Pastor, Church & Law

§ 10.19

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Key point 10.19. There are several legal risks associated with the use of cell phones by church employees and volunteers, including liability for distracted driving while using a cellular device, punitive damages, personal liability of board members, invasion of privacy, and admissions against interest.

For most church employees, electronic communications via cell phone calls, text messaging, and emails have become an indispensable tool for both business and personal use. But few church leaders have a clear understanding of the legal issues associated with these forms of communication. The following issues are addressed in this section:

1. church liability for employees' negligent driving
2. criminal liability for sexually explicit messages
3. employer inspection of electronic communications
4. application of the clergy-penitent privilege
5. the "admissions against interest" exception to the hearsay rule
6. OSHA

Issue #1. Church Liability for Employees' Distracted Driving

There is no doubt that cell phones are a tremendous convenience, and make pastors and other church staff members accessible in the event of emergencies. But the use of such devices while operating a vehicle can cause the driver to be distracted, especially when they are used for texting, web surfing, or checking emails. And, distracted driving can lead to accidents and astronomical monetary damages. Some employers have paid out millions of dollars to settle lawsuits resulting from accidents caused by employees who were distracted while driving as a result of the use of a cell phone.

Consider the following statistics compiled by the U.S. Department of Education:

• 20 percent of injury crashes in 2009 involved reports of distracted driving.
• Of those killed in distracted-driving-related crashes, 995 involved reports of a cell phone as a distraction (18% of fatalities in distraction-related crashes).
• In 2009, 5,474 people were killed on U.S. roadways and an estimated additional 448,000 were injured in motor vehicle crashes that were reported to have involved distracted driving.
• Drivers who use hand-held devices are four times as likely to get into crashes serious enough to injure themselves.
• Using a cell phone while driving, whether it's hand-held or hands-free, delays a driver's reactions as much as having a blood alcohol concentration at the legal limit of .08 percent.
• The proportion of fatalities reportedly associated with driver distraction increased from 10 percent in 2005 to 16 percent in 2009. During that time, fatal crashes with reported driver distraction also increased from 10 percent to 16 percent.
• The portion of drivers reportedly distracted at the time of the fatal crashes increased from 7 percent in 2005 to 11 percent in 2009.
• The under-20 age group had the highest proportion of distracted drivers involved in fatal crashes (16%). The age group with the next greatest proportion of distracted drivers was the 20-to-29-year-old age group—13 percent of all 20-to-29-year-old drivers in fatal crashes were reported to have been distracted.
• Of those drivers reportedly distracted during a fatal crash, the 30-to-39-year-old drivers were the group with the greatest proportion distracted by cell phones. Cell phone distraction was reported for 24 percent of the 30-to-39-year-old distracted drivers in fatal crashes.
• An estimated 20 percent of 1,517,000 injury crashes were reported to have involved distracted driving in 2009.

It is easy to prove that a driver was operating a cell phone at the time of an accident by comparing cell phone records with a car's "event data recorder." An EDR is similar in concept to a commercial jet's "black box". It records a number of facts about vehicle operation, speed, accidents, and airbag deployment. According to the National Highway Traffic Safety Administration, 85 percent of all vehicles are now equipped with EDRs. EDR and cell phone records are being used in court to prove that a driver was distracted at the time of an accident.

Example. Lynn is a church employee. While driving her car on a church-related errand, she becomes distracted while speaking with her daughter on her cell phone, swerves across the center line, and causes a head-on collision with another vehicle. According to the NHTSA, it is "a near certainty that one or more of the vehicles in a collision involving two private passenger autos or light vehicles will have an operational EDR." The EDR will establish the time of the accident, and Lynn's cell phone records will prove that she was using her cell phone at the time of the accident. This is strong evidence of negligence that may be imputed to the church under the respondeat superior doctrine (see below).

Unfortunately, few church leaders have considered the potential risk to their church for deaths and injuries caused by church employees operating a vehicle on church business while using a cell phone for calls or text messaging. In particular, note the following risks:

(1) respondeat superior

An employer is responsible for the injuries caused by its employees if (1) an employer employee relationship existed at the time of the injury, (2) the injury was caused by an employee's negligence, and (3) the employee was acting in the course of his or her employment at the time of the injury. Courts refer to this as the respondeat superior doctrine (i.e., the "employer responds" for the damages its employees cause).

Key point. A church employee whose negligence or misconduct results in injury to another person is not insulated from personal liability by the respondeat superior doctrine. Church employees whose conduct injures other persons in the course of their church duties can be sued directly by injured victims. Often, both the employee and the church are sued.

