Hostile Environment Sexual Harassment

Court rules that church employee’s behavior does not qualify as harassment.

Church Law & Tax Report

“Hostile Environment” Sexual Harassment

Court rules that church employee’s behavior does not qualify as harassment.

Key point. Sexual harassment is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964. It consists of both “quid pro quo” harassment and “hostile environment” harassment. Religious organizations that are subject to Title VII are covered by this prohibition. An employer is automatically liable for supervisory employees’ acts of harassment, but a defense is available to claims of hostile environment harassment if they have adopted a written harassment policy and an alleged victim fails to pursue remedies available under the policy. In some cases, an employer may be liable for acts of sexual harassment committed by nonsupervisory employees, and even nonemployees.

A federal court in North Carolina dismissed a church employee’s allegations of sexual harassment on the ground that the offending behavior, even if true, was not sufficiently severe to amount to harassment. A church hired a woman (the “plaintiff”) as its director of music. As part of her job duties, the plaintiff worked with various musicians and was the staff member in charge of monitoring electronic equipment usage. A few years later the church hired a seminary student (Tim) as its youth director. The plaintiff worked with Tim occasionally, and saw him at weekly staff meetings. She later met with the church’s senior pastor, pursuant to the church’s personnel policy, and made the following allegations of sexual harassment:

• Prior to a worship service, Tim placed a photograph of a male bodybuilder wearing a Speedo bathing suit in the plaintiff’s music score. He later asked her if she had received his “surprise.”

• Soon after the picture incident, Tim showed the plaintiff a website project he had been working on for the church youth. When the plaintiff informed him that the technology committee would have to approve the project, he became angry and called her a “stupid [expletive].”

• While preparing for the trip to New York City, the plaintiff discovered a ticket to the “museum of sex,” which is located in New York City, in her office mailbox. Upon her return from New York, Tim asked her if she had received the coupon and if she had used it.

• The plaintiff went to Tim’s apartment to pick up her daughter from a church youth event. Tim suggested that her daughter and another member of the church youth group use his bedroom.

• At some point during his employment, Tim returned a computer to the plaintiff which had a copy of a movie (rated PG-13) in the DVD drive. The plaintiff’s husband viewed the film and found it offensive due to its sexual content.

The plaintiff alleged a host of other problems with Tim, and felt verbally and physically threatened by him. She sought psychiatric care and was treated for stress, anxiety and depression. The church never formally disciplined Tim for his behavior. However, his behavior led to a decision by church leaders not to renew his employment as youth director.

The plaintiff resigned her position at the church, and then sued the church for sexual harassment in violation of Title VII of the Civil Rights Act of 1964. Title VII makes it unlawful for an employer to discharge an employee or discriminate in “compensation, terms, conditions, or privileges of employment” because of the employee’s sex. The workplace environment is one of the terms and conditions of employment, and so Title VII prohibits verbal or physical conduct of a sexual nature that is “sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere.” The court concluded that the plaintiff had not presented “sufficient evidence on which a jury could find that the harassment was sufficiently severe or pervasive to alter the conditions of her employment.” It observed:

Title VII does not protect against all unwanted workplace distractions. Behavior such as “simple teasing, off-hand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment …. A plaintiff must show that the harassment was “severe or pervasive enough to create an environment that a reasonable person would find hostile or abusive, and the victim must subjectively regard that environment as abusive.” As there is no doubt that [the plaintiff] subjectively regarded the environment as abusive, it must be determined whether a reasonable person would also see the environment as hostile or abusive. In making the objective determination as to whether the work environment was abusive, courts consider: (1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is physically threatening or humiliating, or merely an offensive utterance; and (4) whether it unreasonably interferes with an employee’s work performance. Courts must also consider all of the surrounding circumstances, including the social context in which the particular behavior occurs.

The court reviewed the five instances of a hostile environment alleged by the plaintiff (and summarized above) and concluded:

These five instances, without more, are not enough for a reasonable person to find that the work environment was hostile or abusive. While [Tim’s] actions were inappropriate, they were certainly not frequent, occurring only five times over sixteen months. Moreover, these five instances were neither particularly severe in nature nor physically threatening or humiliating. Tim never used sexually explicit language nor propositioned or inappropriately touched [the plaintiff], and did not engage in behavior that demeaned the status of women in general. Some of these incidents could interfere with a person’s work, but the extent of the interference cannot reasonably be considered great. While his behavior may have been unsuitable for the workplace, Title VII does not attempt to purge the workplace of vulgarity. These isolated incidents engendering mildly offensive feelings are not enough to sustain an action under Title VII.

Even considering these five instances in light of the plaintiff’s other interactions with Tim, the work environment cannot be seen by a reasonable person as hostile or abusive. Title VII does not ensure a happy workplace, only one that is free from unlawful discrimination.

The court also rejected the plaintiff’s contention that a church is a working environment that must be sheltered from the “cruder aspects of secular life,” thereby creating a lower standard for sexual harassment: “Her personal reasons for choosing to work for a church are not relevant to whether an objectively reasonable person would find the work environment to be abusive.”

Application. This case is important for two reasons. First, it illustrates that “hostile environment” sexual harassment is not implicated by every offensive comment or act. Rather, the harassment must be “severe or pervasive enough to create an environment that a reasonable person would find hostile or abusive, and the victim must subjectively regard that environment as abusive.” The court cited the following factors to consider in evaluating whether harassment has occurred: (1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is physically threatening or humiliating, or merely an offensive utterance; and (4) whether it unreasonably interferes with an employee’s work performance.

Second, the court rejected the plaintiff’s contention that the definition of hostile environment sexual harassment should be relaxed in cases involving church employees because of the expectation that such behavior will not occur in churches. The court concluded that the definition of harassment is the same for churches as for any other employer. 2008 WL 5216192 (M.D.N.C. 2008).

This Recent Development first appeared in Church Law & Tax Report, March/April 2009.

Sexual Harassment Suit Proceeds Against Local Church, but Not Denomination

Denominations are not held liable for acts of individual churches.

Church Law & Tax Report

Sexual Harassment Suit Proceeds Against Local Church, but Not Denomination

Denominations are not held liable for acts of individual churches.

KEY POINT 8-09.1 Many federal employment and civil rights laws apply only to those employers having a minimum number of employees. In determining whether or not an employer has the minimum number of employees, both full-time and part-time employees are counted. In addition, employees of unincorporated subsidiary ministries of a church are counted. The employees of incorporated subsidiary ministries may be counted if the church exercises sufficient control over the subsidiary.

KEY POINT 8-12.5 Sexual harassment is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964. It consists of both “quid pro quo” harassment and “hostile environment” harassment. Religious organizations that are subject to Title VII are covered by this prohibition. An employer is automatically liable for supervisory employees’ acts of harassment, but a defense is available to claims of hostile environment harassment if they have adopted a written harassment policy and an alleged victim fails to pursue remedies available under the policy. In some cases, an employer may be liable for acts of sexual harassment committed by nonsupervisory employees, and even nonemployees.

* A North Carolina federal court ruled that a female church employee could proceed with a sexual harassment lawsuit against her church, but it dismissed her claims against a denominational agency. A female employee (the “plaintiff”) of a Methodist church sued her church and the Annual Conference (“Conference”) alleging sexual harassment and discrimination in violation of Title VII of the Civil Rights Act of 1964. Title VII prohibits any employer, including a church, that is engaged in commerce and that has 15 or more employees from discriminating in any employment decision as a result of a person’s race, color, national origin, sex (including sexual harassment), or religion. The plaintiff alleged that a church employee “engaged in a pattern of sexual harassment, verbal abuse, and physical threats directed towards her, and false statements to church members and staff about her, that created a hostile and unsafe work environment.”

Liability of the Conference

The Conference asked the court to dismiss it from the lawsuit on the ground that it was not the plaintiff’s employer and therefore could not be liable for violating Title VII. The plaintiff insisted that the Conference was her employer because it exercised sufficient control over her employment through its supervision of her employing church and through its authority to direct the pastor of the church. The plaintiff asserted that her church, and the Conference, should be viewed as a single employer under the “integrated employer” theory. Under the “integrated employer” theory several entities may be considered so interrelated that they constitute a single employer. The court applied the following factors to determine whether various entities were an “integrated employer”: (1) common management; (2) interrelation between operations; (3) centralized control of employment relations; and (4) degree of common ownership or financial control. The integrated employer test “instructs a court to determine what entity made the final decisions regarding employment matters related to the person claiming discrimination.” As a result, in order for the Conference to be considered the plaintiff’s employer, “there must be evidence that the Conference made the final decisions regarding employment matters related to her.”

In support of her argument that the Conference was her employer, the plaintiff focused on the hierarchical nature of the United Methodist Church, particularly the annual charge conference. She asserted that the Conference assigns pastors to churches, monitors the performance of pastors by ensuring that the local church adheres to the Book of Discipline, and reviews the annual budget of the local church. The court noted that “although the evidence demonstrates that the district superintendent, and thus the Conference, has general awareness and oversight regarding the activities of the local church, the undisputed evidence is that neither the Conference nor the district superintendent manage or are even involved in the day-to-day operations of the church.” For example, there was no evidence that the Conference “made the final decisions regarding employment matters related to” the plaintiff.

