Opinion
LAMBDEN, J.
This action is based on a claimed violation of the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) (the FEHA) and poses the question, “Can a member of one protected minority group force her employer, through administrative mandate (Code Civ. Proc., § 1094.5), to use promotional tests which would benefit her but have a severe adverse impact on another protected minority group?” Our analysis of the law lead us to conclude she has no right to claim any benefit from such manifest adverse impact on the grounds that she may have her own claim of discrimination.
[1361]*1361The FEHA permits use of a manifestly discriminatory test only if there is evidence of necessity based upon “job relatedness.” Without being relieved of the duty to investigate other claims of discrimination, the employer retains the discretion to inquire whether the necessities of a particular job may justify reliance upon the results of an otherwise impermissibly discriminatory test. The employer may in good faith produce evidence to support such a contention. However, an employer is not required to attempt to justify the use of discriminatory tests and has no legal duty to do so arising from any asserted right of a member of another protected minority group to claim the advantage of such discrimination. To permit such a claim would turn the FEHA on its head.
Background
Madeline Hams, an employee of the San Francisco Municipal Railway (Muni), brought this action against the City and County of San Francisco (City) and, in one count, against the City’s civil service commission (Commission). She sought writ of mandate, and damages and other relief, for alleged gender discrimination in the cancellation of civil service examinations and eligible lists on which she had placed number one.
The City charter vests the Commission with sole authority over examinations for City employment, including Muni. The Commission may delegate to the department of human resources (DHR) the offering of tests but retains ultimate authority to adopt any resulting eligible lists.
Under that authority, the DHR’s public utilities commission examination unit administered tests in 1992 and 1993 for transit manager I and H (TM I & TM H) positions at Muni. Each test had a written component which had to be passed in order to participate in a second, oral component. The tests were given concurrently, and Harris, a White female, took both. She scored number one on both tests.
Subsequently, Transport Workers Union, Local 200, filed a protest with the DHR claiming the tests had an adverse impact on African-American applicants. This prompted a DHR staff review and analysis which showed: African-Americans constituted 45 of the 94 applicants who took the written TM I test and 39 of the 93 who took the written TM II test; 26 percent of men and 36 percent of women among them passed the TM I test, as compared with 73 and 75 percent of their White counterparts; and a similar disparity (26% and 38% compared with 67% and 71%) marked the TM II results. The men/women composition of the resulting tentative eligible lists was 28/12 for TM I and 32/10 for TM II.
[1362]*1362The DHR attempted to reach a compromise, but this was rejected by the union. Ultimately, the DHR’s human resources director (Director) canceled the tests and tentative lists, citing an adverse impact on African-Americans. Harris and four others who had been on the lists then appealed the Director’s decision to the Commission, which considered the staff report and heard comments at a public hearing. The Commission ultimately upheld the decision, based also on adverse impact.
Harris then filed a complaint of discrimination with the Department of Fair Employment and Housing (DFEH), naming the “City & County of San Francisco (Civil Service Commission)” as the discriminating agency and stating that she had been denied promotion by the “Civil Service Commission” and its executive officer, “Albert Walker.” She alleged, “[Tjests on which I placed number 1 were discriminatory toward minority groups who are represented in the 2 classifications in question in greater numbers than their numbers in the relevant work market while women are underrepresented.” The DFEH declined action and issued her a right-to-sue letter in April 1995.
Her verified petition and complaint is in three counts. The first two, for traditional and administrative mandate (Code Civ. Proc., §§ 1085, 1094.5 (hereafter sections 1085 and 1094.5)), were denied by Judge William J. Cahill, who found the cancellation nondiscriminatory and supported by the administratively determined adverse impact on African-American applicants. The third count, for injunctive relief and damages under the FEHA, was decided by Judge David A. Garcia on summary judgment. He found failure to exhaust administrative remedies as against the City and, on the merits, no triable issue of material fact.
Discussion
Review by Administrative Mandate Is a Dubious Remedy
Harris’s challenge is to action by the Commission in refusing to adopt test results and tentative eligible lists produced by that agency, but she names the Commission only in her count for administrative mandate and, as she conceded at oral argument, seeks only relief against the City in her other two counts.
