Previous Criminal Acts

What is their relevance in employment decisions?

Richard R. Hammar, Attorney, CPA

Bio

State: New York

Church Law and Tax1994-11-01Recent Developments

Sexual Misconduct by Clergy and Church Workers

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

• Key point: A prospective worker’s previous criminal act may have occurred so long ago that it no longer is relevant in evaluating whether or not to use the worker.

• In a significant ruling, a New York appeals court ruled that a landlord was not liable for the sexual molestation of a minor by a caretaker that the landlord had hired. In 1955, a man pleaded guilty to manslaughter and served a 5-year prison sentence. In 1964 he was hired as a caretaker by the owner of an apartment building. In 1967 a woman moved into the apartment building and soon became friends with the caretaker. In 1974 the woman gave birth to a girl. The caretaker served as the girl’s godfather, and as the child grew he became a frequent presence in her life. The child’s mother often left her daughter unattended with the caretaker. In 1987 it was discovered that the caretaker had been sexually molesting the girl for at least the last 5 years. The mother and daughter sued the landlord, claiming that he had been negligent in hiring a caretaker with a criminal record. A trial court rejected the landlord’s motion to dismiss the case, and the landlord appealed. A state appeals court concluded that the case should be dismissed. It began its opinion by observing that a state law makes it the policy of New York to “encourage the licensure and employment of persons previously convicted of one or more criminal offenses.” Specifically, the state law prohibits employers from discriminating against persons on the basis of a prior criminal conviction unless there is a direct relationship between the prior criminal conviction and the employment sought, or employment of the individual would involve an “unreasonable risk” to the property or safety of others. The court concluded:

If in this case we were to allow that [the caretaker’s] conviction for manslaughter in 1955 could lawfully have stood as a bar to his employment as a [caretaker] in 1964, then we would be determining that [he] could have been denied any employment for the more than 20 years that he worked for [the landlord] until he was arrested for molesting [the girl]. If we were to affirm the [trial court’s refusal to dismiss the lawsuit] we would be holding that the [landlord’s] employment of [the caretaker] could be found by a jury to constitute negligence that was the proximate cause of foreseeable injuries sustained by [the child]. Such a precedent would effectively compel any employer to deny employment to anyone who was ever convicted of a violent crime, contrary to the public policy stated in [state law] since the employer would upon such hiring face potentially catastrophic liability for any crime committed by that employee which was even minimally connected to the place of his employment.

The court also noted that the caretaker’s employment had nothing to do with the acts of molestation, and that his conviction for manslaughter some 20 years ago did not necessarily make him a danger to children. It observed:

[The caretaker’s] assaults upon the [child] had nothing to do with his employment as a [caretaker]. Rather it was the circumstance that [the caretaker] resided in the building that provided the setting for his friendship with [the mother] which in turn led to his becoming [the girl’s] godfather and her being permitted to visit him, unattended, in his apartment. Thus [the caretaker] could just as easily have committed his assaults upon [the girl] if he had been a rent paying tenant instead of living there as an adjunct to his employment as a [caretaker]. If the [landlord] could be held liable for negligent hiring under these circumstances, then any landlord who rented an apartment to an ex-offender could arguably be held responsible for the tenant’s crimes against his co-tenants on a theory of “negligent renting.” Thereafter landlords could only protect themselves from liability by refusing to lease living space to ex-convicts, who would then be rendered both unemployable and homeless.

Imposing liability upon an employer under the circumstances presented herein would have an unacceptably chilling effect on society’s efforts to reintegrate ex-offenders into mainstream society, contrary to precedent and the explicitly stated public policy of this state.

The most significant aspect of the court’s ruling was its conclusion that an employer is not necessarily guilty of negligence for hiring a worker with a 20-year-old criminal conviction for manslaughter who later molests a child on the employer’s premises. This case will be relevant to churches that are sued on the basis of negligence for hiring persons with criminal convictions in the distant past. Note, however, the following factors upon which the court based its decision: (1) a state law made it illegal for employers to discriminate against persons with criminal records; (2) the acts of molestation did not occur in the course of the caretaker’s employment; (3) imposing liability on employers in such cases would render persons with criminal records “unemployable and homeless”; and (4) the caretaker’s criminal conviction for manslaughter occurred some 30 years before the acts of molestation, and 20 years before he was hired by the apartment owner.

This case suggests that it may not be negligent to hire persons with remote criminal records in some cases. The time interval in this case was nearly 30 years. There are three points to emphasize here. First, very few courts have addressed the issue of the relevance of old criminal convictions in evaluating the suitability of workers. Other courts may not reach the same result as this court. Accordingly, this case should not be relied upon without the advice of legal counsel. Second, this case will be very useful in defending against a lawsuit that seeks to hold a church liable for the sexual misconduct of a worker with an old criminal conviction. Third, medical authorities generally have concluded that pedophilia is an incurable condition that at best can be controlled under very limited circumstances. Pedophilia refers to sexual contact with (or orientation toward) pre-adolescent minors. If pedophilia is incurable, then the number of years that have passed since a prospective worker was convicted of a crime involving inappropriate contact with a pre-adolescent minor is not relevant. It does matter that the conviction occurred 20 or even 40 years ago. If the conviction was based on pedophilic behavior, and pedophilia is incurable, then a church should never give such a person a “second chance” and place him or her in a position involving contact with minors.

In conclusion, this case will be helpful in the defense of churches that are sued for the acts of child molestation by youth workers. However, as noted above, it should not be relied upon by any church without the advice of legal counsel. Ford v. Gildin, 613 N.Y.S.2d 139 (A.D. 1 Dept. 1994). [PCL12A2, PCL12A3]

© Copyright 1994, 1997 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. m67 m86 c0694

Legal Developments

Release Forms for Contractors

Courts are often reluctant to enforce releases.

Richard R. Hammar, Attorney, CPA

Bio

State: New York
Categories: Insurance

Church Law and Tax 1994-07-01 Recent Developments

Releases from Liability

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

• Key point: A release form that attempts to relieve a church from liability for personal injuries will be strictly construed against the church and will not be enforceable against persons not specifically released by the agreement.

