Confidential and Privileged Communications

A Louisiana court addressed the liability of a church and its pastor for the pastor’s unauthorized disclosure of confidential information he obtained from a counselee.

Lann v. Davis, 2001 WL 946583 (La. App. 2001)

Key point.
The Clergy-Penitent Privilege Clergy can be liable for disclosing communications shared with them in confidence to others without the permission of the counselee.

A Louisiana court addressed the liability of a church and its pastor for the pastor's unauthorized disclosure of confidential information he obtained from a counselee in the course of a conversation protected by the clergy-penitent privilege.

An adult male ("Tim") received counseling from the pastor of his church "regarding resolution of conflict between himself and his sisters resulting from physical and sexual abuse conducted by their father." He also alleged that counseling sessions "involved extremely sensitive information he had not discussed with anyone for more than 25 years, with the exception of his spouse." However, Tim later discovered that his pastor "had revealed the content of his counseling sessions to other individuals." He alleged specifically that the pastor denied him a post on a church committee, saying that he "is messed up because he has been sexually abused by his father." Tim alleged that this disclosure necessitated mental counseling and medical treatment, and cost him lost earnings.

Tim sued his pastor and church on the basis of malpractice, infliction of emotional distress, and violation of the clergy privilege. The church asked the court to dismiss the lawsuit, noting that Louisiana has never recognized a cause of action for clergy malpractice. It also noted that the clergy-penitent privilege does not impose a duty on clergy to keep parishioners' problems confidential. The trial court dismissed Tim's claims, and he appealed.

Clergy Malpractice

The court observed, "To date, no court has acknowledged the existence of a separate cause of action for the malpractice of a clergy member while acting within a clerical capacity" since judicial review of pastoral counseling "would require the court and the jury to consider the fundamental perspective and approach to counseling inherent in the beliefs and practices of the religious denomination, in violation of the first amendment's separation of church and state." The court continued, "A pastor who provides counseling services usually does so under the aegis of his church, and is not subjected to the same standards as a state-licensed psychiatrist or social worker. Distinctively faith-based religious principles may guide pastoral counseling; courts therefore abstain from ruling on such counseling, lest they create an excessive entanglement which is prohibited by the first amendment. In short, courts have no right to interpret religious doctrines."

Emotional Distress

The court noted that to recover for intentional infliction of emotional distress Tim had to establish (1) that the conduct of the pastor was extreme and outrageous; (2) that the emotional distress he suffered was severe; and (3) that the pastor desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his conduct." The court concluded that Tim's lawsuit "clearly does not make allegations sufficient meet these standards."

Clergy Privilege

The court acknowledged that Louisiana has adopted a "clergy privilege" that specifies, "A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman in his professional character as spiritual adviser." The court stressed, however, that this privilege "is limited to the admission of evidence in judicial proceedings. It does not create causes of action or other substantive rights." Therefore, Tim was not entitled to money damages as a result of the pastor's disclosure of confidential information he acquired during a conversation protected by the privilege.

Application. This case is important because it is one of the few cases to address the liability of churches and ministers for unauthorized disclosures by ministers of information shared with them in confidence. Unfortunately, such disclosures sometimes occur. According to this court, a church may not be legally liable for damages resulting from such disclosures, since (1) no court recognizes "clergy malpractice" as a viable basis for liability; (2) the requirements for proving "emotional distress" are so strict that this rarely will serve as a basis for liability; and (3) the clergy-penitent privilege is a rule of evidence and does not convey a legal right to sue for unauthorized disclosures of confidential information.

It should be noted that a few courts have disagreed with the court's conclusion regarding the clergy privilege. See the article entitled "Liability for Disclosing Confidential Information," as well as the case of Barnes v. Outlaw, 937 P.2d 323 (Ariz. App. 1996).

In summary, while the Louisiana court declined to hold ministers or churches legally liable for damages resulting from a minister's unauthorized disclosure of confidential information acquired in the course of a confidential counseling session, courts in New York and Arizona have reached the opposite conclusion. Because the precedent is so sparse and conflicting, it is our recommendation that ministers refrain from disclosing confidential information shared with them in the course of a privileged conversation without the express authorization of the counselee. In the event of an inadvertent disclosure of confidential information, ministers and churches can cite this ruling in their defense although a court may well prefer to side with the New York and Arizona rulings.

Recent Developments in Louisiana Regarding Workers Compensation

A Louisiana court ruled that a church music director who claimed to have suffered increased sensitivity to chemicals as a result of her exposure to pine scented Lysol at church was not eligible for workers compensation benefits.

Church Law and Tax1999-11-01

Workers Compensation

Key point. All states have enacted workers compensation laws to provide benefits to employees who are injured or become ill in the course of their employment. Benefits generally are financed through insurance premiums paid by employers. Churches are subject to workers compensation laws in most states.

Key point. Employees are not eligible for workers compensation benefits unless they suffer an injury or illness in the course of their employment that renders them disabled.

A Louisiana court ruled that a church music director who claimed to have suffered increased sensitivity to chemicals as a result of her exposure to pine scented Lysol at church was not eligible for workers compensation benefits. A woman was hired by a church as its music director. As part of her job duties, the music director was required to direct both the bell choir and the chancel choir. During choir rehearsals she would demonstrate to the choir members how to sing, and breathing techniques for singing. In order to maintain her singing voice, it was necessary for her to practice one hour each day. During her tenure as music director the church choir was invited to sing at Carnegie Hall under her direction. One day, after arriving at church for a staff meeting, the music director noticed a very strong odor of pine scented Lysol. Lysol was being used in a room in the area to clean the toys and walls of the nursery. This concerned her because she had been diagnosed as having asthma as a child and also had an allergy to pine. She asked that the door remain open for the meeting and that the fan be turned on in order to help the odor dissipate. The meeting lasted approximately one and one-half hours. After the meeting she left the building for about one and one-half hours. Upon her return she continued to smell the Lysol. As she left the church later that day she noticed that she was having difficulty breathing. She used a “bronchodilator” and then took an antihistamine, falling asleep shortly afterward. The next morning, she received a telephone call from a friend, who could barely understand her voice. The friend and her husband went to the music director’s home where they found her face to be swollen almost beyond recognition. A few days later, after returning to work, she again noted the smell of pine scented Lysol and found that it was again being used to clean the nursery area. She immediately left the building. Following this second exposure, the music director requested that she be notified before any chemicals were used in the church. A few days later she again was exposed to pine Lysol fumes at church, and immediately left the building.

The music director was fired in May of 1995. In September of that year she filed a claim for workers compensation on the basis of injuries she allegedly incurred as a result of her exposures to pine scented Lysol at work. At her trial, the music director claimed that the exposures to Lysol left her with an increased sensitivity to various odors and chemicals. She testified as to several instances where she was in public, but had to leave due to certain odors which caused her to wheeze and have difficulty breathing. She testified that she only goes out of the house two or three times per week and that her physician told her she needed to be homebound except for trips to the store. In addition, she claimed that the exposures to Lysol caused her “mild” asthma to become severe, resulting in a chronic cough that damaged her vocal cords and affected her singing voice. She testified that her singing voice now has a “breathy tone” which is not acceptable by any standards of choral repertoires. Prior to being fired, she stated that her work was seriously impaired because of her inability to sing and demonstrate proper breathing techniques. The music director’s physician testified that once an individual develops “reactive airway disease,” the airways become very sensitive not only to the particular chemical that triggered the disease but also to other stimuli as well. He further testified that the music director was no longer able to perform the type of work she was doing prior to the exposures.

The church’s physician testified that the results of pulmonary function tests were consistent with normal ventilatory function. He concluded that the effects of the Lysol were temporary and there was no evidence that her asthma remained worse after her recovery from that exposure. He did not believe that the music director needed to remain housebound, and he did not believe that her asthma would have an adverse effect on her employability. A trial judge concluded that the music director was not entitled to workers’ compensation benefits and dismissed her claim. The judge based this conclusion on the numerous times that the music director was observed carrying on a normal schedule, including shopping, trips to the post office, and trips to local restaurants. The judge observed that the music director had “underreported her activities” while “overreporting her maladies.” The music director appealed.

A state appeals court agreed with the trial judge, and denied any workers compensation benefits. It began its opinion by observing, “It is well-settled that for an employee to recover benefits under the worker’s compensation law, the employee must carry the burden of proving by a preponderance of the evidence that an accident occurred in the course and scope of his employment, that the accident caused his injury, and that the injury caused his disability …. Although the worker’s compensation rules are construed liberally in favor of the claimant, the employee still must carry the burden of proving by a preponderance of the evidence that the injury caused his disability.” The court conceded that the music director was exposed to pine scented Lysol fumes on at least three occasions during her employment with the church. As a result, the only issue in this case was whether the music director was disabled as a result of these exposures. The court concluded that the evidence at trial failed to prove her disability by a preponderance of the evidence.

