Pastor Lacked Authority to Appoint Board Members

The appointments were rescinded because they violated the church’s bylaws.

Key point 3-01. In general, clergy have the legal authority to do those things specifically authorized in their employment contract, in their church’s constitution or bylaws, or by specific delegation of authority from the church board or congregation.

Key point 6-06.01. Churches select their officers and directors in various ways. For example, it is common for members of a church board to be elected by the church’s membership, while officers are elected by the board. The civil courts generally refrain from resolving disputes involving the selection of church officers and directors on the ground that the First Amendment guaranty of religious freedom prevents them from becoming involved in ecclesiastical disputes.

A New York court ruled that a pastor lacked the authority under his church’s bylaws to appoint members of the board of trustees, meaning all transactions entered into by the board had to be rescinded.


This case involved a dispute as to who is in control of a church, (the “church”), a religious corporation. On March 1, 2021, the pastor of the church unilaterally appointed seven persons to the board of trustees of the church (“the new board of trustees”).

The new board of trustees elected a new pastor and voted to amend the church’s certificate of incorporation and bylaws to transfer all of the church’s property to another religious corporation.

Original board seeks injunction

The original board of trustees (the “plaintiffs”) sought a preliminary injunction noting that under the bylaws that controlled the affairs of the church on March 21, 2021, the pastor lacked authority to unilaterally appoint the new board of trustees and that their appointments were therefore nullities (void). The plaintiffs further claimed that all the actions taken by the new board of trustees following their appointment were also nullities.

The church’s bylaws at the time the pastor appointed the new board of trustees controlled the affairs of the church. Article IV of the 1990 bylaws stated, in relevant part:

The trustees, other than the first Board of Trustees, and except as provided in any Article of these By-laws, shall be elected at the annual meeting of the voting members, and each trustee elected shall serve until the next succeeding annual meeting and until his successors shall have been elected and qualified. The board of Trustees shall be authorized to increase their number by unanimous consent.

Court: The plaintiffs “will likely prevail on their claim”

The court noted that the plaintiffs “correctly contend that there are no provisions in the . . . By-Laws which permitted the [pastor] to act unilaterally in appointing the New Board of Trustees on March 1, 2021,” and so his appointments “were therefore nullities and all the actions taken by the New Board of Trustees subsequent to March 1, 2021 were also nullities.” The court concluded:

Here, the plaintiffs established their right to a preliminary injunction. The plaintiffs demonstrated that they will likely prevail on their claim that the [pastor] acted without authority when he appointed the New Board of Trustees and that until [the church] holds another election for the purpose of electing new trustees, those persons who were Trustees prior to March 1, 2021 should remain in control of [the church].

The court made several orders, including:

  • The board of trustees shall consist of those trustees in office as of the date of the business meeting on March 1, 2021, and they “shall have all the authority set forth in the 1990 By-Laws to act on behalf of” the church;
  • The deed purporting to convey the church’s property to another religious organization is rescinded;
  • The new board of trustees “are enjoined from conducting and/or engaging in any business on behalf of” the church as the board of trustees of the church;
  • Any changes and corporate amendments made by the new board of trustees are hereby vacated;
  • The former board of trustees are directed to turn over all documents, papers, and effects in their possession which belong to the church to the lawful board of directors;
  • The former board of trustees are directed to restore the original locks to the church and/or provide keys to the locks at the church to the lawful board of trustees;
  • The former board of trustees are restrained from “bringing in, appointing and/or hiring any pastor, reverend or spiritual advisor to preside over” the church; and
  • The former board of trustees are enjoined from denying any member or trustee of the church entry to the church.

What this means for churches

This case demonstrates the fundamental principle that a minister cannot unilaterally appoint members of a church’s governing board in a manner that conflicts with the church’s bylaws or other governing documents.

And, if this principle is violated, the church may be required to rescind any and all legal obligations entered into by the purported board members following their unauthorized appointment. This obviously can lead to havoc, which is good reason for churches to be sure that contracts and other commitments are executed by persons having legal authority to do so.

Southern Baptist Church, Inc. v. Samuel, 2021 N.Y. Misc. LEXIS 6234 (2021)

Church Loses Property after Violating Deed Restriction

Why a New York court said a diocese’s building and land must be returned to the previous owner.

Key point 7-14. Some deeds to church property contain a “reversion” clause stating that title will revert back to the previous owner in the event that a specified condition occurs. The courts will enforce such provisions, so long as they can do so without interpreting church doctrine.

A New York court enforced a provision in a deed of property to a Catholic diocese that called for the return of the property to the prior owner in the event it ceased to be used for religious purposes.


In 1896, the president of a business corporation (the grantor) executed a deed by which the grantor transferred property in New York to a Catholic diocese.

The deed stated that the property was to be used “for [c]hurch purposes only . . . and in case the said premises shall be devoted to any other use than for [c]hurch purposes . . . this conveyance shall be void and the [grantor] shall have the right to re-enter and take possession of said premises and every part thereof.” Shortly thereafter, a church was erected on the property.

In 1937, the last surviving son of the grantor died. The will created a college and transferred to it all assets and legal interests. This included the right to reenter the property in the event the diocese no longer used it for religious purposes.

Appeals court: the property “reverted” to the grantor

In 2015, the diocese issued a decree that relegated the property to secular use and directed the removal of sacred objects. The college subsequently filed a lawsuit seeking a determination that these acts of the diocese caused title to the property to revert to the grantor and his successors. A trial court ruled in favor of the diocese, and the grantor appealed.

A state appeals court reversed the trial court’s ruling and concluded that the diocese was not the rightful owner of the property. It noted:

The main issue upon appeal is what interest, if any, remains in the [grantor and his heirs] as a result of the provision in the 1896 deed limiting [the diocese’s] use of the property to “[c]hurch purposes only.”

The court concluded:

[T]he 2015 decree from the Bishop . . . relegated the church “to profane but not sordid use,” and indicated that parishioners would be served by a nearby parish. The stained-glass windows and the altar were later removed, leaving only the pews. Under the canon law of the Roman Catholic Church, “if a church cannot be used in any way for divine worship and there is no possibility of repairing it,” it can be relegated to profane but not sordid use. “Profane use means use for purposes other than a Roman Catholic worship service,” and “sordid” limits that use, prohibiting any use that is disrespectful to the Catholic Church. Contrary to [the diocese’s] contentions, we find that [its] use of the property for church purposes ceased pursuant to the 2015 decree, thus violating the limitation in the 1896 deed. Accordingly, it reverted to [the grantor] which now owns the property . . .

[The diocese] took possession of the property and erected and enjoyed full use of the church for well over a century, fully aware of the limitation contained in the 1896 deed to use the property only for such purpose; upon ceasing to so use it, the property reverted . . . to [the grantor and his heirs], together with the fixtures thereon.

What this means for churches

Many churches received title to their property by means of a deed containing a restriction. It is imperative for church leaders to be aware of such conditions. Consider the following points.

Deeds to property may contain restrictions

Deeds to property may contain restrictions on the future sale of the property. Two common restrictions are “powers of reentry” and “possibilities of reverter.”

These interests are very similar, but they have very different legal consequences. A possibility of reverter arises when one person transfers property to another by means of a deed containing language clearly providing that title will automatically revert to the prior owner if the current owner violates a restriction in the deed. Language creating a possibility of reverter includes words such as “so long as,” “until,” or “until such time as.”

To illustrate, assume that Owner A transfers land to Church B with a deed specifying that title is transferred “so long as” Church B uses the property for church purposes. Here, the language is clear that if the land ceases to be used for church purposes, it will automatically revert to Owner A and his or her heirs.

The significance of this is that the reversion of title to Owner A is automatic and requires no action by a court.

On the other hand, deeds often contain conditions that do not call for an automatic reversion of title to the previous owner upon the occurrence of some condition.

In such cases the prior owner has a “right of reentry.” Such a right does not vest automatically in the prior owner. Rather, the prior owner must go to court to have his or her interest recognized. As this case illustrates, this is a more uncertain interest in property since it does not operate automatically.

Know what your deed says about reverter or right of reentry

Churches should check their deeds to see if they contain a condition that may give the prior owner either a possibility of reverter or a right of reentry.

In either case, the prior owner may attempt to claim title to the church’s property in the event the specified condition is violated. However, if the prior owner retained a possibility of reverter, the transfer of title back to the prior owner occurs immediately. This can cause major problems for a church when it belatedly discovers that it no longer owns its property.

Courts generally dislike deed restrictions that limit property owners

The courts generally have a negative attitude toward any restrictions placed on deeds. Some states have enacted laws giving the civil courts some leeway in extinguishing such restrictions. If your church deed contains restrictions on the sale of property, you may want to consult with a local attorney concerning the existence of such a law in your state.

Conditions could be “released” by the previous owner

It is possible in some cases to have conditions “released” by the previous owner (if he or she is willing to do so). Often this is done by having the previous owner execute a quitclaim deed. If the previous owner is no longer living (a fairly common circumstance), then the condition can be released only by all of the legal heirs of the deceased owner. This can be a very cumbersome process.

Discourage restrictions

When acquiring property through purchase or gift, discourage the property owner from encumbering the title with any restrictions that could later create substantial inconvenience for the church.

Note: For case studies and additional information, see “Reversion of Church Property to the Prior Owner,” the section in our Legal Library from which the above points were taken.

Paul Smith’s College of Arts and Sciences v. Roman Catholic Diocese, 130 N.Y.S.3d 547 (N.Y. App. 2020).

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Pastor Left Without Retirement Benefits Sues Church

The church had no obligation to withhold the minister’s Social Security and Medicare taxes, says court.

Key point. Ministers always are self-employed for Social Security with respect to services performed in the exercise of ministry (with the exception of some government-employed chaplains). As a result, ministers pay the self-employment tax rather than the employee’s share of Social Security and Medicare taxes—even if they report their federal income taxes as employees.

A federal district court in New York ruled that a church did not act improperly in failing to withhold Social Security taxes from its pastor’s compensation.


A pastor was employed by a denominational agency (the “church”) for 20 years. During his employment, the church classified him as an employee and issued him annual W-2 forms, but it did not withhold FICA taxes (Social Security and Medicare) from his compensation.

In 2017, the pastor retired and the Social Security Administration informed him that he was not eligible for retirement benefits or Medicare because his employer had failed to withhold FICA taxes from his compensation.