• A New York appeals court ruled that a church could not avoid liability for personal injuries suffered by a construction worker on church premises on the basis of a release form that did not specifically release the worker. A church hired a contractor to repair its bell tower and spire, and had the contractor sign an agreement that contained the following “hold harmless” agreement:

The contractor agrees that he undertakes all repairs and renovations as detailed in the proposal at his how risk and he agrees to indemnify and save the church and all it’s [sic] members and officers for damage to property or injury to, or the death of any person, including employees, of any actions arising out of the acts of the contractor and at his own cost and expense, defend any action brought against either the contractor or the church; and promptly pay any adverse judgment in any such action, and hold the church and its members and officers harmless from and against any loss or damage and expense claimed by the church and its members and officers by reason of such claim.

The contractor hired a worker who was seriously injured when he fell nearly 30 feet when the scaffolding on which he was working collapsed. The worker sued the church, and the church defended itself by citing the “hold harmless” agreement quoted above. A court ruled that the church could not escape liability on this basis. It noted that New York law imposes absolute liability upon owners and contractors for a failure to furnish and erect safe scaffolding, and that this liability was not avoided by the hold harmless agreement since only the contractor (and not the worker he hired) agreed to release the church from liability. The court observed that there was no “shred of evidence … from which one might infer that [the victim] was a ‘contractor’ as that term is generally understood.” Further, “[j]udicial recognition of this contract as an effective waiver would eviscerate the statute [imposing an absolute duty upon owners and contractor to maintain safe scaffolding] rendering its protection a mere sham.” This case illustrates the reluctance courts often express in enforcing release agreements. It is essential for such agreements to specify clearly the persons who will be bound by the agreement. In this case, the release agreement relieved the church from liability only against the contractor. Since the contractor’s worker was not specifically contemplated by the agreement, he was not bound by it. Bain v. First Presbyterian Church and Society, 601 N.Y.S.2d 535 (Sup. 1993).

© 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: m62 m58 m86 m35 c0494

Legal Developments

Religious Discrimination

Can churches discriminate on the basis of religious affiliation?

Richard R. Hammar, Attorney, CPA

Bio

State: New York

Church Law and Tax 1994-07-01 Recent Developments

Employment Practices

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

• Key point: Under federal law, and the corresponding laws of some states, religious organizations have the right to discriminate in employment decisions on the basis of the religious affiliation of employees or applicants.

• A New York court ruled that a university affiliated with the Catholic Church did not engage in unlawful discrimination when it dismissed a vice president on the basis of his Jewish faith. The vice president had been employed by St. John’s University for more than 20 years in a variety of capacities. From 1986 to 1990 he served as vice president for student life. In 1990 he was dismissed, and he later sued the university claiming that he had been fired on the basis of his religious beliefs in violation of a state law prohibiting discrimination against employees on the basis of religion. The university pointed out that this law specifies that “nothing contained in this section shall be construed to bar … any organization operated for charitable or educational purposes, which is operated, supervised or controlled by or in connection with a religious organization, from limiting employment … to or giving preference to persons of the same religion or denomination.” The university denied that it dismissed the vice president on the basis of religion, but insisted that even if it did this provision gave it the legal authority to do so. Further, the university claimed that the vice president was an “at will” employee who could be dismissed at any time by the university with or without cause. The former vice president pointed out that the university stated in various publications that it was “an equal opportunity employer” that did not discriminate on the basis of race, ethnic origin, or religion. The state court agreed with the university’s position and dismissed the lawsuit. It concluded that the university clearly fit within the exemption quoted above and accordingly could not be sued for allegedly discriminating against employees on the basis of religion. Further, the court concluded that it is not “inconsistent or contradictory for the university to advertise its nondiscriminatory policies with respect to staff, students, and other nonpolicy making personnel, while reserving its right to exercise a preference for Roman Catholic administrators in the selection of the president’s inner circle of advisors.” The court added that the former vice president “was the individual to whom the university entrusted the duty of overseeing student life on campus, and to whom it had delegated authority over some 18 professional and 111 nonprofessional employees. Under these circumstances, the application of [the exemption quoted above] is neither inconsistent nor unseemly but rather comports with the rationale underlying its enactment, i.e., that a qualifying organization should be afforded the right to the free exercise of religion, particularly in an area so intimately related to its ability to further its mission as a religion organization.” Lastly, the court addressed the former vice president’s claim that his dismissal amounted to a breach of contract: “Absent an agreement establishing a fixed duration or a limitation by express agreement, employment by a private employer is presumed to be at-will, and terminable by either party at any time. Courts will not infer a contractual limitation on the employer’s right to terminate an at-will employment relationship without an express agreement to that effect, which is relied upon by the employee. [The former vice president] failed to show that his employment as an administrator was for a specified duration, that his hiring was governed by any written contract, manual, handbook, or collective bargaining agreement, or that he accepted employment on the condition that he could be discharged for cause only.” Scheiber v. St. John’s University, 600 N.Y.S.2d 734 (A.D. 2 Dept. 1993).

Legal Developments

Clergy-Penitent Privilege and Communication to a Third Party

When does the privilege apply?

Richard R. Hammar, Attorney, CPA

Bio

State: New York
Categories: Confidential and Privileged Communications

Church Law and Tax 1994-07-01 Recent Developments

Confidential and Privileged Communications

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

• Key point: A confession made to a minister may not be protected from disclosure by the clergy-penitent privilege if the confessor intended that the minister communicate the confession to a third party.

