In churches, risk management often falls to one staff member or lay leader. This may occur because of a lack of manpower. Sometimes, it may occur because risk management is viewed as a lower priority than other ministry initiatives.
But as recent headlines suggest, churches may no longer have the ability to keep risk management confined to one person, or as a moderate priority to be addressed as time and resources allow. With increasing attention and scrutiny placed on institutions and organizations for the health and well-being of those entrusted to their care, churches must more effectively demonstrate the measures taken to prevent an incident from taking place.
To not do so may result in serious repercussions, including an incident in which someone is harmed, or in criminal and civil charges stemming from an allegation that could expose the church, its pastor and staff, even its board, to substantial liability.
A prime recent example of this reality is the child molestation scandal at Pennsylvania State University. The current and potential civil claims now faced by the institution, as well as staff and board members, are extensive. And had the university implemented a more comprehensive risk management strategy, particularly with respect to the protection and supervision of minors and those who work with them, harmful incidents of abuse may have been avoided. In the ensuing investigation of the scandal, numerous recommendations were made to address gaps and oversights. For churches, these recommendations offer a unique opportunity to learn and to review and update their own policies and strategies. Doing so not only may avoid a future incident, but also may more effectively protect their ministries, staff members, volunteers, and board members from unnecessary liabilities.
The Report's Findings
On November 4, 2011, the Attorney General of the Commonwealth of Pennsylvania filed criminal charges against Jerry Sandusky that included multiple counts of child molestation. Several of the offenses occurred between 1998 and 2002, during which time Sandusky was the defensive coordinator for the Penn State University football team with unrestricted access to the university's football facilities. On June 22, 2012, a jury found Sandusky guilty of 45 counts of the criminal charges against him.
In the days and weeks surrounding the announcement of the charges, the university's board of trustees struggled to decide how to respond to the scandal. On November 11, 2011, the Trustees appointed a Special Investigations Task Force under the direction of Special Investigative Counsel and former FBI director Louis Freeh to perform an independent, full, and complete investigation of:
- The alleged failure of Penn State personnel to respond to, and report to the appropriate authorities, the sexual abuse of children by Sandusky;
- The circumstances under which such abuse could occur in university facilities or under the auspices of university programs for youth.
In addition, the Special Investigative Counsel was asked to provide recommendations regarding university governance, oversight, and administrative policies and procedures that will better enable the university to prevent, and more effectively respond to, future incidents of sexual abuse of minors.
The Special Investigative Counsel implemented the investigative plan by:
- Conducting more than 430 interviews of key university personnel and other knowledgeable individuals, including current and former university administrators, faculty, staff, and coaches; former university student-athletes; and law enforcement officials;
- Analyzing more than 3.5 million pieces of pertinent electronic data and documents;
- Reviewing applicable university policies, guidelines, practices, and procedures;
- Cooperating with law enforcement, government, and non-profit agencies, including the National Center for Missing and Exploited Children (NCMEC), and athletic program governing bodies;
- Benchmarking applicable university university policies, practices, and procedures against those of other large, public and private universities and youth-serving organizations; and
- Providing interim recommendations to the university board in January 2012 for the immediate protection of children.
The task force, which included former federal prosecutors and FBI agents, represents the most competent and professional body ever assembled to formulate risk management strategies to reduce the risk of child molestation in child-serving charities. Its findings almost certainly will be cited by attorneys representing victims of child molestation in attempting to demonstrate negligence on the part of churches, schools, and other youthserving charities in not implementing or updating procedures to adequately protect minors. For this reason, it is important for church leaders to be familiar with the task force's recommendations, and to use them in implementing, or revising, appropriate procedures and safeguards.
The task force issued its final report in July 2012. The report contained 120 recommendations to assist university administrators, faculty, staff, and the board in improving how they govern and provide protection for children in university facilities and programs. These recommendations relate to the university's administrative structure, policies, and procedures; the responsibilities and operations of the board; the identification of risk; compliance with federal and state statutes, such as reporting misconduct; the integration of the athletic department into the greater university community; the management of programs for non-student minors; and the management of access to university facilities. The key recommendations are summarized in Table 1.
Policies Referenced in the Freeh Report
The Freeh report references two Penn State policies—one old, one new—that address the protection of minors from abuse. These policies, like the Freeh report itself, contain helpful information for churches in assessing their own policies. The two Penn State policies are summarized below.