Application. This case illustrates two important points. First, churches are subject to workers compensation laws in most states. This means that they should obtain workers compensation insurance on all employees. Such insurance generally will relieve a church of any liability for injuries or illnesses suffered by employees in the course of their employment. However, many churches have not obtained workers compensation insurance, or they have obtained insurance for only some of their staff. This results in a dangerous gap in coverage, making the church potentially liable for some employment-related illnesses and injuries. Many church leaders wrongly assume that the church’s general liability insurance policy will provide coverage. This is rarely the case, since one of the most common exclusions in such policies is any employment-related injury or illness. This exclusion is based on the assumption that such injuries and illnesses are covered under workers compensation. Church leaders should review their workers compensation insurance at least annually, to ensure that all employees are covered. Second, this case demonstrates that employees are not necessarily entitled to workers compensation benefits for all work-related injuries and illnesses. Their illness or injury must result in some form of disability, even if that disability is temporary. The church in this case was able to refute the music director’s claim by (1) “surveillance” videotapes showing her engaged in normal activities in direct contradiction to her claim that she was homebound, and (2) a physician’s testimony that the Lysol exposure did not result in a disabling condition. Starkman v. Munholland United Methodist Church, 707 So.2d 1277 (La. App. 1998). [Workers Compensation]

Related Topics:

Recent Developments in Louisiana Regarding Sexual Misconduct by Clergy and Church Workers

A Louisiana court found a pastor guilty of sexually molesting an adolescent girl.

Church Law and Tax1999-11-01

Sexual Misconduct by Clergy and Church Staff

Key point. Unsupervised contacts between male church workers and adolescent females may lead to inappropriate sexual behavior, or to false allegations of inappropriate conduct. In either case, the church worker is exposing himself and his church to legal risk.

A Louisiana court found a pastor guilty of sexually molesting an adolescent girl. The case contains some important lessons for church leaders. A pastor traveled to Louisiana in 1980 to conduct a revival at a local church. Over the next few years, he returned on a number of occasions to conduct services at the church. The church asked him to become their pastor when their former pastor died. Because the church did not have funds to pay the pastor a salary, he moved into the home of one of the families who attended the church. He had his own room at the family’s home, he was paid to transport the children back and forth to school while their parents worked, and he was given authority over various aspects of the household, including financial matters and discipline of the children. One of the family’s children (the “victim”) later testified that the pastor began kissing her on the mouth and touching her through her underwear when she was about ten years old. This behavior continued for the next few years in various places, including the pastor’s car, the church study, and his room in the house where they lived. When the victim was about 14 years of age, the pastor attempted further sexual activity with the girl. At that time, he had begun to subsidize his income by working for an insurance company. He took the victim and her brother with him to a motel to “check out” a room to be used for a recruitment meeting. The victim’s brother was left downstairs while the pastor took the victim upstairs to a room, pushed the victim onto the bed, and tried to have intercourse with her, while she pleaded with him to stop. The pastor did not stop until his third unsuccessful attempt at intercourse with the child. A year later, the victim was riding with the pastor to give him directions to the home of a woman she knew. The pastor remarked that the victim was now fifteen years old, the age at which he had engaged in intercourse for the first time. He told her he wanted to have sex with her to remind him of his first time. He then pulled off the road and had intercourse with her. The pastor initiated some sort of sexual activity almost daily from this point onward. He told the victim to keep all these activities just between them. He further told her there was nothing wrong with what they were doing because he was a pastor and would not do anything wrong. When she was 17 years old, the victim began taking a sex education course at the parochial school she attended. She was taught that this sexual behavior outside of marriage was sinful. She confronted the pastor with questions about their sexual activity. He explained that the church which ran her school “worshipped a false god.” He further told her that when she became eighteen years old they would be married, which would make everything right. He and the victim stopped having sexual contact at this point. Meanwhile, the victim’s parents were having marital problems. They separated and eventually divorced. The pastor later admitted to having had an affair with the victim’s mother, which resulted in the birth of a child.

A few years later, the victim’s mother was on an errand with a recently widowed woman she knew from the church. When the woman informed her that she and the pastor were going to be married, the victim’s mother suspected that if the pastor was already serious with a woman whose husband had just died, he had probably been molesting her daughter during all those “counseling sessions” when he took her into his room and locked the door. The victim’s mother then told the woman that she had been having an affair with the pastor. The woman drove to her home and asked the pastor to come over. The victim’s mother went into a bedroom while the woman confronted the pastor. He first denied the affair with the victim’s mother, but admitted it as she came out of the bedroom. The victim’s mother attempted to stab the pastor with a knife, but he grabbed her hand in time to prevent any harm.

The victim’s mother then went home to confront her daughter. The victim insisted on seeing the pastor before she would talk to her mother. After a lengthy conversation with the pastor, the victim came home and told her mother all that he had done to her. The victim then exposed the pastor’s activities to the church authorities, who did not believe her. In order to convince them, she hid a tape recorder and had a conversation with the pastor relative to their relationship. That tape was played for the jury and transcripts were distributed. However, much of the tape was inaudible, and the references on the tape were vague. In addition, the victim taped a conversation she had with the woman from church, now the pastor’s wife. That tape was also played for the jury and transcripts of it were distributed. Much of this tape was also inaudible, and the references on that tape were likewise vague. The pastor testified that the apology he referred to in the tape was for disappointing the victim as to his affairs with other women. At trial, he denied having any sexual activity with the victim, though he admitted that his feelings for her changed as she got older. He admitted sending a letter resigning from the church for “sexual immorality” on the advice of church authorities. He testified that this sexual immorality consisted of his affairs with women, not any activity with the victim.

The pastor was charged with a variety of sexual offenses which occurred while he lived in the victim’s home and served as minister of her family’s church, including molestation of a juvenile and carnal knowledge of a juvenile. He was found guilty, and sentenced to a term of hard labor at a state penitentiary.

Application. This tragic case illustrates a couple of important points. First, it demonstrates the risks associated with unsupervised contacts between adult males and adolescent females. The victim and her mother testified that the pastor frequently “counseled” with the victim in his bedroom with the door locked. Further, the pastor frequently was responsible for supervising the victim, and took her places in his car. Such intimate association led to countless incidents of sexual conduct, the jury concluded. Church leaders should adopt policies to minimize or eliminate the risk of such unsupervised “one-on-one” contacts between adult males and minor females. It is worth noting that the pastor steadfastly denied any wrongdoing. The jury did not believe him, but what if he in fact was telling the truth? The fact that he engaged repeatedly in unsupervised contacts with the victim made it impossible for him to prove his innocence. This is another risk of unsupervised opposite sex contacts. Again, churches should adopt policies that will reduce or eliminate this risk. Second, it should be noted that church leaders immediately rejected the victim’s accusations when she informed them of the pastor’s many years of sexual misconduct. No doubt they were stunned. But denying such allegations without any attempt to verify them is never an appropriate response. Such a response has prompted many victims to bring civil lawsuits against their church. Third, the pastor was found guilty and is serving time in a state penitentiary. If and when he is released from prison, he may again seek employment as a pastor. If so, it is likely that he will lie about his past, failing to disclose his criminal record or his previous church employment. What if he applies at your church? Have you adopted screening procedures that would disclose his true background? State v. Holmes, 709 So.2d 1002 (La. App. 1998). [Seduction of Counselees and Church Members]

Recent Developments in Lousiana Regarding Insurance

A Louisiana court ruled that a church insurance policy did not provide any coverage for a pastor who was sued as a result of his sexual molestation of a minor girl.

Church Law and Tax1999-11-01

Insurance

Key point. Church insurance policies often exclude persons who engage in intentional or criminal acts, including sexual misconduct, from any coverage under the policy. Perpetrators of such acts must obtain and pay for their own attorney, and they are personally responsible for paying any portion of a judgment or settlement allocable to their acts. Churches generally are not subject to such exclusions, especially if they are sued on account of their negligence in selecting, retaining, or supervising the perpetrator.

A Louisiana court ruled that a church insurance policy did not provide any coverage for a pastor who was sued as a result of his sexual molestation of a minor girl. The parents of a minor girl sued their pastor and church as a result of the pastor’s sexual molestation of the girl. The church had a liability insurance policy designating it as the named insured. In addition to the named insured, the policy also insured “any officer, director, fiduciary, elder, deacon, vestryman, councilman, clergyman or any member of the board of trustees, governors or board of education, but only while acting within the scope of his duties as such.” The pastor claimed that he was covered under this language, and so the insurance company had a duty to provide him with a legal defense of the lawsuit and pay any portion of a judgment or settlement based on his acts. A state appeals court disagreed. It noted that the policy stated that the insurance company “will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to any person arising out of sexual misconduct or sexual molestation which occurs during the policy period.” However, the policy lists several exclusions, the very first of which is the following: “This insurance does not apply … to any person who personally participated in any act of sexual misconduct or sexual molestation.” The court concluded that this language “clearly and unambiguously excludes coverage for the alleged acts of the [pastor].”

The pastor argued that it is inconsistent for the policy to say that it provides coverage for sexual molestation, but then deny it for the person who actually commits the act. In other words, such insurance is “illusory” in the sense that if it does not provide coverage for the perpetrator it is the same as providing no insurance at all. Not so, concluded the court:

Although the [pastor] is an insured under the policy, he is not the named insured. The named insured is the [church]. The policy is primarily for the protection of the church as the named insured, and only incidentally for the protection of the [pastor]… . It is clear that the sexual molestation insurance is to protect the church from, among other things any liability exposure it may have for the acts of such persons as the [pastor] for whose acts the church may ultimately be held responsible. The policy is obviously not intended to protect the perpetrator of such acts from responsibility and liability for his intentional acts of this kind … .

The court noted that “where child molestation is involved the public policy favors holding the molester responsible.” It explained this statement as follows:

This is a case about personal responsibility. [The pastor] is personally responsible for his acts of molestation and he is personally liable for them. The general theory of insurance is that certain losses are diffused among all members of society and this makes sense especially in case of losses due to floods, hurricanes, earthquakes, and other natural disasters. But the cost of damage caused by sexual molestation is not a burden that society as a whole should bear. It is an intentional act and it is a burden to be laid squarely upon the shoulders of the molester.

