Bill Text: OH SB31 | 2009-2010 | 128th General Assembly | Introduced

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Bill Title: To create a testimonial privilege for communications between a representative of an employee organization and a bargaining unit member.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2009-02-10 - To Judiciary Civil Justice [SB31 Detail]

Download: Ohio-2009-SB31-Introduced.html

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As Introduced

128th General Assembly Regular Session 2009-2010

S. B. No. 31

Senator Patton 

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A BILL

To amend section 2317.02 of the Revised Code to

1

create a testimonial privilege for communications

2

between a representative of an employee

3

organization and a bargaining unit member.

4

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That section 2317.02 of the Revised Code be	5
amended to read as follows:	6

Sec. 2317.02.  The following persons shall not testify in	7
certain respects:	8

(A)(1) An attorney, concerning a communication made to the	9
attorney by a client in that relation or the attorney's advice to	10
a client, except that the attorney may testify by express consent	11
of the client or, if the client is deceased, by the express	12
consent of the surviving spouse or the executor or administrator	13
of the estate of the deceased client. However, if the client	14
voluntarily testifies or is deemed by section 2151.421 of the	15
Revised Code to have waived any testimonial privilege under this	16
division, the attorney may be compelled to testify on the same	17
subject.	18

The testimonial privilege established under this division	19
does not apply concerning a communication between a client who has	20
since died and the deceased client's attorney if the communication	21
is relevant to a dispute between parties who claim through that	22
deceased client, regardless of whether the claims are by testate	23
or intestate succession or by inter vivos transaction, and the	24
dispute addresses the competency of the deceased client when the	25
deceased client executed a document that is the basis of the	26
dispute or whether the deceased client was a victim of fraud,	27
undue influence, or duress when the deceased client executed a	28
document that is the basis of the dispute.	29

(2) An attorney, concerning a communication made to the	30
attorney by a client in that relationship or the attorney's advice	31
to a client, except that if the client is an insurance company,	32
the attorney may be compelled to testify, subject to an in camera	33
inspection by a court, about communications made by the client to	34
the attorney or by the attorney to the client that are related to	35
the attorney's aiding or furthering an ongoing or future	36
commission of bad faith by the client, if the party seeking	37
disclosure of the communications has made a prima facie showing of	38
bad faith, fraud, or criminal misconduct by the client.	39

(B)(1) A physician or a dentist concerning a communication	40
made to the physician or dentist by a patient in that relation or	41
the physician's or dentist's advice to a patient, except as	42
otherwise provided in this division, division (B)(2), and division	43
(B)(3) of this section, and except that, if the patient is deemed	44
by section 2151.421 of the Revised Code to have waived any	45
testimonial privilege under this division, the physician may be	46
compelled to testify on the same subject.	47

The testimonial privilege established under this division	48
does not apply, and a physician or dentist may testify or may be	49
compelled to testify, in any of the following circumstances:	50

(a) In any civil action, in accordance with the discovery	51
provisions of the Rules of Civil Procedure in connection with a	52
civil action, or in connection with a claim under Chapter 4123. of	53
the Revised Code, under any of the following circumstances:	54

(i) If the patient or the guardian or other legal	55
representative of the patient gives express consent;	56

(ii) If the patient is deceased, the spouse of the patient or	57
the executor or administrator of the patient's estate gives	58
express consent;	59

(iii) If a medical claim, dental claim, chiropractic claim,	60
or optometric claim, as defined in section 2305.113 of the Revised	61
Code, an action for wrongful death, any other type of civil	62
action, or a claim under Chapter 4123. of the Revised Code is	63
filed by the patient, the personal representative of the estate of	64
the patient if deceased, or the patient's guardian or other legal	65
representative.	66

