johnston from the
position 	of 	lead 	attorney and 	subsequent 	transfer 	of 	her 	to
another 	job 	thereby 	retaliate 	against 	her 	for 	the 	protected
filing 	of 	a 	grievance?
1
CONCLUSIONS 	OF 	LAW
State 	employees 	have 	the 	protected 	right.
. 	. 	. 	to form, 	join, 	and participate in the
activities 	of 	employee 	organizations 	of
their 	own 	choosing 	for 	the 	purpose 	of
representation 	on all 	matters 	of
employer-employee 	relations.2
It 	is 	an unfair 	practice under 	subsection 	3519(a) 	for 	the 	State
to 	"impose 	. 	. 	. 	reprisals on employees 	[or] 	to discriminate
. 	. 	. 	against employees 	. 	. 	. 	because of their exercise of
[protected] 	rights." 	In an unfair 	practice case 	involving
reprisals 	or 	discrimination, 	the 	charging party must make 	a
prima 	facie 	showing 	that 	the 	employer's 	action 	against 	the
employee was 	motivated 	by 	the 	employee's 	participation 	in
protected 	conduct. 	Novato Unified 	School 	District 	(1982) 	PERB
Decision No. 	210. 	adopted 	for 	SEERA in State of California
(Department of Developmental 	Services) 	(1982) 	PERB Decision
2SEERA 	section 	3515.
27

No. 	228-S. 	See also. 	State of California 	(Department 	of Parks
and Recreation) 	(1983) 	PERB Decision No. 	328-S.
To meet 	its 	burden of 	establishing a 	prima 	facie case, 	the
charging 	party must 	first 	show that 	the 	conduct 	in which 	the
employee 	engaged 	was 	protected 	and 	that 	the 	employer 	had 	actual
or 	imputed 	knowledge 	of 	the 	employee's 	participation 	in 	the
protected 	activity. 	Moreland 	Elementary 	School 	District 	(1982)
PERB Decision No. 	227. 	An employer 	cannot 	retaliate 	against 	an
employee 	for 	engaging 	in 	protected 	conduct 	if 	the 	employer 	does
not 	even 	know of 	the 	existence 	of 	that 	conduct.
The 	charging 	party 	then must 	produce 	evidence 	of 	unlawful
motivation 	to 	link 	the 	employer's 	knowledge 	to 	the 	harm which
befell 	the 	employee. 	Indications 	of 	unlawful 	motivation have
been found 	in an employer's: 	general 	animus 	toward unions,
San Joaquin Delta 	Community College District 	(1982) 	PERB
Decision No. 	261. 	disparate treatment of a union adherent.
State of 	California 	(Department 	of 	Transportation) 	(1984) 	PERB
Decision No. 	459-S, 	inadequate explanation to employees 	of 	the
action. 	Clovis Unified 	School 	District 	(1984) 	PERB Decision
No. 	389, 	timing of 	the action. 	North Sacramento School District
(1982) 	PERB Decision No. 	264, 	failure to follow usual
procedures, 	Santa Clara Unified School District 	(1979) 	PERB
Decision No. 	104 	and 	shifting 	justifications 	for 	the 	action.
State 	of 	California 	(Department 	of 	Parks 	and Recreation) 	(1983)
PERB Decision No. 	328-S.
28

After 	the 	charging 	party has 	made 	a 	prima 	facie 	showing
sufficient 	to 	support an 	inference 	of unlawful 	motive, 	the
burden 	shifts 	to 	the 	employer 	to 	prove 	that 	its 	action would
have 	been the 	same 	despite 	the 	protected 	activity. 	If 	the
employer 	fails 	to 	show that 	it was 	motivated 	by 	"a 	legitimate
operational 	purpose" 	and 	the 	charging 	party has 	met 	its 	overall
burden of 	proof, 	a violation of 	subsection 3519(a) 	will 	be
found. 	See 	generally. 	Baldwin Park Unified 	School 	District
(1982) PERB Decision No. 	221.
Ms. 	Johnston contends 	that 	she 	engaged 	in 	the 	protected
conduct 	of 	filing a 	grievance. 	This 	action was 	known 	to 	the
State, 	Ms. 	Johnston continues, 	because a copy of the
conditional 	grievance was 	given to Mr. 	Koppes 	prior 	to 	the 	time
she was 	removed 	from 	the 	lead 	attorney position. 	The 	formal
grievance was 	filed on October 	2, 	the day before Ms. 	Johnston
was 	transferred 	from Preventive Health to Medi-Cal. 	Therefore,
in both instances, 	Ms. 	Johnston argues, 	the State knew of her
protected 	conduct 	prior 	to 	the 	action 	taken against 	her.
Ms. 	Johnston finds 	evidence of unlawful motivation 	in the
timing of the State's action, 	in disparate treatment, 	in a
departure 	from 	established 	procedures 	and 	standards 	and 	in
contradictory 	and 	inconsistent 	justifications 	for 	the 	State's
actions. 	Ms. 	Johnston argues 	that her actions 	in filing a
grievance 	and 	in 	attending 	the 	legislative 	hearing 	are 	so
completely 	entwined 	that 	they 	cannot 	be 	viewed 	as 	separate
29