• A New York court ruled that a confession made by a rapist to a minister was not protected by the clergy-penitent privilege since the rapist intended that his confession be communicated to a third party. A rapist, soon after raping a woman, contacted a minister and asked him to tell the woman that he “was sorry.” The minister disclosed this conversation during the trial of the rapist and was instrumental in his conviction. The rapist appealed his conviction on the ground that the statement he made to the minister was protected by the clergy-penitent privilege and should not have been disclosed in court. New York law specifies that “[u]nless the person confessing or confiding waives the privilege, a clergyman, or other minister of any religion … shall not be allowed to disclose a confession or confidence made to him in his professional character as spiritual advisor.” A state appeals court rejected this argument, noting that “[t]he apology, as an admission intended to be passed on to a third party, was excluded neither by the hearsay rule nor … the clergyman-penitent privilege ….” People v. Dixon, 604 N.Y.S.2d 604 (A.D. 2 Dept. 1993).

Use of the Clergy-Penitent Privilege

When can the privilege be raised?

Richard R. Hammar, Attorney, CPA

Bio

State: New York
Categories: Confidential and Privileged Communications

Church Law and Tax 1994-05-01 Recent Developments

Confidential and Privileged Communications

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

• Key point: The “clergy-penitent privilege” is a rule of evidence that prohibits the disclosure of privileged communications at trial when the privilege is properly raised.

• A New York court ruled that the clergy-penitent privilege could not be used to attack a warrantless arrest. The body of a woman was found at a church camp. A few weeks later, another woman went to the home of a local pastor and confessed that she had killed the deceased. When the woman left, the pastor called the police and advised them of the confession. Based entirely on this information, the police arrested the woman, obtained a confession from her, and charged her with murder. The woman was later found guilty of second degree murder by a jury and sentenced to a term of imprisonment of not less than 22 years. The woman appealed her conviction, claiming that her arrest had been unlawful since it was based on the improper and unauthorized disclosure of her privileged communication with the pastor. A state appeals court disagreed, noting simply that “the clergyman-penitent privilege is an evidentiary rule proscribing the revelation of privileged communications at a trial when the privilege is asserted by the protected party. Here, revelation of [the woman’s] confession to the police provided probable cause for her arrest and subsequent prosecution.” In other words, if the woman’s conversation with the pastor was privileged, the legal effect of this would be to prevent the pastor from testifying in court about the conversation. The privilege does not apply in making a decision whether or not the police have probable cause to make an arrest. As a result, the woman’s arrest was lawful, as was her conviction. People v. Ward, 604 N.Y.S.2d 320 (A.D. 3 Dept. 1993).

Man Suffers Heart Attack During Aerobics Class

Athletic club found not legally responsible.

Richard R. Hammar, Attorney, CPA

Bio

State: New York
Categories: Personal Injuries on Church Property or During Church Activities

Church Law and Tax 1994-03-01 Recent Developments

Personal Injuries – On Church Property or During Church Activities

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

• Key point: A church will not necessarily be liable for the death of an adult participant in an aerobics class.

• The New York Court of Appeals ruled that an athletic club was not legally responsible for a fatal heart attack suffered by a participant in an aerobics class. This case will be of interest to churches that conduct similar programs. An adult male suffered a heart attack during an aerobics class at a fitness center, and died within a few minutes. His widow sued the center, claiming that it was guilty of negligence. Specifically, she alleged that the center was negligent in the following ways: (1) in how it conducted the aerobics class; (2) in the manner in which emergency treatment was performed on the deceased before the rescue squad arrived; (3) in failing to adequately evaluate the deceased’s medical profile form properly and to screen and test him properly to determine whether he was at risk for strenuous exercise; (4) in failing to have a supply of oxygen in the room where the decedent was participating in an aerobics class; and (5) in failing to have an instructor trained in cardiopulmonary resuscitation conduct the aerobics class on the day of the decedent’s fatal heart attack. The center defended insisted that it had not been negligent, and pointed to the following procedures that it had followed: (1) it relied on the medical training and experience of a registered nurse in the planning of the aerobics class; and (2) aerobics instructors were trained to call 911 immediately and to send someone to the first floor to direct the emergency personnel to the aerobics class. A trial court dismissed the lawsuit on the ground that the center had established that it was not negligent as a matter of law. The widow appealed, and the New York Court of Appeals (the highest level state court in New York) upheld the trial court’s dismissal of the case. The court noted that the widow failed to introduce sufficient evidence that her husband’s death was attributable to the center’s negligence. It observed that “at best, [the widow] put forth the opinions of medical and health club experts which are conclusory” and insufficient to establish negligence. This case suggests that a church that conducts an aerobics class will not be legally responsible for fatal heart attacks suffered by participants in such a class, so long as it exercises reasonable care. The New York Court of Appeals defined reasonable care in this case as reliance by the fitness center on the medical training and experience of a registered nurse in the planning of the aerobics class and the training of aerobics instructors to call 911 immediately in the event of an emergency and to send someone to the first floor to direct emergency personnel to the aerobics class. The court did not agree with the widow that reasonable care also should have included screening the deceased to determine whether he was at risk for strenuous exercise, having a supply of oxygen in the aerobics room, and having an instructor trained in cardiopulmonary resuscitation conduct the aerobics class. However, it is possible that courts in other states may conclude that “reasonable care” involves more than the New York court suggested, and for this reason churches in other states should not assume that the minimal precautions accepted by the New York court would be sufficient. Putrino v. Buffalo Athletic Club, 624 N.E.2d 676 (N.Y. 1993).

Church Not Responsible for Parking Lot Injuries

Employees were not aware of slippery conditions.

Richard R. Hammar, Attorney, CPA

Bio

State: New York
Categories: Personal Injuries on Church Property or During Church Activities

Key point: Churches ordinarily cannot be responsible for snow or ice-related slips and falls in their parking lots unless they were aware of a dangerous condition and had a reasonable opportunity to correct it.

A New York appellate court ruled that a church was not legally responsible for injuries sustained by a woman who slipped on a patch of ice in the church parking lot.

The woman had attended a meeting of a local community group on the church's premises. On her way to her car, she slipped and fell on a patch of snow-covered ice and sustained serious injuries. She sued the church. The court ruled that the church was not responsible for the accident, since it was not aware of the ice and snow accumulation (no church employees were present at the time of the meeting) and the church did not have a reasonable opportunity to remove the snow and ice.

