Illinois

Legal Developments

Failure to Conduct Criminal Background Check Showed Negligence

This court case demonstrates the need for churches to properly screen candidates for youth and children’s positions.

Richard R. Hammar, Attorney, CPA
Bio

Key point 10-04. A church may be liable on the basis of negligent selection for a worker’s molestation of a minor if the church was negligent in the selection of the worker. Negligence means a failure to exercise reasonable care, and so negligent selection refers to a failure to exercise reasonable care in the selection of the worker. Liability based on negligent selection may be imposed upon a church for the acts of employees and volunteers.

Key point 10-07. A church may exercise reasonable care in selecting ministers or other church workers but still be responsible for their misconduct if it “retained” them after receiving information indicating that they posed a risk of harm to others.

A federal court in Illinois ruled that failing to conduct a background check on a new employee hired to work in a children’s hospital was, by itself, evidence of negligence, exposing the hospital to liability based on negligent hiring for the employee’s molestation of several children.

The court addressed four areas of liability

Seven minors (the “plaintiffs”) sued a children’s hospital claiming that they were sexually abused while patients at the hospital, and that the hospital was responsible for the abuse on the basis of negligent hiring, retention, and training. The court also addressed the claim of vicarious liability.

The court determined liability exists for the hospital based on the claims made by the plaintiffs. It rejected the hospital’s motion to dismiss the lawsuit, allowing it to proceed toward trial.

Negligent hiring and retention

The court noted that an employer may be held liable “for negligently hiring, or retaining in its employment, an employee it knew, or should have known, was unfit for the job so as to create a danger of harm to third persons.” To establish a claim for negligent hiring or retention, the court cited a previous Illinois court decision determining that a plaintiff must show:

(1) that the employer knew or should have known that the employee had a particular unfitness for the position so as to create a danger of harm to third persons; (2) that such particular unfitness was known or should have been known at the time of the employee’s hiring or retention; and (3) that this particular unfitness proximately caused the plaintiff’s injury.

The court in the present case continued:

Importantly, “[t]o successfully plead a cause of action for negligent hiring or retention, it is not enough for the plaintiff to simply allege that the employee was generally unfit for employment. Rather, “[t]he particular unfitness of the employee must have rendered the plaintiff’s injury foreseeable to a person of ordinary prudence in the employer’s position.” For example, knowing that an employee was “vicious and dangerous” might make his assault of a customer foreseeable.

In support of their negligent hiring and retention claims, the plaintiffs noted that a nurse at the hospital had a long criminal record that rendered her clearly unfit to work as a nurse for children. They alleged that the hospital did not conduct a proper background check and so she was hired. She then repeatedly sexually assaulted at least one of the plaintiffs.

The court said that the hospital should have been aware of the nurse’s unfitness when she was hired. It referred to an earlier case holding in which the Illinois Supreme Court held that a church’s failure to conduct a background check before hiring a youth minister satisfied the “should have known” requirement of a negligent hiring claim (i.e., the employer knew or should have known that the employee had a particular unfitness for the position). Doe v. Cole, 135 N.E.3d 1 (Ill. App. 2019).

The court further stated:

A children’s hospital surely has an at least comparable duty to screen its employees. And, once discovered, a long criminal history would put a reasonable person on notice that an employee might use a position of authority to abuse vulnerable children.

The court also concluded that the hospital was guilty of negligent retention because it retained another male employee despite knowledge of several allegations of sexual misconduct against him. As a result of these allegations against the male employee, the hospital “should have been aware that [the employee] was not fit to supervise vulnerable children. [The hospital] nevertheless retained [him] and he subsequently sexually assaulted [a victim].”

Negligent training

The court noted that the hospital allegedly had a policy of not properly investigating and punishing abuse, which presumably undermined any formal training employees received on proper conduct. The court concluded this made the hospital liable for negligent training. It explained:

[T]he Complaint suggests that this failure to create an institutional culture of accountability allowed widespread abuse to take place, resulting in the harm and cover-ups described in the Complaint. While the Complaint does not identify specific training programs that were inadequate or needed, such detailed pleading is not required.

Vicarious liability

Lastly, the plaintiffs argued that the defendants should be liable for the conduct of their employees under the theory of respondeat superior. Under the theory of respondeat superior (Latin for “let the master answer”) an employer can be vicariously liable for the conduct of an employee, but only for those acts that are committed within the scope of the employment. The court noted:

Illinois courts have held that “sexual assault by its very nature precludes a conclusion that it occurred within the employee’s scope of employment.” The plaintiffs thus may not be able to sustain [a] vicarious liability claim based on intentional infliction of emotional distress arising from sexual assaults that took place at [the hospital].

However, the court still allowed the vicarious liability claim to proceed because the plaintiffs also “stated a conspiracy claim,” and in one example, they made a plausible assertion that the hospital “hid evidence of ongoing abuse . . . covering up abuse was part of the employees’ responsibilities and had at least the partial purpose of benefiting [the hospital].”

What this means for churches

The most significant aspect of this case was the court’s conclusion that the hospital could be responsible on the basis of negligent hiring for a nurse’s acts of child abuse solely because it failed to perform a background check on her when she was hired.

Protecting Children and Youth

Turn to this Recommended Reading page to learn how to help keep children safe, the right way to respond to allegations of abuse, and legal requirements related to reporting and screening.

The relevance of Doe v. Cole

The relevance of this ruling to churches is clear: A church that fails to perform background checks on youth and children’s workers before they are hired may be liable on the basis of negligent hiring for any abuses perpetrated against minors by those workers.

It is also noteworthy that the court relied on a relatively recent, 2019 decision by the Illinois Supreme Court in reaching its conclusion.

In that case, a church’s youth pastor engaged in a sexual relationship with a minor female in the youth group (the “victim”). The victim and her parents (the “plaintiffs”) later sued their church, several regional denominational agencies, and the national church, claiming that they negligently and willfully and wantonly hired, supervised, and retained the youth pastor.

The plaintiffs claimed that no background check was completed on the youth pastor when he was hired, or at any time or after, and that the youth pastor used the same pseudonym, “BluesGod88,” to “friend” youth and adult members of the church on social media sites and to post obscene photos of himself on pornographic websites.

The plaintiffs alleged that the pseudonym “BluesGod88” could have been associated with the youth pastor’s name by way of a simple Google search and that he used the same pseudonym on child pornography websites.

The trial court dismissed all of the plaintiffs’ claims. A state appellate court agreed with most of the trial court’s decision, and the case was appealed to the state supreme court.

The supreme court noted that a negligent hiring claim requires a plaintiff to prove:

“(1) that the employer knew or should have known that the employee had a particular unfitness for the position so as to create a danger of harm to third persons; (2) that such particular unfitness was known or should have been known at the time of the employee’s hiring or retention; and (3) that this particular unfitness [directly] caused the plaintiff’s injury.”

The plaintiffs claimed that the church knew or should have known at the time it hired the youth pastor that he had a sexual interest in children, and that it failed to conduct a background check. The plaintiffs further alleged that a simple Google search of the youth pastor’s name would have revealed his pseudonym.

The church insisted that, to prove negligent hiring, the plaintiffs must allege not only that no background check was performed but also what a background check would have uncovered, and any inference that a Google search of someone’s name would reveal that person’s history of visiting pornographic websites was implausible.

The Illinois Supreme Court concluded:

To prove a negligent hiring claim, a plaintiff must show not just that an employee was unfit but that the employee was unfit in a particular manner, which particular unfitness “must have rendered the plaintiff’s injury foreseeable to a person of ordinary prudence in the employer’s position.” Plaintiffs allege that “[a] basic, cursory Google search into the online public presence of [the youth pastor] would have revealed [his] activity, which included posting public photos of his own genitalia, on numerous pornographic websites.” [The plaintiffs] maintain that they have evidence that such a Google search at or before [his] hire would have alerted [the church] to [the youth pastor’s] visits to child pornography websites and thus put it on notice of [his] particular unfitness—his sexual interest in children—that later proximately caused [the victim’s] injuries. . . .

We acknowledge [the church’s] argument that a background check is unlikely to produce an individual’s Internet browsing history, but that is a factual dispute. Myriad businesses offer to perform detailed background checks for employers and youth activity sponsors, and [victims] will have to carry their burden in proving their claim.

Plaintiffs have alleged that a background check, by way of a cursory Google search, would have put [the church] on notice of [the youth pastor’s] sexual interest in children at or before his hire. This is a factual allegation and more than a mere conclusion. [The youth pastor’s] sexual interest in children is the particular unfitness alleged to have caused [the victim’s] injuries. Thus, if proven, these facts might entitle plaintiffs to recovery.

Doe v. Cole, 135 N.E.3d 1 (Ill. App. 2019).

Understanding background checks

The court in the Doe case concluded that an employer can be liable on the basis of negligent hiring for the sexual abuse of a minor by an employee if it failed to conduct a “background check” prior to or at the time the employee was hired. But what is a background check?

Should Your Church Conduct Criminal Records Checks?

In the “Risk Management” section of the Legal Library, Richard Hammar details 12 factors for church leaders to consider in deciding whether or not to conduct criminal records checks on persons who potentially could have unsupervised access to minors during church activities.

The court in the Doe case concluded that a background check includes a Google search of a person’s name to discover pseudonyms used to access adult and child pornography websites, including the posting of obscene photos of himself.

But the term “background check” includes much more than a Google search. Depending on the nature of the job, it may also include one or more of the following:

  • criminal records checks
  • reference checks
  • education
  • employment (confirming that the applicant worked for prior employers listed on the application form)
  • motor vehicle records
  • Social Security number check (confirms identity and residential history)
  • credit history
  • professional licenses and certifications

The types of searches selected for any particular applicant will vary depending upon the risks associated with the position.

Comprehensive screening includes more than criminal background checks

As important as criminal records checks are in a comprehensive screening process, they should never be viewed as the only screening procedure to be used.

To illustrate, a church agency in Florida was found liable for a pastor’s molestation of a child in a church that he established. The agency had assisted in training and financing the pastor, and it had conducted a criminal records check. Unfortunately, the church did not call or obtain references from the two prior churches in which the pastor had been employed.

The pastor had molested at least one child in each of these churches. The victim’s parents argued that if the agency had contacted these other churches for a reference, they would have been advised of the pastor’s prior acts of molestation (which were known to leaders in both churches). The court agreed and found the agency liable for the pastor’s acts on the basis of negligence.

This case is important because it demonstrates that criminal records checks should never be viewed as the only screening procedure to be utilized in assessing the fitness of persons for volunteer and paid positions in a church.

Key point. Criminal records checks are not the only step a church should take in screening workers. They are one link in a chain. Keep in mind that most child molesters have no criminal record. Effective protection comes with a multi-faceted approach that includes a suitable application form, reference checks, an interview, criminal records checks, and a 6-month rule (volunteers are not allowed to work with children until they have been members of the church for at least 6 months).

Golbert v. Aurora Chi. Lakeshore Hosp., LLC, 2021 U.S. Dist. LEXIS 46245 (N.D. Ill. 2021).

Legal Developments

Church Leader Caught in Embezzlement Scheme Goes to Prison

Lax internal controls can leave any congregation wide open to theft and scandal.

Richard R. Hammar



Key point 7-21 . Embezzlement refers to the wrongful conversion of funds that are lawfully in one’s possession. Embezzlement is a common occurrence in churches because of weak internal controls.

An Illinois court sentenced a church trustee to two eight-year terms of imprisonment, and ordered him to pay $278,703 in restitution, for embezzling funds from his church.

A church trustee (the “defendant”) was given two credit cards by his secular employer to cover business expenses. He used them to obtain $278,703 in cash advances. He deposited the funds illegally obtained from his secular employer into a church bank account, which he then made withdrawals for personal use.

The defendant used the money for car payments, air travel, family vacations, rental cars, and his gym membership. He also used some of the money to pay for legal fees and restitution related to his criminal cases.

The defendant’s pastor submitted a letter in which he stated that the defendant and his family had attended the church for about ten years. According to his pastor, the defendant, who was a church trustee and youth ministry coordinator, had oversight of several checking accounts at the church.

After the pastor learned the defendant was involved in theft at the defendant’s employer, he discovered the defendant had been using the church bank account to launder the stolen funds.

The defendant was found guilty of two felonies and was sentenced to two eight-year terms of imprisonment, to be served concurrently.

At a sentencing hearing, the pastor of the defendant’s new church testified that the defendant, the defendant’s wife, and their two children had joined the church about a year and a half earlier. The pastor of the new church was aware of the defendant’s criminal conduct and had counseled the man in that regard.

According to the pastor of the defendant’s new church, the defendant was very involved in the church and was a “reformed, changed man.” The defendant’s wife was a music director at the church, and when the defendant was incarcerated, she and the children lived in converted office space at the church.

Prior to sentencing, the defendant made a formal statement (allocution) to the court in which he apologized for his conduct. He described himself as a broken man whose true character included integrity and honesty.

In imposing the sentence, the trial court considered both “aggravating” and “mitigating” factors.

The aggravating factors included a criminal history (the defendant had committed a similar offense in another church). The court also found that a lengthy sentence was necessary to deter others.

Mitigating factors included the absence of physical harm, and the fact that incarceration would cause extensive hardship to the defendant’s family. The court commented that the defendant had “a lot of good attributes” apart from his criminality.

What This Means For Churches

This case is relevant to church leaders for four reasons:

  1. Many church leaders consider embezzlement to be a problem that “couldn’t happen here.” Yet, it is this very attitude that contributes to poor or nonexistent internal controls over the handling of cash and the paying of expenses that makes embezzlement a real threat.
  2. The defendant was able to embezzle $278,703 of church funds because of the board’s failure to institute internal controls over church finances—enabling the trustee to treat the church checking account as his personal, unsupervised, slush fund. Had the church implemented basic internal controls, the defendant could not have engaged in embezzlement.
  3. Church leaders may not be fulfilling their fiduciary duties when they fail to implement basic internal controls over cash handling and the payment of expenses. Such a failure can result in legal and financial consequences to individual officers and directors, as well as criminal liability to the embezzler.
  4. The legal consequences of embezzlement can be severe.

    5. People v. Ser Voss, 2018 IL App (2d) 160138-U (Ill. Ap. 2018).

Legal Developments

Dealing with Disruptive Individuals During Church

While one court says a restraining order isn’t permissible, other courts are divided on this issue.

Richard R. Hammar

Key point 7-17. Churches do not have to tolerate persons who disrupt religious services. Church leaders can ask a court to issue an order barring the disruptive person from the church’s premises. If the person violates the order, he or she may be removed from church premises by the police, and may be found to be in contempt of court.

An Illinois court refused to issue a restraining order barring a disruptive person from attending church.

The church had sought a restraining order against a man (the “defendant”) for multiple acts of harassment against the church, including:

  1. Distributing disparaging letters on the windshields of automobiles in the church parking lot during one of its morning services.
  2. Distributing similar letters on a second occasion. He was confronted by a staff member and asked to leave, to which he declared he had a right to be there.
  3. Ten years of repeated attempts to attack the reputation of the church and its pastor.

    4. The letters stated that the church is “a corrupt church that needs to be thoroughly exposed . . . and is a disgrace to Christianity” because the pastor refused to suggest marital counseling when defendant’s wife left him after 40 years of marriage. The letters cite the church as an example of “how the devil gets into churches.” The defendant distributed the letters “door-to-door” to neighbors and in vehicles parked at nearby commercial establishments.

    The church went to court seeking a restraining order banning the defendant from “communicating, publishing, or communicating, in any form, any writing naming or regarding [the pastor], his family, or any employee, staff, or member of the congregation of” the church. A trial judge granted the temporary restraining order but this ruling was reversed by a state appeals court. The court concluded:

    Defendant’s conduct has no doubt distressed the pastor [who] alleged that it has “raised questions” among some of the letters’ recipients about his own “credibility” and that of the church, and that responding to their concerns has been, in his view, “an unwanted distraction and excessive waste of time.” However, we cannot silence the defendant when he is voicing protected criticism, no matter how much time, energy, or distress it costs petitioner. Even less can we silence defendant on the ground that his criticisms of the pastor may have gained some traction—as if we can shield the pastor from the need to answer allegations that, in the minds of some individuals, really do demand answers. That is viewpoint discrimination. Flood v. Wilk, 2018 IL App (1st) 172792-U.

    As the US Supreme Court noted in McCullen v. Coakley, 134 S. Ct. 2518 (2014), speech prohibition that “favors one side in [a] debate” is viewpoint discrimination, “an egregious form of content discrimination.”

    What this means for churches

    Perhaps there is a disruptive person who attends your church. If so, this case demonstrates that, while the law may provide a remedy in some cases in the form of a restraining order, there is no guaranty it will. Many courts are loathe to restrict a person’s access to property except in extreme cases. Here are some options for church leaders to consider:

    • Call the police. This often is the best option.

