New York

Legal Developments

Recent Developments in New York Regarding Sexual Misconduct by Clergy and Church Workers

A New York court ruled that the failure by a public school principal to perform a background check on a volunteer worker did not make the school liable, on the basis of negligent hiring, for the volunteer’s sexual molestation of a minor.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax1999-07-01

Sexual Misconduct by Clergy and Church Workers

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

• Key point. Churches cannot be responsible on the basis of negligent hiring for the sexual misconduct of a youth worker if they exercised reasonable care in conducting a background investigation of the worker at the time of hire.

A New York court ruled that the failure by a public school principal to perform a background check on a volunteer worker did not make the school liable, on the basis of negligent hiring, for the volunteer’s sexual molestation of a minor. While this case addressed the liability of a public school, the court’s decision is of direct relevance to churches and other charities. A public school principal allowed a professional artist to work with a fifth grade class during a special art project. The artist was a friend and neighbor of the fifth grade teacher, and the principal based his decision to use the artist on the teacher’s recommendation and on his own personal interview with him. The principal did not do a background check, since the school had no policy for conducting such checks on volunteer workers. After this art project was completed, the teacher assigned one of her students (the “victim”) to interview the artist for a homeroom newspaper project. The victim met with the artist at school, and at the artist’s office. A few weeks later, the victim (with his mother’s permission) was picked up at school by the artist, and taken to his apartment where he was sexually molested. Over the next several weeks, the artist asked the victim’s mother for permission to take the victim out to stores or movies after school. The mother trusted the artist because he was someone from the school, and her own son had not yet revealed to her the acts of molestation. The victim went out with the artist nearly 30 times. On each occasion the artist brought the victim to his apartment and molested him. The victim not tell his mother that these outings involved a trip to the artist’s apartment, or that any inappropriate conduct occurred. The victim’s teacher was aware of the out-of-school friendship between the victim and the artist, but believed that it had a “positive effect” on the boy.

About a year later, the artist was arrested for molesting another child. At this time, the victim’s mother learned that her son had been molested too. The victim and his mother sued the school board, claiming that it was responsible for the victim’s injuries on the basis of respondeat superior and negligent hiring.

Respondeat Superior

Under the respondeat superior doctrine, an employer is legally responsible for the conduct of its employees committed within the scope of their employment. The court noted that the school board could not be liable on this basis, for the following reasons: (1) the artist’s volunteer duties had ended by the time he began molesting the victim; (2) the artist’s acts of sexual molestation were outside the scope of his volunteer work at the school; and (3) the artist’s acts of molestation occurred after school hours and off of school property.

Negligent Recommendation

The victim claimed that the school was liable for the teacher’s “negligent encouragement” of the after-school relationship between the victim and the artist, since this encouragement facilitated the acts of molestation. The court rejected this argument, noting that “the mere recommendation of a person for potential employment is not a proper basis for asserting a claim of negligence where another party is responsible for the actual hiring.” The court added that “vague allegations that the teachers encouraged [the victim’s] personal relationship with [the artist] do not suffice to impose liability on the board, as it would not have been foreseeable to the teachers that [the artist] would harm [the victim].”

Negligent Hiring

The court also rejected the victim’s claim that the school board was responsible for his injuries on the basis of negligent hiring. The court observed:

Whether or not the principal should have been more thorough in checking [the artist’s] background, his actions do not support a claim of negligent hiring because a routine background check would not have revealed his propensity to molest minors. [The victim] points to nothing which would have been revealed by checking [the artist’s] criminal history. Having interviewed [him] and having obtained a reference from [the victim’s] teacher, the principal had no duty to investigate further, in the absence of facts which would lead a reasonably prudent person to suspect the prospective volunteer of dangerous propensities ….

It is [the victim’s] obligation to show that the allegedly negligent hiring was the cause of his injuries. Here, though it happened that the victim first met the artist through the school, the victim’s personal encounters with his abuser were not set up through school channels, and occurred in the artist’s apartment after his volunteer work at the school had ceased. Accordingly [the school board] cannot be liable because any [connection] between the artist’s volunteer activities at the school and his assault upon the victim was severed by time, distance and the artist’s intervening independent actions.

Application. This case is significant for the following reasons:

(1) Respondeat superior. The court rejected the respondeat superior doctrine as a basis of liability against the school, since the artist’s volunteer duties had ended by the time he began molesting the victim, the artist’s acts of sexual molestation were outside the scope of his volunteer work at the school, and the artist’s acts of molestation occurred after school hours and off of school property. This conclusion will be relevant to any church that is sued as a result of the molestation of a minor by a former volunteer youth worker, or a current volunteer worker whose acts of molestation all occur off of church property and unrelated to any official church program or activity.

(2) Negligent recommendations. The court ruled that the teacher was not liable on the basis of her “negligent recommendation” of the artist as a school volunteer, since “the mere recommendation of a person for potential employment is not a proper basis for asserting a claim of negligence where another party is responsible for the actual hiring.” Further, the church could not be liable for the teacher’s recommendations if the teacher was not. This conclusion will be a useful precedent for churches. In recent years, references and recommendations have become more common as churches and other employers seek to reduce the risk of negligent hiring. It is common for church employees to be asked for recommendations on a prospective worker. According to this court, an employee who recommends a person for employment (as an employee or volunteer) is not legally responsible for that person’s acts of sexual misconduct-assuming that the employee had no reason to believe that the person might engage in such behavior.

(3) Negligent hiring. The court rejected the victim’s claim that the church was responsible for his injuries on the basis of negligent hiring of the artist. In reaching this conclusion, the court relied on two important facts. First, the principal obtained a favorable reference from the fifth grade teacher (who was the artist’s friend and neighbor), and personally interviewed the artist. The court concluded that under these facts the principal “had no duty to investigate further,” assuming he had no other information suggesting that the artist had dangerous propensities. Second, the court noted that a criminal records check would not have accomplished anything, since the artist had no criminal record. Churches that are sued on the basis of negligent hiring may find this case a useful precedent.

(4) Warning signs. While church leaders and parents should not become paranoid, the facts of this case demonstrate the potential risks to a young child who is “befriended” by an adult. When an adult begins spending an excessive amount of time with a child, and takes the child to movies or other social events, or to his or her residence, this should be a cause of concern for any parent. Koran I. v. New York City Board of Education, 683 N.Y.S.2d 228 (A.D. 1998). [Negligence as a Basis for Liability]

© Copyright 1999 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m65 m67 c0499

Legal Developments

Recent Developments in New York Regarding Libel and Slander

A New York court ruled that a religious teacher was not a “public figure” and therefore could more easily sue an organization that allegedly defamed him in one of its publications.

Richard R. Hammar, Attorney, CPA
Bio

Key point. Statements made about a “public figure” ordinarily cannot be defamatory unless made with malice. Malice means either a knowledge that the statements were false, or a reckless disregard as to their truth or falsity. This is a difficult standard to prove, meaning that public figures rarely succeed in suing others for defamation. Religious leaders are not necessarily public figures.

A New York court ruled that a religious teacher was not a “public figure” and therefore could more easily sue an organization that allegedly defamed him in one of its publications. A nonprofit organization existed to provide education and support to women who are victims of sexual abuse.

One of its representatives allegedly mailed letters to several members of a religious organization informing them that a number of their religious leaders had “sexually coerced and exploited” scores of women during the previous 25 years.

One leader sued the organization for defamation.

The organization claimed that a religious leader is a “public figure,” and as such cannot establish defamation without proving “malice.”

In this context, malice means that a person making a statement either knew that it was false, or made it with a reckless disregard as to its truth or falsity.

Since it is often very difficult for public figures to prove malice, they seldom are successful in pursuing defamation claims.

The court concluded that the religious leader was not a public figure: “There is no proof that [the religious leader] has achieved general fame or notoriety or assumed a role of especial prominence in the affairs of society.”

Further, the leader had not “voluntarily injected himself into the vortex of the particular public controversy at issue in order to influence the outcome and thus is not a limited issue public figure.”

Sovik v. Healing Network, 665 N.Y.S.2d 997 (A.D. 1997)

Legal Developments

Recent Developments in New York Regarding Church Property

A New York court ruled that the civil courts could resolve a dispute between a religious organization and a spin-off congregation over use of property.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax1998-09-01

Church Property

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

• Key point. Civil courts can resolve church disputes over ownership and control of church property so long as they can do so on the basis of neutral principles of law requiring no inquiry into religious doctrine or polity.