(b) In any civil action concerning court-ordered treatment or	67
services received by a patient, if the court-ordered treatment or	68
services were ordered as part of a case plan journalized under	69
section 2151.412 of the Revised Code or the court-ordered	70
treatment or services are necessary or relevant to dependency,	71
neglect, or abuse or temporary or permanent custody proceedings	72
under Chapter 2151. of the Revised Code.	73

(c) In any criminal action concerning any test or the results	74
of any test that determines the presence or concentration of	75
alcohol, a drug of abuse, a combination of them, a controlled	76
substance, or a metabolite of a controlled substance in the	77
patient's whole blood, blood serum or plasma, breath, urine, or	78
other bodily substance at any time relevant to the criminal	79
offense in question.	80

(d) In any criminal action against a physician or dentist. In	81
such an action, the testimonial privilege established under this	82
division does not prohibit the admission into evidence, in	83
accordance with the Rules of Evidence, of a patient's medical or	84
dental records or other communications between a patient and the	85
physician or dentist that are related to the action and obtained	86
by subpoena, search warrant, or other lawful means. A court that	87
permits or compels a physician or dentist to testify in such an	88
action or permits the introduction into evidence of patient	89
records or other communications in such an action shall require	90
that appropriate measures be taken to ensure that the	91
confidentiality of any patient named or otherwise identified in	92
the records is maintained. Measures to ensure confidentiality that	93
may be taken by the court include sealing its records or deleting	94
specific information from its records.	95

(e)(i) If the communication was between a patient who has	96
since died and the deceased patient's physician or dentist, the	97
communication is relevant to a dispute between parties who claim	98
through that deceased patient, regardless of whether the claims	99
are by testate or intestate succession or by inter vivos	100
transaction, and the dispute addresses the competency of the	101
deceased patient when the deceased patient executed a document	102
that is the basis of the dispute or whether the deceased patient	103
was a victim of fraud, undue influence, or duress when the	104
deceased patient executed a document that is the basis of the	105
dispute.	106

(ii) If neither the spouse of a patient nor the executor or	107
administrator of that patient's estate gives consent under	108
division (B)(1)(a)(ii) of this section, testimony or the	109
disclosure of the patient's medical records by a physician,	110
dentist, or other health care provider under division (B)(1)(e)(i)	111
of this section is a permitted use or disclosure of protected	112
health information, as defined in 45 C.F.R. 160.103, and an	113
authorization or opportunity to be heard shall not be required.	114

(iii) Division (B)(1)(e)(i) of this section does not require	115
a mental health professional to disclose psychotherapy notes, as	116
defined in 45 C.F.R. 164.501.	117

(iv) An interested person who objects to testimony or	118
disclosure under division (B)(1)(e)(i) of this section may seek a	119
protective order pursuant to Civil Rule 26.	120

(v) A person to whom protected health information is	121
disclosed under division (B)(1)(e)(i) of this section shall not	122
use or disclose the protected health information for any purpose	123
other than the litigation or proceeding for which the information	124
was requested and shall return the protected health information to	125
the covered entity or destroy the protected health information,	126
including all copies made, at the conclusion of the litigation or	127
proceeding.	128

(2)(a) If any law enforcement officer submits a written	129
statement to a health care provider that states that an official	130
criminal investigation has begun regarding a specified person or	131
that a criminal action or proceeding has been commenced against a	132
specified person, that requests the provider to supply to the	133
officer copies of any records the provider possesses that pertain	134
to any test or the results of any test administered to the	135
specified person to determine the presence or concentration of	136
alcohol, a drug of abuse, a combination of them, a controlled	137
substance, or a metabolite of a controlled substance in the	138
person's whole blood, blood serum or plasma, breath, or urine at	139
any time relevant to the criminal offense in question, and that	140
conforms to section 2317.022 of the Revised Code, the provider,	141
except to the extent specifically prohibited by any law of this	142
state or of the United States, shall supply to the officer a copy	143
of any of the requested records the provider possesses. If the	144
health care provider does not possess any of the requested	145
records, the provider shall give the officer a written statement	146
that indicates that the provider does not possess any of the	147
requested records.	148