Pastor sues his church for failing to withhold FICA taxes

The pastor sued the church claiming that it had negligently failed to withhold FICA taxes from his compensation. A federal court in New York dismissed the pastor’s claims. It concluded:

Because FICA exempts [the church] from withholding contributions on behalf of a person employed as a pastor, dismissal . . . is warranted here. FICA mandates that all employers are subject to “an excise tax, with respect to having individuals in his employ . . . paid by the employer with respect to employment.” The statute, however, excludes from its definition of employment “service performed by a . . . minister of a church in the exercise of his ministry.” For FICA purposes, “minister” encompasses “individuals who are duly ordained, commissioned, or licensed by a religious body” and who “have the authority to conduct religious worship.”

Employees not covered by FICA are required, under the Self-Employment Contributions Act (“SECA”) to pay taxes for Social Security and Medicare. SECA explicitly applies to “an individual who is a duly ordained, commissioned, or licensed minister of a church.” Ministers may be exempt from mandatory SECA contributions only if they have been granted an exemption [by the IRS]. [The church’s] purported mischaracterization of the pastor as an independent contractor does not alter the outcome because [the church] had no obligation to withhold FICA taxes on his behalf. . . . The court concludes, therefore, that the pastor has failed to state a claim upon which relief can be granted [and the church’s] motion to dismiss the complaint is granted.

What this means for churches

The pastor in this case was understandably shocked to find out after he retired that he was not eligible for retirement benefits or Medicare under Social Security, because his church had not withheld Social Security or Medicare taxes from his compensation for the 20 years of his employment.

Two special rules apply to ministers under the payroll reporting rules. Unfamiliarity with these two rules has created untold confusion.

The first special rule is that ministers always are self-employed for Social Security with respect to services performed in the exercise of ministry (with the exception of some government-employed chaplains).

As a result, ministers pay the self-employment tax rather than the employee’s share of Social Security and Medicare taxes—even if they report their federal income taxes as employees. It is incorrect for churches to treat ministers as employees for Social Security and to withhold the employee’s share of Social Security and Medicare taxes from their wages. It was this rule that the pastor did not understand.

The second special rule is that ministers’ compensation is exempt from federal income tax withholding whether ministers report their income taxes as employees or as self-employed. They can elect voluntary withholding, but this is not required. However, this rule does not exempt ministers from filing federal income tax returns and paying income tax. Kuma v. Greater N.Y. Conference of Seventh-Day Adventist Church, 2020 U.S. Dist. LEXIS 156665 (S.D.N.Y. 2020).

Church Member’s Arrest Justified

Individuals who send threatening communications to a pastor can face criminal liability.

Key point.
An array of civil and criminal remedies are available to clergy who receive communications that threaten harm or death.

A New York federal court ruled that a police officer acted properly in arresting a church member who sent the pastor a series of threatening emails.


A church member (the “plaintiff”) sent a series of text messages to the church’s pastor in which he claimed to have been offended by some of the religious views expressed by the pastor in his sermons. The plaintiff’s messages included the following statements:

While I am learning, what it means to love my enemy, and I am not fully there; I don’t like you, nor the wickedness that you do, from the pulpit. . . . You keep provoking with your attacks from the pulpit, you keep telling your one-sided story from the pulpit, and this can leave two wives without husbands, and children without a father. . . . You better ask God to stop you.

The pastor made a complaint to the local police department concerning the plaintiff’s messages. In response, a police officer called the plaintiff and asked him to come to the precinct to discuss the pastor’s complaint. The plaintiff went to the precinct and met with the officer. After the plaintiff confirmed that he sent the messages to the pastor, the officer arrested him for aggravated harassment in the second degree.

The prosecutor’s office charged the plaintiff with two counts of aggravated harassment in the second degree for sending threatening text messages to the pastor. The criminal charges were dismissed, but the court ordered the plaintiff to refrain from communicating with the pastor.

The plaintiff sues arresting officer

The plaintiff sued the officer who arrested him, claiming that he should not have arrested him for sending the messages, and that the officer had committed false arrest in violation of the Fourth Amendment.

The court noted that “p robable cause is a complete defense to claims for false arrest . . . and that probable cause requires an officer to have knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested.”

In rejecting the plaintiff’s false arrest claim, the court concluded:

There is no real dispute about what led to the plaintiff’s arrest. The plaintiff, angry about the pastor’s sermons, sent him a series of messages that included one in which he said wives would be left without their husbands and children would be left without their father. The pastor filed a complaint with the police. After the plaintiff admitted sending the messages, the officer arrested him for aggravated harassment based on those messages. The officer reasonably interpreted the messages as threats to the pastor. . . . Therefore, as a matter of law, the officer had probable cause to arrest the plaintiff for aggravated harassment, and the false arrest claim fails.

What this means for churches

As this case illustrates, persons who send threatening communications to a pastor face possible criminal liability for doing so. They also may be compelled by court order to refrain from any contact with the pastor. Abdullah-Sadiq v. Venticinque, 2019 WL 359979 (E.D.N.Y. 2019).

Pastor Who Embezzled Ordered to Pay Restitution

Court ordered a pastor who embezzled a substantial amount of church funds to make restitution.

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

A New York court affirmed a trial court’s order directing a pastor who embezzled a substantial amount of church funds to make restitution over the pastor’s objection that the amount was excessive and not supported by the evidence.

A pastor (the “defendant”) pled guilty to embezzlement and was sentenced to six months in jail and five years of probation. He also was ordered to pay restitution in the amount of $256,488.The defendant appealed, claiming that the restitution award was not supported by the evidence. An appeals court rejected the appeal. The court noted:

[The woman] who became the financial secretary of the church upon defendant’s resignation, testified that defendant eliminated any financial oversight by church trustees during his 18-year tenure as pastor. Following defendant’s resignation as pastor [the financial secretary] attempted to reconcile the church’s finances and noticed numerous discrepancies. Because there were no receipts or other records with regard to the church finances during defendant’s tenure, an audit was undertaken with the assistance of an accounting firm, and a voluminous compilation of church checks and bank statements was compiled and analyzed for the period of 2010 through 2014.

In addition to a $40,000 commercial loan, the audit also disclosed cash withdrawals and checks payable to either defendant, his wife or cash with no notation or receipts to validate a legitimate church purpose. Further, numerous payments were made to various credit card and retail establishments which, according to testimony at the hearing, were for personal expenses that would not otherwise be authorized by the church.

The records reflect that other expenses paid through the church account included payments for various personal expenses, such as collection accounts and a vehicle for defendant’s wife, which were for the benefit of defendant and his wife and not for church purposes. . . . A state police investigator who assisted with the investigation of the church finances testified that defendant and defendant’s wife admitted to misappropriating approximately $70,000 for personal expenses.

The court concluded that the trial court “was free to credit the testimony and documentation presented by the state and that the loss incurred was established by a preponderance of the evidence.” The burden then shifted to defendant “to offer evidence contradicting the state’s calculations. . . . This defendant failed to do. Defendant’s contention that the total amount of restitution, while significant, is harsh and excessive is unpersuasive as the restitution award is limited to the monetary loss suffered by the church.”

What this means for churches

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

  1. Many church leaders consider embezzlement to be a problem that “couldn’t happen here.” Yet, it is this very attitude that contributes to poor or nonexistent internal controls over cash handling and payment of expenses that makes embezzlement a real threat.
  2. 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.
  3. The legal consequences of embezzlement can be severe. In this case, the defendant was convicted of a felony.
  4. People v Osborne, 77 N.Y.S.3d 774 (N.Y. App. 2018).

Episcopal Diocese Wins Property Case in Breakaway Parish Movement

Most church property disputes can be resolved on the basis of neutral principles of law contained in deeds, local church charters and bylaws, and denominational bylaws.

Key point 7-03.3.
Most courts apply the “neutral principles of law” rule in resolving disputes over the ownership and control of property in “hierarchical” churches. Under this rule, the civil courts apply neutral principles of law, involving no inquiry into church doctrine, in resolving church property disputes. Generally, this means applying neutral legal principles to nondoctrinal language in any one or more of the following documents: (1) deeds to church property; (2) a church’s corporate charter; (3) a state law addressing the resolution of church property disputes; (4) church bylaws; or (5) a parent denomination’s bylaws.

A New York intermediate appellate court ruled that an Episcopal diocese was the rightful owner of the property of a local church that voted to disaffiliate from the denomination.

After operating as an Episcopal congregation for more than 100 years, the members of an affiliated church voted to incorporate as a nondenominational church. The following year the Episcopal diocese declared the church to be “extinct.” The diocese asked a court to determine who owned the church property. The trial court ruled that the diocese was the rightful owner of the church property, and this ruling was affirmed on appeal.

The appeals court began its opinion by noting that “by accepting the principles of the national church and the diocese for approximately 100 years, the [church] was subject to their canons, rules, and practices.” Those principles included the so-called “Dennis Canons,” adopted as Canons I.7.4 and I.7.5 of the Episcopal Church in 1979. These canons were adopted in response to the United States Supreme Court’s decision in Jones v. Wolf, 443 U.S. 595 (1979), in which the Court ruled that the governing documents of a hierarchical church can be crafted to recite an express trust in its favor concerning the ownership and control of local church property:

Through appropriate reversionary clauses and trust provisions, religious societies can specify what is to happen to church property in the event of a particular contingency, or what religious body will determine the ownership in the event of a schism or doctrinal controversy. In this manner, a religious organization can ensure that a dispute over the ownership of church property will be resolved in accord with the desires of the members.

To that end, Canon I.7.4 provides that all real and personal property held by or for the benefit of any parish, mission, or congregation is held in trust for the Episcopal Church and the diocese in which such parish, mission, or congregation is located. This canon also provides that the existence of this trust shall in no way limit the power and authority of the parish, mission, or congregation otherwise existing over such property, so long as that parish, mission, or congregation remains a part of, and subject to, the Episcopal Church and its constitution and canons.

The court noted that “the fact that the dissident church preexisted the Dennis Canons did not render those canons inapplicable” since “there is sufficient evidence of an intent to create an implied trust to hold church property in favor of the Episcopal Church and the diocese, based upon the … Episcopal Church’s establishment of an express trust in the relevant canons. Accordingly, both an express trust and an implied trust exist for the benefit of the [diocese] with respect to the real property held by the church. Consequently, upon the church’s schism from the Episcopal Church and the diocese in 2008, the church forfeited the real property under Canon I.7.4 of the Episcopal Church.”

What This Means For Churches:

The court correctly noted that most church property disputes can be resolved on the basis of neutral principles of law contained in deeds, local church charters and bylaws, and denominational bylaws. So long as a civil court can resolve such a dispute by referring to neutral provisions in these documents, without any inquiry into doctrine or polity, it may do so. It is worth observing that the United States Supreme Court has noted that one of the principal advantages of the neutral principles of law approach to resolving church property disputes is that it permits religious organizations to “order their affairs” in advance of a property dispute through “appropriate reversionary clauses and trust provisions” that could reflect the intentions of a church and its members. Many churches and denominational agencies have done so.