The court concluded: “In sum, there is nothing in the record suggesting that the Conference exerted any control over the plaintiff’s employment. On these facts, it can be determined as a matter of law that the Conference was not the plaintiff’s employer.” As a result, the court granted the Conference’s motion to dismiss it from the case.

Liability of the church—the 15-employee requirement

The church asked the court to dismiss the plaintiff’s Title VII claims against it on the ground that it was not subject to Title VII since it had fewer than 15 employees. Title VII applies to any employer who “has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.” The conduct that the plaintiff alleged constituted a violation of Title VII occurred between December 2003 and April 2005. As a result, the court noted that the “current” and “preceding” years for purposes of the Title VII claim are 2002 to 2005. The church asserted that it did not have 15 or more employees for twenty weeks in each of those years. In particular, it noted that (1) in 2002, it had no more than 12 employees employed for more than 20 weeks; (2) in 2003, it had no more than 12 employees employed for more than 20 weeks; (3) in 2004, it had no more than 14 employees employed for more than 20 weeks; and (4) in 2005, although it had 15 or more employees for at least 20 weeks, there were not twenty calendar weeks in 2005 in which at least 15 of those employees were employed at the same time. The church based its calculations on the “payroll method” utilized by the Supreme Court in Walters v. Metro. Educ. Enters., Inc., 519 U.S. 202 (1997). Under this test, only those persons who appear on an employer’s payroll, and who meet the test of an employee, are included in applying the 15-employee test. Persons who appear on an employer’s payroll, but who are not employees, “do not count toward the 15-employee minimum.”

The plaintiff claimed that in addition to the employees listed on the church’s payroll, the church had an employment relationship with two seminary interns. The plaintiff conceded that the interns were not listed on the church’s payroll, but she asserted that they should be considered employees because they worked at the church and the church paid some of their seminary tuition as compensation for their services. The court noted that one of the interns worked at the church for most of 2004, and that the church paid $13,200 toward his seminary tuition in that year. If the payment of this intern’s compensation constituted “indirect but significant remuneration” paid by church in exchange for his services, then he could be considered an employee of the church for 2004, which would have increased the church’s “payroll” to 15 employees for that year, thereby subjecting it to Title VII coverage. On this basis, the court refused to dismiss the plaintiff’s claims against the church, and ordered the case to proceed to trial.

The plaintiff also contended that the individuals who work at the church’s preschool should be considered church employees for purposes of Title VII. The church objected, noting that while the preschool was located on church premises it was “organizationally separate from the church and its employees.” In support of its argument, the church noted that the preschool “has a separate federal income tax identification number, maintains its own budgets, funds and personnel functions, and pays rent to [the church] for use of the church’s facilities pursuant to a written Use of Shared Space Agreement.”

The plaintiff countered by noting that (1) according to its bylaws, the preschool was “under the jurisdiction of” of the church council; (2) the preschool was designated by the church as one of its “nurturing ministries”; (3) the church newsletter reports news of the preschool; (4) the preschool director attends church staff meetings and prepares an annual report for the Conference; and (5) preschool employees are listed as church employees on an annual workers compensation form.

The court concluded that the plaintiff’s arguments regarding the preschool employees were sufficient to raise a legitimate question regarding the number of church employees and its coverage under Title VII, and on this basis it declined the church’s motion to dismiss the plaintiff’s Title VII claims against the church.

Application. This case is significant for three reasons.

  1. It demonstrates the potential liability of churches for acts of sexual harassment. This important topic is addressed fully in section 8-12.5 in Richard Hammar’s book, Pastor, Church & Law, Volume 3 (The Church Guide to Employment Law) (4th edition 2007).
  2. The case is yet another repudiation of the “single employer” or “single enterprise” theory in the context of denominational agencies and their affiliated churches. If these doctrines are ever successfully applied to denominational agencies and their affiliated churches, this would have the following consequences: (1) In applying Title VII’s 15-employee requirement, the employees of denominational agencies would be combined with employees of affiliated churches. This would have the effect of making Title VII applicable to virtually every church, no matter how small. Churches with only one or two employees would be subject to Title VII and EEOC scrutiny. (2) Denominational agencies, both national and regional, would be deemed responsible for many if not most of the obligations and liabilities of affiliated churches, including employment claims and sexual misconduct claims. The effect would be nothing short of catastrophic. Many denominational agencies would face liability for the acts and omissions of affiliated churches over whom they exercise little if any oversight. Fortunately, no court has reached this radical conclusion, and many have repudiated it.
  3. The court’s analysis of the 15-employee requirement was instructive. Wooten v. Epworth United Methodist Church, 2007 WL 2049011 (M.D.N.C. 2007).

Church Members Sue for Breach of Fiduciary Duties

Court rules that the First Amendment bars it from resolving the complaint.

Church Law & Tax Report

Church Members Sue for Breach of Fiduciary Duties

Court rules that the First Amendment bars it from resolving the complaint.

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

The North Carolina Supreme Court ruled that it was barred by the First Amendment from resolving a complaint by church members that their pastor and two other church officials had breached their fiduciary duties by improperly using church funds. An independent church hired a new pastor. Shortly after being installed, the pastor began recommending various changes in church government. At a congregational meeting, the members approved a new set of bylaws for the church. The bylaws created an internal governing body, the “council for ministry,” with broad authority to manage the business and affairs of the church. Some members expressed concern over the changes. On several occasions they requested access to the church’s financial records, but were denied. Some of the concerned members (the plaintiffs) asked a court to compel the church to honor their request to inspect church records pursuant to the authority vested in them by the state nonprofit corporation law. A court ordered the church to turn over the documents the plaintiffs requested. After reviewing the documents, the plaintiffs believed that church funds had been misappropriated by the pastor, a church secretary, and the chairman of the board of trustees (the defendants). The plaintiffs, on behalf of the church, sued the defendants alleging conversion of funds, breach of fiduciary duty, and civil conspiracy. The plaintiffs sought a return of the disputed funds and punitive damages. The defendants asked the church to dismiss the lawsuit on the ground that it involved internal church matters that were beyond the jurisdiction of a civil court. The court declined to dismiss the case, and the defendants appealed.

The state supreme court ruled that the First Amendment guaranty of religious liberty prevented the civil courts from resolving the plaintiffs’ claims. The court noted that the plaintiffs alleged that the pastor and other defendants usurped the governmental authority of the church’s internal governing body, and breached their fiduciary duties by improperly using church funds, which constitutes conversion. The court concluded:

Determining whether actions, including expenditures, by a church’s pastor, secretary, and chairman of the board of trustees were proper requires an examination of the church’s view of the role of the pastor, staff, and church leaders, their authority and compensation, and church management. Because a church’s religious doctrine and practice affect its understanding of each of these concepts, seeking a court’s review of the matters presented here is no different than asking a court to determine whether a particular church’s grounds for membership are spiritually or doctrinally correct or whether a church’s charitable pursuits accord with the congregation’s beliefs. None of these issues can be addressed using neutral principles of law. Here, for example, in order to address plaintiffs’ claims, the trial court would be required to interpose its judgment as to both the proper role of these church officials and whether each expenditure was proper in light of the church’s religious doctrine and practice, to the exclusion of the judgment of the church’s duly constituted leadership. This is precisely the type of ecclesiastical inquiry courts are forbidden to make ….

Because no neutral principles of law exist to resolve plaintiffs’ claims, the courts must defer to the church’s internal governing body, the council for ministry, thereby avoiding becoming impermissibly entangled in the dispute. Having been delegated broad oversight authority by the congregation, the council for ministry has already considered some expenditures challenged by plaintiffs, taken action, and declared the matter closed. Plaintiffs’ complaint does not challenge the authority of the council for ministry or argue that the council did not follow its own internal governance procedures. Plaintiffs simply object to the council’s determination that the expenditures were proper. Although it has not specifically considered every issue raised by plaintiffs, as the church’s internal governing body, the council for ministry is the only authority constitutionally permitted to decide matters that cannot be resolved using neutral principles of law. Unless the church, through its congregation and following proper internal procedures, revokes the council for ministry’s authority to resolve church disputes, plaintiffs must raise their concerns with the council for ministry and accept the resolutions reached by that governing body.

The court rejected the plaintiffs’ claim that since the church was incorporated the state nonprofit corporation law could be used to resolve the dispute. It simply noted that “a church that incorporates under the North Carolina Nonprofit Corporation Act does not forfeit its fundamental First Amendment rights. Regardless of a church’s corporate structure, the Constitution requires courts to defer to the church’s internal governing body with regard to ecclesiastical decisions concerning church management and use of funds.” Harris v. Matthews, 643 S.E.2d 566 (N.C. 2007)

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

Clergy-Penitent Privilege in Court Cases

The clergy-penitent privilege may be lost if a counselee seeks out a minister for spiritual counsel in the presence of one or more third persons.

Church Law & Tax Report

Clergy-Penitent Privilege in Court Cases

The clergy-penitent privilege may be lost if a counselee seeks out a minister for spiritual counsel in the presence of one or more third persons.

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

* A North Carolina appeals court rejected a youth pastor’s argument that his conviction for murdering his wife should be overturned because the trial court erred in allowing his senior pastor to testify about statements he made to him that were protected by the clergy-penitent privilege. A youth pastor (the defendant) began informing people that his wife had disappeared. He went with his senior pastor to search for her. The following morning, several members of the church joined the search. Several searchers noticed that the defendant had several scratch marks on the side of his face, which he claimed to have sustained during the search. The search proved fruitless, and the defendant’s wife was considered missing.