(b) If a health care provider possesses any records of the	149
type described in division (B)(2)(a) of this section regarding the	150
person in question at any time relevant to the criminal offense in	151
question, in lieu of personally testifying as to the results of	152
the test in question, the custodian of the records may submit a	153
certified copy of the records, and, upon its submission, the	154
certified copy is qualified as authentic evidence and may be	155
admitted as evidence in accordance with the Rules of Evidence.	156
Division (A) of section 2317.422 of the Revised Code does not	157
apply to any certified copy of records submitted in accordance	158
with this division. Nothing in this division shall be construed to	159
limit the right of any party to call as a witness the person who	160
administered the test to which the records pertain, the person	161
under whose supervision the test was administered, the custodian	162
of the records, the person who made the records, or the person	163
under whose supervision the records were made.	164

(3)(a) If the testimonial privilege described in division	165
(B)(1) of this section does not apply as provided in division	166
(B)(1)(a)(iii) of this section, a physician or dentist may be	167
compelled to testify or to submit to discovery under the Rules of	168
Civil Procedure only as to a communication made to the physician	169
or dentist by the patient in question in that relation, or the	170
physician's or dentist's advice to the patient in question, that	171
related causally or historically to physical or mental injuries	172
that are relevant to issues in the medical claim, dental claim,	173
chiropractic claim, or optometric claim, action for wrongful	174
death, other civil action, or claim under Chapter 4123. of the	175
Revised Code.	176

(b) If the testimonial privilege described in division (B)(1)	177
of this section does not apply to a physician or dentist as	178
provided in division (B)(1)(c) of this section, the physician or	179
dentist, in lieu of personally testifying as to the results of the	180
test in question, may submit a certified copy of those results,	181
and, upon its submission, the certified copy is qualified as	182
authentic evidence and may be admitted as evidence in accordance	183
with the Rules of Evidence. Division (A) of section 2317.422 of	184
the Revised Code does not apply to any certified copy of results	185
submitted in accordance with this division. Nothing in this	186
division shall be construed to limit the right of any party to	187
call as a witness the person who administered the test in	188
question, the person under whose supervision the test was	189
administered, the custodian of the results of the test, the person	190
who compiled the results, or the person under whose supervision	191
the results were compiled.	192

(4) The testimonial privilege described in division (B)(1) of	193
this section is not waived when a communication is made by a	194
physician to a pharmacist or when there is communication between a	195
patient and a pharmacist in furtherance of the physician-patient	196
relation.	197

(5)(a) As used in divisions (B)(1) to (4) of this section,	198
"communication" means acquiring, recording, or transmitting any	199
information, in any manner, concerning any facts, opinions, or	200
statements necessary to enable a physician or dentist to diagnose,	201
treat, prescribe, or act for a patient. A "communication" may	202
include, but is not limited to, any medical or dental, office, or	203
hospital communication such as a record, chart, letter,	204
memorandum, laboratory test and results, x-ray, photograph,	205
financial statement, diagnosis, or prognosis.	206

(b) As used in division (B)(2) of this section, "health care	207
provider" means a hospital, ambulatory care facility, long-term	208
care facility, pharmacy, emergency facility, or health care	209
practitioner.	210

(c) As used in division (B)(5)(b) of this section:

211

(i) "Ambulatory care facility" means a facility that provides	212
medical, diagnostic, or surgical treatment to patients who do not	213
require hospitalization, including a dialysis center, ambulatory	214
surgical facility, cardiac catheterization facility, diagnostic	215
imaging center, extracorporeal shock wave lithotripsy center, home	216
health agency, inpatient hospice, birthing center, radiation	217
therapy center, emergency facility, and an urgent care center.	218
"Ambulatory health care facility" does not include the private	219
office of a physician or dentist, whether the office is for an	220
individual or group practice.	221