Policy 39: Minors Involved in University- Sponsored Programs or Programs Held at University Facilities
The Penn State policy on minors involved in university-sponsored programs or youth programs held at the university or housed in university facilities was created in October 1992 and is closely aligned with the nationally accepted American Camping Association Standards. The purpose of the policy is "to provide for appropriate supervision of minors who are involved in Universitysponsored programs, programs held at the University or programs housed in University facilities at all geographic locations."
The policy addresses:
- background clearances;
- codes of conduct;
- legal consents;
- medical information;
- counselor/staff member training;
- adult-to-participant ratios; and
- child abuse and mandated reporting procedures.
Policy 39 also applies to any external organization that uses university facilities for youth activities through a Memorandum of Agreement ("MOA").
All of these issues are of direct relevance to churches, and so the Penn State policy should be viewed as a resource to be consulted by church leaders in drafting or revising their own child protection policies.
Summarized below are the main provisions in Policy 39:
A sponsoring unit offering or approving a program which involves minors or provides University housing for minors participating in a program, or a non-University group being sponsored for a program, whether utilizing University housing or not, shall:
1. Establish a procedure for the notification of the minor's parent/ legal guardian in case of an emergency, including medical or behavioral problem, natural disasters, or other significant program disruptions. Authorized Adults with the program, as well as participants and their parents/legal guardians, must be advised of this procedure in writing prior to the participation of the minors in the program.
Table 1: Recommendations of the Freeh Report
|1. Continue to benchmark the university's practices and policies with other similarly situated institutions, focus on continuous improvement, and make administrative, operational, or personnel changes when warranted.||It is often helpful for churches to consider the policies of other youth-serving charities, including the public schools (which are run by the state), in composing their own policies addressing the protection of children. By aligning its practices with those of these other charities and organizations, a church can more readily establish its exercise of reasonable care, which will make it less likely that it will be found liable on the basis of negligent selection of supervision for injuries to minors.|
|2. Communicate regularly with university students, faculty, staff, alumni, and the community regarding significant university policies and issues through a variety of methods and media.||When formulating policies for the protection of minors, it is helpful to involve both board members and members at large, and to communicate policies to the membership on the church's website, in annual membership meetings, or by other means. Policies that are widely disseminated are more likely to be consistently enforced.|
|3. Develop a mechanism to provide and track all employee training mandated by state and federal law and university policies.||Churches should periodically train employees and volunteers who work with minors on their child protection policies.|
|4. Update, standardize, centralize, and monitor background check procedures.||The Freeh report views background checks as a central component of risk management. Church leaders should do the same. The report makes it more likely that churches failing to implement a risk management program (that includes background checks) for the protection of minors will be found liable on the basis of negligence for cases of child molestations.|
|5. Require updated background checks for employees, contractors, and volunteers at least every five years.||Church leaders often ask how often background checks should be repeated. Some churches never repeat background checks, assuming that it is highly unlikely that an employee or volunteer who has been previously screened could commit a crime involving child molestation, be prosecuted and convicted, and be placed on a sex offender registry without anyone in the church being aware of it. Other churches take a more aggressive position and repeat background checks periodically. Note the following three points:
• As noted above, it is helpful for churches to ascertain the practices of other youth-serving charities, including the public schools. If none of them conducts repeat background checks, this makes it less likely (but not impossible) that a church that follows a similar practice would be found negligent.
• The Freeh report does not clarify what it means by "background check." This term can be interpreted to mean a criminal records check, or reference checks and other screening procedures, or both. The report references a new Penn State policy defining a "standard" background check as a criminal history check, a sex and violent offender registry check, plus the following additional components for specific positions based on job-related need: educational verification (required for all academic positions); motor vehicle record (required for positions where it can be regularly anticipated that a responsibility of the position will be to drive a university-owned vehicle); credit history check (conducted only for sensitive/critical positions with extensive authority to commit financial resources of the university); employment verifications and license verification as needed, based on job requirements. Presumably, the report's recommendation that background checks be repeated every five years applies to these reports.