As a result, the court concluded that the church’s insurance policy did not provide coverage for the pastor. The court noted that the church was also sued as a result of its alleged negligent retention of the pastor. Specifically, the victim and her parents alleged that in spite of the church’s knowledge of prior sexual allegations against the pastor, the church placed him in a position that enabled him to commit the acts of molestation against the girl. The court concluded that the church’s insurance policy provided coverage for the church since it was being accused of negligent behavior.

Application. Most church insurance policies provide no coverage to persons who molest children. This means that they must obtain and compensate their own attorney and pay any portion of a judgment or settlement that is based on their acts. The costs of defending against such a lawsuit can be substantial, and this should serve as a practical deterrent to this kind of behavior. This is in addition to the deterrent of possible prosecution and imprisonment. However, as the court pointed out, church insurance policies often provide coverage to a church that is sued as a result of its negligence in selecting or retaining an employee or volunteer who later commits one or more acts of sexual molestation. The exclusion of the perpetrator from any coverage under the policy does not extend to the church itself. Stein v. Martin, 709 So.2d 1041 (La. App. 1998). [Seduction of Counselees and Church Members, Negligence as a Basis for Liability]

Recent Developments in Louisiana Regarding the Legal Liabilities of Denominations

The Louisiana Supreme Court ruled that a Catholic archdiocese might be legally responsible for the molestation of a parochial school student by a school principal.

Church Law and Tax1999-09-01

Denominations-Legal Liability

Key point. Denominational agencies may be liable for the acts of persons employed by affiliated organizations.

The Louisiana Supreme Court ruled that a Catholic archdiocese might be legally responsible for the molestation of a parochial school student by a school principal. A couple claimed that their minor child was molested when he was a kindergarten student. A trial court dismissed the lawsuit, noting that the archdiocese and school were separate legal entities; that the principal was an employee of the school; and, absent an employment relationship, the parents’ claims against the archdiocese under the theories of negligent hiring, negligent supervision, and negligent retention could not be maintained. A state appeals court agreed with these conclusions, and the parents appealed to the state supreme court. The supreme court ruled that there was sufficient evidence of an “employment” relationship between the archdiocese and principal that the case should have gone to the jury. It noted that an employee may be employed by more than one employer. The fact that the principal was a school employee did not prevent him from being an employee of the archdiocese. Further, there was evidence demonstrating that the archdiocese and school were not separate legal entities, but rather were part of a “hierarchical” relationship with the archdiocese exercising control over the school. The court then addressed the question of whether the principal was an employee of the archdiocese:

The single, most important factor to consider in deciding whether the employer-employee relationship exists … is the right of the employer to control the work of the employee. The right of control necessarily encompasses supervision, selection and engagement, payment of wages or salary, and the power to dismiss.

The court concluded that there was evidence that the archdiocese met three of these four factors-it exercised substantial supervision over its schools and principals, it was directly involved in the selection of principals, and, it had the authority to dismiss principals. The court conceded that the archdiocese did not pay principals’ salaries, but it concluded that the control the archdiocese did exercise over school principals was sufficient to establish an employment relationship: “The archdiocese exercised a discernable degree of supervision and control, an important factor in analyzing employment relationships. The archdiocese was also involved in the hiring and the dismissal of [the principal].”

Application. The court’s unduly expansive interpretation of the term “employee” will encourage plaintiffs to sue denominational agencies as well as local churches for the acts of clergy and church employees. It is unfortunate that the court did not address several critical questions that are directly relevant in deciding if a worker is an employee of a particular organization: Did the archdiocese withhold federal income taxes from the principal’s wages? Did it withhold state taxes? Did it withhold FICA taxes? Did it obtain workers compensation for the principal? Did it issue the principal a W-2 form each year? Did it include the principal’s wages and withholdings on Form 941 (employer’s quarterly tax returns)? Did it require the principal to complete an I-9 immigration form? These are questions that should have been addressed. Perhaps they will be by the trial court. Doe v. Parauka, 714 So.2d 701 (La. 1998). [Clergy Status-Employee or Self-employed, Negligence as a Basis for Liability, Denominational Liability]

Recent Developments in Louisiana Regarding Personal Injuries on Church Property or During Church Activities

A Louisiana court ruled that a charity that sponsored an overnight youth activity was liable on the basis of negligent supervision for the death of a 12-year-old girl who drowned in a hotel swimming pool.

Church Law and Tax1999-07-01

Personal Injuries-on Church Property or During Church Activities

Key point. Churches may be liable for injuries sustained by minors during church activities as a result of negligent supervision.

A Louisiana court ruled that a charity that sponsored an overnight youth activity was liable on the basis of negligent supervision for the death of a 12-year-old girl who drowned in a hotel swimming pool. While the charity was not a church or other religious organization, the court’s conclusions are of direct relevance to churches. The victim was participating in a basketball tournament in another city. It was her first overnight trip. The team was accompanied by four coaches and several parents. The victim’s mother, who had raised her, was unable to go along. The victim had very little contact with her biological father, and he was unaware of the trip. The team had gone on several overnight trips in the past, and swimming was a common occurrence on those trips. On this trip, the team stayed at a Holiday Inn hotel that had a large atrium and pool. When the team checked into the hotel, the head coach was not informed of any rules or regulations regarding children in the swimming pool.

One evening, following a tournament game, the team had dinner and then returned to the hotel at about 9 PM. Since the pool did not close until 10 PM, several of the children went to the pool. The pool was very crowded with about 50 adults and children, many of whom were associated with teams in the same tournament. The “deck area” surrounding the pool was also very crowded, with between 100 and 200 persons sitting in deck chairs, including the team’s coaches and parents. The senior coach did not provide the team with any instructions before they went into the pool. He did not ask the girls individually if they could swim, and he did not tell them to stay in the shallow end of the pool. The coach sat a few feet away from the pool, and was unaware of any problems or difficulties of any of his team members.

Several minutes after the team entered the pool, a young boy from another team stepped on something in the water. Since the water was “cloudy” due to the large number of swimmers, the child could not clearly see what he was stepping on and assumed that it was a pool toy. A few seconds later he stepped on it again, and this time he decided to investigate. To his horror, he found the victim’s body on the pool floor in some six feet of water. The boy swam to the surface and because of the noise from the large number of people he had to scream loudly and repeatedly before being noticed. He dragged the victim’s body to the side of the pool. Despite the administration of CPR by a hotel guest, and the quick response by paramedics, the victim could not be resuscitated. At the time of the accident, the hotel had no lifeguard on duty, despite its knowledge that several teams of minors were staying in the hotel because of the tournament. Further, no one with water safety training was assigned to monitor the pool and swimmers; there were no hotel regulations regarding pool capacity; the pool and surrounding area were very crowded and noisy, making it unlikely that a swimmer in distress would be readily observed; the pool had no safety rope or lifeline in the deep end; depth markers were not clear; and, the water was cloudy.

The victim’s mother sued the hotel and charity. A state appeals court concluded that the charity and hotel were both responsible for the drowning on the basis of negligence, but that the amount of damages had to be reduced by 30% because of the negligence of the victim and her mother. The court’s reasoning is summarized below:

The Charity

The court conceded that organizations that sponsor youth athletic teams are not “insurers” of the safety of the children who participate. However, they are required to exercise reasonable care “commensurate with the foreseeable risk.” The court noted that the victim was one of only two team members who was not accompanied by a parent. The court then observed:

The crowded state of the pool and surrounding area, the cloudy water, the lack of some basic safety precautions such as the safety rope and adequate depth markers, and the absence of a lifeguard, should have put anyone on notice that the condition of the pool was unsafe. Acting in loco parentis [in the place of parents], the coaches had a duty to monitor the children under their supervision with reasonable care under the circumstances, considering the age of the children and their immature judgment, and the conditions of the pool. We conclude that reasonable attention to those children, especially those without other family members to watch over them, would have enabled the coaches to be aware of [the victim’s] activities, her sudden absence from the group for more than seven minutes, and ascertained her whereabouts. Had she been properly monitored, as were the other children, it is reasonable to assume that she would have been noticed while in distress or found much earlier.

The court concluded that the charity had a duty to ascertain “whether or not [the victim] could swim, and obtain parental permission for her to do so.” It pointed out that the victim’s mother signed a permission form, but this form only authorized her daughter to participate in the basketball tournament. The court noted that had the charity ascertained that the victim “could not swim, the accident could have been prevented by not allowing her in the pool.”

The Hotel

The court found the hotel negligent on the basis of the factors noted above. These included the following: (1) no lifeguard on duty, though several teams of minors were staying in the hotel because of a tournament; (2) no one with water safety training was assigned to monitor the pool and swimmers; (3) no hotel regulations addressed pool capacity; (4) the pool and surrounding area were very crowded and noisy, making it unlikely that a swimmer in distress would be readily observed; (5) the pool had no safety rope or lifeline in the deep end; (6) depth markers were not clear; and (7) the water was cloudy. The court concluded that “the whole purpose of maintaining clear water, providing a lifeguard, guarding against overcrowding, providing a safety rope and depth markers, is to insure that there are not accidents in the pool, specifically drownings.” The hotel breached its duty of providing minors with a safe environment in which to swim.

