Recent Developments in Connecticut Regarding Sexual Assaults and Church Vehicles

A Connecticut court ruled that a school was liable for the physical and sexual assaults inflicted on an elementary school student while riding on a school bus.

Richard R. Hammar, Attorney, CPA

Bio

State: Connecticut

Church Law and Tax1998-07-01

Sexual Assaults and Church Vehicles

Richard R. Hammar, J.D., LL.M., CPA

• Key point. Churches and schools that transport children in a bus or van have a legal duty to maintain order and discipline, and to protect children from assaults by other passengers.

A Connecticut court ruled that a school was liable for the physical and sexual assaults inflicted on an elementary school student while riding on a school bus. While the case involved a public school rather than a church, the case will be directly relevant to any church that uses a bus or van to transport children. The victim was subjected to repeated physical and sexual abuse by older students while riding on the bus. The victim’s parents sued the bus driver and school, claiming that they both were responsible for their son’s injuries on the basis of negligence. A state appeals court ruled that the bus driver and school were liable. It noted that ordinarily there is “no duty to control the conduct of a third person to prevent harm to others unless there is a special relationship giving the injured party a right to such protection.” The court noted that such a relationship existed in this case:

[The driver and school] had a duty imposed by law to protect the [victim] from harm and to prevent the intentional harm to the school children in their care. Members and employees of boards of education stand as surrogate parents to their pupils. Part of this special relationship includes the duty to maintain order and discipline. There are, therefore, two bases for finding that the [driver and school are liable]. First [they] stood in the shoes of the parents of the children on the school bus and thus had a duty to protect them from the intentional acts of others, including other school children. Second, the duty … also extended to an obligation to maintain discipline and order. Having failed in that regard [they] may not now claim that their failure to prevent the very conduct they had a duty to prevent relieves them of liability.

Application. When a church or school transports children on a bus or van it is “standing in the shoes of” the children’s parents. This is the kind of “special relationship” that gives rise to a duty to protect those children from assaults by other children and to maintain discipline and order. Todd M. v. Richard L., 696 A.2d 1063 (Conn. Super. 1996).
[Negligence as a Basis for Liability]

© Copyright 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m65 m58 m90 c0498

Legal Developments

Recent Developments in Connecticut Regarding Sexual Misconduct

A Connecticut court ruled that a religious order could be sued on the basis of respondeat superior for the sexual misconduct of a priest.

Richard R. Hammar, Attorney, CPA

Bio

State: Connecticut

Church Law and Tax1998-05-01

Sexual Misconduct

Richard R. Hammar, J.D., LL.M., CPA

• Key point. Employers are liable for the negligence and misconduct of their employees committed within the scope of their employment under the respondeat superior doctrine. In most cases, sexual misconduct by clergy and other church employees will not be deemed to be within the scope of their employment. A few courts have reached the opposite conclusion.

A Connecticut court ruled that a religious order could be sued on the basis of respondeat superior for the sexual misconduct of a priest. A Catholic priest ordained by a religious order was also a practicing psychologist. Because of his vow of poverty, he gave all of the profits from his psychology practice to his religious order. In 1988, he was assigned weekly priestly duties at a local parish. Later that year a woman (the “plaintiff”) sought out the priest because of her emotional and marital problems. She contacted him because of his joint status as a psychologist and a Roman Catholic priest associated with her parish. The priest provided the plaintiff with a combination of pastoral, spiritual and psychological counseling. A few months after the counseling began, the priest and plaintiff began a sexual relationship, with sexual contact taking place during the counseling sessions. The priest continued to bill the plaintiff and her insurance company for these counseling sessions in which sexual contact occurred. Sexual contact also occurred at church retreats, sponsored and run by the religious order, where the priest was serving as retreat faculty. The sexual relations continued for nearly two and one—half years. A year after the relationship ended, the plaintiff sued the religious order claiming that it was responsible for the priest’s misconduct on the basis of “respondeat superior.” Respondeat superior is a legal principle that makes an employer legally responsible for the acts of employees committed within the scope of their employment. The religious order insisted that it could not be liable for the priest’s acts since they were clearly not in the scope of his employment. A trial court ruled in favor of the religious order, and the plaintiff appealed.