The City charter vests in the Commission, with DHR assistance, the exclusive power to develop and administer tests, and produce eligible lists, for civil service hiring and merit system promotions within the City, whether for Muni or for other City departments. (S.F. Charter, §§ 10.101 to 10.102; [1363]*1363Social Services Union v. City and County of San Francisco (1991) 234 Cal.App.3d 1093, 1099-1100 [285 Cal.Rptr. 905] [construing parallel provisions of the former charter].)
The record establishes that the City had no, control over the tests’ formulation or implementation, the resulting tentative eligible lists, or the ultimate decision whether to adopt or cancel them. The City simply never had the lists available for its use. Harris’s counts based on traditional mandate and the FEHA are therefore directed against the wrong entity, and this moots subsidiary issues like whether she exhausted administrative remedies before the DFEH.1
Her only hope for relief is found in her first cause of action, which petitions for administrative mandate.
We question, as the Commission does, whether review by administrative mandate is available. Unless (1) a hearing, (2) the taking of evidence and (3) discretion to determine facts are all required “by law” (§ 1094.5, subd. (a)), review can be had only by traditional mandate (Anton v. San Antonio Community Hosp. (1977) 19 Cal.3d 802, 814-815 & fn. 11 [140 Cal.Rptr. 442, 567 P.2d 1162]). Those three elements codify the essence of “adjudicatory function” (Temescal Water Co. v. Dept. Public Works (1955) 44 Cal.2d 90, 101 [280 P.2d 1]), as opposed to legislative or quasi-legislative function, in an administrative body.
Neither Harris nor the dissent identifies any statute, rule, charter provision or civil service rule (see, e.g., Mahdavi v. Fair Employment Practice Com. (1977) 67 Cal.App.3d 326, 334-335 [136 Cal.Rptr. 421]; Jean v. Civil Service Commission (1977) 71 Cal.App.3d 101, 105-110 [139 [1364]*1364Cal.Rptr. 303]; Weary v. Civil Service Com. (1983) 140 Cal.App.3d 189, 195-196 [189 Cal.Rptr. 442]; Civil Service Com. v. Velez (1993) 14 Cal.App.4th 115, 118-119 [17 Cal.Rptr.2d 490]) which required those three elements on an administrative appeal of a decision whether to adopt tests, a decision which, despite the individual concerns raised on the appeal, had a loud quasi-legislative ring to it.2
We will not decide that question, for Harris’s first count lacks merit, even if properly reviewable under administrative mandate principles.
Administrative Mandate Fails on the Merits
Administrative mandate tests a decision for abuse of discretion, defining this as (1) the agency not proceeding in the manner required by law, (2) the decision not being supported by its findings or (3) its findings not being supported by substantial evidence. (§ 1094.5, subd. (b).) Our review of any findings requires a deferential view of the record in their favor. (Moran v. Board of Medical Examiners (1948) 32 Cal.2d 301, 309 [196 P.2d 20]; cf. Franz v. Board of Medical Quality Assurance (1982) 31 Cal.3d 124, 135 [181 Cal.Rptr. 732, 642 P.2d 792].)
The Commission upheld cancellation of the tests and adopted the ruling of the Director based on a statistical analysis by staff of an adverse impact on African-American applicants. Harris makes no effort to attack that finding or its statistical underpinnings. In fact, when Judge Cahill asked at [1365]*1365the hearing on the writ whether her counsel agreed that “the results of -this test disproportionately affected the African American test takers,” counsel replied, “Yes, they did,” insisting, however, that this finding “did not force the [Commission] to cancel the test[s].”
The tests should not have been canceled, Harris contends, because use of the test results could ameliorate the effects of prior discrimination against another protected minority, of which she was a member. Accordingly, she would have us direct the Commission to effectively disregard the undisputed finding of manifest adverse impact upon African-Americans. However, it is undisputable that the Commission had ultimate discretion under the charter to devise, administer and assess the tests, and then to adopt or not adopt them or the tentative eligibe lists. “[T]he action commanded [by mandate] cannot invade the area of discretion with which an administrative agency is vested over a given subject matter. [Citations.]” (Sklar v. Franchise Tax Board (1986) 185 Cal.App.3d 616, 622 [230 Cal.Rptr. 42].) The undisputed finding of adverse impact was, on its face, a sufficient reason to exercise discretion to cancel the tests. Without in any way diminishing Harris’s claims of discrimination and without relieving the Commission of its legal duties to investigate those claims, we are constrained from intruding within the ambit of the discretion vested in the Commission.