The Victim and Her Mother

The court concluded that the victim and her mother were both 15% at fault, and therefore the damages payable by the charity and hotel had to be reduced by 30%. The court noted that the victim, a 12-year-old girl, “was aware of the risk of getting into the pool without being able to swim, and therefore she acted unreasonably under the circumstances.” In addition, the mother “should have been aware of all the details of the trip on which her daughter was to be sent, including the very strong possibility of the children going swimming, and informed the coaches that [her daughter] could not swim.”

Application. This case is important for a couple of reasons:

Youth trips that involve swimming. If your church sends minors on a trip that will involve swimming (or the possibility of swimming), there are a number of steps that you can take that will reduce the risk of drowning, and the church’s risk of liability. Some were noted in this decision. They include: (1) Encouraging parents to accompany their children. The court in this case concluded that the charity’s duty of care was greater because the victim’s mother was not present. (2) Having both parents sign a permission form indicating whether or not the child can swim. In some cases, it is not feasible or possible to have both parents sign (due to divorce, separation, or death). But church leaders should recognize that the best protection comes from having both parents sign. (3) If the parental permission form indicates that the child is able to swim, then the form should also ask the parents to authorize their child’s participation in the event, including swimming. (4) If the parental permission form indicates that the child cannot swim, then church leaders must recognize that they are assuming a greater risk by allowing the child to participate. This risk can be avoided by not allowing the child to participate. As the court noted in this case, had the charity ascertained that the victim could not swim, “the accident could have been prevented by not allowing her into the pool.” If parents consent to their child’s participation despite his or her inability to swim, then under no circumstances should the child be allowed to attend the event without appropriate restrictions. The nature of these restrictions will depend on a number of factors, including the age of the child, the degree of supervision provided by adults, the availability of trained lifeguards, and the relative risk of the location. For example, lakes generally pose more danger than pools, because the water is not clear, the area is unsupervised, and there are no lifeguards present. Selecting appropriate restrictions is often a very difficult task for the persons in charge of an event. One recommendation that may help is to ask other local charities (Red Cross, YMCA, Boy Scouts, Girl Scouts) what their policy would be under the same circumstances. Be sure to make a record of the person you spoke with, and the suggestion that this person made. (5) Check with your church insurance agent for additional recommendations. (6) Go to locations that have certified lifeguards on duty.

Churches with pools. If your church has a pool, then be sure to review the unsafe conditions allowed by the hotel in this case that were the basis for legal liability. This will assist you in identifying important risks.Turner v. Parish of Jefferson, 721 So.2d 64 (La. App. 1998). [Negligence as a Basis for Liability]

Recent Developments in Louisiana Regarding Sexual Misconduct by Clergy and Church Workers

A Louisiana court ruled that a community college was legally responsible for a professor’s rape of a student, because it failed to conduct a background check before hiring him.

Church Law and Tax1999-05-01

Sexual Misconduct by Clergy and Church Workers

Key point. Churches may be liable, on the basis of negligent selection, for an employee’s acts of sexual misconduct if there was a failure to conduct an adequate background check at the time the employee was hired.

A Louisiana court ruled that a community college was legally responsible for a professor’s rape of a student, because it failed to conduct a background check before hiring him. While this case involved a state operated college, it will be relevant to churches and religious schools. The professor had a criminal record at the time he was hired, including convictions for possession of marijuana with intent to distribute, theft, and interstate transportation of forged securities. No background check, including a criminal records check, was conducted at the time the professor was hired, other than a verification of the professor’s academic credentials to be sure that he was qualified to teach. No inquiry was made by the college into the professor’s criminal history, either during an interview or on the job application. The victim later sued the college, claiming that it was responsible for her injuries on the basis of “negligent hiring.” Specifically, she asserted that the college was negligent in failing to conduct a criminal records check, or any other kind of background check, on the professor. A trial court rejected the victim’s claim of negligent hiring, and the case was appealed. A state appeals court ruled that the college was guilty of negligent hiring, and as a result was legally responsible for the victim’s injuries. It observed: “When an employer hires an employee who will have a unique opportunity to commit a crime against a third party in the performance of his duties, the employer has a duty to exercise reasonable care in the selection of that employee.” Whether or not an employee has a “unique opportunity” to commit a crime against a third party, the court considered the connection between the employment and the victim. That is, whether the victim met the employee as a result of the employment, and the employer would have received some benefit from the meeting if the wrongful act had not occurred.

The court concluded:

[The college] had a duty to use reasonable care when hiring a person placed in a position of authority as a professor. [It] breached its duty by hiring [the professor], a convicted felon who had served time in prison. The fact that [he] was an instructor … put him in a position to harm [students]. [The college’s] conduct was substandard for failing to screen a prospective professor and that was a cause of the injury. A professor is in a position where character, moral turpitude, and a clean record should be essential. The risk of being raped or harmed by a professor in a position of authority can be associated with the duty to use reasonable care when hiring.

Application. This case demonstrates the importance of conducting background checks on prospective employees and volunteer workers. The case also is important for the following reasons:

The court implied that a criminal records check is required in order to rebut a claim of negligent hiring. While the court seemed to limit this conclusion to employees with criminal records, the fact remains that employers generally will not know that a prospective employee has a criminal record without first conducting a criminal records check.

The court concluded that the professor’s previous convictions for a drug offense, theft, and forgery rendered him a risk of harm to students. Few if any other courts have reached such a sweeping conclusion. Most courts have concluded that a criminal record does not necessarily render a prospective worker a risk of harm to others. Rather, the character of the previous crimes must be considered. Several courts have concluded that drug offenses, theft, and forgery are not the kinds of crimes that make a person a risk of harm to others. Only crimes of violence, such as assault, murder, or rape, can do that. This court did not draw this distinction, but rather concluded that previous crimes involving property also render a person unfit for employment. This is a radical conclusion that few other courts have accepted.

The court concluded that teachers are in unique positions of authority, and as a result they have the opportunity to harm others. This imposed upon the school a duty to conduct an adequate background check before hiring a teacher. Such a check must do more than verify academic credentials. This court suggested that the background check must include the following: (1) asking the applicant during an interview about a criminal record; (2) asking the applicant in an employment application about previous criminal convictions; and (3) conducting a criminal records check.

In conclusion, churches and religious schools must recognize the importance of conducting background checks on persons, such as teachers, who may pose a risk of harm to others because of the authority vested in them. This is especially true in any state whose courts reach the same conclusions as this court. The risk of liability, based on negligent hiring, can be reduced through a number of steps, including appropriate questions in interviews and on employment applications; reference checks; and criminal records checks. Harrington v. Louisiana State Board of Elementary and Secondary Education, 714 So.2d 845 (La. App. 1998). [Seduction of Counselees and Church Members, Negligence as a Basis for Liability]

Recent Developments in Louisiana Regarding Employment Practices

A federal court in Louisiana has issued an important ruling addressing the liability of a church for discriminating against a disabled person.

Church Law and Tax1998-11-01

Employment Practices

Key point. Most courts recognize a “ministerial exception” to federal and state civil rights laws. This exception prevents the civil courts from applying federal or state civil rights laws to employment decisions made by churches and other religious organizations regarding clergy.

A federal court in Louisiana has issued an important ruling addressing the liability of a church for discriminating against a disabled person. A woman began her employment as choirmaster of a church in 1992, and thereafter became the director of music. While employed, she allegedly suffered from a variety of disabilities, including asthma, osteoarthritis of both knees, migraine headaches, and endometriosis. She claimed that the church refused to modify her work schedule to allow full recovery from knee surgery and, after she suffered chemical exposures from cleaning materials, refused to accommodate her chemical sensitivities. Her employment was terminated in May of 1995, and she sued the church and its pastor, claiming that she was discharged in violation of the Americans with Disabilities Act (“ADA”). The pastor insisted that the ADA only applied to employers, and therefore he could not be sued personally for violating it. The pastor and church both claimed that the woman’s lawsuit was barred by the first amendment’s nonestablishment and free exercise of religion clauses.

The pastor’s liability under the ADA

The court agreed with the pastor that the ADA only applied to employers, and therefore the woman could not sue the pastor for violating the ADA since he was not her employer.

The first amendment defense – nonestablishment of religion

The church claimed that if a civil court were to apply the ADA to this case, it would constitute an “excessive entanglement” between church and state in violation of first amendment’s nonestablishment of religion clause. The court agreed that it had to “avoid disputes that cannot be resolved without entangling the government in questions of religious doctrine, polity, and practice,” and that contain issues “which cannot be analyzed in purely secular terms.” It concluded that the woman’s lawsuit might place the court in just such a position:

She looks to the Standards for Certification in Music Ministry in the United Methodist Church to bolster her position. She cites The Book of Discipline in detailing the “specials gifts, evidence of God’s grace, and promise of usefulness” that show a “calling” for the ministry. Most seriously, she cites “John Wesley’s principles of social justice” and the statement of the duties of Christians and Christian ministers in the “Articles of Religion of the Methodist Church” as evidence that the Church should obey the commands of the ADA. Similarly, [the church and pastor] have supported their arguments with reference to the “1994 Ministry of Excellence to Music,” as well as excerpts from the United Methodist Hymnal and the standards for certification as a Director of Music Ministry.

However, the court ruled that dismissal of the case at this time was premature, since the church had not yet established that its decision to dismiss the woman was based solely on religious grounds. It cautioned that the “bare potential” that an employment discrimination inquiry would impact religious beliefs “does not warrant precluding the application” of the law to religious employers.

