State of California (Department of Corrections and Rehabilitation) * * * PARTIALLY SUPERSEDED by PERB Regulation 32170(b)(12) and Pasadena Area Community College District (2022) PERB Order No. Ad-490 (PERB A382S)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
PA TRICIA L. WOODS,
Charging Party,
V.
STATE OF CALIFORNIA (DEPARTMENT OF
CORRECTIONS & REHABILITATION),
Respondent.
Case No. SA-CE-1640-S
Administrative Appeal
PERB Order No. Ad-382-S
December 30, 2009
Appearances: Patricia L. Woods, on her own behalf; State of California (Department of
Personnel Administration) by Kevin A. Geckeler, Labor Relations Counsel, for State of
California (Department of Corrections & Rehabilitation).
Before Dowdin Calvillo, Acting Chair; Neuwald and Wesley, Members.
DECISION
DOWD IN CALVILLO, Acting Chair: This case is before the Public Employment
Relations Board (PERB or Board) on appeal by Patricia L. Woods (Woods) of an
administrative determination rejecting Exhibit A to Woods' statement of exceptions because it
was not properly served on the respondent, State of California (Department of Corrections &
Rehabilitation) (CDCR).
The Board has reviewed the administrative determination and the record in light of
Woods' appeal, CDCR' s response and the relevant law. 1 Based on this review, the Board
affirms the Appeals Assistant's rejection of Exhibit A to Woods' statement of exceptions for
the reasons discussed below.
1 Woods filed a reply brief in this matter. The Board has discretion to allow the filing
of a reply brief when a response to an appeal "raises new issues, discusses new case law or
formulates new defenses to allegations." (Los Angeles Unified School District/Los Angeles
Community College District (1984) PERB Decision No. 408.) Because CDCR's response to
Woods' appeal did none of these, the Board declines to accept Woods' reply brief.
* * * PARTIALLY SUPERSEDED by PERB Regulation 32170(b)(12) and Pasadena Area Community
College District (2022) PERB Order No. Ad-490 * * *

BACKGROUND
On October 5, 2009, Woods filed a statement of exceptions to the administrative law
judge's (ALJ) proposed decision in this case, along with a supporting brief and declarations.
The filing also included a sealed envelope labeled "Exhibit A." A cover letter to the statement
of exceptions said that '"Exhibit i\.' is being placed under seal to the Board." Page 46 of the
statement of exceptions stated, in relevant part:
b. 	Filing of Confidential/Under Seal Materials (on
December 16, 2008) Prior to the PERB's Agent Decision
and Allegations of Fixed Anticipatory Prejudgment,
Omissions, and Deletion of Witness Testimony and
other Relative Evidence from the PERB's Hearing
Transcript and Records
(Exhibit A) - Part of Charging Party's-Statement of
Exceptions (ON APPEAL).
On October 8, 2009, counsel for CDCR phoned the Appeals Assistant to request a copy
of Exhibit A because it was not included with the statement of exceptions and supporting
documents served on CDCR. The Appeals Assistant informed CDCR' s counsel that it could
not provide a copy of Exhibit A because it was filed under seal.2
On October 15, 2009, the Appeals Assistant notified Woods by letter that Exhibit A
would not be included in the record on appeal because it was not properly served on CDCR.
The letter cited PERB Regulations 32295, 32300 and 321403 as the basis for the denial.
Woods asserts that during this telephone call CDCR's counsel made an oral motion to
exclude Exhibit A from the record on appeal. Nothing in the record supports this assertion.
Instead, the record establishes that CDCR' s counsel merely requested a copy of Exhibit A.
3 PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
2