A state appeals court began its opinion by noting that negligent or even prohibited efforts to accomplish the employer’s business fall within the scope of employment and therefore can trigger liability based on respondeat superior. Only when the employee’s behavior amounts to an “abandonment” of the employer’s business is there no liability under respondeat superior. The court continued:

When the servant is doing or attempting to do the very thing which he was directed to do, the master is liable, though the servant’s method of doing it be wholly unauthorized or forbidden. If the servant’s disobedience of instructions will exonerate the master, the proof, easily made, virtually does away with the maxim of respondeat superior …. That the servant disobeyed the orders of the master is never a sufficient defense. It must be shown further that he ceased to act for the master and in the course of his employment.

The court noted that the priest’s sexual exploitation of the plaintiff occurred during church sanctioned pastoral—psychological counseling sessions and while he participated at church retreats. As a result, it was conceivable that the priest’s sexual relationship with the plaintiff was “a misguided attempt at pastoral—psychological counseling,” or even an “extreme and clearly unauthorized method of spiritually and emotionally counseling” the plaintiff, but not necessarily an abandonment of church business. It was therefore inappropriate for the trial court to dismiss the lawsuit.

A dissenting judge disagreed with the court’s conclusion. He rejected the court’s conclusion that the priest’s sexual relationship with the plaintiff could fall within the scope of his employment. In support of his position the dissenting judge pointed to the following facts: (1) The plaintiff admitted that during all of her relationship with the priest, she understood that it was clearly outside the scope of any Catholic priest’s employment to engage in sexual relations with anyone. (2) On several occasions the priest and the plaintiff had discussions about their getting married and his having to make a decision to leave the priesthood in order to marry her. (3) The plaintiff acknowledged that she and the priest engaged in sexual intercourse on several occasions when she invited him into her home. She acknowledged her active role in their romantic relationship. (4) At all times, the laws and standards of the Roman Catholic Church, as well as each priest’s personal commitment to celibacy, have expressly prohibited priests from engaging in any sexual activity of any kind and from seeking or maintaining any personally intimate relationship or marital relationship with any woman. (5) All sexual activity or intimate relationship which any priest may have maintained with any woman would have been clearly outside the scope of any employment. The dissenting judge concluded that

these additional facts and admissions by the plaintiff … present a more complete factual picture of the situation and cast doubt on the [court’s] characterization of the parties’ long—standing intimate relationship as merely an extreme and clearly unauthorized method of spiritually and emotionally counseling the plaintiff and thereby furthering the church’s business …. The full factual context represents a vivid picture of an unrelated, independent, intimate, romantic relationship that both parties recognized was far beyond the permissible scope of [the] priestly role. The fact that the parties may have met, and the relationship may have commenced, in the course of counseling is not sufficient to activate the doctrine of respondeat superior with respect to the [religious order] from which [the priest] concealed his impermissible relationship. Under these facts, [the priest’s] action in conducting this relationship with the plaintiff represented a complete departure from his responsibilities to the [order]. His long—standing, independent relationship with the plaintiff in no way furthered the interests of his employers.

The dissenting judge concluded by quoting from a federal appeals court decision refusing to find a Catholic diocese liable on the basis of respondeat superior for the sexual misconduct of a priest: “It would be hard to imagine a more difficult argument than that [the priest’s] illicit sexual pursuits were somehow related to his duties as a priest or that they in any way furthered the interests of … his employer.” Tichenor v. Roman Catholic Church of Archdiocese of New Orleans, 32 F.3d 953 (5th Cir.1994).