The first amendment defense – free exercise of religion

The court agreed with the church that if the woman was a “minister,” then the first amendment’s “free exercise of religion” clause barred her ADA claim against the church. It cautioned that its role in applying the “ministerial exception” to civil rights laws was to focus on “the action taken, not possible motives,” and that it could not “inquire whether the reason for [the woman’s dismissal] had some explicit grounding in theological belief.” As a result, the church “need not advance a theological explanation regarding its allegedly illegal employment actions.”

The court considered three factors in deciding whether or not the woman was a minister:

1. Are employment decisions regarding the position at issue made “largely on religious criteria”? The woman claimed that her employment was “based strictly on my abilities as a choral director,” and that the position “only specified that Christian character was necessary,” with “no mention of being a spiritual leader.” However, the requirements for her job included coursework in Bible and Theology, and her position required “renewal of spiritual life.”

2. Authorization to perform the ceremonies of the church. The woman insisted that other staff members preached, led prayers, gave announcements, read scripture, welcomed new members, performed the sacraments, and led prayer groups and Bible studies. As a result, she did not perform the ceremonies of the church, and so could not be considered to be a minister. On the other hand, the church pointed out that the woman performed at least 21 “religious or worship—oriented job duties,” compared to only 3 “nonreligious, nonworship—oriented, or secular job duties.” In addition, the church noted that while the woman’s participation in religious ritual and worship was not a primary duty, and that hours on Sunday were not counted as weekly employment hours, her role was undeniably to lead the congregation in singing during the Sunday worship services. The church pointed to one of its own publications, which affirmed that “music is a gift from God” and that “making and listening to music can be, therefore, an act of prayer, an expression of faith, and a form of spiritual discipline.”

3. Activities traditionally considered ecclesiastical or religious. The court viewed this factor as the most important. The woman claimed that “virtually all of my primary weekly duties did not consist of teaching, spreading the faith, or participation in religious ritual and worship.” However, she listed 19 religious or worship oriented duties as “essential.” In addition, she referred to other “unstated spiritual and ministerial” requirements of her job. Further, the woman admitted that she was designated to be a “ministerial presence” to one ailing parishioner, and spent “numerous hours at the bedside” of another. This was in addition to frequent “visitation or telephoning of choir members.”

The court concluded that the woman’s position at the church was “within the parameters” of the ministerial exception from civil rights laws. It pointed out that “the Director of Music was responsible for duties squarely within the conventional understanding of ecclesiastical or religious functions, and was not a position mainly performing tasks which are not traditionally ecclesiastical or religious.” The court noted that “the ministerial exception has not been limited to members of the clergy,” but rather “encompasses all employees of a religious institution, whether ordained or not, whose primary functions serve its spiritual and pastoral mission.” The court concluded:

In determining whether [the woman’s] responsibilities are “essentially religious,” the court must inquire whether her “primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship.” Because the court finds that [woman’s] position as Director of Music was essentially religious and primarily served the [church’s] spiritual and pastoral mission, [the church] is entitled to invoke the ministerial exception to bar all [the woman’s] claims against it. Of course, this does not mean that every music director in every church falls within the ministerial exception. But in the case at hand, the [woman’s] duties played an integral role in the ministerial functions of [the church]. For this reason, she is covered by the exception.

Application. This case is important for a number of reasons: (1) It illustrates both the vigor and extent of the “ministerial exception” to federal and state civil rights laws. This exception prevents churches from being sued, under federal or state civil rights laws, for employment decisions involving “ministers.” This case demonstrates that the exception is not limited to ordained clergy, but applies to any staff member whose primary duties consist of teaching, spreading the faith, or participation in religious ritual and worship. (2) The court provided a useful three—part test for determining those church staff members who are protected by the ministerial exception. (3) The court cautioned that the role of the civil courts in applying the “ministerial exception” was to focus on “the action taken, not possible motives,” and that the courts cannot “inquire whether the reason for [an adverse employment decision] had some explicit grounding in theological belief.” As a result, a church “need not advance a theological explanation regarding its allegedly illegal employment actions.” (4) This case suggests that job descriptions for ministry positions should be reviewed to ensure that they adequately describe spiritual qualifications and duties. Doing so will reduce a church’s risk of expending substantial amounts of time and resources in defending against discrimination claims. This becomes even more relevant when one considers that most church insurance policies contain no coverage for such claims. As a result, most churches must retain and pay for their own attorney when sued for discrimination, and pay the entire amount of a judgment or settlement. Starkman v. Evans, 1998 WL 548497 (E.D. La. 1998). Termination of Employees,Americans with Disabilities Act, The Free Exercise Clause

Recent Developments in Louisiana Regarding Personal Injuries on Church Property or During Church Activities

A Louisiana court ruled that a church was liable for injuries sustained by a youth group member who was struck by a vehicle while crossing a busy street.

Church Law and Tax1998-11-01

Personal injuries – on church property or during church activities

Key point. Churches may be legally responsible for injuries that occur during youth trips as a result of negligent supervision.

A Louisiana court ruled that a church was liable for injuries sustained by a youth group member who was struck by a vehicle while crossing a busy street. This case is very instructive, and should be reviewed carefully. A church’s youth minister took a group of 37 teenagers and 4 adult chaperones to an out—of—town youth evangelism conference. Most attendees were high school age. After checking into their motel, the group went to a McDonald’s restaurant, which was located on a heavily traveled four—lane road. By then it was getting dark, although the area well lighted. The arrival of the youth group immediately crowded the McDonald’s, filling all serving lines. Some of the boys noticed a small pizza parlor in a strip mall across the street with apparently no waiting. Several of the boys in the group decided they would prefer to eat pizza without the wait. Three of the boys asked the youth minister if they could leave, cross the street, and get pizza. The minister said yes, and walked them to the street to make sure they crossed safely. He did not lead the boys to a nearby traffic light because he considered that more dangerous. Meanwhile, three younger boys decided they wanted pizza. They assumed it was okay for them to cross the street since they saw the other three older boys doing so. The younger boys exited the McDonald’s and ran across the street, passing the first group in the middle of the street in an effort to be first in line for pizza. One of the boys was “buzzed” by a speeding minivan when he was in the middle of the street. One of the members of the youth group was a 12—year—old boy with cerebral palsy (the “victim”). When he saw the other boys going to get pizza, he decided he was too hungry to wait at McDonald’s. He did not ask the youth minister or any of the chaperones for permission to leave; he just left the restaurant and started across the street, without stopping or looking. In the middle of the street, he saw headlights. He lifted his arm defensively and was knocked to the ground, sustaining serious injuries.

The victim and his parents sued the youth minister and their church. They asserted that the accident had been caused by the negligent supervision of the event by the youth minister and church. Specifically, they claimed that the youth minister and the chaperones did not prevent the 12—year—old victim from leaving the group; they did not notice him going out the door, crossing the parking lot and proceeding across the street; and they did not escort the boys to the street to assure safe crossing, or lead them to the traffic light where the crossing would be safer. They also claimed that the youth minister and the adult chaperones made no plans for the boys to return safely to McDonald’s after they finished their pizza. In essence, they “abandoned” the boys across the street.

Negligence of the church and youth minister

A court ruled that the youth minister and church were guilty of negligent supervision. It observed:

Temporary custodians of children, such as school personnel and day care workers, are charged with the highest degree of care towards the children left in their custody, but are not insurers of the children’s safety; supervisors must follow a standard of care commensurate with the age of the children under the attendant circumstances. The duty does not require individual supervision of each child at all times and places. However, fairly close supervision is required when students take a walking trip across a major thoroughfare.

The court then made the following comments:

[The youth minister] testified that he placed a high value on discipline and order among the teens on the trip. If he had said no when [the first group of boys] initially asked for permission to leave, we feel certain that everyone would have stayed at McDonald’s and the accident would not have occurred. Letting some students leave McDonald’s was a departure from plans and entailed crossing a busy street. The jury was entitled to find that [he] breached the standard of care by changing the original dining plans and then failing adequately to monitor how many students left for pizza. The chaperones also failed to notice who left McDonald’s.

The court pointed out that even if the youth minister’s conduct was negligent, he could have avoided the accident by properly escorting all of the boys who wished to cross the street. Further, the court concluded that the youth minister and the other adult leaders acted negligently by failing to make arrangements for the boys to return safely to McDonald’s after they finished eating pizza. The court noted simply that “it is negligent for the adult leader to abandon the children.”

Negligence of the 12—year—old victim

Certainly the victim was himself negligent. After all, he started across a busy four—lane street without looking in either direction. Did his own negligence absolve the church and youth minister of liability? No, concluded the court. It observed:

We find that the significance sought by the church’s conduct – keeping and supervising the students in its care – is great. The church was aware of the dangers of inadequately supervising students on a field trip in an unfamiliar town with dangerous traffic. The record discloses nothing that required [the youth minister] to act in haste or without proper thought in altering the dining plans or monitoring the students. Critically, [he] had a superior capacity to prevent the accident; he could have denied the request to leave McDonald’s, or better supervised those who crossed the street ….

We recognize that the church’s duty is commensurate with the age of the child and other attendant circumstances … [But, the youth minister] loosely granted permission to some students without ascertaining exactly how many would be crossing the street, and he and the chaperones failed to assure that only those receiving permission would actually leave, did not notice when [the victim] left, and did not adequately supervise the crossing of a busy street. Under the circumstances, we are obligated to impose more fault upon the church than upon [the 12—year—old victim].

