Mississippi

Legal Developments

A Denominational Office Was Not Liable Because a Pastor Infected His Former Wife with HIV

A Mississippi case demonstrates how ministers are not necessarily agents of their churches or denominational offices.

Richard R. Hammar, Attorney, CPA
Bio

Key point 10-02. The doctrine of respondent superior imposes vicarious liability on employers for the negligent acts of their employees and agents committed within the scope of their employment.

Key point 3-08.09. Clergy can be liable for disclosing communications shared with them in confidence to others without the permission of the counselee.

The Mississippi Supreme Court ruled that a state conference of a denomination was not liable for injuries suffered by the former wife of an ordained minister who contracted HIV due to her husband’s repeated same-sex affairs.

Background

A minister was married in 1991. Over the ensuing decades, the minister served several churches within the denomination. During his marriage, the minister engaged in extramarital sexual affairs with other men.

At some point during late 2012 and the first half of 2013, the minister contracted human immunodeficiency virus (HIV) from one of his extramarital same-sex affairs. The minister continued to have intercourse with his wife. On July 26, 2013, he discovered he had HIV through a self-test. The next day, he informed his wife that he was HIV-positive. She later tested positive as well. The couple divorced later that year.

After the minister’s confession, the couple called a fellow minister and practicing psychotherapist from the denomination who drove six hours the next day to provide in-person crisis support.

To help the minister with his sex addiction, the therapist encouraged him “to remove any acting out material off of his computer, in the same way that an alcoholic would take his alcohol o­ut of the house.” This included removing any pornography he had downloaded. The therapist also suggested he shut down and purge any email accounts he had used to secretly contact men to meet for sex.

According to the denomination’s book of discipline, self-avowed practicing homosexuals cannot serve in ordained ministry. And on July 28, 2013, the day after the minister revealed his extramarital homosexual behavior and HIV status to his wife, the state conference of the denomination placed the minister on leave.

The minister’s former wife sues for multiple claims

In 2016, the wife sued her former husband, the state conference, and the therapist for multiple claims, including intentional and negligent infliction of emotional distress, negligent hiring and retention, negligent supervision, interference with a civil action, breach of fiduciary duty, failure to warn, and concealment.

The wife alleged that her former husband had a duty to warn her of his HIV status before he had sex with her. And because her former husband was the state conference’s “agent,” she claimed the state conference was vicariously liable for his actions.

The complaint also alleged the state conference had an independent duty in selecting, hiring, appointing, and retaining its pastors. And had it exercised reasonable care, the state conference would not have hired or retained her husband and she would not have suffered her injury.

In particular, the complaint asserted that the state conference knew or should have known about the minister’s sexual behavior and that he posed a risk to others, including his wife. She insisted that had the state conference properly exercised church discipline over the minister and followed its own specific sexual-misconduct policies, the state conference would have warned the wife and remedied her husband’s dangerous conduct.

As for the therapist, the complaint focused on her actions in response to the minister’s phone call. It alleged that the therapist, by helping the minister remove data from his computer, had interfered with a civil lawsuit and had negligently or intentionally concealed information.

The complaint also alleged that the therapist owed the wife a fiduciary duty, which the therapist breached by not warning her of her husband’s “high-risk sexual behavior with men.”

Why the court rejected the wife’s claims

The court rejected all of the wife’s claims against the state conference and the therapist for the following reasons.

The claims against the state conference

The court noted that the wife’s theory of recovery against the state conference “centers on her assertion that [the state conference] owed her a duty to discover and somehow remedy her husband’s extramarital sexual activities and that its failure to do so caused her injury.”

The court concluded, however, that the state conference did not owe the wife any such duty because “[u]nder Mississippi law . . . ‘an employer’s duty to supervise does not include a duty to uncover his employees concealed, clandestine, personal activities.’”

The wife insisted that the state conference assumed a duty by adopting the denomination’s sexual-misconduct policy, which forbids practicing homosexuals from serving as ministers. This policy, as the wife described it in her own words, included:

establish[ing] a regimen of psychological testing, education, interviews, character examinations, and careful supervision and monitoring to ensure that its clergy did not violate [the state conference’s] policies against sexual misconduct. A clergy member who was a practicing homosexual or used pornography would be brought up on charges (which would alert his spouse to the conduct), and could potentially be terminated.

The court noted:

[The wife’s] reliance on the [denomination’s] Book of Church Discipline—namely, its prohibition against ordaining practicing homosexuals—as giving rise to a duty to warn her of her husband’s homosexual behavior is fraught with First Amendment [i.e., religious freedom] concerns. . . .

Simply put, by seeking to hold [the state conference] liable for not protecting her against the negative consequences of her husband’s homosexual behavior, [the wife] is asking this court to hold [the state conference] “to a higher standard or impose special duties or burdens on the basis of [its] religious status” and church doctrine surrounding sexual behavior. . . . Because the First Amendment prevents [her] from filing suit based on the failure to perform religious or ecclesiastical duties, her claims against [the state conference] fail as a matter of law.

Next, the court dealt with the wife’s contention that because the minister was the state conference’s “agent,” it was vicariously liable for his actions. The court observed:

Similarly, [the wife’s] claims against [the state conference] based on vicarious liability also fail. . . . Here, [the minister’s] specific action for which [she] seeks to hold [the state conference] vicariously liable was his having sexual intercourse with his wife after engaging in high-risk sexual behavior with other men. [She] certainly presents no evidence that this act was performed in the course and scope of [her ex-husband’s] church duties, over which [the state conference] had power and control.

The court then quoted from one of its earlier decisions:

[I]t defies reason to argue that engaging in an affair at work or during working hours in any way furthered the business interests of [the employer]. Children’s Med. Group, P.A. v. Phillips, 940 So. 2d 931.936 (Miss. 2006).

It concluded:

“There is no vicarious liability where an agent acted with personal or malicious motive, unless the principal authorized or ratified the acts.” . . . And [the minister’s] personal decision to initiate sex with his wife after knowingly engaging in high-risk extramarital sexual behavior cannot be said to have been authorized or ratified by [the state conference].

The claims against the therapist

The wife sued the therapist, claiming that the therapist owed her a fiduciary duty which was breached by not warning her of her husband’s “high-risk sexual behavior with men.”

The court noted that a fiduciary duty is established “[w]henever there is a relation between two people in which one person is in a position to exercise a dominant influence upon the former, arising either from weakness of mind or body, or through trust. . . .”

The wife claimed that she and the therapist were in a fiduciary relationship, but the court concluded that she failed to demonstrate such a relationship:

[T]he only evidence [she] presents is that [the therapist] “rushed in” to provide guidance to [the minister and his wife] after [he] revealed he had infected [her] with HIV. Not only is the proposed relationship ancillary, a fiduciary relationship cannot arise after the alleged breach of that duty has already occurred. . . . Prior to that time, [the wife’s] evidence merely establishes [the therapist] . . . was a good friend of the couple.

What this means for churches

This case is important for two reasons.

1. Ministers are not necessarily agents

The most significant aspect of the court’s opinion was its conclusion that ministers are not necessarily agents of their church or denomination.

The significance of this ruling is the fact that a finding of agency would make the principal (i.e., a church or denominational agency) liable for the agent’s wrongdoing apart from any finding of negligence or culpability by the principal. The principal is responsible for the agent’s acts (i.e., sexual misconduct, negligent driving) no matter how careful it was.

To illustrate, consider a denomination with 25,000 ministers. If the ministers are agents of the denomination, then their wrongful conduct is imputed to the denomination, and no amount of care on its part changes that. Since it would be impossible for the denomination to police 25,000 ministers, it is absolutely liable with no defense. This makes a finding that ministers are agents of a denomination an existential threat jeopardizing its very existence.

Fortunately, some courts, like this one, have refused to characterize ministers as agents of their church or denomination, at least for injuries they cause when not acting in furtherance of the agency relationship.

This court concluded that ministers are agents of a church or denomination only if they cause injury while acting in furtherance of their agency status. The court explained:

Here, [the minister’s] specific action for which [his wife] seeks to hold [the state conference] vicariously liable was his having sexual intercourse with his wife after engaging in high-risk sexual behavior with other men. [She] certainly presents no evidence that this act was performed in the course and scope of [her ex-husband’s] church duties, over which [the state conference] had power and control. . . . “There is no vicarious liability where an agent acted with personal or malicious motive, unless the principal authorized or ratified the acts. . . . And [the minister’s] personal decision to initiate sex with his wife after knowingly engaging in high-risk extramarital sexual behavior cannot be said to have been authorized or ratified by [the state conference].

2. Disclosing risks of harm

The ex-minister’s wife claimed that the therapist was responsible for her HIV infection because she failed to warn her of her husband’s “high-risk sexual behavior with men.” This raises the question of whether a therapist (or pastor) has a duty to inform others that a counselee poses a threat of harm or death, and whether such a warning violates a duty of confidentiality.

Clergy who disclose confidential information shared with them in counseling may be exposing themselves, as well as their church, to liability on the basis of malpractice, invasion of privacy, breach of fiduciary duty, and infliction of emotional distress.

This conclusion may apply even when clergy share confidential information in order to discipline a member for violating church standards or to protect third parties from harm. As a result, clergy should not disseminate information obtained from confidential counseling sessions without first seeking legal advice.

Woodard v. Miller, 326 So.3d 439 (Miss. 2021)

Legal Developments

Church Found Not Liable in Case of Pastoral Affair

Court concluded that the plaintiff failed to show sufficient evidence of any negligence by the church to warrant a trial.

Richard R. Hammar, Attorney, CPA
Bio


Key point 10-05.2. Some courts have found churches not liable on the basis of negligent selection for the sexual misconduct of a minister or other church worker involving another adult since the church exercised reasonable care in the selection of the worker.

A Mississippi appeals court ruled that a church was not liable, on the basis of negligence or vicarious liability, for a pastor's sexual relationship with the wife of a counselee and church member.

A married couple were members of a church. In February 2011, the pastor began an extramarital affair with the wife that lasted for nearly a year. The husband (the "plaintiff") eventually learned of the affair and informed the church of it. Church staff met with the pastor that same day, and he voluntarily resigned his position as senior pastor.

On November 9, 2012, the plaintiff filed a lawsuit against the church claiming that it was responsible for the pastor's wrongful acts on the basis of (1) negligent hiring, retention, and supervision, and (2) vicarious liability. On December 9, 2013, the church filed a motion for summary judgment, alleging that the lawsuit should be dismissed as a matter of law.

After a hearing, the trial court entered an order on June 24, 2014, granting the church's motion for summary judgment. In its order, the trial court explained:

There has been no summary judgment evidence presented that the church knew or should have known that the pastor was unfit to serve as Senior Pastor or that he was prone to the activities complained of by [the husband]. Further, no evidence has been presented that the church knew or should have known of these actions by [the pastor] … . [The facts presented] cannot support any of the plaintiff's claims of liability against the church.

On appeal, the plaintiff argued that the trial court erred by granting summary judgment in favor of the church.

1. Negligent hiring, retention, and supervision

The plaintiff claimed that the trial court erred in granting summary judgment on the issues of negligent hiring, retention, and supervision. He argued that the church had been negligent in two ways:

By failing to properly perform a background search on the pastor prior to hiring him. By expressing no concern that the pastor had failed to disclose his position at the church where he was most recently employed.