    • Some churches use a police officer as a security guard during worship services. The officer will be able to confront a disruptive person with minimal to no liability for the church.

    • If someone threatens to inflict physical harm or to disrupt a worship service, and the church does not have a security guard, then immediate intervention by church staff may be necessary.

    • Physically restraining such a person should always be viewed as a last resort. More than one person should be involved in the restraint so that unfounded allegations of brutality can be rebutted. If this option is attempted, be sure to have someone make a video to rebut unfounded allegations of brutality by the restrained person.

    • In some cases church leaders may be able to avoid such incidents by obtaining a restraining order from a local court.

    • Ushers should periodically receive training on these issues.

Legal Developments

Church Not Liable for Injuries Sustained by Teen at Youth Event

Case demonstrates the difficulty of proving negligence claims for injuries caused by “open and obvious” hazards unless concealed by a distraction such as darkness.

Richard R. Hammar, Attorney, CPA
Bio

Key point 10-11. A church may be legally responsible on the basis of negligent supervision for injuries resulting from a failure to exercise adequate supervision of its programs and activities.

An Illinois court ruled that a church was not liable for injuries sustained by a 13-year-old boy who fell 25 feet from a platform in a tree at the home of a church member during a bonfire activity sponsored by the church’s youth group.

A church’s youth ministry conducted a bonfire at a church member’s home. The homeowner had previously constructed a platform in a tree from which he had removed the upper branches and foliage. The platform was about 25 feet above the ground, and was reached by a ladder tied to the tree. The platform had a rail around it, but no other fall protection.

The platform had a triangular hole in it, and through the hole, was a metal “fire pole.” The pole was made out of sprinkler pipe, was affixed in concrete at the base, and was 3½ inches in diameter. The surface of the pole had oxidized. The ground around the pole was grass covered, and no force-absorbing material, such as sand or wood chips, had been placed around the bottom of the pole.

The homeowner explained that he built the platform and fire pole for his children. He testified that between 150 to 200 people had used the pole, all without injury. The homeowner was a construction contractor and was familiar with fall protection for working above the ground and had employed it in his work, but no fall protection was installed or available on the platform.

On the day of the bonfire, the church’s youth pastor arrived 15 to 30 minutes before the announced start of the event. Some of the parents stayed to socialize, others dropped their children off. One mother (the “plaintiff”) dropped off her 13-year-old son (the “victim”) and then went shopping nearby, intending to finish shopping and then return for the remainder of the event.

According to the youth pastor, the point of the event was the bonfire and indoor fellowship. The youth attending were not expected to play in the backyard, but were expected to roast marshmallows in the bonfire and to play in the basement, where pool and board games were available. After about an hour outside, the youth pastor went inside, planning to steer the event toward worship.

One of the youth came inside and alerted the youth pastor and the adults that the victim was hurt. The victim testified that he climbed up the ladder. The ladder had metal rungs, so his hands became cold. At the top, on the platform while waiting for his turn, he put on gloves. He testified that the gloves were like ski gloves, and were slick, possibly made of nylon. The victim testified that he waited his turn along with several other youth on the platform. When it was his turn, the victim grabbed the pole with his hands, but he did not wrap his arms or legs around the pole. As he began his descent, he lost control, grabbed for the edge of the platform but could not hang on, and he plummeted the rest of the way to the ground. He suffered serious injuries, including broken bones, resulting in a permanent limp and the insertion of a metal rod in one of his legs.

The plaintiff sued the church, its youth pastor, and the homeowner, claiming that their negligence caused the injuries.

The youth pastor and homeowner testified that, when the plans were made to use the property for the bonfire, they did not conduct an inspection of the property to determine if there were any unsafe conditions. Rather, the homeowner testified that he had a safe house, including the fire pole, because nobody had been injured using it up to that time.

The plaintiff’s expert witness, a park and recreation planner and consultant, testified that the fire pole was too wide, too high, and the landing area was too hard. He opined that the width of the pole, being almost twice the diameter that industry standards allowed in playground equipment, contributed to the accident because the excessive width of the pole decreased the strength of the user’s grip of the pole. He did not, however, offer any opinion about the effect of the victim’s gloves on his ability to grip the pole, but noted that any effect would depend on the type of glove, which he could not recall. He further testified that the fall height was much greater than industry standards allowed (five feet is the norm), and the landing area did not contain any force-mitigating substances, and these circumstances caused or contributed to the likelihood and severity of injury. The expert believed that the darkness could have contributed to the victim losing his grip on the pole because it obscured the size of the pole and its texture.

The trial court dismissed the plaintiff’s lawsuit, explaining that “defendants owed no duty to plaintiff based on the open and obvious nature of the platform and fire pole on the property.” The plaintiff appealed.

On appeal, the plaintiff argued that the trial court erred in holding that the platform and fire pole presented open and obvious conditions. The plaintiff further claimed that design flaws in the construction of the platform and the fire pole and the lack of lighting rendered the dangers hidden rather than open and obvious.

The appeals court’s ruling

The appeals court, in affirming the trial court’s dismissal of the case, explained:

As a general matter, the owner or possessor of land owes a visiting child the duty to keep the premises reasonably safe and to warn the visitor of dangerous nonobvious conditions, but if the conditions are open and obvious, the owner or possessor has no duty. . . . Generally, falling from a height is among the dangers deemed to be open and obvious and appreciable even by very young children. The risk that confronted the victim as he clambered up to the platform and attempted to use the fire pole was simply a fall from a height, and thus, was an open and obvious risk.

The court acknowledged that some exceptions exist to the impact of the “open and obvious” danger principle upon negligence claims. One of them pertains to persons who are distracted and thus unable to appreciate an open and obvious danger:

We conclude that there was no evidence of distraction presented in the record. The victim climbed up the ladder to the platform, some 25 feet above the ground. Once there, he waited in a line for the fire pole. He did not testify that any of the other persons in the line bothered or distracted him as he prepared to slide down the fire pole. Instead, he put on slick nylon gloves and attempted to slide down the pole by grasping the pole with only his hands. As he began his descent, he lost control, attempted to arrest his descent by grabbing the deck of the platform, failed, and fell from a height onto the ground. There is nothing in the evidence in the record to support a conclusion that he was distracted. . . . Rather, he was participating in using the fire pole as he intended. Indeed, he attributed his fall to losing his grip when he attempted to slide down the pole using only his hands and not wrapping his arms and legs around the pole. Accordingly, we hold the distraction exception does not apply here.

Plaintiff also claims that the darkness of the evening distracted the victim from perceiving the width of the fire pole and the height of the drop from the platform. We disagree. He had to have been acutely aware of the height of the platform, having climbed every inch of the 25-foot height up the ladder. As to the width of the pole, he would have perceived it as he grasped it. [The homeowner] testified that everyone he had observed use the pole had instinctually wrapped their arms and legs around it. The victim testified that he attempted to use only his hands to grip the pole for his descent, despite the fact that a number of other children had used the pole before him and he apparently had the opportunity to observe them while waiting his turn.

We also note that there is no evidence that the victim stepped through the opening while trying to use the fire pole. . . . Instead, he testified that he was able to negotiate his way to the pole and grasp it to begin his descent. Thus, there is no evidence that he simply stepped into the opening which went unperceived due to the darkness of the evening. Likewise, there is no evidence that one of the persons waiting for a turn distracted him so he stepped into the opening and fell. There is no evidence of distraction evident, so we reject plaintiff’s contention that he was distracted by the darkness and the other children.

What this means for churches

This case demonstrates the difficulty of proving negligence claims for injuries caused by “open and obvious” hazards unless concealed by a distraction such as darkness. Grosch v. Anderson, 2018 IL App (2d) 170707-U (Ill. App. 2018).

Legal Developments

Church’s Director of Music Was a “Minister” for Purposes of the Ministerial Exception

Court could not resolve director of music’s discrimination lawsuit against the church following his demotion.

Richard R. Hammar, Attorney, CPA
Bio

Key point 8-10.1 The civil courts have consistently ruled that the First Amendment prevents them from applying employment laws to the relationship between a church and a minister.

A federal court in Illinois ruled that a church’s director of music was a “minister” for purposes of the ministerial exception, and therefore it could not resolve his discrimination lawsuit against the church following his demotion.

The Catholic Bishop of Chicago hired an adult male (the “plaintiff”) in 1992 to serve as the director of music at a local Catholic church. In 2015, the plaintiff was demoted from a full-time position to a part-time position without benefits. As a result of the demotion, the plaintiff’s duties as director of music were taken away, meaning that he no longer participated in the budget process; he was not sent to Archdiocesan Music Committee activities; his access to the church became limited; he became responsible for maintaining his own music skills; he no longer taught music to the children at the church’s school; and he no longer held practices for the church choirs.

After the demotion, the plaintiff performed only the duties of organist at church functions. And, even as the organist, he no longer had any discretion in picking what music to perform during Mass. Instead, he played music selected by the parish pastor. Sometime after the demotion, the plaintiff was fired.

The plaintiff later sued the Catholic Bishop of Chicago, alleging national origin and age discrimination. In particular, he asserted that he was demoted from his position as director of music because he is Polish and due to his age, and then was fired when he complained about the demotion.

The bishop argued that all musicians at Mass—including the organist—”exercise a genuine liturgical ministry” by leading and sustaining the assembly’s “sung prayer.” The plaintiff claimed that instrumental music, including organ music, is not necessary to a Catholic Mass or worship, and that “as an organist with no discretion in what music was played or how he played it, his role was neither necessary nor ministerial—and in fact could be replaced with recorded music.”

The court agreed with the bishop and dismissed the case. It noted that the “ministerial exception” prevents the civil courts from resolving employment disputes between churches and “ministers.” The purpose of the exception is to ensure that “the authority to select and control who will minister to the faithful—a matter strictly ecclesiastical—is the church’s alone.” Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C., 565 U.S. 171 (2012). The court observed that the exception’s applicability depends on whether the employee qualifies as a “minister.”

Noting that a “minister” can be someone other than “the head of a religious congregation,” and that there is no “rigid formula for deciding when an employee qualifies as a minister,” the court cited the following factors to be considered in deciding if a church employee is a minister:

  1. Do a church employee’s job duties reflect a role in conveying the church’s message and carrying out its mission;
  2. The formal title given to the employee by the church;
  3. Whether the employee holds himself or herself out as a minister; and
  4. Whether the employee performed “important religious functions . . . for the church.”

    5. The court quoted from an official Catholic paper on liturgical music: “All pastoral musicians—professional or volunteer, full-time or part-time, director or choir member, cantor or instrumentalist—exercise a genuine liturgical ministry. . . . These musicians serve the Church at prayer and are ministers who share the faith, serve the community, and express the love of God and neighbor through music. They are a valued and integral part of the overall pastoral ministry of the parish.” Even more specifically, the paper emphasizes the importance of the organ in worship: “Among all other instruments which are suitable for divine worship, the organ is ‘accorded pride of place’ because of its capacity to sustain the singing of a large gathered assembly, due to both its size and its ability to give ‘resonance to the fullness of human sentiments, from joy to sadness, from praise to lamentation.’ The organ ‘in some ways reminds us of the immensity and the magnificence of God.’”

    The court concluded that the plaintiff “performed a ministerial function by performing organ music at worship and ritual ceremonies, and took part in conveying the church’s message to congregants.”

    The plaintiff insisted that he was not a “minister” since he did not participate in picking music, and as an organist, he only “robotically played notes from sheet music.” The court disagreed. On the first point, the court noted that a lack of authority to pick music did not render a musician outside the ministerial exception. On the second point, “the plaintiff’s view of ’robotic’ music performance cannot overcome official church doctrine. . . . An accompanist who does nothing more than play the sheet music still performs a ministerial function.”

    The court concluded that the plaintiff, a director of music in a Catholic church, was a minister for purposes of the ministerial exception, and therefore the court could not adjudicate his discrimination claims against the church.

    What this means for churches

    This case provides helpful guidance in the definition of the term “minister” for purposes of the ministerial exception. In 2012, the United States Supreme Court unanimously affirmed the ministerial exception, but declined to define the term “minister.” That is understandable, since it would be difficult to fashion a definition that would apply in all cases. The Supreme Court left the definition of this essential term to other courts in other cases.

    The court stressed that a “minister” can be someone other than “the head of a religious congregation,” and that there is no “rigid formula for deciding when an employee qualifies as a minister,” and proceeded to list four factors to be considered in deciding if a church employee is a minister: (1) Do a church employee’s job duties reflect a role in conveying the church’s message and carrying out its mission; (2) the formal title given to the employee by the church; (3) whether the employee holds himself or herself out as a minister; and perhaps most importantly (4) whether the employee performed “important religious functions . . . for the church.”

    One other aspect of this case merits attention. The court placed great weight on the plaintiff’s job description. The importance of job descriptions in ministerial exception cases cannot be understated. Churches should review job descriptions, especially for non-ordained staff, to see if employees who might meet the definition of “minister” for purposes of the ministerial exception have job descriptions that highlight and stress their religious functions. Sterlinski v. Catholic Bishop, 319 F. Supp. 3d 940 (N.D. Ill. 2018).

    See also “Clergy—Discipline and Removal,” 2018 U.S. Dist. LEXIS 169275 (D.S.C. 2018), and “Ministerial Exception,” Lee v. Baptist Church, 903 F.3d 113 (3rd Cir. 2018), in Legal Developments section of the website.

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Legal Developments

Church Protected by “Qualified Privilege” from Defamation Claims by Minister

Court concluded that there is an “absolute First Amendment protection for statements made by church members in an internal church disciplinary proceeding,”

Richard R. Hammar, Attorney, CPA
Bio

Key point 4-02.03. A number of defenses are available to one accused of defamation. These include truth, statements made in the course of judicial proceedings, consent, and self-defense. In addition, statements made to church members about a matter of common interest to members are protected by a “qualified privilege,” meaning that they cannot be defamatory unless they are made with malice. In this context, malice means that the person making the statements knew that they were false or made them with a reckless disregard as to their truth or falsity. This privilege will not apply if the statements are made to nonmembers.

An Illinois court ruled that statements made in a church disciplinary process involving accusations of sexual misconduct by a minister were protected against claims of defamation by a qualified privilege.

A minister (the “plaintiff”) served as a church’s lead pastor and also as chairperson of a committee responsible for screening candidates for admission to the ministry within his denomination (the “national church”). A woman (the “defendant”) was one of these candidates. The plaintiff claimed that he informed the defendant that she would need additional counseling before her application could proceed. She alleged that when she met with him to discuss her application he made offensive, sexually explicit comments to her. The plaintiff was shocked.

The Book of Discipline prohibits sexual harassment by ministers, stating that sexual harassment “by representatives of the church is a betrayal of a sacred trust, and a sinful abuse of power for which consequences are necessary and appropriate.” The Book of Discipline defines sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or non-verbal conduct of a sexually offensive nature” that occurs in a workplace setting.

The Book of Discipline also establishes a system for reporting and adjudicating claims of sexual misconduct against members of the clergy. A victim of sexual harassment may report the allegation to his or her local minister. The person receiving this information must then make a written record of the complaint within 48 hours. The accuser then has seven days to submit a written complaint. The complaint must be in writing, sworn under penalty of perjury, and sent via certified mail to the national church’s “Judicial Committee.” The complaint should contain a description of the facts giving rise to the claim.

The Judicial Committee, which acts like a grand jury, serves as the investigative body of the national church. This committee gathers evidence and investigates claims. While performing its role, the Judicial Committee must act confidentially and can discuss the matter only with other individuals responsible for adjudicating the case. Breach of confidentiality “shall be charged and tried pursuant to the relevant provisions” of the Book of Discipline. The Judicial Committee determines whether there is sufficient evidence to support the allegations of sexual misconduct. If the Judicial Committee finds that the allegations are unfounded, the case is dismissed. If the Judicial Committee finds there is sufficient evidence to support the allegation, the matter is referred to the Trial Committee for a hearing. The Trial Committee, which acts as the trier of fact, determines whether the allegations in the complaint are “sustained, unsustained, or neither sustained nor unsustained.” If the Trial Committee determines that the allegations are sustained, the Book of Discipline provides for punishments ranging from a six-month suspension to permanent termination.

Immediately following the incident of harassment, the defendant, pursuant to the procedure spelled out in the Book of Discipline, filed a complaint with her minister, who forwarded it to a regional church officer, who forwarded it to another officer. This officer ordered the Judicial Committee to convene to investigate the matter. The Judicial Committee determined that the defendant’s allegation of harassment was sustained.

The plaintiff sued the defendant, the regional church, and church officers (the “church defendants”) alleging defamation and emotional distress. He claimed that the allegations of sexual misconduct were false, and that repeating them to other ministers brought him into “public disgrace and scandal.”