A few months after the wife’s disappearance, and following the defendant’s return from a church-related trip to another state, the senior pastor and other pastors of nearby churches met with the defendant to discuss some improper credit card charges which he had made on the church credit card. At that meeting, the defendant disclosed that his relationship with his wife had become strained. He later resigned from the church and moved.

Two years later the skeletal remains of the defendant’s wife were found. A nylon cord was knotted and looped around the top of the rib cage near the neck area. In the opinion of the medical examiner, she died as a result of violent injury or trauma, most likely asphyxiation. The defendant was charged with first degree murder. The state produced considerable evidence of guilt. A pathologist testified that the scratch marks on the defendant’s face appeared more like fingernail marks than briar marks. He further testified that the defendant had bruising on his right upper arm that was consistent with a “grab mark.” The state also called a prison inmate as a witness who had been incarcerated with the defendant while the defendant was awaiting trial. The inmate testified that the defendant informed him that his wife discovered that he had been having an extramarital affair, and had followed him to a meeting with the other woman and confronted him. The inmate further testified that the defendant admitted to him that he had strangled his wife and had driven around for a period of time trying to dispose of her body. The state also produced two witnesses who had seen the defendant near the place where the skeletal remains were found, on the same day as the wife’s disappearance.

The defendant produced evidence at trial of his innocence. In particular, he testified that he and his wife were both involved in the music ministry of the church, and though his wife was not paid, she contributed her efforts to that ministry and to youth and outreach activities. The defendant insisted that they were a very happy and loving couple and participated in a number of mission trips together. Because of the defendant’s meager salary, the couple struggled financially, which caused strains upon their marriage, as did other factors. Defendant admitted that he had spent money making phone-sex calls, and had become involved in a romantic, though not sexual, relationship with another woman with whom his wife was acquainted. He claimed that he confessed the affair to his wife and she forgave him, though he acknowledged that for a time there were issues of trust. In addition, defendant had occasional sexual dysfunction which strained their relationship.

The defendant testified that he had “relationship problems” with his senior pastor which came to a head when the senior pastor asked him to reduce his workload at the church. In addition, the defendant wanted to go on a mission trip to Romania, but the senior pastor would not permit him to go at church expense. Though defendant was angered at the denial of his request, he and his wife went at their own expense.

A jury convicted the defendant of first degree murder, and sentenced him to life in prison without the possibility of parole. The defendant appealed on several grounds, two of which are summarized below.

Use of church credit cards

The defendant claimed that the trial court erred in allowing the jury to hear evidence regarding his unauthorized use of church credit cards. The appeals court disagreed, noting that this evidence “was relevant in showing the financial status of the defendant and his wife before and immediately after the wife’s disappearance. From this evidence, the jury could infer that the marriage relationship between defendant and his wife was not as good as shown by defendant’s evidence. In addition, defendant’s improper use of the credit cards was linked in time and circumstances with the crime. Finally, the evidence was not offered to show, nor does it suggest, a propensity or disposition on the part of the defendant to commit murder.”

Clergy-penitent privilege

The defendant also claimed that the trial court erred in allowing his senior pastor to testify about statements he made to him. This testimony, the defendant asserted, was in direct violation of the clergy-penitent privilege. The North Carolina privilege states:

No priest, rabbi, accredited Christian Science practitioner, or a clergyman or ordained minister of an established church shall be competent to testify in any action, suit or proceeding concerning any information which was communicated to him and entrusted to him in his professional capacity, and necessary to enable him to discharge the functions of his office according to the usual course of his practice or discipline, wherein such person so communicating such information about himself or another is seeking spiritual counsel and advice relative to and growing out of the information so imparted, provided, however, that this section shall not apply where communicant in open court waives the privilege conferred.

The court stressed that “to fall within the protection of the privilege, the defendant must be seeking the counsel and advice of his minister and the information must be entrusted to the minister through a confidential communication.” The court concluded that the defendant’s statements to his senior pastor were not privileged, since a church elder was present during the conversation. The court concluded: “The clergy-communicant privilege is not applicable in this case [since] a person to whom the privilege did not extend was present at the meeting between defendant [and senior pastor]. This person was a church elder rather than an ordained minister or clergyman …. The conversation of the defendant and the clergy, held in the presence of an elder who was not an ordained minister, is one in which the defendant no longer entrusts his admissions solely to the clergy …. As a result, the clergy-communicant privilege does not apply in this case.”

The appeals court rejected all of the defendant’s remaining arguments, and affirmed his conviction and sentence.

Application. This case demonstrates that the clergy-penitent privilege may be lost if a counselee seeks out a minister for spiritual counsel in the presence of one or more third persons. The North Carolina clergy privilege does not specifically negate the privilege under these circumstances, but the court construed the statute to apply only to confidential communications made to one or more ministers, and without the presence of a third person.

The court suggested that the clergy privilege would apply to statements made by a counselee to two or more ministers. This is a helpful clarification of an issue that arises frequently. To illustrate, assume that a teenage boy informs his youth pastor that he has committed a crime. The youth pastor takes the boy directly to the senior pastor and has him repeat his confession in the presence of both pastors. This case suggests that this confession remains privileged despite the presence of a third person, since that person was a minister. Of course, courts in other jurisdictions may or may not agree with this conclusion, but the case represents one of the few times that a court has addressed this issue and so it may be given special consideration by other courts. State v. Anonymous, 636 S.E.2d 231 (N.C. App. 2006).

Personal Injuries on Church Property and During Church Activities – Part 2

A North Carolina court ruled that the parents of a 12-year-old boy were not liable for injuries the youth director sustained.

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

A North Carolina court ruled that the parents of a 12-year-old boy who negligently collided with a church's youth director while skiing were not liable for injuries the youth director sustained.

A youth group from a Florida church went on a skiing trip to West Virginia. At the same time, a youth group from a North Carolina church was on a trip to the same ski resort. A 12-year-old boy (Nathaniel) with the North Carolina group had no previous skiing experience. Upon arriving at the ski slope, Nathaniel and a friend went skiing on a beginner slope. An experienced adult skier from the North Carolina church supervised the two boys. Later that day, an adult supervisor (Linda) of the Florida youth group was instructing an inexperienced teenage skier how to ski on the beginner slope. After Linda and the young skier reached the bottom of the beginners' slope, she gave the young lady the "thumbs up" sign indicating she had done a good job. As she was finishing the motion, Nathaniel skied into her from behind. Linda had not seen him coming.

Just prior to the accident, Nathaniel was skiing the beginners' slope with a friend. His adult supervisor was skiing behind them. While skiing the "bunny slope," Nathaniel hit an icy patch and became "out of control," which caused him to ski faster. Although Nathaniel tried to avoid hitting Linda, he collided with her. Linda suffered a broken leg and a displaced broken hip. She remained in the hospital for five days, underwent two surgeries, had a steel plate placed in her leg, attended a rehabilitation clinic for two weeks, had to have around the clock care for seven weeks, and had to use a walker, cane, or crutches for over a year.

Linda sued the Nathaniel's parents, claiming that their negligence, combined with Nathaniel's negligence, caused her injuries. She argued that the parents were negligent because they sent their child on a ski trip knowing that he had never skied, without providing him ski lessons that were available and would have made him a much safer skier. Had Nathaniel received ski lessons, he would have been taught to sit down when out of control and the collision would have been avoided. The trial court dismissed all claims against the parents, and Linda appealed.

The appeals court ruled that "the failure to take a ski lesson prior to skiing for the first time on the beginners' slope does not constitute negligence." It continued, "There are several ways in which a person may learn how to ski-trial and error or another person may provide instruction. Indeed, at the time of Linda's accident, she was instructing an inexperienced teenager on how to ski. Similarly, Nathaniel was skiing with an experienced adult skier on the beginner slope, who was also supervising the boys. Moreover, [the church's youth director] testified that upon their arrival at the ski resort, they had been instructed on safety and respect on the slopes by the company with whom the church contracted to coordinate the ski trip." Frank v. Funkhouser, 609 S.E.2d 788 (N.C. App. 2005).

Related Topics:

Church Membership

A North Carolina court ruled that the civil courts are barred by the First Amendment from resolving cases involving the discipline of church members.

Key point 6-10.1. According to the majority view, the civil courts will not resolve disputes challenging a church's discipline of a member since the first amendment guaranty of religious freedom prevents them from deciding who are members in good standing of a church.

Key point 6-10.2. According to the minority view, the civil courts may engage in "marginal review" of disputes involving the discipline of a church member, in a few limited circumstances if they can do so without inquiring into religious doctrine or polity. For example, a few courts have been willing to review membership dismissals in one or more of the following limited circumstances: (1) the church interfered with a member's civil, contract, or property rights; (2) the disciplining body lacked authority to act; (3) the church failed to comply with its governing documents; (4) the church's decision was based on fraud or collusion; or (5) interpretation of contested terminology in the church's governing documents.

