• Key point 10-02.3. Churches can be legally responsible on the basis of the respondeat superior doctrine for the actions of their employees only if those actions are committed within the course of employment and further the mission and functions of the church. Intentional and self-serving acts of church employees often will not satisfy this standard.
• Key point 10-04. A church may be liable on the basis of negligent selection for a worker’s molestation of a minor if the church was negligent in the selection of the worker. Negligence means a failure to exercise reasonable care, and so negligent selection refers to a failure to exercise reasonable care in the selection of the worker. Liability based on negligent selection may be imposed upon a church for the acts of employees and volunteers.
• 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.
• Key point 10-09.2. Some courts have found churches not liable on the basis of negligent supervision for a worker’s acts of child molestation on the ground that the church exercised reasonable care in the supervision of the victim and of its own programs and activities.
• Key point 10-18.2. Most courts have refused to hold denominational agencies liable for the acts of affiliated ministers and churches, either because of first amendment considerations or because the relationship between the denominational agency and affiliated church or minister is too remote to support liability.
• Key point 10-18.3. There are several legal defenses available to a denominational agency that is sued as a result of the acts or obligations of affiliated clergy and churches. These include a lack of temporal control over clergy and churches; a lack of official notice of a minister’s prior wrongdoing in accordance with the denomination’s governing documents; a lack of an agency relationship; the prohibition by the first amendment of any attempt by the civil courts to impose liability on religious organizations in a way that would threaten or alter their polity; and elimination or modification of the principle of joint and several liability.
The Oklahoma Supreme Court ruled that the national office of the Presbyterian Church (U.S.A.) was not legally responsible for a pastor’s acts of child molestation. The pastor (“Pastor B”) served in three local churches, as follows:
From 1969 to 1980 a Presbyterian minister (“Pastor B”) served as minister of a church in Kansas. During this period there were complaints from members of his congregation lodged with the church session (elders) and with a representative of a denominational agency concerning his relationship with minors. One member alleged that Pastor B came to her home and picked up her minor child without her consent, and took her riding on his motor scooter to the park. Other members expressed concern over the fact that Pastor B was passing out pennies and candy to little children. They felt that he was “attempting to entice children into inappropriate contact.” In 1980 the church called a special congregational meeting in which it voted to dismiss Pastor B and to ask the Presbytery of Southern Kansas to dissolve the pastoral relationship between him and the church.
A few months later, Pastor B became pastor of another church in Kansas, where he served from 1980 to 1987. This second church was under the jurisdiction of the Presbytery of Northern Kansas. Upon Pastor B’s transfer to the second church in 1980, the Presbytery of Southern Kansas did not inform the Presbytery of Northern Kansas of any problems with him. To the contrary, an official of the Presbytery of Southern Kansas issued a letter in which he stated, “You will find [Pastor B] a faithful Presbyter. We commend him to you.”
Within days of assuming his duties at the second church in 1980, concerns relating to Pastor B’s conduct surfaced again. Some of these complaints specifically related to his involvement with children. For example, the church board (“session”) instructed him to “discontinue giving gum or candy as treats for children at the church, or elsewhere except to his family, or guests in his home.” Even after this warning, the session was informed that Pastor B continued to give candy to children, and that some parents were becoming uncomfortable having their children around him.
The Presbytery of Northern Kansas sent Pastor B to a psychiatric facility (the Menninger Foundation) for evaluation. The diagnostic interview report prepared during his stay indicated that any contact he might have with children should be monitored:
Given this, however, as well as his significant difficulty in judging the appropriateness of his actions, this man might be in danger of unwittingly coming on too strongly physically. He will need help, therefore, in not being inappropriate in his wish to touch others, especially since he is particularly attracted to children.
Without having obtained a copy of the report, the Presbytery of Northern Kansas approved Pastor B’s move to a church in Oklahoma, and represented him “as a member in good standing . . . to whose fraternal affection and fellowship this minister is hereby cordially commended.” While serving as pastor of the Oklahoma church, Pastor B sexually molested twelve minors. Several of these victims were not church members or the children of members of the congregation. Rather, Pastor B committed the acts during recreational activities aimed at recruiting new members and their families. Most of the acts occurred in the church parsonage.
Pastor B also served as a counselor at a Presbyterian children’s camp for one week in 1989. While there, serious allegations of inappropriate behavior with minors were raised by camp counselors. These concerns were communicated to Pastor B’s Presbytery, but not with anyone at his church or with the national offices of the Presbyterian Church (U.S.A.).
Pastor B was convicted of molestation and rape. He was killed in prison in 1994.
In 1997 twelve of the victims sued the national organization of the Presbyterian Church alleging that it was liable for Pastor B’s acts. The victims did not sue the estate of Pastor B, the Oklahoma church, or any of the Presbyteries. The victims claimed that the national church was responsible for Pastor B’s acts on the basis of negligent hiring, negligent retention, negligent supervision, agency, and the legal doctrine of respondeat superior (employers are responsible for the acts of their employees committed within the scope of their employment).