DISCUSSION
1. 	In Camera Review of Documents Filed Under Seal
In her appeal, Woods states she filed Exhibit A under seal for in camera review4 by the
Board to determine whether the exhibit is relevant to issues on appeal and, if so, whether the
exhibit should be "unsealed" and shared with CDCF'". \\1oods contends the regulations cited in
the October 15, 2009 Appeals Assistant's letter do not apply to Exhibit A because service
pursuant to those regulations would defeat the purpose of submitting it to the Board under seal
for in camera review.
PERB Regulation 32300 sets forth the procedure for filing exceptions to a Board agent's
decision. Subdivision ( a) of the regulation states, in relevant part: "Service and proof of service
of the statement and brief pursuant to Section 32140 are required." PERB Regulation 32140,
subdivision (b) states, in full:
Whenever 'service' is required by these regulations, service shall
be on all parties to the proceeding and shall be concurrent with the
filing in question.
PERB has not adopted regulations permitting in camera review of documents by Board
agents or the Board itself. In the absence of such regulations, ¥/ oods urges the Board to
conduct in camera review of her sealed documents just as the courts would. 	Specifically,
Woods asks the Board to follow Evidence Code section 915, which states, in relevant part:
(a) Subject to subdivision (b ), the presiding officer may not
require disclosure of information claimed to be privileged under
this division or attorney work product under subdivision (a) of
Section 2018.030 of the Code of Civil Procedure in order to rule
on the claim of privilege; provided, however, that in any hearing
In camera: "A judicial proceeding is said to be heard in camera either when the
hearing is had before the judge in his private chambers or when all spectators are excluded
from the courtroom." In camera inspection: "Under certain circumstances, a trial judge may
inspect a document which counsel wishes to use at trial in his chambers before ruling on its
admissibility or its use." (Black's Law Diet. (6th ed. 1990) p. 760.)
3

conducted pursuant to subdivision (c)
of
Section 1524
of
the
Penal Code in which a claim
of
privilege is made and the court
determines that there is no other feasible means to rule on the
validity
of
the claim other than to require disclosure, the court
shall proceed in accordance with subdivision (b).
(b) [stating in camera review is allowed only when the claim
of
privilege is based on official information, identity
of
informer or
trade secret, or invol\1 es attorney work product, and the court
cannot rule on the privilege claim without reviewing the content
of
the communication at issue].
Evidence Code section 915 applies to administrative agency proceedings. (Southern
Cal. Gas.
Co.
v.
Public Utilities Comm. (1990) 50 Cal.3d 31, 45, fn. 19.) However, this
section does not allow in camera review
of
Exhibit A for two reasons. First, as Woods admits,
she is not claiming that Exhibit A is protected from disclosure to CDCR by any privilege
contained in the Evidence Code. Second, even
if
Woods claimed a statutory privilege,
Evidence Code section 915, subdivision (b) allows in camera review
of
the content
of
a
communication only when the claim
of
privilege is based on one
of
the three bases listed in
that subdivision or involves attorney work product. (Costco Wholesale
Co.
v.
Superior Court
(November 30, 2009, Sl63335)
_Cal.4th_
at *19-20.) Because Exhibit A does not meet
these statutory criteria, it cannot be reviewed in camera pursuant to Evidence Code section
915.
Woods argues, nonetheless, that Exhibit A should be treated as a privileged document
because "Charging Party's purpose in submitting it under seal upon counsel for the State was
mainly to avoid potentially embarrassing information becoming completely public." \Vhen
confidentiality or privacy concerns exist over documents to be filed in court litigation, a party
may request by separate, public motion that the documents be filed under seal. (Cal. Rules of
Court, rule 8.160; Champion
v.
Superior Court (1988) 201 Cal.App.3d 777, 788.) Unlike the
California Rules of Court, PERB regulations do not provide for the filing of documents under
4