Key point 6-12.4. Most courts refuse to intervene in church disputes concerning the validity of a membership meeting that was not conducted in accordance with the procedural requirements specified in the church's governing documents. However, some courts are willing to intervene in such disputes if they can do so without inquiring into religious doctrine or polity.
Church Members
Church Business Meetings

* A North Carolina court ruled that the civil courts are barred by the first amendment from resolving cases involving the discipline of church members unless they can do so "without resolving underlying controversies over religious doctrine." Two church members (the "plaintiffs") had a longstanding dispute with the pastor and church board over alleged mishandling of church funds. The plaintiffs demanded copies of certain financial records of the church. In response, the church sent the plaintiffs a letter informing them that their membership had been terminated by the church board based on scriptural discipline. The letter set forth six grounds for the termination, and recited efforts made by the church leadership to reconcile with the plaintiffs. Following receipt of the letter terminating their membership the plaintiffs filed a lawsuit in which they asked a court to issue an order prohibiting the church from terminating their membership, and directing the church to allow them to inspect certain records. The plaintiffs cited three reasons why their termination was improper: (1) the grounds stated in the termination letter were not accurate; (2) the persons purporting to terminate their membership were without authority to take that action; and (3) the termination was not conducted in a fair and reasonable manner and in good faith as required by the state nonprofit corporation law. The church insisted that the civil courts are barred by the first amendment from addressing questions of church membership and church discipline.

A state appeals court began its opinion by observing that "the courts cannot become entangled in ecclesiastical matters of a church" and "have no jurisdiction over and no concern with purely ecclesiastical questions and controversies." The court concluded that membership in a church is a "core ecclesiastical matter" since "the power to control church membership is ultimately the power to control the church. It is an area where the courts of this state should not become involved."

The court addressed the three grounds cited by the plaintiffs for overturning their termination. As for the first ground (the termination letter did not accurately state the grounds for termination) the court concluded, "The courts will not become involved in determining whether grounds for termination of church membership are doctrinally or scripturally correct." The plaintiffs' second argument was that the persons who terminated their membership were not authorized to do so. They acknowledged that the church bylaws authorized the church board to administer discipline, but claimed that the bylaws had never been adopted by the congregation. The court noted that the first amendment does not prohibit the courts from resolving "property disputes" provided that this can be done "without resolving underlying controversies over religious doctrine." The court concluded that the plaintiffs' church membership was property interest, and that the courts "do have jurisdiction over the very narrow issue of whether the bylaws were properly adopted by the church" since "this inquiry can be made without resolving any ecclesiastical or doctrinal matters." The plaintiffs' third argument was that their termination was not conducted pursuant to the state nonprofit corporation law which specifies that "no member of a corporation may be expelled or suspended, and no membership may be terminated or suspended, except in a manner that is fair and reasonable and is carried out in good faith." In rejecting this argument, the court concluded:

The fact that defendant is a corporation does not alter our analysis of whether the courts of this state have jurisdiction in ecclesiastical disputes. Plaintiffs would have the courts direct that churches cannot terminate membership without following certain due process procedures including notice and an opportunity to be heard. This we refuse to do. A church's criteria for membership and the manner in which membership is terminated are core ecclesiastical matters protected by the [first amendment].

With respect to the plaintiffs' demand to inspect church records the court noted that this claim was dependent upon plaintiffs being members of the church at the time of the filing of their lawsuit. It concluded that "if the trial court determines that the bylaws were duly adopted, then the courts have no jurisdiction over the termination of the plaintiffs' membership." And, since their termination would have occurred prior to the filing of the lawsuit, they would lack standing to pursue their demand to inspect church records in court.


Application
. This case affirms the general rule that church membership and discipline decisions are not reviewable by the civil courts, even when those decisions occur in a church business meeting that does not comply with applicable procedural requirements. However, the court did note that the first amendment does not prohibit the courts from resolving "property disputes" provided that this can be done "without resolving underlying controversies over religious doctrine." And, it concluded that the plaintiffs' church membership was property interest, and that the courts "do have jurisdiction over the very narrow issue of whether the bylaws were properly adopted by the church" since "this inquiry can be made without resolving any ecclesiastical or doctrinal matters." Tubiolo v. Abundant Life Church, (N.C. App. 2004).

Bylaws, Constitutions, and Charters

Most courts refuse to intervene in church disputes concerning the validity of a membership meeting that was not conducted in accordance with the procedural requirements.


Key point 6-12.4
. Most courts refuse to intervene in church disputes concerning the validity of a membership meeting that was not conducted in accordance with the procedural requirements specified in the church's governing documents. However, some courts are willing to intervene in such disputes if they can do so without inquiring into religious doctrine or polity.
Church Business Meetings

A North Carolina court ruled that it was barred by the first amendment from resolving a lawsuit brought by church members claiming that the decision by a church congregation to incorporate as a nonprofit corporation was invalid because it was made at a meeting that failed to comply with the procedure specified in the church bylaws.

A church was founded in 1872 and operated for more than 130 years as an unincorporated association. All decision making authority was vested within the church's congregation. In 1991 the congregation adopted bylaws to govern church administration. During a membership meeting in 2003 the members voted to incorporate the church.

Some members who dissented from this action filed a lawsuit, seeking a court order declaring the church meeting invalid on the ground that it failed to comply with the "notice" requirements spelled out in the bylaws. A state appeals court concluded that the first amendment guaranty of religious freedom prevented it from resolving the dispute, and the case was dismissed. The dissident members insisted that the case could be resolved by the court without any inquiries into religious doctrine, and so the first amendment would not be violated. The court disagreed:

A court's exercise of jurisdiction is improper where "purely ecclesiastical questions and controversies" are involved. An ecclesiastical matter is one which concerns doctrine, creed, or form of worship of the church, or the adoption and enforcement within a religious association of needful laws and regulations for the government of membership, and the power of excluding from such associations those deemed unworthy of membership by the legally constituted authorities of the church; and all such matters are within the province of church courts and their decisions will be respected by civil tribunals.

The court pointed out that "numerous ambiguities exist in the bylaws, conflicts remain between both parties' interpretations of the bylaws, and long-established church customs exist that may alter the interpretation of the notice requirements listed in the bylaws," and that both sides disagreed about the type of meeting actually held. As a result, to resolve this lawsuit a court "would be required to delve into ecclesiastical matters regarding how the church interprets the bylaws' notice requirements and types of meetings," and therefore the case had to be dismissed.

The dissident members also argued that the civil courts may resolve "church property disputes" so long as they can do so without addressing church doctrine, and they insisted that the current dispute was a property dispute.

Specifically, they pointed out that if the church were allowed to incorporate then the bylaws could be amended by a simple majority vote rather than the two-thirds vote required under the existing bylaws. And, since a church member's right to vote is a valuable property right, the court in this case could resolve the dispute.

The court disagreed. It agreed that the first amendment does not prohibit the civil courts from resolving church property disputes not involving questions of doctrine. But, it disagreed that this case could properly be characterized as a property dispute. It concluded, "The claims of plaintiffs in this case only tangentially affect property rights. The courts of this state should not intervene in a question of whether [a church should be] organized as an unincorporated association or a nonprofit corporation. Plaintiffs have failed to assert a substantial property right which has been affected by the incorporation of the church." Emory v. Jackson Chapel First Missionary Baptist Church, 598 S.E.2d 667 (N.C. App. 2004).

Personal Injuries on Church Property and During Church Activities – Part 1

A North Carolina court ruled that a church could be liable for serious injuries suffered by a woman during a church-sponsored “hayride.”

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

A North Carolina court ruled that a church could be liable for serious injuries suffered by a woman during a church-sponsored "hayride." In October of 1998 a church conducted its annual Halloween festival on a farm owned by a church member. As part of the festivities, the church organized a hayride. Several children rode through the woods and around the farm on a flatbed trailer pulled by a farm tractor driven by the farmer's son. A woman ("Katie") who was not a member of the church was invited to help with the hayride by standing in the woods and making scary noises. When the last hayride of the night passed by, Katie came out from the woods and started walking alongside the flatbed. While walking, she saw a child near the edge of the trailer, waving his arms and appearing to be losing his balance. She stepped up to the side of the trailer, and as she pushed the child back onto the trailer bed to prevent his fall, she fell under the trailer. She was impaled by part of the trailer, dragged underneath the trailer for a short distance, and finally run over by the trailer, suffering extensive and permanent bodily injuries. Katie sued the church, claiming that it was responsible for her injuries on the basis of negligent supervision. A trial court dismissed the case, and Katie appealed.

premises liability

Katie alleged that the church was liable on the basis of "premises liability" because as an occupier of the farm on the night of the accident it had a legal duty to exercise reasonable care "in the maintenance of the premises for the protection of lawful visitors." The court disagreed, "Even assuming that the church is an occupier of land, the acts alleged to show a lack of reasonable care (i.e. overloading the vehicle and failing to adequately light the trailer) relate not to the maintenance or condition of the property but merely to the way the hayride was conducted. Hazards relating only to an activity and existing separate and apart from the condition or maintenance of property do not give rise to a claim of premises liability."

violation of state law

The state Motor Vehicle Act prohibits the transport of children under twelve years of age in the open bed or cargo area of a vehicle. Katie asserted that the church was liable on the basis of its violation of this law. The court disagreed, noting that the Act "is limited to vehicles driven or moved on any highway." The Act defines highways as "open to the use of the public as a matter of right for the purposes of vehicular traffic." The court concluded that "the trail through the woods over which the tractor and trailer traveled was not a highway," and therefore the church was not liable on the basis of any violation of the Act.