The plaintiff asserted that the church, as a result of its limited background search, failed to discover that the pastor had a prior alcohol-related arrest and had previously committed adultery. He further claimed that the church failed to have in place any employee policies, any counseling policies, any policies regarding employee sexual misconduct, and any employee handbook, and wholly failed to supervise the pastor.

The court mentioned the following precautions taken by the church in hiring the pastor:

The church formed a pastor search committee. A state denominational agency provided the pastor search committee information and direction on conducting a pastor search, including but not limited to information on background searches of prospective pastors. The pastor search committee reviewed multiple résumés prior to unanimously agreeing to pursue the defendant pastor. The pastor had held three prior pastoral positions. The pastor search committee checked all references on the pastor's résumé, plus 17 additional references. The church performed a background check on the pastor through Safe Hiring Solutions and FreeCreditReport.com, specifically seeking information on his criminal, sexual, driver's license, and credit reports. The church claimed that no negative report was found or reported. The entire pastor search committee interviewed the pastor and his wife, on a wide range of topics, which took over two hours.

Regarding the plaintiff's claims of negligent hiring and retention, the court recognized that "an employer will be liable for negligent hiring or retention of his employee when an employee injures a third party if the employer knew or should have known of the employee's incompetence or unfitness." And, "if an employer exercises due care in the hiring of its employees, that employer will not be liable for the injuries of a third party unless that party can prove the employer knew or should have known of the incompetence and unfitness of the employee." As a result, "a plaintiff must prove the defendant had either actual or constructive knowledge of an employee's incompetence or unfitness before the employer will become liable for the negligent hiring or retention of an employee who injures a third party." Constructive notice is defined as "information or knowledge of a fact imputed by law to a person (although he may not actually have it), because he could have discovered the fact by proper diligence, and his situation was such as to cast upon him the duty of inquiring into it."

The church insisted that an employer is under no "duty to uncover his employees' concealed, clandestine, personal activities," and that at no point prior to the pastor's employment did the church possess knowledge of any inappropriate counseling given by him to anyone or of any inappropriate relationship that he may have had with another person. Its first knowledge of any inappropriate counseling given by the pastor to the plaintiff's wife—or of any inappropriate adulterous relationship with anyone else—did not occur until the husband disclosed the affair to the church staff.

The court concluded that the plaintiff failed to show sufficient evidence of any negligence by the church to warrant a trial. It noted: "There is no evidence in the record to show that the pastor's prior affair would have been discovered but for some negligence of the church, or that the church knew or should have known of a prior affair or unfitness. The record shows that the pastor's prior affair arose from a private business relationship, and not out of his prior pastoral position … . [The plaintiff] also failed to present any evidence that such information was known by the prior congregation or reflected on any background check."

2. Vicarious liability

The plaintiff claimed that the pastor committed adultery on church property during his regular working hours, and the church's lack of control, supervision, and policies allowed him the opportunity to cause harm. The plaintiff asserted that the church was vicariously liable for the pastor's actions on basis of the legal doctrine of "respondeat superior" under which employers are responsible for the negligent acts of their employees committed within the scope of their employment.

The court noted that an employer is responsible only for those acts of an employee committed in the course of employment, are "in furtherance of the master's business," and "are actuated, at least in part, by a purpose to serve the employer." In rejecting this basis of liability, the court referred to other cases in which the courts have declined to hold churches liable for the sexual misconduct of clergy since such acts are outside the scope of employment and are not done with any intent to serve the church's interests. Note the following examples:

Mabus v. St. James Episcopal Church, 884 So.2d 747 (Miss. 2004). The Mississippi Supreme Court stated that "under the theory of vicarious liability, the church … may only be held liable for the actions of its employee taken within the course and scope of his employment." Amato v. Greenquist, 679 N.E.2d 446 (1997). An Illinois appeals court held that the plaintiff failed to establish that a church was vicariously liable where a pastor engaged in a sexual relationship with the plaintiff's wife while the pastor counseled the plaintiff. The court stated: "As to the church defendants' liability for the pastor's actions … we hold that the complaint fails to allege that the pastor's actions in deceiving and otherwise counseling the plaintiff were for anything other than his own benefit."

The court concluded: "The record reflects that the pastor's adulterous actions served his own purposes and were entirely personal acts for his own benefit. The record reflects no evidence to show that the church participated in or benefitted from the pastor's adulterous actions. As a result, we find no error in the trial court's grant of summary judgment on the issues of respondeat superior and vicarious liability since the plaintiff fails to allege that his actions were for any reason other than his own benefit."

What this means for churches

This case is instructive because of the court's description of the steps taken by the church in the hiring of its pastor that precluded it for being liable, on the basis of negligence, for the pastor's adulterous affair with the plaintiff's wife. These steps indicate the kinds of precautions churches can take to reduce the risk of liability for the sexual misconduct of staff members. Backstrom v. Baptist Church, 184 So.3d 323 (Miss. App. 2016).

Legal Developments

Appeals Court Finds Sufficient Evidence of Negligence in Lawsuit over Missions Trip Death

The court ruled that the mother had produced sufficient evidence of the church’s negligence to survive the church’s motion for summary judgment.

Richard R. Hammar, Attorney, CPA
Bio


Key point 10-16.6. A release form is a document signed by a competent adult that purports to relieve a church from liability for its own negligence. Such forms may be legally enforceable if they are clearly written and identify the conduct that is being released. However, the courts look with disfavor on release forms, and this has led to several limitations, including the following: (1) release forms will be strictly and narrowly construed against the church; (2) release forms cannot relieve a church of liability for injuries to minors, since minors have no legal capacity to sign such forms and their parents' signature does not prevent minors from bringing their own personal injury claim after they reach age 18; (3) some courts refuse to enforce any release form that attempts to avoid liability for personal injuries on the ground that such forms violate public policy; and (4) release forms will not be enforced unless they clearly communicate that they are releasing the church from liability for its negligence.

A Mississippi state appeals court ruled that a trial court erred in dismissing a lawsuit brought by the mother of a 17-year-old boy who was killed while participating on a mission trip to Costa Rica that had been organized by his church. In June of 2009, a church organized a mission trip to Costa Rica for the purpose of constructing a sanctuary. There were 20 members on the trip, including 13 adults and 7 minors. The trip was organized and led by the church's youth pastor. One of the participants on the trip was a 17-year-old male (the "victim") who was to begin his senior year in high school in the fall.

Before leaving for the mission trip, the victim's grandmother signed two documents before a notary public as a condition of the victim participating. These documents included a "Youth Medical/Parent Consent" form and a "Parental Consent" form. The victim also signed a document titled "International Missionary Profile and Release of Claim" that contained warnings about the dangers associated with participating on the mission trip.

The group arrived in Costa Rica on June 20, 2009. Geographically, Costa Rica sits between the Caribbean Sea and the Pacific Ocean. The church group was on the Pacific Ocean side. The victim and other members of the group began climbing on volcanic-rock formations separated from the shore by shallow water. The victim and another minor climbed on and over the rock formation to the Pacific Ocean side, and then they climbed down near the Pacific Ocean's edge, where they saw some crabs. While watching the crabs, waves from the Pacific Ocean knocked the boys off of the rocks and into the ocean's currents of dangerous riptides. When a third wave hit them, the boys went under water, and when the second boy surfaced, he no longer could see the victim. The other boy later testified that prior to the trip, no one warned them of unsafe tide, surf, waves, or other conditions existing on the Pacific Ocean coast of Costa Rica. Fifteen minutes before the boys were knocked into the ocean by the first wave, a 350-pound adult chaperone was knocked off his feet and thrown into the surf by another wave a short distance from the boys' location.

The youth pastor testified that she had led youth mission trips before and had traveled with youth groups internationally before, and that she had consulted with team leaders from another church who had traveled to Costa Rica on youth mission trips. But, she acknowledged that she had failed to check US State Department online travel advisory warnings, or any other travel advisories, regarding any unsafe beach, tide, or surf conditions in Costa Rica. She also admitted to not instructing or warning the victim or any of the other youth about beach safety or about the dangerous surf or riptides of Costa Rica's Pacific coast.

The mission-trip members immediately sought help after seeing people on the beach reacting and in the water. Local residents contacted emergency services and an ambulance and local authorities arrived soon thereafter. Everyone at the beach began looking for the victim. Other members of the group stayed on the beach for over three hours after the incident until darkness ended their search. The victim's body was found the next day and identified by the youth pastor.

The victim's mother sued the church, claiming that in planning and supervising the trip, a duty existed to warn of the hidden dangers and perils not in plain view that the church and its youth pastor knew, or should have known, existed. Additionally, once the tide rose and the large waves began knocking some of the adults down, the youth pastor should have evacuated group members from the water, or at a minimum, more closely supervised them and warned them of the dangerous conditions. The trial court concluded that the mother had failed to produce sufficient evidence of the church's negligence, and it dismissed the case. The mother appealed.

A state appeals court ruled that the trial court erred in dismissing the mother's claims since there was sufficient evidence of negligence to let a jury resolve the question of the church's negligence. The court observed: "The record reflects existing material questions of fact as to whether the church, through its mission trip leader … negligently breached its duty to [the victim] to plan and supervise this international mission trip and to warn him of the dangerous beach and surf conditions on Costa Rica's Pacific coast … . In planning and supervising this trip, a duty existed to warn of the hidden dangers and perils not in plain view that the church and its mission trip leader knew, or should have known, existed. Additionally, once the tide rose and the large waves knocked adults down, the mission trip leader bore a duty to supervise and warn the victim of the dangerous conditions."

The church argued on appeal that the waivers signed prior to the trip by the victim and his grandmother precluded any recovery. But the court noted that the two persons who signed the waivers of liability—the victim and his grandmother—were not parties to this lawsuit. The mother was the party who sued the church, but she had not signed any waiver or release and therefore was not bound by the forms the victim and his grandmother signed. In addition, the victim was a minor (17 years old) at the time he signed an agreement waiving any legal claims against the church, and as such, he lacked the legal capacity to sign a contractual document.

What This Means for Churches:

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

1. Negligence

The court ruled that the mother had produced sufficient evidence of the church's negligence to survive the church's motion for summary judgment. As examples, the court noted that the church could be found negligent by a jury based on:

  • A failure by the youth pastor to "plan and supervise this international mission trip."
  • While the youth pastor consulted with team leaders from another church who had traveled to Costa Rica on youth mission trips, she failed to check with the US State Department online travel advisory warnings, or any other travel advisories, as to any unsafe beach, tide, or surf conditions in Costa Rica.
  • A failure to warn the victim of the dangerous beach and surf conditions on Costa Rica's Pacific coast.
  • In planning and supervising this trip, a duty existed to warn of the hidden dangers and perils not in plain view that the church and its youth pastor knew, or should have known, existed.
  • Once "the tide rose and the large waves knocked adults down, the mission trip leader bore a duty to supervise and warn the victim of the dangerous conditions."

These alleged failures can assist other churches in planning mission trips. The bottom line is that churches have a duty (1) to warn participants (minors and adults) of dangerous conditions, and of hidden perils not in plain view of which church leaders either know about, or in the exercise of reasonable care should have; (2) to consult with other youth group leaders who have led mission trips to the same destination for advice; and (3) to check US State Department online travel advisory warnings, or any other travel advisories, regarding any unsafe conditions in the target destination of the mission trip, and, based on this evidence, warn adult and minor participants of such conditions (and the parents of minor participants), or choose a different, and safer, destination.