It is noteworthy that the court rejected the dissident church’s argument that it was not bound by the Dennis Canons since it never agreed to them. The court observed:

“[T]he fact that the dissident church preexisted the Dennis Canons did not render those canons inapplicable” since “there is sufficient evidence of an intent to create an implied trust to hold church property in favor of the Episcopal Church and the diocese, based upon the … Episcopal Church’s establishment of an express trust in the relevant canons.”

Episcopal Diocese of Long Island v. St. Matthias Nondenominational Ministries, Inc., 157 A.D.3d 769 (N.Y. Sup. 2018).

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Court Rules Workers’ Compensation Insurance Is Exclusive Benefit for Job-Related Injuries

Employees are precluded from electing to sue their employing church in a civil lawsuit in an attempt to obtain greater damages.

Key Point 8-07.1. All states have enacted workers’ compensation laws to provide benefits to employees who are injured or become ill in the course of their employment. Benefits generally are financed through insurance premiums paid by employers. Workers’ compensation laws were enacted to give injured workers’ a quicker, less costly, and more certain recovery than was possible by suing an employer directly for negligence.

Prior to the general acceptance of workers’ compensation statutes in the early part of the 20th century, injured employees were often unsuccessful in collecting damages from their employers. When they did collect, the awards were sometimes so high that they threatened the solvency of the employer. In every case, the costs to the injured employee of suing an employer were high. Churches are subject to workers’ compensation laws in most states.

A New York court ruled that workers’ compensation insurance is an exclusive benefit for job-related injuries, and therefore a worship leader who was injured when she tripped over a bass guitar cable could not bring a civil lawsuit against her church.

A volunteer worship leader (the “plaintiff”) was injured during a church service when she tripped and fell over an exposed power cord. The church is a parish within a Roman Catholic Diocese, which was self-insured with a workers’ compensation policy that extended coverage to volunteers.

The church applied to the Workers’ Compensation Board for a determination of the injured plaintiff’s eligibility for benefits. The injured plaintiff was notified on multiple occasions by the Diocese’s claims adjuster that a claim had been filed and her exclusive remedy was workers’ compensation.

Thinking that she would receive more benefits if she pursued a civil lawsuit, the plaintiff did not seek workers’ compensation benefits and instead filed a lawsuit against her church. The church asked the court to dismiss the lawsuit on the ground that the workers’ compensation is the exclusive benefit for employees injured on the job.

The court declined to do so since it was unclear if the plaintiff was acting as a volunteer covered under workers’ compensation at the time of her accident. On appeal, a state appeals court agreed with the church that the plaintiff was a volunteer covered by the state workers’ compensation law, and this coverage was exclusive and precluded the plaintiff’s civil lawsuit.

The court concluded: “[A] plaintiff cannot elect to waive benefits under the Workers’ Compensation Law and proceed on a tort cause of action … . Accordingly, the [trial] court should have granted the church’s motion, in effect, for summary judgment dismissing the complaint based on the exclusivity provisions of the Workers’ Compensation Law.”

What this means for churches

This case illustrates two important points. First, workers’ compensation benefits are an exclusive remedy for church employees who are injured on the job. As a result, these employees are precluded from electing to sue their employing church in a civil lawsuit in an attempt to obtain greater damages. Second, in some states, workers’ compensation law covers volunteers as well as employees. Usually, conditions apply. Church leaders should confirm with an attorney or the church’s insurance agent if volunteers are covered under the state workers’ compensation law, and if so, if any conditions apply. Aprile-Sci v. St. Raymond Church, 151 A.D.3d 671 (N.Y. App. 2017).

Restrictive Provision in Churches’ Charitable Trust Can Be Expanded to Allow Additional Investments

Case demonstrates that the low rates of return on such investments may enable churches to obtain a court order authorizing a broader range of investment options.

Key point 6-07.03.
Church board members have a fiduciary duty to use reasonable care in the discharge of their duties, and they may be personally liable for damages resulting from their failure to do so.

A New York appeals court ruled that a provision in a charitable trust for the benefit of three churches that restricted investment of trust funds to insured bank accounts and government securities could be expanded to allow other investments offering the potential for a greater rate of return.

A church member died in 1999, and his will made bequests to, among many others, three churches in the amounts of $217,000; $460,000; and $260,000. The will directed each church to hold the funds in trust, invest only in insured bank accounts and government securities, and use the net income for maintenance of the physical property of each church. Because the return on investments in insured bank accounts and government securities has been so low for many years, the churches asked a court to amend the current investment restrictions and authorize them to invest in accordance with the Prudent Investor Act, which would allow investment in stocks and bonds. A trial court denied the churches' request, and the churches appealed.

An appeals court noted that a state law provides that "whenever it appears to [a court] that circumstances have so changed since the execution of an instrument making a disposition for religious … purposes as to render impracticable or impossible a literal compliance with the terms of such disposition, the court may, on application … make an order or decree directing that such disposition be administered and applied in such a manner as in the judgment of the court will most effectively accomplish its general purposes, free from any specific restriction, limitation or direction contained therein."

In this case, the court noted, the decedent's intent was to provide each church with a principal amount of money from which funds would be generated to assist in the maintenance costs of the physical property of each. The churches sought "limited additional authority regarding the manner in which investments of the principal are administered." They "do not seek to alter the specific charitable purpose or disposition provisions." The court concluded:

[The churches] established that the current investment restrictions have for many consecutive years reduced the income from each trust to essentially negligible amounts. Those restrictions have become impracticable and frustrate each trust's purpose of generating funds to assist in church maintenance. Under analogous circumstances, courts have cautiously exercised their equitable power to permit deviation of investment restrictions … . We deem such relief appropriate here.

What this means for churches

Many church members have left funds in a trust for the perpetual benefit of their church. It is not uncommon for such trusts to restrict investments of trust principal to federally insured bank accounts or government-issued securities. This case demonstrates that the low rates of return on such investments may enable churches to obtain a court order authorizing a broader range of investment options. In some cases, like this one, a court will simply require a church trustee to invest trust funds consistently with the "prudent investor rule."

This rule is recognized in every state, with some variations. According to a commonly cited definition, "trustees must be prudent and vigilant and exercise a sound judgment. They are to observe how persons of prudence, discretion, and intelligence manage their own affairs, not in regard to speculation, but in regard to the permanent disposition of their funds, considering the probable income as well as probable safety of the capital to be invested." In re Estate of Chamberlin, 135 A.D.3d 1052 (N.Y. App. 2016).

Related Topics:

Student Successfully Appeals Lawsuit Against Synagogue for Injuries Sustained During Study Abroad Program

Case demonstrates that the host organization may be legally responsible for injuries that occur.

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.

A New York court declined to dismiss a lawsuit brought by a 19-year-old student against her synagogue seeking compensation for injuries she suffered while on a study abroad program in Israel sponsored by the synagogue.

A 19-year-old female member of a Jewish synagogue (the "plaintiff") was a participant in her synagogue's Nativ Program, in which first-year, college-level students live, study, and perform volunteer work in Israel for nine or ten months. The program provided the plaintiff with medical insurance and an insurance card. The plaintiff was also told that program staff would contact doctors, set up appointments, and attend them with her, should the need arise.

In September 2007, while studying at a university in Jerusalem during the first semester of the program, the plaintiff twisted her right knee. She was treated by a doctor who told her that she should return in two weeks if the knee was still bothering her. The pain lasted for one to two weeks, and the plaintiff did not return. This was not the first time the plaintiff had experienced a problem with her knees. In her medical forms for the program, she disclosed that she had arthritis and had worn a knee brace for sore joints "years ago."

For the second semester, the plaintiff lived in Yerucham, a small town in southern Israel, an hour and a half away from Jerusalem, where she performed volunteer work. Still, the plaintiff was not completely on her own. She had a host family in the town, relatives in Jerusalem, and a cell phone that she could use to contact her parents.

On March 5, 2008, while on a trip to a kibbutz in northern Israel, the plaintiff reinjured her right knee when she fell and struck it on the sidewalk while her boyfriend was giving her a piggyback ride. Staff members iced the knee, and on the next day brought her, accompanied by her boyfriend, to a hospital in Be'er Sheva, which was a half-hour away from Yerucham. There, a doctor told the plaintiff that her knee was filled with fluid, and advised her to rest and return in two weeks to get it drained, if it remained swollen. The plaintiff informed her parents about the incident.

On March 12, 2008, the plaintiff, accompanied by a staff member, returned to the hospital and had her knee drained. A few weeks later, the plaintiff, accompanied by an assistant director of the program, met with an orthopedist who diagnosed her with a bone contusion or bruise and for the first time prescribed physical therapy. Surgery was discussed, but the doctor and the assistant director did not think it was a good idea for the plaintiff to undergo surgery in Israel because the closest physical rehabilitation center to Yerucham was in Be'er Sheva.

The plaintiff testified that she asked the assistant director to contact the insurance company to arrange for the prescribed physical therapy and that the assistant director never called because the plaintiff and the program were going back to Jerusalem. The plaintiff claimed that she did not contact the insurance company herself because she believed it was the program's responsibility, she did not have the money for transportation to and from Be'er Sheva, and the insurance company representatives did not speak English.

On May 19, 2008, the program ended, and the plaintiff returned home to New Jersey. The plaintiff sued the synagogue, alleging that it was responsible for her injuries based on its negligence. A trial court dismissed the lawsuit, and the victim appealed.

A state appeals court noted that "to establish a claim for negligence, a plaintiff must show that the defendant owed the plaintiff a duty and breached that duty, and that the breach proximately caused the plaintiff harm." The "threshold question" is whether "a defendant owes a plaintiff a duty of care." The court concluded that "the parties' relationship created a duty to provide the victim with the necessary medical care because not only did the synagogue agree to do so, it was in the best position to protect against the risk of harm." Further, the program

was not an ordinary college or study-abroad program. Indeed, the second semester did not take place in a university environment. Rather, it took place in a small town in the Negev desert, involved volunteering, and was supervised by counselors who did pretty much everything, including responding to medical issues. Under the circumstances, the synagogue exercised a sufficient degree of control over the program to create a duty of care to plaintiff.

The court concluded that the synagogue owed the plaintiff a duty of care that included a duty to facilitate the physical therapy her treating orthopedist in Israel had prescribed.