• The Freeh report's recommendation that background checks be repeated every five years represents a clearly articulated standard that courts may apply in future cases involving negligence claims against churches and other youth-serving charities by victims of child abuse.
|6. Periodically audit the effectiveness of background check procedures.||Church leaders should periodically review the effectiveness of their background check procedures. This can be accomplished in several ways, including periodic review of the procedures utilized by other youth-serving charities (including the public schools), and periodic evaluation of the competence of the criminal records search vendor used by the church. This may include Internet research, ascertaining what service other churches are using, and soliciting the input of the church insurance company, local law enforcement, and legal counsel, and contacts with other churches and charities.|
|7. Develop a procedure to ensure that the university immediately retrieves keys and access cards from unauthorized persons.||Churches should ensure that keys, keypad cards, or other means of accessing church property are returned by employees and volunteers who resign or are terminated. In addition, keypad access codes should be periodically changed.|
|8. Select and hire a permanent general counsel.||prohibitedFew churches have the resources or inclination to hire a full-time legal counsel. But, it is desirable for churches to establish a relationship with an attorney to whom it can turn for guidance in situations in which legal counsel is needed. Such a relationship will familiarize the attorney with the church, its leadership, and practices, which will greatly facilitate the attorney's counsel.|
|9. Periodically review all university policies for relevance, utility, and necessity, and modify or rescind as appropriate.||Always a good idea and best practice.|
|10. Establish a committee on risk.||Always a good idea and best practice. Such a committee should have access to our website, churchlawandtax.com, which contains a wealth of information on risk management. Familiarity with reducingtherisk.com also would be helpful.|
|11. Require timely briefings to the board on potential problem areas, such as unusual severance or termination payments, staff appointments, settlement agreements, government inquiries, important litigation, and whistleblower complaints.||The point here is that many legal risks can be mitigated or avoided if disseminated to a charity's governing board, since this will broaden the pool of expertise that will formulate a response to the risk. Risk management generally is enhanced by decentralizing its formulation, as opposed to limiting analysis and responses to one or a few persons.|
|12. Increase the physical security and access procedures in areas frequented by children or used in camps and programs for children.||Always a good idea and best practice. This should be periodically done.|
|13. Require and provide abuse awareness and mandatory reporter training to all university leaders, including faculty, coaches and other staff, volunteers, and interns.||Always a good idea and best practice. Note that the Freeh report extends mandatory reporter training to volunteers.|
|14. Update, revise, or create policies for unaccompanied children at university facilities, housing, and university programs.||Always a good idea and best practice. As noted above, it is also advisable for church leaders to "benchmark" their policies by comparing them with the policies of other youth-serving charities, including the public schools.|
|15. Enforce all policies relating to non-student minors involved in university programs at all Penn State campuses.||This recommendation would apply to any church having more than one campus (such as a school in a separate building or a church with multiple sites).|
|16. Assist the university's camp and youth program administrators in ensuring that staff and volunteers are appropriately supervised.||Always a good idea and best practice. As noted above, it is also advisable for church leaders to "benchmark" their policies by comparing them with the policies of other youth-serving charities, including the public schools.|
|17. Provide information to parents of non-student minors involved in university programs regarding the university's safety protocols and reporting mechanisms for suspicious or improper activity.||Always a good idea and best practice. As noted above, it is also advisable for church leaders to "benchmark" their policies by comparing them to the policies of other youth-serving charities, including the public schools.|
2. Provide information to parent or legal guardian detailing the manner in which the participant can be contacted during the program.
3. Provide a Medical Treatment Authorization form to the campus unit responsible for health services. Any request to amend the approved form must be approved by the Director of University Health Services prior to its distribution or use. All forms must include the following:
- Items to be included in a medical authorization form for activities involving minors. Many churches use these forms, and struggle with the terms to include.
- The administration of medicines to minors during university activities and programs. This, too, is a relevant issue for many churches.
- Steps to take to ensure the proper supervision of minors.
- The rules and disciplinary measures that apply to a program or activity involving minors.
- Media releases for photos and videos depicting minors participating in programs, which should be obtained from parents and guardians during the registration process.
- Liability releases to be obtained from parents and guardians during the registration process.
- Adults who have direct contact with minors are required to have a current background check on record with the university at the time of beginning work with minors.
- Ratios for the number of adults to minors for both overnight and single-day events.
- Training of adult counselors at events involving minors.
- Two-adult rule, meaning that there must be two or more authorized adults present during activities where minors are present.
- Authorized adults shall not have any direct electronic contact with minors without another authorized adult being included in the communication.
- In the case of adults supervising minors overnight, authorized adults should not enter a minor's room, bathroom facility, or similar area without another authorized adult in attendance, consistent with the policy of not having oneon- one contact with minors.
- Separate accommodations for adults and minors are required other than the minors' parents or guardians.
- Adults are prohibited from administering corporal punishment to minors.
- Adults are prohibited from picking up minors from, or dropping them off at, their homes, other than the driver's child, except as specifically authorized in writing by the minor's parent or legal guardian.