(ii) "Emergency facility" means a hospital emergency	222
department or any other facility that provides emergency medical	223
services.	224

(iii) "Health care practitioner" has the same meaning as in	225
section 4769.01 of the Revised Code.	226

(iv) "Hospital" has the same meaning as in section 3727.01 of	227
the Revised Code.	228

(v) "Long-term care facility" means a nursing home,	229
residential care facility, or home for the aging, as those terms	230
are defined in section 3721.01 of the Revised Code; an adult care	231
facility, as defined in section 3722.01 of the Revised Code; a	232
nursing facility or intermediate care facility for the mentally	233
retarded, as those terms are defined in section 5111.20 of the	234
Revised Code; a facility or portion of a facility certified as a	235
skilled nursing facility under Title XVIII of the "Social Security	236
Act," 49 Stat. 286 (1965), 42 U.S.C.A. 1395, as amended.	237

(vi) "Pharmacy" has the same meaning as in section 4729.01 of	238
the Revised Code.	239

(d) As used in divisions (B)(1) and (2) of this section,	240
"drug of abuse" has the same meaning as in section 4506.01 of the	241
Revised Code.	242

(6) Divisions (B)(1), (2), (3), (4), and (5) of this section	243
apply to doctors of medicine, doctors of osteopathic medicine,	244
doctors of podiatry, and dentists.	245

(7) Nothing in divisions (B)(1) to (6) of this section	246
affects, or shall be construed as affecting, the immunity from	247
civil liability conferred by section 307.628 of the Revised Code	248
or the immunity from civil liability conferred by section 2305.33	249
of the Revised Code upon physicians who report an employee's use	250
of a drug of abuse, or a condition of an employee other than one	251
involving the use of a drug of abuse, to the employer of the	252
employee in accordance with division (B) of that section. As used	253
in division (B)(7) of this section, "employee," "employer," and	254
"physician" have the same meanings as in section 2305.33 of the	255
Revised Code.	256

(C)(1) A cleric, when the cleric remains accountable to the	257
authority of that cleric's church, denomination, or sect,	258
concerning a confession made, or any information confidentially	259
communicated, to the cleric for a religious counseling purpose in	260
the cleric's professional character. The cleric may testify by	261
express consent of the person making the communication, except	262
when the disclosure of the information is in violation of a sacred	263
trust and except that, if the person voluntarily testifies or is	264
deemed by division (A)(4)(c) of section 2151.421 of the Revised	265
Code to have waived any testimonial privilege under this division,	266
the cleric may be compelled to testify on the same subject except	267
when disclosure of the information is in violation of a sacred	268
trust.	269

(2) As used in division (C) of this section:

270

(a) "Cleric" means a member of the clergy, rabbi, priest,	271
Christian Science practitioner, or regularly ordained, accredited,	272
or licensed minister of an established and legally cognizable	273
church, denomination, or sect.	274

(b) "Sacred trust" means a confession or confidential	275
communication made to a cleric in the cleric's ecclesiastical	276
capacity in the course of discipline enjoined by the church to	277
which the cleric belongs, including, but not limited to, the	278
Catholic Church, if both of the following apply:	279

(i) The confession or confidential communication was made	280
directly to the cleric.	281

(ii) The confession or confidential communication was made in	282
the manner and context that places the cleric specifically and	283
strictly under a level of confidentiality that is considered	284
inviolate by canon law or church doctrine.	285

(D) Husband or wife, concerning any communication made by one	286
to the other, or an act done by either in the presence of the	287
other, during coverture, unless the communication was made, or act	288
done, in the known presence or hearing of a third person competent	289
to be a witness; and such rule is the same if the marital relation	290
has ceased to exist;	291

(E) A person who assigns a claim or interest, concerning any	292
matter in respect to which the person would not, if a party, be	293
permitted to testify;	294

