What Do You Do with Volunteers Who Exhibit ‘Gray Area’ Behavior?

Three attorneys explain how churches can respond to concerning situations involving church volunteers.

When confronted with reports that an adult church attendee who had volunteered to teach a youth ministry class had exhibited concerning behavior, a church had to make a decision regarding granting the volunteer Child Safety Certification to work with minors.
The volunteer provided references, authorized a criminal background check, and completed training, but others told church leaders of some troubling behavior. Church leaders were told the volunteer had made inappropriate comments to young female students while employed as a teacher, and he was later asked to resign from teaching for an unrelated reason. The volunteer was also reported to have made an inappropriate gesture to his own daughter in the presence of another child. Additionally, the volunteer attended a youth ministry class despite being previously told by a department coordinator that he could not attend because he had not completed the Child Safety Certification process. The volunteer snuck into the class and sat on the floor by the door in an attempt to go unnoticed.

For many churches, circumstances like these create a “gray area” in child safety with no straightforward violations (such as a failed background check) but also some facts or behaviors that raise eyebrows. Are these red flags? Are they innocent mistakes by someone unfamiliar with the seriousness of child safety in ministry? How can you tell if questionable behaviors are just flukes or something more?

In this case, the church decided not to grant the volunteer in question a Child Safety Certification, effectively barring him from children’s ministry at the church.

Frank Sommerville, Gisele Kalonzo-Douglas, and John Anthony are three attorneys who work with churches and nonprofits to regularly navigate such safety issues. We asked all three to weigh in on this church’s decision and how other churches should respond when faced with similar “gray area” dilemmas in child safety.