The church defendants claimed that the plaintiff’s claims were barred by the “ecclesiastical abstention doctrine,” which recognizes the “power and autonomy of religious organizations to govern and discipline their own clergy free from secular court interference.” The answer further asserted that plaintiff, as a minister, was governed by the national church’s Book of Discipline. The church defendants also claimed that the defamation claim had to be dismissed since statements made in the course of internal church disciplinary proceedings are protected by a “qualified privilege,” meaning that they cannot be defamatory unless made maliciously. The defendants argued that the qualified privilege applied since all of the allegedly defamatory communications occurred within the internal disciplinary proceedings of the church. A trial court dismissed the plaintiff’s claims, and he appealed.

The appeals court affirmed the dismissal of the plaintiff’s lawsuit. It began its opinion by noting:

The First Amendment’s protection of internal religious disciplinary proceedings would be meaningless if a parishioner’s accusation that was used to initiate those proceedings could be tested in civil court. Indeed, a person must be free to say anything and everything to his church, at least so long as it is said in a recognized and required proceeding of the religion and to a recognized official of the religion. . . . Since the only defamatory publication allegedly made . . . was made to the church itself within internal disciplinary proceedings, the absolute First Amendment protection for statements made by church members in an internal church disciplinary proceeding precludes the court from exercising jurisdiction in this matter.

The court noted that the plaintiff failed to present evidence that the church defendants published the victim’s statements to anyone outside of the internal disciplinary procedures of the church, and therefore the qualified privilege applied and required the dismissal of the plaintiff’s lawsuit.

The court rejected the plaintiff’s claim that his lawsuit could be resolved using neutral principles of law requiring no interpretation of church doctrine:

Plaintiff argues we can evaluate his claims under neutral principles of law. Essentially, notwithstanding any underlying ecclesiastic matter, plaintiff contends that we can determine (1) whether the church followed its own disciplinary proceedings and (2) whether the alleged statements were defamatory under neutral principles of law. We disagree. Illinois courts will not resolve cases that require interpretation of religious doctrine. Nonetheless, when doctrinal issues are not involved, the court may evaluate the dispute under neutral principles of law. Under the neutral principles of law approach, a court objectively examines pertinent church characteristics, constitutions, bylaws, deeds, state statutes, and other evidence to resolve the matter as it would a secular dispute. Traditionally, the neutral principles of law approach is applied to allocate disputed church property under objective, well-established concepts of trust and property law.

While it is possible that resolution of plaintiff’s claims would not require any interpretation of church’s doctrine, resolving this dispute would involve the secular court interfering with the church’s internal disciplinary proceedings. . . . Irrespective of the fact that a court or jury could apply neutral principles of law . . . to determine whether they were defamatory, those statements were published exclusively within the context of the church’s disciplinary proceedings. Therefore, as previously discussed, this court is bound to step aside and permit the church to consider the veracity of the defendant’s charges of sexual abuse through the church’s process.

What this means for churches

The court concluded that there is an “absolute First Amendment protection for statements made by church members in an internal church disciplinary proceeding,” meaning that complaints of ministerial misconduct made to church officials for investigation ordinarily will not expose the complainants to civil liability for defamation or emotional distress. However, the court cautioned that there is no absolute privilege to make accusations of ministerial misconduct to persons outside of the church disciplinary process, and as a result, such accusations may expose the complainants to civil liability. 2018 IL App (4th) 170469.

Legal Developments

Court affirmed Youth Pastor’s 40-year Sentence for predatory sexual assault

The defendant, despite his lack of a criminal history and his confession and remorse, was sentenced to a combined sentence of 40 years in a state penitentiary.

Richard R. Hammar, Attorney, CPA
Bio

Key point 10-07. A church may exercise reasonable care in selecting ministers or other church workers but still be responsible for their misconduct if it “retained” them after receiving information indicating that they posed a risk of harm to others.

Key point 10-09.1. Some courts have found churches liable on the basis of negligent supervision for a worker’s acts of child molestation on the ground that the church failed to exercise reasonable care in the supervision of the victim or of its own programs and activities.

An Illinois appeals court affirmed a youth pastor’s prison sentence of 40 years for predatory sexual assault of two 12-year-old girls.A youth pastor (the “defendant”) engaged in grooming behavior with two 12-year-old girls that culminated in sexual contact.

Victim 1

The grooming behavior with victim 1 included numerous “love letters” and emails. Sexual contact occurred during “Bible quiz” tournaments at three churches. Eventually, the victim informed her parents of the defendant’s conduct, and the parents informed the police. Several police officers executed a search warrant on defendant’s apartment and seized a laptop computer. The defendant’s wife later gave the officers a second laptop computer. The computers were subjected to forensic analysis, and images of child pornography were found. One computer had almost 14,000 images and the other computer had over 15,000 images.

The defendant informed the police that he met one of the victims at church and their relationship “grew from there.” The defendant said that his relationship with the victim eventually became inappropriate, but that was not his intention in the beginning. He stated that he developed a “spiritual mentorship” with the victim and that he “had a deep desire pretty much his whole life to be someone’s hero, someone’s leader, helping them in all facets of life.” Defendant said that the victim “attached herself” to him and looked up to him, and he took advantage of that.

The trial court sentenced defendant to 21 years’ imprisonment. In support of the sentence, the court found that the offense threatened serious “psychological, developmental, and emotional harm to the victim.” The court also considered that defendant was in a position of trust or supervision and that the offense occurred in a place of worship. The court also found it relevant that defendant destroyed some evidence upon learning that his relationship with the victim had been exposed. The court stated that the evidence showed that defendant was “clearly sexually attracted to preadolescent females” which it concluded “could be a propensity for future offenses.” The defendant asked for a lighter sentence based on a lack of any prior history of criminal conduct, and the fact that he pled guilty and accepted responsibility for his actions. The appeals court affirmed the 21-year sentence, finding that it was reasonable.

Victim 2

Victim 2 was a 12-year-old girl whom the defendant had groomed much like victim 1, including with multiple letters and emails expressing love and devotion. As with victim 1, the grooming culminated in sexual contact. The defendant was charged with four counts of predatory criminal sexual assault of a child. He pled guilty to one count, and was sentenced to 19 years in prison. The state appeals court affirmed this sentence, and rejected the defendant’s request for a lighter sentence.

What this means for churches

There are several lessons to be learned from these two cases, including the following.

First, they illustrate the serious consequences associated with child sexual abuse. The defendant, despite his lack of a criminal history and his confession and remorse, was sentenced to a combined sentence of 40 years in a state penitentiary.

Second, these cases present textbook cases of “grooming” behavior by pedophiles. The defendant targeted the two victims by showering them with attention and expressions of affection in countless letters and emails. The takeaway lesson for church leaders is the importance of recognizing grooming behavior by youth and children’s ministers and lay volunteers and taking steps to promptly expose and stop it.

Third, most of the defendant’s romantic communications with the victims were by email. It is entirely inappropriate for youth and children’s pastors and lay teachers and volunteers to communicate via social media or email with minors. Such behavior should be unequivocally prohibited by church policy, and violators should be removed immediately. Church leaders should check with the local public school district to see what policy it has adopted regarding communications by teachers with minors via email and social media. In many if not most cases, they will find that the school district has adopted a zero tolerance policy. People v. Lawrence, 2018 IL App (3d) 160004 (Ill. App. 2018).

Editor’s note: Church Law & Tax offers various resources for reducing the chance of a child or teen being harmed in your ministry, including the Reducing the Risk training program and the Youth Ministry in the #MeToo Era.

Legal Developments

A Church Could Be Liable for Negligent Hiring and Supervision

Negligent supervision claims are not premised on notice of a worker’s misconduct or the potential for it. Liability is based on a duty to supervise that . . . exists independently of what was known or should have been known about the worker himself.

Richard R. Hammar, Attorney, CPA
Bio

Key point 10-04. A church may be liable on the basis of negligent selection for a worker’s molestation of a minor if the church was negligent in the selection of the worker. Negligence means a failure to exercise reasonable care, and so negligent selection refers to a failure to exercise reasonable care in the selection of the worker. Liability based on negligent selection may be imposed upon a church for the acts of employees and volunteers.

Key point 10-09.1. Some courts have found churches liable on the basis of negligent supervision for a worker’s acts of child molestation on the ground that the church failed to exercise reasonable care in the supervision of the victim or of its own programs and activities.

An Illinois appeals court reversed a trial court’s dismissal of a lawsuit claiming that a church was liable on the basis of negligent hiring and negligent supervision for the rape of a 14-year-old girl by the church’s youth pastor.

A married couple (the “plaintiffs”) sued their church and its lead pastor for monetary damages resulting from the rape of their minor daughter (the “victim”) by the church’s youth pastor. The plaintiffs’ lawsuit, over 70 pages in length, claimed that from 2011 through 2013 the youth pastor abused his position through various forms of sexual misconduct toward female minors who were members of the church’s youth and confirmation groups. The lawsuit claimed that the youth pastor subjected the victim to persistent sexual advances before raping her in June 2013.

Background

The church had adopted a “Safe Church Policy” (SCP) endorsed by its denomination. The SCP required that (1) all employees and volunteers undergo a background check prior to working with minors, (2) “at least two adults be present to supervise any minor youth or child activities,” and (3) “incidents of child abuse observed by employees or volunteers be reported to the Illinois Department of Children and Family Services.”

The plaintiffs alleged that when the youth pastor was hired his father held a senior position within the denomination, and that in hiring the youth pastor the church relied on the recommendation of his father and performed no further investigation into his background or fitness for the position. The plaintiffs’ lawsuit alleged that the church “failed to conduct even a basic, cursory Google search, or any investigation into the background and fitness of [the youth pastor] in violation of church policy.” They further alleged that “a basic, cursory Google search into the online public presence of the youth pastor” would have revealed his inappropriate activities which included posting sexually explicit images of his anatomy (“sexting”).

The plaintiffs cited several examples of misconduct directed toward multiple female minors who were members of the youth or confirmation groups at the church. For example, the youth pastor is alleged to have used his cellphone and a church computer to (1) store pornographic images of underage female members of the youth group, (2) store pornographic images of himself and send them to underage female members, and (3) “friend” underage female members on social media sites and “discuss their romantic relationship or sexual relationships,” in violation of the Safe Church Policy.

The plaintiffs alleged that the youth pastor’s misconduct toward underage female members of the youth and confirmation groups also included in-person misconduct. The plaintiffs alleged the following examples of misconduct “commonly” or “habitually” engaged in with underage female members: “(1) making inappropriate physical contact, (2) making sexually suggestive remarks and engaging the members in sexually-charged banter and games, and (3) showing the groups videos with inappropriate sexual content, including pornographic content.”

The plaintiffs alleged that the victim was the target of a campaign of “grooming” by the youth pastor. According to the plaintiffs, the grooming “escalated” during the summer of 2012, when the victim was 14 years old and the youth pastor was 30 years old. He psychologically manipulated the victim to increase her trust and emotional dependence on him. He “encouraged her to spend large amounts of time telling him about intimate details of her life.” He “stressed to her the importance of and necessity for secrecy and cautioned her repeatedly against telling anyone about the ‘relationship’ between them.”

The plaintiffs alleged that the youth pastor used the church’s computer equipment to communicate with the victim. He sent her sexually explicit pictures and videos, including some of himself. He also “gradually encouraged and convinced the victim to do the same.”

Ultimately, the youth pastor began making inappropriate physical contact with the victim in isolated areas of the church building, including areas of the basement, vacant classrooms, the sacristy, and the audio-visual booth. These incidents culminated in the youth pastor raping the victim.

The lawsuit claimed that the church and its pastor were responsible for the youth pastor’s acts on the basis of negligent hiring of the youth pastor, and negligent supervision. In support of their allegation of negligent hiring the plaintiffs claimed that had the church searched the youth pastor’s online activity prior to hiring him, it would have discovered that he maintained profiles on several websites that featured adult or child pornography. In support of their negligent supervision claim, the plaintiffs claimed that the church and its lead pastor failed to properly supervise the youth pastor, and “knew or should have known” of his history of misconduct prior to his rape of the victim.

The trial court dismissed the lawsuit. As to the negligent-hiring claim, the court reasoned that an online search of the youth pastor’s name would not necessarily have disclosed his activity on pornographic websites since he conducted that activity under a pseudonym. As to the negligent supervision claim, the court found nothing in the lawsuit to indicate that either the church or its lead pastor was or should have been aware of the youth pastor’s malfeasance prior to his sexual assault of the victim. The plaintiffs appealed.

Negligent hiring

The appeals court began its ruling by observing:

To state a cause of action for negligent hiring, the plaintiff must plead facts establishing that (1) the employer knew or should have known that the employee had a particular unfitness for the position so as to create a danger of harm to third persons, (2) this particular unfitness was known or should have been known at the time of the hiring, and (3) this particular unfitness caused the plaintiff’s injury.

The court noted that there was no dispute that the church “should have conducted a reasonable background check on the youth pastor before hiring him. There is also no dispute that a reasonable background check would have included a reasonable search of his activity as it bore upon his fitness for the position of youth director. The dispute on appeal concerns what was feasible for the church to learn about him from an online search of the kind that the plaintiffs alleged the church should have done prior to hiring him.”

The court noted that the plaintiffs alleged that “a basic, cursory Google search into the online presence of the youth pastor would have revealed his activity, which included posting public photos of his own genitalia on numerous pornographic websites.

But the church insisted that there were two problems with the plaintiffs’ negligent hiring claim: First, the plaintiffs did not “explicitly allege that the youth pastor was visiting the [pornographic] websites before he was hired.” A negligent-hiring claim “implies, indeed depends on, the fact that the youth pastor maintained such objectionable online profiles before his hire.”

Second, the church claimed that even if the youth pastor engaged in inappropriate online behavior prior to his hire, the plaintiffs “have failed to establish how the church could have become aware of such behavior before hiring him. The church notes that the youth pastor is alleged to have engaged in inappropriate online behavior under the pseudonym ‘BluesGod88,’ and the church questions how it could have become aware of the activity prior to his hire when it did not know his pseudonym.” The plaintiffs alleged, however, that a basic, cursory Google search” would have revealed the youth pastor’s profiles on pornographic websites.” The court concluded: “From this allegation we draw the reasonable inference that a search under the youth pastor’s given name would have revealed his pseudonym (which in turn would have led the church to the profiles on pornographic websites). Whether the search would indeed have revealed that information is a question of fact” that should have been answered by the jury, and therefore the trial court erred in dismissing the negligent hiring claim.

Negligent supervision

In dismissing the plaintiffs’ negligent supervision claim, the trial court stressed that there was no evidence that either the church or its lead pastor “was or should have been aware of the youth pastor’s malfeasance prior to his sexual assault of the victim.” In reversing this ruling the appeals court observed: “Negligent supervision claims are not premised on notice of a worker’s misconduct or the potential for it. Liability is based on a duty to supervise that . . . exists independently of what was known or should have been known about the worker himself.” As a result, under Illinois law, negligent supervision “does not have as an essential element that the defendant have notice of the unfitness of the party that caused the harm.”

The plaintiffs claimed that when the youth pastor exploited youth group members in the absence of another adult, the church violated its Safe Church Policy that mandated that “at least two adults be present to supervise any minor youth or child activities.” The plaintiffs alleged that the church violated the two-adult policy by allowing the youth pastor to conduct youth activities with no other adult present and that he used that unsupervised access to abuse the victim and other youth. The court concluded that the church’s adoption of the SCP imposed on it a duty of supervision to ensure that the policy was being implemented, and that the church violated this duty. The court observed:

It is, in our view, generally foreseeable that abuse will occur in programs providing adults with unsupervised access to children, for it is well known that pedophiles are drawn to such opportunities, in churches and elsewhere. . . . Public policy in Illinois favors the protection of children. The statutes of this state also manifest “a specific policy which favors, in particular, the protection of children from sex offenders.” In deference to this policy, we hold that the church had a duty of care requiring it to enforce the SCP’s two-adult policy, regardless of its actual or constructive knowledge of its youth pastor’s predatory potential. . . . The church obviously fashioned the two-adult policy in the belief that even the most apparently virtuous adult should not be left alone with children, because it is generally foreseeable that abuse will occur in such a setting. . . . We hold that the common law of this state, whose public policy strongly favors the protection of children, required the church to enforce the two-adult policy. For these reasons we reverse the trial court’s dismissal of the negligent supervision claim.