2. Preinjury waivers of liability

The court ruled that the preinjury waivers were "unenforceable with respect to the negligence claims for wrongful death raised in this case against the church for its negligence in planning, supervising, and failing to warn of the dangerous beach and ocean conditions on this mission trip to Costa Rica," for the following reasons:

  • The two persons who signed the waivers of liability—the victim and his grandmother—were not parties to this lawsuit. The mother was the party who sued the church, but she had not signed any waiver or release and therefore was not bound by the forms the victim and his grandmother signed. In addition, the victim was a minor (17 years old) at the time he signed an agreement waiving any legal claims against the church, and as such he lacked the legal capacity to sign a contractual document.
  • The language in the waivers applied to church mission-related activities and related risks. The waivers contained no language regarding the liability or risks of recreational activities such as hiking, swimming, or rock climbing on Costa Rica's beaches on the Pacific Ocean or the risks of the dangerous riptides and dangerous ocean surf.
  • Public policy prohibits the use of preinjury waivers of liability for personal injury due to future acts of a defendant's own negligence.
  • For a waiver to be valid and enforceable, it must not be ambiguous. It must be specific in wording about liability.
  • Waivers are strictly construed against the defendant.
  • When a waiver contains ambiguous language, it cannot be construed as a waiver of liability for injuries that result from the negligence of a defendant.

For additional insights on forms related to church activities, see sidebar "Parental Permission and Medical Consent Forms."

3. Insurance for short-term mission trips in other countries

Many church leaders are unaware of an "exterritorial exclusion" in most churches' liability insurance policies. Such an exclusion means that the insurance policy provides no coverage for deaths and injuries occurring outside the United States. Church leaders should discuss this issue with their insurance agent to see if such an exclusion exists in the church's policy, and if so, what coverage options exist. First United Methodist Church, 2016 WL 1203753 (Miss. App. 2016).

Parental Permission and Medical Consent Forms

While release forms cannot avoid liability for injuries to minors, there are other forms that churches should consider. For example, churches should not allow a minor to participate in any church activity (such as camping, boating, swimming, hiking, or sporting events) unless the child’s parents or legal guardians sign a form that

  1. consents to their child participating in the specified activity;
  2. certifies that the child is able to participate in the event (e.g., if the activity involves boating or swimming, the parents or guardians should certify that the child is able to swim);
  3. lists any allergies or medical conditions that may be relevant to a physician in the event of an emergency;
  4. lists any activities that the parents or guardians do not want the child to engage in; and
  5. authorizes a designated individual to make emergency medical decisions for their child in the event that they cannot be reached.

    6. Ideally, the form should be signed by both parents or guardians (if there are two), and the signatures should be notarized. If only one parent or guardian signs, or the signatures are not notarized, the legal effectiveness of the form is diminished. Having persons sign as witnesses to a parent’s signature is not as good as a notary’s acknowledgment, but it is better than a signature without a witness.

    The form should require the parent or guardian to inform the church immediately of any change in the information presented, and it should state that it is valid until revoked by the person who signed it. The parent or guardian should sign both in his or her own capacity as parent or guardian, and in a representative capacity on behalf of the minor child.

Legal Developments

Mississippi Supreme Court Rules First Amendment Bars Resolving Pastor’s Dismissal Suit

Church Law and Tax Report Mississippi Supreme Court Rules First Amendment Bars Resolving Pastor’s Dismissal

Church Law and Tax Report

Mississippi Supreme Court Rules First Amendment Bars Resolving Pastor’s Dismissal Suit

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

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

The Mississippi Supreme Court ruled that the First Amendment guaranty of religious freedom prevented the civil courts from resolving a pastor’s claim that his church acted unlawfully in voting to dismiss him. A church placed its pastor on paid administrative leave after he was accused of inappropriate sexual contact with a minor. When the church members decided to vote on whether to retain him as pastor, he filed a lawsuit opposing the vote. The pastor claimed any action taken outside a “properly called business meeting” would be invalid, and he claimed the upcoming meeting was not properly called because “(1) there had been no certification of the list of members in good standing who would be entitled to vote”; (2) absent such certification, adequate notice to eligible members could not be accomplished; and (3) the state denominational guidelines had not been followed because “there had been no attempts at conciliation or other notice given to the pastor as required.” The pastor further alleged he would be “irreparably harmed” if he was “voted out as pastor,” in that his reputation would suffer, he would lose his income, and he would suffer emotionally.

The court issued a temporary restraining order prohibiting the vote, but the church voted anyway and dismissed the pastor by a majority vote of the 400 members in attendance. The court vacated the vote and ordered the church to conduct another vote, this time with certain court-ordered procedures regarding notice, eligibility, vote-counting, and security. Before setting out the specific guidelines for how the new vote should take place, the trial court noted that the church had

adopted a Constitution and Bylaws and a Handbook of Church Ministries Policies and Procedures. This court has thoroughly and carefully reviewed each of these documents. After such review, this court can unequivocally find that [the church] lacks the adopted procedures for determining church members eligible for voting, notification proceedings necessary for establishing a voting meeting, procedures for conducting a vote with regard to the discharge or retention of a pastor, and procedures for the determining [of] the proper number of votes necessary to discharge or retain a pastor.

Furthermore, despite the court’s hesitation to get involved in “ecclesiastical matters,” it determined that it “must intervene in an effort to restore peace to the congregation and to prevent further deterioration of a church congregation.”

The court relied on a previous ruling by the Mississippi Supreme Court for the proposition that “where a congregational church lacks the established procedures for electing its leaders, a court may decide on a proper procedure.” The court then laid out procedures for the new vote, including voter eligibility and notice requirements. But before the meeting took place, the church filed an emergency appeal with a state appeals court. Pilgrim Rest Missionary Baptist Church v. Wallace, 835 So.2d 67 (Miss. 2003).

The appeals court ruled it lacked jurisdiction to resolve the lawsuit. It observed: “[The pastor] cannot prevail on the merits, because the United States Supreme Court has made it clear that the First Amendment places ministerial church-employment decisions beyond the reach of courts. Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C., 132 S.Ct. 694 (2012).” In the Hosanna-Tabor case, the Supreme Court recounted religious freedom from the Magna Carta to the Puritans escaping religious persecution and state control in England, to colonial parishioners at odds with church leadership based in England, and ultimately to the ratification of the First Amendment. That amendment bears directly on ecclesiastical decisions such as choosing ministers:

By forbidding the “establishment of religion” and guaranteeing the “free exercise thereof,” the Religion Clauses ensured that the new Federal Government—unlike the English Crown—would have no role in filling ecclesiastical offices. The Establishment Clause prevents the Government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own … . The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes on the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.

The Mississippi court noted that the pastor in the present case “did not even claim that the church had terminated him in violation of any discrimination law or any other law. Rather, he argued that the church should not have been able to terminate him in the manner it chose. The law is clear that courts cannot constitutionally pass on that issue, and the trial judge therefore erred when he entered the restraining order initially, as well as when he vacated the church’s vote and ordered a new one.”

The court concluded: “Here, we are not faced with two factions of a church fighting over money and property and arguing about whether the bylaws have been followed. Rather, we are faced only with an aggrieved pastor who is unhappy that his church voted to terminate him … . The court’s jurisdiction is limited to purely secular issues, and the court must not be involved in ecclesiastical issues. In sum, we find that the trial court erred when he treated this ecclesiastical controversy as a secular one—a pastor who is unhappy about being terminated by a church simply does not present a secular controversy. As such, the trial court had no authority to issue the injunction or to vacate the church’s vote and order a new one, as the pastor cannot prevail on the merits of his claim.”

What This Means For Churches:

This case illustrates the breadth of the Supreme Court’s historic ruling in the Hosanna-Tabor case. This case closes the door to attempts by dismissed clergy to enlist the civil courts in challenging the validity of their dismissals, even based on “secular” arguments such as a church’s noncompliance with its governing documents. Greater Fairview Missionary Church v. Hollins, 160 So.3d 223 (Miss. 2015).

Legal Developments

There Is No Legal Duty to Perform Background Checks on Every Applicant

Specifically when the position for hire is low-risk.

Richard R. Hammar, Attorney, CPA
Bio

Employment practices

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

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

Key point 10-05.2. Some courts have found churches not liable on the basis of negligent selection for the sexual misconduct of a minister or other church worker involving another adult since the church exercised reasonable care in the selection of the worker.

Key point 10-05.3. Churches can reduce the risk of liability based on negligent supervision for sexual misconduct involving adult victims by adopting risk management policies and procedures.

Do employers have a legal duty to perform criminal background checks on every applicant for employment? No, concluded a federal appeals court applying Mississippi law. A female worker (the "plaintiff") was raped by a co-worker. She sued her employer, claiming it was responsible for her injuries on the following grounds:

A federal district court dismissed the plaintiff's lawsuit, and the plaintiff appealed. A federal appeals court concluded that Mississippi law "does not support her first two arguments. Furthermore, she offers virtually no authority for the proposition that [her employer] had a duty to conduct criminal background checks on [its workers]." As a result, the court affirmed the district court's dismissal of the plaintiff's lawsuit.

Do employers have a legal duty to conduct criminal background checks on new employees?
The court noted that "numerous other jurisdictions" have addressed this question, and that the "unanimous rule, with only minor and nuanced deviation, is that: 'One can normally assume that another who offers to perform simple work is competent. If, however, the work is likely to subject third persons to serious risk of great harm, there is a special duty of investigation …. We decline to infer a generalized duty on employers to conduct criminal background checks on all prospective employees ….'"

The court noted that the employer hired the assailant to work on an environmental remediation project, and that

Nothing about the nature of that work could have suggested to [the employer] that he was likely to subject [the plaintiff] to the risk of assault, or was otherwise uniquely incompetent to perform the work. If a criminal background check were necessary to screen for indicia that a manual laborer might assault a co-worker, it is difficult to envision a fact pattern in which a background check would not be necessary. Of course, the unanimous case law from around the country says that there is no such generalized duty on employers, to conduct pre-employment background checks on all new hires, irrespective of the particular circumstances of their prospective employments.

The court noted that this conclusion was strengthened by the fact that Mississippi's legislature has mandated that employers conduct criminal background checks on all new hires in specified fields, including teachers, health care facility employees, nursing home administrators, and pharmacists. It reasoned that "if Mississippi's legislature intended to rely on common law principles to impose a duty on employers to conduct criminal background checks on all employees, it would not have resorted to statutes to impose them in specified fields …. Similarly, by not specifying manual labor as a field requiring background checks, Mississippi's legislature created the strong inference that it did not intend to mandate them for all new hires in that field."

The court concluded:

We are especially hesitant to impose a generalized common law duty to conduct background checks under Mississippi law when (i) no prior Mississippi precedent directly imposes such a duty; (ii) the Mississippi Supreme Court has expressly adopted Section 213 of the Restatement (Second) of Agency, which rejects such a duty; (iii) no other jurisdiction imposes such a duty in comparable circumstances; and (iv) Mississippi's legislature has imposed a statutory duty to conduct background checks in certain specified fields, but not in the instant one.