(F) A person who, if a party, would be restricted under	295
section 2317.03 of the Revised Code, when the property or thing is	296
sold or transferred by an executor, administrator, guardian,	297
trustee, heir, devisee, or legatee, shall be restricted in the	298
same manner in any action or proceeding concerning the property or	299
thing.	300

(G)(1) A school guidance counselor who holds a valid educator	301
license from the state board of education as provided for in	302
section 3319.22 of the Revised Code, a person licensed under	303
Chapter 4757. of the Revised Code as a professional clinical	304
counselor, professional counselor, social worker, independent	305
social worker, marriage and family therapist or independent	306
marriage and family therapist, or registered under Chapter 4757.	307
of the Revised Code as a social work assistant concerning a	308
confidential communication received from a client in that relation	309
or the person's advice to a client unless any of the following	310
applies:	311

(a) The communication or advice indicates clear and present	312
danger to the client or other persons. For the purposes of this	313
division, cases in which there are indications of present or past	314
child abuse or neglect of the client constitute a clear and	315
present danger.	316

(b) The client gives express consent to the testimony.

317

(c) If the client is deceased, the surviving spouse or the	318
executor or administrator of the estate of the deceased client	319
gives express consent.	320

(d) The client voluntarily testifies, in which case the	321
school guidance counselor or person licensed or registered under	322
Chapter 4757. of the Revised Code may be compelled to testify on	323
the same subject.	324

(e) The court in camera determines that the information	325
communicated by the client is not germane to the counselor-client,	326
marriage and family therapist-client, or social worker-client	327
relationship.	328

(f) A court, in an action brought against a school, its	329
administration, or any of its personnel by the client, rules after	330
an in-camera inspection that the testimony of the school guidance	331
counselor is relevant to that action.	332

(g) The testimony is sought in a civil action and concerns	333
court-ordered treatment or services received by a patient as part	334
of a case plan journalized under section 2151.412 of the Revised	335
Code or the court-ordered treatment or services are necessary or	336
relevant to dependency, neglect, or abuse or temporary or	337
permanent custody proceedings under Chapter 2151. of the Revised	338
Code.	339

(2) Nothing in division (G)(1) of this section shall relieve	340
a school guidance counselor or a person licensed or registered	341
under Chapter 4757. of the Revised Code from the requirement to	342
report information concerning child abuse or neglect under section	343
2151.421 of the Revised Code.	344

(H) A mediator acting under a mediation order issued under	345
division (A) of section 3109.052 of the Revised Code or otherwise	346
issued in any proceeding for divorce, dissolution, legal	347
separation, annulment, or the allocation of parental rights and	348
responsibilities for the care of children, in any action or	349
proceeding, other than a criminal, delinquency, child abuse, child	350
neglect, or dependent child action or proceeding, that is brought	351
by or against either parent who takes part in mediation in	352
accordance with the order and that pertains to the mediation	353
process, to any information discussed or presented in the	354
mediation process, to the allocation of parental rights and	355
responsibilities for the care of the parents' children, or to the	356
awarding of parenting time rights in relation to their children;	357

(I) A communications assistant, acting within the scope of	358
the communication assistant's authority, when providing	359
telecommunications relay service pursuant to section 4931.35 of	360
the Revised Code or Title II of the "Communications Act of 1934,"	361
104 Stat. 366 (1990), 47 U.S.C. 225, concerning a communication	362
made through a telecommunications relay service. Nothing in this	363
section shall limit the obligation of a communications assistant	364
to divulge information or testify when mandated by federal law or	365
regulation or pursuant to subpoena in a criminal proceeding.	366

Nothing in this section shall limit any immunity or privilege	367
granted under federal law or regulation.	368