A New York court ruled that the civil courts could resolve a dispute between a religious organization and a spin—off congregation over use of property. A majority of the members of a synagogue voted to grant women equal rights in religious services. A number of members opposed this action, and formed their own congregation. A few months later the majority sought a court order banning the dissidents from the property. This litigation was resolved by a “stipulation” or agreement between the factions which (1) recognized that the majority retained ownership of the property; (2) allowed the majority to conduct religious services in the main sanctuary; (3) allowed the dissidents to conduct religious services in a smaller sanctuary in the same building; (4) required the dissidents to pay the majority group $460 per month for their use of the smaller sanctuary. Several years later, the majority sued the dissidents again, this time to collect “back rent” for 72 months and to have the dissidents “ejected” for their failure to pay rent. A trial court, and state appeals court, both ruled that the dispute was “religious” in nature and could not be resolved by the civil courts. The New York Court of Appeals (the highest state court in New York) disagreed on the basis of its earlier decision in First Presbyterian Church v. United Presbyterian Church, 476 N.Y.S.2d 86 (1984). In the First Presbyterian decision, the court was faced with a dispute between a local church and a parent denomination over ownership of the church’s property. It recognized that the civil courts may resolve church property disputes if they can do so “without resolving underlying controversies over religious doctrine.” It adopted the so—called “neutral principles of law” analysis to resolving such disputes. Under this analysis the civil courts “focus not only on the language of instruments such as deeds, but also on such factors as the terms of the local church charter, the state statutes governing the holding of church property, and the provisions in the constitution of the general church concerning ownership and control of church property, as long as the courts take special care to scrutinize the documents in purely secular terms and not to rely on the religious precepts in determining whether they indicate that the parties have intended a particular result.”

The court applied the “neutral principles” analysis to the dispute involving the synagogue, and concluded that the matter could be resolved under this analysis:

The dispute in the present case can similarly be resolved by the application of neutral principles of laws. No doctrinal issue need be passed upon, no implementation of a religious duty is contemplated, and no interference with religious authority will result.

Application. The important feature of this case is the court’s reaffirmation that it will apply the “neutral principles” approach to resolving church property disputes in New York. This means that the civil courts will be willing to resolve such disputes so long as they can do so on the basis of neutral principles of law requiring no inquiry into religious doctrine or polity. The United States Supreme Court has recognized that the first amendment permits a number of different approaches to resolving these disputes. One approach that is recognized in some states is the “compulsory deference rule.” Under this rule the civil courts defer to the decisions of denominational agencies regarding ownership of church property. This approach was rejected by the New York court. Park Slope Jewish Center v. Congregation B’Nai Jacob, 664 N.Y.S.2d 236 (Ct. App. 1997).

[State Court Rulings Regarding Church Property Disputes]

© Copyright 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m21 c0598

Legal Developments

Recent Developments in New York Regarding Negligent Supervision

A New York court ruled that a school was liable on the basis of negligent supervision for the rape of a 12-year-old girl that occurred when she left a school outing without permission.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax1998-07-01

Negligent Supervision

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

Personal injuries-on church property or during church activities

• Key point. Churches that fail to adequately monitor or supervise children’s activities may be legally responsible for resulting injuries on the basis of negligent supervision-even if those injuries are caused by criminal acts.

A New York court ruled that a school was liable on the basis of negligent supervision for the rape of a 12—year—old girl that occurred when she left a school outing without permission. The victim and her class of 30 students were attending a school outing at a public park. She left the group to have lunch at a nearby pizza restaurant. Upon returning to the park, she discovered that her class had left. Instead of returning to school, she walked home. While walking home, she was abducted and raped by two adolescent males. The victim sued the school, claiming that her injuries were caused by its negligent supervision of the class outing. A jury found the school negligent, and awarded the victim $3 million in damages. The verdict was based in part on the testimony of an expert in school safety that the school had departed from “safe and common practices.” In particular, he noted the following: (1) there should have been at least one more adult supervising the group of 30 elementary—age children (only two adults were present during the outing); (2) students were not “paired off” as buddies; (3) arrangements were not made to have the class meet together at least once each hour while at the park; (4) students were not told that they could not leave the park alone; and (5) students were not told that they would only be dismissed from the outing after they returned to school. The safety expert also testified that the teacher in charge of the outing should have taken several steps immediately upon discovering that a child was missing. These included: (1) notifying the school immediately to seek guidance from his superiors; (2) notifying the park police; (3) asking another teacher to take the children back to school so he could continue the search for the missing child; (4) remaining in the park until shortly before dismissal time, to give the victim more time to return; and (5) notifying school officials upon his return that the victim was still missing.

The school appealed, and a state appeals court reversed the jury verdict and ruled that the school was not responsible for the victim’s injuries. It concluded that even if the school had negligently supervised the outing it could not be responsible for the victim’s injuries since “the unforeseeable conduct of [the two rapists] constituted a superseding tortious act that absolved the [school] of any culpability for [the victim’s] injuries.” This case was addressed in the March—April 1997 issue of this newsletter. The victim appealed this decision, and the state’s highest court reversed the lower court’s decision and ruled in favor of the victim. The court concluded:

[W]e cannot say that the intervening act of rape was unforeseeable as a matter of law. A rational jury hearing the trial testimony could have determined, as the jury did in this case, that the foreseeable result of the danger created by [the school’s] alleged lack of supervision was injury such as occurred here. A [jury] could have reasonably concluded that the very purpose of the school supervision was to shield vulnerable schoolchildren from such acts of violence. As we have previously recognized, when the intervening, intentional act of another is itself the foreseeable harm that shapes the duty imposed, the defendant who fails to guard against such conduct will not be relieved of liability when that act occurs.

Application. This case is significant for three reasons: (1) It is a decision of the New York Court of Appeals-the highest state court in New York. This is a well—respected court whose decisions often are given great weight in other jurisdictions. (2) More importantly, the court concluded that criminal acts will not cut off liability for negligent supervision when it is the negligent supervision that made the criminal acts possible. To illustrate, assume that a church conducts an activity and releases a 10—year—old child at the end of the activity but before the child’s parent or guardian arrive. The child begins walking home, and is abducted. While the abduction is a criminal act, it does not relieve the church of liability (based on negligent supervision) when it was the very act of releasing the minor that made the abduction possible. This case will make it more difficult for churches and schools to avoid liability for negligent supervision when a minor is harmed by a criminal act. (3) The case provides helpful guidance on the standard of care expected of youth workers in certain settings. Bell v. Board of Education, 687 N.Y.S.2d 1325 (A.D. 1997).

[Negligence as a Basis for Liability]

© Copyright 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m58 m65 m86 c0498

Legal Developments

Recent Developments in New York Regarding Zoning

A New York court ruled that a rescue mission was a “charitable or religious institution” and as such did not need to obtain a special use permit to operate. A charity operates a rescue mission in Albany, New York.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax1998-05-01

Zoning

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

• Key point. City zoning ordinances often contain special exemptions for churches as well as charitable and religious organizations. These exemptions are interpreted broadly by the courts.

A New York court ruled that a rescue mission was a “charitable or religious institution” and as such did not need to obtain a special use permit to operate. A charity operates a rescue mission in Albany, New York. In 1995 it applied for a building permit to construct a large two—story structure incorporating classrooms, two kitchens, a clothing distribution center, staff bedrooms, a chapel, and sleeping quarters for transients. City officials ruled that the mission had to obtain a special use permit to construct the facility since it was a “rooming house.” The mission appealed, and a state court ruled that no special use permit was required since the mission qualified for an exemption as a “house or worship/charitable or religious institution.” The court noted that zoning ordinances are to be “strictly construed” against a city, and any ambiguity is resolved in favor of the property owner. The court then noted that the zoning ordinance in question exempted a “house of worship/charitable or religious institution” from the special permit requirement, and observed:

Here it is not disputed that [the organization’s] functions are not for profit. Its mission statement also reflects its religious status. The proposed uses of the facility include providing food, clothing, shelter, counseling, medical care, educational training and spiritual guidance to disadvantaged individuals. Even if we accept [the city’s] conclusion that these activities did not fall within the definition of a house of worship, we fail to see how they do not comport with the definition of a religious or charitable institution. Capital City Rescue Mission v. City of Albany, 652 N.Y.S.2d 388 (N.Y. 1997). [Zoning Law for Churches]

© Copyright 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m82 c0398

Legal Developments

Recent Developments in New York Regarding Bankruptcy

A bankruptcy court in New York ruled that a church had to turn over tithes it received from a couple during the year preceding the filing of a bankruptcy petition since the tithes represented a “fraudulent transfer” for less than “reasonably equivalent value.”