Specifically, the lawsuit alleged that the national church failed to properly and adequately supervise and evaluate Pastor B; failed to investigate allegations of Pastor B’s inappropriate behavior with children; failed to take appropriate and corrective action as a result of Pastor B’s inappropriate behavior with children; and failed to warn the various churches and the minors and their parents of Pastor B’s propensity to engage in inappropriate sexual conduct with children.
In 1998 the national church asked the court to dismiss the lawsuit on the ground that the first amendment barred civil court review of the victims’ claims. The national church also asserted that the respondeat superior claim could not succeed because it had no authority over the ordination of Pastor B as a minister or his hiring at the Oklahoma church or elsewhere. The trial court agreed with the national church and dismissed the case. The victims appealed to the state supreme court.
The court noted that respondeat superior “is a legal doctrine holding an employer liable for the willful torts of an employee acting within the scope of employment in furtherance of assigned duties.” It conceded that sexual assaults generally are not within the scope of employment, unless “(1) the act is fairly and naturally incident to the employer’s business; (2) the act occurs while the employee is engaged in an act for the employer; or (3) the assault arises from a natural impulse growing out of or incident to the attempt to complete the master’s business.” The court further observed:
Our survey of national jurisprudence reveals that the majority of jurisdictions considering the issue of sexual contact between an ecclesiastic officer and a parishioner have held that the act is outside the scope of employment as a matter of law. We agree. Ministers should not molest children. When they do, it is not a part of the minister’s duty nor customary within the business of the congregation. Rather than increasing membership, the conduct would assuredly result in persons spurning rather than accepting a faith condoning the abhorrent behavior. No reasonable person would conclude that Pastor B’s sexual misconduct was within the scope of employment or in furtherance of the national organization’s business.
Pastor B acted for his own personal gratification rather than for any religious purpose. Pastor B abused his position and exploited his special relationship with the children. It is inconceivable that Pastor B’s acts were of the nature of those which he was hired to perform. Because Pastor B was acting outside the scope of his employment as a matter of law when the molestation occurred, we hold that liability may not be imposed under the doctrine of respondeat superior.
Negligent hiring, retention, and supervision
The court acknowledged that employers may be liable for negligence in hiring, supervising or retaining an employee. But it pointed out that “the critical element for recovery is the employer’s prior knowledge of the employee’s propensities to create the specific danger resulting in damage.” As a result, in order for the national church to be responsible for Pastor B’s acts, the victims would have to prove that “the national organization had notice of Pastor B’s deviant sexual tendencies before his transfer to the [Oklahoma] church.” The court concluded:
There is nothing in the record to indicate that Pastor B had a criminal history before moving to [Oklahoma]. Although concerns had been voiced previously concerning his conduct and contact with children at the presbytery level, there is no evidence that those concerns were communicated to the national organization or to members of the [Oklahoma] church. Rather, in the transfers from church-to-church, Pastor B was described as a “faithful Presbyter” and recommended “as a member in good standing . . . to whose fraternal affection and fellowship this minister is hereby cordially commended.” Reports which would have alerted the [Oklahoma] church of Pastor B’s propensities were not obtained by his preceding congregational leaders. Concerns about Pastor B’s conduct at a youth camp after his transfer to [Oklahoma] was approved were not communicated either to the [Oklahoma] church or the national organization. Knowledge of an agent is imputed to the principal absent circumstances raising a clear presumption that the agent will not communicate the knowledge to the principal. Here, it is obvious that not only was the national organization not advised of the situation, evidence of Pastor B’s propensities may have been intentionally withheld from members at both the national and the local church level. We hold that the action for negligent hiring, retention and supervision fails because the national organization lacked knowledge sufficient to impose liability.
The court further concluded that the national church could not be liable on the basis of its “ratification” of Pastor B’s acts since “an agent’s acts in violation of corporate policy will not bind a principal.”
Application. This case is of direct relevance not only to denominational leaders, but also to local church leaders, because it illustrates the enormous legal risks that may be assumed when credible evidence of misconduct by either pastors or lay workers is ignored. The court concluded that the national church was not responsible for the pastor’s acts of child molestation since it had no knowledge of his behavior or any reason to believe that he was a risk of harm to minors. Had information been communicated to national church leaders of Pastor B’s misconduct, the result may have been different. The lesson is clear. Church leaders should never ignore evidence of misconduct on the part of pastors or lay workers. Such evidence must be investigated, and appropriate actions taken based on the strength of the evidence and the nature of the misconduct. Church leaders should seek legal counsel in such cases. N.H. v. Presbyterian Church (U.S.A.), 1999 WL 1013547 (Okla. 1999).
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