What this means for churches

Many churches, ministries, and other religious organizations have established study-abroad programs in the Holy Land and elsewhere. This case demonstrates that the host organization may be legally responsible for injuries that occur. In the case of adults, liability may be based on the sponsoring organization's negligence if it has sufficient control over the program and fails to provide necessary medical care to injured participants. In the case of minors, liability may be based on negligence or the legal doctrine of "in loco parentis" which makes organizations liable for injuries to minors over whom they serve "in place of the parents" as a result of a custodial relationship. Katz v. United Synagogue, 23 N.Y.S.3d 183 (N.Y. App. 2016).

Court Rules Venue Owners Violated Discrimination Laws by Refusing to Host Same-Sex Wedding

Wedding facilities fall comfortably within the broad definition of “place of public accommodation.”

Key point 13-02.1. In the Smith case (1990) the Supreme Court ruled that a neutral law of general applicability is presumably valid and need not be supported by a compelling government interest to be consistent with the First Amendment, even if it interferes with the exercise of religion.

Key point 13-02.2. Congress enacted the Religious Freedom Restoration Act to prevent the government from enacting any law or adopting any practice that substantially burdens the free exercise of religion unless the law or practice is supported by a compelling government interest. The compelling government interest requirement applies to any law, including neutral laws of general applicability. The objective of the Act was to repudiate the Supreme Court's decision in the Smith case (1990) in which the Court ruled that neutral laws of general applicability that burden the free exercise of religion do not need to be supported by a compelling government interest in order to satisfy the First Amendment. In 1997, the Supreme Court ruled that the Act was unconstitutional. However, other courts have limited this ruling to state and local legislation, and have concluded that the Act continues to apply to federal laws.

A New York court ruled that a married couple that owned a farm that was open to the public for weddings and other special events violated a state law banning discrimination based on sexual orientation by places of public accommodation when they refused, on religious grounds, to let a same-sex couple marry at the farm.

A married couple owns a 100-acre farm. The farm was registered under state law as a limited liability corporation, but it is not a nonprofit or religious entity. In addition to harvesting and selling various crops to the public, the owners rent portions of the farm to the public as a venue for, among other things, wedding ceremonies and receptions. It hosts both religious and secular wedding ceremonies on the farm. When providing a venue site, the couple offers several wedding-related event services, including transportation of guests within the premises, a light beverage station, decoration and setup services, flower arrangements, and event coordination. Such services are provided primarily by the couple themselves.

In October 2011, two women (the "plaintiffs") became engaged to be married. A year later, one of the plaintiffs spoke with the owners about using the farm as a venue for her wedding ceremony and reception. During the conversation, the plaintiff used the female pronoun to refer to her fiancée, thus indicating that she was engaged to a woman. The owners promptly interjected that there was "a problem" and that the farm did "not hold same-sex marriages." In response to the plaintiff's query as to the reason for not allowing same-sex marriages, the owners explained that "it's a decision that [we] have made that that's not what we wanted to have on the farm."

The plaintiffs thereafter filed complaints with the State Division of Human Rights (SDHR) alleging that the owners engaged in unlawful discriminatory practices based on sexual orientation. After an investigation, SDHR determined that it had jurisdiction over the matters and that probable cause existed to support the complaints. Following a public hearing, an Administrative Law Judge (hereinafter ALJ) found that the farm is a place of public accommodation within the meaning of the Human Rights Law and that the owners illegally discriminated against the plaintiffs on the basis of their sexual orientation. The ALJ recommended that the plaintiffs each be awarded $1,500 in compensatory damages for the emotional injuries they suffered as a result of the discrimination, that a civil fine and penalty in the amount of $10,000 be imposed upon the owners, and that the owners cease and desist from engaging in discriminatory practices and establish anti-discrimination training and procedures at the farm.

Place of public accommodation

The court said New York's law was enacted "to assure that every individual within this state is afforded an equal opportunity to enjoy a full and productive life" by "eliminating and preventing discrimination in employment, in places of public accommodation, resort or amusement, in educational institutions, in public services, in housing accommodations, in commercial space and in credit transactions."

To accomplish these goals, the Human Rights Law declares it an "unlawful discriminatory practice" for any "owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, resort or amusement, because of the … sexual orientation … of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof."

The owners challenged SDHR's determination that they violated the Human Rights Law on two distinct grounds.

First, they asserted they are not subject to the Human Rights Law because the farm's wedding facilities do not constitute a "place of public accommodation" within the meaning of the statute.

Second, the owners claimed that, even if they are a place of public accommodation, they did not engage in unlawful discrimination on the basis of sexual orientation.

These two grounds are addressed separately. The court rejected both defenses. In rejecting the owners' claim that the farm was not a place of public accommodation, the court observed:

The New York Human Rights Law defines "place of public accommodation, resort or amusement" inclusively … and sets forth an extensive list of examples of places within the statute … . Over the years, the statutory definition has been expanded repeatedly, providing a clear indication that the legislature used the phrase place of public accommodation in the broad sense of providing conveniences and services to the public and that it intended that the definition of place of accommodation should be interpreted liberally … .

Here [the farm's] wedding facilities fall comfortably within the broad definition of "place of public accommodation." It is undisputed that the owners open the farm to the public as a venue for wedding ceremonies and receptions and offer several wedding-related event services in connection therewith. Indeed, the only wedding-related service that [it] does not provide is an officiant for the wedding ceremony. The couples who contract to wed at the facilities are members of the general public who, like the [plaintiffs] may be attracted to the farm by its broadly disseminated advertisements and website. The fact that the wedding ceremonies occur on private property and pursuant to a written contract does not, as the owners contend, remove the facilities from the reach of the Human Rights Law; the critical factor is that the facilities are made available to the public at large … . Thus, SDHR properly determined that the owners were subject to the Human Rights Law.

The owners' second argument was that they did not engage in prohibited discrimination on the basis of sexual orientation. Rather, they insisted that their refusal to host a same-sex marriage was based on their religious beliefs. The court responded that "attempts to distinguish between a protected status and conduct closely correlated with that status have been soundly rejected," and that "the act of entering into a same-sex marriage is conduct that is inextricably tied to sexual orientation and, for purposes of the Human Rights Law, we hold that there is no basis for distinguishing between discrimination based on sexual orientation and discrimination based on someone's conduct of publicly committing to a person of the same sex."

Religious freedom

The owners claimed that they had "a sincere religious belief that marriage is between one man and one woman under God," and so the SDHR's determination "unconstitutionally compelled them to host and participate in what they consider to be a sacred event that violates their religious beliefs and to implement anti-discrimination training and procedures that will necessarily endeavor to alter their religiously-motivated views and practices." The court disagreed, noting that the United States Supreme Court has ruled that "the right of free exercise [of religion] does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability." Employment Division v. Smith, 494 U.S. 872 (1990). Therefore, "a generally applicable and otherwise valid enactment, which is not intended to regulate religious conduct or beliefs but which may incidentally burden the free exercise of religion, is not deemed to violate the First Amendment." Matter of New York State Employment Relations Board v. Christ the King Regional High School, 660 N.Y.S.2d 359 (N.Y. App. 1997).

The court noted that the Human Rights Law does not "target religious beliefs," nor is its objective "to infringe upon or restrict practices because of their religious motivation." Rather, the Human Rights Law "generally forbids all discrimination against a protected class in places of public accommodation regardless of the motivation."

The court concluded:

While we recognize that the burden placed on the owners' right to freely exercise their religion is not inconsequential, it cannot be overlooked that SDHR's determination does not require them to participate in the marriage of a same-sex couple. Indeed, they are free to adhere to and profess their religious beliefs that same-sex couples should not marry, but they must permit same-sex couples to marry on the premises if they choose to allow opposite-sex couples to do so. To be weighed against the owners' interests in adhering to the tenets of their faith is New York's long-recognized, substantial interest in eradicating discrimination … . Discriminatory denial of equal access to goods, services and other advantages made available to the public not only "deprives persons of their individual dignity," but also "denies society the benefits of wide participation in political, economic, and cultural life." Balancing these competing interests, we conclude that the owners failed to show that SDHR's determination constituted an unreasonable interference with their religious freedom.

What This Means For Churches:

This case illustrates the impact of the nondiscrimination provisions in state and local public accommodation laws. Consider the following:

1. State and local laws.

  • 21 states have enacted legislation that explicitly bans discrimination based on sexual orientation by places of public accommodation.
  • 44 states have enacted legislation that explicitly bans discrimination based on sex by places of public accommodation. In some of these states, "sex discrimination" is interpreted broadly to include discrimination based on sexual orientation and gender identity.
  • Some 200 cities have enacted legislation that explicitly bans discrimination based on sexual orientation and gender identity by places of public accommodation. Many of these cities are in states that have not banned these forms of discrimination.

2. Most states have enacted laws exempting churches from the nondiscrimination provisions of public accommodation laws, though these exemptions vary from state to state. In addition, church exemptions usually include conditions. For example, the exemption may not apply to a church that rents its facility to the general public, or that invites the public onto its premises for nonreligious functions.

Note that the New York public accommodations law implicated in this case contains this exemption for religious organizations: "For the purposes of this section

… a religious corporation incorporated under the education law or the religious corporations law shall be deemed to be in its nature distinctly private." This exemption did not benefit the farm or its owners since, as the court noted, the farm was not a nonprofit or religious corporation.

3. In the Hobby Lobby case in 2014, the United States Supreme Court ruled that the Religious Freedom Restoration Act (RFRA) did not permit the US Department of Health and Human Services (HHS) to demand that three closely held corporations provide health-insurance coverage for methods of contraception that violated the sincerely held religious beliefs of the companies' owners. Burwell v. Hobby Lobby Stores, Inc., 1134 S.Ct. 2751 (2014). The Court concluded that regulations imposing this obligation violated RFRA, which prohibits the federal government from taking any action that (1) substantially burdens the exercise of religion, (2) unless that action constitutes the least restrictive means of serving a compelling government interest. In holding that the HHS mandate was unlawful, the Court rejected HHS's argument that the owners of the companies forfeited all RFRA protection when they decided to organize their businesses as closely held corporations.

RFRA was violated in the Hobby Lobby case because the challenged HHS regulations substantially burdened the exercise of religion. The owners of the businesses had religious objections to abortion, and according to their religious beliefs, four of the contraceptive methods mandated by HHS regulations under the Affordable Care Act are abortifacients. If the owners complied with the HHS mandate, they believed they would be facilitating abortions, and if they did not comply, they would pay a very heavy price—as much as $1.3 million per day, or about $475 million per year, in the case of one of the companies. The Court concluded: "If these consequences do not amount to a substantial burden, it is hard to see what would."

Under RFRA, a government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and must also constitute the least restrictive means of serving that interest. The Court concluded that the mandate plainly failed that test since "there are other ways in which Congress or HHS could equally ensure that every woman has cost-free access to the particular contraceptives at issue here and, indeed, to all FDA-approved contraceptives."