Application. The vast majority of courts that have addressed the issue have refused to find churches and other religious organizations liable for the sexual misconduct of clergy on the basis of respondeat superior. This case represents a rare exception to the general rule. The courts are far more likely to find churches liable for the sexual misconduct of clergy on the basis of negligence. Negligence, however, requires proof that the church acted carelessly in hiring, supervising, or retaining a minister. There is no such requirement to find a church or other employer liable on the basis of respondeat superior. The only question is whether or not the employee’s misconduct occurred within the scope of his or her employment. In this sense it is much easier to impute liability to an employer on the basis of respondeat superior than on the basis of negligence. This makes any attempt by the civil courts to expand the application of respondeat superior a legitimate concern. If more courts reach the same conclusion as this case, then the message is clear-churches will have to take even more aggressive measures to reduce the risk of sexual misconduct. This is true now, in Connecticut and in any other state that reaches the same conclusion as the court in this case. Mullen v. Horton, 700 A.2d 1377 (Conn. App. 1997). [Negligence as a Basis for Liability, Denomina tional Liability]

Legal Developments

Recent Developments in Connecticut Regarding Church Property

A Connecticut court ruled that a church could construct a parsonage in a subdivision despite a “restrictive covenant” prohibiting any use other than a “strictly private residence.”

Richard R. Hammar, Attorney, CPA

Bio

State: Connecticut

Church Law and Tax1998-03-01

Church Property

Richard R. Hammar, J.D., LL.M., CPA

• Key point. Parsonages ordinarily are a permitted use in residential neighborhoods. However, this may not be true if a restrictive covenant exists limiting the use of the property to residential purposes and there is evidence that the parsonage is or will be used for church business and activities.

A Connecticut court ruled that a church could construct a parsonage in a subdivision despite a “restrictive covenant” prohibiting any use other than a “strictly private residence.” A group of homeowners asked a court to issue an order barring a church from constructing a parsonage in their subdivision. The homeowners asserted that their deeds, and the other deeds to lots in their subdivision, contain a restrictive covenant which states that the lots may not be used for “any business purpose whatsoever, or for any other purpose, other than a strictly private residence.” They further insisted that the construction of a parsonage breaches the restrictive covenant because church business will be conducted in the residence, violating the requirement that any residence be “strictly private.” In particular, they pointed out that the size and design of the parsonage made it usable as a place for church members to comfortably gather, and that its close proximity to the church would make it easily accessible to members. The homeowners also noted that a parsonage is exempt from property tax under state law if occupied by a minister. They reasoned that the property is exempt from property tax since it is used for “religious purposes,” and this demonstrated that the planned use would not be “residential” and therefore the restriction would be violated. A trial court refused to issue an order barring the church from constructing the parsonage, and the homeowners appealed. A state appeals court ruled that the parsonage may violate the restrictive covenant, and it sent the case back to the trial court for further proceedings. It noted that the church failed to offer any evidence to support its claim that the parsonage would be used solely for residential purposes. On the other hand, the homeowners did produce evidence to support their claim that the parsonage would not be used solely for residential purposes. One document, created by the church and entitled “A Fact Sheet for the Future,” discussed the church’s need to provide a residence for the pastor. However, this document indicated that the church may use the residence for “smaller church functions.” Another document cited by the homeowners was a pamphlet prepared by the church stating that the parsonage “will accommodate various social events to which the [pastor] or spouse invite parishioners, i.e. gatherings in the living room, seated and buffet dinners, teas, parties and cook outs.”

Application. This case is important for two reasons. First, it illustrates that parsonages may violate restrictive covenants in some subdivisions if they are used for more than purely residential purposes. Second, it demonstrates the importance of being aware of such covenants before acquiring land for the construction of a parsonage, or acquiring an existing residence for use as a parsonage. And third, it shows how church—generated documents can be used to demonstrate that a parsonage will be used for more than purely residential purposes. Asjes v. Parish of Christ Church, 1997 WL 139450 (Conn. App. 1997). [ Property of Corporations]

Legal Developments

Churches Can Lose Property Upon Leaving Denomination

Be informed before you vote to secede.

Richard R. Hammar, Attorney, CPA

Bio

State: Connecticut
Categories: Church Property

Key point: The property of a local church affiliated with a hierarchical denomination may revert to the denomination if the church votes to disaffiliate.