Harris contends the Commission was bound as a matter of law to preserve the tests, but her argument fails under a careful look at the FEHA and the federal precedent on which she relies. “The objectives of the FEHA and title VII of the Federal Civil Rights Act (42 U.S.C. § 2000e et seq.) are identical and California courts have relied upon federal law to interpret analogous provisions of the state statute. [Citations.]” (Walker v. Blue Cross of California (1992) 4 Cal.App.4th 985, 997-998 [6 Cal.Rptr.2d 184].)
Proscribed discrimination comes in two forms. In “ ‘disparate treatment’ ” cases, the plaintiff alleges that an employer has treated him or her less favorably than others due to race, color, religion, sex or national origin, and the plaintiff must prove a discriminatory intent or motive. (Watson v. Fort Worth Bank & Trust (1988) 487 U.S. 977, 985-986 [108 S.Ct. 2777, 2784, 101 L.Ed.2d 827] (Watson).) In “ ‘disparate impact’ ” cases, by contrast, the plaintiff alleges and proves, usually through statistical disparities, that facially neutral employment practices adopted without a deliberately discriminatory motive nevertheless have such significant adverse effects on protected groups that they are “in operation . . . functionally equivalent to intentional discrimination.” (Id. at pp. 986-987 [108 S.Ct. at p. 2785].) Cases challenging facially neutral tests, as Harris’s does, fall within the disparate-impact category.
[1366]*1366In this context, the federal high court has said: “. . . Title VII forbids the use of employment tests that are discriminatory in effect unless the employer meets ‘the burden of showing that any given requirement [has] ... a manifest relationship to the employment in question.’ [Citation.] This burden arises, of course, only after the complaining party or class has made out a prima facie case of discrimination, i.e., has shown that the tests in question select applicants for hire or promotion in a racial [or gender] pattern significantly different from that of the pool of applicants. [Citation.]” (Albemarle Paper Co. v. Moody (1975) 422 U.S. 405, 425 [95 S.Ct. 2362, 2375, 45 L.Ed.2d 280], fn. omitted, second brackets added.) If an employer succeeds in showing that a test having a disparate impact is “ ‘job related,’ ” then the burden shifts back to the plaintiff to show if she/he can, from the availability of alternatives or some other means of proof, that the test is a pretext for discrimination. (Ibid.)
(1d) Drawing upon these shifting burdens, Harris contends that while these tests had a disparate impact on African-Americans, the Commission had a duty under law to justify them by showing, under the uniform federal guidelines (29 C.F.R. pt. 1607 (1997)) as adopted in California for FEHA purposes (Cal. Code Regs., tit. 2, § 7287.4, subd. (a)), that the tests were sufficiently “job-related.” Doing this through a so-called “validation study” was required, she insists, because canceling the tests had adverse impacts on other protected groups, most notably women, and the Commission thus had to try to preserve the tests to help correct a historical underrepresentation of women in Muni management and to prevent Muni from perpetuating that disparity through “temporary hires” of men. Judge Cahill thus did not go far enough, she urges, when he noted in his order denying mandate, “[T]here is no showing that, by itself, the cancellation of the test[s] discriminated against women.” (Italics added.) She also highlights oral comments by the judge suggesting that he might have viewed adverse impact and job relatedness as mutually exclusive rather than compatible.
Several responses are needed. First, Harris’s criticism of the judge’s reasoning leads her nowhere. The record facts concerning adverse impact and job relatedness are undisputed, and only their legal effect is at issue. This means we are not bound on appeal by the judge’s determinations (Webb v. Miller (1986) 187 Cal.App.3d 619, 625 [232 Cal.Rptr. 50]), and any asserted errors in his reasoning are immaterial to our review.