matters. 	Thus, 	if 	it 	is 	found 	that 	the State retaliated
against 	her 	for 	attending 	the 	legislative 	hearing, 	that 	in
itself would 	constitute 	a 	retaliation 	for 	filing 	a 	grievance.
Ms. 	Johnston argues 	that 	the 	actions 	are 	linked 	because 	the
timing 	involved made 	it 	impossible 	for 	her 	to 	follow the 	normal
maxim of 	"obey now and 	grieve 	later." 	Had 	she 	not 	attended 	the
legislative hearing. 	Ms. 	Johnston continues, 	no 	later remedy
from the 	grievance 	could 	have 	redressed 	the 	injury. 	Thus, 	she
argues, 	pursuing 	the 	grievance 	and 	attending 	the 	hearing 	are
indivisible.
The 	State mounts 	a variety of defenses. 	Initially, 	the
State argues 	that 	as 	of 	the 	time Ms. 	Johnston was 	relieved of
the 	lead 	attorney 	function and 	transferred 	to Medi-Cal 	she 	had
not 	exercised 	any protected 	rights. 	The 	State 	rejects 	the
contention that 	the handwritten note given by Ms. 	Johnston to
Mr. 	Koppes 	on September 	10 qualifies as 	the 	filing of 	a
grievance under 	the 	contract. 	The 	State 	argues 	that
Ms. 	Johnston did 	not 	file 	a 	contractual 	grievance until
October 	2. 	1984. 	and as 	of 	that date the decisions 	to relieve
her 	from the 	lead 	attorney position and 	to 	transfer 	her 	to
Medi-Cal 	had 	been 	long made.
Alternatively, 	the State continues, 	both decisions were
made without 	knowledge 	by 	the 	chief 	counsel 	of 	any 	grievance 	by
Ms. 	Johnston. 	The State contends 	that Mr. 	Koppes did not
recognize 	the 	September 	10 note 	to 	him as 	a 	grievance and
30

because 	both decisions 	affecting Ms. 	Johnston were made 	prior
to October 	2, 	they were made without Mr. 	Koppes' 	knowledge of
protected 	conduct 	even 	if 	the 	September 	10 note 	be 	deemed 	as 	a
grievance.
The 	State 	next 	argues 	that Ms. 	Johnston's 	removal 	from the
lead 	attorney 	position and 	reassignment 	to Medi-Cal 	were 	based
upon valid 	business 	reasons 	and were 	not 	in 	response 	to 	the
filing of 	a 	grievance. 	The 	State 	contends 	that 	the 	elimination
of 	the 	lead 	attorney function was 	due 	to 	a 	staff 	reorganization
unrelated to Ms. 	Johnston's 	conduct. 	The 	transfer, 	the State
urges, 	was 	compelled 	by Ms. 	Johnston's 	lack of professionalism.
Finally, 	the State contends, 	the removal of the 	lead
attorney position and 	the 	transfer 	of Ms. 	Johnston to 	the
Medi-Cal 	section 	caused 	no 	adverse 	consequences. 	The 	State
argues 	that Ms. 	Johnston 	incurred 	no 	loss 	of pay or 	other
tangible 	benefit 	and 	the manner 	of 	the 	State's 	actions was 	such
as 	to 	preclude 	even the 	possibility of 	embarrassment.
It 	is 	concluded 	initially that Ms. 	Johnston had
participated 	in 	protected 	activity 	prior 	to 	the 	time 	she was
removed 	from her 	position 	as 	lead 	attorney 	and 	later
transferred 	to 	the Medi-Cal 	section. 	Before 	her 	removal 	from
the 	lead attorney position, 	Ms. 	Johnston had advised Mr. 	Koppes
that 	her 	September 	11 	communication 	to 	him 	should 	be 	considered
a 	grievance 	if 	her 	request 	for 	two 	hours 	of vacation were
denied. 	Before 	her 	transfer 	to 	the Medi-Cal 	Section,
31