The icy condition developed only two hours before the accident, and the snow (that concealed the ice) began falling only 15 minutes prior to the accident. Under these circumstances the court concluded: "[The church] as the owner of the premises, had a duty to exercise reasonable care under the circumstances. In order to impose liability upon [the church] there must be evidence that it knew, or in the exercise of reasonable care should have known, that an icy condition existed in its parking lot. Additionally, a party in possession or control of property is afforded a reasonable time after the cessation of the storm or temperature fluctuation which created the dangerous condition to exercise due care in order to correct the situation."

There simply was not sufficient time in this case for the church to have removed the snow or ice prior to the accident, and accordingly the church was not legally responsible for the woman's injuries. Byrd v. Church of Christ, 597 N.Y.S.2d 211 (A.D. 3 Dept. 1993).

Religious Camp Is Tax Exempt

Disputed property used to house camp staff.

Richard R. Hammar, Attorney, CPA

Bio

State: New York

Hapletah v. Town of Fallsburg, 590 N.E.2d 1182 (N.Y. 1992)

Key point: A state law exempting from taxation all property "used exclusively for religious purposes" may exempt more than a chapel at a religious campgrounds. Caretaker and faculty residences and undeveloped land also may be exempt.

The New York Court of Appeals (the highest state court in New York) ruled that 64 bungalows, 6 house trailers, and a 10-acre wooded section of a 31-acre religious campground were exempt from property taxes as property "used exclusively for religious purposes."

A religious organization conducts a religious education program on a 31-acre parcel of land. The property is used primarily during the summer months when approximately 450 students from two years of age and older attend religious camps. The property consists of a main building containing a kitchen and dining room, recreational facilities, classrooms, chapels, a dormitory building, 64 bungalows, and 6 trailers. Ten acres of the 31-acre property are mostly wooded and are used primarily for hiking. The bungalows are used by clergy and teaching staff and their families. One of the trailers is used as a residence by a full-time caretaker.

A tax assessor determined that the 64 bungalows, 6 house trailers, and the 10-acre of wooded land were taxable since they were not used exclusively for religious purposes. The religious organization appealed. The court of appeals concluded that the properties in question were exempt from tax. The court began its opinion by quoting the state property tax exemption statute, which exempts "property owned by a corporation or association organized or conducted exclusively for religious … purposes and used exclusively for carrying out thereupon one or more [exempt] purposes."

The court noted that the term exclusively "has been broadly defined to connote `principal' or `primary' such that purposes and uses merely auxiliary of incidental to the main and exempt purpose and use will not defeat the exemption …. Put differently, the determination of whether the property is used exclusively for [exempt purposes] depends upon whether its primary use is in furtherance of the permitted purposes."

The court concluded that the bungalows, trailers, and 10-acre wooded section all met this test. It observed: "If [the organization] was unable to provide residential housing accommodations to its faculty, staff, students and their families, its primary purposes of providing rigorous religious and educational instruction … would be seriously undermined. Thus, these housing facilities are `necessary and reasonably incidental' to the primary purpose of the facility, and this is so notwithstanding the existence of limited housing facilities nearby."

For the same reasons the court concluded that the trailer provided to the full-time caretaker was exempt. Finally, the court concluded that the 10-acre wooded section was exempt since it too was "incidental to the primary religious purpose of the entire 31-acre parcel." The court acknowledged that tax exemptions "are to be strictly construed," but added that the interpretation of such exemptions "should not be so narrow and literal as to defeat their settled purpose … that of encouraging, fostering and protecting religious and educational institutions."

See also New Life Gospel Church v. Department of Community Affairs, 608 A.2d 397 (N.J. App. 1992).

Legal Developments

New York Bans Workplace Discrimination for Legal Recreational Activities

Law includes no discrimination against legal tobacco and alcohol users.

Richard R. Hammar, Attorney, CPA

Bio

State: New York

Church Law and Tax 1993-01-01 Recent Developments

Legislation

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

• The State of New York has enacted a law forbidding employers from discriminating against employees on account of their “legal use of consumable products” or “participation in legal recreational activities” during nonworking hours. Legal use of consumable products would include tobacco and alcohol use, and legal recreational activities would include the viewing of movies and participation in hobbies or sports. The original bill provided a limited exemption for the employees of religious organizations, but this exemption was eliminated completely in the final version of the bill. Chapters 776, 777, and 778 of the Laws of 1992.

Breach of Fiduciary Duties

A court ruled that the directors of a charitable trust could be sued for breach of fiduciary duties.

Richard R. Hammar, Attorney, CPA

Bio

State: New York
Categories: Officers, Directors, and Trustees

Church Law and Tax 1992-11-01 Recent Developments

Officers, Directors, and Trustees

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

• A New York appeals court ruled that directors of a charitable trust could be sued for breaching their fiduciary duties. A child of the founder of the trust filed a lawsuit seeking to remove 8 of the trust’s 11 directors. He asserted that the 8 directors breached their fiduciary duties, mismanaged the trust’s investments, and negligently selected the trust’s investment advisor. A trial court dismissed the lawsuit on the basis of the “business judgment rule,” and the case was appealed. A state appeals court reversed the trial court’s judgment, and ruled that the 8 directors could be sued. It began its opinion by noting that the New York Not-For-Profit Corporation Law requires that the officers and directors of a nonprofit corporation “discharge the duties of their respective positions in good faith and with that degree of diligence, care and skill which ordinarily prudent men would exercise under similar circumstances in like positions.” Moreover, the court observed, “it is well established that, as fiduciaries, board members bear a duty of loyalty to the corporation and may not profit improperly at the expense of their corporation.” In this case, the lawsuit alleged that the 8 directors (1) breached their duty of loyalty to the charitable trust by selecting an investment company of which they were either owners or agents, and then attempting to cover up this improper relationship; (2) mismanaged the trust’s investments by authorizing the investment of a substantial portion of the trust’s assets in speculative securities and in the stock of a company with direct ties to the directors; and (3) authorized excessive trading in securities, thereby incurring substantial commissions. The court concluded that the “business judgment rule” (which protects directors from any liability for their reasonable and good faith decisions) did not apply in this case, since it was not available “when the good faith or oppressive conduct of the officers and directors is in issue.” This case illustrates a very important point—the officers and directors of nonprofit corporations (including churches) owe fiduciary duties of care and loyalty to their corporation. They are subject to removal, and possibly to money damages, for breaching these duties. How may this happen in the context of church directors? This case suggests that church directors should refrain from investing church funds in speculative investments, or in companies or projects in which they have a personal interest. Scheuer Family Foundation, Inc. v. 61 Associates, 582 N.Y.S.2d 662 (A.D. 1 Dept. 1992).