What this means for churches

This case contains a number of important lessons, including the following:

  1. This case demonstrates the importance of following a church’s employee and volunteer screening policies even for persons well-known to church leaders. The church did not think it was necessary to screen the youth pastor because his father was a respected employee of a denominational agency. That was a big mistake.
  2. This is one of a few cases that has addressed the need to research applicants’ social media and internet profiles. The court concluded that the church “should have conducted a reasonable background check on the youth pastor before hiring him. There is also no dispute that a reasonable background check would have included a reasonable search of his activity as it bore upon his fitness for the position of youth director.” Such a search should have included a search of the youth pastor’s social media and internet profile if doing so was feasible given the fact that the youth pastor used a pseudonym.
  3. The court affirmed the fundamental principle that a negligent hiring claim requires evidence of an applicant’s misconduct prior to the date of hire. A negligent-hiring claim “implies, indeed depends on, the fact that the youth pastor maintained such objectionable online profiles before his hire.”
  4. The church’s Safe Church Policy mandated that “at least two adults be present to supervise any minor youth or child activities.” The plaintiffs alleged that the church violated the two-adult policy by allowing the youth pastor to conduct youth activities with no other adult present. The church’s policy illustrates an important point. While two-adult policies are essential, churches need to be careful in drafting them so that they do not impose unrealistic and unattainable burdens on the church. The two-adult policy in this case required that “at least two adults be present to supervise any minor youth or child activities.” But did this go too far? Every public elementary and secondary school has one teacher in a room with dozens of minors (in some cases a second adult, such as a teacher’s aide, may be present some of time). Note that public schools are agencies of the state, and so their policies and practices reflect the authority of the state. The point is that if the state deems one adult to be adequate in a classroom with dozens of minors, then is it necessary for churches to adopt a more stringent standard requiring two or more adults to be present at all times in the presence of one or more minors?
  5. The court perpetuated the confusion over the term “pedophile.” It observed, with reference to the youth pastor, that it is “generally foreseeable that abuse will occur in programs providing adults with unsupervised access to children, for it is well known that pedophiles are drawn to such opportunities, in churches and elsewhere.” But the youth pastor was not a pedophile, a term that is limited to persons having a sexual preference for prepubescent minors. The victim in this case was not such a person. The distinction is important, since pedophiles represent a significant risk to churches. The FBI profile on pedophiles indicates that this condition is associated with several characteristics including (1) promiscuity; (2) predatory behavior; (3) incurability; and (4) high recidivism rates.
  6. The court concluded that the church had a duty to implement and enforce its policies, including the two-adult rule, and that a failure to do so constituted negligent supervision. This aspect of the court’s ruling underscores the importance of church leaders being familiar with church policies and taking steps to ensure that they are being followed.
  7. This case is noteworthy for one additional reason. The trial court dismissed the plaintiff’s allegation that the church’s failure to monitor and enforce its two-adult policy amounted to “willful and wanton conduct.” But the appeals court reversed this ruling and allowed the plaintiff to proceed with this theory of liability. Church leaders should be familiar with the concept of willful or wanton conduct, and its corollary gross negligence, because of the following possible consequences: (1) the assessment of punitive damages which are not covered under any insurance policy; (2) the possible exclusion of insurance coverage for willful and wanton acts; and (3) board members lose their limited immunity from liability under state and federal law.

    8. Doe v. Coe, 103 N.E.3d 436 (Ill. App. 2018).

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Legal Developments

Statute of Limitations Bars Sexual Abuse Lawsuit

Woman’s lawsuit seeking monetary damages for the sexual abuse she suffered at the hands of a youth ministry volunteer over several years was barred by the state statute of limitations

Richard R. Hammar, Attorney, CPA
Bio


Key point 10-16.4. The statute of limitations specifies the deadline for filing a civil lawsuit. Lawsuits cannot be brought after this deadline has passed. There are a few exceptions that have been recognized by some courts: (1) The statute of limitations for injuries suffered by a minor begins to run on the minor’s 18th birthday. (2) The statute of limitations does not begin to run until an adult survivor of child sexual molestation “discovers” that he or she has experienced physical or emotional suffering as a result of the molestation. (3) The statute of limitations does not begin to run until an adult with whom a minister or church counselor has had sexual contact “discovers” that his or her psychological damages were caused by the inappropriate contact. (4) The statute of limitations is suspended due to fraud or concealment of a cause of action.

An Illinois court ruled that a woman’s lawsuit seeking monetary damages for the sexual abuse she suffered at the hands of a youth ministry volunteer over several years was barred by the state statute of limitations.

A 5-year-old girl (the “victim”) and her family began attending a church. The victim became involved in the church’s children’s ministry. Beginning at the age of 11 or 12, she attended an overnight church camp in Wisconsin for approximately two weeks every summer.

A church member (the “defendant”) was a leader at the church in charge of the high school youth group. She met the victim when she was 12 or 13, but the two did not have regular contact until the victim joined the high school youth group when she was 14 years old. At that time, the victim saw the defendant at youth group meetings once a week, at church on Sundays, and for sporadic extracurricular activities.

In the summer of 1996, when the victim was 16, she attended an overnight church camp, where she was one of several youth group leaders for the younger members. The defendant was in charge of the leaders.

The defendant told the victim during a series of conversations that she was interested in pursuing a “discipleship” or mentoring relationship with her. The victim understood this to mean that the defendant wanted to read the Bible together and act as her teacher and spiritual adviser. The victim was aware that the defendant previously had a mentoring relationship with another youth group leader. The victim had seen the other leader in bed with the defendant at camp in the summer of 1993 or 1994, when the victim was 12 or 13. After the victim agreed to the discipleship, the defendant began lying in bed with her, cuddling her, and giving her back rubs.

When the victim returned from camp in August 1996, the defendant invited her to her parent’s house to watch a movie, at which time the defendant fondled her. The victim cried and pulled away, and the defendant, also crying, apologized. The victim later testified that she felt ashamed, surprised, and scared because she knew the touching was wrong. Although the defendant assured the plaintiff that it would not happen again, a month later, in the defendant’s car, the defendant moved her hand up the victim’s leg and kissed her. Again, the victim cried and the defendant apologized. From September to December 1996, the abuse occurred on at least ten occasions. In early 1997, the victim claimed that the defendant “sexually penetrated” her in the defendant’s parent’s house, which the victim knew was inappropriate. Over the next several years, the defendant continued to abuse the victim, often taking her to hotels when the defendant’s parents were home.

The victim claimed that the sexual abuse became less frequent when she began college and stopped altogether in 1999 when she was 20, because she “couldn’t take it anymore” and felt the defendant was no longer interested in being her spiritual adviser, but was using her for sex. At no point did the victim feel that her relationship with the defendant was consensual.

The victim did not report the defendant’s behavior while it was occurring because she was aware that when another minor made allegations against the defendant, the minor and her family had to leave the church, while the defendant remained. In addition, the defendant threatened to kill herself if the victim told anyone about the abuse.

In 1999, after the abuse had stopped, the victim received a phone call from a woman who asked her if the defendant ever tried to touch her inappropriately. She later called the other woman’s cousin and told her about the defendant’s abuse toward her. At around this same time, the victim began experiencing chronic anxiety, sadness, and nightmares. However, she claimed that she did not connect these feelings to the abuse until more than a decade later, when in 2012 she told her husband what she had suffered and began therapy. Her therapist diagnosed her with post-traumatic stress disorder arising out of the abuse.

The victim sued the defendant alleging negligence, battery, and emotional distress. A trial court dismissed the lawsuit on the ground that the statute of limitations had expired. The victim appealed.

The appeals court’s ruling

The appeals court quoted the relevant statute of limitations:

An action for damages for personal injury based on childhood sexual abuse must be commenced within 2 years of the day the person abused discovers or through the use of reasonable diligence should discover that the act of childhood sexual abuse occurred and that the injury was caused by the childhood sexual abuse.

The statute further provides that the limitations period does not begin to run until the victim of the abuse is 18 years old.

The defendant argued that the victim knew of the abuse and knew or should have known that her injury was caused by the abuse no later than 1999, shortly after she ended her relationship with the defendant. Therefore, the limitations period expired two years later in 2001. The court agreed:

First, the victim does not allege her memories of the abuse were repressed. Further, while she, too, denied awareness of the fact that the contact between her and the defendant was criminal, she admitted that she knew the contact was “wrong” and “inappropriate” at the time it was occurring. She elaborated that she did not believe her encounters with the defendant amounted to a consensual dating or sexual relationship. It is well-settled that under the discovery rule a plaintiff need not appreciate the criminality of the conduct at issue to be charged with knowledge that her injury was wrongfully caused. Finally … the victim, at the age of 20, informed a third party that the defendant had been “sexually inappropriate” with her. Indeed, she had considered reporting the defendant’s conduct earlier, but decided against it after remembering that another girl whom the defendant mentored made similar allegations that the defendant “inappropriately touched” her, only to end up leaving the church with her family. The victim also recalled that her youth group leader at the time ordered the members not to discuss those allegations. Taken together, and contrary to her argument on appeal, the victim’s testimony establishes that she knew of the defendant’s abuse at the time it occurred … .

The court then addressed the central issue of when the victim knew that her injuries were caused by the sexual abuse, and it concluded that the victim’s lawsuit itself, along with her own testimony, contained ample evidence that she was aware of the sexual abuse as it was occurring:

In the victim’s complaint, she states a claim for … infliction of emotional distress against the defendant, alleging that “as a direct result of [her] conduct” she “suffered and will continue to suffer … severe and permanent emotional distress, physical manifestations of emotional distress, embarrassment, and loss of self-esteem, humiliation and psychological injuries.” All these are injuries the victim testified she suffered immediately following the abuse. For example, she testified that after the defendant fondled her, she began crying and felt shame, fear, and embarrassment. These same reactions and feelings occurred whenever the defendant abused her. To be sure, she may not have realized that the persistent nightmares and ongoing emotional problems she experienced in her 20s were likewise attributable to the abuse, but it is not necessary that a plaintiff recognize the full extent of his or her injuries before bringing suit. Thus … the evidence reveals that the victim actually knew that a portion of her injury was caused by the abuse at the age of 16. And pursuant to [the statute of limitations] when she reached the age of 18, the statute of limitations began to run. The statute expired two years later, in 1999, well before she filed her complaint against the defendant in 2013.

Editor’s note: In August 2017, Illinois passed a bill that eliminated the statute of limitations for child sex abuse allegations.

What this means for churches

Most states have adopted some version of a “discovery rule” for adult victims of childhood sexual abuse. These laws provide that the deadline for filing a lawsuit for childhood sexual abuse does not begin to run until a victim “discovers” his or her emotional damages and realizes that they were caused, to some extent, by the abuse. Such a law allows some adult survivors of child sexual molestation to sue many years (and in some cases decades) after their 18th birthday, claiming that they had not “discovered” the link between their emotional damages and the abuse until the recent past. But this case, and many others reported in this newsletter, demonstrate the difficulty child abuse survivors have of invoking the discovery rule. In this case, the court concluded that it was the victim’s own words, in her lawsuit and testimony, that defeated any reliance on the discovery rule. Her own words illustrated that she knew the defendant’s acts were both wrong and harmful, thereby negating the core requirement for invocation of the discovery rule. Doe v. Carlson, 71 N.E.3d 806 (Ill. App. 2017).

Legal Developments

Judge’s Severe Comments During Youth Pastor’s Trial Ruled Insufficient Grounds to Reverse Conviction

Court fairly considered all of the evidence presented at trial and, despite its harsh rhetoric, imposed a sentence significantly under the maximum aggregate term that defendant faced.

Richard R. Hammar, Attorney, CPA
Bio

Key point. Harsh rhetoric employed by trial judges in condemning the behavior of child molesters does not necessarily constitute grounds for reversing a conviction.

An Illinois appeals court ruled that a trial judge's harsh comments to a jury concerning child molesters in the prosecution of a youth pastor who had sexually molested minors in his church was not grounds for a reduced sentence or new trial.

A church's youth pastor (the "defendant") sexually assaulted two adolescent boys while they were spending the night in the church's parsonage. The defendant allowed his victims to spend the night with him in his house, which was property owned by the church. He proceeded to perform sexual acts on them in that house before taking them to church the next morning. The defendant admitted that "in both cases I destroyed their trust and friendship and broke the promises that I made to them, their families, the church, the community and to my friends and family." The defendant apologized profusely to the victims, their families, his former congregation, members of the community, and his own family.

As part of the defendant's sentencing, the court asked parents to complete a victim's impact statement. The mother of one of the victims prepared a statement which provided, in part: "You stole our son from us. You stole his innocence, his faith, his trust, his will to live … . When he met you and we found out you were a minister we thought you were going to be good for him, teaching him about God's love. Instead you took it all away from him."The defendant was charged with various felony counts, and was found guilty by a jury and sentenced to 30 years in prison. Separately, the defendant faced prosecution for possession of child pornography based on numerous images of child pornography that he had downloaded onto his church computer.

The judge sentenced the defendant to 30 years in prison, a sentence less than the maximum allowed by law. His remarks, which were directed to the defendant, spanned 13 pages, and provided, in part:

These are crimes … of outrage and I think you can imagine the sentence that might be imposed on you if they left you tied to a post uptown and put above it some of the pictures I saw, some of the despicable filth that you left on your church computer. I don't think it would take too long for the good citizens of this area to deal a punishment on you much more severe than my own. And I have struggled mightily to keep my own emotions as a man, as a church goer, as a father in check and I believe that I have done so, but you need to understand that society's worst opprobrium is reserved for people who commit crimes like this … .

These victims, these boys all came to you through church. The offenses were committed on church property. It happened more than once. They occurred while you were a minister. It is clear that you used the cloak of religion to gain access to your victims and to gain the trust of them and their parents … .

Ordinarily we don't have religion in court, that's not a rule that I have made, but it's the law. It does, however, seem impossible to avoid it in this case. And I have always thought it ironic that the Bible, which is really a book of laws, is the only law book I know of that's not allowed in court. I have considered these letters … but I keep coming back to what you did.

You defied 2 churches, 2 houses of the Lord with your depravity and you cast a pall on churchmen everywhere. You have subjected now the church to a lawsuit from one of the most outstanding plaintiff's tort lawyers in Illinois. They want over a million dollars and you brought that on your church that you profess to love. How many children now will be kept out of church and out of youth group because their parents are afraid they are going to be molested? How much harder is it going to be for ministers to gain the trust of parishioners and children? And you have apparently driven at least one of these boys out of the church and away from God, that's according to the victim statement, and that's your fault … .

You might have started out in the church … but I think perversion is your true religion and you are its high priest and there's been enough sacrifice of young men on the altar of depravity by you… . There is nobody worse than a desecrater and a betrayer, especially a minister who does it, who in his actions drives people from God and that's what you did.

The defendant appealed, claiming that the trial court violated his constitutional rights by exhibiting a personal and religious bias against him. In support of his claim, the defendant cited numerous examples of the court's statements at sentencing. He claimed that these statements, including the court's repeated references to church and religion, exemplified the "judge's active, personal or religious animosity, hostility, ill will or distrust toward the defendant." The court, in rejecting the defendant's challenge, concluded:

The trial court's remarks in the present case do not evince any animosity, hostility, ill will, or distrust toward defendant. The court condemned defendant and his actions in the strongest possible terms. The court described the outrage felt in the community stemming from defendant's crimes. Still, the record demonstrates that the court fairly considered all of the evidence presented at trial and, despite its harsh rhetoric, imposed a sentence significantly under the maximum aggregate term that defendant faced. Defendant was convicted of using his position as a youth minister to engage in sexual contact with two young boys. These crimes warranted harsh criticism from the trial court. We hold that harsh criticism, based on the particular facts of a defendant's case, does not constitute any sort of evidence of prejudice derived from personal bias.

Furthermore, the court's references to religion did not reflect any religious animosity or ill will toward defendant. To be sure, the court's repeated references to religion and church are more than is commonly seen in a sentencing hearing. However, these references were plainly invited by defendant. After calling six clergy members to testify in mitigation, defendant's lengthy [presentencing] statement was ripe with religiosity. Having invited a sentencing hearing teeming with religion, defendant may not now argue that the trial court's references to that topic deprived him of due process. More importantly, a number of factors cited by the trial court in aggravation necessarily related to religion, namely that defendant used religion to ensnare his victims, that defendant's crimes were committed on church property, and that child pornography was found on a church computer. On the facts of this case, it would have been virtually impossible for the court to avoid mentioning church or religion in sentencing. The trial court simply could not reference those factors without referencing religion. Defendant's claims that the trial court exhibited personal or religious bias against him are thus affirmatively rebutted by the record.

What this means for churches

This case is instructive for many reasons, including the following.

First, it illustrates the importance of the "two-adult rule" in church programs and activities. That is, a youth or children's worker should never be alone and unsupervised with one child. Church leadership should have established such a rule, and made it applicable to all church property, including the parsonage where the youth pastor resided, and activities. All pastors and lay youth workers should have been apprised of this rule, and instructed to report any violations.

Second, churches should never allow children or adolescents to spend the night with a pastor or lay youth worker in a private residence, parsonage, or hotel room. The risk of inappropriate conduct is too great. Some churches relax the rules when other adults are present, but this seldom helps since continual monitoring in such cases is difficult, if not impossible. Many minors have been sexually molested under these circumstances because the other adults are sleeping or are in other areas of the home.