Note that RFRA only applies to actions by the federal government. In 1997, the United States Supreme Court ruled that RFRA does not apply to state or local laws that burden religious freedom. To illustrate, in 2015, a federal appeals court ruled that a Washington law requiring pharmacists to dispense prescriptions was constitutional, even if doing so, as in the case of abortifacients, violated their religious beliefs. Stormans v. Wiesman, 794 F.3d 1064 (9th Cir. 2015). The court relied on the Supreme Court's decision in the Smith case in 1990 (see above) in which the Court ruled that neutral laws of general applicability are constitutional even if they impose a burden on religious belief. The court concluded that Washington's pharmacists law was a neutral law of general applicability since it did not single out religious organization for less favorable treatment.

The Hobby Lobby case, and RFRA, may provide a defense to the application of federal laws to small business owners if the law substantially burdens their exercise of religion and the government has other options of furthering its interests that are less restrictive of religious freedom. Twenty-one states have enacted their own version of RFRA, and these laws may provide some protection of religious liberty. However, rulings by the Supreme Court raise some doubt regarding the effectiveness of these laws. In the Matter of Gifford, 23 N.Y.S.3d 422 (N.Y. App. 2016).

New York Court Rules Custody and Responsibility of Children Ceases, Even on Property, When Parents Pick Up Their Children

Church Law and Tax Report New York Court Rules Custody and Responsibility of Children Ceases,

Church Law and Tax Report

New York Court Rules Custody and Responsibility of Children Ceases, Even on Property, When Parents Pick Up Their Children

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.

A New York state appeals court ruled that a school was not responsible for severe injuries sustained by a 3-year-old preschool student. The student was struck by a car when he ran onto a busy street adjacent to school property after he had been picked up by his mother at the end of the school day. A 3-year-old child was a student at a public school that included “pre-kindergarten” instruction. The victim had been released from school to his mother inside the school, near his classroom, at 2:30 p.m. Thereafter, the mother, the victim, and the victim’s sister went outside and, while the mother was speaking to another parent on the sidewalk around the corner from where they had left the school, the victim ran into the street from between two parked buses and was struck by a car.

The victim’s mother sued various defendants, including the city and board of education, alleging negligent supervision. The municipal defendants asked the trial court to dismiss the lawsuit, but the court declined to do so. A state appeals court reversed this ruling, and ordered the lawsuit dismissed. The appeals court began its opinion by observing:

A school’s duty to supervise the students in its charge arises from its physical custody over them. The rationale underlying this duty is that when a school takes custody of a child, it deprives the child of the protection of his or her parents or guardian, and thus must give the child the protection of which the child has been deprived. For this reason, a school’s duty to supervise is generally viewed as being “coextensive with and concomitant to its physical custody of and control over the child. When that custody ceases because the child has passed out of the orbit of its authority in such a way that the parent is perfectly free to reassume control over the child’s protection, the school’s custodial duty also ceases … .”

The municipal defendants made a prima facie showing of their entitlement to judgment as a matter of law by demonstrating that they had released the infant to the [mother’s] custody and, thus, he was no longer in the custody of the municipal defendants when the accident occurred.

What This Means For Churches:

This court affirmed the general rule that schools are responsible for the safety of children in their custody. When custody is transferred back to a parent at the end of a school day, the school ceased to be responsible for injuries that may occur, even on church property, since the responsibility for supervising the child has transferred back to the parent. Courts that recognize this rule likely would apply it to churches and church schools. Giresi v. City of New York, 3 N.Y.S.3d 88 (N.Y. App. 2015).

The Extent of “Qualified Privilege” and the Legal Consequences of Violating Bylaws

Church Law and Tax Report The Extent of “Qualified Privilege” and the Legal Consequences of

Church Law and Tax Report

The Extent of “Qualified Privilege” and the Legal Consequences of Violating Bylaws

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

Key point 6-02.2. Churches are subject to the provisions of their governing documents, which generally include a charter and a constitution or bylaws (in some cases both). A charter is the state-approved articles of incorporation of an incorporated church. Most rules of internal church administration are contained in a constitution or bylaws. Specific and temporary matters often are addressed in resolutions. If a conflict develops among these documents, the order of priority generally is as follows: charter, constitution, bylaws, and resolutions.

Key point 6-08. State and federal laws provide limited immunity to uncompensated officers and directors of churches and other charities. This means that they cannot be personally liable for their ordinary negligence. However, such laws contain some exceptions. For example, officers and directors may be personally liable for their gross negligence or their willful or wanton misconduct.

A New York court ruled that a Jewish congregation’s board that blocked a congregational vote on the continued employment of its rabbi could be sued for a violation of the congregation’s bylaws, and defamation, and were not protected by either the “qualified privilege” or the qualified immunity from liability accorded by state nonprofit corporation law to uncompensated officers and directors. A Jewish congregation hired a rabbi for a three-year term. Two years into the term, at a meeting of the synagogue’s board, the board’s president, without providing the board members with prior notice that the rabbi’s future status would be considered, proposed that the rabbi’s employment not be continued at the end of his current term. By majority vote, the board agreed with the president’s proposal.

One month later the board held another meeting. At that meeting, members of the congregation objected to the board’s previous vote, claiming that it violated the congregation’s bylaws as well as New York nonprofit corporation law. These members called for a vote by the entire congregation as to whether to extend or renew the rabbi’s agreement to act as spiritual leader of the congregation. The board refused to allow such a vote to go forward.

Some of the board members submitted a petition demanding that the president call a special meeting of the congregation to discuss the continued employment of the rabbi following the expiration of his term, and to conduct a vote of the congregation as to the rabbi’s future status. A special meeting of the congregation was called, and the president indicated that a vote on the rabbi’s future would be held. However, at the meeting, an agenda was distributed that did not indicate that a vote would be taken. Upon realizing that the written agenda did not provide for a vote, many congregation members left the meeting. Nonetheless, at the meeting, a motion was made, and seconded, to approve a new three-year term for the rabbi. However, the board member who had been selected by the president to oversee the meeting, refused to allow a vote on the motion.

The rabbi and his supporters claim that during the meeting, a member defamed the rabbi by stating:

That [the rabbi] did not show up for morning services; that he failed to perform outreach for young families; that he used a different prayer book than the congregation; that he failed to lead Friday services when special evenings were planned for the same day; that he allowed non-kosher foods into the congregation’s kitchen and did not properly control the kosher validation of the kitchen; and, that he did not lead the Jewish High Holiday services.

The rabbi and some of his supporters (the “plaintiffs”) sued the board president and other board members (the “defendants”), claiming that their blocking of the congregational vote violated the congregation’s bylaws, and that statements made about the rabbi in one of the congregational meetings (quoted above) was defamatory. A trial court denied both claims, and the plaintiffs appealed.

Violation of bylaws

The plaintiffs insisted, and the trial court agreed, that the congregation’s bylaws authorized the congregation to vote on the extension of a rabbi’s term of employment, and therefore the defendants had acted unlawfully in blocking such a vote. It cited a section in the bylaws stating that “a rabbi shall be employed, engaged, retained and hired for a period of time and upon terms to be determined by the board of trustees and the congregation, as the rabbi and spiritual leader of this congregation. The members, at a congregational meeting, shall approve the hiring of the rabbi.”

But the defendants countered that this provision only authorized the congregation to vote on the initial selection of a rabbi, and not on the continuation of employment at the expiration of a specified term.

A state appeals court disagreed with the defendants’ position, noting that “the congregation’s bylaws did not limit the congregation’s authority to the hiring of a rabbi only, and exclude from the ambit of the congregation’s authority the power to extend or renew a hired rabbi’s contract.” The court noted that the congregation’s bylaws “broadly authorizes” congregation members to vote on “any question affecting the congregation.” The court concluded that “it cannot reasonably be disputed that the choice of spiritual leader of a congregation, and whether to renew that individual’s appointment, is a question affecting the congregation.”


The plaintiffs claimed that the above-quoted statement about the rabbi made by a board member at a congregational meeting was defamatory. The defendants claimed that they were mere expressions of opinion, which cannot be defamatory.

The court noted that defamation consists of false statements about another, that are publicized, and that injure the victim’s reputation. The court noted that “since falsity is a necessary element of a defamation cause of action and only facts are capable of being proven false, it follows that only statements alleging facts can properly be the subject of a defamation action.” And this excludes expressions of opinion: “Expressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation.”

The court concluded that the board member’s statements about the rabbi, made in a public meeting, pertained to matters of fact, not opinion: “Contrary to the defendants’ contention, these statements have precise meanings which are readily understood, and they are thoroughly capable of being proven true or false. Thus, the defamation cause of action is not subject to dismissal on the ground that the alleged statements constitute non-actionable expressions of opinion.”

Qualified privilege

The court rejected the defendants’ contention that the defamation claim had to be dismissed because the board member’s statements were protected by a qualified privilege. It noted that “courts have long recognized that the public interest is served by shielding certain communications, though possibly defamatory, from litigation, rather than risk stifling them altogether.” One example is the “common interest privilege,” which generally insulates from liability otherwise defamatory statements “made by one person to another upon a subject in which both have an interest.” This qualified privilege has been applied to communications carried out “in furtherance of a common interest of a religious organization.” The rationale for applying this qualified privilege in circumstances such as this is that “the flow of information between persons sharing a common interest should not be impeded.”

However, the qualified privilege for statements pertaining to matters of common interest is not absolute. It “may be dissolved if plaintiff can demonstrate that defendant spoke with ‘malice.'” In this regard, “malice” may be (1) “common law malice” consisting of spite or ill will, or (2) actual malice, meaning that the speaker knew that his or her statement was false, or made it with reckless disregard as to its truthfulness.

The court concluded that there was sufficient evidence of malice in this case to overcome the common interest privilege. It noted that some of the statements were demonstrably false, and were made “with common-law malice so as to overcome the common interest qualified privilege.” The statements were made “with the intent to and did undermine the rabbi’s authority as the spiritual leader of the congregation, and also to aid and further the defendants’ goal to interfere with and prevent the efforts by the rabbi and some members of the congregation to secure his continued employment.” The plaintiffs also alleged that the false statements “cast the rabbi in a negative light and reflected adversely on his competence as a rabbi, and harmed his standing and reputation with the congregants and others in the community.”

Qualified immunity of board members

The defendants claimed that they were immune from liability for either defamation or violating the congregation’s bylaws by blocking a congregational vote on extending the rabbi’s employment. They relied on the following provision in the New York Not-for-Profit Corporation Law:

No person serving without compensation as a director, officer or trustee of a corporation, association, organization or trust described in section 501(c)(3) of the United States internal revenue code shall be liable to any person other than such corporation, association, organization or trust based solely on his or her conduct in the execution of such office unless the conduct of such director, officer or trustee with respect to the person asserting liability constituted gross negligence or was intended to cause the resulting harm to the person asserting such liability.