The negligence of church employees who cause accidents in the course of texting, web surfing, or checking emails while driving a vehicle in the course of their employment may be imputed to their employing church on the basis of the respondeat superior doctrine if the three conditions summarized above are met.

Case studies

• An employee of a construction company caused an accident when a vehicle he was driving struck another vehicle at an intersection. The employee insisted that he was not using his cell phone at the time of the accident, but records provided by his cell phone company revealed that he was using his cell phone. A person injured in the other vehicle (the plaintiff) sued the construction company, claiming that it was responsible for the negligent and distracted driving of its employee while he was operating his vehicle in the course of his employment. A trial court dismissed the lawsuit, but a state appeals court reversed and remanded the case back to the trial court. The court noted that employers are legally responsible on the basis of the "respondeat superior" principle for injuries caused by the negligent acts of their employees committed within the course of their employment. It acknowledged that employees who are in the process of traveling to or from work generally are not within the scope of their employment, and therefore their negligent acts cannot be imputed to their employer. However, it concluded that a commute to work can be within the scope of employment if an employee is using a cell phone at the time for work-related business. The court noted that the employee in this case "may have been on his cell phone regarding company business when the accident occurred or that he might have been distracted by an incoming call from [a co-employee] whom he knew was calling to tell him that he would be late or that he needed something for his work when he arrived."[312] Hunter v. Modern Continental Construction Company, 652 S.E.2d 583 (Ga. App. 2007).

• A Louisiana appeals court ruled that a church was responsible for injuries sustained in an automobile accident caused by the negligent driving of a deacon while on church business.[313] Whetstone v. Dixon, 616 So.2d 764 (La. App. 1993).

(2) negligence per se

Under the doctrine of "negligence per se" a person is presumed to have been negligent if he or she causes an accident while engaged in behavior that violates a statute or ordinance. An accident victim may sue the wrongdoer for money damages if:

(1) the purpose of the statute is the protection of the interest of the victim as opposed to the public; (2) the statute must clearly apply to the conduct of the wrongdoer; (3) the wrongdoer must violate the statute; and (4) the violation of the statute must cause the victim's injury.

It is important for church leaders to be familiar with the concept of negligence per se. The key point is this: Church employees who cause deaths or injuries while engaged in conduct that violates a statute or ordinance will be presumed to have been negligent, meaning that the only remaining question is the amount of damages to be assessed. And, under the doctrine of respondeat superior, the employee's negligence will be imputed to the church if it occurred in the course of employment.

(3) punitive damages

Punitive damages are monetary damages that a jury can award when a defendant's conduct is reprehensible and outrageous. This does not necessarily mean intentional misconduct. Punitive damages often are associated with reckless conduct or conduct creating a high risk of harm. The United States Supreme Court has noted that the goal of punitive damages is "deterrence and retribution," that is, "to further a state's legitimate interests in punishing unlawful conduct and deterring its repetition." State Farm Mutual Automobile Insurance Company v. Campbell, 538 U.S. 408 (2003).

It is important for church leaders to understand that reckless inattention to risks can lead to punitive damages, and that such damages ordinarily are not covered by a church's liability insurance policy. This means that a jury award of punitive damages represents a potentially uninsured risk. As a result, church leaders should understand the basis for punitive damages, and avoid behavior which might be viewed as grossly negligent.

A church may be vulnerable to a punitive damages award in two ways. First, it fails to implement, monitor, and enforce a reasonable cell phone policy for persons driving vehicles on church business; or (2) it is vicariously liable under the doctrine of respondeat superior (addressed above) for injuries caused by the reckless behavior of an employee or volunteer using a cell phone while driving on church business. Several courts have ruled that punitive damages can be awarded against an employer for the reckless behavior of an employee or agent. However, some conditions apply. To illustrate, section 217C the Restatement (Second) of Agency, a respected legal treatise that has been adopted by many courts, states that punitive damages can be awarded against a principal for the act of an agent if: (1) the principal authorized the doing and the manner of the act, or (b) the agent was unfit and the principal was reckless in employing him, or (c) the agent was employed in a managerial capacity and was acting in the scope of his employment, or (d) the principal or a managerial agent of the principal ratified or approved the act.

(4) board liability

Most states have enacted laws limiting the liability of church officers and directors. In some states, these laws protect all church volunteers. Some laws only protect officers and directors of churches that are incorporated under the state's general nonprofit corporation law. The most common type of statute immunizes uncompensated directors and officers from legal liability for their ordinary negligence committed within the scope of their official duties. These statutes generally provide no protection for "willful and wanton" conduct or "gross negligence."

