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The Legal and Ethical High Road at LSU

I read the Spectrum articles and some of the blog comments on the resignations of the La Sierra University four.  I have also read California Penal Code § 632, the criminal statute that was analyzed by Jan Long in his article.  I would add the following comments to this discussion. 

The CA criminal statute does make it a crime for ” [e]very person who, intentionally and without the consent of all parties to a confidential communication, by means of any … recording device, … records the confidential communication ….”  § 632(a).  “Confidential communication” is a defined term.  It “includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto ….” but does not include communications made under any “circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.” § 632(c).

The existence of this criminal statute is significant in that it codifies California’s public policy that recognizes that communications that occur under “circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto” are to be treated as such by the State and by its citizens. The fact that the recording of the conversation at the home was not intentional, and therefore not criminal, does not undermine the State’s public policy.

Here, the circumstances evidence that the parties to the communication desired their conversation to be confidential and confined to those present. The strongest evidences of that are the very comments made by the four friends that the church leaders found offensive. Those comments indicate a level of mutual trust between the four friends that such comments could be made in confidence with one another and with the unspoken belief that the comments would not be recorded and shared with others. This would appear to be beyond dispute.

The Office of General Counsel for the General Conference of Seventh-day Adventists should have been consulted by those at the church headquarters who received and transcribed the recording.  I would have expected that the GC’s General Counsel would have researched applicable California statutes and would have advised against using the taped recording to force the resignations of the four men involved since neither the Church nor LSU would want to act contrary to the stated public policy of California, even if the offensive statements were contrary to the Church’s policy and beliefs. I could understand Church/University leaders meeting with and counseling the four men about what the Church considered to be inappropriate language and conduct, but the four men should also have been advised that no disciplinary action would be taken because the Church and University recognized and respected the privacy rights of its employees and members.

An apt analogy would be when an attorney discloses to opposing counsel during discovery a document that is obviously a confidential communication between the disclosing attorney and his client and, therefore, is privileged and not subject to discovery. Any ethical attorney who receives such a document would forthrightly notify opposing counsel informing him/her about the inadvertent disclosure. The privileged confidential communication would be either returned or destroyed, together with whatever copies had been made, and would never be used in the litigation. Those are the ethics of trial lawyers. It would seem appropriate to expect nothing less of legal counsel for the church and the university.

It is unfortunate that the men did not have the presence of mind to say that they wanted to consult with an attorney before they signed the letters of resignation. These letters of resignation had been prepared to appear to others as though the letters were signed voluntarily when, in fact, the letters were signed under duress with the implied threat that the transcribed recording would be used as a basis for terminating their employment if the letters were not signed. Of course, there would be the implicit, if not stated, possibility that the letters would become public.

This is an unfortunate occurrence for the four men, the university and the church. Hopefully, the university and the church will have the internal integrity to examine carefully how this matter was handled, to assess whether their conduct was ethically appropriate and defensible, to determine if there should be reconsideration of actions taken, and to carefully consider how their past and future actions should be explained to the university community and to church members. As we were all taught by the church, it is never too late to make amends. This may be an occasion when the church and its institutions need to abide by that wisdom which we all were taught exemplified Adventism and Christianity. This may be an occasion for the church and the university to take the high road especially when their actions and conduct affected not only the four men involved, but has the potential to affect all church members, including those who support and defend the actions of the church and the university.  A balance must exist between what actions are taken to protect church institutional policies or beliefs and the ethics of all those involved.

I will leave it to others to decide if legal recourses could or should be explored, but I would hope that respectful conversations between those involved might resolve this matter and render legal recourses unnecessary.

Glenn E. Coe, Esq., is the Senior Litigation Principal at Rome McGuigan, P.C. in Hartford, CT.

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