Is non-compliance with internal corporate hiring policies evidence of negligence under Mississippi law?
The plaintiff claimed that the employer's internal policies, which purportedly required background checks on all new hires, created a legal duty that it breached. The court concluded that an employer's violation of its own internal policies did not, in itself, establish negligence: "Under Mississippi law, breach of one's internal policies may be considered in determining whether one has exercised the appropriate standard of care …. However, internal policies are only one consideration among many in that determination …. We are not aware of any cases in which a party's violation of its own internal safety policies established a dangerous condition per se …. For these reasons [the plaintiff's] second argument also fails. [Her employer's] non-compliance with its internal policies, which purportedly require background checks on all new hires, is not dispositive evidence of their breach of duty [of care]."

'(N)on-compliance with an internal corporate policy or custom is evidence merely suggestive of breach of duty, not evidence dispositive of it.'

Are criminal records checks on employees an "industry practice" that the employer violated?
The plaintiff insisted that conducting background checks on all new hires is "standard corporate practice," and so the employer's failure to conduct a criminal records background check on the assailant amounted to negligent hiring. The court rejected this argument, noting that "non-compliance with an internal corporate policy or custom is evidence merely suggestive of breach of duty, not evidence dispositive of it."

What This Means For Churches:
This case is important for the following reasons:

  1. It is a ruling by a federal circuit court of appeals. Such rulings are controlling in the relevant circuit (in this case, Louisiana, Mississippi, and Texas), and generally are given great deference by courts in other jurisdictions. So, the court's analysis of an employer's duty to conduct criminal background checks is a significant legal precedent.
  2. The court concluded that "the unanimous case law from around the country says that there is no generalized duty on employers, to conduct pre-employment background checks on all new hires, irrespective of the particular circumstances of their prospective employments."
  3. Every state legislature has enacted legislation mandating criminal records checks on persons seeking employment in specified occupations, such as teaching. The court concluded that these laws demonstrate that no generalized duty on the part of all employers to conduct criminal records checks exists, since if a legislature "intended to rely on common law principles to impose a duty on employers to conduct criminal background checks on all employees, it would not have resorted to statutes to impose them in specified fields."
  4. The court concluded that an employer's noncompliance with its internal policies is evidence of negligence, but does not establish negligence.
  5. This case should not be viewed by church leaders as an excuse not to screen workers. Rather, it can be used by churches to defend against a negligence claim in the event that an employee or volunteer for whom a criminal records check was not performed sexually molests a child or an adult. These failures can occur in a number of ways. For example, a long-term volunteer worked at the church long before a criminal records check policy was adopted, and the church decided to perform these checks only on new workers.
  6. The best practice, whether or not required by applicable law, is for churches to conduct thorough background checks, including references, criminal records checks, and a review of the national sex offender public registry (nsopw.gov). While familiarity with legal requirements is essential, such requirements are superseded by the moral constraints imposed by the higher law of scripture, which commands the community of faith to protect those who are made in God's image.
  7. The sexual abuse of minors by persons working for churches and other youth-serving charities is a persistent and virulent threat. Our research reveals that the sexual abuse of minors has been the number one basis for church litigation in six of the past seven years. Many secular charities—including public schools, Boy Scouts of America, Girl Scouts, Big Brothers and Sisters, Boys and Girls Clubs, youth soccer leagues, 4-H, and Little League—have responded to this risk by mandating criminal records checks for persons who will work with minors. Many churches are doing the same. Criminal records checks not only reduce the risk of child molestation, but they also reduce the risk of institutional liability based on negligent selection. They also are relatively inexpensive and easily accessible.

    8. Many leaders of churches and other youth-serving charities were stunned when the U.S. Equal Employment Opportunity Commission (EEOC) suggested recently that the use of criminal records checks may violate Title VII of the Civil Rights Act of 1964, which generally prohibits discrimination in employment on the basis of race, color, national origin, gender, or religion, by employers with at least 15 employees that are engaged in interstate commerce.

    Do churches and other youth-serving charities, in their efforts to protect children by requiring criminal records checks for youth workers, thereby expose themselves to liability for violating Title VII? It's a classic dilemma—an attempt to avoid one form of liability results in potential liability for another.

    The court alluded to this potential basis for liability by noting, in a footnote, that because of its dismissal of the plaintiff's claims "we need not address [the employer's] arguments concerning the potential conflict of such a generalized duty [to conduct criminal records checks on all employees] especially if an adverse background check would jeopardize the prospective hire's employment, with Title VII of the Civil Rights Act of 1964 and its implementing regulations." Keen v. Miller Environmental Group, Inc., 702 F.3d 239 (5th Cir. 2012).

    Screening workers

    * See "Employment practices," Keen v. Miller Environmental Group, Inc., 702 F.3d 239 (5th Cir. 2012), and "Sexual misconduct by clergy, lay employees, and volunteers," Doev. Corporation, 964 N.E.2d 370 (Mass. App. 2012), in the Recent Developments section of this newsletter.

    Church Law & Tax Report is published six times a year by Christianity Today International, 465 Gundersen Dr. Carol Stream, IL 60188. (800) 222-1840. © 2013 Christianity Today International. editor@churchlawandtax.com All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. "From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations." Annual subscription: $69. Subscription correspondence: Church Law & Tax Report, PO Box 37012, Boone, IA 50037-0012.

Legal Developments

Church Held Liable for Child’s Day Care Injury

A church may be held liable for a child’s injuries despite a lack of evidence of how they occurred.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Church Held Liable for Child’s Day Care Injury

A church may be held liable for a child’s injuries despite a lack of evidence of how they occurred.

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

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

The Mississippi Supreme Court ruled that a church could be liable for a serious injury sustained by a two year old child while in the custody of a church-operated day care center, though the exact cause of the accident was uncertain since no adult witnessed it. A two-year-old child (the “victim”) sustained a significant laceration to her face, from her cheek down to her jaw, while in the custody of a church day care center. The injury resulted in multiple reconstructive surgeries and left the child with a permanent scar. The exact circumstances under which the victim was injured are unclear, as no adult witnessed the accident.

One of the day-care workers stated in a deposition that she was talking with a parent who had come to the day care to retrieve her child when she heard the victim cry out. When she turned around, the victim was bleeding from the mouth, obviously in need of medical assistance. The victim was rushed to the emergency room, but the hospital staff determined the extent of the injuries was too severe, and the emergency room too ill-equipped, to properly treat the child. As a result, the victim was transferred to a hospital in another city where reconstructive surgery was performed. In addition to the soft-tissue injuries, the victim sustained maxillary trauma which resulted in two of her teeth being loosened from the socket. A maxillofacial surgeon surgically removed those teeth and fitted the victim with a dental implant.

The victim told her mother that one of the boys in the day care had “stomped on her face.” One of the surgeons who had operated on the victim agreed that her injuries were consistent with a strong blow to the face, or a hard blow to the head. The church argued that the victim had somehow fallen. The child’s mother sued the church, claiming that it had been negligent in supervising the victim. A trial court granted the church’s motion for summary judgment on the ground that no reasonable jury could find the church to have been negligent. The mother appealed.

The state supreme court reversed the summary judgment in favor or the church, and ordered the case to proceed to trial. The court acknowledged that “a school is not expected to insure children’s safety, but it must exercise the ordinary care of a reasonable person under similar circumstances.” In addition, the level of supervision that is required depends on the age of the children in a church’s custody. The younger the child, the greater the duty of supervision. The court concluded: “Should the jury find that the day care director breached her duty when she did not keep the children in sight for two or three minutes, the jury could reasonably find for the victim …. A jury must decide what constitutes proper and adequate supervision for a two-year old child. Therefore, whether or not the child care director met the appropriate standard of care required for a two-year-old child must be determined by a jury.”

Application. This case illustrates two important points. First, a church may be liable for injuries to minors even without clear evidence of how the injuries occurred. Second, a church is not a guarantor of the safety of children. Rather, it has a legal duty to exercise reasonable care in the supervision of its programs and activities. This duty is enhanced when younger children are involved. This court concluded that a church might be liable, on the basis of negligent supervision, for injuries to a two-year-old child that occurred in a church child care facility when the director turned her back on the children for two minutes. Todd v. Church, 993 So.2d 827 (Miss. 2008).

This Recent Development first appeared in Church Law & Tax Report, September/October 2009.

Legal Developments

School Not Liable for Teacher’s Affair with Student

Court determines the school did not have enough evidence to intervene.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

School Not Liable for Teacher’s Affair with Student

Court determines the school did not have enough evidence to intervene.

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

Key Point 10-05.2 Some courts have found churches not liable on the basis of negligent selection for the sexual misconduct of a minister or other church worker involving another adult since the church exercised reasonable care in the selection of the worker.

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

A Mississippi court ruled that a school was not liable for the molestation of a minor student by a teacher since it had insufficient evidence of the teacher’s wrongful conduct to intervene. A teacher at a public middle school (the “defendant”) developed a mentoring relationship with an adolescent girl (the “victim”), which was approved of and encouraged by her mother who was divorced and appreciated a “father figure” in her daughter’s life. The defendant had no prior criminal record, no history of sexually harassing students, was in fact highly regarded by school officials, and had a reputation as a capable and caring teacher.

The defendant began paying more attention to the victim because of their mentoring relationship. It was not unusual for him to call her at home, take her to church, or attend dance recitals and other extra-curricular activities. The victim’s mother had complete trust in the defendant, and later claimed that he gave her no indication that his relationship with the victim was anything more than “fatherly” attention. Eventually, the defendant began having sexual contact with the victim on numerous occasions. They increasingly communicated with each other through email, phone calls, and handwritten notes. Because of the illicit and illegal nature of the relationship, the defendant and victim both concealed it. The defendant often stressed the importance of keeping their relationship a secret, and that if the truth were disclosed he would lose his job, wife and daughter.

The school principal first heard about the possibility of the defendant’s inappropriate conduct through an unsubstantiated rumor from the school secretary that the defendant and victim were involved in an inappropriate relationship. The principal immediately confronted the defendant and asked about the truthfulness of the rumor. The defendant vehemently denied any wrongdoing. The principal warned him that even a mere rumor could ruin a teacher’s career. The principal believed the defendant. In any event, there was no substantiated evidence beyond this one rumor to prove otherwise. The principal did not receive any other complaints or rumors from anyone else regarding the situation, including other students, teachers, or any of the victim’s family members.

The relationship was finally exposed when the victim’s sister found some discarded love letters from the defendant to the victim in the trash. The mother was told about the letters, obtained her daughter’s email password, and read the impassioned emails between her daughter and the defendant and was infuriated by the defendant’s breach of trust. The mother claimed it was at this time she first realized the defendant’s relationship with her daughter was not innocent. With copies of the emails in hand, the mother went to the defendant’s house, confronted him in front of his wife and demanded his resignation from the school. The teacher complied and gave the principal his resignation, claiming it was over some “stupid emails.”

The victim’s mother sued the defendant and school. The claims against the defendant were later settled out of court, and the case against the school proceeded to trial. The mother claimed that the school was responsible for the defendant’s wrongful acts on the basis of negligent training, negligent retention, and failure to comply with the state child abuse reporting law. The court ruled in favor of the school, and the mother appealed.

Negligent retention

The court noted that “an employer will be liable for negligent retention of his employee when an employee injures a third party if the employer knew or should have known of the employee’s incompetence or unfitness …. A plaintiff must prove the defendant had either actual or constructive knowledge of an employee’s incompetence or unfitness before the employer will become liable for the negligent retention of an employee who injures a third party.” The court defined constructive notice as “information or knowledge of a fact imputed by law to a person (although he may not actually have it), because he could have discovered the fact by proper diligence, and his situation was such as to cast upon him the duty of inquiring into it.”

