Decision Number 972

Request from the California-Pacific Annual Conference for a Declaratory Decision on the Meaning, Application and Effect of ¶ 359 As Related to the Right of Persons To Be Accompanied by Another Person to Any Hearings.

Digest

Where administrative or judicial proceedings are pending, a clergy person has the right to select, and when warranted change, his or her advocate. All persons involved in administrative or judicial proceedings are bound by confidentiality.

Statement of Facts

At the 2003 session of the California- Pacific Annual Conference two clergy members requested that the annual conference ask the Judicial Council for a declaratory decision related to the right of persons who have administrative complaints filed against them to be accompanied by another person to any hearings under ¶ 359.2. The California-Pacific Annual Conference in the usual business of the session voted to ask the Judicial Council for such a decision. The question presented to the Annual Conference was:

Par. 359.1b of the Discipline states: "the person against whom the complaint was made may choose another person to accompany him/her with the right to voice." Provisions for Fair Process in Administrative Hearings (¶359.2c) and for Fair Process in Judicial Proceedings (¶2701.3) both allow respondents the "right to be accompanied by a clergy person in full connection to any hearing, in accordance with the appropriate disciplinary provisions. The clergyperson accompanying the respondent shall have the right to voice (or advocacy)." These provisions imply that the respondent may choose his or her advocate/counsel who may appear with him or her. ¶ 2706.2 specifically states that a respondent may choose the clergyperson in full connection to serve as respondents [sic] counsel. Does all of this imply that the respondent may choose his/her advocate/counsel, and also choose to change whom his advocate/ counsel may be at any stage in the complaint/investigation proceedings (up to the commencement of a trial), on the respondents [sic] own motion; as long as a clergyperson who once served as respondent's advocate/counsel and was replaced by another remains bound by the disciplinary provisions for confidentiality in the hearings in which s/he participated [Judicial Council Decision 751]?

Jurisdiction

The Judicial Council has jurisdiction under ¶ 2610 of the 2000 Discipline.

Analysis and Rationale

The purpose of administrative and judicial procedures is to resolve matters with fairness, confidentiality and uniformity. Here we balance a respondent's fair process rights with the concern for confidentiality and uniformity in administrative and judicial procedures. Pars. 359.1b, 359.2c and 2701.3 all provide that a respondent in an administrative or judicial hearing has the right to be accompanied by another person with voice and the right of advocacy.

The central question is whether a respondent has the right to choose his or her advocate and whether such a representative may be changed at any step during the complaint process. The nature of advocacy and representation suggests that a clergy person is free to choose any person who fulfills the disciplinary requirements to serve as his or her advocate in an administrative or judicial hearing.

There may be instances where a clergyperson is forced to replace his or her advocate. Matters such as health, work demands or conflicts in philosophy could potentially create the need for changing an advocate during administrative or judicial proceedings. Confidentiality must be maintained in administrative and judicial proceedings as delineated in Decision 751. In weighing the concern for confidentiality, it is conceivable that involving greater numbers of persons in the hearing process increases the potential for breaches of confidentiality. However, as a covenant community, it is assumed that persons will honor the requirement of confidentiality in such hearings and procedures. A respondent does have the right to select his or her advocate and change that person when circumstances dictate. Such changes should never impede the orderly process of administrative and judicial hearings.

Decision

Where administrative or judicial proceedings are pending, a clergy person has the right to select, and when warranted change, his or her advocate. All persons involved in administrative or judicial proceedings are bound by confidentiality.

Sally Brown Geis was absent.