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1998-03-01

Bankruptcy

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

• Key point. A bankruptcy trustee has the legal authority to recover donations made by church members within one year prior to the filing of a bankruptcy petition. This authority does not violate the first amendment guaranty of religious freedom.

A bankruptcy court in New York ruled that a church had to turn over tithes it received from a couple during the year preceding the filing of a bankruptcy petition since the tithes represented a “fraudulent transfer” for less than “reasonably equivalent value.” A couple contributed $5,200 to their church during the year preceding the filing of a bankruptcy petition. A bankruptcy trustee later asserted that these contributions had to be returned to the bankruptcy court on the ground that they represented fraudulent transfers. Under federal law, a bankruptcy trustee can recover transfers made by a bankrupt debtor during the year prior to filing a bankruptcy petition for less than “reasonably equivalent value.” The debtors conceded that they did not receive anything of reasonably equivalent value in exchange for their tithes, but the church refused to return the tithes on the ground that applying the fraudulent transfer rules to churches would violate the first amendment guaranty of religious freedom. A court disagreed. It relied on a 1990 Supreme Court decision finding that a “neutral law of general applicability” will not violate the first amendment, even if it burdens or restricts the exercise of religion. Employment Division v. Smith, 494 U.S. 872 (1990). The court concluded that the fraudulent transfer provision of bankruptcy law “is a law of general applicability that neither prevents nor promotes religious practices, that its definitions are neutral toward religion and that its effect on tithing is purely incidental to the goal of equal distribution to an insolvent debtor’s creditors.”

The court noted that

the church’s contention is that the debtors’ religious motivation for contributing to the church places them beyond the reach of the fraudulent transfer law. But, in making this argument, the church has also implied that the court should be partial to those Christian denominations which encourage the practice of tithing. The court may take judicial notice of the fact that all of the major religions in this country, including Judaism, Islam and the many denominations of Christianity, are supported by their congregants either monetarily or in some other fashion. Accepting the church’s arguments would actually lead the court to interpret the [law] in such a way that would, in fact, violate the first amendment. First, it would require the court to determine whether a specific gift was religiously motivated or non—religiously motivated, which would impermissibly require the court to evaluate the sincerity of a debtor’s religious belief. Second, it would appear to elevate religious groups which adhere to the tenet of tithing over other religious groups. Protecting only those religious groups which encourage their congregants to tithe from the scope of the fraudulent conveyance law would necessarily exclude from the scope of that protection those religious groups which have not sought the traditional one—tenth or, in fact, any other type of religiously motivated contribution which could not technically be characterized as a tithe. Indeed, some deeply religious people are motivated to make charitable gifts to organizations other than their own church by virtue of their religious beliefs. As a result, the [law] would not only lose its neutrality but would force courts to evaluate each debtor’s personal or spiritual beliefs and actual religious practices in the context of his or her religion.

As a result, the court rejected the church’s contention that the first amendment prohibited bankruptcy trustees from treating tithes made by bankrupt debtors as fraudulent transfers. The court noted that the fraudulent transfer provision

serves a very important policy which in effect says that prior to the time a debtor files a petition, a debtor cannot give his or her assets away, whether it is to a church or to anyone else, when it is at the expense of paying creditors. This is not a burden on religion. It is a burden on choice. If individuals choose to donate part of their income to charity, whether religious or secular, they must adjust their expenditures accordingly to live within the confines of their available income …. The first amendment … mandates the separation of church and state. Consistent with this principle, the bankruptcy court must apply [the fraudulent transfer law] to all transferees, religious institutions or not. In doing so, the court adheres to the expectation that an insolvent should be “just to his creditors before he is generous to others.”

The court further noted that even if there were no bankruptcy case, the debtors’ creditors could bring their own “fraudulent conveyance” lawsuit against the church under the fraudulent conveyance provisions of the New York Debtor and Creditor Law.

Application. This case illustrates an important principle-churches may have to turn over donations made by a member within a year prior to filing a bankruptcy petition. While a federal appeals court ruled in 1996 that such a result violated the Religious Freedom Restoration Act, the Supreme Court repealed that ruling when it struck down the Act last year. There is little if any basis for challenging a demand by a bankruptcy trustee to turn over a bankrupt member’s donations. It remains to be seen how aggressive bankruptcy trustees will be in recovering donations from churches. Church leaders should be aware of this development and be prepared to respond to similar demands by bankruptcy trustees. Rivera v. Crossroads Tabernacle, 214 B.R. 101 (S.D.N.Y. 1997).

© Copyright 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m05 m08 c0298

Legal Developments

Recent Developments in New York Regarding Zoning

A federal court in New York ruled that a city did not violate the rights of neighbors by refusing to enforce a noise ordinance against a church that broadcast amplified music from its steeple.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax1998-03-01

Zoning

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

• Key point. Churches sometimes engage in activites that result in elevated noise levels for neighboring landowners. The fact that the city government chooses not to enforce a noise ordinance against the church does not necessarily violate the rights of neighbors.

A federal court in New York ruled that a city did not violate the rights of neighbors by refusing to enforce a noise ordinance against a church that broadcast amplified music from its steeple. For two weeks in 1994 a Congregational church broadcast amplified sounds and music for lengthy periods of time from speakers located in its steeple. Certain neighbors found the volume and duration of these sounds so distressful that they called the state police to advise them of the noises. The state trooper who responded to the call allegedly told the neighbors that the noises were loud enough to constitute a violation of state law. The neighbors also insisted that the church’s actions violated a village ordinance relating to “peace and good order,” which prohibits persons or organizations from ringing a bell or making other improper noises that disturb the peace, comfort, or health of the community. The city council and district attorney’s office both refused to act on the neighbors’ complaints. A court eventually directed the church to limit the amount of sounds and music which were being amplified from its steeple. The neighbors later sued the city, claiming that its refusal to enforce the law demonstrated an improper preference for the church that deprived the neighbors of their civil rights, including their constitutional right to equal protection of the law. They further maintain that the city’s actions violated the first amendment’s nonestablishment of religion clause. The neighbors demanded a money judgement to compensate them for their injuries, and insisted that the city enforce state and local law against the church and ensure that the church and its representatives were held responsible for their criminal conduct.

A state appeals court rejected the neighbors’ claims. First, it ruled that the city had not violated the neighbors’ constitutional right to the equal protection of the laws. It acknowledged that the 14th amendment guarantees that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” However, the court pointed out that an equal protection claim requires a showing of intentional discrimination, and this requires proof that “similarly situated persons” have been treated differently. The neighbors failed to present such evidence. Further, the court ruled that the city’s failure to enforce state and local law did not violate the first amendment. In particular, it noted that the neighbors failed to explain how a failure to enforce a noise ordinance amounts to state action endorsing religion. It also pointed out that a local court did impose restrictions to reduce the amount of noise coming from the church. The court concluded: “Plaintiffs have alleged that the loudness and duration of the church music was distressful to them, and the town does not deny this accusation. Indeed, although some might consider the church’s actions unneighborly or lacking in Christian forbearance, unneighborly behavior is not necessarily unconstitutional behavior. Given the facts and circumstances as plaintiffs have alleged them, there can be no argument that defendants’ actions violated plaintiffs’ constitutional rights.” Diehl v. Village of Antwerp, 964 F.Supp. 646 (N.D.N.Y. 1997). [ Nuisance]

© Copyright 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m82 m47 c0298

Legal Developments

Recent Developments in New York Regarding Employment Practices

A federal district court in New York ruled that a church agency did not violate the Family and Medical Leave Act by dismissing an employee whose investment decisions resulted in a loss of $8 million in church funds.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax1998-01-01

Employment Practices

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

• Key point. An employer that has decided to dismiss an employee does not violate the Family and Medical Leave Act by announcing its decision when the employee is away from work on medical leave.