Did the school have actual or constructive knowledge that the defendant represented a risk of harm to minors? No, concluded the court:

From the evidence and testimony in the record, the trial court was correct in finding there was no actual notice to prove the school knew of the affair. The school had one uncorroborated rumor about a possible inappropriate relationship between the defendant and victim which was initiated by the school secretary and told to the principal. There was no tangible evidence of the affair until the discarded notes and emails were found. School computers were not used for this correspondence nor were school telephones used for phone calls. All of the physical contact occurred [off of school property]. Understandably, because of its illicit nature, the couple did not inform anyone of their relationship. Also understandably, the victim’s mother did not inform anyone at the school about the relationship because she was under the impression it was innocent. The mother presented no evidence that any employee or official at the school knew of the relationship either, except the isolated rumor by the school secretary. There were no complaints, formal or informal, lodged at the school or alleged by any individual. In retrospect, it is easier to see the signs of inappropriateness in the defendant’s actions, but at the time they were occurring, there was insufficient proof to claim the school was negligent in not taking action.

Furthermore, there was insufficient constructive notice of the inappropriate relationship to claim the school should have known of the affair. The defendant had no prior history of wrongdoing and had a good reputation with the principal who knew him personally from when he was a student. There was no indication that the defendant would be an unfit or incompetent teacher either when they hired him or after he began teaching. He had a good reputation … and there is nothing indicative about his past actions or actions at the time of his employment at the school that would rise to the level of giving constructive notice to the school of his transgressions. Further, many of his acts were under the guise of innocence, such as his tutoring of the victim and her babysitting of his child. Importantly, the victim’s mother approved of and gave permission for most of the instances when the couple was together …. The principal was dealing with limited information that did not include knowledge of the extra tutoring, rides home from sporting events, church and softball excursions, phone calls, emails, notes, and the mentoring relationship.

The court also ruled that the school acted appropriately in retaining the defendant until the emails were discovered and he resigned. Once the school learned of the extent of the defendant’s misconduct, it “did not exhibit indifference. The principal testified that if the defendant had not resigned he would have been fired.”

Child Abuse Reporting

The mother insisted that the school was liable for the defendant’s wrongful acts on the basis of the school’s failure to comply with the state child abuse reporting law. The court disagreed, for four reasons. First, it pointed out that the Mississippi child abuse reporting law specifies that “any … public or private school employee or any other person having reasonable cause to suspect that a child is a neglected child or an abused child, shall cause an oral report to be made immediately by telephone or otherwise and followed as soon thereafter as possible by a report in writing to the Department of Human Services.” The statute defines an “abused child” as “a child whose parent, guardian or custodian or any person responsible for his care or support” committed the abuse. The court noted that while the defendant “was surely an employee of the school … we fail to see how he could ever be considered a person responsible for the victim’s care or support.”

Second, the reporting duty only arises when a mandatory reporter has reasonable cause to suspect that abuse has occurred, and school officials did have sufficient evidence of wrongdoing to have reasonable cause to suspect that the defendant had abused the victim. In this regard, the court noted that “there was no evidence which proves the school’s officials were aware of the inappropriate relationship until after the defendant resigned.” The court also noted that “an unsubstantiated rumor carries significantly less credibility than a formal accusation, and there were no formal accusations in this case.” In addition, the rumor did not involve any indication of “fondling or sexual involvement between the victim and defendant,” but rather “only the possibility of an inappropriate relationship.”

Third, even if school officials “shirked their duty” to report sexual involvement of a teacher with a student, by the time they had sufficient knowledge to report the behavior the defendant had already resigned and the relationship had ended. Reporting to law enforcement officials at the time of the rumor “would not have alleviated any of the defendant’s prior wrongdoings, or any alleged current or potential future damages claimed by the victim.”

Application. This case is important for the following reasons:

  1. It illustrates the danger inherent in unsupervised “mentoring” relationships between adults and minors. Such arrangements occur in many churches, and they should always be viewed as involving a high degree of risk. Churches should never consider the establishment of such relationships without (1) conducting thorough background checks on the adult mentors; (2) the creation of appropriate boundaries; and (3) obtaining and following the guidelines used by other charities (such as Big Brothers/Sisters) that utilize mentoring relationships between adults and minors.
  2. The court concluded that school officials’ awareness of a rumor of an inappropriate relationship between a teacher and a minor student was not enough to make the school liable on the basis of negligent retention for the teacher’s acts of molestation. The court noted that there was no tangible evidence of the affair until the discarded notes and emails were found; school computers and telephones were not used to facilitate the relationship; all of the acts of molestation occurred off of school premises; the defendant had no prior history of wrongdoing, and had an excellent reputation; and, because of its illicit nature, the couple did not inform anyone of their relationship.
  3. The court rejected the mother’s claim that school officials violated a state child abuse reporting law since the reporting duty only applied to an “abused child,” and the victim in this case did meet the statute’s definition of an abused child since she was not abused by someone “responsible for her care or support.” Several other states define reportable child abuse in this same way, and this illustrates the importance of church leaders being familiar with their state’s requirements.
  4. The court also rejected the mother’s claim that school officials violated their duty to report child abuse since an unsubstantiated rumor did not create the reasonable suspicion of abuse necessary to trigger a duty to report. The court concluded that “an unsubstantiated rumor carries significantly less credibility than a formal accusation.”
  5. The court concluded that mandatory child abuse reporters cannot be liable for failing to report abuse when they don’t learn of the abuse until after the abuse is disclosed and the offender’s wrongful acts terminated. Doe ex rel. Brown v. Pontotoc County School District, 957 So.2d 410 (Miss. App. 2007).

    6. This Recent Development first appeared in Church Law & Tax Report, March/April 2008.

Legal Developments

School Not Liable for Teacher’s Molestation of Student

Court rules that the school lacked sufficient evidence to intervene.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

School Not Liable for Teacher’s Molestation of Student

Court rules that the school lacked sufficient evidence to intervene.

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

Key Point 10-05.2 Some courts have found churches not liable on the basis of negligent selection for the sexual misconduct of a minister or other church worker involving another adult since the church exercised reasonable care in the selection of the worker.

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

A Mississippi court ruled that a school was not liable for the molestation of a minor student by a teacher since it had insufficient evidence of the teacher’s wrongful conduct to intervene. A teacher at a public middle school (the “defendant”) developed a mentoring relationship with an adolescent girl (the “victim”) which was approved of and encouraged by her mother who was divorced and appreciated a “father figure” in her daughter’s life. The defendant had no prior criminal record, no history of sexually harassing students, was in fact highly regarded by school officials, and had a reputation as a capable and caring teacher.

The defendant began paying more attention to the victim because of their mentoring relationship. It was not unusual for him to call her at home, take her to church, or attend dance recitals and other extra-curricular activities. The victim’s mother had complete trust in the defendant, and later claimed that he gave her no indication that his relationship with the victim was anything more than “fatherly” attention. Eventually, the defendant began having sexual contact with the victim on numerous occasions. They increasingly communicated with each other through email, phone calls, and handwritten notes. Because of the illicit and illegal nature of the relationship, the defendant and victim both concealed it. The defendant often stressed the importance of keeping their relationship a secret, and that if the truth were disclosed he would lose his job, wife and daughter.

The school principal first heard about the possibility of the defendant’s inappropriate conduct through an unsubstantiated rumor from the school secretary that the defendant and victim were involved in an inappropriate relationship. The principal immediately confronted the defendant and asked about the truthfulness of the rumor. The defendant vehemently denied any wrongdoing. The principal warned him that even a mere rumor can ruin a teacher’s career. The principal believed the defendant. In any event, there was no substantiated evidence beyond this one rumor to prove otherwise. The principal did not receive any other complaints or rumors from anyone else regarding the situation, including other students, teachers, or any of the victim’s family members.

The relationship was finally exposed when the victim’s sister found some discarded love letters from the defendant to the victim in the trash. The mother was told about the letters, obtained her daughter’s email password, and read the impassioned emails between her daughter and the defendant and was infuriated by the defendant’s breach of trust. The mother claimed it was at this time she first realized the defendant’s relationship with her daughter was not innocent. With copies of the emails in hand, the mother went to the defendant’s house, confronted him in front of his wife and demanded his resignation from the school. The teacher complied and gave the principal his resignation, claiming it was over some “stupid emails.”

The victim’s mother sued the defendant and school. The claims against the defendant were later settled out of court, and the case against the school proceeded to trial. The mother claimed that the school was responsible for the defendant’s wrongful acts on the basis of negligent training, negligent retention, and failure to comply with the state child abuse reporting law. The court ruled in favor of the school, and the mother appealed.

Negligent retention
The court noted that “an employer will be liable for negligent retention of his employee when an employee injures a third party if the employer knew or should have known of the employee’s incompetence or unfitness …. A plaintiff must prove the defendant had either actual or constructive knowledge of an employee’s incompetence or unfitness before the employer will become liable for the negligent retention of an employee who injures a third party.” The court defined constructive notice as “information or knowledge of a fact imputed by law to a person (although he may not actually have it), because he could have discovered the fact by proper diligence, and his situation was such as to cast upon him the duty of inquiring into it.”

Did the school have actual or constructive knowledge that the defendant represented a risk of harm to minors? No, concluded the court:

From the evidence and testimony in the record, the trial court was correct in finding there was no actual notice to prove the school knew of the affair. The school had one uncorroborated rumor about a possible inappropriate relationship between the defendant and victim which was initiated by the school secretary and told to the principal. There was no tangible evidence of the affair until the discarded notes and emails were found. School computers were not used for this correspondence nor were school telephones used for phone calls. All of the physical contact occurred [off of school property]. Understandably, because of its illicit nature, the couple did not inform anyone of their relationship. Also understandably, the victim’s mother did not inform anyone at the school about the relationship because she was under the impression it was innocent. The mother presented no evidence that any employee or official at the school knew of the relationship either, except the isolated rumor by the school secretary. There were no complaints, formal or informal, lodged at the school or alleged by any individual. In retrospect, it is easier to see the signs of inappropriateness in the defendant’s actions, but at the time they were occurring, there was insufficient proof to claim the school was negligent in not taking action.

Furthermore, there was insufficient constructive notice of the inappropriate relationship to claim the school should have known of the affair. The defendant had no prior history of wrongdoing and had a good reputation with the principal who knew him personally from when he was a student. There was no indication that the defendant would be an unfit or incompetent teacher either when they hired him or after he began teaching. He had a good reputation … and there is nothing indicative about his past actions or actions at the time of his employment at the school which would rise to the level of giving constructive notice to the school of his transgressions. Further, many of his acts were under the guise of innocence, such as his tutoring of the victim and her babysitting of his child. Importantly, the vicitm’s mother approved of and gave permission for most of the instances when the couple was together …. The principal was dealing with limited information that did not include knowledge of the extra tutoring, rides home from sporting events, church and softball excursions, phone calls, emails, notes, and the mentoring relationship.

The court also ruled that the school acted appropriately in retaining the defendant until the emails were discovered and he resigned. Once the school learned of the extent of the defendant’s misconduct, it “did not exhibit indifference. The principal testified that if the defendant had not resigned he would have been fired.”

