• Key point 10-07. A church may exercise reasonable care in selecting ministers or other church workers but still be responsible for their misconduct if it “retained” them after receiving information indicating that they posed a risk of harm to others.
The New Hampshire Supreme Court ruled that misconduct by teachers outside of the scope of their teaching responsibilities could be considered in evaluating a teacher’s fitness to teach. While the case involved a public school, the court’s ruling will be directly relevant to churches. After having taught at a public school for nearly twenty years, a man (Tim) became a minister and formed a church. He continued his job as a teacher after opening the church. A complaint was filed against Tim with the local police alleging that he was behaving inappropriately with a 13-year-old girl (the victim) who attended his church. The police investigated the complaint, and Tim was arrested for assaulting a minor. He later pleaded “nolo contendere” and was found guilty. He was sentenced to twelve months in prison, which was deferred on the condition that he obtain a sex offender evaluation. In addition, he was prohibited from having unsupervised contact with minors under sixteen years of age in his home. The public school where Tim worked eventually found out about the criminal charges and their disposition, and school officials immediately suspended Tim from his teaching position. The state department of education launched its own investigation, and it learned that allegations were made several years earlier against Tim by a former foster daughter who claimed that he had sexually abused her. As a result of those allegations, a state agency denied a license application by Tim and his wife to provide day care in their home.
The department of education sought to revoke Tim’s teaching certificate pursuant to a state law on the ground that he had been found guilty of assault on a minor female. The department claimed that his actions violated a number of provisions of the Code of Ethics for the New Hampshire Teaching Profession, which provides that a teacher shall protect the student from physical harm, refrain from using his position to take advantage of students, and respond to parents’ concerns. After four days of hearings, the hearing officer recommended the revocation of the certificate. In her recommendations, the hearing officer stated, in part:
The facts show by a preponderance of the evidence that Tim has a history which shows a pattern of serious inappropriate conduct toward adolescent females, utilizing his positions of authority to overpower them. [His] inappropriate actions, behaviors, admissions, and rationale demonstrate a serious disregard for children under his supervision and care as demonstrated by the events which involved [the victim], a former foster daughter, and possibly other adolescent females.
The department of education agreed with these findings and revoked Tim’s teaching certificate. Tim immediately appealed this decision. He claimed that (1) the revocation of his teaching certification was unreasonable and unlawful because there is no connection between his conduct outside of school and his fitness to teach; and (2) the revocation infringed on his sincerely-held religious beliefs because it was based on purely religious conduct. The New Hampshire Supreme Court rejected both of Tim’s arguments.
(1) Conduct occurring outside of school
Tim’s first argument was that the department of education acted unlawfully and unreasonably when it revoked his teaching certificate for misconduct that occurred outside of school with a non-student because there was no evidence demonstrating a connection between that conduct and his fitness and ability to teach. He insisted that his activities outside of the classroom should be only considered if there was a showing that his actions had a detrimental effect on his ability to teach. He pointed to the testimony of his colleagues regarding his successful job performance as proof that his ability to teach was not affected.
The court concluded that a school board “may terminate a teacher for conduct outside of school if there is a sufficient [connection] between the conduct and the board’s legitimate interest in protecting the school community from harm. We hold that the record contains sufficient evidence of a [connection] between [Tim’s] outside conduct and his fitness and ability to teach in the classroom.” The court then summarized the evidence of Tim’s misconduct with the victim outside of school, including numerous incidents of “holy kisses” on the mouth, “holy hugs,” and inappropriate touching at church, during church activities, and at his home. He continued this behavior after being asked to stop by both the victim and her mother.
The court also noted that the court order forbidding unsupervised contact in his home with minors under sixteen years of age raised serious and legitimate concerns about his fitness to carry out his teaching responsibilities. This concern was intensified by other evidence, including a report from Tim’s sex offender evaluation that, although his actions were not consistent with “classic pedophilia,” “his history … suggests a heightened risk for less than ideal judgment should an extended relationship be allowed to develop from within the confines of his personal domain.” Further, “conduct leading to an assault against a minor female is a serious matter, especially in this context when Tim was told to stop kissing her because it made her uncomfortable. We agree with the hearing officer that this conduct demonstrates serious disregard for children under his supervision and care. Parents and school administrators would reasonably be concerned about the well-being and education of children in such an environment. Such a loss of trust negatively affects Tim’s fitness and ability to perform as a teacher.”
(2) Religious Beliefs
Tim argued that the revocation of his teaching certificate violated his religious beliefs in violation of the first amendment because his teaching certificate was revoked for purely “religious conduct.” Again, the court disagreed, noting that state law prohibited the revocation of Tim’s teaching certificate “for his religious views but does not prohibit revocation for acts that otherwise constitute unprofessional conduct, regardless of their religious character.” The court pointed out that the department of education stated that it was seeking revocation because Tim “was found guilty of assault on a minor age female and court ordered to undergo a sex offender evaluation,” not because of his religious views. Since the board “revoked his certificate, not for his religious beliefs, but for his conduct with the victim, we reject this argument.”
Application. This case will be instructive to church leaders in deciding how to respond to misconduct by church staff members. Note the following points:
1. The court concluded that the department of education acted properly in revoking Tim’s teaching certificate based on his inappropriate behavior with a minor. In other words, it was not appropriate for Tim to be placed back in the classroom with other minors.
2. Tim’s misconduct consisted basically of hugs and kisses with an adolescent girl. This type of behavior, especially when it happens repeatedly despite requests by the victim and her mother that it stop, was deemed sufficiently serious by the court to warrant the revocation of Tim’s teaching certificate. Some church leaders tend to view this kind of behavior as “normal” or not “serious enough” to warrant any limitations or sanctions. Those leaders should review this case very carefully. The department of education found this evidence sufficiently serious to disqualify Tim from teaching, and so did the state supreme court.
3. The fact that Tim’s misconduct did not occur at school or during any school activity was not relevant in assessing his fitness to teach. This suggests that church leaders should consider any knowledge of misconduct involving a church staff member to be relevant, even if it had no connection with the church
4. After Tim’s misconduct with the victim was disclosed, the board of education launched its own investigation and discovered that allegations were made several years earlier against Tim by a former foster daughter who claimed that he had sexually abused her. As a result of those allegations, a state agency denied a license application by Tim and his wife to provide day care in their home. This demonstrates the importance of conducting background checks on all employees and volunteers who will have access to minors, since such checks may reveal evidence that calls into question an individual’s suitability for working with minors. It is far better to learn of this information before a person is retained, either as an employee or volunteer. If it is learned after the person is retained, then an argument can be made that the church was “negligent” in hiring or selecting the individual by not discovering the damaging information. This can be a basis for liability in the event that the individual molests a child and the undiscovered evidence pertains to his or her fitness to work with minors. In re Appeal of Morrill, 2001 WL 43087 (N.H. 2001).
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