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Officials at California’s Department of Industrial Relations authorized a DIR employee to access an e-mail exchange of at least one WCAB commissioner.

This story has come to light after a whistleblower provided documents to a number of workers’ comp stakeholders and media outlets last week. The story is covered in a piece today by Workcompcentral reporter Greg Jones.

I was alerted to this story initially when I received a call from another workers’ comp stakeholder.  I was out of the office at the time but when I returned there was a unmarked envelope, presumably from the whistleblower, with various documents enclosed.

Boiling it down to a nutshell, around February 2018 the WCAB commissioners discovered that in a communication by DIR attorney Mi Kim to the California State Bar’s General Counsel Vanessa Holton, Ms. Kim had attached an e-mail chain between WCAB Chairperson Katherine Zalewski and Ms. Holton that the WCAB commissioners believed could only have been accessed via Chairwoman Zalewski’s e-mail account.

Ms. Holton had been with the DIR until 2015.

The WCAB was disturbed by this, and demanded answers (see below for a copy of the February 16, 2018 WCAB letter).

Here is a verbatim list of the questions posed  by the WCAB commissioners to Ms. Kim and acting DIR Chief Counsel Kim Card:

  1. Which Appeals Board email accounts have been accessed by Ms. Kim or another ODL attorney or staff member?
  2. Who authorized access to Appeals Board emails and what was the reason for access?
  3. Who are all of the individuals who had or have access to Appeals Board e-mails?
  4. Were ODL attorneys or staff given direct access to any email accounts, or were a subset of emails extracted for review? If the latter, what was the criteria for selection of email to be reviewed and who decided that criteria?
  5. If copies of Appeals Board emails were extracted, where are those copies stored and who are all of the people with access to them?
  6. When did the review discussed above begin, and it continuing?
  7. Why did Ms. Kim forward that particular e-mail chain to Ms. Holton?
  8. What steps are being taken to protect the applicable privileges where they exist?
  9. What steps have you taken to ensure that no ODL personnel have direct or indirect access to any emails pertaining to matters in which ODL appears before the Appeals Board?
  10. What steps have you taken to ensure that no ODL personnel have direct or indirect access to emails pertaining to matters before the Court of Appeal in which the interests represented by ODL are adverse to the interests of the Appeals Board?

Ms. Kim responded right away (see text of her response below) indicating that in December 2017 then-DIR Chief Counsel Chris Jagard had assigned her the task of reviewing former DIR employee Vanessa Holton’s emails to DIR. Ms. Kim claims that she did not access Ms. Zalewski’s or any WCAB commissioner’s email accounts and that she was only reviewing incoming emails from Ms. Holton which had been sent by Ms. Holton via Holton’s aol account or Holton’s account at the California State Bar. Ms. Kim provides no information as to the context of why there was concern about Ms. Holton’s emails or who else was involved in the decision to allow her to access those.

Apparently in December 2017 Ms. Kim provided Jagard a summary of Holton’s email correspondence to DIR employees.

Interestingly, in her explanation to the WCAB she copies Mark Woo-Sam, who works at the Labor and Workforce Development Agency under David Lanier.

Ms. Card responded quickly (see link below), addressing the questions #9 and #10. From her answers it seems clear that there were personnel actions ongoing within DIR and that the emails may have been seen as relevant. But Ms. Card deferred answers on questions #1 through #8 to Christine Baker and David Lanier, Governor Brown’s cabinet-level head of the California Labor and Workforce Development Agency.

I’ve yet to to see followup responses from Baker and Lanier or further inquiry from the WCAB commissioners, but expect that in due time we’ll learn more about the circumstances surrounding this incident.

Clearly the incident raises a number of questions.

The independence of the WCAB is very important to the integrity of the workers’ comp system in California, so there is much at stake if the comp community believes that political appointees or bureaucrats outside the WCAB have access to commissioner emails. The problem is complicated in that the other units of the DIR are party to many of the issues being decided by the WCAB.

Now that this has surfaced, it seems that is is in the interests of both the DIR and the WCAB to provide further details. At a minimum, answers to the WCAB questions #1 through #8 need to be provided, as well  as further WCAB followup.

Yes, potentially some reputations may be at stake. But the integrity of the comp system is the bigger issue here.

Here is the WCAB letter to Ms. Kim and Ms. Card:

WCAB(2.16.18)

The réponse by Ms. Kim can be found here:

MiKimE-mail(2.16.18)

Ms. Card’s response can be seen here:

WorkersCompKimCardLetter(2018)

Stay tuned.

Julius Young

https://www.boxerlaw.com/attorney/julius-o-young/

 

 

 

 

Julius Young

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