Next, Harris’s argument that the Commission had a legal duty to use the test results ignores the guidelines which frame the standards for evaluating facially neutral selection criteria which may have discriminatory impact. “FEHC is authorized to interpret the Fair Employment and Housing Act by [1367]*1367adopting ‘suitable rules, regulations, and standards.’ (Gov. Code, § 12935, subd. (a)(1).) Here FEHC promulgated title 2, California [Code of Regulations], section 7287.4, subdivision (a) adopting the federal Uniform Guidelines on Employee Selection Procedures. (29 C.F.R. § 1607 et seq.) In 1978, the Equal Employment Opportunity Commission, the Civil Service Commission, the Department of Labor and the Justice Department jointly adopted the Uniform Guidelines to provide ‘a framework for determining the proper use of tests and other selection procedures.’ (29 C.F.R. § 1607.1[(A)].)” (City and County of San Francisco v. Fair Employment & Housing Com. (1987) 191 Cal.App.3d 976, 986, fn. 8 [236 Cal.Rptr. 716].)
Guidelines section 1607.3A (29 C.F.R. (1997)) provides that the use of a selection procedure which has an adverse impact on members of any race, sex or ethnic group “will be considered to be discriminatory and inconsistent with these guidelines, unless the procedure has been validated in accordance with these guidelines . . . .” The federal high court, cautioning that “employers are not required, even when defending standardized or objective tests, to introduce formal ‘validation studies’ showing that particular criteria predict actual on-the-job performance” (Watson, supra, 487 U.S. at p. 998 [108 S.Ct. at p. 2791]), also cited case law examples of safety-related prohibitions against methadone use and general tests which did not strictly predict ability at on-the-job tasks but did predict ability to master actual job-related training programs (id. at pp. 998-999 [108 S.Ct. at pp. 2790-2791]). The TM I and TM II tests which Harris took, however, were actual tests of skills and knowledge anticipated to be job-related and not just safety or success-predictor tests. It appears, then, that the Commission had no ready alternative to a formal validation study. Harris identifies no alternative and conceded at oral argument that no validation study was undertaken.
Harris does rely on brief statements in the staff report reflecting that the tests were job-related, but her reliance is undercut by the guidelines. Section 1607.9A (29 C.F.R. (1997)), captioned “No assumption of validity,” states: “Under no circumstances will the general reputation of a test or other selection procedures, its author or its publisher, or casual reports of it’s [sz'c] validity be accepted in lieu of evidence of validity. Specifically ruled out are: assumptions of validity based on a procedure’s name or descriptive labels; all forms of promotional literature; data bearing on the frequency of a procedure’s usage; testimonial statements and credentials of sellers, users, or consultants; and other nonempirical or anecdotal accounts of selection practices or selection outcomes.” In other words, under this guideline, no test having an adverse impact can be used absent a successful validation study.
The statements in the staff report are bald conclusions based on bare testimonials: “Both the subject matter expert who developed the examinations, and the candidates who participated in the examinations stated that the [1368]*1368written exercises were job-related and accurately measure the knowledge, abilities and skills necessary to perform the essential functions of the job. Thus, the second burden of proof as provided in the Guidelines was satisfied. . . .” This is exactly the kind of information the guidelines say cannot under any circumstances “be accepted in lieu of evidence of validity” (29 C.F.R. § 1607.9A (1997)). Even so, the dissent contends the staff report’s “concession of job-relatedness” is sufficient to require the Commission to use the test results notwithstanding their undisputed discriminatory impact.
Harris concedes, and the Commission agrees, that these conclusions in the staff report do not constitute the kind of validation study required by the guidelines. Notwithstanding the efforts of the dissent, we also agree. A cursory overview of the guidelines shows that a validation study is a highly complex undertaking. Even when a test has been devised with close attention to the guidelines, a validation study involves a vast array of information and calls for choices among experts and a sensitive weighing of competing interests. (See, e.g., Guardians Ass’n of New York City v. Civil Serv. (2d Cir. 1980) 630 F.2d 79, 88-106; Hamer v. City of Atlanta (11th Cir. 1989) 872 F.2d 1521, 1532.) This is only fitting in view of the overarching purpose of the FEHA to eliminate discrimination, and since “job-relatedness” constitutes the sole exception under which a manifestly discriminatory test can be used.