In 1997 Congress enacted the Volunteer Protection Act. The Act clarifies that it "preempts the laws of any state to the extent that such laws are inconsistent with this [Act] except that this [Act] shall not preempt any state law that provides additional protection from liability relating to volunteers or to any category of volunteers in the performance of services for a nonprofit organization or governmental entity." The Act specifies that no volunteer of a nonprofit organization is liable for harm caused by any act or omission on behalf of the organization if:

• the volunteer was acting within the scope of the volunteer's responsibilities in the nonprofit organization or governmental entity at the time of the act or omission;
• the harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the volunteer; and
• the harm was not caused by the volunteer operating a motor vehicle, vessel, aircraft, or other vehicle for which the state requires the operator or the owner of the vehicle, craft, or vessel to possess an operator's license or obtain insurance.

In summary, the limited immunity from personal liability that is available to uncompensated church board members under both state law and the federal Volunteer Protection Act may not protect them from being sued personally by persons who are injured as a result of the reckless driving of a church employee or agent whose use of a cell phone caused the accident. Board members may be personally liable in such cases if their failure to implement, monitor, and enforce a reasonable cell phone policy for persons driving vehicles on church business amounts to "willful or wanton" behavior, recklessness, or gross negligence.

Issue #2. Criminal Liability for Sexually Explicit Messages

In many states the transmission of sexually explicit text messages ("sexting") via a cell phone or other electronic device constitutes a crime. Such messages also can be used as evidence in civil lawsuits. For example, assume that an adolescent female in a church youth group claims that the youth pastor had nonconsensual sexual contact with her. She sues the church, claiming that it is responsible for the pastor's acts on the basis of negligent hiring and supervision. The victim subpoenas the youth pastor's text messages to establish the truth of her claims.

Several courts have addressed the issue of criminal liability of pastors for engaging in sexting. Consider the following:

Case studies

• A pastor was convicted of several sexual offenses involving his sexual solicitation and molestation of a minor, and sentenced to a minimum prison term of 186 years. One of his offenses was "contributing to delinquency of a minor," which was based in part on several sexually explicit text messages ("sexting") that the pastor sent to the minor on his cell phone. 2010 WL 10409 (N.C. App. 2010).
• A youth pastor (the "defendant") sent several sexually explicit emails to a female adolescent in the church's youth group. The victim told her mother about the emails. After reviewing the messages, the mother contacted the police. A police officer questioned the defendant about the emails. The defendant admitted that he sent the emails, and expressed deep remorse for his actions. In the transcript of this conversation the defendant stated that he had made "a very, very poor decision to engage in these email conversations with her, uh, and allowed myself to get caught up in things of a sexual nature." The state charged the defendant with six counts of communicating with a minor for immoral purposes under a state law making it a class C felony for a person to communicate with a minor for immoral purposes through electronic communication. At trial, the defendant testified that he did not remember sending any of the emails. The jury didn't believe him, and found him guilty on all six counts. The trial court sentenced the defendant as a class C felony to the statutory maximum of five years per count. [314] State v. Haack, 2010 WL 4216705 (Wash. App. 2010).

Issue #3. Employer Inspection of Electronic Devices and Communications

Many churches provide cell phones and computers to employees. If the church retains ownership in such equipment, does it have the legal authority to inspect their contents without an employee's knowledge or consent? This important question is addressed in section 8-29 of this text.

Issue #4. Application of the Clergy-Penitent Privilege

Every state has a law making certain communications to clergy "privileged." This generally means that neither the minister nor the "penitent" can be forced to testify in court (or in a deposition or certain other legal proceedings) about the contents of the communication.

Not every communication made to a minister is privileged and thereby protected from disclosure. The typical statute applies only to (1) communications, (2) that are confidential, (3) made to a minister, (4) acting in his or her professional capacity as a spiritual adviser. Some states add a fifth requirement—the communication made in confidence to a clergyman must be made "in the course of discipline."

Rule 505 of the Uniform Rules of Evidence, which has been adopted by several states, defines the privilege as follows:

(a) Definitions. In this rule:

1. "Cleric" means a minister, priest, rabbi, accredited Christian Science Practitioner, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the individual consulting the cleric.
2. A communication is "confidential" if it is made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.

(b) General rule of privilege. An individual has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the individual to a cleric in the cleric's professional capacity as spiritual adviser.

(c) Who may claim the privilege. The privilege under this rule may be claimed by an individual or the individual's guardian or conservator, or the individual's personal representative if the individual is deceased. The individual who was the cleric at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the communicant.