The court concluded that the victim’s “degree of fault” amounted to 30 percent, while the church’s degree of fault was 70 percent. As a result, the church was liable for 70 percent of the jury’s monetary award.

Application. It is common for churches to send youth groups on out—of—town trips that involve restaurant stops. This case demonstrates the importance of maintaining control over the group during such stops. The court in this case found that the church and youth minister were negligent, and their negligence was primarily responsible for the victim’s injuries. Their negligence consisted of (1) altering their dining plans, (2) allowing some students to cross the street without assuring that others stayed behind, (3) inadequately supervising minors inside McDonald’s, (4) not noticing that the victim left, and (5) by failing to supervise all students who crossed the busy street. This is a good checklist for church leaders to keep in mind whenever a church youth group is traveling out—of—town. Bell v. USAA Casualty Insurance Company, 707 So.2d 102 (La. App. 1998). Negligence as a Basis for Liability

The Consequences of Embezzlement

Louisiana case provides clear example of embezzlement’s cost.

State v. Daigle, 688 So.2d 158 (La. App. 1997)

A Louisiana court sentenced a treasurer to ten years at hard labor for embezzling corporate funds. While the case involved a for-profit company, there are 3 lessons that will be instructive to churches.

First, it is worth noting how the treasurer embezzled company funds. He issued checks to an account he set up with a false name, forged the signature, and cashed the checks. The proceeds were spent on cars, jewelry, and gambling.

Second, the court could not determine how much the treasurer embezzled. He claimed it was $600,000. The company said it was $1 million. An independent audit could confirm only $312,000. Such discrepancies often occur in such cases, and this can cause problems.

Example. A church board determines that an employee has embezzled funds, but it has no way of knowing how much. The board agrees that if the employee resigns and reimburses the church for all of the funds he embezzled, no criminal charges will be brought and the IRS will not be informed. The employee estimates that he took $10,000. The board is frustrated because it has to “take the word of an embezzler.” It has few other options. One would be to a CPA firm to come up with an estimate. But, as this case demonstrates, such estimates may be highly inaccurate and differ sharply from what the embezzler claims to have taken.

Third, the courts take embezzlement seriously. The treasurer in this case had no prior felony convictions, and several witnesses testified at his trial regarding his exemplary character. The trial judge was not persuaded. The sentence was based on these 3 considerations: (1) the “great economic loss” suffered by the company; (2) a lesser sentence would “deprecate the seriousness of the offense”; and (3) the treasurer’s acts of embezzlement represented an “ongoing series of criminal acts for which the state could have brought several individual charges.”

Recent Developments in Louisiana Regarding Libel and Slander

A Louisiana court ruled that it could resolve a priest’s claim that he had been defamed by statements church officials made to the media.

Church Law and Tax1998-05-01

Libel and Slander

Key point. Statements made in the course of internal church disciplinary proceedings ordinarily cannot be defamatory, but some courts recognize an exception to this rule if information shared in such proceedings is disclosed to persons outside of the church.

A Louisiana court ruled that it could resolve a priest’s claim that he had been defamed by statements church officials made to the media. A Catholic priest who had been accused of molesting a child was investigated by church officials. He later filed a lawsuit claiming that the investigating officials had defamed him by making unauthorized disclosures to the media about the case, and interfered with his future employment. The church officials asserted that the civil courts had no authority to resolve the priest’s lawsuit since it was an internal matter of church discipline. A state appeals court disagreed.

Defamation

The court began its opinion by observing:

Society does not view child molestation as a matter of religious doctrine, as distinguished from, say, the procedures within the church necessary to atone for such a sin. Child sexual abuse is anathema to society in general, even to atheists. It is prohibited by secular laws. The public has an interest in matters of child molestation. Therefore, where child molestation is at issue, it cannot be considered just an internal matter of church discipline or administration. Child molestation is distinguishable from those cases where religious figures claim that their reputations were damaged because they were found to be poor administrators or where their private conduct did not comport with church standards, but the issue was not one of the violation of secular criminal laws. The church cannot appropriate a matter with secular criminal implications by making it simultaneously a matter of internal church policy and discipline.

The court conceded that the civil courts cannot resolve defamation claims brought by clergy if the allegedly defamatory remarks were communicated only to church members in the context of a disciplinary hearing or proceeding. It observed:

It is one thing to say that churches must be free of governmental interference to conduct matters of internal discipline and organization, even when those matters touch upon the reputations of those affected. It is quite another to say that churches have the unfettered right to make unsubstantiated statements of an essentially secular nature to the media destructive of a priest’s character ….

The court cautioned that the priest “may be unable to prove his allegation of defamation through the news media,” but added that “we cannot say that this court lacks … jurisdiction over such an allegation.”

Interference with employment

The priest insisted that a church official interfered with his employment prospects as a Navy chaplain as a result of a letter of reference that referred to “some accusations of questionable behavior and some complaints about [the priest’s] ministry.” The church official insisted that the letter of reference pertained to the fitness of the priest for assignment to a chaplaincy position-a matter beyond the reach of the civil courts. The court did not address this issue directly, but seemed to acknowledge that internal communications among clergy or church leaders regarding the fitness of a minister cannot give rise to civil liability.

Application. There are a couple of aspects to this decision that are of special significance to church leaders. First, the court conceded that statements made among members in the course of church disciplinary proceedings cannot be defamatory. However, it recognized an exception to this rule in the context of “leaks” of information by church officials to outsiders, including the media. Second, the court seemed to support the general rule that the civil courts have no authority to review disputes concerning the selection or qualification of ministers. Hayden v. Schulte, 701 So.2d 1354 (La. App. 1997). [Defamati on]

Recent Developments in Louisiana Regarding Employment Practices

A federal court in Louisiana ruled that a church school did not violate the Americans with Disabilities Act by not rehiring a teacher who had to temporarily quit her job because of pregnancy-related varicose veins.

Church Law and Tax1998-03-01

Employment Practices

Key point. Employees who bring a disability discrimination claim against their employer must demonstrate that (1) they suffer from a disability; (2) they were otherwise qualified for the job in question; (3) they were subject to an adverse employment action; and (4) they were replaced by a non—disabled person or treated less favorably than non—disabled employees. If they prove all 4 elements, then the burden of proof shifts to the employer to establish a legitimate, non—discriminatory reason for its action. If it does so, then the plaintiff must prove that the employer’s reason is a “pretext” for discrimination.

A federal court in Louisiana ruled that a church school did not violate the Americans with Disabilities Act by not rehiring a teacher who had to temporarily quit her job because of pregnancy—related varicose veins. A female teacher (the “plaintiff”) was employed by a Catholic parochial school since 1979. In 1984, doctors determined that she was suffering from varicose veins. This circulatory problem worsened with her pregnancies and prevented her from standing or sitting for long periods of time. The school accommodated her by providing her with a first floor classroom because of her discomfort in climbing stairs. While pregnant with her fifth child, the plaintiff did not teach during the 1991—92 school year and received disability payments from the school. She returned to the school for the next school year but left during the middle of the year when she became pregnant with her sixth child. She received disability payments during this time period. In January of 1994, her doctor released her to return to teaching, but the school had no available positions since the release occurred during the middle of the school year. In March 1994, the plaintiff informed school officials that she wanted to teach during the 1994—95 school year. The school’s principal informed the plaintiff that she would probably not be hired for the next school year because the school would be retaining her replacement. When the replacement teacher indicated that she would not be returning the next year, the principal hired a teacher from a list of 75 applicants. She chose not to rehire the plaintiff because of her evaluation of the plaintiff’s professional capabilities and past attendance record. The principal felt that the new teacher, who had 11 years of teaching experience, was better qualified than the plaintiff. The plaintiff sued the school, claiming that its decision not to rehire her violated the Americans with Disabilities Act (ADA).

The court noted that the ADA prohibits discrimination by an employer against a qualified individual with a disability on the basis of that disability. The term “qualified individual with a disability” means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the job. In order to prevail in an ADA lawsuit, a plaintiff must establish a “prima facie case” of disability discrimination by showing that (1) she suffered from a disability; (2) she was otherwise qualified for the job; (3) she was subject to an adverse employment action; and (4) she was replaced by a non—disabled person or treated less favorably than non—disabled employees. The employer can rebut the prima facie case by offering a legitimate, non—discriminatory reason for its action. Once the employer does this, the plaintiff then has the burden to prove that the employer’s reason is a “pretext” for discrimination.

The court noted that the school offered non—discriminatory reasons for the principal’s decision not to rehire the plaintiff. The school’s evidence includes the principal’s statements that her decision was not based on the plaintiff’s medical condition, but on the plaintiff’s attendance record and on what the principal perceived to be the plaintiff’s professional shortcomings. The principal made her decision based on her personal knowledge of the plaintiff obtained over a ten year period of working with or supervising her. In addition, the principal claimed that she did not rehire the plaintiff because she found a more qualified teacher. As a result, the school established a legitimate, non—discriminatory reason for its decision not to rehire the plaintiff. It was then up to the plaintiff to prove that the employer’s reason was a “pretext” for discrimination. The court concluded that the plaintiff failed to meet this burden.