Child abuse reporting
The mother insisted that the school was liable for the defendant’s wrongful acts on the basis of the school’s failure to comply with the state child abuse reporting law. The court disagreed, for four reasons. First, it pointed out that the Mississippi child abuse reporting law specifies that “any … public or private school employee or any other person having reasonable cause to suspect that a child is a neglected child or an abused child, shall cause an oral report to be made immediately by telephone or otherwise and followed as soon thereafter as possible by a report in writing to the Department of Human Services.” The statute defines an “abused child” as “a child whose parent, guardian or custodian or any person responsible for his care or support” committed the abuse. The court noted that while the defendant “was surely an employee of the school … we fail to see how he could ever be considered a person responsible for the victim’s care or support.”

Second, the reporting duty only arises when a mandatory reporter has reasonable cause to suspect that abuse has occurred, and school officials did have sufficient evidence of wrongdoing to have reasonable cause to suspect that the defendant had abused the victim. In this regard, the court noted that “there was no evidence which proves the school’s officials were aware of the inappropriate relationship until after the defendant resigned.” The court also noted that “an unsubstantiated rumor carries significantly less credibility than a formal accusation, and there were no formal accusations in this case.” In addition, the rumor did not involve any indication of “fondling or sexual involvement between the victim and defendant,” but rather “only the possibility of an inappropriate relationship.”

Third, even if school officials “shirked their duty” to report sexual involvement of a teacher with a student, by the time they had sufficient knowledge to report the behavior the defendant had already resigned and the relationship had ended. Reporting to law enforcement officials at the time of the rumor “would not have alleviated any of the defendant’s prior wrongdoings, or any alleged current or potential future damages claimed by the victim.”

This Recent Development first appeared in Church Law & Tax Report, January/February 2008.

Legal Developments

Protecting Against Embezzlement of Church Funds

What church leaders should do to prevent internal theft.

Richard R. Hammar, Attorney, CPA
Bio

Coleman v. State, 2006 WL 3513407 (Miss. 2006)

Background. Two deacons were responsible for collecting offerings from church members, depositing the funds into the church's bank account, and paying for authorized maintenance and repairs to the church building and facilities. Both deacons were authorized to sign checks individually, without the safeguard of requiring two signatories. They were not, however, authorized to make expenditures without the approval of the members, which was determined at meetings held after church services.

Over the course of six months, one of the deacons (the "defendant") wrote checks totaling $1,600 to himself, with no documentation showing that he used the funds to pay for expenditures authorized by the congregation. When the other deacon became aware of the defendant's behavior, he notified law enforcement officials. An investigation was initiated that resulted in the indictment of the defendant for embezzlement. The indictment stated:

[The defendant] between the 22nd day of January and 8th day of July … being a deacon and in a position of trust at [the church] and by virtue of his position as deacon, had under his care money an amount being two hundred and fifty dollars or more, and did fraudulently and feloniously embezzle and convert said money to his own use, without the consent of [the other deacon or the church] against the peace and dignity of the state.

The case proceeded to trial. The defendant's defense was that he had written the checks to compensate himself for payments he made from his own funds for repair of church property, including plumbing and electrical work, as well as maintenance of the church's lawn mower. The church's pastor, however, testified that before any authorized work could be done for the church, the deacons were required to obtain approval from the congregation. The pastor also testified that the plumbing work which had been done was minor, there had been no electrical work done at the church, and the repairs performed were not worth $1,600.

The defendant did not testify, but called various witnesses concerning his alleged work and repairs. The jury found him guilty, and he was sentenced to a ten-year term of imprisonment and ordered to pay restitution in the amount of $2,255. The verdict was reversed on appeal due to a technicality.

What this means for churches

Consider the following points:

1. Many church leaders consider embezzlement to be a problem that "couldn't happen here." Yet, it is this very attitude that contributes to poor or nonexistent internal controls over cash handling and payment of expenses that makes embezzlement a real threat.

2. How was the defendant able to embezzle church funds? By issuing unauthorized checks over his sole signature to pay for personal expenses. Had the church implemented the most basic internal controls he could not have engaged in his acts of embezzlement. Here are two internal controls that would have worked:

3. Church leaders may not be discharging their fiduciary duties when they fail to implement basic internal controls over cash handling and the payment of expenses. Such a failure can result in a host of negative consequences, including criminal liability to the embezzler.

4. The legal consequences of embezzlement can be severe. In this case, the defendant was sentenced to ten years in a state penitentiary. Although his sentence was reversed on appeal, this was due to a technicality that in no way justified or diminished the gravity of his crime.

Legal Developments

Clergy-Penitent Privilege and Confidentiality

In many states, the presence of third persons during a conversation with a minister will prevent the conversation from being privileged.

Richard R. Hammar, Attorney, CPA
Bio

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

The Mississippi Supreme Court ruled that a pastor's confession to another pastor that he was guilty of rape was not protected by clergy-penitent privilege since other persons were present when the confession was made and so it was not confidential.

The court noted that the clergy-penitent privilege prevents ministers from testifying in court regarding statements made to them in confidence while acting in a professional capacity as a spiritual advisor. The Mississippi privilege states: "A person has a privilege to refuse to disclose and prevent another from disclosing a confidential communication by the person to a clergyman in his professional character as spiritual adviser."

The court noted that the confession was not privileged because it was not confidential. It based this conclusion on the fact that five persons were present when the confession was made. The court concluded that the clergy-penitent privilege only protects confidential communications, and that "a communication is confidential if made privately and not intended for further disclosure except in furtherance of the purpose of communication." Disclosure of confidential information or communication "in the presence of third parties generally operates to waive any privilege."

What this means for churches

This case illustrates an important point. The clergy-penitent privilege generally applies to confidential communications made to a minister acting in a professional capacity as a spiritual advisor, meaning that these communications are not admissible in court. This court defined "confidential" to exclude statements made in the presence of third parties. This demonstrates why it is important for ministers to be familiar with their state's clergy-penitent privilege. In many states, the presence of third persons during a conversation with a minister will prevent the conversation from being privileged. Rogers v. State, 928 So.2d 831 (Miss. 2006).

Legal Developments

Confidential and Privileged Communications – Part 1

Pastors who know that a meeting is being secretly tape recorded may be personally liable on the basis of fraudulent concealment.

Richard R. Hammar, Attorney, CPA
Bio

Key point. Pastors who know that a meeting is being secretly tape recorded may be personally liable on the basis of fraudulent concealment if they fail to disclose to all parties that the meeting is being recorded.

The Mississippi Supreme Court ruled that a pastor could be liable on the basis of fraudulent concealment for attending a meeting between a married couple that was being secretly recorded, with his knowledge, by the husband in order to obtain evidence for a subsequent divorce proceeding.

Pastor Terry served as senior pastor of a local church in which a married couple (Ray and Julie) were members. Julie was an active, lifelong member of the church. Pastor Terry officiated at Ray and Julie's wedding, baptized both of their children, and considered Ray and Julie to be close personal friends.

Ray learned that Julie was involved in an adulterous affair, and asked Pastor Terry to be present when he confronted her about it. Ray informed Pastor Terry that he intended to record the conversation on the advice of a divorce attorney in order to obtain evidence that could be used in persuading Julie to agree to a no-fault divorce. The meeting took place in Ray and Julie's home. Julie did not know that Ray was recording the meeting nor was she aware that the purpose of the meeting was to confront her with her purported infidelity. Ray later testified in a deposition that he told Julie that he "wanted to talk to her about something important with Pastor Terry present." Ray also testified that he believed Pastor Terry's presence "could possibly help save the marriage." However, Ray acknowledged that "this meeting was not in any way a counseling session."

During the meeting Ray presented Julie with three options: save the marriage, no-fault divorce, or "we go to war" which would include an "alienation of affection" lawsuit against her alleged paramour. The first option was instantly dismissed by Julie, and it immediately became apparent that custody of the children would be a major point of disagreement. Julie expressed confusion as to why Pastor Terry was present. The pastor responded that he was there for Ray and at other times for both of them.

Julie was combative and used profanity during the course of this confrontation and begged and pleaded for custody of her children. At one point, Pastor Terry sent Ray out of the room. With Julie still upset, Pastor Terry assured Julie that he was not there to ambush her, that he was there by her side, and that she was not alone. Soon afterwards, Pastor Terry left the home. Julie claimed that following the meeting Pastor Terry "told several other people" of the conversation regarding Julie's infidelity.

Ray filed for divorce, which resulted in costly and protracted litigation. Although the transcript of the tape recording was not introduced as evidence, one of Ray's witnesses used the transcript in reaching the conclusion that Ray was the more stable parent and should have custody of the children. Ray was awarded legal custody of the children, with both parties gaining joint physical custody. During the divorce proceedings Julie learned that the meeting with her husband and Pastor Terry had been secretly tape recorded. She later sued Pastor Terry, her church, and a regional denominational agency, alleging breach of fiduciary duty, fraudulent concealment, negligent misrepresentation, invasion of privacy, emotional distress, negligent retention and supervision of clergy, and clergy malpractice. A trial court dismissed all claims except the fraudulent concealment claim against Pastor Terry, and both parties filed appeals with the state supreme court,

first amendment issues

The state supreme court ruled that the first amendment religion clauses did not prevent it from resolving Julie's claims so long as it could do so "without pressing into ecclesiastical matters." The church defendants vigorously argued that this was an ecclesiastical matter and that the court should decline to hear it, while Julie insisted that Pastor Terry's actions "had no ecclesiastical justification." The court concluded that the first amendment did not bar it from resolving the dispute:

A review of the transcript reveals no discussion of the Scriptures or religion and only one mention of God. Rather, the conversation was explosive in that it was one man confronting his wife with knowledge of her purported infidelity without any notice to her as to what the arranged meeting was about, and this conversation took place in the presence of another man, who apparently had been through some sort of similar experience. The transcript does not reveal marital counseling by Pastor Terry, but rather a confrontation initiated by Ray in an effort to get his wife to admit to an adulterous affair. The wife, reacting to being "backed into a corner," lashed out at times and at other times pleaded that her husband not take the children away from her. Other than the fact that the third person present was a pastor, there is no indication of any spiritual or other counseling occurring.

fiduciary duty

Julie claimed that Pastor Terry breached a fiduciary duty that he owed her as a member of his congregation by participating in the secret tape recording of the meeting with her husband. The court concluded that "a pastor's position alone is insufficient to establish a fiduciary relationship, for "if this court were to recognize such a duty on the basis of a position held within the church, we would necessarily be required to define a reasonable duty standard and to evaluate Pastor Terry's conduct compared to that standard. To do so would violate the first amendment."

However, the court acknowledged that a fiduciary duty may arise if a church member places "trust or confidence" in a pastor, or is "dependent" upon a pastor. The court concluded that this test was not met in this case since there was no evidence that Julie was dependent on Pastor Terry, or had placed any special trust or confidence in him. In particular, the court noted that Pastor Terry was not acting as a spiritual advisor or counselor to Julie during the meeting at which she confessed to adultery.

fraudulent concealment

The trial court ruled that Pastor Terry could be found liable on the basis of fraudulent concealment for knowingly participating in the secret tape recording of the meeting with Ray and Julie. On appeal, Pastor Terry insisted that he did not have a duty to inform Julie that Ray was taping the conversation because "it is not illegal to tape a conversation."