A federal district court in New York ruled that a church agency did not violate the Family and Medical Leave Act by dismissing an employee whose investment decisions resulted in a loss of $8 million in church funds. The director of human resources of a church agency invested funds belonging to a health insurance program for retirees. When it was learned that the director’s investment decisions had resulted in a loss of $8 million, the church tried to negotiate an orderly resignation rather than terminate the director outright. In a memorandum to a church official, the director stated that “upon mutual agreement and execution of a negotiated resignation agreement, I will resign, at a time certain, for reasons of irreconcilable differences.” In the same memorandum, the director further agreed that a failure to negotiate such a termination agreement would “leave both parties with any other options or remedies they may have,” including, the church’s right to unilaterally terminate the director’s at—will employment. In the end no agreement was reached, and the director was dismissed. While efforts were underway to reach a resignation agreement, the director took medical leave. He therefore claims that his termination violated the Family and Medical Leave Act (FMLA), which makes it unlawful for covered employers to “discharge or in any other manner discriminate” against any individual for exercising rights provided by the Act. A federal district court dismissed the lawsuit. It noted that “the FMLA provides that an employee on protected leave is not entitled to any greater rights or benefits than he would be entitled to had he not taken the leave.” It further observed that it was undisputed that the church had announced its determination to terminate the director before he went on medical leave, but deferred doing so only to provide an opportunity for the parties to try to negotiate a resignation agreement. Further, the church reserved the right to terminate the director if no such agreement were negotiated. As a result, the director “was not denied any right, for none was preserved.” The FMLA “does not require employers to give returning employees any assurances of job security to which they would not have been entitled, prior to taking sick leave.” The court also observed that “FMLA is not a shield to protect employees from legitimate disciplinary action by their employers if their performance is lacking in some manner unrelated to their FMLA leave.” Carrillo v. The National Council of the Churches of Christ in the U.S.A., ___ F. Supp. ___ (S.D.N.Y. 1997). [The Civil Rights Act of 1964]

© Copyright 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m43 c0198

Legal Developments

Recent Developments in New York Regarding Sexual Harassment

A New York court ruled that a charity were liable for an executive officer’s acts of sexual harassment.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax1998-01-01

Sexual Harassment

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

• Key point. Employers can be liable for any employee’s acts of “quid pro quo” sexual harassment, and for acts of supervisory employees constituting “hostile work environment” sexual harassment.

A New York court ruled that a charity were liable for an executive officer’s acts of sexual harassment. A male executive director of a public charity engaged in repeated acts of sexual harassment against female employees. The director was the charity’s highest ranking employee. The harassment included inappropriate and demeaning communications, unwelcome sexual overtures, unwanted physical contact, and threats to fire the women (or make their jobs more unpleasant) if they did not submit to his advances. The director repeatedly begged each woman to be his “girlfriend” or “mistress,” and to marry him or sleep with him. He frequently demanded that the women attend nonwork—related lunches with him. A personnel committee was apprised of these actions, and it conducted an investigation which came to the attention of the governing board. As a result of the investigation, the director was placed on a brief leave of absence. The women later sued the director for sexual harassment. They also sued the charity and each member of the governing board.

The court concluded that the charity was liable for the director’s acts of harassment. It noted that there are two kinds of sexual harassment: (1) Quid pro quo harassment, which occurs “when unwelcome sexual conduct-whether sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature-is used … as a basis for employment decisions affecting compensation, terms, conditions, or privileges of employment.” (2) Hostile work environment harassment, which occurs “when the employer’s conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.” The court concluded that the director had committed both kinds of sexual harassment: “He promised the [women] various job benefits if they would agree to submit to his advances, and … economic injury if they refused. Moreover [his behavior] required the [women] to run a gauntlet of degrading, offensive, intimidating, and ultimately physically threatening conduct that created a hostile work environment.”

Was the charity responsible for its highest—ranking employee’s acts of sexual harassment? The court noted that under federal law an employer is “strictly liable” for quid pro quo harassment, since the harasser has the authority to alter the terms or conditions of the victims’ employment based on their response to his advances. Therefore, the charity was liable for the director’s quid pro quo harassment. On the other hand, under federal law employers are strictly liable for a hostile work environment created by a victim’s supervisor, but not by co—workers lacking supervisory authority. Since the director was the highest ranking supervisory employee, the charity was strictly liable for hostile environment harassment caused to his actions.

Application. It is worth noting that the court found the charity liable for the director’s acts in part because the board had “condoned” his actions. How did it do so? By having knowledge of the harassment coupled with its inadequate investigation, inadequate corrective action, and failure to establish a sexual harassment policy and grievance procedure. The lesson here is plain. Church leaders

should (1) be familiar with the definition of both kinds of sexual harassment; (2) adopt sexual harassment policies, including adequate grievance procedures that are effectively communicated to all employees; (3) act quickly in responding to complaints of harassment by employees; and (4) take corrective action commensurate with the severity of the acts of harassment. Of course, the assistance of an attorney will be indispensable in implementing these actions. Father Belle v. State Division of Human Rights, 642 N.Y.S.2d 739 (A.D. 1996). [ Title VII of the Civil Rights Act of 1964]

© Copyright 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m66 m86 c0198

Legal Developments

Withholding Wages to Pay Employee Debts

A court rules that other methods should be used.

Richard R. Hammar, Attorney, CPA
Bio

Hennessey v. Board of Education, 642 N.Y.S.2d 958 (1996)

Background. Here is a question that many church treasurers have asked—can a church ever withhold an additional portion of an employee's wages to collect a debt owed by the employee? This question can arise in a number of ways. Consider the following:


Example. A church provides an employee with a travel advance of $1,000. The employee's actual expenses are only $600, but he fails to return the difference to the church as required by the church's travel policy. The church treasurer would like to collect the difference through additional wage withholdings.

Example. An employee buys $200 of products from a church bookstore, but fails to pay for them. The church treasurer would like to collect the difference through additional wage withholdings.


Example. For several weeks a teacher at a church-operated preschool is accidentally paid an amount in excess of her hourly wage. The church treasurer discovers the mistake and would like to collect the overpayments through additional wage withholdings.

Unfortunately, few courts have addressed this issue.

A recent case. For several years, a school board erroneously paid a teacher an amount in excess of her stated salary. When the board discovered its error, it informed the teacher that she had been overpaid and that the full amount of the overpayments would be "recouped" through additional wage withholdings. When the school board began withholding an additional amount from the teacher's wages to cover the debt, she sued. Her lawsuit demanded that the school board immediately quit withholding any portion of her wages to cover the salary overpayments. She also insisted that the school board return all of the additional withholdings it had made. A New York court ruled that the school acted improperly by attempting to recoup the teacher's debt through additional withholdings. It ordered the school board to discontinue this practice immediately.


Key point. The court acknowledged that the school board could recover the salary overpayments by suing the teacher directly. But it could not do so through unilateral and involuntary withholdings.

What this means for churches

The lesson of this case is clear—church treasurers should never attempt to unilaterally recover an employee's debts through additional withholdings—without first obtaining legal counsel. While the employee may be legally indebted to the church, unilateral and involuntary wage withholdings may not be a legally appropriate way to recover the debt.

Legal Developments

Priest Molests Children

Court rules that diocese may be sued for negligent retention and supervision.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1997-07-01

Sexual Misconduct by Clergy and Church Workers

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

• Key Point. The first amendment guaranty of religious freedom prevents churches and denominational agencies from being sued as a result of “negligent ordination.”

• Key point. Some courts require that a lawsuit brought against a church by a victim of sexual misconduct plead specific facts demonstrating that the church knew of prior similar acts of misconduct by the perpetrator. Vague allegations of what the church “should have known” are not sufficient. Other courts have rejected this view.

• Key point. Churches that obtain a positive letter of reference on a worker may not be legally responsible for the workers misconduct on the basis of an alleged failure to investigate further.

• A New York court ruled that a Catholic diocese could not be sued on the basis of negligent hiring for a priests acts of child molestation, but it could be sued for negligent supervision and negligent retention. The offending priest was ordained in Venezuela and moved to the United States in 1983 with a letter of reference from his archbishop. He later molested at least one minor (the “victim”). The victim later sued the local diocese, claiming that it was legally responsible for the priests conduct on the basis of negligent hiring, negligent supervision, and negligent retention. A trial court dismissed all of the victims claims against the diocese, and the victim appealed. A state appeals court agreed with the trial court that the diocese could not be sued on the basis of negligent hiring, but it concluded that the diocese could be sued for negligent supervision and negligent retention. There are a number of important points to the court’s decision that are summarized below.

Pleading specific facts

The diocese claimed that a religious organization cannot be sued by an alleged victim of sexual misconduct unless the lawsuit pleads specific facts demonstrating that the organization was aware that the offender posed a risk of harm to others. The diocese insisted that vague allegations concerning what it “should have known” were insufficient. As noted in previous issues of this newsletter, some courts have reached this very conclusion. The court in this case declined to do so, noting that the state legislature had not adopted such a rule. However, the court did acknowledge that a lawsuit which contains “bare legal conclusions or factual claims which are flatly contradicted by documentary evidence should be dismissed.”