(J)(1) A chiropractor in a civil proceeding concerning a	369
communication made to the chiropractor by a patient in that	370
relation or the chiropractor's advice to a patient, except as	371
otherwise provided in this division. The testimonial privilege	372
established under this division does not apply, and a chiropractor	373
may testify or may be compelled to testify, in any civil action,	374
in accordance with the discovery provisions of the Rules of Civil	375
Procedure in connection with a civil action, or in connection with	376
a claim under Chapter 4123. of the Revised Code, under any of the	377
following circumstances:	378

(a) If the patient or the guardian or other legal	379
representative of the patient gives express consent.	380

(b) If the patient is deceased, the spouse of the patient or	381
the executor or administrator of the patient's estate gives	382
express consent.	383

(c) If a medical claim, dental claim, chiropractic claim, or	384
optometric claim, as defined in section 2305.113 of the Revised	385
Code, an action for wrongful death, any other type of civil	386
action, or a claim under Chapter 4123. of the Revised Code is	387
filed by the patient, the personal representative of the estate of	388
the patient if deceased, or the patient's guardian or other legal	389
representative.	390

(2) If the testimonial privilege described in division (J)(1)	391
of this section does not apply as provided in division (J)(1)(c)	392
of this section, a chiropractor may be compelled to testify or to	393
submit to discovery under the Rules of Civil Procedure only as to	394
a communication made to the chiropractor by the patient in	395
question in that relation, or the chiropractor's advice to the	396
patient in question, that related causally or historically to	397
physical or mental injuries that are relevant to issues in the	398
medical claim, dental claim, chiropractic claim, or optometric	399
claim, action for wrongful death, other civil action, or claim	400
under Chapter 4123. of the Revised Code.	401

(3) The testimonial privilege established under this division	402
does not apply, and a chiropractor may testify or be compelled to	403
testify, in any criminal action or administrative proceeding.	404

(4) As used in this division, "communication" means	405
acquiring, recording, or transmitting any information, in any	406
manner, concerning any facts, opinions, or statements necessary to	407
enable a chiropractor to diagnose, treat, or act for a patient. A	408
communication may include, but is not limited to, any	409
chiropractic, office, or hospital communication such as a record,	410
chart, letter, memorandum, laboratory test and results, x-ray,	411
photograph, financial statement, diagnosis, or prognosis.	412

(K)(1) Except as provided under division (K)(2) of this	413
section, a critical incident stress management team member	414
concerning a communication received from an individual who	415
receives crisis response services from the team member, or the	416
team member's advice to the individual, during a debriefing	417
session.	418

(2) The testimonial privilege established under division	419
(K)(1) of this section does not apply if any of the following are	420
true:	421

(a) The communication or advice indicates clear and present	422
danger to the individual who receives crisis response services or	423
to other persons. For purposes of this division, cases in which	424
there are indications of present or past child abuse or neglect of	425
the individual constitute a clear and present danger.	426

(b) The individual who received crisis response services	427
gives express consent to the testimony.	428

(c) If the individual who received crisis response services	429
is deceased, the surviving spouse or the executor or administrator	430
of the estate of the deceased individual gives express consent.	431

(d) The individual who received crisis response services	432
voluntarily testifies, in which case the team member may be	433
compelled to testify on the same subject.	434

(e) The court in camera determines that the information	435
communicated by the individual who received crisis response	436
services is not germane to the relationship between the individual	437
and the team member.	438

(f) The communication or advice pertains or is related to any	439
criminal act.	440

(3) As used in division (K) of this section:

441

(a) "Crisis response services" means consultation, risk	442
assessment, referral, and on-site crisis intervention services	443
provided by a critical incident stress management team to	444
individuals affected by crisis or disaster.	445

(b) "Critical incident stress management team member" or	446
"team member" means an individual specially trained to provide	447
crisis response services as a member of an organized community or	448
local crisis response team that holds membership in the Ohio	449
critical incident stress management network.	450

(c) "Debriefing session" means a session at which crisis	451
response services are rendered by a critical incident stress	452
management team member during or after a crisis or disaster.	453