overloading

Katie claimed that the church organized the hayride and determined what precautions should be taken for the riders' protection. The church decided whether the lighting on the trailer was adequate and how many passengers were permitted on each ride. The court concluded that the trial court erred in dismissing this basis of liability.

negligent supervision

Katie alleged that the church failed to exercise reasonable care in the supervision of the children on the hayride. As proof, she cited the following facts: (1) there was a lot of loud screaming and horsing around; (2) the light illuminating the trailer was insufficient to properly illuminate the entire bed preventing proper visibility and supervision by the adults present; and (3) a child was close enough to the edge of the trailer bed to be within easy reach of one walking alongside of it. The court acknowledged that "where an adult host or supervisor is entrusted with and assumes the responsibility for the welfare of a child, they have a duty to the children to exercise a standard of care that a person of ordinary prudence, charged with similar duties, would exercise under similar circumstances." The amount of care that is required "increases with immaturity, inexperience, and relevant physical limitations." The court concluded that Katie alleged facts indicating that the welfare of the children on the hayride had been entrusted to the supervisors appointed by the church for purposes of safely operating the hayride. Therefore, the trial court erred in dismissing the negligent supervision claim against the church.

immunity of volunteers

The church claimed that Katie's lawsuit should be dismissed on the basis of a state statute granting immunity from liability to uncompensated volunteers who perform services on behalf of a nonprofit organization. The statute provides,

(a) A volunteer who performs services for a charitable organization is not liable in civil damages for any acts or omissions resulting in any injury, death, or loss to person or property arising from the volunteer services rendered if: (1) the volunteer was acting in good faith and the services rendered were reasonable under the circumstances; and (2) the acts or omissions do not amount to gross negligence, wanton conduct, or intentional wrongdoing; (3) the acts or omissions did not occur while the volunteer was operating or responsible for the operation of a motor vehicle. (b) To the extent that any charitable organization or volunteer has liability insurance, that charitable organization or volunteer shall be deemed to have waived the qualified immunity herein to the extent of indemnification by insurance for the negligence by any volunteer.

Katie insisted that the immunity from liability was "waived" by the church because it purchased liability insurance. The court agreed that the immunity conferred by the statute "depends on the absence of liability insurance" carried by the church. The court concluded that since the church had not raised the defense of immunity, the statute "does not act as a bar to recovery."


Application
. This case illustrates two points. First, hayrides may result in death or serious injuries to participants; and second, a church may be liable for such injuries on the basis of negligent supervision of the activity, inadequate lighting, and overloading. Clontz v. St. Mark's Evangelical Lutheran Church, 578 S.E.2d 654 (N.C. App. 2003).

Embezzlement

A North Carolina court affirmed the conviction of a pastor for obtaining church funds by false pretenses.

State v. Walston, 2000 WL 1526404 (N.C. 2000)

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

A North Carolina court affirmed the conviction of a pastor for obtaining church funds by false pretenses. One week after the death of a church's treasurer, the pastor approached the church's new treasurer and asked her whether the premium for the church's insurance had been paid. The new treasurer did not know. The pastor offered to find out and said that he needed a check to do so. He informed the treasurer that if the premium had not been paid, he would use the check to pay it. The treasurer signed a blank check from the church's bank account, wrote "church insurance" on the memo line, and then gave the check to the pastor to be used to pay the insurance premium if necessary. The church's insurance premium had, in fact, been previously paid.

Later the same day the pastor completed the check with an amount of $10,000 made payable to the church. He then opened a checking account at another bank in the name of the church, and deposited the $10,000 check. The pastor maintained a personal account at this bank, and over the next several weeks he made several withdrawals from the church account which he deposited into his own account. The pastor also wrote checks to his contracting business to perform remodeling work at the church that had never been authorized.

When the church treasurer discovered the $10,000 withdrawal from the church's checking account, she notified church members who immediately scheduled a meeting with the pastor. At that meeting, the pastor stated that he opened the second account because he thought the church's primary bank account would be "frozen" as a result of the death of the church's treasurer. Soon after this meeting, the new treasurer received the check book for the second bank account. She started writing checks on this account to pay the church's bills. She did not notice that three checks had already been written on the account. She also never received the "starter" check book from the pastor. Most of the pastor's unauthorized checks were from the starter check book. The pastor later opened another account in the church's name at the same bank, and deposited $2,500 in this account from funds from the other church account.

The treasurer never received bank statements or canceled checks from the church accounts opened by the pastor. Church members held a second meeting with the pastor. At this meeting, the pastor promised to supply the bank records and receipts, but he never did so.

The pastor was later charged with obtaining money by false pretenses. The state alleged that he had transferred $6,900 from the church accounts he established, for his personal benefit. The pastor insisted that he used these funds to purchase a printer, gas heater, and sound system during this time, all of which were for church use. A jury found the pastor guilty as charged, and he was sentenced to jail for a term of ten to twelve months. He appealed his conviction on the ground that the state had failed to prove his guilt.

The appeals court affirmed the pastor's conviction. It defined the crime of false pretenses as a false representation of fact that is intended to deceive, which does in fact deceive, and by which one person obtains or attempts to obtain value from another. The pastor insisted that the state failed to prove that he made a false representation that was intended to deceive. The court disagreed. It acknowledged that an essential element of the crime of obtaining property by false pretenses is "that the act be done knowingly and designedly with intent to cheat or defraud." A person's intent "is seldom provable by direct evidence, and must usually be shown through circumstantial evidence." The court concluded that the evidence in this case clearly demonstrated that the pastor made a false representation with an intent to deprive the church of its resources:

At trial, the state offered the following evidence of circumstances to establish that defendant made a false representation with intent to deceive: the recent death of the church's treasurer, defendant's act in obtaining a check on the church's account for one stated purpose and then using the check for another purpose the very same day, his setting up a new account by using the check to transfer almost all of the church's money to an account which he had sole access, his failure to tell anyone at the church about the new account, his transfer of church funds to his own account to reimburse his own company and others for work on the church which the church had not authorized, and his use of the church's money to purchase items for his own use. Considering the evidence in the light most favorable to the State, we find that the State established that defendant made a false representation with the intent to deceive.

The pastor also challenged his conviction on the ground that he received nothing of value as a result of his false representations. He claimed that he did not obtain anything of value merely by obtaining a blank check and using the check to open a church checking account, and that his subsequent use of the church's account for his own purposes was not value obtained as a result of the alleged false representation. The court disagreed. It agreed that the crime of obtaining property by false pretenses requires proof of a direct relationship "between the alleged false representation and the obtaining of money, property, or something else of value," and that "the gist of the offense is the attempt to obtain something of value from the owner by false pretense." The court concluded that this requirement was met:

The state's evidence tended to show that defendant obtained as a result of his misrepresentation sole access, at least initially, to $10,000 of the church's funds, which, although the church may have ultimately benefited in the form of remodeling done on the church, he spent to benefit his own company and himself. Again, considering the evidence in the light most favorable to the state, we agree that the state proved causation …. [W]e agree with the state that defendant did receive value, the initial sole access to $10,000 of the church's funds, and he did not have authorization from the church to use those funds.

What this means for churches

This case is important for the following reasons:

1. It provides a useful lesson in the importance of maintaining good "internal control" over a church's financial resources, and the problems that can occur when internal controls are neglected. Here are some of the weaknesses in the church's internal controls that led to the pastor's criminal acts: (1) The pastor had sole signature authority over the two church bank accounts he established. If a second church officer's signature had been required on all checks, the pastor could never have committed the criminal acts for which he was convicted. (2) Monthly bank statements were not reviewed by someone having no responsibility for handling cash. In large part, this was due to the pastor's refusal to turn over this information for fear of being "caught." Church leaders should insist upon a prompt review of all bank statements issued on any church account. (3) The church treasurer failed to review the "starter" check book out of which the pastor made most of his unauthorized withdrawals. (4) Church leaders did not question why unauthorized remodeling work was being done at the church by the pastor's contracting company.

2. The case illustrates that church leaders may be prosecuted and sent to jail for mishandling church funds. The fact that the pastor in this case claimed that he did nothing to "benefit himself" was not a defense to criminal liability.

3. Church leaders should view any new church bank accounts with great suspicion. Only the congregation, or the church board, should have the authority to establish new bank accounts. A new and unauthorized bank account often is a sign that church funds are being misappropriated or mishandled.

Recent Developments in North Carolina Regarding Sexual Harassment

A North Carolina appeals court ruled that the first amendment did not prevent it from resolving a sexual harassment lawsuit brought by three female church employees against their church and denominational agencies.

Church Law and Tax1998-09-01

Sexual Harassment

Key point. Employees who engage in offensive contacts and language of a sexual nature with other employees may expose their employer to liability for “hostile environment” sexual harassment. Churches may be liable like any other employer for such acts.