Ms. 	Johnston had written both 	the 	September 	11 	communication
and 	had 	filed 	a 	formal 	grievance 	on October 	2. 	The 	filing 	of
grievances 	pursuant 	to a 	negotiated 	contract 	is 	a 	protected
right. 	North Sacramento 	School 	District 	(1982) 	PERB Decision
No. 264.
The 	State's 	argument 	that 	the 	September 	11 	communication
cannot 	be 	considered 	as 	the 	filing 	of 	a 	grievance was waived
long ago. 	Ms. 	Johnston's September 	11 note to Mr. 	Koppes was
referred 	by him to Mr. 	Tousignant, 	Ms. 	Johnston's 	immediate
supervisor. 	On 	the 	advice 	of 	the Department's 	labor 	relations
office. 	Mr. 	Tousignant accorded face value to Ms. 	Johnston's
description of 	the 	note as 	a 	grievance. 	He met with her and
responded 	to 	her 	request within 	five 	days 	as 	is 	required 	under
the 	State's 	contract with the Association 	of 	California 	State
Attorneys 	and Administrative 	Law Judges. 	The 	State 	treated
Ms. 	Johnston's 	communication as 	a grievance at 	the time 	it was
filed. 	There 	is 	no 	justification for 	the 	State's 	effort 	here
to 	retreat 	from what 	it 	earlier 	acknowledged 	to 	be 	a 	grievance.
There 	likewise 	is no question that Ms. 	Johnston's
supervisors 	knew of 	her 	grievance 	prior 	both 	to 	the 	removal 	of
Ms. 	Johnston 	from 	the 	lead 	attorney's 	position and 	her
transfer. 	The 	State argues 	that 	although Mr. 	Koppes 	received
Ms. 	Johnston's 	September 	11 	communication prior 	to 	transferring
her 	from the 	lead 	attorney's 	position, 	he did 	not 	read 	the
document. 	Mr. 	Koppes' 	testimony that he did not 	read 	the
32

document 	is 	hard 	to accept. 	As Ms. 	Johnston argues 	in her
brief, 	"it 	is 	difficult 	to 	believe 	that a Departmental 	chief
counsel would 	not 	at 	least 	scan a 	document 	handed 	to 	him by an
employee 	on a 	subject which 	the 	chief 	counsel 	admittedly had
very strong feelings." 	Mr. 	Koppes' 	testimony on this point 	is
not 	credited.
The 	key question 	in this 	case 	is 	one 	of motivation. 	The
Charging 	Party 	contends 	that 	her 	removal 	from 	the 	position 	of
lead 	attorney 	and 	subsequent 	transfer were 	motivated 	by 	a
desire 	to 	retaliate 	against 	her 	for 	the 	filing 	of 	grievances.
The 	evidence much more 	strongly 	suggests 	that 	she 	lost 	her 	lead
counsel 	position 	and was 	transferred 	in 	retaliation 	for
attending 	the 	legislative 	hearing. 	The 	filing 	of 	a 	grievance
was 	irrelevant 	to 	these 	actions.
The 	entire 	flow of 	events 	links 	the motivation 	for 	the
actions 	against Ms. 	Johnston to her attendance at 	the 	hearing.
Mr. 	Koppes 	directed 	that Ms. 	Johnston be 	removed 	from her 	lead
attorney 	position 	immediately 	after 	he 	returned 	from 	the
legislative 	hearing 	on September 	11. 	He did 	not 	give 	that
instruction 	earlier 	that 	morning when 	he 	received
Ms. 	Johnston's 	note 	advising 	him 	that 	she would 	grieve 	the
denial 	of 	the 	two 	hours 	of vacation. 	The 	proximity of 	his
action 	to 	his 	return 	from 	the 	legislative 	hearing 	suggests 	that
he was 	acting 	in response 	to 	her 	presence 	at 	the 	hearing. 	This
conclusion 	is 	bolstered 	by Ms. 	Johnston's 	own 	testimony 	that
33

