WCAB Seeks Answers After DIR Attorney Allegedly Read Their Email

Tuesday, April 24, 2018 | 0

Six weeks before California Department of Industrial Relations Director Christine Baker suddenly announced her retirement, four Workers' Compensation Appeals Board commissioners sent an angry letter to the agency's top lawyer asking why a staff attorney had been reading their emails.

In a Feb. 16 letter written to DIR Acting Chief Counsel Kim Card and Mi Kim, chief of the department's Anti-Fraud Unit, the commissioners say they can safely surmise that Kim had tapped into at least one email exchange between WCAB Chairwoman Katherine Zalewski to Vanessa Holton, general counsel for the State Bar of California. They said they know that because Kim had inexplicably included a copy of the exchange in her own email to Holton. 

Holton served as assistant chief counsel for the DIR before she went to work for the Bar in 2015. She used an AOL account to communicate witth Zalewski, meaning that Kim must have copied the exchange between them by reading one of Zalewski's emails, the commissioners concluded.

Appeals board members acknowledge they don’t have a personal expectation of privacy when using their DIR email accounts, but said they are concerned about the “impropriety” of a DIR attorney who sometimes appears before the WCAB reading commissioner’s emails without their knowledge or consent.

"While the communication is not privileged or consequential, it seems implausible that this was the only email from Chairwoman Zalewski’s email account that was accessed,” the commissioner’s letter says. “Access to emails of the commissioners of the Appeals Board by attorneys from your office, which appears before the Appeals Board on contested matters, raises grave legal and ethical concerns."

The commissioners demanded that Kim answer their questions "fully and without evasion" and reminded her that they are required to report attorneys who exhibit unprofessional, fraudulent or improper behavior.

WorkCompCentral became aware of the WCAB's letter after someone anonymously mailed copies of it to several attorneys and others who are active in the workers' compensation industry. The unsigned letter theorizes that the unauthorized access of the emails was a factor in Baker's sudden resignation, but WorkCompCentral could not substantiate that claim on Monday.

Erika Monterroza, a spokeswoman for the DIR, confirmed that the WCAB did send the letter and provided WorkCompCentral with copies of the agency's responses.

Commissioners asked the DIR attorney:

• Which WCAB email accounts have been accessed by Kim or another attorney or staff member within the Office of the Director’s Legal Unit.
• Who authorized the email access and why?
• Who are all the people who had or have access to WCAB emails?
• Were DIR attorneys or staff given access to any email account, or did they get a subset of emails for review?
• When did the review start and is it continuing?
• Why did Kim forward the particular email to Holton?
• What steps is the DIR taking to ensure DIR personnel don’t have access to emails discussing matters in which the Office of the Director’s Legal Unit appears before the WCAB?
• What steps is the DIR taking to ensure personnel don’t have access to emails discussing cases before the court of appeal in which the DIR and WCAB are adverse parties?

Kim said in an emailed reply to the WCAB that DIR Chief Counsel Chris Jagard in December 2017 assigned her the task of reviewing emails from Holton to the DIR “due to concern that Ms. Holton may be involved in current DIR matters. The letter does not elaborate on or explain the concerns about Holton's alleged involvement with DIR issues after her departure.

Jagard reportedly said it was “fine” to search and review Holton’s incoming emails to DIR employees. Kim said she read at least “several” exchanges between Holton and Zalewski.

Card said in a reply letter that she was not authorized to answer questions about which WCAB accounts were accessed or who authorized that access, saying those questions need to be presented to former DIR Director Christine Baker, who resigned April 6, or Labor Secretary David Lanier.

Lanier’s spokesman Garin Casaleggio acknowledged receiving questions from WorkCompCentral on Monday, but he did not provide any substantive answers by deadline Monday.

Card said in her response to the WCAB letter that she understands the commissioner’s concerns, adding, “I believe I can accurately represent to you that no OD legal attorney would have access to any emails of WCAB commissioners concerning matters in which OD Legal appears before the WCAB.”

The Anti-Fraud Unit identifies liens filed by or on behalf of criminally charged providers that that should be flagged in the Electronic Adjudication Management System as “stayed.” According to court filings in a federal case challenging the constitutionality of the lien stay created by Senate Bill 1160, the Anti-Fraud Unit also provides the evidence it used to flag liens to administrative law judges presiding over cases in which a claimant challenged the applicability of the stay.

The Office of the Director’s Legal Unit, known as OD Legal, also appears before the WCAB on behalf of the director, who administers the Uninsured Employers Benefit Trust Fund and the Subsequent Injury Benefit Trust Fund.

Commissioners said they are concerned that an attorney within the director’s legal unit accessing at least one email “violated several privileges and protections attached to the appeals board’s communications and work product and created a conflict of interest that threatens ODL’s ability to appear before the appeals board as well as the independent functioning of the appeals board and the due process rights of other parties adverse to ODL.”

Commissioners’ emails could also contain protected judicial deliberations that should not be examined by anyone outside the WCAB, according to the letter. The commissioners said it is particularly troubling for someone such as Kim***** to read emails containing judicial deliberations because they appear before the WCAB as litigants and against the WCAB in appellate cases. 

“Access to appeals board email by ODL lawyers is a clear violation of the appeals board’s deliberations and impairs the independents of the appeals board as a deliberative body,” the commissioners said. “It also, in our view, could call into question the basic fairness of the proceedings with respect to ODL’s adversary.”
 
Appeals board staff includes attorneys who act as counsel to the board and provide legal advice on pending cases, assistance in drafting opinions and representation when the board’s decisions are appealed. As a result, the commissioners said any communication they have with staff attorneys is protected by a privilege they haven’t waived.

Some emails could also be considered attorney work product that are also privileged, according to the commissioners.

Finally, the state Business and Professions Code requires attorneys to maintain the respect due to courts and judicial officers, and to avoid actions arising from corrupt motives or passions of interest.

“Clearly, secretly accessing and reviewing the email accounts of the appeals board members violates an attorney’s duty to ‘maintain the respect due’ to the appeals board as a judicial body, as well as the duty to avoid action arising out of ‘any corrupt motive,’” the letter says.

While the commissioners acknowledge that they don’t have authority to discipline attorneys, they said they are required to report unprofessional and improper conduct.

“Absent a full explanation that demonstrates no wrongdoing, the appeals board is compelled to make such a report,” the letter concludes.

The commissioners gave Kim and Card 10 days from the date of the letter to answer their questions “fully and without evasion.”