A North Carolina appeals court ruled that the first amendment did not prevent it from resolving a sexual harassment lawsuit brought by three female church employees against their church and denominational agencies. Three female church employees (the “plaintiffs”) sued their Methodist church and various Methodist agencies as a result of the sexual misconduct of a pastor. The lawsuit alleged that the pastor “committed inappropriate, unwelcome, offensive and nonconsensual acts of a sexual nature against the plaintiffs, variously hugging, kissing and touching them, and made inappropriate, unwelcome, offensive and nonconsensual statements of a sexually suggestive nature to them.” The plaintiffs further alleged that the pastor’s actions amounted to sexual harassment and assault and battery, causing them emotional distress, embarrassment, humiliation, and damage to their reputations and career potential. The lawsuit further alleged that the local church and Methodist agencies “knew or should have known” of the pastor’s propensity for sexual harassment as well as assault and battery upon female employees and that they failed to take any actions to warn or protect the plaintiffs from his wrongful activity. The trial court dismissed all of plaintiffs’ claims against the local church and Methodist agencies. It reasoned that the power to discipline and assign or remove a Methodist minister is within the principle of “itinerant general superintendency and the exclusive power of episcopacy,” and that the power of a secular court to “second guess that power to assign or remove clergy or to second guess the discipline of clergy is an intrusion into matters of church governance and discipline and would constitute an excessive entanglement between church and state in violation of the first amendment.” The plaintiffs appealed.

A state appeals court began its opinion by noting that the key issue was whether the first amendment prevents “the filing of a negligent retention and supervision claim against a religious organization, when that claim is based on the conduct of a cleric of that organization.” The court noted that the local church and denominational agencies asserted that the civil courts are without jurisdiction to resolve plaintiffs’ claims against them because the courts’ resolution of these claims requires inquiry into religious doctrine. The court disagreed. It noted that the first amendment “does not grant religious organizations absolute immunity from liability. For example, claims against religious organizations have long been recognized for premises liability, breach of a fiduciary duty, and negligent use of motor vehicles.” The court concluded that if a resolution of the plaintiffs’ legal claims did not require the interpretation of church doctrine, then “the first amendment is not implicated and neutral principles of law are properly applied to adjudicate the claim.”

The court noted that North Carolina recognizes negligent supervision and retention as independent bases of legal liability. To support a claim of negligent retention and supervision against an employer, a plaintiff must prove that “the incompetent employee committed a tortious act resulting in injury to plaintiff and that prior to the act, the employer knew or had reason to know of the employee’s incompetency.” The court concluded:

We acknowledge that the decision to hire or discharge a minister is inextricable from religious doctrine and protected by the first amendment from judicial inquiry. We do not accept, however, that resolution of the plaintiffs’ negligent retention and supervision claim requires the trial court to inquire into the church defendants’ reasons for choosing [the pastor] to serve as a minister. The plaintiffs’ claim, construed in the light most favorable to them, instead presents the issue of whether the church defendants knew or had reason to know of [the pastor’s] propensity to engage in sexual misconduct, conduct that the church defendants do not claim is part of the tenets or practices of the Methodist Church. Thus, there is no necessity for the court to interpret or weigh church doctrine in its adjudication of the plaintiffs’ claim for negligent retention and supervision. It follows that the first amendment is not implicated and does not bar the plaintiffs’ claim against the church defendants.

Certainly, a contrary holding-that a religious body must be held free from any responsibility for wholly predictable and foreseeable injurious consequences of personnel decisions, although such decisions incorporate no theological or dogmatic tenets-would go beyond first amendment protection and cloak such bodies with an exclusive immunity greater than that required for the preservation of the principles constitutionally safeguarded.

Application. This case is important for the following reasons. First, it illustrates the potential liability of churches and denominational agencies for the sexual harassment of clergy. A feature article in this newsletter discusses two recent Supreme Court rulings addressing employer liability for a supervisory employee’s acts of “hostile environment” sexual harassment. Second, the court concluded that churches and denominational agencies can be liable for the sexual misconduct of clergy if they have knowledge of prior misconduct and fail to reasonably protect others from foreseeable harm. It is critical for church leaders to comprehend the legal significance of such knowledge. Finally, the court rejected the church defendants’ claim that the first amendment guaranty of religious freedom prevented the civil courts from resolving the women’s claims. So long as such claims can be resolved without reference to doctrine or polity, the first amendment does not bar the civil courts from resolving them. As readers of this newsletter can attest, not all courts would agree with this conclusion. But the fact that some do suggests that the first amendment should not be viewed as a substitute for effective personnel policies. Smith v. Privette, 495 S.E.2d 395 (N.C. App. 1998).

[Seduction of Counselees and Church Members, The Civil Rights Act of 1964,Judicial Resolution of Church Disputes,Negligence as a Basis for Liability]

Definition of “Church” for Zoning Purposes

Not all church-owned buildings qualify as a “church” under zoning law.

Church Law and Tax 1997-05-01

Zoning

Key point. The definition of a “church” for purposes of zoning laws may not include a church-owned building used for social events.

A North Carolina court ruled that a church-owned house used by a church for social events was not a “church” for purposes of a local zoning law. The zoning law permitted “churches” in a city’s historic district. A church owned a house in the historic district that was used for such purposes as bridge club, social gatherings, community functions, and occasional choir practices and religious instruction. The church planned to sell the home to an individual who wanted to use the home for a “bed and breakfast” establishment. The city informed the purchaser that such a use would not be permitted. The purchaser argued that the church’s use of the home was also a “nonconforming” use that was allowed by the city and that could be continued by future owners. A court agreed that the home, as used by the church, was “nonconforming” since it was not a church. The court noted that the term “church” is not defined in the zoning law. It continued:

The expression “church” ordinarily embraces three basic and related definitions: (1) a building set apart for public worship; (2) a place of worship of any religion; and (3) the organization of Christianity or of an association of Christians worshipping together.

The city zoning commission insisted that the third definition applied in this case-a church is an organization for religious purposes. The commission claimed that the term “church” cannot be limited to a building where religious services are held, but must also include any building owned and used by a church. The court rejected this sweeping definition:

[A]doption of “an organization for religious purposes” as the ordinance definition of a church would produce the unreasonable result that every building owned by a church or “organization for religious purposes” would qualify as a “church” for purposes of the ordinance. We are required to avoid interpretations that produce absurd or illogical results … and therefore reject [the commission’s] contention that [the home] constituted a “church” merely because it was owned by [a church] ….

[W]e believe the plain and ordinary meaning of “church” … to be “a building set apart for public worship.”

Application. The word “church” appears in a variety of local, state, and federal laws. In most cases, the term is not defined. This has forced the courts to come up with a definition. Predictably, attempts by the civil courts to define an ecclesiastical term have been somewhat clumsy and inconsistent. This case is useful because the court acknowledged at least three ways that the term “church” may be defined. This approach may be useful to other religious organizations wanting to be considered a “church” for purposes of other laws. Hayes v. Fowler, 473 S.E.2d 442 (N.C. App. 1996). [Zoning Law for Churches, Zoning Law and Churches]

Related Topics:

Insuring Against Embezzlement

A court issues a helpful decision.

Christ Lutheran Church v. State Farm, 471 N.E.2d 124 (N.C. App. 1996)

Facts. During a period of 13 months a church treasurer embezzled church funds totaling $33,000 by issuing 24 separate checks to himself in various amounts. Church officials learned of the embezzlement, and made a request for reimbursement to the church's insurance company. The church's insurance policy provided coverage for embezzlement under the "employee dishonesty" section. The policy specified that it would pay up to $5,000 for losses incurred "in any one occurrence." The policy defined occurrence as "all loss involving a single act, or series of related acts, caused by one or more persons."

The church insisted that the 24 checks written by the treasurer to himself constituted 24 separate acts, and so the insurance company was required by the policy to reimburse the church for the full amount embezzled ($33,000). The insurance company claimed that the treasurer's 24 checks were all a single occurrence since they were "related acts" caused by the same person, and therefore it was obligated to pay only $5,000—the limit under the policy for one occurrence.

The court's ruling. A court agreed with the insurance company, and ruled that the church was entitled to only $5,000 under the policy. The court agreed with the church that insurance policies "are to be strictly construed against the insurer, with any ambiguity being resolved in favor of the insured." However, it concluded that there was no ambiguity in the policy. The treasurer's 24 checks clearly met the definition of a "single occurrence."

The court noted that as a general rule "an occurrence is determined by the cause or causes of the resulting injury." The cause of the church's loss or injury in this case "was the continued dishonesty of one employee." The checks

were all written in furtherance of one employee's dishonest acts. They do not constitute a new and individual act of dishonesty, as alleged by [the church], but are instead a continuum of wrongful actions. This was the cause of the [church's] loss.

The court emphasized that the treasurer had the intent "to continue the dishonesty, not to commit an entirely new and different act of dishonesty."

What this means for churches

Consider the following points:

  • Check your insurance policy to see if you have coverage for "employee dishonesty." If not, discuss this with your insurance agent. Unfortunately, church workers sometimes embezzle church funds, and this can lead to financial hardship for a church. This is a risk that can be partly or fully offset through insurance.
  • If you have insurance, is it adequate? Remember that apparently separate acts of embezzlement may be viewed by the courts as a "single occurrence" under your insurance policy, meaning that the insurance company only has to pay the insurance limit once. This can come as an unpleasant surprise to church leaders, as happened in this case.

Church Camp Tax Exempt

532-acre camp used primarily for church purposes.