Thus there was no legal duty in this case to adopt the tests or to try to validate them. The Commission had before it undisputed evidence of a dramatic disparate effect on African-Americans. (Cf. City and County of San Francisco v. Fair Employment & Housing Com., supra, 191 Cal.App.3d 976, 987 [47.8% White passage; 18.18% Black passage].) This made validation a complex task and also increased the likelihood of a lawsuit, from the union or others, no matter what the outcome of the validation effort. The guidelines utilize a “four-fifths rule” (29 C.F.R. § 1607.4D (1997)) by which “[a] selection rate for any race, sex, or ethnic group which is less than four-fifths (4/5) (or eighty percent) of the rate for the group with the highest rate will generally be regarded by the Federal enforcement agencies as evidence of adverse impact. . . .” This guideline prescribes, in effect, a presumption of adverse impact, and hence a difficult obstacle to overcome.
The results of the TM I and TM II tests here showed selection rates of 48 and 50 percent for African-American women and 35 and 39 percent for African-American men, as compared with their White counterparts, a disparity far below the invalidity threshold of the four-fifths rule. The United States Supreme Court has stressed that the four-fifths rule is a mere rule of thumb rather than a mechanical substitute for the required case-by-case [1369]*1369determination (Watson, supra, 487 U.S. at pp. 995-996, fn. 3 [108 S.Ct. at p. 2789]), but the disparity here was enormous, violating even a hypothetical “one-half rule.”
Noting that African-Americans constituted 45 of 94 applicants taking the TM I test and 39 of 93 taking the TM II test, Harris tries to downplay the adverse impact by diverting attention from the tests, saying, “all of the evidence concerning Muni’s past hiring practices indicates that, rather than being discriminated against, African-Americans in Muni management may actually have experienced discrimination in their favor,” and she cites statistics suggesting that African-Americans are in fact overrepresented in Muni management. The Commission, however, could not rely on such facts. The federal high court long ago rejected the notion that a “bottom line” showing of one group’s adequate representation excuses an employment practice which has a discriminatory impact on them. “[T]he ‘bottom line’ does not preclude [an employee] from establishing a prima facie case, nor does it provide [the] employer with a defense to such a case.” (Connecticut v. Teal (1982) 457 U.S. 440, 442 [102 S.Ct. 2525, 2528, 73 L.Ed.2d 130]; Wards Cove Packing Co. v. Atonio (1989) 490 U.S. 642, 653, fn. 8 [109 S.Ct. 2115, 2123, 104 L.Ed.2d 733].)
Similarly, had the Commission decided to use the tests while undertaking validity studies, it would have run a serious gamble. A guideline permitting such interim use in certain situations warns, “. . . If the study does not demonstrate validity, this provision ... for interim use shall not constitute a defense in any action, nor shall it relieve the user of any obligations arising under Federal law.” (29 C.F.R. § 1607.5J (1997).) The policy of deference to the proper exercise of adminstrative discretion dictates that an agency in the Commission’s position cannot be forced by mandate to risk the expense, time and potential legal liability of a validation study.
What Harris really seeks is a rule requiring agencies to take affirmative action to ameliorate the discrimination which may have been inflicted upon one protected group by imposing a further disadvantage upon another protected group. Such a rule would be not only unwise but also impractical. In a diverse population like that of the San Francisco Bay Area, where the number of protected groups is large, many, if not most tests can be expected to significantly benefit one or more groups while having adverse impacts on others. Under Harris’s proposed holding, every test would become an occasion for objections and court-compelled directives for affirmative action. The guidelines were not intended to impose new obligations with regard to affirmative action programs. “These guidelines ... are not intended to impose any new obligations in that regard. . . .” (29 C.F.R. § 1607.13B (1997).)
[1370]*1370The approach of our dissenting colleague, while different from Harris’s, yields the same disquieting result. He advocates that any test which produces an adverse impact on one group—no matter how severe, apparently— demands that the agency try to validate the test whenever (1) some other group would be adversely affected by canceling it and (2) a staff review produces a first-impression opinion that the test was job related. This opens a bottomless pit. Condition (1), as we have already observed, will almost always occur within a diverse work force. Once a test has been given and scored, half the test takers can claim an “adverse impact” from its cancellation; and chances are, one or more of them will belong to another protected group. This might include, for example, White men—once an overrepresented majority but "now a minority in an increasingly balkanized view of protected “groups.” Condition (2) is a foregone conclusion except in those rare instances where some test criterion was arbitrary or irrational. At this advanced stage in the law’s development, few if any employers would include such criteria. Also, any staff reviewing its own handiwork will be disinclined to deny it is job related. In effect, the dissent would deprive an administrative agency of the ability to excercise discretion in the battle against discrimination in employment.3 We cannot endorse that view.