Application. This case provides an excellent review of the procedure that is followed in discrimination cases. The person alleging discrimination has the initial burden of proof, which is called the “prima facie case.” This means that “victims” must prove that (1) they suffer from a disability; (2) they were otherwise qualified for the job in question; (3) they were subject to an adverse employment action; and (4) they were replaced by a non—disabled person or treated less favorably than non—disabled employees. If the victim establishes all 4 elements of a prima facie case, then the burden of proof shifts to the employer to establish a legitimate, non—discriminatory reason for its action. If it does so, then the plaintiff must prove that the employer’s reason is a “pretext” for discrimination. Kent v. Roman Catholic Church, 1997 WL 30201 (E.D. La. 1997). [ Americans with Disabilities Act]

Members’ Right to Inspect Church Records

When can members inspect church records?


Key point. Most state nonprofit corporation laws give members of a nonprofit corporation a legal right to inspect specified corporate records. Churches incorporated under such laws are subject to these same provisions, meaning that members may have a right to inspect some church records. Such a right of inspection does not violate the first amendment.

A Louisiana court ruled that an incorporated church had to allow members to inspect church records.

Four members asked for permission to inspect the following records of their church: (1) bank statements from 1994; (2) the check register and cancelled checks for all the church's bank accounts from 1994; (3) the cash receipts journal from 1994; and (4) monthly financial reports from 1994. The pastor of the church denied the members' request. The members then sought a court order compelling the church to permit them to inspect the records. The pastor insisted that such an order would interfere with "internal church governance" in violation of the first amendment. A state appeals court ruled that allowing the members to inspect records, pursuant to state nonprofit corporation law, would not violate the first amendment.

The Louisiana nonprofit corporation law gives every voting member of a nonprofit corporation the right to "examine, in person … at any reasonable time, the records of the corporation." The court noted that the persons seeking to inspect church records were members, and that the church was incorporated under the nonprofit corporation law. As a result, the requirements for a right of inspection were met. Further, this right did not violate the first amendment guaranty of religious freedom.

The court quoted from an earlier Louisiana Supreme Court ruling addressing the same issue:

A voting member of a nonprofit corporation has a right to examine the records of the corporation without stating reasons for his inspection. Since the judicial enforcement of this right does not entangle civil courts in questions of religious doctrine, polity, or practice, the first amendment does not bar a suit to implement the statutory right.

First amendment values are plainly not jeopardized by a civil court's enforcement of a voting member's right to examine these records. No dispute arising in the course of this litigation requires the court to resolve an underlying controversy over religious doctrine.

The court concluded: "Likewise, in the case before us, there is no entanglement in questions of church doctrine. The trial court … was not deciding or even delving into the underlying religious dispute, if any. The court was simply enforcing the members' right to examine financial records, whatever the members' reasons or the merit of their complaint."

What this means for churches

Many churches are incorporated under nonprofit corporation laws that give members a limited right to inspect records. The inspection right is limited, because

  • it only applies to members;
  • it only applies to members of churches that are incorporated under the nonprofit corporation law;
  • members generally have a right to inspect documents only for a "proper purpose" at a "reasonable time"; and
  • nonprofit corporation laws often specify those documents that may be inspected.

Church leaders who are presented with a request by a member to inspect church records should refer to the nonprofit corporation law under which the church is incorporated. If the church is not incorporated, then members generally do not have a legal right to inspect records unless such a right is granted by the church charter or bylaws.

Jefferson v. Franklin, 692 So.2d 602 (La. App. 1997).

Man Alleges Sexual Abuse; Sues Priest and Diocese

Experts find that cases of memory suppression are unlikely.

Church Law and Tax 1997-07-01

Sexual Misconduct by Clergy and Church Workers

A Louisiana court ruled that a 32—year—old adult’s lawsuit against a diocese and a priest who molested him when he was a minor was barred by the statute of limitations. The victim claimed that he was molested when he was 14 years old by his parish priest. He insisted that he had no recollection of the molestation until he watched a television program on sexual misconduct by clergy when he was 32 years old. This program allegedly “restored his memory” of the acts of molestation that occurred when he was 14. He filed a lawsuit within a few weeks, but a trial court dismissed the case on the basis of the statute of limitations. It rejected the victims claim that the statute of limitations did not begin to run until his memory of the molestation was restored after watching the television program.

There are a number of aspects to the court’s ruling that are worth noting:

1. The court referred to the following “Statement on Memories of Sexual Abuse” adopted in 1993 by the American Psychiatric Association:

Children and adolescents who have been abused cope with the trauma by using a variety of psychological mechanisms. In some instances, these coping mechanisms result in a lack of conscious awareness of the abuse for varying periods of time. Conscious thoughts and feelings stemming from the abuse may emerge at a later date.

2. The court referred to the testimony of two recognized experts in the field of the sexual abuse of children and memory suppression (Dr. David Corwin and Dr. Gene Usdin). The court summarized the testimony of these experts as follows:

Both [experts], using literature on the topic, explained that children abused before the age of six are more likely to exhibit memory suppression, and that the likelihood decreases the older the child is when the incident occurs. The studies showed that suppression is infrequent in children molested between the ages of twelve and eighteen.

3. The court noted that the same two psychological experts agreed that “the most traumatic events generally are the last to be remembered as well as the last to be disclosed by victims of child sexual abuse.”

4. The court noted that one of the experts “knew of no other reported case involving total suppression of a major trauma for such an extended period of time.”

Application. The importance of this case is the court’s discussion of the testimony of the two experts in the field of child sexual abuse. Perhaps most importantly, the experts agreed that cases of children suppressing memories of molestation are very unlikely among minors between twelve and eighteen years of age. Further, cases of total suppression over extended periods of time are very rare. J.A.G. v. Schmaltz, 682 So.2d 331 (La. App,. 1996). [Seduction of Counselees and Church Members, Negligence as a Basis for Liability—Defenses]

Church Sued for Minor’s Acts of Molestation

The minor had been molested by a church employee.

Church Law and Tax 1997-05-01

Sexual Misconduct by Clergy and Church Workers

Key point. Churches are not necessarily responsible for acts of child molestation committed by minors who themselves were molested by a church worker.

A Louisiana court ruled that a church was not legally responsible for a minor’s acts of child molestation. A minor molested two young children. The molestation did not occur at a church and had no connection with a church. However, the victims’ parents sued a church claiming that it was responsible for their children’s injuries because the molester had himself been molested by an employee of the church several years before. A state appeals court dismissed the lawsuit. It observed that “it is well-recognized that an actor has no duty to control the conduct of a third person so as to prevent him from causing physical harm to another unless a special relationship exists between the actor and the other so as to afford the other a right to protection.” The court concluded that no “special relationship” existed between the church and its former employee who molested the minor who later molested the two young children. Further, there was simply not a close enough connection between the acts of the church employee and the molestation later committed by a boy that he molested.

Application. This is the first case we have seen in which a church was sued for an act of child molestation having no connection with the church other than the fact that the offender was previously molested by a church employee. Fortunately, the court rejected this basis of liability. Had it found the church liable, it would have sent a message that a church is forever liable for acts of child molestation committed by persons who themselves were at one time molested by a church worker. Lambert v. Word of Faith Ministries, 673 So.2d 1150 (La. App. 1996). [Negligence as a Basis for Liability]

Dismissed Members Sue Church

Court rules that it cannot interfere.

Key point. The civil courts are prohibited by the first amendment from interfering with a church's decision to dismiss a member as a result of his suing another member. Further, the courts will not resolve a dismissed member's claim that he was defamed by the pastor.

A Louisiana court ruled that it could not resolve a lawsuit brought by dismissed church members who claimed that their church acted improperly in dismissing them for suing the church.

When the members' request to inspect church records was denied by church leaders, they asked a court to order the church to allow them to inspect certain records. The church's pastor dismissed the members for filing a legal action against the church, and removed their names from the membership rolls. The pastor acted pursuant to an "essential tenet" of the United Pentecostal Church that prohibits Christians taking other Christians to court.

The dismissed members sued their pastor and church, claiming that they had been unjustly and illegally dismissed as members of the church. They also claimed that the pastor had defamed them and intentionally caused them emotional distress. A trial court dismissed the lawsuit, and the members appealed. A state appeals court affirmed the trial court's decision, noting that:

It is evident to us that this dispute is rooted in an ecclesial [sic] tenet of the United Pentecostal Church which prohibits members from suing fellow church members. Certainly, in civil law the [members] had a right to pursue their [initial lawsuit demand seeking inspection of church records].

However, we hasten to add that the religious repercussions that were set into motion as a result of the exercise of their civil right is another matter beyond the reach of judicial authority. In that light, anything we might consider in [an resolving this appeal] would require us to apply, interpret, and comment upon the United Pentecostal Church tenet against the institution of suits among church members. Based upon the Constitution of the United States … and the Constitution of the State of Louisiana … such action would constitute an impermissible interference in the ecclesiastical matters of the United Pentecostal Church. We decline to do so.

The court quoted with approval from the trial court's opinion: "[T]he adjudication of whether or not the [members'] removal from the membership rolls and disfellowship was legal involves the inquiry into the propriety of religious disciplinary proceedings. The court is instructed [by the United States Supreme Court] that "constitutional concepts of due process, involving secular notions of fundamental fairness" cannot be borrowed from civil law and impressed upon church governance consistent with church—state separation."

The court also noted that "church members are not entitled to rely on the incorporation of a church under state laws as the basis for resort to the courts for redress of allegedly violated rights, if these rights require the determination of ecclesiastical matters."

The court concluded that the dismissed members could not sue their pastor for defamation or emotional distress, since the pastor's allegedly defamatory comments were intertwined with his decision to dismiss the members for violating the church's religious teachings involving suing other Christians. Glass v. First United Pentecostal Church, 676 So.2d 724 (La. App. 1996).