The Connecticut Supreme Court ruled that title to a local Episcopalian church reverted to the Episcopal Diocese of Connecticut following its vote to disaffiliate from the Diocese.

The church had been affiliated with the Diocese for more than a century, but voted to disaffiliate and join the Anglican Church in 1986. Both the church and Diocese claimed ownership of the church property, and a civil court was asked to resolve the controversy.

A trial court concluded that the constitution and canons of the Diocese, as well as the historical relationship between the church and Diocese, created a trust in favor of the Diocese on the property held by the local church. As a result, the Diocese was declared to be the rightful owner of the church's property. The church appealed this decision to the state supreme court, which also ruled in favor of the Diocese.

The supreme court began its decision by observing that the civil courts may resolve church property disputes so long as they do so without any inquiry into religious doctrine. The court interpreted decisions of the United States Supreme Court to permit the following approach to resolving church property disputes:

[I]n resolving ownership disputes over church property, a civil court must first determine whether an express trust exists, and if it does, the court must enforce its terms. If no express trust is found, the court must determine whether an implicit trust exists in favor of the general church. In conducting this inquiry, the court must examine the polity of the church, in addition to the church constitutions and its canons, for language of trust in favor of the general church. Inasmuch as the polity of the church represents the agreement of the church members in a particular system of government, including the structural allocation of authority, a civil court must ascertain the facts to determine whether members of a parish within a hierarchical church organization have agreed to be bound by the higher ecclesiastical authority within the church.

The court noted that the national Episcopal Church adopted the following provision at a national conference in 1979 creating an express trust over local church properties in favor of the national church: "All real and personal property held by or for the benefit of any parish, mission or congregation is held in trust for this church and the diocese thereof in which such parish, mission or congregation is located." Because this provision was not adopted until 1979, the court concluded that it did not apply in this case since the church's properties were acquired long before 1979. However, the court noted that the next step was to determine whether or not an implied trust existed in favor of the Diocese:

[I]n determining whether the [local church members] and their predecessors had agreed to the manner in which their property would be held in regard to the Diocese, the trial court was required to determine whether there was, nonetheless, an implied trust. Where the nature of the relationship may, without entanglement in religious doctrine, be judicially determined by reference to the polity of the church, by its constitution and canons, and by the clear factual evidence regarding the historical subordinate relationship between the local church and the general church, there is no reason for a court not to enforce the terms of that relationship. If a trust has been implicitly acknowledged by the parties and is embodied in some legally cognizable form, it must be respected.

The court concluded that the polity of the Episcopal denomination and the historical relationship of local churches with the denomination clearly demonstrated an implied trust in favor of the Diocese over the property of local churches. The court based this conclusion on the following factors:

Local churches accepted the doctrine of the denomination.
The Diocesan canons permit the establishment of a church only with the permission of the bishop.
The Diocesan canons permit the disaffiliation of a local church from the diocese only with the permission of the bishop.
The Diocesan canons prohibit the transfer of local church property without the permission of the bishop.
The local church in this case submitted annual reports to the Diocese, as required by Diocesan canons.
The local church in this case sent delegates (both clergy and laypersons) to the annual conventions of the Diocese.
The local church in this case paid its annual assessments to the Diocese as required by Diocesan canons.

The court concluded that these factors "strongly reflect the polity of the church as one in which the parish is the local manifestation of [the denomination] to be used for its ministry and mission." Accordingly, the express trust provision adopted by the denomination in 1979 "merely codified in explicit terms a trust relationship that has been implicit in the relationship between local parishes and dioceses since the founding of [the national church] in 1789." The court concluded: "[T]he panoply of constitutional and canonical provisions of [the denomination] and the Diocese strongly indicate that the local church property was to be held for the benefit of the general church …."