Appeal of Mount Shepherd Methodist Camp, 462 S.E.2d 229 (N.C. App. 1995)

Key point. Church campgrounds that are used primarily for religious purposes may be exempt from property tax, and this exemption may apply to undeveloped land that is part of the camp if it is integral to religious exercise.

A North Carolina court ruled that a 532—acre church camp was exempt from property taxation because it was used primarily for religious purposes.

A District of the United Methodist Church owns a 532—acre camp. Located on twenty—three acres of this land are a number of structures including cabins, bathhouses, recreational vehicle sites, camping areas, a petting zoo, ballfields, picnic shelters, parking lots, a chapel, and a lodge. There are approximately seven miles of trails passing throughout the property. One acre of the land is leased to the State of North Carolina. The timber on twenty—four acres of the land was recently cut and sold. The structures, property improvements and trails are used in the operation of the camp. The camp is open to different groups (adult and child) including the Methodist Church, public schools, scouts, and other churches. In some cases there is a small fee ($5.00 per person per night or $1.50 per person per day) charged for the use of the facilities. The activities conducted at the camp vary depending on the group but include religious worship, meditation, camping, hiking, swimming, fishing, pond studies, counseling, canoeing, pottery classes, baseball, softball, environmental studies, and picnicking.

A county tax board found that only 21 acres of the camp were exempt from property tax. The camp appealed. A tax commission found that all of the 532 acres were exempt as a religious camp except for (1) the one acre leased to the State of North Carolina, (2) the twenty—four acres used by the camp for the commercial production of timber, and (3) the northeast portion of the property which contains no structures and no trails except "a seldom used perimeter trail." The county appealed.

A state appeals court agreed with the commission's finding that most of the property was exempt. In response to the county's argument that the camp could not be exempt from property tax because it charges some campers a fee, sold some timber from a portion of the property, and allows the facilities to be used by non-church groups, the court observed:

There is substantial evidence in this record that the primary purpose of the camp was to serve the religious and spiritual needs of the members of the Methodist Church. The fact that others were permitted to use the camp and that some were charged a fee is not determinative. The fee was small and there is no evidence that there was any effort by the camp to make a profit. Furthermore, the sale of the timber on a portion of the larger tract is not a basis for converting the entire tract into a commercial venture. The commission correctly refused to exempt the twenty—four acres from which the timber was sold.

The court also rejected the county's argument that only the land where the structures are located (approximately twenty—three acres) is entitled to exemption. It observed: "Exempt property includes … not only buildings and the land the buildings occupy, but also any adjacent land reasonably necessary for the convenient use of any such building. The commission therefore did not err as a matter of law in concluding that the natural areas of the camp, where no improvements were located, were properly within the scope of [the exemption]." The court added:

[T]he property exempted by the commission, where there were no improvements, was an integral part of the camp and provided campers opportunities to further their religious practice. Worship, meditation and Bible studies are conducted throughout the camp. Environmental classes teaching Christian stewardship of the outdoors are taught in wilderness areas. Adults and supervised children are allowed to travel throughout the camp uninhibited to learn about the outdoors and undergo self—discovery. Furthermore, the undeveloped natural areas of the property serve as a buffer zone to screen the camp from surrounding development, contributing to the sanctity and serenity of the camp and thus qualifying its use for a "religious purpose."

This case will be useful to any church that owns undeveloped property that is used to support religious activities.

Disaffiliated Local Church Allowed to Retain Property

This decision was clearly erroneous.

In a clearly erroneous decision, a North Carolina appeals court ruled that title to a local Church of God congregation that disaffiliated from the denomination belonged to the local church rather than to denominational officials.

Following a 6-week tent revival in 1949, a small group of persons decided to establish a church. A building was constructed, and the new congregation began conducting services. In 1955, the congregation voted to affiliate with the Church of God denomination "for purposes of fellowship." In 1988, the Church of God denomination altered its policy statement regarding how its members should live their daily lives.

As a result of this change, the local church voted to disaffiliate from the denomination. In response to this action, the "state overseer" of the Church of God dismissed the local church's board of trustees and appointed a successor board consisting of denominational trustees. The successor trustees executed a deed conveying to themselves title to the church's property.

When local church members opposed this denominational control of their property, the denominational trustees asked a court to determine the lawful owner of the church property. The denominational bylaws specify that a local board of trustees shall hold title to local church property and that "all such property shall be used, managed, and controlled for the sole and exclusive use and benefit of the Church of God."

A trial court ruled in favor of the dissident congregation, and the denomination appealed. The appeals court began its opinion by noting: "As a general rule the parent body of a connectional church has the right to control the property of local affiliated churches, and, as a corollary, this right will be enforced in the civil courts.

However, a local church may have retained sufficient independence from the general church so that it reserved its right to withdraw at any time, and, presumably, take along with it whatever property it independently owned prior to and retained during its limited affiliation with the general church."

The court concluded that such was the case here. It based its ruling on the fact that "when the local church affiliated with the denominational church, the property was deeded to trustees of, or for, the local church, not to the denominational church or to trustees of, or for, the denominational church." Unfortunately, the appeals court decision is in error, and disregards a century of decision issued by the United States Supreme Court.

In fact, the Supreme Court has urged denominations and affiliated churches to avoid property litigation by adopting trust provisions in denominational bylaws (as the Church of God has done). In its most recent church property ruling (Jones v. Wolf, in 1979), the Court observed that the parties can ensure, if they so desire, that the faction loyal to the hierarchical church will retain the church property.

They can modify the deeds or the corporate charter to include a right of reversion or trust in favor of the general church. Alternatively, the constitution of the general church can be made to recite an express trust in favor of the denominational church. The burden involved in taking such steps will be minimal. And the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form …. Through appropriate reversionary clauses and trust provisions, religious societies can specify what is to happen to church property in the event of a particular contingency, or what religious body will determine the ownership in the event of a schism or doctrinal controversy. In this manner, a religious organization can ensure that a dispute over the ownership of church property will be resolved in accord with the desires of the members.

In summary, the Church of God denomination adopted a bylaw provision specifying that all local church property "shall be used, managed, and controlled for the sole and exclusive use and benefit of the Church of God."

This language imposes a trust upon local church property that can be interpreted and applied without any resort to religious doctrine. Accordingly, as the Supreme Court observed in 1979, "the civil courts will be bound to give effect to the result indicated by the parties."

Indeed, in the 1979 case the Supreme Court upheld the legal validity of the following trust provision in the Methodist Book of Discipline: "[T]itle to all real property now owned or hereafter acquired by an unincorporated local church … shall be held by and/or conveyed to its duly elected trustees … and their successors in office … in trust, nevertheless, for the use and benefit of such local church and of The United Methodist Church. Every instrument of conveyance of real estate shall contain the appropriate trust clause as set forth in the Discipline …." Looney v. Community Bible Holiness Church, 405 S.E.2d 811 (N.C. App. 1991).

Minister Receives Two Life Sentences

Clergy face significant liability for acts of sexual misconduct.

Church Law and Tax 1992-05-01 Recent Developments

Clergy – Legal Liability

A minister was sentenced to two consecutive life sentences for 3 acts of rape and 8 first-degree sexual offenses perpetrated on 4 women. The minister professed his innocence during his trial, but the prosecutor introduced into evidence several “love letters” the minister had written to at least one of the victims, along with several pornographic magazines and videos found in the minister’s apartment. The magazines and videos were introduced by the prosecutor to rebut the minister’s attempt to portray himself as an exemplary “family man” and minister. A North Carolina appeals court rejected the minister’s claim that the 2 consecutive life sentences constituted “cruel and unusual punishment” in violation of the Constitution. This case illustrates the significant criminal liability that clergy face for acts of sexual misconduct. Of course, this is in addition to civil liability. State v. Woodard, 404 S.E.2d 6 (N.C. App. 1991).

See Personal injuries—on church property and during church activities, Miller v. Everett, 576 So.2d 1162 (La. App. 1991).

See Also: Seduction of Counselees and Church Members

Clergy – Part 1

Personal Liability

Church Law and Tax 1990-07-01 Recent Developments

Clergy – Personal Liability

A North Carolina appeals court ruled that a woman could sue two ministers who assumed her home mortgage for $1,000 and then sold her home for an $18,000 profit. The woman had owned a home worth about $32,000 on which there was a mortgage debt of $12,000. Due to financial difficulties, she became two months behind in her monthly mortgage payments. She turned to her pastor, in whom she had trust and confidence, for counsel and advice. The pastor assured the woman that he could “help her,” and a few days later he and another minister told her that they would “assume the mortgage” on her home and pay her $1,000 if she deeded her home to them. Trusting the ministers to treat her fairly, she deeded her home to them and was paid $1,000. A few months later, the ministers sold the home for $32,000, thereby making a profit of $19,000 ($32,000 sales proceeds less the $12,000 mortgage and less the $1,000 cash payment to assume the loan). The woman sued the ministers some four years later, alleging that their actions amounted to a breach of their fiduciary duties and unjust enrichment. A trial court dismissed the lawsuit, and the woman appealed. The appealed court reversed the trial court, and ordered the case to proceed to trial. With respect to the “breach of fiduciary duty” claim, the appeals court observed: “When a fiduciary relationship exists between parties to a transaction, equity raises a presumption of fraud when the superior party obtains an inordinate benefit as a result of it …. That such a relationship existed between [the woman] and the [ministers] is sufficiently alleged. For under our law a fiduciary relationship can be found to exist anytime one person reposes a special confidence in another, in which event the one trusted is bound to act in good faith and with due regard to the interests of the other.” With respect to the “unjust enrichment” claim, the court observed: “Unjust enrichment is a legal term characterizing the result or effect of … property or benefits received under such circumstances as to give rise to a legal or equitable obligation to account therefor. It is a general principle … that one person should not be permitted unjustly to enrich himself at the expense of another.” In summary, the appeals court concluded that the woman had sufficiently alleged both a breach of fiduciary duty, and unjust enrichment, and accordingly it ordered the case to proceed to trial. Adams v. Moore, 385 S.E.2d 799 (N.C. App. 1989).