Are Churches Responsible for Injuries by Outside Groups on Its Property?

Yes, if church maintains control of premises, court rules.

Key point: A church can be responsible for injuries that occur on its premises while being used by an outside group, if it maintains "control" over the premises.

Can a charity be legally responsible for an injury occurring on its premises while being used by an outside group? That was the question addressed by a Louisiana court in a recent decision. A charity permitted an outside group to use its facility for a Christmas party. During the party, a woman suffered serious injuries when she fell on a slippery floor. As a result of her injuries the woman underwent surgery for a complete hip replacement. She later sued the charity, claiming that it was responsible for her injuries because it had retained control over the premises during the party. She claimed that the floor was unreasonably slippery, and this dangerous condition caused her to fall. One witness testified, "It was obvious that floor was slippery. It was just waxed or something. I mean it wasn't dirty. It was clean. Probably too clean."

The charity asked the court to dismiss the case, but its request was denied. On appeal, a state appeals court suggested that there was sufficient evidence that the charity retained control over its premises during the party to send the case to a jury. The court began its opinion by acknowledging that a property owner may be legally responsible for injuries that occur on its premises when they are under its custody or control. The court suggested that the charity had retained control over its premises during the Christmas party on the basis of the following factors: (1) the charity was responsible for setting up tables for the party; (2) the charity provided a custodian during the entire party; and (3) the charity was responsible for opening the premises at the beginning of the party and locking the premises at the conclusion of the party. The charity's custodian admitted that he had cleaned the floor prior to the party and that he was on duty and responsible for cleaning the floor during the party.

This case illustrates the legal risks that churches and other charities face when they allow outside groups to use their property. All too often a church inadvertently retains "control" over its facilities even when they are being used by an outside group. And, with control comes responsibility. Aufrichtig v. Progressive Men's Club, 634 So.2d 947 (La. App. 2 Cir. 1994).

See Also: Premises Liability

Husband Cannot Sue Pastor for Affair with His Wife

Court cites state law.

Church Law and Tax 1993-07-01 Recent Developments

Sexual Misconduct by Clergy and Church Workers

Key point: In many states, a husband is barred from suing a minister for seducing his wife and breaking up his marriage. The husband also is barred from suing the minister’s employing church. However, the wife is not necessarily prevented from maintaining her own lawsuit against the minister.

A Louisiana appeals court ruled that a husband whose wife had allegedly been seduced by his pastor could not sue the pastor or his church. A husband alleged that he asked his pastor (a Catholic priest) to counsel him regarding his marital problems. The priest declined because of his close relationship with the husband and his family. The husband and wife eventually were separated, and the wife admitted herself to a drug dependency program at a local hospital. It was at this time, the husband alleged, that the priest used his influence and authority to win the affections of the wife and to engage in a sexual affair. The husband further alleged that the affair between his wife and the priest led directly to the break up of his marriage. The husband and his four minor children sued the priest and their church, seeking more than $7 million in damages. The father alleged that he and his children had suffered deep psychological problems as a result of the priest’s conduct that would “last forever” because of their devout faith and their trust in their church. The lawsuit alleged that the priest was guilty of clergy malpractice and intentional infliction of emotional distress. It also alleged that the church was negligent in failing to properly supervise the priest, and in appointing the priest and allowing him to continue his priestly duties when they should have known of his propensity to engage in sexual misconduct. A trial court dismissed the lawsuit and the father and his children appealed. An appeals court upheld the dismissal of the case. First, it noted that the state of Louisiana abolished the tort of “alienation of a wife’s affections” in 1927, and that this prevented the husband from suing his priest for clergy malpractice. However, the court stressed that it was not addressing the issue of whether or not a wife who is seduced by a priest can maintain a lawsuit for clergy malpractice. Second, the court rejected the husband’s claim that the priest was guilty of intentional infliction of emotional distress, since such a claim may only be brought by the intended victim (in this case, the wife). The court also concluded that the four minor children could not sue the priest for alienation of their mother’s affections. It acknowledged that a few courts have permitted children to sue third parties for alienation of a parent’s affections, but it chose to follow the vast majority of states that have rejected such a view. Finally, the court ruled that the church could not be liable for the priest’s behavior since the priest himself was not. This case illustrates two important points. First, in many states clergy cannot be sued on the basis of malpractice for “alienating” a wife’s affections. However, note that this not true in all states, and that a growing number of states are imposing criminal penalties upon clergy who seduce counselees. Second, the court warned that it was only addressing the ability of a husband to sue a minister for alienating the affections of his wife. It was not addressing the ability of the wife to maintain a separate lawsuit in her own right against the minister. As noted in many previous articles in this newsletter, such lawsuits against clergy generally have been permitted by the courts. Further, “consent” of the woman generally is not a defense available to a minister in such cases, since a number of courts have concluded that the unique status and authority of clergy can preclude “consent” to sexual advances. Greene v. Roy, 604 So.2d 1359 (La. App. 3 Cir. 1992).

See also Insurance, All American Insurance Company v. Burns, 971 F.2d 438 (10th Cir. 1992), in the recent developments section of this newsletter.
See Also: Seduction of Counselees and Church Members | Negligence as a Basis for Liability

What Constitutes “Spiritual Counsel”?

The clergy-penitent privilege applies only in situations of spiritual counsel.

Church Law and Tax 1992-11-01 Recent Developments

Taxation – Church Property

A Louisiana appeals court ruled that two ministers could testify in court concerning confessions allegedly made to them by a murder suspect. The murder suspect was convicted of the second degree murder of his wife largely on the basis of the testimony of the two ministers. The conviction was appealed on the ground that the statements to the ministers were protected by the clergy-penitent privilege and accordingly should not have been used in court. The appeals court rejected this claim and affirmed the conviction. It began by quoting the Louisiana clergy-privilege statute: “No clergyman is permitted, without the consent of the person making the communication, to disclose any communication made to him in confidence by one seeking his spiritual advice or consolation, or any information that he may have gotten by reason of such communication.” The suspect was a good friend of one of the ministers. This minister testified that the suspect came to him “as a friend” and confessed to murdering his wife. He did not ask for forgiveness and there was no discussion of a spiritual nature. The minister later related the confession to his wife, because he simply could not believe it. He testified in court that as a minister he would not have discussed the information he got from the suspect with anyone else had the suspect come to him as a penitent to confess and seek forgiveness. The other minister also was a friend of the suspect. He testified that he called the suspect and asked him if he had shot his wife. The suspect admitted that he had. There was no discussion of a need for spiritual guidance or forgiveness. At his trial, the suspect contradicted both ministers’ testimony. While he admitted that he had spoken with both ministers, he denied having confessed to murdering his wife. He did not testify that he went to either minister for the purpose of confessing his crime or for seeking spiritual guidance. The appeals court concluded that the suspect’s testimony “was not that he sought privileged spiritual advice and guidance from the reverends in their capacity as ministers of the church, but that he made no confessions to anyone.” Accordingly, it was inappropriate for the suspect to assert on appeal that the testimony of the ministers should have been excluded on the basis of the clergy-penitent privilege. The court went on to conclude that even if the suspect could raise the clergy-penitent privilege issue on appeal, his conversations with the two ministers were not privileged. It observed: “In the instant case, the clergyman-penitent privilege is inapplicable. The totality of the circumstances presented does not indicate that statements made by the [suspect] are within the communications protected. Neither the clergymen nor the suspect considered the statements to be in the nature of a confidential disclosure by a man to his spiritual adviser for purposes of gaining religious guidance. In fact, the suspect himself denies that any statements were made for any reason. Thus, the trial judge properly allowed the testimony of these two witnesses.” State v. Mayer, 589 So.2d 1145 (La. App. 1991).

See Also: The Clergy-Penitent Privilege

Defamation and Church Newsletters

Can a church be sued for publishing derogatory statements in its newsletter?

Church Law and Tax 1992-05-01 Recent Developments

Libel and Slander – Defamation

Can a church be guilty of defamation if it publishes derogatory statements in a church newsletter? No, concluded a Louisiana appeals court. A Catholic priest became upset when he suspected that a monument company that did work at a church cemetery was guilty of using church utilities without paying for them. He wrote a letter to the owner of the monument company which stated, in part: “Stated simply, your workers entered our property, and used [church] utilities without permission, and that is theft. I could have them arrested for and charged, for your information.” A copy of the letter was sent to the diocese. A week later, the priest published the following statement in a church newsletter (that was mailed to 362 families): “For your information, I have been obliged [to inform the monument company] that it is forbidden … to perform work of any kind in [the cemetery]. The company has persisted in ignoring my cemetery policies, and has a ‘come as you please, go as you please’ attitude and uses our electrical utilities without permission. The utilities come out of cemetery funds (e.g., your pocket).” The monument company sued the priest, the local church, and the diocese, when it learned of the statement in the newsletter. A trial court ruled in favor of the defendants, and the company appealed. A state appeals court also rejected the claim of defamation. The court observed: “The elements of a defamation action are: (1) a defamatory statement, (2) publication, (3) falsity, (4) actual or implied malice, and (5) resulting injury. A statement which imputes the commission of a crime to another is defamatory per se and as a result, falsity and malice are presumed, but not eliminated as requirements.” The court concluded that the statements by the priest in the letter and church newsletter were false, but that they were not defamatory since the priest made them with a reasonable belief that they were true and accordingly they were not made with “malice.” Redmond v. McCool, 582 So.2d 262 (La. App. 1991).

See Also: Defamation

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