© Copyright 1992, 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: m56 c0692

Legal Developments

Adverse Possession and Church Property

Churches can lose a portion of their property to a neighbor.

Richard R. Hammar, Attorney, CPA

Bio

State: New York
Categories: Church Property

Churches can lose a portion of their property to a neighboring landowner as a result of "adverse possession."

A neighboring landowner claimed title to 2 portions of a church's property as a result of adverse possession. The first portion of land claimed by the neighbor was land up to a boundary line that was set back several feet onto the church's property.

For at least 11 years, the church and neighboring landowner considered this line to be their actual boundary line. The second portion of land claimed by the neighbor was a tract that he maintained for more than 11 years. A New York appellate court concluded that the church had lost its right to both portions of land.

With respect to the first portion (land lost by the incorrect boundary line), the court observed: "Testimony shows the practical location of the boundary line and acquiescence thereto by the respective property owners for at least 11 years. Practical location and acquiescence for the statutory period is conclusive as to the location of the boundary line."

With respect to the second portion of property (that had been maintained by the neighboring landowner), the court observed that for 14 years the neighboring landowner "cultivated and maintained the subject parcel, mowed it, planted a garden and trees on it, and erected a garage, swimming pool, storage shed and clothes line on it. We find that these facts established that [the neighbor] possessed the parcel hostilely and under claim of right, actually, openly and notoriously, exclusively and continuously for the statutory period."

What this means for churches

This case demonstrates the potential loss of property that may result from erroneous boundary lines and fences, and the maintenance and use of a portion of a church's property by a neighbor. Chavoustie v. Stone Street Baptist Church, 569 N.Y.S.2d 528 (A.D. 4 Dept. 1991).

Legal Developments

Charitable Immunity Law and Sexual Misconduct

Does a charitable immunity law protect from liability for sexual misconduct?

Richard R. Hammar, Attorney, CPA

Bio

State: New York
Categories: Officers, Directors, and Trustees, Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Church Law and Tax1992-05-01Recent Developments

Personal Injuries – On Church Property or During Church Activities

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

• A New York court ruled that a “charitable immunity” law granting limited legal immunity to the uncompensated directors of a nonprofit organization did not protect a church’s trustees from liability for the sexual misconduct of their minister. An unincorporated church and its trustees were sued as a result of their minister’s alleged rape of a number of minor females in the church. Among other things, the lawsuit alleged that the church and trustees were responsible for the victims’ suffering as a result of their “negligent supervision” of the minister’s actions. In their defense, the trustees relied on a state law granting uncompensated directors of nonprofit organizations limited immunity from liability for their actions. The court rejected this defense for two reasons: “The [trustees] did not present presumptive evidence of uncompensated status in that they did not present an affidavit of a chief financial officer of the [church]. Further, there is a reasonable probability that the specific conduct of such [trustees] constitutes gross negligence. If the [trustees] did act as the [victims] allege, they may be found to have proceeded in reckless disregard of the consequences of their acts.” This case illustrates two very important limitations associated with many state laws conferring immunity on the directors of nonprofit organizations. First, such laws typically only apply to uncompensated directors. This case illustrates that directors must be prepared to submit appropriate evidence to a court of their uncompensated status (such as an affidavit of the church treasurer). Second, the case illustrates that director immunity laws generally do not apply to “gross negligence” or “reckless conduct.” Finally, it is interesting to note that the court ruled that the unincorporated church should be dropped as a defendant in the lawsuit, presumably because or its unincorporated status. This probably explains why the church’s trustees were sued personally. Church officers and directors should keep in mind this potential basis of liability when considering the unincorporated form of organization. Karen S. v. Streitferdt, 568 N.Y.S.2d 946 (A.D. 1 Dept. 1991).

Legal Developments

Purchasing Vacant Facilities

Churches should never purchase a structure without an environmental assessment.

Richard R. Hammar, Attorney, CPA

Bio

State: New York
Categories: Church Property

Church Law and Tax 1992-05-01 Recent Developments

Church Property

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

• Churches need to be careful when purchasing vacant public school facilities. This point is illustrated by a recent case in New York. A church purchased a public school building after being assured by a school district employee that the building did not contain asbestos. In fact, the building did contain asbestos, as the church later discovered. However, the church waited 3 years to sue the school district. A court dismissed the lawsuit against the school district on the ground that it was not filed within 1 year of the discovery of the asbestos (as required by state law). The church also sued the architects and engineers that it had retained. The court did rule that these persons could sue the school for assistance in paying any eventual money judgment. The significance of this case should be obvious—churches should never purchase school buildings (or any other structure) without an environmental assessment. Failure to do so can lead to disastrous consequences. First Bible Baptist Church v. Gates-Chili Central School District, 569 N.Y.S.2d 313 (A.D. 4 Dept. 1991).

Legal Developments

Unemployment Benefits and Religious Employees

Religious employees are exempt from unemployment benefits in some states.