Negligent hiring

The victim claimed that the diocese “had prior knowledge or should have known that the [the priest] was a sexual deviant” and therefore it was negligent in hiring him. The victim further asserted that the diocese failed to “establish proper guidelines and procedures,” failed to “properly screen and hire applicants to the priesthood,” and failed to have the priest examined psychologically to determine his fitness for serving as a priest.

The court conceded that “ordination to the priesthood confers a religious, not legal status, and may be characterized as a quintessentially religious matter. Imposing liability for conferring that status would create serious concerns of excessive entanglement in religious affairs, in violation of the first amendment of the United States Constitution.” However, the court concluded that the question of whether liability “could ever be imposed for ordination to the priesthood” did not have to be answered in this case since the local diocese could not be legally responsible on the basis of negligent hiring for the decision by church officials in Venezuela to ordain the priest. As a result, the local diocese could not be responsible on the basis of negligent hiring for the priests acts of molestation.

A duty to investigate

The victim conceded that the diocese may not have known of the priests propensities when he arrived from Venezuela with a letter of reference, but he insisted that the diocese had a duty to investigate his background before hiring him. The court disagreed. It observed that

[t]here is no common—law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee. Since [the priest] came to the [diocese] with a letter of reference from his Archbishop, which gave the [diocese] no reason to believe there was any problem, [it] cannot be charged with negligence for failing to investigate further.

Negligent supervision and negligent retention

The victim alleged that the diocese became aware of the danger the priest posed to minors after hiring him as a result of comments both he and the priest made to other priests regarding inappropriate behavior. The court noted that if the victim or the priest made such statements to other priests, then the diocese might be legally responsible for the priests actions on the basis of negligent retention and negligent supervision.

The court insisted that imposing liability on the diocese under such circumstances “would not violate constitutional and statutory guarantees of free exercise of religion and separation of church and state.” The court conceded that other courts have concluded that the first amendment may bar victims from suing churches or clergy on the basis of conduct “finding its basis in religious beliefs and practices.” This was not the case here, however, since “there is no indication that requiring increased supervision of [the priest] or the termination of his employment by the [diocese] based upon [his] conduct would violate any religious doctrine or inhibit any religious practice.” This result is not affected by the Religious Freedom Restoration Act, which specifies that a law that “substantially burdens” the exercise of religion must further a compelling state interest to be legally permissible. The court concluded that there was evidence that the level of supervision exercised over the offending priest, or his retention by the diocese, was dictated by religious doctrine. It insisted that “religious entities have some duty to prevent injuries incurred by persons in their employ whom they have reason to believe will engage in injurious conduct.”

Application. The most important aspect of the court’s ruling was its conclusion that the diocese could not be legally responsible for the priests misconduct on the basis of negligent selection since it obtained a positive letter of reference when he was hired from a former employer. Further, the court concluded that when an employer receives a positive letter of reference on a prospective worker revealing no previous problems, it has no duty to investigate further. While not every court will agree with these conclusions, they can be cited in defending against a claim of negligent hiring. Finally, note that while the diocese could not be guilty of negligent hiring since it relied on the reference letter from the priests former bishop, the court concluded that the diocese could be liable for the priests misconduct on the basis of negligent retention and negligent supervision if it became aware of allegations of misconduct after he was hired but did nothing to respond to them. Kenneth R. v. Roman Catholic Diocese, 1997 WL 97185 (N.Y.A.D. 1997). [Seduction of Counselees and Church Members, Negligence as a Basis for Liability, Denominational Liability]

© Copyright 1997, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m67 m43 m40 c0497

Legal Developments

Student Molested in School Bathroom

School found liable on the basis of negligence.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1997-03-01

Sexual Misconduct by Clergy and Church Workers

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

• Key point. Churches may be liable on the basis of negligent supervision for acts of child molestation occurring in restrooms.

A New York court found a school liable on the basis of negligence for the molestation of a kindergarten student in a school restroom. The court’s ruling will be relevant to churches and church—operated schools. The student was permitted to go to the bathroom alone, where he was molested by an older student at the school. The child’s parents sued the school, and a jury found that the child’s kindergarten teacher had been negligent in allowing the child to go to the bathroom unaccompanied. The child was awarded $500,000 in damages. The school appealed, and state appeals court upheld the finding of negligence. The court began its opinion by noting that “[w]hile we recognize the general rule that educational institutions are not the insurers of the safety of their students and cannot be held liable for every instance in which one pupil injures another, schools are, however, under a duty to adequately supervise their students and are liable for foreseeable injuries which are [directly] caused by the absence of such supervision.” The court noted that this duty “derives from the fact that the school, once it takes over physical custody and control of the children, effectively takes the place of their parents and guardians.”

The court noted that in this case the child was sent from his classroom (while class was in session) to the school bathroom, alone and unsupervised, where the assault occurred. Further, “[t]his was done despite two separate school memoranda, circulated amongst the school’s staff, which are explicitly provided security procedures to the contrary.” The first memoranda stated that “teachers are instructed to send all pupils under third grade to the bathroom with a partner.” The second memorandum stated that “to further insure security any child leaving your room or corridor area must have a pass. Young children should go in pairs.” A school principal testified that the reason for these rules is to make young children more secure from attack by older students. She also stated that she considered the bathroom to be a place where young children “are particularly vulnerable.”

The court concluded that the school “did not act with ordinary prudence in allowing the five—year old plaintiff to proceed to the bathroom alone.” The school insisted that it could not have been negligent since it was not aware of any previous acts of molestation occurring in its bathroom. The court disagreed. It acknowledged that schools generally must have notice of prior similar misconduct to be liable for assaults upon older students, since school personnel “cannot reasonably be expected to guard against all of the sudden, spontaneous acts that take place among students daily.” However, in the case of a young child who is sent by his teacher to a public bathroom unescorted, the potential danger to the child “can be reasonably foreseen and could have been prevented by adequate supervision of the school.” As a result, “while it would be reasonable to allow high school students to go to a public bathroom unaccompanied, the same practice surely does not apply to a five—year old child, who is unable to resist, is defenseless against attack, and poses an easy target for sexual molestation or other assaults. Stated another way, even the most prudent parent will not guard his or her teen at every moment in the absence of some foreseeable danger of which he or she has notice; but a five— year old child in a public bathroom should be supervised or, at the very least, be accompanied by another child.”

What is the relevance of this case to churches and church schools? Consider the following: First, it illustrates the risk that churches and schools face when sending young children to the restroom unescorted. The court suggested that sending young children to the restroom in pairs will reduce the risk of negligence. Second, the court placed great emphasis on the fact that the school had adopted policies prohibiting young children from going to the restroom unescorted. This demonstrates the importance of adhering to policies-especially when violation of a policy may lead to personal injury. Third, the court acknowledged that schools (and presumably churches) cannot be responsible for the safety of older children at every moment, and that sending adolescents to a restroom unescorted will not constitute negligence absent knowledge of prior assaults occurring in the restroom. Fourth, churches and schools can be liable on the basis of negligence for the molestation of young children who are sent to a restroom unescorted, even if there is no knowledge of prior assaults occurring in the restroom, since “where the duty to supervise is mandatory, notice is not an issue.” Garcia v. City of New York, 646 N.Y.S.2d 508 (A.D. 1996). [ Negligent Supervision]

© Copyright 1997, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m67 m65 m10 c0297

Legal Developments

12-Year-Old Raped After Leaving School Outing

Court rules that the school is not liable.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1997-03-01

Sexual Misconduct by Clergy and Church Workers

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

• Key point. Churches that fail to adequately monitor or supervise children’s activities may be legally responsible for resulting injuries on the basis of negligent supervision. However, they may be excused from liability for injuries occurring as a result of unforeseeable criminal activity.