Did the church make the right decision in barring this volunteer from working with minors?
Frank Sommerville: Yes, absolutely.
Gisele Kalonzo-Douglas: I do think that that was the correct decision because I think that background checks and those kinds of procedural things that are put in place by a church to vet and screen potential workers are one of many tools that a church can employ in deciding whether or not they feel the level of confidence and evaluating the competence of someone to work with children.
John Anthony: Yes. The church certainly has a right not to do that [approve the volunteer] based on what they’ve been told, and so if the church feels that that is the right decision to make, especially based on his behavior and ability to follow directions regarding going to the youth class, then that probably is the right thing for the church to do. He’s exhibited behavior that shows he can’t follow instructions, and based on that they can choose to not allow him to continue with the certification.
How should a church make decisions in this “gray area” of risk where all of the official requirements have been met but doubts remain as to the suitability of the volunteer to be safe and trusted?
Kalonzo-Douglas: I think that a church gives itself language in whatever document saying that the church reserves the right, in addition to these other tools, to make a decision that’s in the best interest of the person, the program, and the church. It’s not too vague, but it gives the church sufficient leg room to operate.
Anthony: First of all, it’s important to know that no one has a right to volunteer. It’s not like employment where we could be dealing with possible discrimination issues. A church can deny a person the opportunity to volunteer for any reason. So in these kinds of situations, the church needs to be able to make that decision. Really, they can even go off of their gut feelings. If church leaders feel that something is not right with an individual or their actions, then they have the ability to tell that person to sit back and not volunteer or even tell him [or her] that the person can only volunteer in other areas, like parking lot ministry.
Sommerville: There are no rules on volunteers. There are no laws governing the church’s decision-making process. Whatever decision the church leaders choose to make, they can make; they don’t have to have a reason. If they are uncomfortable with an individual, they need to not allow that person to volunteer—period. If the church has an incident of misconduct with a child, it is devastating. It’s also very expensive. The average settlement is over $6 million, so that means that the church should want to take extreme measures to protect their most vulnerable individuals.
How do you notify a volunteer or employee that the church is not going to give approval to work with minors? Does a church explain why the decision was reached?
Anthony: You can notify the person in any way that you would regularly communicate with a volunteer, whether that be in person or over email. As far as a reason for it, the church does not have to give a reason.
Kalonzo-Douglas: I think it has to be a face-to-face conversation. I think it’s not necessarily best done via email. You always want to be sensitive to the fact that you’re a church; you have to exemplify love. What you’re saying is “You may not be able to be active in this capacity, but there are potentially other areas where you can serve.” You start with very positive things [when discussing the decision] and you say, “We’ve looked at it, we’ve evaluated based on many factors, and unfortunately we weren’t able to have you operate in this capacity. But we hope you can join the church in another way.”
Sommerville: In my ideal circumstance, we would have a pastor delivering that message because we want a higher level of employee doing it—someone in authority. I think it needs to be delivered in-person. I don’t think an email or letter is an appropriate medium for that.
How much should the church disclose to the candidate concerning the reasons the candidate is not allowed to volunteer?
Anthony: There are a few situations in which you’re going to want to protect the confidentiality of the people that gave this information [about the volunteer’s behavior] to you, and so you want to stick with the facts. You don’t want to tell the person anything that’s presumptive, or say, “Hey, we think this,” or “We’ve heard rumors about . . .” You want to stick with the facts, and as long as you can stick with the facts, then you can share with that person most anything. But you need to recognize that there is going to be some relational collateral damage that happens, and if there are accusations laid out and they are lies, or they are particularly damaging, then you have possible defamation claims. So you really do want the church to stick with the truth and the facts and not opinions or assumptions when it shares with the person.
Kalonzo-Douglas: Disclose what is necessary, and if the person persists and wants to know, then I think then you have to say, “You know, I’m not at liberty to discuss that,” because there is a process in place and you want to be consistent with the larger policy. Also, you do not want to hurt or discourage this individual, and word choice matters. You can also say, “We take into account everyone’s privacy.” That includes the individual being vetted as well as any other person who shared off the record information that you may not be able to openly share. I think at that point you could consult counsel or whoever is your higher-up, but only if the person persists. Otherwise, I would not make the recommendation to divulge the “why” of the decision.
Sommerville: The church is not going to go in and say “We have concerns that you’re going to molest little kids.” Obviously, a church would not do that, but what you might say is: “We made a decision that you are not going to be eligible to volunteer with our children or youth and we have some concerns that your behavior may not always display the best judgment that is required when you’re working with children and youth.” And use that to open up the discussion of how maybe the church needs to refer the person to counseling or do some counseling with the person to try and get that person some help [even though they can’t volunteer with children or youth].
When a church decides to not grant someone safety certification, how much should the church disclose to other members of the church who inquire about the reasons for the decision?
Kalonzo-Douglas: First, I would question why other people would even know that that occurred. I think that has to be a process that is done confidentially, maintaining everybody’s right to privacy. If, for some reason, that does not happen and the information gets out, to you [the church] it’s confidential information. It’s not for public consumption, and you’re not able to disclose anything.
Anthony: The church does not have the need to disclose the decision to other church members. There’s not a requirement to disclose it to other members unless this person is a known threat who the church is allowing to participate in activities with adults and children, knowing that the church is putting everyone at risk. But if that’s not the case, the church doesn’t have to communicate with the other members what’s going on. Church leaders can say that it’s a private matter. I would only communicate those reasons if they [church leaders] felt that there was a risk to the folks involved. And even then, very, very carefully, and a church would probably want to contact a lawyer regarding what church leaders can and can’t say, especially if it’s a criminal matter or involving a criminal investigation.
Sommerville: That’s a legal liability issue. They [church leaders] should not be discussing or disclosing the reasons to anyone besides the person involved because then the church might be sued for libel, slander, or invasion of privacy.
John A. Anthony is an attorney with Anthony & Middlebrook, P.C. located in Grapevine, Texas. John’s practice focuses on religious nonprofits.

Gisele Kalonzo-Douglas is an attorney, risk manager, strategic planning consultant, crisis management professional, and an editorial advisor for Church Law & Tax.

Frank Sommerville is a shareholder in the law firm of Weycer, Kaplan, Pulaski & Zuber, P.C. in Houston and Dallas, Texas, and an editorial advisor for Church Law & Tax.

Elizabeth Jackson is a freelance writer and former editorial intern for Church Law & Tax.

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