Clergy – Part 2

Personal Liability

Church Law and Tax 1990-07-01 Recent Developments

Clergy – Personal Liability

A Utah court refused to recognize “clergy malpractice” as a basis for legal liability. A minister was approached by a 17-year-old parishioner who informed him that his mother wanted him to fly from Utah to North Carolina to locate and bring back his 19-year-old brother, and to get away from his abusive step-father. The boy indicated that his mother did not have adequate funds to pay for an airline ticket, and he asked if the church could help out. The minister responded that he could not help without the mother’s permission, and accordingly he attempted on several occasions to reach her at work. Unable to reach her by telephone, the minister informed the boy that written permission would suffice. The boy later produced a note purportedly signed by his mother, giving permission for him to travel to North Carolina if the church would pay for a ticket. The minister purchased a ticket with church funds, and the boy was flown to North Carolina. In fact, the boy had forged the note, and the mother was unaware that her son had flown to North Carolina. When she became aware of the circumstances, she sued the minister and his church on a variety of grounds, including clergy malpractice and intentional infliction of emotional distress. A trial court granted the minister and church a summary judgment, and the mother appealed. A state appeals court agreed with the trial court, and summarily rejected the mother’s claims. In rejecting the mother’s charge of clergy malpractice, the court observed: “[The mother] admits that no court has recognized clerical malpractice as a cause of action, but argues that such malpractice exists here, not because [the minister] who had not been trained as a counselor, improperly counseled [the boy], but because he failed to refer [the boy] to trained professionals or others who could assist in resolving the family conflicts. In other words, [the mother] wishes to impose a duty upon [the minister] to make further inquiry into the alleged family conflicts, and then, if beyond his expertise, refer [the boy] to others who are qualified to treat such problems. Under the present circumstances, charging lay clergy with this duty of care goes too far because it approaches the same level of care imposed upon trained professionals in medicine and psychology.” The court quoted with approval from the California Supreme Court’s landmark clergy malpractice ruling in Nally v. Grace Community Church (discussed in depth in the March-April 1989 issue of this newsletter): “Because of the differing theological views espoused by the myriad of religions in our state and practiced by church members, it would certainly be impractical, and quite possibly unconstitutional, to impose a duty of care on pastoral counselors. Such a duty would necessarily be intertwined with the religious philosophy of the particular denomination or ecclesiastical teachings of the religious entity.” The Utah appeals court agreed with the California Supreme Court’s refusal to recognize clergy malpractice as a basis for legal liability, and refused to impose upon clergy a duty to refer parishioners experiencing emotional trauma to medical professionals. The court also rejected all of the other theories of legal liability alleged by the mother. White v. Blackburn, 787 P.2d 1315 (Utah App. 1990).

Church Property

A North Carolina appeals court refused to intervene in a church property dispute. A group

A North Carolina appeals court refused to intervene in a church property dispute. A group of church trustees asked a court to declare them the rightful owners of the church's property, and to order the pastor and his followers to vacate the premises.

The trustees alleged that for many years the church had recognized the authority of the Church of God denomination; that the pastor and his followers have refused to comply with the teachings or authority of the Church of God, and have not made required financial contributions to the denomination; that the pastor and his followers "seized" the church property and "converted it to their own personal use;" and, that in 1988 the state overseer of the Church of God intervened and appointed them as the "successor trustees" of the church and transferred title of all church properties to them.

The pastor and his followers maintained that the church had been organized many years before its affiliation with the Church of God; that it received no denominational assistance in constructing its sanctuary; and, that the church membership had voted to disaffiliate from the denomination at a duly called business meeting in 1988, at which time the church's property was conveyed to the successor church. A trial court agreed with the trustees, and ordered the pastor and his followers to vacate the property.

This ruling was appealed, and a state appeals court ruled in favor of the pastor and his followers. The court observed: "[O]ur review of the evidence indicates that [the pastor and his followers] have possessed and used the church property for many years, during a significant portion of which time [the pastor] served the church as its pastor and occupied the parsonage. This evidence does not indicate that [the pastor and his followers] have seized the church property or converted it to their own use as alleged in the complaint. Rather, the evidence tends to show that [they] are continuing in conditions of occupancy and use which have existed over a substantial period of time and that greater harm shall inure to [them] rather than [the successor trustees] as a result of the issuance of a preliminary injunction." Looney v. Wilson, 388 S.E.2d 142 (N.C. App. 1990).

Construction Projects

Church Law and Tax 1990-03-01 Recent Developments Construction Projects Richard R. Hammar, J.D., LL.M., CPA

Church Law and Tax 1990-03-01 Recent Developments

Construction Projects

In some states churches may have to pay for labor or materials twice if they fail to obtain “lien waivers” from subcontractors before paying their contractor. A North Carolina court recently addressed the issue of double payments for the same labor or materials. A Baptist church entered into a contract with a contractor for the purpose of constructing a driveway and parking lot on its property (at a total cost of $12,500, including all labor and materials). The church paid the contractor the full contract price, but the contractor failed to pay the concrete supplier for $6,500 worth of concrete. The concrete supplier sued the church, demanding payment for the concrete. The church in turn sued the contractor (who could not be located). A jury ordered the church to pay the concrete supplier for the concrete, and acknowledged that the church could sue the contractor if he ever was found. An appeals court observed that under North Carolina law the church’s full payment of the contract price to the contractor extinguished the concrete supplier’s right to a “materialmen’s lien” in the church’s property, but that the church had failed to raise this defense at either the trial court or on appeal. In many states, debts for subcontractor labor and materials can become a “lien” against church property despite the fact that the church has paid the contractor for such expenses. In other words, if an unscrupulous contractor pockets the money, the unpaid subcontractors can file a lien against the church’s property that can be satisfied by a sale of the property. This typically results in the church paying twice for the subcontractor expenses. Such an unpleasant result can be avoided by conditioning all payments to the contractor on receipt of authentic “lien waivers” from the subcontractors. Some states provide the property owner with greater protections. According to this case, a church in North Carolina that pays a contractor the full contract price may be able to extinguish the materialmen’s and mechanic’s liens of subcontractors. Concrete Supply Co. v. Ramseur Baptist Church, 383 S.E.2d 222 (N.C. 1989).

Taxation – Part 1

Church Property

Church Law and Tax 1990-01-01 Recent Developments

Taxation – Church Property

Is a vacant and unimproved tract of land owned by a church exempt from property taxation? This is a relevant question for many churches. In a significant ruling, a North Carolina state appeals court concluded that a 5-acre undeveloped lot located next to (and owned by) a Baptist church was exempt from property taxes. The church purchased the lot for future expansion and also as a “buffer” to preserve the church from the burgeoning industrial area surrounding it (which included a plastics factory, a textile mill, and a proposed industrial park). Though the lot remained in an unimproved condition, it was used by the church for youth activities (recreation, camping, etc.) and as a religious retreat for men from a local rescue mission. A local governmental agency ruled that the lot did not qualify for exemption under a state law exempting “buildings, the land they actually occupy, and additional adjacent land reasonably necessary for the convenient use of any building … if wholly and exclusively used by its members for religious purposes.” The agency concluded that the property had been acquired for future expansion and was not presently used “wholly and exclusively” for religious purposes. A state appeals court rejected this conclusion and ruled in favor of the church. It acknowledged that the “present use” of property determines whether or not it is exempt, and not its intended future use, because “no public purpose is served by permitting land to lie unused and untaxed.” Nevertheless, the court concluded that the land was presently being used “wholly and exclusively” for exempt purposes. The court pointed to the church’s use of the property as a religious retreat by men from the rescue mission and as a recreational center for its youth group. The court concluded that the property also qualified for exemption because of its present use as a “buffer zone” insulating the church from surrounding factories. Using the property for this purpose was “reasonably necessary for the convenient use of [church] buildings” and accordingly qualified the property for exemption from tax under the statute. Further, use of the property as a buffer zone “to protect the sanctity and serenity of the church from encroaching industrial development was a permissible religious purpose and present use entitling the property to exemption.” This case demonstrates that undeveloped land acquired by a church for future expansion may be eligible for tax exemption if it is not used commercially and it either (1) is needed as a buffer zone to insulate the adjacent church facility from industrial development, or (2) is used by church youth groups and other groups associated with the church for religious purposes or recreational purposes. Of course, property tax exemption statutes vary considerably among the states, but this ruling will be relevant in those states that exempt church-owned property that is used exclusively for religious purposes. Matter of Worley, 377 S.E.2d 270 (N.C. App. 1989).

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