(L)(1) Subject to division (L)(2) of this section and except	454
as provided in division (L)(3) of this section, an employee	455
assistance professional, concerning a communication made to the	456
employee assistance professional by a client in the employee	457
assistance professional's official capacity as an employee	458
assistance professional.	459

(2) Division (L)(1) of this section applies to an employee	460
assistance professional who meets either or both of the following	461
requirements:	462

(a) Is certified by the employee assistance certification	463
commission to engage in the employee assistance profession;	464

(b) Has education, training, and experience in all of the	465
following:	466

(i) Providing workplace-based services designed to address	467
employer and employee productivity issues;	468

(ii) Providing assistance to employees and employees'	469
dependents in identifying and finding the means to resolve	470
personal problems that affect the employees or the employees'	471
performance;	472

(iii) Identifying and resolving productivity problems	473
associated with an employee's concerns about any of the following	474
matters: health, marriage, family, finances, substance abuse or	475
other addiction, workplace, law, and emotional issues;	476

(iv) Selecting and evaluating available community resources;

477

(v) Making appropriate referrals;

478

(vi) Local and national employee assistance agreements;

479

(vii) Client confidentiality.

480

(3) Division (L)(1) of this section does not apply to any of	481
the following:	482

(a) A criminal action or proceeding involving an offense	483
under sections 2903.01 to 2903.06 of the Revised Code if the	484
employee assistance professional's disclosure or testimony relates	485
directly to the facts or immediate circumstances of the offense;	486

(b) A communication made by a client to an employee	487
assistance professional that reveals the contemplation or	488
commission of a crime or serious, harmful act;	489

(c) A communication that is made by a client who is an	490
unemancipated minor or an adult adjudicated to be incompetent and	491
indicates that the client was the victim of a crime or abuse;	492

(d) A civil proceeding to determine an individual's mental	493
competency or a criminal action in which a plea of not guilty by	494
reason of insanity is entered;	495

(e) A civil or criminal malpractice action brought against	496
the employee assistance professional;	497

(f) When the employee assistance professional has the express	498
consent of the client or, if the client is deceased or disabled,	499
the client's legal representative;	500

(g) When the testimonial privilege otherwise provided by	501
division (L)(1) of this section is abrogated under law.	502

(M)(1) Except as provided in division (M)(2) of this section	503
and subject to division (M)(3) of this section, a representative	504
of an employee organization, in any civil, criminal, or	505
administative action or proceeding, concerning a communication	506
between the representative and a bargaining unit member made	507
while the representative was acting in a representative capacity	508
on behalf of the employee organization.	509

(2) The testimonial privilege established under division	510
(M)(1) of this section does not apply, and a representative of an	511
employee organization may testify, under any of the following	512
circumstances:	513

(a) If and to the extent the testimony appears necessary to	514
prevent the commission of a crime that is likely to create a	515
clear, imminent risk of serious physical harm to or death of	516
another person;	517

(b) In a civil or criminal action against the representative	518
in the representative's personal or representative capacity,	519
against the employee organization or an affiliate of the employee	520
organization, or against any representative of the employee	521
organization in the representative's representative capacity;	522

(c) If required to do so by court order;

523

(d) With the express consent of the bargaining unit member,	524
the guardian or other legal representative of the bargaining unit	525
member, or if the bargaining unit member is deceased, the spouse,	526
executor, or administrator of the bargaining unit member.	527

(3) If there is a conflict between division (M)(1) or (2) of	528
this section and any federal or state labor law with regard to a	529
specific situation, the provisions of the federal or state labor	530
law shall control.	531

(4) As used in division (M) of this section, "employee	532
organization" means any labor union or bona fide organization in	533
which employees participate and that exists for the purpose, in	534
whole or in part, of dealing with employers concerning grievances,	535
labor disputes, wages, hours, terms, and other conditions of	536
employment.	537

Section 2. That existing section 2317.02 of the Revised Code	538
is hereby repealed.	539