she 	had 	been advised 	that Mr. 	Koppes 	was 	"livid 	and 	pounding 	on
the 	desk." 	The 	reason for 	this 	anger, 	according 	to what
Ms. 	Johnston was advised, 	was 	her attendance at 	the hearing.
It was 	not 	her 	filing of 	a 	grievance.
Similarly, 	according 	to 	the uncontested 	testimony 	of 	three
witnesses, 	the decision to 	transfer Ms. 	Johnston to the
Medi-Cal 	Section was 	made 	at 	a 	staff 	meeting on September 	27.
It was 	not 	until 	after 	the Department 	had 	scheduled 	a 	meeting
with Ms. 	Johnston 	to 	advise 	her 	of 	the decision 	that 	she 	even
filed her 	formal, 	written grievance. 	Thus, 	because the filing
of 	the written 	grievance was 	made 	after 	the 	decision 	to
transfer Ms. 	Johnston, 	it 	is apparent 	that the written
grievance 	could 	not 	have 	been a 	factor 	in 	the 	transfer 	decision.
The 	strongest 	evidence 	of 	retaliatory 	intent was 	the
ambiguous 	statement 	of Mr. 	Koppes 	near 	the end 	of 	the October 	3
meeting attended 	by Mr. 	McMaster 	and Ms. 	Johnston. 	After
Mr. 	McMaster 	stated 	that 	if 	the matter 	could not 	be 	resolved
informally. 	Ms. 	Johnston would 	have 	to pursue other 	available
remedies. 	Mr. 	Koppes 	replied 	that Ms. 	Johnston should 	exercise
her 	rights 	because 	he 	intended 	to 	exercise 	his. 	While 	the
statement 	suggests 	retaliation, 	there 	is 	no way 	to 	discern an
intent 	to 	retaliate 	for 	filing grievances. 	Indeed, 	the
statement 	could 	just 	as 	easily 	be understood 	as 	a 	tip 	that 	he
was 	about 	to 	take 	action against 	her 	because 	of 	her 	attendance
at 	the 	legislative 	hearing.
34

Ms. 	Johnston finds 	evidence 	of 	unlawful 	retaliatory 	intent
in disparate 	treatment 	and 	in what 	she 	finds 	to 	be 	the 	State's
departure 	from 	established 	procedures 	and 	inconsistent 	and
contradictory 	justifications 	for 	its 	actions. 	The Charging
Party 	explains 	the 	case 	for 	disparate 	treatment 	by 	observing
that 	"no 	other 	employee 	in Health 	Services 	has 	suffered 	the
ignominy 	of 	having 	the 	designation 	of 	lead 	attorney 	taken away
and 	transferred 	to 	another unit 	against 	his 	or 	her wishes." 	In
addition, 	she argues, 	no one 	else had 	previously been denied a
two-hour 	vacation 	request.
In 	proving 	unlawful 	motivation 	through 	disparate 	treatment,
a 	charging 	party first 	must 	show that 	other 	persons 	engaged 	in
conduct 	similar 	to 	that 	offered 	in 	purported 	justification 	for
the 	employer's 	action against 	the 	charging party. 	Then, 	the
charging 	party must 	show that 	the 	punishment 	for 	the 	conduct 	in
which he 	or 	she 	engaged 	was 	different 	from 	(and 	typically more
severe 	than) 	that 	administered to 	the others. 	The disparate
treatment 	thus 	raises 	the 	inference 	that 	the 	employer's 	actual
motivation 	for 	the 	action 	taken 	against 	the 	employee was 	the
protected 	conduct 	and not 	the 	purported 	reason. 	See, 	e.g..
San Joaquin Delta 	Community College District, 	supra. 	PERB
Decision No. 	261.
There 	is 	no 	evidence here 	that 	any other 	attorney 	in the
Department 	of 	Health 	Services 	ever 	attended 	a 	legislative
hearing 	over 	the 	express 	disapproval 	of 	a 	supervisor. 	Nor 	is
35

there 	any 	evidence 	of 	any 	similar 	conduct 	with which
Ms. 	Johnston's 	attendance 	at 	the 	legislative hearing 	could 	be
compared. 	Under 	such circumstances, 	it 	is 	not possible to make
a 	case 	of 	disparate 	treatment.
Ms. 	Johnston misses 	the 	point 	entirely with her 	argument
that 	the 	State 	departed 	from 	established 	procedures 	and
standards 	by not 	allowing 	her 	to 	attend 	the 	legislative 	hearing
on 	her 	own 	time. 	One 	cannot 	show 	improper 	motivation 	in 	the
subsequent 	retaliation against Ms. 	Johnston for 	attending 	the
meeting 	by 	showing 	that 	she 	should 	have 	been granted 	the
vacation 	in the 	first 	instance. 	The 	issue 	here 	is 	not whether
the 	State 	acted 	improperly 	in 	denying 	her 	vacation 	request.
The 	issue 	is 	whether 	the 	State 	acted 	improperly 	in 	punishing
Ms. 	Johnston 	for 	attending 	the 	hearing 	even though her 	vacation
request 	had 	been 	denied.
Similarly unpersuasive 	is Ms. 	Johnston's 	contention that
the 	State 	departed 	from 	established 	procedures 	and 	standards 	by
ignoring 	the 	"practice 	of 	not 	making 	involuntary 	transfers 	of
employees." 	There was 	no 	evidence 	of 	a 	"practice" 	against
involuntary 	transfers. 	The 	evidence 	shows 	only 	that 	no
attorney other 	than Ms. 	Johnston had 	been 	transferred
involuntarily at 	any recent 	time. 	This 	is 	not 	sufficient 	to
establish 	a 	practice 	against 	involuntary 	transfers.
Finally. 	Ms. 	Johnston argues 	that 	her 	filing of a 	grievance
and 	her 	attendance 	at 	the 	legislative 	hearing 	are 	indivisible.
36