Can conversations with a minister via cell phone, email, or text messaging qualify for this privilege? One court has addressed the application of the clergy-penitent privilege to emails.[315] WebXchange Inc. v. Dell Inc., 264 F.R.D. 123 (D. Del. 2010). The defendants in a patent infringement lawsuit claimed that the plaintiff was wrongfully withholding three emails that had been subpoenaed by the defendants. The plaintiff asserted that the emails, which had been exchanged between him and two clergymen for the purpose of obtaining spiritual guidance on a business venture, were protected from disclosure by the clergy-penitent privilege. The defendants claimed that there was no proof that the emails were sent to the two clergyman in their spiritual capacity, and the emails were not confidential since they were copied to several third persons.

This case supports the conclusion that conversations with clergy via email, cell phone calls, or text messaging can be protected by the clergy-penitent privilege so long as they meet the requirements of the privilege under state law. Perhaps the main objection to the privileged status of these communications is that they are not "confidential" since they can be overheard by others having the right equipment.

While this is true, it is not conclusive. The Uniform Rules of Evidence (quoted above), which has been adopted by many states, clarifies that the essential element of confidentiality means that a communication is "made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication." It is reasonable to assume that electronic communications with clergy can be confidential even though there is a remote possibility that persons nearby with the right equipment could access the communications. The remote possibility of such access should not negate the fact that the communication was "private" and therefore confidential. To conclude otherwise would be to restrict clergy from engaging in spiritual counseling by means of electronic communications, which in many cases would greatly limit a minister's ability to respond quickly to urgent needs.

Issue #5. Admissions Against Interest

The rules of evidence followed in both state and federal courts generally prohibit the admissibility of hearsay evidence. Hearsay refers generally so statements not made in court or a judicial proceeding. It is defined by the federal rules of evidence (rules of evidence used in federal courts) as a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."

There are some 30 exceptions to the hearsay rule. One of them is "admissions against interest." This exception is explained in the federal rules of evidence as follows:

A statement that: (A) a reasonable person in the declarant's position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant's proprietary or pecuniary interest or had so great a tendency to invalidate the declarant's claim against someone else or to expose the declarant to civil or criminal liability; and (B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

According to this rule, statements made by church employees in email communications, or while "texting" on a cell phone, may be admissible in court as an exception to the hearsay rule if they are contrary to the "proprietary of pecuniary interest" of the employee making the statement.

Some courts have stressed that this exception to the hearsay rule applies to statements made by employees that are against the interests of their employer only if the statements are potentially against the personal interests of the employees who make them. Consider the following example.

Example. A youth pastor, while away from the church office, receives a text on his cell phone informing him that a mother of a minor child has accused a volunteer worker in the church's youth group of molesting her child. The youth pastor texts a response that states, in part, "I am not surprised. I always had a bad feeling about that worker, and I only wish I had done a better job of screening him before selecting him as a volunteer." The mother later sues the church, and her attorney asks the church to turn over the youth pastor's emails and text messages for the previous two years. The attorney discovers this test message, and plans on introducing it in court as evidence of the church's negligence. While the youth pastor's statements are clearly against the church's interests, this is not enough to qualify for the exception to the hearsay rule. They also must be against his own personal interests. Some courts have interpreted this requirement liberally. To illustrate, one court observed: "To qualify as an exception to the hearsay rule [as an admission against interest] a declaration must be against the employee's interest, not just the employer's interest. Since the trustworthiness of the declaration is insured only by the accompanying threat of loss or liability, the statement must be to the declarant's immediate prejudice. … We note, however, that statements against an employer's interest may be against the employee's own pecuniary or proprietary interests if, for example, they threaten the loss of employment or reduce the chances for future employment." Clearly, to the extent that the youth pastor believes that his employment is in jeopardy, his incriminating cell phone text message could be an admission against interest that would be admissible in court as evidence against both the youth pastor and the church.

Caution. Church employees should assume that all of their text messages and emails will be admissible in court in the event of future litigation. As a result, they should avoid any statements that might be considered admissions against interest.

6. OSHA

The Occupational Safety and Health Act of 1970 was enacted to prevent workers from being killed or seriously harmed at work. The law requires that employers provide their employees with working conditions that are free of known dangers. The Occupational Safety and Health Administration (OSHA) establishes and enforces protective workplace safety and health standards.