- Authorized adults cannot provide prescription drugs or any medication to any minor unless specifically authorized in writing by the parent or legal guardian as being required for the minor's care or the minor's emergency treatment.
- Every university employee and volunteer is required to have a "standard" background check consisting of the following two elements: (1) a criminal history check, and (2) a sex and violent offender registry check.
- The existence of a criminal conviction does not automatically disqualify an individual from employment or employment consideration. The university will consider: (1) the nature and gravity of the offense(s); (2) time since conviction; (3) completion of sentence or any other remediation; (4) relevance to the position for which the candidate is being considered; and (5) discrepancies between the background check and what the candidate selfreported.
- Volunteers working with minors must have successful background checks dated within six months prior to the initial date of assignment.
- Penn State retains the right to conduct relevant background checks of current employees when it has reasonable grounds to do so.
- All individuals engaged by the university (whether paid or unpaid) are required to disclose any criminal activities with which they are charged. Failure to report such incidents may result in disciplinary action up to and including termination. Information will be used only if job-related and will not necessarily affect employment.
- Positions where it can be regularly anticipated that a responsibility of the position will be to drive a university-owned vehicle, or where an individual may be asked to transport minors, must pass a motor vehicle record check. Motor vehicle checks will be updated every three years for positions, as relevant. Employees must disclose any arrests or convictions for driving while under the influence or the loss of the individual's driver's license due to traffic violations or other similar charges. This disclosure must be made within 72 hours of occurrence. Such convictions may subject the employee or individual to discipline, up to and including termination. Failure to report such incidents may result in disciplinary action up to and including termination.
- The following are among the factors that Human Resources will consider when evaluating the results of the background screening check: (1) nature and gravity of the offense(s); (2) time since conviction, completion of sentence or any other remediation; (3) relevancy to the position for which the candidate is being considered/employee is performing; and (4) discrepancies between the background check and what the candidate/employee self-reported.
4. Follow guidance from University Health Services concerning communicable diseases.
5. Participants' medicines may be distributed by program staff, under the following conditions:
a. The participant's family provides the medicine in its original pharmacy container labeled with the participant's name, medicine name, dosage and timing of consumption. Over-thecounter medications must be provided in their manufacturers' container.
b. Staff shall keep the medicine in a secure location, and at the appropriate time for distribution shall meet with the participant.
c. The staff member shall allow the participant to self-administer the appropriate dose as shown on the container.
d. Any medicine which the participant cannot selfadminister, must be stored and administered by a licensed healthcare professional associated with the campus or, if no one is available, arrangements must be made with another health care professional in advance of the participant's arrival. The event coordinator should consult with the location's health service and the Office of Affirmative Action ADA Coordinator to discuss reasonable accommodations in the above situation.
e. Personal "epi" pens and inhalers may be carried by the participant during activities.
6. Ensure adequate supervision of minors while they are on University property. All activities involving minors must be supervised by at least two or more Authorized Adults or by their parent(s) or legal guardian(s) at all times. Some of the factors to consider in determining "adequate supervision" are the number and age of participants, the activity(ies) involved, type of housing if applicable, and age and experience of the counselors.
When Penn State students are hosting High School students, including prospective athletes, participating in pre-enrollment visitation, the requirement for two Authorized Adults will be waived. The requirement also does not apply to licensed psychologists providing psychological and counseling services to minors.
All supervised participants in a University program or a program taking place on University property are permitted in the general use facilities [e.g. athletic fields, public spaces, academic buildings] but may be restricted from certain areas of the facilities [e.g. storage rooms, equipment rooms, athletic training rooms, staff/faculty offices] or from utilizing certain equipment.
7. Develop and make available to participants the rules and discipline measures applicable to the program. Program participants and staff must abide by all University regulations and may be removed from the program for non-compliance with rules. The following must be included in program rules:
8. Obtain all media and liability releases as part of the program registration process. All data gathered shall be confidential, is subject to records retention guidelines, and shall not be disclosed, except as provided by law.
9. Assign a staff member who is at least 21 years of age to be accessible to participants. The staff member must reside in the housing unit, if applicable. Additional Authorized Adults will be assigned to ensure one-on-one contact with minors does not occur and that appropriate levels of supervision are implemented.
10. All Authorized Adults who have direct contact with minors are required to have a current background check on record with the University at the time of hire and/ or beginning work with minors. This background check must be reviewed and approved by the applicable Human Resources department prior to being hired and/or working with minors.
New hires will be required to complete the University background check process at the time of hire.
