4 Cal. App. 5th 675
Cal. Ct. App.2016Background
- The ALRB's General Counsel historically had plenary delegated authority to seek injunctive relief (Lab. Code §1160.4); in March 2015 the Board changed the delegation to require case-specific Board approval before seeking injunctions.
- In May 2015 General Counsel sought Board approval to file a temporary restraining order (TRO) against Gerawan; the Board issued a conditional authorization letter and related materials (the "TRO packet").
- Gerawan requested copies of General Counsel’s submission to the Board and the Board’s communications approving the TRO under the California Public Records Act; the Board withheld them claiming privilege.
- Gerawan sued in Sacramento Superior Court seeking disclosure; the superior court ordered production, holding General Counsel was acting as prosecutor (not Board counsel) and that attorney-client and deliberative-process privileges did not apply.
- The Court of Appeal granted the ALRB’s writ petition, holding the communications are protected by the attorney-client privilege and exempt from disclosure under Gov. Code §6254(k); due process concerns do not negate the privilege and, if present, must be addressed in the administrative proceeding.
Issues
| Issue | Plaintiff's Argument (Gerawan) | Defendant's Argument (ALRB) | Held |
|---|---|---|---|
| Whether communications between the Board and General Counsel about seeking injunctive relief are protected by the attorney-client privilege | Communications are prosecutorial/ex parte, not confidential legal advice, because General Counsel was acting as prosecutor | General Counsel acts as the Board’s lawyer re: injunctive petitions; communications are confidential client-lawyer communications | Held privileged: Board–General Counsel relationship regarding §1160.4 decisions is attorney-client for privilege purposes |
| Whether asserted due process concerns (that dual prosecutorial/advisory roles create bias) defeat the privilege and require disclosure | Due process requires disclosure; an agency attorney cannot advise the decisionmaker in the same case without violating fairness | Due process concerns, if any, do not eliminate an otherwise valid attorney-client relationship or its privilege; such concerns should be addressed in the administrative forum | Held: due process concerns do not justify disregarding the privilege; any remedy lies in the administrative proceeding |
| Whether deliberative-process or PRA exemptions compel disclosure of the TRO packet and authorization letter | The Board failed to show how disclosure of an advocacy submission impairs deliberative processes; the authorization letter is a final decision and not predecisional | Documents (including proposed filings) transmitted for Board approval can be privileged; PRA incorporates Evidence Code privileges (Gov. Code §6254(k)) | Held: communications fall within attorney-client/Evidence Code privilege and are exempt from PRA disclosure |
Key Cases Cited
- Frankl ex rel. NLRB v. HTH Corp., 650 F.3d 1334 (9th Cir. 2011) (recognizes general counsel’s lawyerly role and that delegation to counsel can create an attorney-client relationship regarding §10(j) filings)
- Roberts v. City of Palmdale, 5 Cal.4th 363 (Cal. 1993) (Public Records Act incorporates Evidence Code privileges, including attorney-client privilege)
- Morongo Band of Mission Indians v. State Water Resources Control Bd., 45 Cal.4th 731 (Cal. 2009) (due process and internal separation; ex parte communications rules and limits on prosecutors advising decisionmakers)
- Evans v. Int’l Typographical Union, 76 F. Supp. 881 (S.D. Ind. 1948) (early NLRA-era discussion of delegation, prosecutorial/adjudicative separation, and attendant due process concerns)
- The Termo Co. v. Luther, 169 Cal.App.4th 394 (Cal. Ct. App. 2008) (distinguishes prosecutorial authority of general counsel from Board’s adjudicatory role)