Richard R. Hammar, Attorney, CPA

Bio

State: New York
Categories: Schools

Church Law and Tax 1992-01-01 Recent Developments

Unemployment Taxes

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

• A New York state court ruled that a state law exempting “persons employed at a place of religious worship” from unemployment benefits did not violate the first amendment’s “nonestablishment of religion” clause. A teacher who had been employed by a religious school sought unemployment benefits. Benefits were denied on the ground that she had been employed by a religious school. The teacher claimed that the state law exempting religious employees from unemployment coverage was unconstitutional. A state appeals court disagreed. It applied a 3-part test announced in 1971 by the United States Supreme Court. Under this test, a law that appears to favor religion will be struck down unless it satisfies 3 conditions—it has a secular purpose, it has a primary effect that neither advances nor inhibits religion, and it does not create an “excessive entanglement” between church and state. The court concluded that the New York law exempting religious employees from unemployment benefits satisfied this test. It further noted that the Supreme Court has ruled that “government policies with secular objectives may incidentally benefit religion.” Such was the case here. This case contrasts starkly with a 1989 decision of the Oregon Supreme Court that found an exemption of religious employees to be unconstitutional (see the November-December 1989 issue of Church Law & Tax Report). The Oregon decision remains an unfortunate precedent that has not been followed by any other court. Claim of Klein, 563 N.Y.S.2d 132 (Sup. Ct. 1990).

Church Sues Architect over Fire

What are a church’s rights when construction goes wrong?

Richard R. Hammar, Attorney, CPA

Bio

State: New York
Categories: Church Property, Contracts

Church Law and Tax 1992-01-01 Recent Developments

Church Property

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

• A New York state court ruled that a church could sue an architect for damages sustained in a fire allegedly caused by faulty installation of insulation around light fixtures. A church hired an architect in connection with the renovation of its facility. Among other things, the renovation involved installation of insulation above the church ceiling. The contract between the architect and the church was a standard agreement requiring the architect to prepare design and construction documents for the project. The contract also imposed certain obligations upon the architect. One provision specified that “the architect shall visit the site at intervals appropriate to the stage of construction … to become generally familiar with the progress and quality of the work and to determine in general if the work is proceeding in accordance with the contract documents.” The contract further provided that the architect was not responsible for construction techniques or defects. After the renovation project was complete, a fire caused extensive damage to the property. An engineer later determined that the fire had been caused by the use of combustible insulation too close to recessed light fixtures. The church sued the architect for breach of contract and negligence, and a trial court ruled in favor of the church. A state appeals court agreed. The court noted that the contract specifically required the architect to inspect the project to ensure that it was being performed according to the plans. This duty was violated by the architect in this case, the court concluded. The court refused to honor the contract provision attempting to relieve the architect of liability for construction defects. It noted that such attempts to limit liability are “disfavored.” Further, to relieve architects of liability “would leave owners without recourse against architects who fail to fulfill their contractual duties to make timely and proper inspections.” The court also rejected the architect’s claim that he could not be responsible for the church’s loss because he had no knowledge of the correct way to install insulation. Again, this claim was inconsistent with the architect’s duties under the contract, and any inconsistency should be interpreted against the architect. Diocese of Rochester v. R-Monde Contractors, Inc., 562 N.Y.S.2d 593 (Sup. Ct. 1990).

Legal Developments

Print Shop Violates Copyright Law

Be sure to understand the “fair use” law before copying materials.

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
Categories: Copyright

Church Law and Tax 1991-11-01 Recent Developments

Copyright Law

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

• A federal court in New York ruled that a company violated the copyright law by duplicating excerpts from several copyrighted books and compiling them into packets that it sold to college students. Kinko’s is a company specializing in copying. Many of its franchises are located in communities containing one or more colleges or universities. Kinko’s representatives contact college professors and offer to duplicate and compile reading materials the professors plan to use in their courses. Kinko’s then copies the excerpts, some quite large, and sells them in bound form to the students. In this case, several book publishers claimed that Kinko’s made copies of excerpts (ranging from 14 to 110 pages each) from 12 copyrighted books, and complied them into 5 separate packets that it sold to college students. It neither sought nor obtained permission from the copyright owners to make the copies. Kinko’s defended its actions on the basis of “fair use,” and the fact that it had made similar packets for 20 years without objection from the copyright owners. Both defenses were rejected by the court, which ordered Kinko’s to refrain from further copyright infringements, and awarded $500,000 in damages. Kinko’s main defense was “fair use.” The Copyright Act specifies that “the fair use of a copyrighted work … is not an infringement of copyright.” Unfortunately, the Act does not define “fair use.” It does suggest several examples of fair use, including copies made “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” However, the Copyright Act states that in deciding whether or not a particular act of copying constitutes fair use, 4 “factors” must be considered. Those 4 factors are (1) the purpose and character of the use, including whether such use is of a commercial nature, (2) the nature of the copyrighted work, (3) the “amount and substantiality of the portion used in relation to the copyrighted work as a whole,” and (4) the effect of the use upon the potential market for the copyrighted work. Does the copying of materials for use by college students constitute fair use under these factors? The court said no. The court evaluated each of the 4 “fair use factors” and concluded that they did not support a finding of fair use. With regard to the first “fair use factor,” the court concluded that the purpose and character of the copying was commercial, and not strictly educational. The court observed that “the crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.” Further, the court noted that “a quotation of copyrighted material that merely repackages or republishes the original is unlikely to pass the test.” As to the second factor, the court noted that “the scope of fair use is greater with respect to factual than non-factual works.” The materials copied in this case were primarily factual, which supported a conclusion of fair use. The third fair use factor asks how much of the copyrighted work is quoted—both in terms of quantity and quality. The court concluded that “the portions copied were critical parts of the books copied.” It further observed that “courts have found relatively small quantitative uses to be fair use.” Kinko’s argued that several of the books were out-of-print, and this supported a finding of fair use. The court disagreed, noting that “damage to out-of-print works may in fact be greater since permission fees may be the only income for authors and copyright owners.” Finally, the court concluded that the fourth factor (market effect) did not support a finding of fair use. It noted that the Supreme Court has ruled that “to negate fair use one need only show that if the challenged use should become widespread, it would adversely affect the potential market for the copyrighted work.” This test clearly was met.