Third, the defendant copied significant amounts of child pornography on his church computer. Church leaders need to proceed with caution when contemplating searches of church-owned computers used by church staff. The United States Supreme Court ruled in 2010 that employees have a legitimate expectation of privacy in their workspace and employer-provided computer. City of Ontario v. Quon, 2010 WL 2400087 (U.S. 2010). But the Court added that inspections of church-provided computers used by employees may be legally justifiable if based on a "legitimate work-related purpose" and the search is not "excessively intrusive in light of that justification." Church leaders are advised to consult with legal counsel before embarking on the inspection of computers. People v. Rademacher, 59 N.E.3d 12 (Ill. App. 2016).

Legal Developments

Incriminating Statements Made to Pastor Not Confidential Due to Public Setting, Retelling to Others

Church Law and Tax Report Incriminating Statements Made to Pastor Not Confidential Due to Public

Church Law and Tax Report

Incriminating Statements Made to Pastor Not Confidential Due to Public Setting, Retelling to Others

Key point 3-07.2. In order for the clergy-penitent privilege to apply, there must be a communication that is made in confidence. This generally means that there are no other persons present besides the minister and counselee who can overhear the communication, and that there is an expectation that the conversation will be kept secret.

Key point 3-07.5. In some states, the clergy-penitent privilege only applies to communications made to a minister in the course of “discipline.” While most courts interpret this requirement broadly to cover statements made in the course of spiritual counsel and advice, others have interpreted it narrowly to apply only to confessions made to Catholic priests.

An Illinois court ruled that incriminating statements made to a pastor by a murder defendant’s former spouse were properly allowed in evidence by a trial judge because they were not made in confidence, and therefore, the clergy privilege did not apply. In 2009, the State of Illinois charged a defendant with the first degree murder of his third ex-wife (Kathleen) who had been found dead in a bathtub in her home. Because the defendant was a police officer in the same town, a separate, independent agency, the Illinois State Police, was called in to investigate the death. A pathologist performed an autopsy and concluded that Kathleen had drowned. An inquest was later held, and a coroner’s jury found that the death was accidental. No criminal charges were filed.

A few years later, the defendant’s fourth wife disappeared. At the time of the disappearance, the couple had been discussing a divorce. Following the disappearance, Kathleen’s body was exhumed and two additional autopsies were conducted. Both pathologists separately concluded that the death was a homicide.

The case proceeded to a jury trial in July 2012. At the time of the trial, the defendant was represented by a team of six attorneys. The trial lasted over seven weeks. The trial court allowed a pastor to testify about things the defendant’s missing fourth wife had shared with him that directly implicated the defendant in the death of Kathleen.

The trial court allowed the pastor to testify on the basis of its conclusion that the pastor’s conversation with the defendant’s fourth wife was not protected against disclosure by the clergy-penitent privilege. The jury found the defendant guilty of the first-degree murder of Kathleen, and the defendant appealed.

On appeal, the defendant argued that the trial court had erred in ruling that the clergy-penitent privilege did not apply to statements made by the defendant’s fourth wife to her pastor. The defendant claimed that the trial court’s ruling was based on: (1) an erroneous interpretation of the law on the clergy privilege—that the counseling session had to take place in private or at a private place, as compared to merely being confidential, and that the clergy privilege did not apply to marital counseling; and (2) an erroneous determination that the requirements for the privilege had not been satisfied because the counseling was not for the purpose of unburdening one’s soul and because the church in this case had no formalized process for doing so.

On appeal, the state argued that the trial court’s ruling was proper and should be affirmed. In support of this argument, the state asserted that: (1) the clergy privilege did not apply because the defendant’s fourth wife had no expectation of privacy in a conversation with the pastor that took place in a public place/public setting where it could have been overheard by a third person; (2) defendant failed to establish that the requirements necessary for invoking the privilege were present; (3) the nature of the counseling—marital counseling in which the fourth wife was not making an admission or confession for the purpose of unburdening her soul but, rather, was seeking marital advice—was such that it did not qualify for the privilege; (4) even if the fourth wife’s conversation with the pastor was a confession or an admission, no clergy privilege existed because the pastor’s church did not have any formalized rules or practices which would have governed him in hearing the wife’s statements; and (5) if any clergy privilege did exist, the wife waived that privilege when she told others the same information.

In response to those assertions, the defendant claimed that: (1) the clergy privilege does apply to marital counseling; (2) the crucial inquiry is whether the statement was given in confidence, not whether the statement was given in a public place or within possible hearing range of a third party; and (3) the defendant’s fourth wife asserted the privilege when she asked the pastor not to tell anyone about their conversation.

The court quoted the clergy privilege under Illinois law:

A clergyman or practitioner of any religious denomination accredited by the religious body to which he or she belongs, shall not be compelled to disclose in any court … a confession or admission made to him or her in his or her professional character or as a spiritual advisor in the course of the discipline enjoined by the rules or practices of such religious body or of the religion which he or she professes, nor be compelled to divulge any information which has been obtained by him or her in such professional character or as such spiritual advisor.

The court then explained:

The clergy privilege belongs to both the individual making the statement and the clergy member … . The party seeking to invoke the clergy privilege bears the burden of showing that all of the underlying elements required for the privilege to apply have been satisfied … . To fall under the protection of the clergy privilege, the “communication must be an admission or confession (1) made for the purpose of receiving spiritual counsel or consolation (2) to a clergy member whose religion requires him to receive admissions or confessions for the purpose of providing spiritual counsel or consolation.” The privilege applies only to admissions or confessions made in confidence. In deciding whether the admission or confession was made in confidence, the perception of the person making the statement is not determinative in and of itself. Furthermore, an admission or confession is not privileged if it was made to a clergy member in the presence of a third person unless that person was indispensable to the counseling or consoling activity of the clergy member. If the clergy member does not object to testifying, the burden is on the person asserting the privilege to show that disclosure is prohibited by the rules or practices of the particular religion involved … . In addition, the person who made the statement may waive the privilege by communicating the admission or confession to nonprivileged parties.

The court concluded:

Upon a review of the record in the present case, we conclude that the trial court did not err in finding that the clergy privilege was inapplicable to the pastor’s testimony about what the defendant’s fourth wife had told him at her counseling session. The trial court found that the conversation … was not confidential and that finding was not against the manifest weight of the evidence. The meeting took place in public with at least one other person present, although not directly. At the end of the meeting the pastor asked her what she wanted him to do with the information she had given him, a question that would have been unnecessary if nondisclosure of the communication was mandated by the rules of the church. Indeed, the pastor himself eventually approached the police and revealed the conversation to them. In addition, he never asserted the privilege or refused to testify about the matter, and there is no indication that the church itself had any formalized rules or procedures prohibiting him from disclosing what the wife had told him. Thus, even if we assume for arguments sake that the privilege applies to marital counseling in general, it would not have applied to the conversation in this case because the conversation was not confidential. Therefore, we need not determine whether the privilege applies to marital counseling in general or whether defendant has standing to assert the privilege in this case.

What This Means For Churches:

This case is instructive for two reasons.

First, clergy privilege only applies to confidential communications between a member of the clergy and a penitent seeking spiritual counsel. In most states, the clergy privilege statute does not define the essential element of confidentiality. But this court, and many others, have defined confidentiality to mean the absence of third parties during the counseling session.

The key point is this: clergy often provide spiritual counsel to a person in the presence of a third party. Examples include marital counseling with both spouses present; counseling a minor with a parent present; counseling a member of the opposite sex with a third party present for accountability purposes; and counseling someone who is accompanied by a friend for moral support. Clergy should know how “confidentiality” is defined in their state so they are able to inform counselees of the consequences of having a third party present during counseling sessions.

Note that the clergy privilege in some states defines “confidentiality” to mean the absence of third persons except those who are present “in furtherance of” the counseling. This would include some or all of the examples recited above.

Second, the Illinois clergy privilege only applies to “a confession or admission made to him or her in his or her professional character or as a spiritual advisor in the course of the discipline enjoined by the rules or practices of such religious body or of the religion which he or she professes.” The court noted that this requirement was met only if the pastor’s church had “formalized rules or practices which would have governed him in hearing the wife’s statements.” The court concluded that the pastor’s church had adopted no such formalized rules or practices and therefore statements made in confidence to the pastor in the course of spiritual counseling could not be privileged. This is an extremely narrow and technical interpretation of the clergy privilege that is not shared by any other state. In the meantime, it would be prudent for churches in Illinois to adopt a written policy recognizing the clergy privilege to ensure, as much as possible, its availability and application. People v. Peterson, 47 N.E.3d 1005 (Ill. App. 2015).

Legal Developments

Lay Bible Study Leader Successfully Invokes Clergy-Penitent Privilege

The privilege was not necessarily precluded or waived by the practitioner’s disclosure of statements made to him by the penitent in the course of spiritual counsel

Richard R. Hammar, Attorney, CPA
Bio


Key point 3-07.2. In order for the clergy-penitent privilege to apply there must be a communication that is made in confidence. This generally means that there are no other persons present besides the minister and counselee who can overhear the communication, and that there is an expectation that the conversation will be kept secret.

Key point 3-07.3. In order for the clergy-penitent privilege to apply there must be a communication that is made to a minister.

Key point 3-08.03. In most states either the minister or counselee can assert the clergy-penitent privilege, although the minister can do so only on behalf of the counselee. This means that the minister cannot independently assert the privilege if the counselee chooses not to do so.

Key point 3-08.05. In most states a counselee can waive the clergy-penitent privilege by disclosing the privileged communication to someone other than the minister. In some states the minister also may waive the privilege.

An Illinois court ruled that the clergy-penitent privilege could be asserted by a lay practitioner, and that the privilege was not necessarily precluded or waived by the practitioner's disclosure of statements made to him by the penitent in the course of spiritual counseling.

An adult male (the "defendant") was charged with violating an order of protection when he allegedly went to the home of his ex-wife and slashed the tires on a car sitting in the home's driveway. At his trial, a witness (Craig) was called to testify regarding incriminating information the defendant shared with him. He attempted to avoid testifying by invoking the clergy-penitent privilege, claiming that, as the defendant's "spiritual advisor," he could not be forced to testify about an incriminating admission the defendant made to him. The defendant also invoked the privilege.

Craig conceded that he was neither a pastor at the church he and the defendant attended, nor a paid member of any clergy. However, he was a leader of a small Bible-study group at the church, he had been discipling the defendant, and he and the defendant were "accountability partners." As accountability partners, the defendant would confess his faults to Craig, and Craig would pray for him.

Craig often would talk to and pray with other members of the small group about the matters the defendant shared with him. He estimated that he had made these disclosures, including the defendant's confession, to eight persons. He did so to seek the collective wisdom of the group regarding how to disciple the defendant. At the defendant's trial, Craig testified that he had been "accepted" by the church elders as a small-group leader. Craig further testified that, in addition to leading the small group, he was "authorized" by the elders to baptize the defendant.

The trial court found that the clergy-penitent privilege applied and so Craig did not have to testify about the defendant's confession. In reaching that conclusion, the court found that: (1) Craig was approved by the church elders, who comprised the governing body responsible for making spiritual decisions in the church, to lead a small group and baptize the defendant; (2) Craig and the defendant had entered into a discipleship relationship that was supervised by the pastor; (3) conversations between the two were intended to be of a confidential nature and were discussed with others solely for the purposes of prayer.

The state appealed the court's ruling regarding the application of the clergy-penitent privilege. Illinois law defines this privilege as follows:

A clergyman or practitioner of any religious denomination accredited by the religious body to which he or she belongs, shall not be compelled to disclose in any court, or to any administrative board or agency, or to any public officer, a confession or admission made to him or her in his or her professional character or as a spiritual advisor in the course of the discipline enjoined by the rules or practices of such religious body or of the religion which he or she professes, nor be compelled to divulge any information which has been obtained by him or her in such professional character or as such spiritual advisor.

The state asserted that the privilege did not apply to the defendant's confession to Craig for two reasons. First, Craig was not a "clergyman" or "practitioner" as defined in the statute, and second, even if he was, the privilege was waived when he discussed the confession with other people.

Clergyman

The court noted that according to the statute the clergy-penitent privilege applied to both clergy and "practioners" who are accredited "by the body to which he or she belongs," and it concluded that Craig was a practitioner. It acknowledged that the terms "practitioner" and "accredited" were not defined by either the clergy-penitent privilege statute or prior cases in Illinois, so it turned to the dictionary for direction:

"Practitioner" is defined as "one that does something or follows some course or regimen habitually or customarily." Webster's Third New International Dictionary (1993). "Accredit" is defined as "to give official authorization to or approval of," "to order or permit to proceed on an official mission or on one otherwise officially recognized," or "to vouch for officially." In light of these definitions, we conclude that Craig was a "practitioner of [a] religious denomination accredited by the religious body to which he … belonged."

Specifically, the evidence established that the church elders did authorize Craig to lead a small group and to baptize defendant. Thus, the elders, acting on behalf of the church, certainly did "accredit" him to perform certain activities. Although nothing in the statute specifically requires that the practitioner be authorized to receive confessions or admissions from others, the facts here strongly suggest that the church was well aware of the fact that Craig, as defendant's spiritual advisor, was doing just that. Indeed, he regularly spoke with the pastor and assistant pastor about the things to which defendant confessed. Moreover, the evidence established that Craig was fully and regularly engaged in his religious edification with the church. He not only led a religious life, having been discipled himself throughout his Christian life, but he led a small group for the church, was charged with discipling others, and was in training to become a church elder … .

Further … it is unfeasible to expect a pastor of a church to counsel all of the people in the church. Although the specific number of people attending the church is unknown, Craig testified that there were approximately 56 to 64 people in the small groups alone. When we consider the huge congregations of some other churches, like Willow Creek Community Church, the ability of a clergyman to be available to counsel all of the people in the congregation becomes even less likely. Thus, it makes sense that the church would authorize other people in the church to counsel fellow churchgoers in a manner similar to that of a clergyman. Moreover … the evidence here strongly suggests that, when Craig spoke with defendant, he … did so as an assistant to the pastor of the church. That is, when defendant talked to him, the defendant, as he would with a pastor, admitted to things that he had done and sought forgiveness. Craig and the defendant would then pray together and ask for forgiveness.

Waiver of the privilege

The court then addressed the state's claim that the privilege was waived once Craig discussed the defendant's confession with eight people in their small group at church. The court acknowledged that "a plain reading of the [clergy-penitent] statute reveals a design to protect those communications between clergymen and laymen that originate in confidence that they will not be disclosed."

The court concluded that in some cases a communication can be confidential and privileged even if third persons are present. It noted that two other Illinois courts "have recognized that the privilege is not destroyed simply because a third person is present when a defendant confesses to a clergyman or practitioner." In one of those cases a state appeals court ruled that a trial court had erred in holding that the privilege extends only to admissions or confessions made in a "one-on-one setting." People v. Campobello, 810 N.E.2d 307 (Ill. App. 2004). In the second case, an Illinois court ruled that if the third person is regularly engaged in aiding the clergyman or practitioner in giving spiritual advice, the privilege will survive. People v. Diercks, 411 N.E.2d 97 (Ill. App. 1980).

Turning to the facts of this case, the court noted that "here, the undisputed evidence revealed that, although Craig relayed what defendant told him to eight other people, he did so only so that he could obtain advice on how to disciple defendant." It added, "The presence of third parties when a confession is given to a clergyman for the purpose of spiritual advice should not waive the privilege because, among other things, the statute requires simply that the confession be given for the purpose of obtaining spiritual advice, and the presence of third parties should not affect the clergyman's capacity to do so."

The court noted that even if it were to conclude that Craig waived the privilege when he relayed defendant's admission to other people, the defendant did not do so. Because "the privilege belongs both to the person making the statement and to the clergyman [or practitioner] … the privilege would still apply here, as nothing indicates that defendant, who joined Craig in invoking the privilege, ever shared his admission with anyone other than Craig."

What this means or churches

This case is instructive for two reasons. First, it is one of the few cases to address the important question of the impact third persons will have on the clergy-penitent privilege. The presence of one or more individuals when a penitent is seeking spiritual counsel from a minister may jeopardize the privilege in two ways: First, the communication may not be "confidential," as required by the clergy-penitent privilege in all states; and second, the privilege may be "waived" if a penitent is seeking spiritual counsel from a minister in the presence of others.

According to this court, Craig's disclosure—to all eight members of his small group—of the defendant's confidential communications did not destroy the privileged nature of those communications since Craig's disclosure was for the limited purpose of obtaining advice on how to disciple the defendant. In other words, the disclosure was to assist Craig in his counseling of the defendant.

Second, the court concluded that even if Craig had waived the privilege, the defendant had not done so, and therefore Craig was not required to testify regarding the defendant's confession. It is important to note that in most states either the minister or penitent can claim the privilege, and therefore the fact that the minister chooses to testify without asserting the privilege does not preclude the penitent from doing so. People v. Thodos, 49 N.E.3d 62 (Ill. App. 2015).