The court noted that under contract law, for there to be liability for nondisclosure, "silence must relate to a material fact or matter known to the party and as to which it is his legal duty to communicate to the other contracting party. An affirmative act of concealment is necessary." The court concluded that while this was not a contractual dispute, the same legal analysis was appropriate. It concluded:

Clearly, Pastor Terry had prior knowledge that Ray was going to tape the conversation on the advice of Ray's attorney. Julie asserted in her affidavit that had she known that she was being taped, she would have responded differently. Although Ray's affidavit reveals that Julie did not divulge any new or confidential information, that is immaterial as to Julie's claim. Certainly, Ray's knowledge is significantly different than having Julie's purported admission of the affair on tape. At all times, Pastor Terry was an active participant in obtaining Julie's statements relating to the affair.

However, the court declined to impute Pastor Terry's liability for fraudulent concealment to his church or denomination, since Julie presented "no facts to prove that the church or denomination authorized or ratified Pastor Terry's actions in this case."

clergy malpractice

The court noted that courts in other states have "uniformly rejected a cause of action for clergy malpractice," and that "this unanimity is based on the difficulty that would be encountered in evaluating such a claim without entangling the civil courts in extensive investigation and evaluation of religious tenets." As a result, it rejected this basis of liability.

negligence claims

Julie also asserted claims for negligent misrepresentation, negligent infliction of emotional distress, and negligent supervision and retention. The trial court dismissed all these claims, and Julie appealed that ruling. On appeal, she insisted that these claims could be resolved by a civil court without violating the first amendment. The court, in rejecting any liability based on negligence, noted that negligence requires proof of a "duty" of care and a violation of that duty. It concluded, "It is in the establishment of the duty of the pastor, the church, and the [denomination] that would excessively entangle this court into the investigation and evaluation of religious tenets. Therefore, we find that the trial judge was correct in dismissing the remaining claims against all defendants."

Application. This case is relevant for the following reasons:

  1. The court concluded that the pastor-parishioner relationship is not a fiduciary relationship that would give rise to liability based on a breach of that relationship. However, the court cautioned that such a relationship might arise in the context of a counseling relationship between a pastor and a parishioner, or in any other context in which a parishioner places special confidence in the pastor or is dependent upon him or her.
  2. The decision represents yet another rejection of the theory of clergy malpractice.
  3. The court rejected all of Julie's negligence claims (negligent misrepresentation, negligent infliction of emotional distress, and negligent supervision and retention) on the ground that these claims could not be resolved by a civil court without violating the first amendment because they would require a court to determine if a "duty of care" was owed by a pastor or church to a parishioner. Such a decision "would excessively entangle this court into the investigation and evaluation of religious tenets." This is a significant ruling, for it essentially forecloses liability against clergy or churches based on negligence to the extent that resolution of a claim would entail scrutiny of religious tenets.
  4. Most importantly, the court concluded that the pastor could be liable for "fraudulent concealment" as a result of his knowledge that Ray was secretly tape recording a meeting with his wife that the pastor attended. This conclusion is remarkable for two reasons. First, no contract was involved in this case, and so why did the court apply a contract law principle? Second, even assuming that it did apply, the requirements for fraudulent concealment were not met. As the court noted, fraudulent concealment was established by "knowing participation" in the secret tape recording. Yet, as a dissenting justice pointed out in a separate opinion:

    5. The majority correctly [notes] that, in order for there to be liability for nondisclosure, silence must relate to a material fact or matter known to the party and to which it is his legal duty to communicate to the other contracting party. Having correctly recited the principle of law, however, the majority provides no explanation of the pastor's "legal duty" to communicate to Julie that Ray was secretly recording the meeting. While I do not approve or condone the pastor's behavior, I find no authority which suggests he had a legal duty to inform Julie of Ray's secret recording …. [Further] in order to recover damages for fraudulent concealment [the plaintiff] must demonstrate [that the defendant] took some action, affirmative in nature, which was designed or intended to prevent and which did prevent the discovery of the facts giving rise to the fraud claim. Neither the majority nor Julie has suggested any action by the pastor (beyond his silence) to conceal the tape recording. The majority incorrectly substitutes the pastor's participation in the conversation for the required active participation in the concealment of the recording. It is not the conversation that Julie alleges was concealed from her, but rather the recording of it. Absent some active participation by the pastor in secretly recording the conversation, or some other legal duty to disclose to Julie that Ray was secretly recording the conversation, there can be no liability for fraudulent concealment.

    This is clearly the correct analysis, but it was rejected by a majority of the court. The dissenting justice further observed, "I believe the pastor had three appropriate, moral, honorable options. He could have insisted that Ray refrain from recording the meeting; he could have informed Julie of it; or he could have refused to attend. However, my beliefs of what is appropriate, moral or honorable cannot impose legal responsibilities upon the pastor, and I refuse to do so here. The consequences of his actions must be, I think, determined by a higher authority."

    The bottom line is that in Mississippi, or in any other state that follows this ruling, a pastor who is present in a meeting that is being secretly tape recorded by a participant may be liable on the basis of fraudulent concealment if he or she was aware that the meeting was being secretly recorded. Mabus v. St. James Episcopal Church, 884 So.2d 747 (Miss. 2004).

    © Copyright 2005 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m33 c0505

Legal Developments

Child Abuse

A Mississippi court ruled that the principal of a church school who reported a suspected case of child abuse to state authorities could not be sued by the parents of the child.

Richard R. Hammar, Attorney, CPA
Bio


Key point 4-08
. Every state has a child abuse reporting law that requires persons designated as mandatory reporters to report known or reasonably suspected incidents of child abuse. Ministers are mandatory reporters in many states. Some states exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Ministers may face criminal and civil liability for failing to report child abuse.

A Mississippi court ruled that the principal of a church school who reported a suspected case of child abuse to state authorities could not be sued by the parents of the child.

After investigating reports of abnormal behavior by a child at a church-operated school, the school principal determined that she had reasonable cause to believe that the child was a victim of abuse. The principal contacted the local Department of Human Services (DHS), as required by the state child abuse reporting law, and reported her findings. An investigation by the DHS followed. After learning of the investigation, the child's parents sued the principal and members of the school board to recover damages for defamation, libel, slander, false light, and intentional infliction of emotional distress. The parents later dropped their claims against the board members, but pursued their claims against the principal. A trial court dismissed the case, and the parents appealed.

A state appeals court upheld the trial court's dismissal of the lawsuit. It began its opinion by quoting the state child abuse reporting law: "A public or private school employee or any other person having reasonable cause to suspect that a child is a neglected child or an abused child, shall cause an oral report to be made immediately … to the Department of Human Services." This language, the court concluded, "unequivocally commands reporting to be a mandatory duty."

The court pointed out that this mandatory reporting legislation "was for the single purpose of advancing the state's fundamental objective of eliminating child abuse and neglect." To effectuate this purpose, the state legislature adopted two provisions to "encourage reporting of suspected abuse." The first makes it a criminal offense for a mandatory reporter to fail to report known or reasonably suspected cases of child abuse. The second confers "immunity" from criminal or civil liability on persons who report abuse "in good faith." The court then observed,

The duty to report suspected child abuse attaches to an individual the moment they [sic] are presented with a situation producing "reasonable cause" for such suspicion. Hence, the standard for reporting is possessing suspicion of child abuse that is founded upon reasonable cause. Persons having reasonable cause must report their suspicion, and if reported in good faith, they are immune from civil liability for doing so. Immunity, therefore, is conditioned upon the report being made in good faith …. The immunity extended by the statute, as the parents in this case contend, is limited, but the limitation is conditioned upon nothing other than the presence of good faith …. For the parents to overcome the good faith presumption … their obligation was to satisfy the court as to the availability of evidence that demonstrates the principal acted with ill-will or actual malice. The allegations and accusations in the complaint were insufficient to overcome the presumption …. Presented with no evidence outside the bare allegations of the complaint, which contained no specific factual assertions that, if proven, would create a legitimate disputed issue of whether the principal was proceeding in bad faith, we cannot find error in the trial court's ruling.


Application . As this court correctly noted, child abuse reporting laws seek to encourage mandatory reporters to report suspected cases of child abuse by clothing them with immunity from liability for making reports. This immunity is "limited" in the sense that it does not protect against "bad faith" reports, which this court defined to mean "ill-will or actual malice." Howe v. Andereck, 2004 WL 557379 (Miss. App. 2004).

Legal Developments

Recent Developments in Mississippi Regarding Confidential and Privileged Communications

The Mississippi Supreme Court ruled that a communication made by a prison inmate to a deacon was not protected by the clergy-penitent privilege.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax1999-07-01

Confidential and Privileged Communications

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

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

The Mississippi Supreme Court ruled that a communication made by a prison inmate to a deacon was not protected by the clergy-penitent privilege. A murder suspect (the “defendant”) was incarcerated in a county jail while awaiting trial. A church deacon regularly visited the jail, sometimes with his pastor, to provide spiritual assistance to the inmates. On one occasion, the deacon was meeting with several inmates and discussing their Christian duty to forgive in order to be forgiven. The defendant was listening to this discussion, and at one point asked the deacon to come and speak with him. He asked the deacon if one had to forgive someone who killed their mother or father. The deacon replied that one could not refuse to forgive another for anything and still claim to serve God. At the close of their conversation, the defendant shook the deacon’s hand, and said “you have got to forgive all.” The deacon later testified in the defendant’s murder trial, and repeated their conversation. The defendant insisted that the conversation was protected by the clergy-penitent privilege, and should not have been admitted. Rule 505 of the Mississippi Rules of Evidence sets forth the clergy-penitent privilege for that state. It specifies that “a person has a privilege to refuse to disclose and prevent another from disclosing a confidential communication by the person to a clergyman in his professional character as spiritual adviser.” The rule defines a “clergyman” as “a minister, priest, rabbi or other similar functionary of a church, religious organization, or religious denomination.”

The court concluded:

[A deacon] is not a clergyman within the plain meaning of the definition of Rule 505, which states that “a clergyman is a minister, priest, rabbi or other similar functionary of a church, religious organization, or religious denomination …. [The deacon] testified quite clearly that he was not a minister and did not purport to be one, even though he did discuss spiritual issues in the abstract with people as part of the exercise of his faith. He also testified that anyone from his church, not just deacons, could go and provide the same type of consolation to inmates. He expressly stated that he did not discuss personal problems with the inmates as part of his spiritual tutoring. Thus, we conclude that [the deacon] was not acting in the role of minister within the plain meaning of the rule.