Finally, the court concluded that the so-called “fair use guidelines” for classroom copying in a nonprofit educational institution did not support a finding of fair use. The guidelines were adopted in 1976 by a committee of educational institutions, authors, and publishers. The court emphasized that the fair use guidelines only authorize multiple copying by or for a teacher (for classroom use) if the copied materials do not exceed the lesser of 1,000 words or 10% of the work. This test clearly was not satisfied by the lengthy reproductions involved in this case. Further, the guidelines specify that “copying shall not substitute for the purchase of books, publishers’ reprints, or periodicals.”

What is the relevance of this case to church leaders? Simply this—churches commonly reproduce materials for use by members in educational and musical programs. Church leaders must understand that unauthorized copying of copyrighted materials constitutes copyright infringement. While “fair use” is a defense, cases such as this illustrate how limited a defense it is. Church workers wishing to duplicate copyrighted materials should obtain advance permission from the copyright owner if the applicability of the fair use defense is at all questionable. Basic Books, Inc. v. Kinko’s Graphics Corporation, 758 F. Supp. 1522 (S.D.N.Y. 1991).

© Copyright 1991, 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: m36 c0691

Legal Developments

Display of Religious Student Artwork

Does this violate the First Amendment?

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
Categories: Freedom of Religion, Schools

A federal district court in New York ruled that a public school's display of a student's painting depicting a religious theme violated the first amendment's "nonestablishment of religion" clause.

The artwork consisted of a large mural painted in a corner of the school's auditorium by a student in 1965 as part of the school's plan to decorate the arena with original artwork of students. This program was discontinued shortly after this painting was completed. Only two other paintings are located in the auditorium—a picture of an audience, and one of George Washington.

The mural consisted of 21 human figures, including the crucified Christ, two other crucifixion victims, John the Baptist, Mary Magdalene, the Apostle Peter, Moses, and some gladiators and other unidentifiable figures. The mural also contained a depiction of the 10 Commandments. A family (the father was Baptist and the mother Jewish) sued the school, protesting what they felt was "an inappropriate display of a religious painting in a public high school."

The school defended the mural, claiming that the artist intended it to be a depiction of "man's inhumanity to man," rather than religious art. It also argued that "the presence of unidentifiable secular characters and the context in which the school displays the painting [i.e., a dark corner of the school auditorium] negate any message of government endorsement of Christianity and neutralize the effect of the Crucifixion."

The court rejected the school's claims, and concluded that the mural constituted an impermissible "establishment of religion." It noted that "despite the possible neutralizing effect of—or negation of endorsement by—the unidentifiable figures in the painting, this court remains wary of sectarian messages displayed in public schools as they transmit basic and fundamental values to our youth."

It quoted from an earlier decision of the United States Supreme Court: "To an impressionable student, even the mere appearance of secular involvement in religious activities might indicate that the state has placed its imprimatur on a particular religious creed. This symbolic inference is too dangerous to permit." The court also pointed out that in 1980 the Supreme Court outlawed the posting of the 10 Commandments in public school classrooms. The court concluded:

Taking into account the significant message behind the Crucifixion and the skeptical way in which the [Supreme] Court views sectarian messages in public schools, this court concludes as a matter of law that the painting has the primary effect of endorsing Christianity. First, the school displays the painting permanently and not part of any holiday setting. Further, the school's display contains no placards to explain the painting's meaning or the reason for being there. Moreover, this is not a case where the school displays the painting as part of a student art exhibit. Finally, the presence of the non-religious figures, rather than neutralizing the religious effect of the painting, blend into the scene of the Crucifixion and complete the picture as an average observer would perceive it to be …. The court concludes that the display of [the mural] in the auditorium violates the [nonestablishment of religion clause of the first amendment].

Joki v. Board of Education, 745 F. Supp. 823 (N.D.N.Y. 1990)

Legal Developments

Churches and “Landmark” Laws

Designation of a church as a historical landmark may violate the church’s rights.

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
Categories: Church Property