Legal Developments

Author’s Identity of Anonymous Letter Not Protected by Clergy-Penitent Privilege

Key point 3-07.4. In order for the clergy-penitent privilege to apply there must be a


Key point 3-07.4. In order for the clergy-penitent privilege to apply there must be a communication that is made to a minister acting in a professional capacity as a spiritual adviser.


Key point 3-07.5. In some states the clergy-penitent privilege only applies to communications made to a minister in the course of "discipline." While most courts interpret this requirement broadly to cover statements made in the course of spiritual counsel and advice, others have interpreted it narrowly to apply only to confessions made to Catholic priests.

An Illinois court ruled that a church could be compelled to disclose the identity of the writer of a confidential letter sent to the pastor so that the writer could be sued for defamation. In October 2013, the pastor of a Catholic church received an anonymous letter containing the following allegations:

The writer later met with the pastor, identified himself as the writer of the letter, and "sought consultation and advice about church law, ethics, and policy pertaining to his roles as a parishioner and a volunteer in the parish with responsibility for monitoring children." The pastor claimed that his role as pastor included guiding the parishioners in spiritual matters and providing counseling and direction about canon law, religious law and policy, and the Catholic faith. He insisted that church law required him to keep the confidentiality of requests for counseling and direction.

The alleged perpetrator's mother became aware of the letter. She insisted the allegations against her son were false, and the letter caused her son to become "isolated and ostracized in the community, including the parish community." The mother filed a lawsuit asking the court to compel the disclosure of the letter and its author so that she could sue the person for defamation.

The church and pastor claimed that the letter, and the identity of its author, were protected against disclosure by the clergy-penitent privilege.

A trial court ordered the disclosure of the letter, and the identity of the writer. The pastor and church appealed.


Disclosure of the writer's identity

Under Illinois law "a person or entity who wishes to engage in discovery for the sole purpose of ascertaining the identity of one who may be responsible in damages may file an independent action for such discovery." All that is required for a court to compel disclosure of a person's identity is proof that a lawsuit against the person would survive a motion to dismiss. In the case of defamation, a plaintiff "must plead facts demonstrating that the defendant made a false statement about the plaintiff, that the defendant made an unprivileged publication of the subject statement to a third party, and that the publication caused damages to the plaintiff."

The court concluded that there was sufficient evidence to support the mother's defamation claim to avoid a motion to dismiss, and therefore she was entitled to have the identity of the writer revealed.


The clergy-penitent privilege

The church and pastor claimed that the clergy-penitent privilege should bar the disclosure of the writer's identity. The Illinois clergy-penitent privilege states:

A clergyman or practitioner of any religious denomination accredited by the religious body to which he or she belongs, shall not be compelled to disclose in any court, or to any administrative board or agency, or to any public officer, a confession or admission made to him or her in his or her professional character or as a spiritual advisor in the course of the discipline enjoined by the rules or practices of such religious body or of the religion which he or she professes, nor be compelled to divulge any information which has been obtained by him or her in such professional character or as such spiritual advisor. 735 ILCS 5/8-803.

The court noted that in this case the crucial phrase was "in the course of the discipline enjoined by the rules or practices of such religious body or of the religion which he or she professes … ." The court interpreted this language as follows:

The discipline … is limited to the set of dictates binding a clergy member to receive from an individual an admission or confession for the purpose of spiritually counseling or consoling the individual … . Thus, to qualify for preclusion under the clergy-penitent privilege … a communication must be an admission or confession (1) made for the purpose of receiving spiritual counsel or consolation (2) to a clergy member whose religion requires him to receive admissions or confessions for the purpose of providing spiritual counsel or consolation.

The court noted that the final clause of the privilege prevents the compelled disclosure of "any information" the clergy member has obtained "in such professional character or as such spiritual advisor."

In this case, the writer wrote a letter to his pastor

outlining certain alleged improper sexual conduct, committed several years previously, by [the alleged perpetrator]. The writer sought guidance in how to handle the situation. The writer was a volunteer for a religious-education program conducted by the parish and had the responsibility of monitoring the children in the program. In our view, at least on the present record, the statements in issue are simply not of the character of a confession or admission for which the writer was seeking spiritual guidance. Rather, they are outlining a potential source of risk for the parish and the children if [the alleged perpetrator] were to repeat such conduct while participating in the educational program offered by the parish. This is fundamentally not a matter of conscience for the writer; rather it is a matter of risk management for the writer as an agent of the parish and a guardian of children. Accordingly, we hold that the clergy-penitent privilege is simply inapplicable.

The pastor insisted that, if he identified the writer, it would breach the rules of the church and "breach the confidence of a parishioner and volunteer who sought consolation and guidance." The court disagreed:

What [the pastor] omits, however, is that the writer was a volunteer with a responsibility, within a specific program of religious instruction, to monitor the children participating in that program. Thus, the allegedly defamatory statements are more clearly seen as a request for guidance in conducting the program and discharging the writer's responsibility than as a request for consolation or counseling over a matter of conscience. In other words, the request for guidance was for the purpose of minimizing the risk to the parish and the children, rather than seeking spiritual instruction. We do not believe that the clergy-penitent privilege extends to bureaucratic and administrative purposes. Here, the writer explained the background of one of the children under his or her supervision and asked for guidance in handling the problems posed by this background; the writer did not make a confession or admission … .

The plain language of the statute applies to "a confession or admission." Here, we discern neither a confession nor an admission; rather, the writer's statements are accusative, accusing [the son] of certain improper sexual conduct … . Here, the writer sought guidance not for a spiritual matter or a matter of conscience but in the writer's capacity as a volunteer with the responsibility of monitoring the participants in one of the parish's religious-education programs. It is … the fact that the statements were not a confession or admission, that takes them outside of the privilege.

What This Means For Churches:

This case illustrates two important points. First, in some cases pastors may be compelled to turn over letters written to them in confidence.

Second, evidentiary privileges are narrowly construed, and will not apply unless there is strict compliance with the requirements for the privilege. In this case, the court ruled that the clergy-penitent privilege did not apply to the confidential letter since it did not contain a "confession or admission" as required by the wording of the privilege. This demonstrates the difficulty that is sometimes encountered in deciding if a communication with a pastor is privileged. But incorrectly assuming that a communication is privileged can have unexpected consequences. For example, many states excuse pastors from the legal duty to report child abuse if their knowledge of abuse came from a conversation protected by the clergy-penitent privilege. If a pastor incorrectly assumes that such a conversation was privileged, this may expose the pastor to civil liability for failing to report. The takeaway point is to obtain legal counsel if in doubt as to the application of the clergy-penitent privilege to a particular conversation. Doe v. Catholic Diocese, 38 N.E.3d 1239 (Ill. App. 2015).

Legal Developments

Court Rules Former Employee of Church School Ineligible for Unemployment Benefits

Most state unemployment compensation law contains an exemption for church-operated schools.

Richard R. Hammar, Attorney, CPA
Bio

Key point. Employees of churches and church-affiliated schools are ineligible for unemployment benefits in most states.

An Illinois court ruled that a former employee at a church-affiliated school was not eligible for unemployment benefits.

A former church employee (the "plaintiff") filed a claim for unemployment benefits with the Illinois Department of Employment Security. A hearing was conducted to determine the plaintiff's eligibility for benefits. Testimony at the hearing demonstrated that the church is a nonprofit Illinois corporation organized for religious purposes, and that it operates a school. The church hired and supervised all school personnel and determined their compensation.

The plaintiff was hired by the board of directors of the church. The school did not have a separate corporate charter or legal organization. The church did not pay unemployment contributions because it was tax-exempt. The church did not inform its employees that they would not be able to receive unemployment benefits.

The school had been an elementary school that instructed children from preschool through sixth grade. The church building and the school building are physically attached. Four teachers had been employed at the school. The plaintiff worked as a food service coordinator from 2004 through 2013. She also worked at the church's school. Her check stubs indicated that her employer was the church. In 2013, the church closed the school and the plaintiff was laid off.

After the hearing, the judge issued her decision in which she determined that the plaintiff was not eligible for unemployment insurance benefits under the Illinois Unemployment Insurance Act. The judge explained that under the Act, "employment" does not include services performed in the employ of a church.

The judge reasoned that because the school was not separately incorporated from the church, it constituted an arm of the church and school employees constituted church employees. The judge stated because the plaintiff had not been in the church's employment for purposes of the Act, the money she was paid by the church did not constitute wages for purposes of the Act and could not be considered when determining the plaintiff's eligibility for benefits. The plaintiff appealed.

The appeals court's decision

A state appeals court agreed that the plaintiff was not eligible for unemployment benefits. It noted that the state's unemployment law "was enacted to provide economic relief to individuals who become involuntarily unemployed, through the collection of compulsory contributions from employers and the payment of benefits to eligible unemployed persons." Liability for contributions and eligibility for benefits "is dependent, in part, on the existence of an employment relationship."

The Illinois Unemployment Insurance Act defines "employment" as "any service … performed by an individual for an employing unit." Section 211.3 provides that the term "employment" for purposes of the Act shall not include services performed: "In the employ of (1) a church or convention or association of churches, or (2) an organization or school which is not an institution of higher education, which is operated primarily for religious purposes and which is operated, supervised, controlled or principally supported by a church or convention or association of churches."

The court noted that "where, as here, a school is not separately incorporated from a church or convention or association of churches, it is exempt from coverage under the state unemployment system under section 211.3 because the teachers and other personnel are direct employees of the church."

The court pointed out that "as in other states, Illinois' unemployment insurance legislation implements mandatory federal minimum standards of coverage established by the Federal Unemployment Tax Act (FUTA)," section 3309(b) of which states, in part:

This section shall not apply to service performed … in the employ of (A) a church or convention or association of churches, (B) an organization which is primarily for religious purposes and which is operated, supervised, controlled, or principally supported by a church or convention or association of churches, or (C) an elementary school which is operated primarily for religious purposes … .

The United States Supreme Court has held that subsequent amendments to FUTA did not alter the exemption for church-operated schools that had no separate legal existence from a church or association of churches. See St. Martin Evangelical Lutheran Church v. South Dakota, 451 U.S. 772 (1981).

The court concluded:

Section 3309(b)(1)(A) was meant to apply to schools, like the one in this case, that have no separate legal existence from a church. [The church] financed, supervised and controlled the school's operations. The school did not have a separate legal charter or existence. Thus, the employees working within this school plainly were "in the employ … of a church" [and since] employees of churches and/or organizations operated primarily for religious purposes and controlled, supervised, operated or mainly supported by a church are exempted, it is readily apparent that the church was entitled to the religious exemption, and accordingly, the plaintiff as an employee, was not eligible to receive benefits.

What this means for churches

Nearly every state unemployment compensation law contains an exemption identical to the one addressed by the Illinois court in this case. As a result, this ruling will be relevant to any church that operates a school or preschool. Reed v. Illinois Department of Employment Security, 2015 WL 1422233 (Ill. App. 2015).

Legal Developments

Liability for Positive References

Churches can face liability for recommending former employees known for misconduct.

Richard R. Hammar, Attorney, CPA
Bio

Doe v. McLean County Unit District, 2014 WL 6607487 (Ill. App. 2014)

Two female second grade students (the "victims") were sexually abused by their teacher ("Randy") at a public elementary school. The teacher was arrested and prosecuted on several counts of aggravated criminal sexual abuse. The victims' parents (the "plaintiffs") sued the public school district where Randy had previously been employed, as well as a state education agency. The plaintiffs claimed that the former school district was legally responsible for Randy's abusive acts on the following grounds:

• They willfully and wantonly and with deliberate indifference allowed Randy to be transferred to the school where he molested the victims without revealing knowledge of prior sexual abuse; and

• They violated mandatory child abuse reporting requirements under state law.

In support of their lawsuit, the plaintiffs claimed that the previous school district in which Randy had been employed was aware as early as 2002 that he was using school computers for accessing child pornography, and had engaged in numerous incidents of inappropriate sexual contact with young children. But, district officials refused to report his conduct to the state, and transferred him to another school district without any disclosure of his previous wrongful acts. It was while teaching at a school in this district that Randy met the victims and molested them.

Child Abuse Reporting Law

The plaintiffs claimed that had the officials in Randy's former school district reported his incidents of abuse, the victims would not have been abused by him since he never would have been hired as a teacher in the school where he met them.

The court noted that the state child abuse reporting law makes "all school personnel" mandatory child abuse reporters, and makes mandatory reporters subject to criminal liability (a misdemeanor) for failure to report. However, the reporting law "does not expressly provide for a cause of action for damages brought by a child who is abused as a result of a mandatory reporter's failure to report."

The court, in rejecting the plaintiffs' contention that the child abuse reporting law gave victims of abuse the right to sue mandatory reporters who fail to report, observed:

We must determine whether implying a private right of action is necessary to provide an adequate remedy for violations of the statute. It is this factor that is an insurmountable hurdle to plaintiffs' claim. Civil liability may indeed provide an extra incentive to report, but it certainly is not necessary when a violation for failing to report is remedied by the imposition of criminal sanctions. The legislature has clearly and explicitly set forth the consequences of initial and subsequent violations of [the reporting law]. Our supreme court has noted that it has "implied a private right of action under a statute only in cases where the statute would be ineffective, as a practical matter, unless such an action were implied." That is not the case here. Because the legislature expressly provided for the filing of criminal charges against a mandatory reporter who fails to report, it cannot be said that a civil action for monetary damages is necessary to provide an adequate remedy for a violation. The threat of facing criminal charges for failing to report abuse not only serves as an effective means of enforcement of a reporter's duty, but as a deterrent as well, making an action for civil damages unnecessary for remedial purposes.

The court acknowledged that "no mandatory reporter in this case has been prosecuted for his or her failure to report the sexual abuse by Randy. Because criminal charges are the exclusive means of enforcement for a violation of [the reporting law] it is important that violations be punished or else the purpose of the statute will remain unfulfilled. This is especially true since the legislature has not expressed an intent to provide that violations are subject to monetary damages."

The court concluded:

As a matter of public policy, it is imperative for mandatory reporters to fulfill their reporting duties. In fact, reporting abuse or suspected abuse is the most effective way to protect a child from a cycle of abuse or from a chronic abuser. If it appears criminal charges are inadequate to encourage mandatory reporters to fulfill their duty to report, maybe civil liability is necessary. However, it is not our duty to impose such sanctions or to engage in this policy determination. Only the legislature can evaluate the epidemic in our society and determine if the language of the statute effectively satisfies the legislative intent. That is not for this court to determine.

The court noted that its decision was in line with "the majority of courts in other states."

Failure to Disclose Randy's History of Abusing Children

The plaintiffs also alleged that the defendant officials at the previous school district where Randy was employed were responsible for his molestation of the victims because of their concealment of Randy's dangerous propensities when transferring him to a school in another district. In particular, the parents claimed that:

• The defendant school officials created a risk of harm by falsely representing that Randy had taught at his previous school for the entire 2004-05 school year, when in fact he was removed from the classroom due to sexual abuse of his students.

• Randy's teacher-on-student sexual abuse was never reported by the previous school district in his severance agreement, or letter of reference.

• Defendant school officials created the false impression that Randy's severance from his former school was routine by entering into a severance agreement without reference to his misconduct.

The court concluded that Randy's previous school, and its officials, could be liable for his molestation of the victims in his new school, only if they (1) "willfully and wantonly produced false information" to Randy's new school, or (2) willfully and wantonly concealed truthful information from the new school upon its request for information. The court continued:

Plaintiffs' allegations that defendants produced and maintained false information in Randy's employment file would only give rise to a duty if the false information was submitted to [Randy's new school] … . The allegations regarding Randy's computer use do not support a duty on defendants' behalf. The foreseeability of injury element is lacking between Randy's viewing of pornography and sexually abusing his students. The conduct which gives rise to a duty in this case is any act performed by any defendant with a conscious disregard of plaintiffs' well-being which misstated or concealed his or her knowledge of Randy's sexual abuse and was provided to [Randy's new school].

The court stressed that the defendant officials at Randy's prior school "did not have an affirmative duty to warn [the other school] of Randy's misconduct." Rather, defendants had a duty, if the other school sought information regarding Randy's fitness as a teacher, to provide accurate information. The court observed: "If plaintiffs can allege any defendant who knew of Randy's sexual abuse misstated information, with a conscious disregard for the victims' welfare, regarding the sexual abuse and provided the same to [officials at Randy's new school], then they have successfully alleged a cause of action."

The court concluded: "We must protect children from sex offenders. [Randy's prior school] and every one of its administrators and teachers who knew of his abuse failed not only the victims and their parents, but every child who had been in his class in both schools."