OSHA recently made the following announcement:

The Occupational Safety and Health Administration's top priority is keeping workers safe. While we experience fewer fatalities in the workplace today, the leading cause of worker fatalities year after year are motor vehicle crashes; distracted driving dramatically increases the risk of such crashes. The Department of Labor through OSHA is partnering with the Department of Transportation to combat distracted driving.

OSHA will first focus on texting while driving. Employers should prohibit any work policy or practice that requires or encourages workers to text while driving. Texting while driving greatly increases the risk of being injured or killed in a motor vehicle crash. Prohibiting texting while driving is the subject of [an Executive Order] signed by President Obama for Federal employees, and the subject of rulemaking by the Department of Transportation. We call upon all employers to prohibit any work policy or practice that requires or encourages workers to text while driving. The Occupational Safety and Health Act of 1970 is clear—employers must provide a workplace free of serious recognized hazards. It is well recognized that texting while driving dramatically increases the risk of a motor vehicle injury or fatality. It is imperative that employers eliminate financial or other incentives that encourage workers to text while driving. Employers who require their employees to text while driving—or who organize work so that doing so is a practical necessity even if not a formal requirement—violate the Occupational Safety and Health Act.

We call upon all employers to follow the lead of President Obama, the Department of Transportation and 30 state laws that prohibit drivers from texting—to prohibit their employees from texting while driving for work.

OSHA is launching a multi-pronged initiative that will include the following:

• An education campaign to employers, launched during Drive Safely Work Week, calling on employers to prevent occupationally related distracted driving—with a special focus on prohibiting texting while driving;
• A website which carries a video message and an open letter to employers from Assistant Secretary Michaels ….We will showcase model employer policies and team up with employer and labor associations to communicate our message;
• We will forge alliances with the National Safety Council and other key organizations to help us reach out to employers, especially small employers, to combat distracted driving and prohibit texting while driving;
• We will place a special emphasis on reaching young workers—working with other Labor Department agencies, as well as our alliance partners and stake-holders; and
• When OSHA receives a credible complaint that an employer requires texting while driving or who organizes work so that texting is a practical necessity, we will investigate and where necessary issue citations and penalties to end this practice.

By prohibiting texting while driving, we are working to ensure that workers are safe on the road and that they return home safely at the end of their shift.

application to churches

OSHA regulations clearly specify that nonprofit organizations are subject to OSHA regulations:

The basic purpose of the Act is to improve working environments in the sense that they impair, or could impair, the lives and health of employees. Therefore, certain economic tests such as whether the employer's business is operated for the purpose of making a profit or has other economic ends, may not properly be used as tests for coverage of an employer's activity under the Act. To permit such economic tests to serve as criteria for excluding certain employers, such as nonprofit and charitable organizations which employ one or more employees, would result in thousands of employees being left outside the protections of the Act in disregard of the clear mandate of Congress to assure "every working man and woman in the Nation safe and healthful working conditions." Therefore, any charitable or nonprofit organization which employs one or more employees is covered under the Act and is required to comply with its provisions and the regulations issued thereunder.

However, OSHA regulations treat churches as a special case. Here is what the regulations say:

Churches or religious organizations, like charitable and nonprofit organizations, are considered employers under the Act where they employ one or more persons in secular activities. As a matter of enforcement policy, the performance of, or participation in, religious services (as distinguished from secular or proprietary activities whether for charitable or religion-related purposes) will be regarded as not constituting employment under the Act. Any person, while performing religious services or participating in them in any degree is not regarded as an employer or employee under the Act, notwithstanding the fact that such person may be regarded as an employer or employee for other purposes—for example, giving or receiving remuneration in connection with the performance of religious services.

This language is very important. It demonstrates that OSHA considers churches to be subject to the provisions of the Act and regulations, but for policy reasons no "enforcement" action will be taken against a church that violates OSHA regulations in the course of "the performance of, or participation in religious services" since "any person, while performing religious services or participating in them in any degree is not regarded as an employer or employee under the Act, notwithstanding the fact that such person may be regarded as an employer or employee for other purposes."

OSHA regulations list the following examples of religious organizations that would not be covered employers under the law:

• churches with respect to clergymen while performing or participating in religious services
• churches with respect to other participants in religious services such as choir masters, organists, other musicians, choir members, ushers, and the like

The regulations demonstrate that OSHA considers church activities outside the narrow context of religious services to be subject to the Occupational Safety and Health Act. As a result, church leaders should be familiar with any OSHA regulations banning text messaging by employees, since driving is not an act of worship and therefore is subject to OSHA regulation. OSHA can assess penalties against any covered employer, including churches that violate OSHA regulations.