Note the following points regarding the qualified immunity of board members:

• It applies to directors, officers, and trustees;

• Who serve without compensation;

• Of a tax-exempt organization;

• It does not apply to intentional misconduct or gross negligence.

The court conceded that the defendant board members were uncompensated and served on the board of a tax-exempt organization. The remaining question was whether the board members who blocked the congregational vote on extending the rabbi’s employment, or the board member who uttered the defamatory statement, had engaged in either intentional conduct or gross negligence since in either case there would be no qualified immunity from liability.

The court concluded that the defendant board members were not entitled to qualified immunity:

With regard to the remaining causes of action which seek money damages based on the defendants’ conduct in usurping the Congregation’s authority, the gravamen of the plaintiffs’ claims are that the defendants, “in bad faith and with malice,” usurped the congregation’s authority in “refusing to allow the congregation to” vote on the issue of the rabbi’s retention. The plaintiffs have alleged that the defendants refused to allow the congregants to vote on the matter in violation of … the congregation’s bylaws, and notwithstanding several petitions and letters delivered to the defendants requesting that the congregation be permitted to vote on the matter. Additionally, with regard to the defamation cause of action, as concluded above, the plaintiffs alleged malice. In short, essentially all of the plaintiffs’ allegations involve the intentional infliction of harm by the defendants … . Given the nature of the specific allegations as well as certain undisputed circumstances in this case, including the board’s refusal to allow the congregation to vote notwithstanding several demands, on this record, we conclude that there is a reasonable probability that the plaintiffs can establish that the defendants’ actions constituted gross negligence or were intended to cause the resulting harm … . Accordingly, at this stage, the defendants are not entitled to the benefit of the qualified immunity.

What This Means For Churches:

This case is instructive for several reasons.

First, it illustrates that a board’s disregard of a bylaw provision authorizing congregational votes on a minister’s employment may result in liability. The lesson is clear: board members, even by majority or unanimous vote, should not consider blocking a vote by the church’s membership on pastoral employment issues without first reviewing the church’s governing documents to be certain that such authority exists. If in doubt, consult with legal counsel.

Second, most states recognize a “qualified privilege” to defamation claims with regard to statements to church members having a “common interest” in the information communicated. But, as this case illustrates, this exception to liability based on defamation will not apply if the speaker acts with malice, which generally means making a statement the speaker knows to be false, or is made with a reckless disregard as to its truthfulness. So while the qualified privilege is important, and often will apply to statements made in church meetings, it is not absolute. It will not apply to statements that are made with malice. And, while the court did not address this issue, many other courts have limited the qualified privilege to statements made to church members, meaning that the privilege does not apply to meetings in which nonmembers are present.

Third, this is one of the few cases to address the application of a state nonprofit corporation law’s limited immunity provision to uncompensated board members of a religious congregation. The court concluded that the immunity provided by state law is limited or qualified, meaning that it does not apply to intentional misconduct or gross negligence. Kamchi v. Weissman, 1 N.Y.S.3d 169 (N.Y. App. 2014).

Vaccines over Religious Exercise

Church Law and Tax Report Vaccines over Religious Exercise A New York court ruled that

Church Law and Tax Report

Vaccines over Religious Exercise

A New York court ruled that a state law barring unvaccinated children from attending public schools did not violate the constitutional right of parents to the free exercise of their religion. Three parents with school-age children (the “plaintiffs”) filed a lawsuit challenging New York’s vaccination law, which required children to be vaccinated and offered a religion-based exemption, but prohibited unvaccinated children with a religious exemption from attending school each time any schoolmate contracts a “vaccine preventable disease.”

The plaintiffs claimed that their constitutional right to the free exercise of religion was violated when their children were excluded from school due to their religious beliefs running counter to vaccination practice. Plaintiffs argued that their children were “arbitrarily, capriciously, unreasonably and unconstitutionally denied” the right to free exercise of religion based on the state vaccination practice.

The court, in rejecting the plaintiffs’ claims, relied on a 1905 ruling by the United States Supreme Court, and more recent federal cases in New York, finding that religious objectors are not constitutionally exempt from vaccinations. Jacobson v. Commonwealth, 197 U.S. 11 (1905), Caviezel v. Great Neck Public Schools, 739 F.Supp.2d 273(E.D.N.Y. 2010) (“the free exercise clause of the First Amendment does not provide a right for religious objectors to be exempt from New York’s compulsory inoculation law”).

What This Means For Churches:

An increasing number of public elementary and secondary public schools have adopted policies requiring the vaccination of students. Many of these policies are based on state law. While religious exemptions are recognized in some states, many exemptions are conditional and, as this case demonstrates, will not always apply. Phillips v. City of New York, 2014 WL 2547584 (E.D.N.Y. 2014).

Stock Photos Warning

Key point 9-05.08. Copyright infringement occurs when one violates any one or more of the

Key point 9-05.08. Copyright infringement occurs when one violates any one or more of the exclusive rights of a copyright owner.

Key point § 9-05.11. Publishers cannot place the contents of magazines and other periodicals in online electronic databases and on CD-ROMs without obtaining the permission of writers whose articles were included in those periodicals.

A federal court in New York ruled that a company that purchased a license to use various stock photos could be sued for copyright infringement for using the photos beyond the permission granted in the licensing agreement. A licensing agency (the "plaintiff") licenses stock photographs for a licensing fee. A publisher (the "defendant") entered in several license agreements with the plaintiff to use specified stock photos in various publications. These licenses were "expressly limited by number of copies, distribution area, image size, language, duration and/or media (print or electronic)." The agreements also stated that the plaintiff "reserves the right to bill the customer (and the customer hereby agrees to pay) ten (10) times the normal license fee for any unauthorized use, in addition to any other fees, damages, or penalties [the plaintiff] may be entitled to under this agreement or applicable law."

The plaintiff filed a copyright infringement lawsuit in federal court, citing 294 instances of alleged infringement by the defendant. In each case, the plaintiff allegedly exceeded the limitations imposed by the licensing agreements. Specifically, the lawsuit alleged that the defendant used photos

  • in numbers exceeding the limited print quantities in the licenses;
  • displayed the images online or in digital media without permission to do so;
  • distributed the images in geographic territories that were not authorized; and
  • copied the images in custom, state-specific language, or international editions without permission to do so.

The plaintiff asked the court for the following damages: (1) destruction or other reasonable disposition of the unlawfully used photos, including digital files and any other means by which they could be used again without the plaintiff's authorization; (2) an award of actual damages; (3) statutory damages; (4) attorneys' fees; and (4) an award of 10 times the license fee for unauthorized uses pursuant to the agreements.

The defendant asked the court to dismiss the lawsuit on several grounds, but the court concluded that the plaintiff had stated a valid claim for copyright infringement.

What This Means For Churches:

This case illustrates an important point. Churches often purchase stock photos for use in church publications or on a website. In some cases, churches that purchase stock photos are given full rights in the photos, meaning that the church can use them in any form or medium it chooses, including digital media. But in other cases, a church purchases a license to use selected stock photos, and such licenses often contain restrictions on the use of the photos. This case illustrates that such restrictions may include limits on quantity, online or digital reproductions, geographic territory, and modification or editing. Churches that purchase licenses to stock photos should carefully review any such restrictions, and ensure that they are honored. A failure to do so may expose the church to substantial penalties. Lefkowitz v. McGraw-Hill Global Educ. Holdings, 2014 WL 2481904 (S.D.N.Y. 2014).

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New York Court Rules Tax Exemption in Favor of Catholic Diocese

Closed churches’ occasional use for religious purposes is enough to exempt them from property taxes.

Key point. Church property may be exempt from taxation though it is only used infrequently for religious purposes, so long as it is not used for any other purpose.

A New York court ruled that two churches that had been closed by a Catholic Diocese remained exempt from property taxes even though regular worship services no longer were conducted, since the properties were occasionally used for religious purposes (including monthly religious services) and this was their only use. A Catholic Diocese announced plans to permanently close two churches (the "petitioners"). Thereafter, canonical "decrees of suppression" were issued for the two churches that in effect transferred the property and care of the two churches to other parishes. The local tax assessor informed the diocese that the closed churches no longer qualified for exemption from property tax, and that both church properties had been placed on the tax rolls.

The petitioners asked a court to reinstate the exempt status of both properties. The court noted that "while the burden of proof in tax exemption matters ordinarily lies with the party seeking an exemption, a municipality seeking to withdraw an existing exemption bears the burden of proving that the real property in question has become subject to taxation."

[The assessor] contends that the properties are not entitled to tax exemptions because they are no longer "used primarily for the furtherance of [religious] purposes." To meet their burden in this regard, respondents contend that statements made by the Diocese establish that the properties no longer function as churches, that regular worship services and religious activities that were formerly conducted on the properties now take place elsewhere, and that the parcels are now investment properties being marketed for sale for the non-exempt purpose of generating income.

In rebuttal, petitioners submitted the affidavit of a Roman Catholic priest and canon lawyer stating that the canonical decree of suppression did not preclude the continued use of the properties for religious purposes, and that both properties continue to be "sacred space" within the meaning of the Code of Canon Law. Petitioners further submitted affidavits from church officials stating that both properties continue to be used for religious services conducted to serve the spiritual needs of the parish faithful, in the form of monthly morning prayers on one of the properties and periodic prayer services that include scripture readings and communion services on the other. The court concluded:

Contrary to [the assessor's] contention that such occasional or periodic use cannot be deemed to be primary, it is the actual or physical use of the property that determines whether it is exempt from real property taxation. Here, the record reveals that petitioners' only actual or physical use of their properties is for religious purposes. Absent any showing by [the assessor] that the properties are used for anything other than the religious purposes for which petitioners were organized, the mere fact that this use is now less frequent does not alter the properties' tax-exempt status. Further [the assessor] did not show that petitioners currently derive rental income or any other such financial benefit from the properties, and we find no basis upon which to conclude that the efforts to sell the properties renders use that is otherwise exclusively religious insufficient to meet the requirements of [exemption]. Accordingly, [the assessor] did not meet his burden to prove that the properties were subject to taxation, and … petitioners are entitled to summary judgment restoring the properties to tax-exempt status.

The court also noted that the properties were used to store religious artifacts and fixtures.