All other individuals must complete the University background check process or provide evidence of completion of PA State Criminal History Record, PA Department of Public Welfare Child Abuse Report and FBI criminal history report clearance dated within 6 months of the initial date of assignment. This includes current employees who have not previously had a background check completed, as well as all other individuals, paid or unpaid.
All Authorized Adults must also complete a self-disclosure form confirming that they have disclosed any arrests and/or convictions that have occurred since the date of a background check and/or clearance and will disclose any arrest and/or convictions within 72 hours of their occurrence. The cost for completion of PA State Criminal History Record, PA Department of Public Welfare Child Abuse Report, and FBI criminal history report clearances for nonemployees will be the responsibility of the individual unless specifically authorized for processing and/or payment by the hiring unit.
11. If applicable, require the program to adopt and implement rules and regulations for proper supervision of minors in University housing. The following must be included:
12. Require the program to provide and supervise trained counselors (also considered to be Authorized Adults) who must be at least 18 years of age, in accordance with the following:
a. The ratio of counselors to program participants must reflect the gender distribution of the participants, and should meet the following:
Standards for resident camps are:
• One staff member for every five campers ages 4 and 5
• One staff member for every six campers ages 6 to 8
• One staff member for every eight campers ages 9 to 14
• One staff member for every 10 campers ages 15 to 17
Standards for day camps are:
• One staff member for every six campers ages 4 and 5
• One staff member for every eight campers ages 6 to 8
• One staff member for every ten campers ages 9 to 14
• One staff member for every twelve campers ages 15 to 17
b. Training for the counselors must include, at a minimum, information about responsibilities and expectations; policies, procedures, and enforcement; appropriate crisis/emergency responses; safety and security precautions; confidentiality issues involving minors; and University responsibility/ liability. Counselors must know how to request local emergency services and how to report suspected child abuse (counselors are considered to be mandatory reporters as defined by Pennsylvania law).
c. Responsibilities of the counselors must include, at a minimum, informing program participants about safety and security procedures, University rules, rules established by the program, and behavioral expectations. Counselors are responsible for following and enforcing all rules and must be able to provide information included herein to program participants and be able to respond to emergency(ies).
13. Each Authorized Adult, who will be participating in a program covered by this Policy shall attend annual mandatory training on the conduct requirements of this Policy, on protecting participants from abusive emotional and physical treatment, and on appropriate or required reporting of incidents of improper conduct to the proper authorities including, but not limited to, appropriate law enforcement authorities. If a program participant discloses any type of assault or abuse (at any time previously or during the program), or an Authorized Adult has reason to suspect that the participant has been subject to such assault or abuse, the Authorized Adult, as a mandatory reporter should [immediately comply with state child abuse reporting requirements].
The term "Authorized Adult" occurs frequently in the policy. It is defined as follows: "Individuals, age 18 and older, paid or unpaid, who interact with, supervise, chaperone, or otherwise oversee minors in program activities, or recreational, and/or residential facilities. This includes but is not limited to faculty, staff, volunteers, graduate and undergraduate students, interns, employees of temporary employment agencies, and independent contractors/consultants. The Authorized Adults' roles may include positions as counselors, chaperones, coaches, instructors, etc. Authorized Adults are considered to be mandated reporters as defined by Pennsylvania law. Further guidance on mandated reporters is provided in University Human Resources policy(ies)."
14. Authorized Adults participating in programs and activities covered by this Policy shall not:
15. If an allegation of inappropriate conduct has been made against an Authorized Adult participating in a program, s/he shall discontinue any further participation in programs and activities covered by this Policy until such allegation has been satisfactorily resolved.
Authorized personnel/signatories for non-University groups using University facilities must provide to the sponsoring unit satisfactory evidence of compliance with all of the requirements of this Policy at least thirty (30) days prior to the scheduled use of University facilities, as well as sign an approved agreement for use of University facilities, if applicable.
16. Any exceptions to the application of the policy must be approved by the Office of Human Resources Recruitment and Compensation Division.
This policy provides church leaders with excellent information on several significant issues, including:
Policy 99: Background Check Process
In 2012, the university implemented Policy HR-99, Background Check Process, which establishes "a process for ensuring background checks are completed for any individual who is engaged by the University in any work capacity including employees, volunteers, adjunct faculty, students, consultants, contractors or other similar positions." The revised background check process will require an additional 23,650 background checks to be conducted annually. The new policy requires any individual engaged by the university in any work capacity to have a university background check.
Here are some noteworthy provisions in Policy 99: