BILL ANALYSIS                                                                                                                                                                                                    ”



                                                                  AB 729
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          CONCURRENCE IN SENATE AMENDMENTS
          AB 729 (Roger HernŠndez)
          As Amended August 21, 2013
          Majority vote
           
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          |ASSEMBLY:  |48-27|(May 28, 2013)  |SENATE: |23-10|(September 3,  |
          |           |     |                |        |     |2013)          |
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           Original Committee Reference:   JUD.  

           SUMMARY  :  Creates a new evidentiary privilege relating to union  
          agents and represented employees.  Specifically,  this bill  :  

          1)Provides that a union agent and a represented employee or  
            former employee have a privilege to refuse to disclose, in any  
            court or to any administrative board or agency, or in any  
            arbitration or other civil proceeding any confidential  
            communication between the employee or former employee and the  
            union agent while the union agent was acting in his or her  
            representative capacity.  In addition, the employee or former  
            employee shall have a privilege to prevent others from  
            disclosing a confidential communication. 

          2)Permits a union agent to use or reveal a confidential  
            communication made during the course of fulfilling his or her  
            professional representative duties in any of the following  
            circumstances:

             a)   In actions against the union agent in his or her  
               personal or official representative capacity, or against  
               the local union or subordinate body thereof or  
               international union of affiliated or subordinate body  
               thereof or any agent thereof in their personal or official  
               representative capacities. 

             b)   When, after full disclosure has been provided, the  
               written or oral consent of the bargaining unit member has  
               been obtained, or, if the bargaining unit member is  
               deceased or has been adjudged incompetent by a court of  
               competent jurisdiction, the written or oral consent of the  
               bargaining unit member's estate or guardian or conservator.  










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          3)Requires the union agent to use or reveal a confidential  
            communication made to the union agent while the union agent  
            was acting in his or her representative capacity if required  
            by court order. 

          4)Defines "union agent" for purposes of this bill to mean a  
            person employed, elected, or appointed by a labor organization  
            and whose duties include the representation of employees in a  
            bargaining unit in a grievance procedure or in negotiations  
            for a labor agreement and the labor organization.  Specifies  
            that an appointed employee steward is not a union agent except  
            to the extent a represented employee or former employee  
            communicates in confidence to the steward regarding a  
            grievance or potential grievance and the appointed employee  
            steward was a steward at the time the communication was made. 

          5)Defines "confidential communication" to mean any written or  
            oral communication transmitted between a represented employee  
            or former employee and a union agent and in confidence by a  
            means which, so far as the employee or former employee or the  
            union agent is aware, discloses the information to no third  
            persons other than those who are present to further the  
            interest of the employee, former employee or union agent or  
            those to whom disclosure is reasonably necessary for the  
            transmission of the information or the accomplishment of the  
            purpose for which the communication was made, and includes  
            advice given by a union agent in the course of a  
            representational relationship.

          6)Specifies that there is no privilege if the union agent  
            reasonably believes that the disclosure of a confidential  
            communication is necessary to prevent a criminal act that the  
            union agent reasonably believes is likely to result in the  
            death of, or substantial bodily harm to, an individual. 

          7)Specifies that there is no privilege with respect to the  
            confidential communication made to enable or aid anyone to  
            commit or plan a crime or a fraud. 
           
          The Senate amendments  provide that the privilege created by this  
          bill does not apply to criminal proceedings and incorporate  
          provisions of AB 267 (Chau) of the current legislative session,  
          to take effect if both bills are chaptered and this bill is  
          chaptered last. 
           








                                                                 AB 729
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          EXISTING LAW  : 

          1)Governs the admissibility of evidence in court proceedings and  
            generally provides a privilege to refuse to testify or  
            otherwise disclose confidential communications made in the  
            course of certain relations, including the following:

             a)   The attorney-client relation;
                
             b)   The spousal relation;

             c)   The physician-patient relation;

             d)   The psychotherapist-patient relation;

             e)   The clergy-penitent relation;

             f)   The sexual assault counselor-victim relation; and

             g)   The domestic violence counselor-victim relation.

          1)Provides that a person's right to claim a privilege based on  
            one of the relations listed above is waived with respect to a  
            communication protected by the privilege if any holder of the  
            privilege, without coercion, has disclosed a significant part  
            of the communication or has consented to a disclosure made by  
            anyone.  

           FISCAL EFFECT  :  None 

           COMMENTS  :  This bill seeks to create a new evidentiary privilege  
          for confidential communications between union agents and  
          represented employees, similar to those traditionally granted to  
          other relations characterized by, or assuming, confidentiality,  
          including those between spouses, attorney and client, doctor and  
          patient, and a clergy person and a penitent.  More recently the  
          privilege was extended to cover relations between a  
          psychotherapist and a patient, a domestic violence counselor and  
          a victim of domestic violence, and a sexual assault counselor  
          and a victim of sexual assault.  The privilege is an  
          exclusionary rule of evidence that permits the holder of the  
          privilege, or the professional who may assert it on behalf of  
          the holder, to refuse to disclose the content of a confidential  
          communication between certain classes of persons.









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          Aside from the spousal privilege, most of the other evidentiary  
          privileges recognized in existing law involve a relationship  
          between a professional of some sort and a "client" who divulges  
          confidential information to that professional:  for example,  
          attorney-client, doctor-patient, psychotherapist-patient,  
          trained domestic violence or sexual assault counselor-victim,  
          and clergy-penitent.  Usually it is the "client" or the  
          "patient" - that is, the non-professional in the relationship -  
          who is the holder of the privilege.  This means that it is the  
          patient or client who has the right to invoke, or waive, the  
          privilege.  Not only can the patient or client invoke the  
          privilege in order to refuse to testify or otherwise disclose  
          the contents of a confidential communication, the patient or  
          client can prevent others, including the trained professional,  
          from testifying about or disclosing the content of the  
          confidential communication.  In short, the privilege is  
          primarily intended to protect the person who discloses  
          confidential information to a trusted person.  This assumption  
          of a special trust is also, of course, at the core of the  
          spousal privilege.  

          However, in one of the privileged relations, both parties - to  
          varying degrees - are deemed the holder of the privilege.  Under  
          the clergy-penitent privilege, both the clergy person and the  
          penitent are deemed to be holders of the privilege, even though  
          the privilege is greater for the penitent than it is for the  
          clergy person.  The penitent may assert the privilege to refuse  
          to disclose, or to prevent another from disclosing, the content  
          of the confidential communication.  The clergy person can assert  
          the privilege in order to refuse to disclose the confidential  
          communication, but he or she does not have the right to assert  
          the privilege to prevent another from disclosing the  
          information.  

          This bill would create a similar distribution of the privilege:   
          both the union agent and the employee would have a privilege to  
          refuse to disclose, but only the employee would have a privilege  
          to prevent another person from disclosing a confidential  
          communication made to the union agent.  Like any other  
          evidentiary privilege, the union agent-represented employee  
          privilege is subject to many exceptions.  For example, like any  
          other privilege protecting confidential communications, it would  
          only protect communications that were made in confidence and  
          only to the other party.  If a third party were present, or if  
          the communication is voluntarily shared with any third party,  








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          the privilege is waived.  Similarly, the bill makes standard  
          exemptions for instances in which disclosure is necessary to  
          prevent the commission of a crime that would likely result in  
          serious injury or death, or pursuant to a court order. 

           
          Analysis Prepared by  :    Thomas Clark / JUD. / (916) 319-2334 


          FN: 0001874