Privacy Issues in the Community College Workplace

recording or intercepting of certain communications. Certain law enforcement officers are exempt from these provisions. In addition, these exemptions have been extended to POST- certified police chiefs, assistance police chief or police officers of a university or college campus who are acting within the scope of their authority and provided they overhear and record communications, within certain parameters, during a criminal investigation related to sexual assault or another sexual offense.

Telish v. California State Personnel Bd. 442 This case involved a Senior Special Agent in Charge at the Bureau of Narcotics Enforcement’s L.A. Interagency Metropolitan Police Apprehension Task Force (“LA IMPACT”) who threatened to post on-line sexually explicit photographs that he had taken of an employee that he supervised unless she recanted her statements about a consensual sexual relationship that she had with him. When the employee eventually reported the threat and another incident to her boss, the boss reported the incidents to the DOJ and solicited the assistance of the employee in recording the statements of the senior agent about their relationship. The court determined that the recordings did not violate Penal Code section 632, even though they were done without the consent and knowledge of one of the senior agent, because they were done at the direction of law enforcement as part of a criminal investigation. The evidence was then used as part of an administrative proceeding to terminate the senior agent. The court permitted the evidence to be used in the administrative proceeding because it had been obtained lawfully for the criminal investigation and nothing in the statute restricted how the information could be used once it was lawfully obtained. Moser v. Las Vegas Metropolitan Police Department 443 This case involved a SWAT sniper who commented on a friend’s Facebook post which linked to an article about a 2015 shooting of a police officer where the suspect was later arrested. He wrote, “It’s a shame he didn’t have a few holes in him.” An anonymous tip came in about the post, there was an internal investigation, and the officer was transferred out of SWAT and put back on patrol. The department felt that his comment showed he had become “a little callous to killing.” The SWAT sniper filed a lawsuit against the department alleging they had retaliated against him for speech protected under the First Amendment. The court in Moser analyzed the test the U.S. Supreme Court developed to address public employee First Amendment claims against their employers: (a) the employee spoke on a matter of public concern; (b) the employee spoke as a private citizen rather than a public employee; and (c) the employee’s speech was a substantial factor in discipline. If the employee makes this showing, the burden shifts to the employer to demonstrate that its legitimate administrative interests outweighed the employee’s First Amendment rights. If the employer

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