Relevance to Church Leaders

This case is instructive for clarifying two issues of fundamental importance to church leaders: (1) civil liability of mandatory child abuse reporters for failing to report abuse; and (2) liability for providing positive references on former employees who were guilty of misconduct. These issues are covered in greater detail in my article, “Clergy Abuse Reporting and the Clergy Privilege.”

Legal Developments

Anonymous Online Posting May Not Safeguard Individuals from Defamation Claims, Disclosure of Identity

Church Law and Tax Report Anonymous Online Posting May Not Safeguard Individuals from Defamation Claims,

Church Law and Tax Report

Anonymous Online Posting May Not Safeguard Individuals from Defamation Claims, Disclosure of Identity

anonymous-online-posting-may-not-safeguard-individuals-from

Key point 4-02. Defamation consists of (1) oral or written statements about another person; (2) that are false; (3) that are “published” (that is, communicated to other persons); and (4) that injure the other person’s reputation.

The Illinois Supreme Court ruled that a person who allegedly was defamed by an anonymous post to an article in an online newspaper could compel the poster’s Internet service provider to disclose his identity so that he could be sued. A newspaper’s online edition published an article describing the decision of a local resident (the “plaintiff”) to seek election to the county board of supervisors. Online readers could post comments in response to the article after completing a basic registration process. A few days later an individual using the name “Fuboy” posted a comment in which he described the plaintiff as “a Jerry Sandusky waiting to be exposed. Check out the view he has of Empire Elementary School.” Fuboy also made a second comment, stating: “Anybody know the tale of [the plaintiff’s] suicide attempt? It is kinda ‘It’s a Wonderful Life’ with Pottersville winning out.”

The plaintiff filed a defamation lawsuit against the newspaper and its parent company (the “defendants”). The plaintiff alleged that the comment made by Fuboy—that the plaintiff was a “Jerry Sandusky waiting to be exposed”—was defamatory because it imputed the commission of a crime (child molestation) to him. The newspaper provided the plaintiff with the Internet Protocol (IP) address acquired from Fuboy’s Internet service provider, Comcast Cable Communications LLC (Comcast). This was the IP address from which the comments had been transmitted in response to the online newspaper article.

The plaintiff issued a subpoena to Comcast, seeking the identity of the subscriber who had been assigned that IP address. A representative from Comcast advised the plaintiff’s counsel that it was preserving the records and information requested; that it had the name and address of only one account holder of the IP address at issue; and that it required a court order directing it to provide the information. The court entered an order directing Comcast to comply with the subpoena and to provide the information requested, with the conditions that Comcast would have to notify the subscriber and the subscriber would be allowed 21 days to contest the subpoena.

The subscriber’s counsel filed a motion to quash the subpoena. A trial court ruled that under Illinois law the identity of a defendant in a lawsuit can be disclosed if the plaintiff demonstrates “the reason the proposed discovery is necessary and the nature of the discovery sought.” The court concluded that to show that the disclosure of a defendant’s identity is necessary, a plaintiff “has the burden of setting forth allegations that would be sufficient to withstand a motion to dismiss … even if such a motion was not filed.” The court noted that this requirement was necessary “in order to protect any First Amendment interest possessed by the online commentator to engage in nondefamatory, anonymous speech.”Having concluded that the plaintiff’s allegation of defamation would survive a motion to dismiss, the court concluded that disclosing the defendant’s identity was “necessary” and therefore appropriate. Fuboy appealed this ruling.

A state appeals court began its ruling by noting that “in ordering the disclosure of a potential defendant’s identity … a court must balance the plaintiff’s right to redress for unprotected defamatory language against the danger of setting a standard for disclosure that is so low that it effectively chills or eliminates the right to speak anonymously and fails to adequately protect the chosen anonymity of those engaging in nondefamatory public discourse.” In defending the definition of “necessary” as surviving a motion to dismiss, the court noted that once a plaintiff demonstrates that his or her defamation claim would survive a motion to dismiss, an anonymous defendant has no First Amendment right to balance against the plaintiff’s right to redress because there is no First Amendment right to defame.”

The court noted:

A motion to dismiss tests the legal sufficiency of a complaint. The question to be answered is whether the allegations of the complaint, when construed in the light most favorable to the plaintiff, state sufficient facts to establish a cause of action upon which relief may be granted… . A court should not dismiss a complaint … unless it is clearly apparent no set of facts can be proved that would entitle the plaintiff to recovery … . To state a cause of action for defamation, a plaintiff must present facts showing “the defendant made a false statement about the plaintiff, the defendant made an unprivileged publication of that statement to a third party, and the publication caused damages. A defamatory statement is one that harms a person’s reputation because it lowers the person in the eyes of others or deters others from associating with her or him. A statement is defamatory per se if its harm is obvious and apparent on its face [such as] words imputing the commission of a crime.”

The court concluded that Fuboy’s statement imputed the commission of a crime to the plaintiff. It noted that at the time Fuboy’s comment was posted, the Jerry Sandusky sexual abuse scandal had dominated the national news for weeks. The court observed:

Sandusky was a football coach for the famed Penn State football program. Over the course of years, Sandusky allegedly sexually abused young boys. The degree to which Sandusky’s coaching colleagues knew of and failed to alert the appropriate authorities of Sandusky’s criminal activities became part of the scandal. In short, at the time of Fuboy’s comment, numerous men were testifying to the abuse they allegedly suffered at the hands of Sandusky when they were young boys. The general public was mindful of the fact Sandusky was accused of sexually abusing young boys. Stating that the plaintiff was “a Sandusky” while the scandal dominated the national news, coupled with the reference to Empire Elementary School, conveyed the idea that he was a pedophile or had engaged in sexual acts with children and, thus, had committed criminal conduct.

What This Means For Churches:

What recourse do church leaders have when they are potentially defamed by comments posted by anonymous persons on the Internet or social media? This case demonstrates that in some cases they may be able to assert defamation claims, and compel the poster’s Internet service provider to disclose his or her identity. However, this court concluded that the identity of anonymous posters in defamation lawsuits can be revealed only if the lawsuit would survive a motion to dismiss. This is an easy requirement to meet, since it only requires a court to determine “if the allegations of the complaint, when construed in the light most favorable to the plaintiff, state sufficient facts to establish a cause of action upon which relief may be granted.” To state a cause of action for defamation, a plaintiff must present facts showing “the defendant made a false statement about the plaintiff, the defendant made an unprivileged publication of that statement to a third party, and the publication caused damages.”

The court further noted that a statement “is defamatory per se if its harm is obvious and apparent on its face [such as] words imputing the commission of a crime.” Hadley v. Doe, 2015 IL 118000 (Ill. 2015).

Legal Developments

Former Scout Leader Sued for Molestation

Court rules scouting organization is not responsible.

Church Law and Tax Report

Former Scout Leader Sued for Molestation

Court rules scouting organization is not responsible.

Key point 10-04.2. Some courts have found churches not liable on the basis of negligent selection for the molestation of a minor by a church worker since the church exercised reasonable care in the selection of the worker.

Key point 10-04.3. Churches can reduce the risk of liability based on negligent selection for the sexual molestation of minors by adopting risk management policies and procedures.

Key point 10-07. A church may exercise reasonable care in selecting ministers or other church workers but still be responsible for their misconduct if it “retained” them after receiving information indicating that they posed a risk of harm to others.

An Illinois court ruled that a scouting organization was not responsible for the molestation of a young boy by a former scout leader. A minor boy (the “victim”) was sexually molested by a scout leader. The victim’s mother sued the scout leader (the “defendant”) for assault and battery, and the national and regional scouting organizations (the “scouting defendants”) for negligent hiring and negligent retention of the perpetrator. The mother’s lawsuit alleged that the victim met the defendant while participating in a local scout troop; that the victim often spent time alone with the defendant at the latter’s home and other locations; and, that the defendant engaged in multiple sexually deviant acts with the victim over the course of 10 months.

The first incident occurred in February 2006, when the victim accompanied the defendant on an overnight trip and they shared the same bedroom at a hotel. The victim’s mother consented to this trip because the defendant had been in scouting for several years and she had no suspicions about him and trusted him.

The mother claimed that the national and regional scouting organizations were “negligent in the manner that [they] screened, hired, retained, and supervised the defendant when [they] knew or should have known that he posed a threat of sexual abuse to children.” She further claimed that the scouting defendants “failed to conduct background checks on new or existing scouting leaders, employees, agents, volunteers, agents or apparent agents or more carefully screen scout leaders who did not then and never had sons in scouting.”

The mother’s lawsuit cited the following evidence in support of her claims of negligent hiring and retention:

• A scouting volunteer who attended the same church as the defendant testified to his suspicions about the defendant. He noted that the defendant was involved in the youth program and manifested “an inordinate amount of interest” in young boys at church. The volunteer observed that the defendant would “hug the kids, and pick them up, if they were small enough, and rub up against them.” He also testified that the defendant acted suspiciously at the YMCA where the volunteer’s two minor sons were part of a swim team. The defendant would position himself in the locker room so that he could “watch,” in one of the mirrors, the boys change clothes. The volunteer assumed that it was because of the flexibility of the defendant’s job that he was able to be at the YMCA on afternoons when the boys’ swim team was practicing.

• The same volunteer further claimed that the defendant displayed all of the “warning signs” of which scout volunteers are admonished as part of their training. In particular, volunteers are given “the name of the scout executive and his direct phone number so that if you ever saw anything that was inappropriate that was going on, you were supposed to call directly to him.” The volunteer conceded that he did not share his concerns with scouting officials because he did not have a “smoking gun” that the defendant was molesting boys.

• The defendant had served in the Navy until his honorable discharge in 1978. His record contains an “Office Separation Questionnaire” completed by the defendant in which he indicated that he was asked to resign on suspicion of “homosexual tendencies” and possession and sale of drugs.

• The defendant had a prior conviction for driving while intoxicated.

The scouting defendants cited the following evidence in opposition to the mother’s claims:

• One of the defendant’s direct supervisors testified that he had received no complaints about the defendant’s job performance or his suitability for working with minors.

• Another scouting executive testified that he “never detected anything to suggest that the defendant was unfit for a scouting position.”

• A third scouting official testified that after the defendant’s molestation of the victim was revealed, he had “wracked his brain” for warning signs that he might have observed in the defendant, but could recall no reason to suspect that the defendant was a danger to children. However, this executive did recall that the defendant frequently took photographs at scout events. Photography was not part of his duties as district executive, and scouting officials were unsure why he was taking the photos of young boys.

• The defendant had never been employed by the national scouting organization (Boy Scouts of America) and had ceased to be employed by the regional organization in February of 2006, several months before the first incident of sexual molestation occurred during the overnight trip.

A trial court dismissed the lawsuit. It concluded that neither the national, nor the regional, scouting organization were guilty of negligent hiring and retention because, first, the national organization never had employed him and, second, the regional organization no longer employed him when he inflicted the injuries for which the mother sought relief. Second, the court determined that the scouting defendants “adequately executed all voluntary protective measures that they undertook.” The mother appealed.

The appeals court’s decision

The appeals court affirmed the dismissal of the negligence claims against the national scouting organization. It noted that “Illinois law recognizes a cause of action against an employer for negligently hiring, or retaining in its employment, an employee it knew, or should have known, was unfit for the job so as to create a danger of harm to third persons.” The court concluded that the national scouting organization could not be liable on the basis of negligent hiring or retention since “there is no indication in the record that any employment relationship existed between it and the defendant.” The court concluded:

In fact, the scouting professionals who were queried on the matter unequivocally maintained that the defendant was employed by [the regional scouting organization], not BSA. Plaintiff claims, however, that BSA was “inextricably intertwined” with the regional organization in the process leading to the defendant’s hiring, as BSA acted as “the clearinghouse for local councils” and had the “final say over any hire.” Thus, according to plaintiff, BSA “effectively hired the defendant.” We disagree. We know of no “effective” employment relationship under Illinois law except that which is determined by the following factors: “the right to control the manner in which the work is performed; the right to discharge; the method of payment; whether taxes are deducted from the payment; the level of skill required to perform the work; and the furnishing of the necessary tools, materials, or equipment.” While no one single factor is considered determinative, the right to control the work is considered to be the predominant factor. Plaintiff does not discuss these factors, and it is apparent that the most significant factor, namely, the right to control the work, weighs against finding an employment relationship between BSA and the defendant. He reported to the regional organization, not BSA. Therefore, we hold that, as a matter of law, BSA was not the defendant’s employer for purposes of the tort of negligent hiring and retention.

The court acknowledged that the regional scouting organization was the defendant’s employer, however it stressed that the injuries to the victim “occurred after the defendant voluntarily terminated his employment.” The mother “has cited no authority, Illinois or otherwise, for holding an employer liable, under the tort of negligent hiring and retention, for an employee’s post-termination acts. Our own research has disclosed no Illinois decision where a negligent-hiring-and-retention claim was based on post-termination acts.” Further, the court observed:

Liability for negligent hiring arises only when a particular unfitness of an applicant creates a danger of harm to a third person which the employer knew, or should have known, when he hired and placed this applicant in employment where he could injure others. This language suggests that the purpose of the tort is to prevent injuries that occur during the term of employment and, consequently, suggests that the employer’s duty of care does not extend beyond the cessation of employment.

The court noted that even if Illinois law extended liability for negligent hiring and retention to post-employment actions, the mother had failed to prove that the scouting organizations were negligent.

First, on the issue of the hiring of the defendant, the only information that plaintiff claims the scouting organizations would have uncovered had they fulfilled their duty to carefully screen applicants was (1) the defendant’s discharge from the Navy for suspected homosexuality and drug activity and (2) his DWI. In her briefs, plaintiff does not articulate how such facts would have made it reasonably foreseeable that the defendant would sexually molest young boys. Rather, plaintiff merely insinuates that the presence of a “young man” in the car with [the defendant] when he was arrested for DWI indicated some sexual impropriety. The “young man” was, in fact, 18 years old. Plaintiff’s insinuation is simply unwarranted … .

On the issue of negligent retention, plaintiff contends that the negligence consisted of the regional scouting organization’s inaction after the volunteer informed a scout leader of how the defendant behaved in the locker room at the YMCA … . We cannot agree … . The defendant’s conduct at the YMCA was not so clearly prurient, and did not signal such an immediate danger to scouts, as to warrant depriving him of any opportunity to explain himself. Such an explanation might have reasonably persuaded the scouting organizations that his actions were wrongly perceived.

What This Means For Churches:

This case is directly relevant to church leaders for the following reasons:

First, the court concluded that youth-serving organizations are not liable for the post-termination acts of volunteers and employees that do not occur during sanctioned activities. The defendant voluntarily terminated his employment with the regional scouting organization prior to his molestation of the victim, and those acts did not occur during sanctioned scouting activities.

Second, this case demonstrates that national youth-serving organizations, including religious denominations, ordinarily cannot be liable on the basis of negligent hiring or retention for the wrongful acts of workers in local affiliates.

Third, the mother mentioned the defendant’s frequent photographing of young boys as evidence that he might be a pedophile. The court did not respond to this argument. Perhaps it should have. The FBI “profile” of child molesters (“Child Molesters: A Behavioral Analysis”) lists several characteristics of pedophiles, but notes that taking frequent photos of children is perhaps the most telling characteristic: “This includes photographing children fully dressed. One pedophile bragged that he went to rock concerts with 30 or 40 rolls of film in order to photograph young boys. After developing the pictures he fantasized about having sex with the boys. Such a pedophile might frequent playgrounds, youth athletic contests, child beauty pageants, or child exercise classes with his camera (i.e., 35mm, video, digital).” The FBI profile continues:

Collecting this material may help them satisfy, deal with, or reinforce their compulsive, persistent sexual fantasies. Some child erotica is collected as a substitute for preferred but unavailable or illegal child pornography.

Collecting may also fulfill needs for validation. Many preferential sex offenders collect academic and scientific books and articles on the nature of their paraphilic preferences in an effort to understand and justify their own behavior. For the same reason, pedophiles often collect and distribute articles and manuals written by pedophiles in which they attempt to justify and rationalize their behavior. In this material pedophiles share techniques for finding and seducing children and avoiding or dealing with the criminal-justice system.

Preferential sex offenders get passive validation from the books and articles they read and collect. Many preferential sex offenders swap pornographic images the way boys swap baseball cards. As they add to their collections, they get strong reinforcement from each other for their behavior. The collecting and trading process becomes a common bond. Preferential sex offenders get active validation from other offenders, some victims, and occasionally from undercover law-enforcement officers operating “sting” operations. The Internet makes getting active validation easier than ever before. Fear of discovery or identification causes some offenders to settle only for passive validation.