What This Means For Churches:

This case is important because it demonstrates a church property may qualify for exemption from tax even it is only used infrequently for religious purposes, so long as it is not used for any other purposes. This conclusion is reinforced by a 2012 ruling by the United States Supreme Court. Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C., 132 S.Ct. 694 (2012). In a ringing endorsement of religious liberty, the Supreme Court unanimously affirmed the so-called "ministerial exception" barring civil court review of employment disputes between churches and ministers. The case involved a claim by a "called" teacher at a church-related school in Michigan that the school committed unlawful disability discrimination in terminating her employment. The Court concluded that the ministerial exception applied to a called teacher in a parochial school despite the fact that she only devoted a few minutes each school day to religious activities. The Court concluded that a finding of ministerial status cannot be based solely on the amount of time a person spends on religious functions.

In rejecting a federal appeals court's conclusion that the ministerial exception did not apply because of the limited time the teacher devoted to religious tasks, the Court observed: "The issue before us, however, is not one that can be resolved by a stopwatch. The amount of time an employee spends on particular activities is relevant in assessing that employee's status, but that factor cannot be considered in isolation, without regard to the nature of the religious functions performed."

The Court acknowledged that the teacher's religious duties "consumed only 45 minutes of each workday, and that the rest of her day was devoted to teaching secular subjects." However, the Court noted that it was unsure whether any church employees devoted all their time to religious tasks: "The heads of congregations themselves often have a mix of duties, including secular ones such as helping to manage the congregation's finances, supervising purely secular personnel, and overseeing the upkeep of facilities."

The Court's ruling has potential significance to church property tax exemptions, since it suggests that church property may be entitled to exemption based on exclusive use, even though only used infrequently for overtly religious purposes. St. William's Church of Troy, N.Y. v. Dimitriadis, 981 N.Y.S.2d 837 (N.Y.A.D. 2014).

Church Not Responsible to Supervise Outside Party Using Premises

As a result, the church was not liable for a minor’s injury that took place in their building.

Church Law and Tax Report

Church Not Responsible to Supervise Outside Party Using Premises

As a result, the church was not liable for a minor’s injury that took place in their building.

Key point 7-20.3. Churches may be legally responsible for injuries occurring on their premises while being used by an outside group, if they maintain sufficient “control” over their premises during such use.

A New York court ruled that a church was not liable for injuries sustained by a minor on its premises during a concert since the church was not in control of the premises at the time. A church allowed one of its parishioners to use its fellowship hall for a concert in return for a $100 “donation.” Many of those attending the concert were minors, many of whom became intoxicated from consuming alcoholic beverages. One intoxicated attendee assaulted and injured another attendee, whose parents sued the church, claiming that its negligence in supervising the concert contributed to their child’s injuries.

A state court concluded that “although the church, as owner of the premises where the injured plaintiff was attacked, owed him a duty to keep its premises free of known dangerous conditions, which may include intoxicated guests, the church did not host the party at which such drinking took place, but merely permitted a 20-year-old parishioner to use its hall in exchange for a $100 donation. Under these circumstances, the church was not under a duty to supervise the party or otherwise retain control of its premises.”

What This Means For Churches:

Many churches allow community groups to use their facilities. Before doing so, there are a number of issues that church leaders should consider, including the following:

1. Have the outside group sign a “facilities use agreement” that (1) provides the group with a mere license to use the property; (2) contains a hold harmless and indemnification clause; and (3) states that the church provides no supervision or control over the property when being used by the group. This document should be prepared by an attorney. The agreement should clearly specify that it is a license agreement and not a lease. The church’s potential liability for injuries that occur during the use of its property by an outside group will depend to some extent on the nature of the relationship. A license exposes the church to less liability than a lease.

2. The church should be named as an additional insured under the group’s liability policy.

3. Review the group’s liability policy to ensure that it provides adequate coverage, and does not exclude sexual misconduct.

4. If the outside group’s use of the property will involve any participants who are minors (including minor children of participants), then the outside group should warrant that it has exercised a high degree of care in conducting background investigations on all persons who will have access to one or more minors to determine their suitability for working with, or being present with, minors during the outside group’s use of the property. The outside group also should warrant that it will use a high degree of care in supervising all activities involving minors during its use of the property under the terms of the agreement.

5. Check with the church insurer to determine coverage issues in the event the church is sued as a result of an accident or injury occurring during the group’s use of the property.

6. If you deny use of your property to any group because of its religious affiliation, be sure that you are legally permitted to do so under applicable federal, state, and local laws. Many jurisdictions permit religious organizations to discriminate on the basis of religion when allowing outside groups to use their properties. Check with an attorney regarding the application of such laws to your church.

7. The Americans with Disabilities Act prohibits places of public accommodation from discriminating against persons with a disability. The Act exempts religious organizations from this provision. Be sure to see if state and local law contains a similar exemption.

8. There are several potential violations of copyright law that may arise when an outside group is using the church, including the following: (1) An outside group that plays copyrighted music or shows copyrighted videos or images may be committing copyright infringement. (2) If the outside group makes audio or video recordings containing copyrighted music, this is another possible example of copyright infringement. (3) If a musical group performs a concert in which copyrighted music is performed, then this may result in copyright infringement. At a minimum, the agreement should include a statement making the outside group solely responsible for compliance with copyright law.

9. The fees received by the church may be subject to the federal “unrelated business income tax.” Generally, this tax will not apply unless the rented facilities are subject to an “acquisition indebtedness” (a mortgage loan).

10. The agreement should clarify that the outside group will be solely responsible for the collection of any sales taxes on the sale of any product during its use of the facilities, and that it will indemnify the church for any taxes it is assessed as a result of the outside group’s sales occurring on (or a result of) its use of the premises.

11. The outside group should agree to indemnify not only the church but also the church’s officers, agents, and employees from any and all claims or damages in connection with the use of the property by the outside group.

12. The agreement should contain a non-assignability clause.

13. The agreement should state that the church does not warrant or represent that the property is safe or suitable for the purposes for which it is permitted to be used under the terms of this agreement, and that the outside group (for itself and on behalf of all of its members, guests, or participants who will be using the property) acknowledges that the church is providing the property and all appliances on an “as is” basis.

14. The agreement should clarify that the church will bear no liability if the agreement is cancelled due to any legal or regulatory compliance issue, such as a zoning ordinance. Joseph R.C. v. Bronx Underground LLC, 2014 WL 2765971 (N.Y.A.D. 2014).

Related Topics:

Meeting to Fire Pastor Was Invalid

New York Court ruled that a church meeting requiring two-thirds vote to terminate pastor’s employment didn’t give church members full notice of meeting; it was therefore invalid.

Key point 6-12.1. Church membership meetings must be conducted in accordance with the procedural requirements ordinarily specified in the church's governing documents. The most common requirements pertain to notice, quorum, and voting.

A New York court ruled that a specially called church business meeting was invalid because notice of the meeting failed to state the purpose. A pastor (the "plaintiff") entered into an employment contract with a church. The contract provided that if the plaintiff's employment was to be terminated, "an announcement is to be made two weeks in advance, one each week before the called business meeting. Two thirds of the members present must vote for removal of the pastor."

Five years later the church convened a special business meeting at which more than two-thirds of the members present at the meeting voted to terminate the plaintiff's employment as pastor, allegedly because of financial improprieties. The meeting was conducted on April 15, 2008, and the church provided notice to the congregation on April 6 and April 13. However, neither notice stated that the pastor's employment would be considered.

The plaintiff sued the church to recover damages for breach of contract and defamation against the church, alleging that the church business meeting was invalid due to the church's failure to provide notice 14 days in advance of the meeting, and the failure of the notices to specify the purpose of the meeting. The plaintiff also insisted that he had not committed any financial improprieties.

A trial court granted the plaintiff's motion for summary judgment, meaning that it believed that the plaintiff's position was so strong that there was no need to conduct a trial. A state appeals court agreed:

Here, the pertinent clause of the subject employment contract unambiguously required the church to announce the termination vote "two weeks in advance of the meeting." As a matter of law, such language unambiguously required the church to announce the termination vote 14 days in advance of the meeting … . The plaintiff established that the church breached the employment contract by demonstrating that it did not announce the April 15, 2008, special meeting until April 6, 2008, and April 13, 2008, and that the announcements did not adequately apprise the congregation of the purpose of the meeting, as, in effect, required by the employment contract and the church bylaws.

What this means for churches

This case illustrates the importance of compliance with notice provisions in employment contracts, bylaws, and applicable nonprofit corporation law. It is a good practice for church leaders to be familiar with these provisions in advance of annual or special business meetings so that proper notice can be provided to members.

Note that proper notice of a special business meeting typically requires that notice be given a specified number of days or weeks prior to the meeting, and that the notice inform members of the purpose of the meeting. The purpose of the notice requirement is to provide members with sufficient information to decide whether or not to attend the meeting, sufficiently in advance to enable them to adjust their schedules should they desire to attend. As this case demonstrates, a failure to comply with the notice requirement may affect the validity of actions taken at the meeting. Smith v. Ebenezer Baptist Church, 949 N.Y.S.2d 119 (N.Y.A.D. 2012).

Clergy-Penitent Privilege Invalid in Murder Case

Deacon allowed to testify about murder suspect’s confession.

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

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

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

A New York court ruled that the clergy-penitent privilege did not apply to a murder suspect's confession to a detective who also was a church deacon, and therefore the detective could testify about the conversation at the defendant's trial. Two persons were injured and one killed in a shooting outside an apartment building. A few days later an adult male contacted a police detective who was a deacon at the same church that he attended, and asked to meet with him and his brother (the defendant) at a local restaurant. The detective agreed, and drove to the restaurant. As he was parking his car, he was approached by the defendant and his brother, and their aunt. The defendant was crying and the detective asked him what he wanted to talk about. The defendant said that he wanted to talk and that he was under a lot of pressure. The defendant and the detective got into the rear seat of the car, leaving the door open. The aunt got into the front passenger seat, and the defendant's brother stood outside, leaning into the open door.

Inside the car, the defendant repeated that he was under a lot of pressure and said that he did not mean for this to happen. He said he heard a noise or a commotion the night of the shooting and was worried about his brother. He went downstairs and asked if his brother was okay. He heard the shots and "just fired." He said that he was trying to protect his brother. He got rid of the gun afterwards. He said he was not a bad person, that it was an accident, and that he could not eat or sleep. He said that it was on his conscience and that he did not want to go to hell. The defendant said that his deceased mother was looking down on him and asked to go to the church to pray. The detective said that the church was closed and prayed with the defendant inside the car. The prayer was a brief petition for God's assistance and it lasted one or two minutes. After the prayer, the detective suggested that the defendant turn himself in. The defendant said that he would do so if the detective went with him. The detective then drove the defendant and his aunt to the nearest police precinct. The defendant was charged with second degree murder and a firearms offense. The defendant asked the court to bar the detective from testifying about their conversation on the ground that their conversation occurred while the detective was acting in his role as a deacon, and as such it was protected by the clergy-penitent privilege.