We hold that a court cannot, for the benefit of one protected group, compel a validation study through administrative mandate where an agency has properly exercised its discretion to cancel an employment test shown to have adverse impacts on another protected group.
By thus relieving the Commission from the duty to validate and utilize a plainly discriminatory set of tests, we expressly do not intend to relieve the Commission, or any other agency similarly situated, of its legal duties to investigate and eliminate discrimination. Our holding is not intended to preclude an employee from bringing an action under the FEHA which might investigate the full picture of practices claimed to be discriminatory. Harris has in fact brought such an action in federal court, where she challenges the cancellation of these tests not in isolation, but as part of broad-ranging [1371]*1371allegations of long-standing and pernicious discrimination against women.4 Our holding only prevents comprehensive complaints of ongoing discrimination from being hitched to complaints seeking the more narrowly framed and relatively summary remedy of administrative mandate in circumstances where an agency has canceled obviously discriminatory tests having demonstrated adverse impacts.
It necessarily follows that an agency’s decision to jettison such plainly objectionable tests, standing alone, will not ordinarily be considered discriminatory. However, we acknowledge that case law does hold that in a title VII action, “practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to ‘freeze’ the status quo of prior discriminatory employment practices.” (Griggs v. Duke Power Co. (1971) 401 U.S. 424, 430 [91 S.Ct. 849, 853, 28 L.Ed.2d 158] [diploma requirement or standardized intelligence tests as affecting Blacks].) While this ordinarily applies in a challenge to the use of a test, one case cited by Harris has extended the rationale to require scrutiny of such a test being canceled.
In Giles v. Ireland (11th Cir. 1984) 742 F.2d 1366 (Giles), a three-step system of promotion for mental health workers was found violative as freezing a discriminatory status quo when a moratorium was placed on promotion from only the lowest category, comprised of two-thirds Black workers, and the top level was comprised of only 5 percent Black workers. (Id. at p. 1369.) The freeze in promotions disproportionately affected Blacks, who “were concentrated in the lowest level positions [at a state hospital] as a result of past discrimination.” (Id. at p. 1380.) The case is distinguishable. First, the past history of racial discrimination—disparate [1372]*1372treatment, not just disparate impact—had already been established in prior litigation (id. at pp. 1369-1370); second, the plaintiffs in the current action had challenged “a full range of allegedly discriminatory employment practices” at the hospital (id. at p. 1369); third, the cancellation was partial, leaving a disparate impact from other tests.
This case, by contrast, is not a follow-on matter (cf. U.S. v. City and County of San Francisco (N.D.Cal. 1987) 656 F.Supp. 276, 285-286 [issue remained whether a cancellation of test and resulting freeze of hiring and promotions, for found adverse impact, had the effect of perpetuating past discrimination as found in a prior action]), or one in which the scope of allegations and relief extends beyond the one test cancellation (cf. id. at p. 285, fn. 7 [trial court might yet find the cancellation discriminatory “in the context of plaintiff-intervenors ’ much broader pattern and practice allegations”]), or one of partial cancellation (cf. id. at pp. 284-285 [cancellation-caused total freeze did not have a disparate impact on one group, as identified in Giles]).
We also distinguish, of course, the typical case where a challenge is to the use—not cancellation—of a test with adverse impacts (Dothard v. Rawlinson (1977) 433 U.S. 321, 323-331 [97 S.Ct. 2720, 2723-2728, 53 L.Ed.2d 786] [minimum height' and weight requirements affecting women]; Albemarle Paper Co. v. Moody, supra, 422 U.S. 405, 428-429 [95 S.Ct. 2362, 2376-2377] [verbal intelligence tests affecting Blacks]). Such tests serve to illustrate the role of formal validation of “job-relatedness” as an exception to the general prohibition of discrimination. The exception is available to an employer who seeks in good faith to justify an adverse impact upon a protected group, but its burden can neither be undertaken inadvertently nor lessened to the point where minimal evidence will suffice, as is suggested by the dissent. Certainly, an unwilling employer cannot be required by administrative mandate to shoulder the burden of such justification in the face of undisputed evidence of discrimination.
Administrative mandate was properly denied.
Disposition
The judgment is affirmed.
Kline, P. J., concurred.