The need for validation may also partially explain why some preferential sex offenders compulsively and systematically save the collected material. It is almost as though each hour spent on the Internet and each communication and image is evidence of the value and legitimacy of their behavior. For example one offender sends another offender a letter or E-mail enclosing photographs and describing his sexual activities with children. At the letter’s or E-mail’s conclusion he asks the recipient to destroy the letter or E-mail because it could be damaging evidence against him. Six months later law enforcement finds the letter or E-mail—carefully filed as part of the offender’s organized collection. Offenders’ need for validation is the foundation on which proactive investigative techniques (e.g., stings, undercover operations) are built, and it is also the primary reason they work so often. In a letter or during Internet correspondence an offender states that he suspects the recipient is an undercover law-enforcement officer and asks for assurances that the recipient is not. The recipient who is in fact an undercover officer sends a reply assuring the offender that he is not. The offender accepts his word and then proceeds to send child pornography and make incriminating statements.

Although their brains may tell them not to send child pornography or reveal details of past or planned criminal acts to someone they met online, their need for validation often compels them to do so. They believe what they need to believe. Some of the theme pornography and erotica collected by preferential sex offenders is saved as a souvenir or trophy of the relationships with victims. All child victims will grow up and become sexually unattractive to the pedophile. In a photograph, however, a 9-year-old child stays young forever. This is one reason why many pedophiles date and label their pictures and videotapes of children. Images and personal items become trophies and souvenirs of their relationships—real or fantasized.

The offenders’ needs to validate their behavior and have souvenirs of their relationships are the motivations most overlooked by investigators when evaluating the significance of the pornography and erotica collections of pedophiles and other preferential sex offenders.

The point is clear—church leaders should be wary of any individual who takes pictures of minors in any church activity or event without a reasonable justification (i.e., a parent taking pictures of her child). Doe v. Boy Scouts of America 4 N.E.3d 550 (Ill. App. 2014).

Legal Developments

Violating the Americans with Disabilities Act

Church terminates employee for refusing to work weekends to care for disabled daughter.

Richard R. Hammar, Attorney, CPA
Bio


Key point 8-14.1. The federal Americans with Disabilities Act prohibits employers with at least 15 employees, and that are engaged in interstate commerce, from discriminating in any employment decision against a qualified individual with a disability who is able, with or without reasonable accommodation from the employer, to perform the essential functions of the job. Accommodations that impose an undue hardship upon an employer are not required. Religious organizations may give preference to nondisabled members of their faith over disabled persons who are members of a different faith.

A federal district court in Illinois ruled that a church did not violate the Americans with Disabilities Act by dismissing an employee who refused to work on weekends in order to be home with her disabled daughter. A church hired a receptionist (the "plaintiff"). Her job required that she work on weekends. Within a week of hiring her, the church learned that the plaintiff's daughter had mental disabilities and lived in a residential care facility. Since the plaintiff could only take her daughter home to visit on weekends, she asked the church to adjust her schedule to allow her to be home with her daughter. She claimed that the church failed to accommodate her, and required her to work on weekends in violation of federal and state law. The situation continued to deteriorate, with the plaintiff refusing to work on weekends despite the church's insistence that she do so. The church eventually terminated her employment, citing her "continued poor performance" and refusal to work weekends.

The plaintiff filed a complaint with the Equal Employment Opportunity Commission (EEOC), and later sued the church in federal court. The sole issue in the case was whether the church unlawfully discriminated against the plaintiff on account of her daughter's mental disability, in violation of the Americans with Disabilities Act (ADA). The church asked the court to dismiss the plaintiff's lawsuit.

The court noted that the ADA prohibits covered employers from "excluding or otherwise denying equal jobs or benefits to a qualified individual because" he or she has a relationship with a disabled person. This provision was enacted "to stop employers from refusing to hire a qualified person out of fear that she will, for example, miss work to care for a disabled child." However, the court noted that "firing an employee who violates "a neutral employer policy concerning attendance or tardiness," even to care for a disabled person, does not violate the ADA." That is, "there is no obligation to reasonably accommodate a nondisabled employee," and "employees are not entitled to (a) modified work schedule to allow them to care for a disabled family member."

The court concluded:

The church offers evidence that it terminated the plaintiff for nondiscriminatory reasons: poor performance and her unwillingness to alter her schedule. Under [existing law] she must refute each ground by offering evidence that it is a mere pretext …. The court finds that the pretext evidence proffered here is insufficient to protect the plaintiff from summary judgment.

We are sympathetic to the position in which plaintiff found herself. Her legitimate need to be home with her daughter conflicted with the church's need to have both members of their full-time staff available to work some weekend hours. However, that does not mean that the church's decision to dismiss the plaintiff violated the ADA. United Methodist Church, 2011 WL 5515521 (N.D. Ill. 2011).

Legal Developments

Invasion of Privacy Lawsuit

The dangers of communicating potentially damaging information about employees.

Richard R. Hammar, Attorney, CPA
Bio

Key point 2-04.1. Most courts have concluded that they are barred by the First Amendment guarantees of religious freedom and nonestablishment of religion from resolving challenges by dismissed clergy to the legal validity of their dismissals.

Key point 4-04. Many states recognize "invasion of privacy" as a basis for liability. Invasion of privacy may consist of any one or more of the following: (1) public disclosure of private facts; (2) use of another person's name or likeness; (3) placing someone in a "false light" in the public eye; or (4) intruding upon another's seclusion.

An Illinois court ruled that it was not barred by the First Amendment guaranty of religious freedom from resolving a pastor's "invasion of privacy" lawsuit against a church that had sent out a letter containing information that damaged his reputation and led to his unemployment as a minister.

A pastor (the "plaintiff") was ordained by a local church (Church A) in 1989. A few years later he became pastor of Church B. He thereafter resigned this position and became senior pastor of Church C, a nondenominational church. While serving as pastor of Church C, he received a letter from the board of Church A requesting that he respond to "disturbing reports" they received about his conduct and informing him that if he did not respond they would rescind his ordination. The letter listed six charges against him, including the following:

The plaintiff called a member of the board at Church A and informed him that the allegations had been investigated by Church C and determined to be false. He further informed the board member that Church A no longer had authority over him because he had resigned his membership and his ministry with Church A many years before. In response, Church A sent the plaintiff a second letter requesting him to appear before the church board on a specified date to respond to the charges set forth in their earlier letter. This later letter also informed him that if he did not appear his ordination would be revoked.

The plaintiff did not appear before the board, and he received a letter a short time later informing him that his ordination had been revoked. Copies of the letter were sent to some of the board members of Church C. The letter also stated:

Effective immediately, in light of our decision to revoke your licensing and ordination, we now request the following: (1) That you no longer function in the role as minister. (2) That you no longer accept the title 'Reverend' or 'Pastor' or any other such title that would imply that you have credentials for spiritual leadership and ministry. (3) That you inform the leadership and membership of [Church C] of our action …. We will continue to pray for you asking that God will graciously change your heart so that you may be restored to your wife and those whose trust you have betrayed.

The plaintiff sued Church A, and its pastor and a board member, for "invading his privacy" by sending false and misleading letters stating that he could no longer act as a minister and could no longer accept the title of "Reverend," "Pastor," or any other title that would imply that he had credentials for spiritual leadership and ministry.

The lawsuit claimed that, as a result of Church A's second letter, more than 200 people withdrew their membership and attendance from Church C under the belief that he no longer could be a minister, and that the church no longer could pay his salary or conduct services because of the diminished membership. The complaint further alleged that the plaintiff could not obtain employment elsewhere as a minister because the letters were disseminated and discussed widely in the evangelical protestant Christian community.

The trial court dismissed the lawsuit on the basis of the "ecclesiastical abstention" doctrine which generally bars the civil courts from resolving internal church disputes. The plaintiff appealed. Church A made several arguments on appeal, which are summarized below along with the court's response.

First Amendment

Church A insisted that its letters were based upon its biblical authority over the ordination that it bestowed upon the plaintiff and that the First Amendment to the United States Constitution prohibits a state court from examining the religious tenets underlying its authority. The court disagreed:

We determine that we do not need to inquire into or interpret religious matters to decide whether the [second] letter was an invasion of privacy. We are not required to look at religious doctrine or biblical underpinnings of [Church A's] right to revoke an ordination to determine whether defendants' conduct invaded [plaintiff's] privacy by publishing false information …. The harm alleged in the complaint resulted from the alleged conduct of defendants in placing [plaintiff] in a false light when revoking that ordination …. We may review defendants' conduct in carrying out the revocation …. Deciding whether defendants published a letter placing [plaintiff] in a false light, by appearing to revoke [plaintiff's] ability to be a minister and pastor … does not require extensive inquiry into religious law and polity.

Invasion of privacy

Church A claimed that even if the plaintiff's claims were not barred by the First Amendment, he could not prove an invasion of privacy and therefore his lawsuit had to be dismissed. The court noted that there are four kinds of invasion of privacy, and that the one the plaintiff was alleging was "publicity placing another person in a false light."

The court noted that to state a case for the "false light" invasion of privacy, a plaintiff must allege that: (1) the defendant's actions placed the plaintiff in a false light before the public; (2) the false light would be highly offensive to a reasonable person; and (3) the defendant acted with actual malice (that is, with knowledge that the statements were false or with reckless disregard for whether the statements were true or false). The plaintiff claimed that the second letter sent out by Church A was false and misleading as it stated that he no longer could be a minister and could no longer be the pastor of Church C.

Church A insisted that the invasion of privacy claim failed because the letters only expressed "religious opinions" that could not be proven "false" and therefore could not support a false light invasion of privacy claim. The court disagreed, noting that all of the accusations contained in the letters were stated as fact, not opinion. The letter stated, "You have had an improper relationship with a divorced single woman," "Your decision to file a divorce petition against your wife," "Your misuse of alcohol," and "Your misuse of personal funds." The court noted that some of these "factual allegations" were falsehoods, such as that the plaintiff filed a divorce petition against his wife, and the other allegations were stated without any investigation, such as that plaintiff misused alcohol and personal funds.

The court also rejected Church A's argument that there could be no invasion of privacy since it did not act maliciously:

For a finding of malice, the jury needed to find that the statements were made with knowledge that they were false or with reckless disregard for whether they were true or false. Here [Church A] testified that it did not investigate the charges in the letters; did not check the public record regarding the circumstances surrounding plaintiff's dissolution proceedings; and did not question those who accused plaintiff of the behaviors stated in the letters …. Thus, we determine that the jury could have found that defendant acted with actual malice.

What this means for churches

Many states recognize "false light" invasion of privacy. This case is instructive because it represents one of the only cases to apply this basis of liability to a church. While the court's analysis of "false light" invasion of privacy is helpful, its conclusion that the ecclesiastical abstention doctrine did not apply is problematic. Most courts have concluded that the First Amendment bars them from resolving employment disputes between ministers and churches, and this rule has often been extended to collateral forms of liability, such as defamation and violation of civil or contract rights. It is likely that courts in many other jurisdictions would have dismissed the plaintiff's invasion of privacy claim.

There is one additional point that should be noted. The plaintiff's attorney did not sue Church A for "interference with contract." This is surprising, since this would have been a much more likely basis of liability than invasion of privacy. In order to establish an action for intentional interference with contract, a plaintiff must prove: (1) the existence of a valid, enforceable contract between the plaintiff and a third party; (2) defendant's knowledge of that contract; (3) defendant's intentional and unjustified inducement of the third party to breach the contract; (4) a subsequent breach by the third party resulting from defendant's wrongful conduct; and (5) damages suffered by the plaintiff as a result of the breach.

Interference with contract may occur when someone shares information with an employer about a current employee that leads to the employee's termination. This is very different from pre-employment references, which cannot "interfere" with an employment contract since none exists. Consider the following example. A Presbyterian minister left a pastoral position in Alaska and accepted a call as minister of a church in Tennessee. When he presented himself to the church to begin his duties, he was informed by church officials that, because of derogatory information the church had received from a denominational official in Alaska, the church would not hire him. The presbyter had informed church leaders that the minister was divorced, dishonest, unable to perform pastoral duties because of throat surgery, and that he had made an improper sexual advance to a church member in Alaska. The minister sued the presbyter for interference with contract. A state supreme court ruled that the interference with contract claim could be resolved by the civil courts.

The takeaway point is this—church leaders should never communicate potentially damaging information to another church or employer concerning a current employee without first seeking legal counsel. Duncan v. Peterson, 947 N.E.2d 305 (Ill. App. 2010).

Legal Developments

Overtime Pay for Work-Related Smartphone Use

Follow these steps to reduce your risk of overtime liability.

Richard R. Hammar, Attorney, CPA
Bio

Key point 8-08.6. The Fair Labor Standards Act exempts employees employed in an executive, administrative, or professional capacity from the minimum wage and overtime pay provisions. To be covered by one of these exemptions, an employee must perform specified duties, and be paid a salary in excess of a specified amount.

A federal court in Illinois refused to dismiss a lawsuit claiming that the City of Chicago violated the Fair Labor Standards Act by failing to pay police officers overtime pay for the use of smartphones for work-related business during nonworking hours.

A Chicago police sergeant (the "plaintiff") sued the City of Chicago on behalf of himself and all other employees of the Chicago Police Department against the City of Chicago, alleging that the City violated the Fair Labor Standards Act ("FLSA") by failing to pay plaintiffs all the compensation they were due.

The plaintiff claimed that, at various points in the last three years, he and other employees of the police department were issued personal data assistants ("PDAs") or other electronic communication devices. He further alleged that:

The plaintiff sought monetary damages in the form of overtime compensation equal to the unpaid compensation and overtime compensation due all police department employees, plus interest, and reasonable attorney's fees, costs, and expenses.

The city asked the court to dismiss the lawsuit for failure to state a claim upon which relief could be granted. The court declined to do so, noting that the plaintiff's claim had sufficient merit to proceed to trial. The court acknowledged that "de minimis" (i.e., minimal) compensable time is "not recoverable under the FLSA." It referred to a federal regulation that states: "In recording working time under the Act, insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded." 29 C.F.R. § 785.47.

This rule applies to "uncertain and indefinite periods of time involving a few seconds or minutes duration."

The city also argued that plaintiff failed to allege the amount of time he spent off duty, beyond a de minimis amount, responding to PDA communications that required his immediate response. The court responded: "Whether the amount of time plaintiff worked off the clock is greater than a de minimis amount, however, is a matter of the proof of his claim, not a matter of the sufficiency and plausibility of his complaint. We are mindful that some courts have required more detailed allegations as to the type and amount of work that allegedly earned FLSA overtime compensation …. [But] the elements that must be shown are simply a failure to pay overtime compensation … and failure to keep payroll records in accordance with the Act."

The court concluded:

The plaintiff pleaded that he was entitled to overtime pay because he "routinely and regularly" responded to phone calls, e-mails and work orders off the clock, as expected by the police department. He further has alleged that he was not paid for the excess hours worked, and that the city failed to keep appropriate records. These allegations of FLSA violations are plausible, and they give the city adequate notice of the claim. Whether plaintiff can prove what he has plead remains to be seen after discovery.

What This Means For Churches

This is the first case that we have seen to address employer liability for overtime based on employees' use of cell phones during non-working hours for business purposes. This court suggested that liability may arise, so long as the cell phone use is documentable and not "de minimis." The case now proceeds to trial, unless it is settled. Future developments regarding this and similar cases will be addressed in future editions of Church Law & Tax Report. For now, church leaders should consider some obvious steps to reduce this potential risk of an overtime pay liability:

  1. Only issue cell phones to employees who clearly satisfy the definition of "exempt employees" under the FLSA. Exempt employees include administrative, executive, and professional employees. Ministers generally are considered professional employees. See sections 8-08.5 and 8-08.6 in Richard Hammar's Pastor, Church & Law (4th ed. 2008) for a full explanation of these exemptions.
  2. If you currently issue cell phones to non-exempt employees, review each case to determine if there is a legitimate business need to do so.
  3. If you determine that a legitimate business need exists for issuing cell phones to one or more non-exempt employees, then require these employees to keep accurate records of their business use of the device that should be cross-checked against the church's monthly cell phone bills for confirmation. The employer has a duty under the FLSA to maintain these records. Obviously, this is going to be an administrative burden for the church that may prompt a reconsideration of which employees really need a church-provided cell phone.
  4. If you determine that a legitimate business need exists for issuing cell phones to one or more non-exempt employees, then consider a policy that requires these employees to leave their church-provided cell phones in their church office during non-working hours. Allen v. City of Chicago, 2011 WL 941383 (N.D. Ill. 2011).

    5. Employment Practices

    See (1) "Compensation," Allen v. City of Chicago, 2011 WL 941383 (N.D. Ill. 2011), and (2) "Minimum wage and overtime pay," Alcazar v. Corporation of the Catholic Archbishop, 627 F.3d 1288 (9th Cir. 2010), and (3) "Privacy," Duncan v. Peterson, 947 N.E.2d 305 (Ill. App. 2010), in the Legal Developments section of this website.

    Fair Labor Standards Act

    See "Minimum wage and overtime pay," Alcazar v. Corporation of the Catholic Archbishop, 627 F.3d 1288 (9th Cir. 2010), in the Legal Developments section of this website.

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