This case is important, for it illustrates that ownership of local church properties may vest in a national church following a vote to disaffiliate from the national church if the polity and history of the national church suggest that an "implied trust" exists in its favor with respect to the properties of local churches. Rector, Wardens and Vestrymen of Trinity-St. Michael's Parish, Inc. v. Episcopal Church in the Diocese of Connecticut, 620 A.2d 1280 (Conn. 1993).

Legal Developments

Zoning

Church Law and Tax 1989-05-01 Recent Developments Zoning Richard R. Hammar, J.D., LL.M., CPA •

Richard R. Hammar, Attorney, CPA

Bio

State: Connecticut
Categories: Zoning

Church Law and Tax 1989-05-01 Recent Developments

Zoning

Richard R. Hammar, J.D., LL.M., CPA

• A Connecticut court ruled that a convent and chapel constituted a “church” for purposes of zoning law despite the operation of a bookstore and audiovisual center on the premises. The court concluded that the convent and chapel, by themselves, clearly satisfied the definition of a church. The fact that a bookstore and audiovisual center were also operated on the premises did not affect this conclusion, since the books and materials were religious and educational in nature and were sold to support the order’s missionary and instructional purposes. The court quoted from a 1943 decision of the United States Supreme Court: “The mere fact that religious literature is sold rather than donated does not transform evangelism into a commercial enterprise.” Further, the court concluded that the definition of “church” must be “regarded broadly for zoning purposes in order to avoid serious constitutional questions.” Finally, the court rejected the claim that the convent and chapel should not be allowed in a residential neighborhood since they “would be a detriment to the neighborhood by increasing traffic congestion.” The court observed that the intersection where the order planned to construct the convent and chapel “carried a daily traffic volume of over 18,000 cars,” and that the construction of the convent and chapel “would draw approximately twenty [additional] cars per day.” This case will be of interest to the many churches that operate bookstores on their premises. Daughters of St. Paul v. Zoning Board of Appeals, 549 A.2d 1076 (Conn. App. 1988).

© Copyright 1989, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m82 m15 c0389

Legal Developments

Schools

Church Law and Tax 1988-09-01 Recent Developments Schools Richard R. Hammar, J.D., LL.M., CPA •

Richard R. Hammar, Attorney, CPA

Bio

State: Connecticut
Categories: Schools

Church Law and Tax 1988-09-01 Recent Developments

Schools

Richard R. Hammar, J.D., LL.M., CPA

• Private schools may be eligible to seek a deferral until May 9, 1989 of the October 12, 1988 deadline for submitting an asbestos management plan to their state government. Deferrals will only be granted if several conditions are satisfied. First, a school must submit an application for deferral to the appropriate state office. Second, the application must explain why, despite good faith efforts, the school will not be able to meet the original October 12, 1988 deadline for submitting an asbestos management plan. Third, the application must indicate that one of the following documents is available for inspection at the school: (1) a solicitation by the school to contract with an accredited asbestos contractor for inspection or management plan development; (2) a letter certifying that school district personnel are enrolled in an EPA-approved training course for inspection and management plan development; or (3) documentation showing that suspected asbestos-containing material from the school is being analyzed at an accredited laboratory. Fourth, the application must indicate that the school has notified affected parent, teacher, and employee organizations of its intent to file for a deferral. Fifth, the application must contain a proposed schedule outlining the activities that will lead up to the submission of a management plan by May 9, 1989, including inspection of the school. This schedule must contain a deadline of no later than December 22, 1988 for entering into a contract with an accredited inspector (unless inspections are to be performed by accredited school personnel). Schools in the states of Connecticut, Illinois, New Jersey, and Rhode Island have slightly different requirements, since these states independently sought waivers of the October 12, 1988 deadline. Schools in these states must also submit an application for deferral, but their applications need only contain the following assurances: (1) their state requested a waiver from EPA prior to June 1, 1988, and (2) the school has notified affected parent, teachers, and employees groups about its intention to apply for a deferral. Other conditions apply. For more specific information regarding deferral requests, and a listing of the state agencies in each state to which deferral requests should be submitted, contact the EPA at 1-202-554-1404.