A New York court found a school not liable on the basis of negligent supervision for the rape of a 12—year—old girl that occurred when she left a school outing without permission. The victim and her class of 30 students were attending a school outing at a public park. She left the group to have lunch at a nearby pizza restaurant. Upon returning to the park, she discovered that her class had left. Instead of returning to school, she walked home. While walking home she was abducted and raped by two adolescent males. The victim sued the school, claiming that her injuries were caused by its negligent supervision of the class outing. A jury found the school negligent, and awarded the victim $3 million in damages. The verdict was based in part on the testimony of an expert in school safety that the school had departed from “safe and common practices.” In particular, he noted the following: (1) there should have been at least one more adult supervising the group of 30 elementary—age children (only two adults were present during the outing); (2) students were not “paired off” as buddies; (3) arrangements were not made to have the class meet together at least once each hour while at the park; (4) students were not told that they could not leave the park alone; and (5) students were not told that they would only be dismissed from the outing after they returned to school. The safety expert also testified that the teacher in charge of the outing should have taken several steps immediately upon discovering that a child was missing. These included: (1) notifying the school immediately to seek guidance from his superiors; (2) notifying the park police; (3) asking another teacher to take the children back to school so he could continue the search for the missing child; (4) remaining in the park until shortly before dismissal time, to give the victim more time to return; and (5) notifying school officials upon his return that the victim was still missing.

The school appealed, and a state appeals court reversed the jury verdict and ruled that the school was not responsible for the victim’s injuries. It concluded that even if the school had negligently supervised the outing it could not be responsible for the victim’s injuries since “the unforeseeable conduct of [the two rapists] constituted a superseding tortious act that absolved the [school] of any culpability for [the victim’s] injuries.” In other words, if an organization is negligent in supervising a children’s activity, its negligence may not be a basis for liability if a child is injured as a result of an unforeseeable criminal act. The criminal act is a “superseding, intervening cause” of the victim’s injuries and absolves the organization of liability even though it may have been negligent. Bell v. Board of Education, 646 N.Y.S.2d 499 (A.D. 1996). [ Negligent Supervision]

© Copyright 1997, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m65 m10 c0297

Posted:

Legal Developments

Mandatory Reporters of Child Abuse

Court rules that teacher may be sued for failing to report abuse.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1997-03-01

Sexual Misconduct by Clergy and Church Workers

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

• Key point. In some states ministers are mandatory reporters of child abuse, but they are not required to report known or reasonably suspected incidents of abuse that they learn of in the course of a privileged conversation.

The California legislature has enacted a statute making clergy mandatory child abuse reporters. However, ministers who learn of abuse in the course of a conversation protected by the clergy—penitent privilege are not required to report. The law took effect January 1, 1997. Here are the relevant provisions (all of which appear in the California Penal Code):

§ 11166. Report; duty; time

(c)(1) Except as provided in paragraph (2) and subdivision (d), any clergy member who has knowledge of or observes a child, in his or her professional capacity or within the scope of his or her duties, whom he or she knows or reasonably suspects has been the victim of child abuse, shall report the known or suspected instance of child abuse to a child protective agency immediately or as soon as practically possible by telephone and shall prepare and send a written report thereof within 36 hours of receiving the information concerning the incident. A child protective agency shall be notified and a report shall be prepared and sent even if the child has expired, regardless of whether or not the possible abuse was a factor contributing to the death.

(2) A clergy member who acquires knowledge or reasonable suspicion of child abuse during a penitential communication is not subject to paragraph (1). For the purposes of this subdivision, “penitential communication” means a communication, intended to be in confidence, including, but not limited to, a sacramental confession, made to a clergy member who, in the course of the discipline or practice of his or her church, denomination, or organization, is authorized or accustomed to hear those communications, and under the discipline, tenets, customs, or practices of his or her church, denomination, or organization, has a duty to keep those communications secret.

(3) Nothing in this subdivision shall be construed to modify or limit a clergy member’s duty to report known or suspected child abuse when he or she is acting in the capacity of a child care custodian, health practitioner, employee of a child protective agency, child visitation monitor, firefighter, animal control officer, humane society officer, or commercial film print processor.

(d) Any member of the clergy who has knowledge of or who reasonably suspects that mental suffering has been inflicted upon a child or that his or her emotional well—being is endangered in any other way may report the known or suspected instance of child abuse to a child protective agency.

There are a number of points to note about the new California legislation: First, ministers are mandatory reporters of child abuse. They now may face criminal liability for not reporting abuse to civil authorities. While they are free to handle such matters internally as a matter of church discipline, they must not do so in lieu of making a report to civil authorities. Second, ministers are mandatory reporters only with respect to incidents of abuse they learn of or observe in the course of their professional capacity or within the scope of their duties. Third, ministers who “acquire knowledge or reasonable suspicion of child abuse during a penitential communication” are not subject to the mandatory reporting requirements. The statute provides a definition of the critical term “penitential communication.” Fourth, the statute defines the term “clergy member” to include “a priest, minister, rabbi, religious practitioner, or similar functionary of a church, temple, or recognized religious denomination or organization.” Fifth, the statute provides immunity from liability for ministers and other persons who report abuse. This means that they cannot be assessed civil damages for making a report, even if it later proves to be false, so long as they did not act maliciously. The statute provides for the payment of attorneys fees of up to $50,000 to defend persons who are sued for making a report under the statute. [Failure to Report Child Abuse]

© Copyright 1997, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m10 c0297

Legal Developments

Church Use of Public School Auditoriums

Court rules that schools must be consistent in allowing religious groups to use their property.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1997-03-01

Freedom of Religion

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

• Key point. A public school that makes it auditorium available to community groups, including at least one religious group, cannot deny access to another religious group.

A federal court in New York ruled that a church could not be denied use of public school property that was made available to other community groups including at least one other religious organization. A Methodist church asked permission to conduct a magic show on public school property. The church’s application to the school indicated that the show would to be performed by a Christian illusionist, and would include a religious service. The school board denied this request on the basis of a state law banning use of public school property by religious organizations for religious purposes. The church sued the school board, claiming that its actions violated the constitutional guarantees of speech and religion. The church acknowledged that state law banned the use of public school property for religious purposes, but it noted that the school board had permitted a Pentecostal church to conduct a “Holy Ghost filled concert” on the same public school property that included singing, a sermon by a pastor, and an “altar call.” The court concluded that the school board’s denial of the church’s application to use the school property violated the constitutional guaranty of free speech. The court noted that the guaranty of free speech does not guarantee “unlimited access to government—owned property for purposes of expression” and that “depending on the nature of the property, the government may regulate access.” The court noted that speech may occur in four different kinds of “fora,” and that the government’s right to regulate speech differs depending on the forum involved. The application of the first amendment to the four fora are summarized below:

1. Public forum . A tradition public forum includes streets and parks “which have immemorially been held in trust for the use of the public, and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” For the government to regulate or restrict speech in such a place “it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.”

2. Designated public forum. A “designated public forum” is government—owned property that has been opened to the public for “expressive activity.” Examples include university meeting facilities and municipal theaters. The court noted that the government is not forever bound to maintain the open character of the property, but so long as it does so it cannot regulate or limit free speech without a compelling state interest that is narrowly drawn to achieve that end.

3. Limited public forum. The court noted that this category is actually a variation of the designated public forum, and noted that it is created when government “opens a nonpublic forum but limits the expressive activity to certain kinds of speakers or to the discussion of certain subjects.” The idea here is a designated public forum that has been created for a specific purpose-such as use by certain groups or the discussion of certain issues. The test to be applied to government attempts to regulate speech in such a forum is the same that applies to public fora the limitation must be necessary to serve a compelling state interest and must be narrowly drawn to achieve that end. The court emphasized that “in a limited public forum, government is free to impose a blanket exclusion on certain types of speech, but once it allows expressive activities of a certain genre, it may not selectively deny access for other activities of that genre.”

4. Non—public fora. This category of forum includes public property that is not by tradition or designation a forum for public communication. Examples include prisons or school mail boxes. The government can regulate speech in such places as long as the regulation “is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.”

The school board claimed that state law had created a limited public forum that was available only to nonreligious groups. The court concluded that even if the school board had created a limited open forum, religious services were a permitted use since the board had previously allowed a church choir to use school property for a concert and religious service. As a result, it could not deny access by any group wanting to use the property for religious purposes.

The court rejected the school board’s argument that allowing the church to use school property for a religious service would violate the first amendment’s nonestablishment of religion clause. It observed: “[The performance] would not have occurred during school hours, would not have been sponsored by the school, and would have been open to the public, not just to church members. In addition, the school facilities have repeatedly been used by a variety of private organizations. [The Supreme Court has ruled] that where a forum is available to a broad class of speakers, allowing religious speech does not confer any imprimatur of state approval on religious sects or practices.”

The court concluded that “[t]he gospel concert occurred and it created at least a limited public forum for entertainment events including prayer, religious instruction, music and religious testimony. This means that the school board cannot selectively deny access for activities of the same genre ….” Trinity United Methodist Parish v, Board of Education, 907 F. Supp. 707 (S.D.N.Y. 1995). [Use of Public Property for Religious Purposes]

© Copyright 1997, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m47 m88 c0297

Legal Developments

NY Church Property Law Legal

Court validates law requiring notice about sale, mortgage, or lease of church property.