The New York clergy privilege states:

Unless the person confessing or confiding waives the privilege, a clergyman or other minister of any religion or duly accredited Christian Science practitioner, shall not be allowed to disclose a confession or confidence made to him in his professional character as spiritual advisor.

The court noted that for a communication to fall within this privilege, it must meet four criteria: "(1) it must be confidential; (2) it must be made to a minister or clergy member acting in a professional character as a spiritual advisor; (3) it must be made for the purpose of seeking spiritual advice or religious counsel; and (4) it must not be waived by the person making the confidential statement. As the person asserting the privilege, the defendant, has the burden of establishing that all four criteria are met." The court concluded that the defendant's conversation with the detective was not privileged according to its four-part test.

(1) confidential

The court concluded that "there was no showing that the statements were confidential as they were made in the presence of both the defendant's aunt and his brother …. Exceptions to this general rule have been made only when the third party is essential to the communication, such as an interpreter, or serving as an agent of the person seeking counsel or the person giving it." The test for whether a third party's presence negates the privilege is "whether, in the light of all the surrounding circumstances, and particularly the occasion for the presence of the third person, the communication was intended to be confidential." The court concluded:

Here, the defendant never sought to speak privately with the detective, although he easily could have done so, either by coming alone to the meeting or by having his family members remain outside the car while he spoke to the detective. Nothing in this record suggests that the family members were needed to assist the defendant in communicating with the officer. Therefore, his statements were neither intended to be confidential when made nor actually made in confidence, and are, therefore, not privileged.

(2) made to a minister

The court concluded that the detective's status as a deacon did not make him a minister for purposes of the privilege:

While the statute was drafted to apply to a broad array of clergy of all denominations and faiths, its application is limited to clergy who perform "significant spiritual counseling which may involve disclosure of sensitive matters." Although the detective had the title of deacon, his duties within the church were purely administrative: he was in charge of music, events planning, church maintenance, and some youth activities. He was not trained in counseling, had never been approached by a church member for advice on anything other than minor personal matters, and testified that, as a deacon, it was "not his position" to talk with parishioners about their sins or to give spiritual guidance. Moreover, the church in which the detective was a deacon, had several persons who acted in a counseling and spiritual advisor capacity. These included the Pastor, who ran the church and who ordained or appointed the other church officials, and several ministers whose duties were to preach, to counsel and to witness to people. Therefore, the detective's role as a deacon in this particular church was not that of a clergy person as defined by the statute.

(3) for the purpose of seeking spiritual advice

The court concluded that there was no indication that the defendant was seeking spiritual advice when he met with the detective:

Neither the brother nor the defendant sought to meet inside the church or otherwise indicated to the detective that the defendant was seeking spiritual, rather than practical, advice …. Although the defendant did express that the shooting was on his conscience, that he did not want to go to hell, and that he wanted to pray at the church, he did not say any of these things until after he had already told the detective that he had accidentally shot his friend while trying to protect his brother. By first revealing his problem and only later asking for prayer or some kind of spiritual solace, it is clear that the defendant's original reason for speaking to the detective was not to seek religious advice or spiritual counsel, but to ask a sympathetic member of law enforcement for practical counsel on his situation …. Moreover, because the defendant and his family members had attended or belonged to the church and because his aunt held an office within the church, the defendant was fully aware of the roles of the different church officials and also fully aware of the detective's dual roles both within the church and as a detective. Therefore he knew when he confessed to the shooting that he was not speaking to a member of the clergy at this church who would ordinarily give spiritual guidance or counseling.

(4) waiver

The court noted that waiver of a privilege occurs "when the person making the otherwise privileged statement reveals to a third party both the statement's contents and the fact that it was made to the clergy member." By speaking in front of his aunt and brother, "the defendant effectively waived any claim of privilege."

What This Means For Churches:

There are two noteworthy aspects to this case.

The first aspect is that the court defined the clergy privilege's requirement of confidentiality to mean the absence of any third persons. State clergy-penitent privilege laws define confidentiality in one of two ways. The first definition is the Uniform Rules of Evidence adopted by most states, which defines confidentiality in the context of the "religious privilege" as "a communication … made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication." There are two points to note about this definition. First, the communication must be "private," and second, it must not be intended for further disclosure except to "other persons present in furtherance of the purpose of the communication." According to this definition, other persons can be present, and listening, when a person seeks out a minister for spiritual counsel so long as their presence is "in furtherance of the purpose of the privilege."

The second definition is to define, as a minority of state clergy-penitent laws have, confidentiality more narrowly to mean that a communication was made in private in the presence of no other persons besides the minister. This is a very different view of confidentiality than the more expansive view taken by the Uniform Rules of Evidence and a majority of the states.

The New York clergy privilege is not based on the Uniform Rules of Evidence, and does not specifically preclude the presence of third parties. Nevertheless, the court defined "confidential" to mean an absence of third persons, noting that the test for whether a third party's presence negates the privilege is "whether, in the light of all the surrounding circumstances, and particularly the occasion for the presence of the third person, the communication was intended to be confidential."

The takeaway point here is that ministers need to understand that the presence of a third person in the course of providing spiritual counsel to a counselee can negate the privilege. This is so under the Uniform Rules of Evidence if the third person's presence is not "in furtherance of the privilege." But it is also the case in states in which the clergy privilege law is construed to mean the absence of third persons.

The second noteworthy aspect of this case is that the court concluded that in deciding if the defendant's confession to the detective was made in the course of seeking spiritual counsel, the key consideration is why the conversation started rather than how it ended. The court was convinced that the defendant's initial purpose in speaking with the detective had nothing to do with seeking spiritual advice, and therefore the conversation was not privileged, even though at some point later in the conversation the defendant may have sought such advice. People v. Harris, 934 N.Y.S.2d 639 (N.Y. Sup. 2011).

Pastor’s Sexual Misconduct

Is the church responsible?

Church Law & Tax Report

Pastor’s Sexual Misconduct

Is the church responsible?

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

Key point 10-02.3. Churches can be legally responsible on the basis of the respondeat superior doctrine for the actions of their employees only if those actions are committed within the course of employment and further the mission and functions of the church. Intentional and self-serving acts of church employees often will not satisfy this standard.

A New York court ruled that a pastor who engaged in sexual affairs with two adult women was not liable for his acts on the basis of breach of a fiduciary duty. Two women (the “plaintiffs”) sued the pastor for breach of fiduciary duty and infliction of emotional distress, and sought to hold the church liable for negligent supervision. The court concluded that “to demonstrate the existence of a fiduciary duty between a cleric and congregant in a formal counseling relationship, there must be characteristics of control and dominance in the relationship,” and that a relationship is marked by control and dominance “when the congregant is uniquely vulnerable and incapable of self-protection.”

The court concluded that there can be no liability for sexual misconduct on the basis of negligent supervision without proof that a church was aware of prior, similar acts. This demonstrates the importance of church leaders responding quickly and adequately to allegations of sexual misconduct by any employee or volunteer.

Although the plaintiffs claimed that they were uniquely vulnerable and incapable of self-protection, the court concluded that “that contention is belied by their acknowledgments in the complaint that they both promptly ended their relationships with the pastor once they learned he was having affairs with both of them.” Since the pastor was not guilty of breaching a fiduciary duty, the church could not be vicariously liable on this basis. The court also rejected the plaintiffs’ claim that the church was liable for the pastor’s conduct on the basis of negligent supervision. It concluded that the church could not be liable on the basis of negligent supervision unless it knew or should have known of prior incidents of sexual misconduct involving the pastor. Since the church was not aware of any such prior incidents, it could not be liable on the basis of negligent supervision.

What This Means For Churches:

This case illustrates two important points. First, it is difficult to establish church liability on the basis of breach of a fiduciary duty. This court concluded that this form of liability required proof of a counseling relationship involving “control and dominance.”

Second, the court concluded that there can be no liability for sexual misconduct on the basis of negligent supervision without proof that a church was aware of prior, similar acts. This demonstrates the importance of church leaders responding quickly and adequately to allegations of sexual misconduct by any employee or volunteer. Spielman v. Carrino, 910 N.Y.S.2d 105 (N.Y.A.D., 2011).

This Recent Development first appeared in Church Law and Tax Report, March/April 2012.

Incorporated Arbitration Clauses

Have an attorney review any arbitration policy to ensure its enforceability.

Church Law & Tax Report

Incorporated Arbitration Clauses

Have an attorney review any arbitration policy to ensure its enforceability.

Key point 10-16.8. Churches have various defenses available to them if they are sued as a result of a personal injury. One such defense is an arbitration policy. By adopting an arbitration policy, a church can compel members to arbitrate specified disputes with their church rather than pursue their claim in the civil courts.

A New York court refused to enforce an arbitration clause in a church’s bylaws to a contract dispute between a church and one of its members who performed repair work. A church’s bylaws contained an arbitration clause specifying that “any claim not resolved in accordance with Matthew 18, by or between any member of the church [or] any person having once been a member [of the church] shall be decided by mediation, and if mediation is unsuccessful, by binding arbitration.”

A church member sued the church in civil court claiming that it breached a contract for the renovation of certain premises. The church asked the court to dismiss the lawsuit and compel the member to resolve his dispute through arbitration. The court refused to do so. It acknowledged that “members of an organization entering into a contract with the organization may be bound by duly enacted organizational bylaws compelling arbitration.” However, “a party will not be compelled to arbitrate absent a clear, explicit, and unequivocal agreement to do so.” The court concluded that the arbitration procedure in the church’s bylaws failed this test, since it “provides no instruction as to how, or before whom, the referenced mediation is to be conducted, fails to establish whether the type of dispute to be arbitrated is limited to either temporal or spiritual disputes or extends to both, and purports to apply to former members who have since left the church. Therefore, the provision is so unclear and equivocal as to be unenforceable …. The church failed to establish that the parties entered into an explicit and unequivocal agreement to arbitrate this particular type of dispute. Based upon the overbroad scope of the arbitration agreement, the church failed to establish that the arbitration clause applies not only to religious matters, but temporal matters as well.”

What This Means For Churches:
Many churches have incorporated arbitration clauses in their bylaws, or in employment handbooks. This case illustrates the importance of having an attorney draft, or review, such provisions to ensure their enforceability. The defect in this case was the arbitration policy’s failure to clarify that it applied to both spiritual and temporal matters. Dean v. Harvestime Church, 79 A.D.3d 793 (N.Y.A.D. 2010).

This Recent Development first appeared in Church Law & Tax Report, November/December 2011.

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