This 	contention, 	too. 	must 	be rejected. 	The protection under
the North Sacramento 	line 	of 	cases 	attaches 	to 	the act 	of
filing 	a 	grievance 	under 	a 	negotiated 	contractual 	procedure.
It 	does 	not 	attach to 	the underlying 	subject 	of 	the 	grievance.
The 	actions which 	give 	rise 	to 	a 	grievance might 	have 	no
relation 	to 	any protected 	matter. 	To 	bring 	the underlying
actions 	into 	the 	reach 	of 	protected 	conduct 	through 	the 	filing
of 	a 	grievance would 	effectively make 	all 	conduct 	protected.
To 	make 	an 	action 	protected 	an 	employee would 	merely 	have 	to
file 	a 	grievance 	about 	that 	action. 	Employee 	rights 	under
SEERA are 	not 	so 	unlimited.
The 	remainder 	of Ms. 	Johnston's 	arguments 	are 	responses 	to
the 	State's 	effort 	to 	show operational 	necessity 	for 	its
actions 	against Ms. 	Johnston. 	The Respondent's 	burden to 	show
operational 	necessity arises 	only 	after 	the 	Charging 	Party 	has
established 	a 	prima 	facie 	case of 	discrimination. 	Here, 	the
Charging 	Party 	has 	failed 	to 	establish 	a 	prima 	facie 	showing
that 	the 	removal 	of Ms. 	Johnston from the 	lead 	attorney
position 	and 	her 	subsequent 	transfer 	were 	motivated 	by
retaliatory 	intent 	for 	the 	exercise 	of 	her 	protected 	right 	to
file grievances. 	In the absence of 	this 	showing, 	there 	is 	no
need 	to 	consider 	the 	State's 	evidence 	of 	operational 	necessity
or Ms. 	Johnston's 	arguments 	in reply.
For 	these reasons, 	it 	is 	concluded 	that 	the removal 	of
Ms. 	Johnston 	from her 	lead 	attorney position and 	her 	subsequent
37

transfer 	to 	the Medi-Cal 	section were 	not 	motivated 	by 	a 	desire
to 	retaliate 	against 	her 	for 	the 	protected 	filing 	of
grievances. 	Accordingly, 	her 	charge against 	the 	State must 	be
dismissed.
PROPOSED 	ORDER
Based 	upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions
of 	law and 	the 	entire 	record 	in this 	matter, 	unfair 	practice
charge S-CE-246-S, 	Joyce C. 	Johnston v. 	State of California
(Department 	of 	Health Services) 	and 	the 	companion PERB
complaint 	are 	hereby DISMISSED.
Pursuant 	to California Administrative Code, 	title 	8,
part 	III. 	section 	32305. 	this 	Proposed Decision and Order 	shall
become final on November 	12, 	1985, 	unless a party files a
timely statement 	of 	exceptions. 	In accordance with 	the 	rules,
the 	statement 	of 	exceptions 	should 	identify 	by page 	citation 	or
exhibit 	number 	the 	portions 	of 	the 	record 	relied 	upon 	for 	such
exceptions. 	See California Administrative Code, 	title 8.
part 	III, 	section 32300. 	Such statement of exceptions and
supporting 	brief 	must 	be 	actually 	received 	by 	the 	Public
Employment 	Relations 	Board 	itself 	at 	the 	headquarters 	office 	in
Sacramento 	before 	the 	close 	of 	business 	(5:00 p.m.) 	on
November 	12, 	1985, 	or sent 	by telegraph or 	certified United
States 	mail, 	postmarked 	not 	later 	than the 	last 	day 	for 	filing
in 	order 	to 	be 	timely 	filed. 	See 	California Administrative
Code, 	title 8, 	part 	III, 	section 32135. 	Any statement of
38

exceptions 	and 	supporting 	brief 	must 	be 	served 	concurrently
with 	its 	filing upon each party 	to 	this 	proceeding. 	Proof 	of
service 	shall 	be 	filed with 	the Board 	itself. 	See 	California
Administrative Code, 	title 8, 	part 	III, 	section 32300 and 32305
Dated: 	October 	23, 	1985 Ronald E. 	Blubaugh
Administrative 	Law Judge
39