Richard R. Hammar, Attorney, CPA
Bio

Key point. A New York law requiring certain churches to notify the state attorney general prior to the sale, mortgage, or lease of their property is not unconstitutional.

A New York court upheld the validity of a state law imposing requirements on the sale, mortgage, or lease of church property .

New York law specifies that "a religious corporation shall not sell, mortgage or lease for a term exceeding five years any of its real property without applying for and obtaining leave of the court …." New York law also requires several "congregational" (and some hierarchical) churches to notify the state attorney general prior to the sale, mortgage, or lease of their property.

A hierarchical church obtained court approval of the sale of some of its property in 1987, although it failed to comply with the requirement that it notify the state attorney general of its intent to sell its property. The church later modified its sales contract on two occasions, but did not seek court approval in either case on the basis of its assumption that such approval was not necessary. A member of the church later challenged the validity of these actions on the ground that they violated the provisions summarized above. The church argued that court approval is not required unless the property sold by a church will be used for religious purposes, that it was not required to obtain court approval of a modification of a sales contract, and that the state law provision requiring notice to the attorney general prior to the sale, mortgage or lease of church property was unconstitutional.

A state court disagreed. First, it refused to limit the state law provisions to sales of church property in which the property would continue to be used for religious purposes. The court noted that had the legislature intended for the statute to be so construed it could easily have said so. Second, the court concluded that the state law provisions applied to the modification of real estate contracts since a modification is actually "a new agreement between the parties." Finally, the court rejected the church's claim that the state law provision requiring notice to the attorney general prior to the sale, mortgage or lease of church property was unconstitutional. The church argued that this requirement not only violated the first amendment's ban on the establishment of religion but also violated the first amendment's guaranty of religious freedom by involving the government in the internal decisions of churches.

In rejecting the church's "establishment clause" argument, the court applied the United States Supreme Court's three—part Lemon test for determining whether or not the New York law constituted an impermissible establishment of religion. Under this test, first announced in a 1971 decision (Lemon v. Kurtzman), a law or government practice challenged as an establishment of religion will be valid only if it satisfies the following three conditions—a secular purpose, a primary effect that neither advances nor inhibits religion, and no excessive entanglement between church and state.

The court concluded that all of these tests were met. First, the New York law had a secular purpose—"to insure that such [sales are] in the best interest of the corporation and its members and that the proceeds are properly disbursed." The court noted that the New York law was prompted by "several instances of questionable practices resulting in lawsuits to enjoin and set aside transfers of religious property within congregational—type religious churches." Second, the notice requirement did "nothing to convey any message whatsoever that could be construed to advance or inhibit any religion or religious belief." Third, the notice requirement did not result in an excessive entanglement between church and state since it was a mere "routine regulatory interaction" involving "no inquiries into religious doctrine … no detailed monitoring and close administrative contact between secular and religious bodies."

The church argued that the first amendment's ban on the establishment of religion has been interpreted by the Supreme Court to prohibit any law that discriminates among religious groups. It claimed that this was precisely what the New York notice requirement did by applying only to congregational churches and some hierarchical churches. The church pointed out that it was hierarchical in structure, but was not specifically exempted from the notice requirement while many other hierarchical churches were.

The court acknowledged that the New York law discriminated among religions by only requiring "congregational" churches, and some hierarchical churches, to notify the attorney general while exempting most hierarchical churches. However, it concluded that this discriminatory treatment did not violate the establishment clause since it was based on a compelling government interest ("protecting members of religious corporations by safeguarding the potentially substantial proceeds from sales of property, and ensuring that the proceeds are properly disbursed").

The court noted that the hierarchical churches that are exempted from the notice requirement are required to obtain the consent of their top executive officer before seeking court approval. It concluded that the notice requirement applied to those churches, whether congregational or hierarchical, whose structure "does not assure that its members have an opportunity to review the sale of real property." This conclusion is questionable and vulnerable to reversal on appeal, for the court was attempting (without a shred of supporting evidence) to distinguish between churches on the basis of whether their membership has an opportunity to review property transactions.

Finally, the court concluded that the notice requirement did not violate the first amendment guaranty of religious freedom. It noted that a violation of this guaranty requires proof that a law or government practice "burdens the adherent's practice of his or her religion by pressuring him or her to commit an act forbidden by the religion or by preventing him or her from engaging in conduct or having a religious experience which faith mandates." Such was not the case here, the court concluded. It further noted that "any inquiry by the attorney general involves only the terms of a real estate transaction; it involves no inquiry into religious beliefs nor does it involve the regulation or prohibition of conduct undertaken for religious reasons." Greek Orthodox Archdiocese v. Abrams, 618 N.Y.S.2d 504 (Sup. 1994).

Legal Developments

False Accusations of Child Abuse Are Subject to Legal Recourse

New York case could be subject to charges of “gross negligence” despite other immunity laws, court says.

Richard R. Hammar, Attorney, CPA
Bio

S. v. Child & Adolescent Treatment Services, 614 N.Y.S.2d 661 (Sup, 1994)

Key point: Professional counselors who wrongfully accuse a person of child abuse may be subject to legal liability for doing so.

A New York court ruled that a grandmother could sue a professional counselor who falsely accused her of child abuse. Hundreds of thousands of adults are accused each year of child abuse.

Tragically, many of these allegations are true. But some of them are false, and the effects of a false accusation can be devastating. A New York court recently addressed the question of whether a professional counselor who falsely accuses an adult of child abuse can be sued on the basis of negligence for doing so.

A 5-year-old girl complained to her mother that her grandmother had sexually molested her during a recent visit to her home. The mother immediately had her daughter examined, but no physical evidence of abuse was observed. The mother took her daughter to a professional counselor for about two years. The counselor informed various persons that the girl "disclosed to me being sexually abused by her paternal grandmother" and that "I have no reason to doubt [her] disclosure of sexual abuse."

The counselor then informed an attorney representing the girl's mother that there should be no contact between the girl and her grandmother until the grandmother "can take responsibility for the injury [the girl] experienced, and demonstrates restitutive behavior." The counselor informed the girl's court-appointed guardian that she felt that the girl had been molested, and recommended that the grandmother only be permitted to visit the girl in the presence of other adults "until such time as she exhibits some responsibility for her actions and obtains some counseling for whatever emotional problems she may have."

The grandmother later sued the counselor, claiming that the counselor "negligently, carelessly and recklessly reached the false conclusion that the [grandmother] has sexually abused [her granddaughter] and thereafter negligently, carelessly and recklessly informed others of that conclusion." A trial court dismissed the lawsuit, and the grandmother appealed. A state appeals court ruled that the case should not have been dismissed and allowed the grandmother to pursue her lawsuit in court.

The court acknowledged that "[t]he best intentioned efforts towards determining whether sexual abuse has occurred and protecting children from it has not been without unfortunate downside effects. In recent years, much progress has been made in exposing the plight of abused and neglected children and providing them with needed protection and treatment. However, during these good faith efforts to protect children, many innocent parents have suffered." The court continued:

Particularly where the claim of abuse arises in connection with other, highly-charged disputes (such as divorce or custody and visitation proceedings), the determination that sexual abuse occurred is fraught with added dangers. More and more allegations of incest and child sexual abuse by husbands are being made by their wives during custody disputes. If the allegations are proven, the perpetrator, usually the husband/father, is excluded from contact with his children …. Child psychiatrists are frequently used by both sides to evaluate the child and make a determination about the authenticity of the charges …. A mistake might jeopardize a child's future or destroy a man's family life and career ….

Given the foregoing, it should be readily apparent that when a professional becomes involved in a case where child sexual abuse is suspected, care must be taken in investigating and evaluating such a claim and in reaching the conclusion that such abuse did take place. Where the professional is involved in a therapeutic relationship with the child, it requires little imagination to see the harm that might result from a negligently and erroneously formed conclusion that sexual abuse had occurred, with subsequent treatment based on that "misdiagnosis". In such a situation there would be no dispute that a cause of action for malpractice (or ordinary negligence) would exist on the child's behalf against the professional …. A suspected abuser surely has the right to a reasonable expectation that such a determination, touching him or her as profoundly as it will, will be carefully made and will not be reached in a negligent manner …. [B]eing labeled a child abuser [is] one of the most loathsome labels in society ….