seal. PERB cannot modify its regulations by decisional law. ( UPTE, CWA Local 9119 (Booth,
et al.) (2006) PERB Decision No. 1831-H.) It necessarily follows that PERB cannot modify its
regulations governing the filing of documents to include filings under seal without following
the rulemaking procedure set forth in the Administrative Procedure Act. 5 Unless and until
PERB completes that procedure, documents may not be filed under seal with PERB.
2. 	Ex Parte Communications
Woods asserts that the phone call by CDCR's counsel to the Appeals Assistant
regarding Exhibit A violated the prohibition on ex parte communications set forth in PERB
Regulation 32295, which states in full:
No party shall communicate with the Board itself, any member of
the Board itself or any legal adviser to a member of the Board,
orally or in writing, about any matter pending before the Board
except as provided for in these regulations.
The October 8, 2009 phone call did not violate this regulation because it was not made
to the Board itself, a Board member or a Board member's legal adviser but to the Board's
Appeals Assistant. Further, even if the phone call constituted an ex parte communication, any
violation was cured by the October 15, 2009 Appeals Assistant's letter, which disclosed the
substance of the communication to Woods and provided her an opportunity to respond. (Gov.
Code, § 11430.40; Afathew Zaheri Corp. v. l'!ew Afotor Vehicle Ed. (1997) 55 Cal.App.4th
1305, 1318.)
PERB Regulation 32295 does, however, support the Appeals Assistant's rejection of
Exhibit A. Woods states in her appeal that she is asking the Board to rule on the relevance of
Exhibit A. Because Exhibit A is a communication to the Board itself, it may only be made as
provided for in PERB regulations. As noted, PERB regulations do not provide for in camera
5
The rulemaking provisions of the Administrative Procedure Act are codified at
Government Code section 11340 et seq.

review
of
documents by the Board or filing
of
documents under seal. Thus, the only applicable
regulations are those requiring service
of
filings on all parties, namely PERB regulations
32300 and 32140.
Additionally, acceptance
of
Exhibit A would violate the purpose behind PERB
Regulation 32295. Prohibitions on ex parte communications are intended to protect a party's
due process rights by preventing the adjudicator from basing a ruling on evidence not
presented to that party. (Mathew Zaheri Corp., supra,
55
Cal.App.4th at p. 1319.) Ruling on
the relevance
of
Exhibit A without providing CDCR the opportunity to see or respond to the
evidence would violate CDCR' s right to a fair hearing. Such a result is exactly what PERB
Regulation 32295 is intended to prevent.
3.
	Estoppel
Finally, Woods argues that the Board is required to accept Exhibit A because she
previously filed documents under seal for in camera review by the ALJ and neither the ALJ nor
CDCR objected to the practice. The Board is not bound by the conduct
of
its agents; rather,
Board agents are bound by the Board's articulation
of
binding precedent. (Santa Clarita
Community College District (College
of
the Canyons) (2003) PERB Decision No. 1506.) Nor
does a party's inaction divest the Board
of
its duty to apply the statutes it is charged with
administering. (See Apple Valley Unified School District (1990) PERB Order No. Ad-209 [on
appeal, Board may consider "legal issues not raised by the parties when necessary to correct a
serious mistake
of
law"].) Thus, neither the ALJ' s acceptance
of
documents under seal nor
CDCR's failure to object estops the Board from rejecting Exhibit A.
Nonetheless, given the Board's prior lack of guidance on this issue, equity counsels that
the Board provide Woods an opportunity to serve Exhibit A in compliance with PERB
Regulation 32140 within 20 days of service of this decision on the parties. Should Woods
6

avail herself
of
this opportunity, CDCR will have 20 days from the date Exhibit A
is
served on
CDCR to respond to the filing pursuant to PERB Regulation 32310.
ORDER
The administrative determination that Exhibit A to Patricia L. Woods' statement
of
exceptions
in
Case
1'-Jo.
Si\=CE= 1640=S
vvas
not properly served on CDCR
is
hereby
AFFIRMED, without prejudice, to Woods refiling Exhibit A in compliance with PERB
Regulation 32140 within 20 days after this decision is served on the parties.
Members Neuwald and Wesley joined in this Decision.
7