Church Law and Tax 1991-07-01 Recent Developments

Church Property

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

• A federal appeals court ruled that the constitutional rights of a church were not violated by a state “landmark” law that prevented the church from demolishing one of its buildings. St. Bartholomew’s Church is a Protestant Episcopal Church organized in 1835 under the laws of New York as a nonprofit religious corporation. Construction of the current sanctuary began in 1917. The church is a notable example of Byzantine style, built on a Latin cross plan. Significant features include its stone exterior, soaring octagonal dome, and large rose window. Perhaps most significantly, the church incorporates the Romanesque porch of the former church building. The porch is composed of a high arched central portal flanked by two lower arched doorways, all supported by columns. The doors themselves are richly decorated bronze, depicting Biblical themes. Next to the church sanctuary is a terraced, 7-story building known as the “community house.” The community house was built by the church in 1928, and complements the sanctuary in style and decoration. The community house is used for a variety of social and religious activities. It contains a preschool, theater, meeting rooms and offices, and facilities for providing food and shelter to the poor. In 1967, finding that “St. Bartholomew’s Church and community house have a special character, special historical and aesthetic interest and value as part of the development, heritage and cultural aspects of New York City,” the Landmarks Preservation Commission of the City of New York designated both buildings as “landmarks.” This designation prohibits the demolition or alteration of the buildings without approval of the Commission. The church did not object to the landmarking of its property. In 1983, the church applied to the commission for permission to replace the community house with a 59-story office tower. This request was denied as an inappropriate “alteration.” A year later, the church filed a second application, scaling down the proposed office building to 47-stories. This application also was denied, as was a third application. In 1986, the church asked a federal court to declare that the Commission’s actions violated the church’s constitutional right to religious freedom. It alleged that the landmarks law “excessively burdened” the church’s practice of religion, and “entangled” the government in religious affairs. Specifically, the church alleged that the Commission’s actions impaired its ability to carry on and expand the various activities that are central to its religious mission. It argued that the community house no longer is a sufficient facility for its activities, and that the church’s financial base has eroded. Construction of an office building would enable it to provide adequate space for its programs while at the same time generating needed income to support and expand those programs. The church also alleged that the Commission’s actions amounted to a “taking” of the church’s property without just compensation, in violation of the federal constitution. A federal district court rejected the church’s claims, and the church appealed. A federal appeals court also rejected the church’s claims. It quoted from a recent decision of the United States Supreme Court: “The right of free exercise [of religion] does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes … conduct that his religions prescribes.” The court observed that the landmarks law was a “neutral regulation of general applicability,” and accordingly it was valid even though it happened to interfere with a church’s building plans. The court acknowledged that the landmarks law had “drastically restricted the church’s ability to raise revenues to carry out its various charitable and ministerial programs.” Nevertheless, “neutral regulations that diminish the income of a religious organization do not implicate” the constitutional guaranty of religious freedom. What government practices would violate this constitutional guaranty? The court observed: “The central question in identifying an unconstitutional burden is whether the claimant has been denied the ability to practice his religion or coerced in the nature of those practices.” It quoted again from a decision of the United States Supreme Court: “[I]ncidental effects of government programs, which have no tendency to coerce individuals into acting contrary to their religious beliefs, require government to bring forward a compelling justification for its otherwise lawful actions. The crucial word in the constitutional context is ‘prohibit.'” The appeals court concluded, on the basis of this language, that no constitutional violation occurs “absent a showing of discriminatory motive, coercion in religious practice, or the church’s inability to carry outs its religious mission in its existing facilities.” The Commission’s actions simply did not amount to a constitutional violation under this standard. The court concluded that the community house could be modified to accommodate the church’s programs, and that the church possessed sufficient resources to finance such structural modifications. It observed that the church had a total endowment of more than $14 million, much of which was unrestricted. And, the church could conduct a capital fund-raising campaign or even borrow money. The court suggested that if the structural modifications ever proved inadequate to accommodate the church’s programs, then an application by the church to construct an office building might well receive a different reception. But at this point, the court was unwilling to conclude that the church was incapable of carrying out its programs in its existing facilities (with appropriate modifications). Accordingly, the Commission’s denial of the church’s application for permission to construct the 47-story office building did not violate the church’s constitutional rights. St. Bartholomew’s Church v. City of New York, 914 F.2d 348 (2nd Cir. 1990).

Landmarking

Legal Developments

Injuries to Church Volunteers

A court recently ruled that a volunteer could sue his church.

Richard R. Hammar, Attorney, CPA

Bio

State: New York
Categories: Personal Injuries on Church Property or During Church Activities

A New York court ruled that a volunteer who was injured while trimming a tree on church property could sue the church.

In response to requests by the pastor (both from the pulpit and in the church bulletin) for volunteers to trim trees on the church property, some 75 men gathered on a Saturday morning. At one point, one of the men was on a ladder cutting off a 30-foot limb with a chain saw. When the limb was cut through, it whipped around and struck the ladder, knocking the man to the ground and injuring him seriously.

He sued several of the other volunteers, and the church, claiming that they had been negligent in failing to stabilize the limb adequately, in failing to warn him of the need for safety equipment, and in failing to provide him with adequate safety equipment. A trial court dismissed the lawsuit, and the victim appealed.

A state appellate court agreed that the fellow volunteers were not liable: "As fellow volunteers, [they] owed no duty to warn [him] of dangers or to provide him with safety equipment or to devise a safer, better way of performing the task at hand. At most, these volunteers owed each other a duty of reasonable care under the circumstances in the manner in which they performed their task … The fact that the entire plan might have been ill-conceived does not mean that any individual performed his assignment negligently."

However, the court ruled that the church should not have been dismissed from the lawsuit: "As a landowner, [the church] owed a duty of reasonable care under the circumstances to prevent foreseeable injury to [the victim]. Here, defendant church, through its pastor, solicited its parishioners to turn out for a work detail to trim trees, a potentially dangerous activity.

It is undisputed that in response to [the pastor's] pleas for volunteers, up to 75 men participated in this work detail. The church provided some equipment and a few bottles of 'altar wine' for refreshment.

[The pastor] testified that he was present during all the activity, that he definitely wanted this particular limb trimmed …. No safety devices were provided, nor was professional supervision provided. An accident of the kind herein could be found to be foreseeable under such circumstances." Under these facts, the court concluded that the victim had presented enough evidence as to the church's alleged negligence to submit the case to a jury. Lichtenthal v. St. Mary's Church, 561 N.Y.S.2d 134 (N.Y. Sup. 1990).

Negligent Supervision

Legal Developments

Injuries During Church Activities

A New York court recently dismissed a woman’s lawsuit.

Richard R. Hammar, Attorney, CPA

Bio

State: New York
Categories: Church Property, Personal Injuries on Church Property or During Church Activities

A New York court dismissed a lawsuit brought against a church by a woman who was injured during a church-sponsored activity. The woman and her husband attended a "country fair and barbecue" sponsored by her church. Following dinner, the couple took a raft ride on a nearby lake. After the ride, they were directed to walk on a back lawn area to return to the front of the church building. Closing time for the fair was 7:30PM, and since that time was approaching, workers were closing the various booths and exhibits. As the woman walked up a sloping lawn around the outside of a large tree, she slipped and fell, injuring her leg. She claimed that she slipped on ice cubes that were on the ground. Her husband testified that he saw ice cubes and crushed ice on the ground just before his wife fell.

The church asked the trial court to dismiss the lawsuit, but this request was denied. The church appealed, and a state appeals court dismissed the case. The court concluded that "plaintiff was required to demonstrate … that the condition was caused by [the church's] agents or existed for a sufficient period of time to require [the church] to have corrected it." Since the woman offered no evidence that an agent of the church caused the ice to be discarded on the lawn, or that the ice had been on the lawn for an unreasonable amount of time without being corrected, the lawsuit had to be dismissed. Torani v. First United Methodist Church, 558 N.Y.S.2d 272 (A.D. 3 Dept. 1990).

Premises Liability