Thus, I conclude that, where the determination of sexual abuse is made by a professional treating a child, with subsequent actions taken based upon that determination and aimed, whether in whole or in part, at shaping not only the conduct and well-being of the child but also the conduct of the suspected abuser, or the relationship between them, a duty of care is owed not only to the child but also to the alleged abuser.

The court acknowledged that state law grants limited immunity to those who file charges of child abuse, but it noted that this protection did not apply to acts of "gross negligence." It noted that "it is at least arguable that a finding of gross negligence could result in this case which would undermine the requirement for immunity …." .

See Also: Clergy Malpractice | Failure to Report Child Abuse

Legal Developments

No Case for Clergy Malpractice

Churches also not generally held responsible on basis of respondeat superior.

Richard R. Hammar, Attorney, CPA
Bio

Key point: Most courts have ruled that clergy and churches cannot be sued for "clergy malpractice."

Key point: 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 church and diocese could not be sued on the basis of "malpractice" or "respondeat superior" for the alleged sexual misconduct of a priest.

The priest allegedly molested a minor pupil at a church-operated secondary school. A trial court dismissed the case, and the child and his parents appealed. A state appellate court affirmed the trial court's decision in favor of the church and diocese. In rejecting the malpractice claim, the court observed that malpractice is based on negligent rather than intentional behavior, and that the sexual assault alleged in this case was an intentional act. The court also pointed out that "we are unaware of any authority supporting the proposition that sexual abuse by a member of the clergy is cognizable as clergy malpractice." The court referred to the Nally case, see Clergy Malpractice below.

The court also rejected the parents' allegation that the church and diocese were liable on the basis of respondeat superior. Under the respondeat superior doctrine employers can be liable for the acts of their employees committed within the course of their employment. The court observed simply that "the alleged sexual assault was not within the scope of employment and cannot be said to have been in furtherance of the employer's business." Joshua S. v. Casey, 615 N.Y.S.2d 200 (A.D. 4 Dept. 1994).

See Also: Clergy Malpractice | Cases Finding Denominations Not Liable

Posted:

Legal Developments

Confidential Communications with More than One Person

Clergy-penitent privilege may be revoked if information has been shared with others.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1995-01-01 Recent Developments

Confidential and Privileged Communications

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

• Key point: The clergy-penitent privilege may be “waived” when a counselee shares the same information with another person.

• A New York court ruled that a murderer did not “waive” the clergy-penitent privilege when he disclosed to police a confession he had made to two ministers. A drug dealer murdered his girlfriend in New York, and then took a bus to Miami. A clerk at the bus station in Miami noticed that the murderer was “in deep need” and asked him to come over to the ticket counter. The clerk spoke with the murderer and repeatedly assured him that God loved him. The murderer related to the clerk that he had grown up in the church and had become involved in drugs after leaving the church. He also admitted that he had killed someone. The clerk called his pastor, and a few minutes later the pastor, along with another pastor (a former police detective), arrived at the station. The ministers took the murderer to a church service, and following the service they spoke with him further. The murderer confessed to the ministers that he had murdered a woman in New York, and the ministers urged him to turn himself in to the police. The murderer later contacted the police and confessed to the killing. At the murder trial, the court concluded that the statements the murderer made to the ministers were covered by the clergy-penitent privilege. But, the court also ruled that the murderer had “waived” the privilege by telling the police the same thing he had told the ministers. As a result, the court let the ministers testify regarding the murderer’s confession. The murderer was convicted, and he appealed his conviction in part because the trial court had permitted the ministers to disclose his confession.

The New York Court of Appeals (the highest state court in New York) agreed with the trial court that the statements made by the murderer to the two ministers were protected by the clergy-penitent privilege from disclosure in court, and it reversed the trial court’s ruling that the murderer had waived the privilege. The New York clergy-penitent privilege states: “Unless the person confessing or confiding waives the privilege, a clergyman … shall not be allowed to disclose a confession or confidence made to him in his professional character as a spiritual advisor.” The court noted that the privilege protects clergy and counselees from being forced to testify in court regarding communications made in confidence in the course of spiritual counseling. The court noted that the purpose of the privilege was to recognize “the urgent need of people to confide in, without fear of reprisal, those entrusted with the pressing task of offering spiritual guidance.” The court acknowledged that “not every communication between a cleric and a congregant will justify application of the privilege,” and that “the privilege may not be invoked to enshroud conversations with wholly secular purposes solely because one of the parties to the conversation happened to be a religious minister.” However, the court concluded that the murderer’s confession to the two ministers in this case was privileged since his contact with the ministers “had been initiated for the purpose of obtaining spiritual guidance and solace” and he “had bared his soul only after attending a church service” and “discussing his standing under religious laws with the two ministers.”

The court ruled that the murderer had not waived the privilege by repeating to the police the same confession he had made to the ministers. However, it based this ruling on a legal technicality. When the murderer made his confession to the police he was speaking without the benefit of legal counsel and accordingly his comments to the police were not admissible in court under the so-called “exclusionary rule”. The court concluded that the prosecutor could not avoid this rule by allowing the ministers to testify regarding the same confession, since “any waiver defendant may have made would be inconsistent with the principles and purposes underlying the exclusionary rule.” In summary, were it not for the improper questioning of the murderer without the presence of an attorney, the court likely would have agreed with the trial court that the murderer “waived” the privilege by disclosing to the police the same information he had disclosed to the ministers. People v. Carmona, 606 N.Y.S.2d 879 (Ct. App. 1993).

See Also: Waiver of the Privilege

© Copyright 1995, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m33 c0195

Legal Developments

Schools’ Liability for Teachers’ Sexual Misconduct

What responsibility does an employer have for an employee’s acts?

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1994-11-01 Recent Developments

Sexual Misconduct by Clergy and Church Workers

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

• Key point: A church will not necessarily be responsible for every incident of sexual molestation that occurs on church premises, even behind locked doors. The church must be shown to have been negligent.

• A New York state court ruled that a public school district was not legally responsible for a teacher’s acts of sexual misconduct. The superintendent of a public school system received a telephone call from a person identifying herself as a former student. She alleged that a male teacher (whom she identified) had engaged in inappropriate sexual contact with two female high school students. The superintendent immediately met with the teacher who denied the accusations. A short time later one of the alleged victims informed her father who called the police. This led to the teacher’s arrest and conviction for the crime of endangering the welfare of a child. He was sentenced to prison. The father sued the school district arguing that it was responsible for his daughter’s injuries on the basis of the doctrine of “respondeat superior” (an employer is responsible for acts of its employees committed within the scope of their employment) and negligence. A trial court dismissed the case and the father appealed. A state appeals court upheld the dismissal of the case against the school district. With regard to liability based on respondeat superior, the court observed:

A school district, like any other employer, may be held vicariously liable under the doctrine of respondeat superior for a tort committed by an employee in the course of the performance of the employee’s duties …. Here it is undisputed that on several occasions … the teacher molested [the victim] who was then a junior in the district’s high school. Although these acts occurred on school property during school hours, they were clearly outside the scope of the teacher’s employment as they were wholly personal in nature and certainly not done in the furtherance of the district’s business. Therefore we conclude that, as a matter of law, the doctrine of respondeat superior is inapplicable to this case.

The court also rejected the father’s claim that his daughter’s injuries were caused by the school district’s negligence. Specifically, the father alleged that the district was guilty of negligent supervision. The court rejected this theory of liability as well, noting that:

It is well established that a school district has the duty to exercise the same degree of care and supervision over the pupils under its control as a reasonably prudent parent would exercise under the same circumstances. The standard for determining whether this duty was breached is whether a parent of ordinary prudence placed in the identical situation and armed with the same information would invariably have provided greater supervision.

[The father] maintains that the district breached this duty by permitting the teacher to meet with the student behind locked doors. We disagree. The harm posed by the teacher’s proclivities to engage in inappropriate sexual conduct with students was not known or foreseeable at the time these incidents happened. Without such knowledge, there would have been no reason for a parent of ordinary prudence to prevent his or her child from meeting privately with the teacher during school hours, given the degree of trust reposed in teachers and the fact that such meetings are an integral part of the educational process.

This case will be a useful precedent for churches that are accused of responsibility for the sexual molestation of minors on church premises on the basis of negligent supervision or respondeat superior. Mary KK v. Jack LL, 611 N.Y.S.2d 347 (A.D. 3 Dept. 1994). [PCL12A1, PCL12A3]

See Also: Vicarious Liability | Negligent Supervision

© Copyright 1994, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m67 m86 c0694

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