Application. It is common for nonminister church volunteers to provide spiritual counseling and support to inmates in local jails. This case illustrates the principle, recognized in most if not all states, that communications must be made to a minister in order to be protected by the clergy-penitent privilege. Some states define the term “minister” to include a person who is thought to be a minister by a counselee. But this was not the case here, since the Mississippi clergy-penitent privilege does not contain such an exception, and even if it did, the defendant clearly knew that the deacon was not a minister. Banks v. State, 725 So.2d 711 (Miss. 1998). [The Clergy-Penitent Privilege ]

© Copyright 1999 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m33 c0499

Legal Developments

Recent Developments in Mississippi Regarding Ascending Liability

A federal court in Mississippi ruled that a parent corporation was not legally responsible for the liabilities of a subsidiary corporation.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax1998-01-01

Ascending Liability

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

A federal court in Mississippi ruled that a parent corporation was not legally responsible for the liabilities of a subsidiary corporation. The court listed the same 12 factors mentioned by the federal appeals court in Gundle Lining Construction Corp. v. Adams County Asphalt, Inc., 85 F.3d 201 (5th Cir. 1996) (discussed above). However, the court added two important clarifications: (1) “No single factor or combination of factors is controlling” and that “even if all of the factors are found to be applicable, other circumstances might justify a refusal to pierce the corporate veil.” (2) “We must remember that the alter ego doctrine and piercing of the corporate veil are truly exceptional doctrines, reserved for those cases where the officers, directors or stockholders utilized the corporate entity as a sham to perpetuate a fraud, to shun personal liability, or to encompass other truly unique situations.” In re Catfish Antitrust Litigation, 908 F. Supp. 400 (N.D. Miss. 1996). [ Denominational Liability]

© Copyright 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m40 c0198

Legal Developments

State Regulations for Schools

Court rules that regulations do not violate an organization’s religious freedom.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1994-01-01 Recent Developments

Schools

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

• Key point: Reasonable regulation of church-operated schools and children’s homes, in an effort to ensure safety and health, do not violate the constitutional guaranty of religious freedom.

• The Mississippi Supreme Court ruled that the first amendment guaranty of religious freedom was not violated by the closing of a church-operated children’s home for failure to comply with state regulations. In 1989, the State of Mississippi enacted a law requiring children’s homes to be licensed by the state. Letters were sent to children’s homes informing them of the law and instructing them to begin compliance with the licensing requirement. A church-operated children’s home received this letter, but the administrator (an ordained minister) did not respond. He later testified that he “threw the letter in the trash because the home and children are none of the state’s business.” The church’s failure to comply with the licensing requirements concerned state officials, especially because of the numerous reports of child abuse by the administrator and his staff that the state had received in the past. The state later asked a court to close the children’s home and forbid the administrator from providing any care of children. The administrator maintained that the state had no jurisdiction over the home since the home had “elected to maintain a common law master-servant relationship with our Lord Jesus Christ [and] therefore the State of Mississippi has no lawful authority to interfere in any way with the relationship or to invade the privacy of the congregation or any individual member.” A trial court summarily rejected the administrator’s defenses, ordered the home closed, and sentenced the administrator to 5 months in jail for contempt. The state supreme court affirmed the trial court’s decision on appeal. It noted that the licensing law was enacted to ensure that the operators of children’s homes maintain minimum standards of health, nutrition, cleanliness, and sanitation. It did not permit the state to regulate religious curriculum of ministry. Under these circumstances, the application of the licensing law to a church-operated home did not violate the constitutional guaranty of religious freedom. The court observed, “nothing in the Act can be deemed an interference with his or the congregation’s freedom to establish their religion or to exercise their religious beliefs.” Fountain v. State ex rel. Mississippi Department of Health, 608 So.2d 705 (Miss. 1992). [PCL13K]

See Also: Safety and Health Regulations

© Copyright 1994, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m65 m11 m47 c0194

Legal Developments

Church Bound to Financial Secretary’s Misrepresentation

Church argued it had no knowledge of secretary’s acts.

Richard R. Hammar, Attorney, CPA
Bio

Christian Methodist Episcopal Church v. S & S Construction Company, Inc., 615 So.2d 568 (Miss. 1993)

Key point: A church can be legally bound by the misrepresentations of one of its officers so long as the officer was acting within the scope of his or her authority, even if the church had no knowledge of the misrepresentation and did not benefit from it.

The Mississippi Supreme Court ruled that a church was legally bound by the misrepresentation of its financial secretary.

The church signed a contract with a local contractor for the construction of a building at a cost of $1.2 million. From the start, payments under the contract were late. The contractor eventually informed the church that construction would be stopped until payments were brought up to date and the church placed in escrow sufficient monies to pay the balance of the contract. The church brought payments up to date, and then the church's financial secretary provided the contractor with a letter stating that the church had placed monies in escrow sufficient to pay the balance of the contract.

On the basis of this representation, the contractor resumed construction and continued to work until it was informed that no further funds were available. The contractor sued the church for the balance due on the contract (nearly $500,000), claiming that the financial secretary's letter was false and fraudulent, that the financial secretary was an agent of the church, and that the church was responsible for its agent's acts.

The trial court agreed with the contractor and the case was appealed. The state supreme court affirmed the trial court's decision in favor of the contractor. The church insisted that it had not been aware of its financial secretary's letter, that it did not condone fraud, and that it was an "innocent party." While it acknowledged that the financial secretary was an agent of the church, it claimed that the church could not be responsible for an act of its agent that was unauthorized and contrary to the church's teachings against fraud.

The court did not agree. It noted that a church can be responsible for the unauthorized acts of an agent under the theory of "apparent agency" if the following three conditions are satisfied: (1) actions by the church indicating that the agent has authority, (2) reasonable reliance on those actions, and (3) a detrimental change in position as a result of that reliance.

The court concluded that all three of these conditions were satisfied in this case, and accordingly that the church was liable for the misrepresentations of its financial secretary. As to the first condition (actions by the church indicating that the agent has authority) the court observed: "The conduct of [the church] indicating [the financial secretary's] authority was: naming him secretary of the department of finance, charging him with the duty to write checks for the church, and providing him with church department of finance letterhead. In other words … [the church] clothed him with the indicia of being a person who knows and may make statements on such matters." The second and third conditions clearly was met, since the contractor relied to its detriment on the financial secretary's letter by resuming construction. The court concluded:

[A] principal is liable for the misrepresentations or frauds of his agent so long as the agent was acting within the scope of his authority, even if the principal had no knowledge thereof and did not benefit therefrom ….

Although the financial secretary's assurance that the church had on hand the monies necessary for completion of the construction project was false, the church is bound by his assurance as it was within the s cope of his apparent authority …. The church's argument that it cannot be liable for the assurance made by its financial secretary as it was [beyond his legal authority] is without merit."

This is an important decision that is of direct relevance to every church and denominational agency. It demonstrates that churches can be legally responsible for the acts and representations of their agents so long as they are acting within the scope of their authority. Significantly, that authority may be either actual or apparent. Apparent authority means that the church has held the individual out as the church's agent.

As the court noted, in this case those acts included "naming him secretary of the department of finance, charging him with the duty to write checks for the church, and providing him with church department of finance letterhead." So long as a third party relies on the agent's actual or apparent authority to its detriment, the church can be legally responsible for its agents' acts. This is so even if those acts were not actually authorized.

See also "Personal injuries—on church property or during church activities," Whetstone v. Dixon, 616 So.2d 764 (La. App. 1 Cir. 1993).

Legal Developments

Personal Injuries – Part 1

On Church Property or During Church Activities

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1990-01-01 Recent Developments

Personal Injuries – On Church Property or During Church Activities

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

• Can a church and one of its trustees be legally liable for injuries sustained by an independent contractor hired to paint the church? No, concluded a Missouri state appeals court. A church trustee, acting on behalf of the church, contracted with a local painting company to paint the exterior of the church building. While painting a window frame at a height of 28 feet, a painter fell from a ladder and sustained serious injuries (resulting in quadriplegia). The injured painter sued the church and the trustee who signed the contract as well as the manufacturer of the ladder. A trial court dismissed the church and trustee from the lawsuit, and the painter appealed. A state appeals court also ruled in favor of the church and trustee. It began its opinion by observing that “generally, one who contracts with an independent contractor to perform work is not liable for bodily injury caused by the contractor or one of its employees” unless the work to be performed is “inherently dangerous” (in which case the one hiring the independent contractor must take adequate safety precautions). The court concluded that the act of painting the church was not “inherently dangerous,” and accordingly that the church had no legal duty to insure that adequate safety precautions were followed. The court also rejected the painter’s claim that the trustee was personally responsible for the injuries on the basis of the “negligent exercise of retained control” theory. This theory imposes liability on an employer who hires an independent contractor and retains control over any part of the work if the employer fails to exercise its control with reasonable care. The painter argued that the church trustee “retained control” over the painting contractor through painting specifications contained in the contract. This claim was also rejected by the court. It noted that the contract generally set forth a description of the work to be performed and the material to be used, and only mentioned the trustee twice (he was to be contacted if any surface could not be put in proper condition for painting through normal methods, and he was permitted to give the contractor instructions). “Clearly,” the court observed, “these two references do not give [the trustee] retained control …. [The control required to support liability] is over the methods of work or as to operative detail.” The court continued, “surely, one who employs an independent contractor may also employ a person to ascertain that the work is being done according to specifications and the employment of such person should in no way indicate that the independent contractor is being subjected to control.” This case is significant for a number of reasons. (1) It illustrates the fundamental legal principle that “with control comes accountability.” Stated another way, you ordinarily are legally responsible for the acts of injuries of those whom you control. It is important for churches to bear this principle in mind when they are engaged in building projects (and many other activities). Remember this—if you choose to reserve the authority to control a contractor you hire to perform work for the church, you likely will be responsible for the contractor’s actions and injuries. (2) It illustrates that you may be responsible for a contractor’s injuries incurred during the performance of an “inherently dangerous” activity. (3) It illustrates the potential personal liability a church board member incurs in signing a contract on behalf of a church—particularly when the signature does not indicate the church’s identity and the board member does not sign in a “representational capacity” (i.e., as a representative of the church). Barbera v. Brod-Dugan Co., 770 S.W.2d 318 (Mo. App. 1989).

© Copyright 1990, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m58 m56 m86 c0190

Legal Developments

Personal Injuries – Part 1

On Church Premises or During Church Activities

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1989-09-01 Recent Developments

Personal Injuries – On Church Premises or During Church Activities

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

• The Mississippi Supreme Court ruled that an unincorporated church and its board of trustees could be sued by a member who was injured when she slipped and fell on a waxed floor while leaving a Sunday School class. The member argued that she was an “invitee” and accordingly that the church owed her a high degree of care which it breached. The church maintained that the member was merely a “licensee” to whom it owed a minimal duty of care. Under Mississippi law (as is true in many states) a property owner owes licensees only the minimal duty of refraining from willfully and wantonly injuring them through active negligence. A much higher duty applies to invitees—a property owner owes such persons a duty of keeping the premises reasonably safe and to warn them about (or correct) dangerous conditions of which it is aware (or should have been aware). A trial court ruled that the member was a licensee, and that her injury had not been caused by any active negligence on the part of the church. The member appealed, and the state supreme court ruled that the member was in fact an invitee at the time of her injury. The court observed that the term invitee includes both “public invitees” and “business visitors.” A public invitee is “a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public,” while a business visitor is “a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.” On the other hand, a licensee is one “who enters upon the property of another for his own convenience, pleasure or benefit pursuant to the license or implied permission of the owner.” In applying these definitions to church members, the court concluded: “Members of religious associations, in general … fall within the category of ‘public invitees.’ Religious bodies do expressly and impliedly invite members to come and attend their services and functions. They hold their doors open to the public. While they do not charge admission fees … churches do depend on contributions … in order that they may continue to be open to the public. Therefore, a church member who does not exceed the scope of the church’s invitation, is an invitee while attending a church for church services or related functions.” Accordingly, the member who slipped and fell on the waxed floor was an invitee to whom the church owed a high degree of care, rather than a mere licensee to whom the church owed only a minimal duty of care. Clark v. Moore Memorial United Methodist Church, 538 So.2d 760 (Miss. 1989).

© Copyright 1989, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m58 m56 m77 m86 c0589

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