© Copyright 1988, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m65 c0588

Legal Developments

Court Struck Down Zoning Ordinance Used to Prohibit Religious Meetings in Private Residences

A federal court in Connecticut struck down a zoning ordinance that was used to prohibit

Richard R. Hammar, Attorney, CPA

Bio

State: Connecticut
Categories: Freedom of Religion, Zoning

A federal court in Connecticut struck down a zoning ordinance that was used to prohibit religious meetings in private residences.

An individual conducted three meetings each week in his home, which were attended by about ten persons. In response to a neighbor's complaint, the city notified the homeowner that no further religious meetings could be conducted in his home unless he received city approval. The city cited a zoning ordinance that required city approval of any use of property for religious purposes. No standards were set forth in the ordinance to guide the city's exercise of its discretion.

The court held that the ordinance was void on account of "vagueness." In particular, it did not "assure with certainty whether one may hold Passover Seder in his home, whether he may light a Hannakuh Menorah, meet with a group of youths in one's home to prepare them for the reception of the sacraments of confirmation or communion, or gather with friends to discuss the Bible."

This lack of clarity, and the absence of standards to guide the city in the exercise of its discretion, rendered the ordinance unconstitutional: "The regulation under review, is one which gives an administrative official discretionary power to control in advance the right of citizens to exercise constitutionally protected activities—specifically the free exercise of religion and the right to freely associate with others—and as such it is clearly invalid as a prior restraint on the exercise of such activities." Nichols v. Planning and Zoning Commission, 667 F. Supp. 72 (D. Conn. 1987)

Legal Developments

Is a Church Required to Give a Pregnant Employee Her Job Back?

Must a church guarantee a pregnant employee her job back after the birth of her

Richard R. Hammar, Attorney, CPA

Bio

State: California
Categories: Employment Practices

Must a church guarantee a pregnant employee her job back after the birth of her child?

This question is being asked by many churches as a result of a recent Supreme Court ruling. Title VII of the federal Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978, prohibits most employers from discriminating in any employment decision (including disability leave and job reinstatement) on the basis of pregnancy or childbirth. Among other things, this means that employees temporarily disabled by childbirth must be treated the same as employees temporarily disabled by any other disability (such as cancer, heart disease, or a bone fracture).

In 1978, the State of California enacted a law requiring employers subject to Title VII to provide unpaid disability leave and the assurance of job reinstatement to all female employees temporarily disabled by childbirth so long as they were physically unable to return to work (but in no event more than four months). No other group of employees received these special privileges. Accordingly, the law was challenged on the ground that it treated employees preferentially on the basis of childbirth contrary to Title VII's requirement of neutrality.

The Supreme Court, in upholding the California law, concluded that Title VII forbids less favorable but permits more favorable disability leave and reinstatement privileges on account of childbirth. Accordingly, the State of California could require unpaid disability leave of up to four months, plus job reinstatement guarantees, for employees temporarily disabled by childbirth without requiring similar guarantees for employees temporarily disabled by other conditions.

However, this ruling is of limited relevance to churches for two reasons. First, the Court merely upheld a California law; it did not declare a national policy. Second, the California law only applies to California employers subject to Title VII of the Civil Rights Act of 1964.

In general, covered employers include only those employing fifteen or more employees and who are engaged in a business or activity "affecting commerce." California churches and religious organizations employing fewer that fifteen persons are automatically excluded from the law. And, even those California churches and religious organizations employing fifteen or more persons are only covered to the extent that they are engaged in an activity affecting commerce.

Over the past several years the courts have so loosely interpreted the concept of "affecting commerce" that it is likely that some larger churches and religious organizations employing fifteen or more persons will be covered by the law. The nature and degree of commercial activities is a key consideration in making this determination. It remains to be seen whether other states will follow California in adopting legislation giving pregnant employees mandatory leave and job reinstatement privileges.

The Court observed that Montana and Connecticut already had similar provisions. California Federal Savings and Loan Association v. Guerra, 107 S. Ct. 683 (1987).