Although the ALRB’s general counsel serves as prosecutor in administrative proceedings in which the ALRB acts as judge, the general counsel also serves as the ALRB’s attorney in connection with seeking injunctive relief in court. Under Lab. Code 1160.4, only the board has authority to seek injunctive relief in court. Previously, the ALRB delegated that authority automatically in all cases to its general counsel, but now it requires the general counsel to obtain case-specific approval from the board before filing a complaint for injunctive relief in court. In seeking board authority to file such a complaint, the general counsel acts as the board’s attorney, and communications between the general counsel and the board in that respect are subject to the attorney-client privilege. Hence, they need not be produced under the Public Records Act. Serious due process problems may arise from the general counsel’s role as prosecutor in the administrative proceeding and attorney for the board in the injunctive relief action. See Morongo Band of Mission Indians v. State Water Resources Control Bd. (2009) 45 Cal.4th 731. But if so, the remedy must be sought in the affected administrative proceeding, not by denying the existence of the attorney-client privilege and compelling production of the general counsel’s communications with the board in the injunctive relief action.
California Court of Appeal, Third District (Robie, J.); October 25, 2016; 2016 WL 6236427