Pastor, Church & Law

Negligent Selection

§ 2.01.06

In recent years many churches and denominational agencies have been sued because of the misconduct of clergy. Many cases have involved sexual misconduct. In most of these cases, liability is based on negligent selection. That is, the church or denominational agency failed to exercise reasonable care in the selection of the minister.

To illustrate, church employs a new youth minister without any investigation into his background. Within a few months the minister is charged with child molestation. Only then do church leaders learn that the minister left his previous church because of similar misconduct. The church may be sued on the basis of negligent selection—it failed to exercise reasonable care in the selection of the minister. This important topic is addressed in chapter 9.

Resources. Churches must exercise reasonable care in the selection of clergy in order to avoid potential liability based on negligent selection. Richard Hammar has created a number of resources to assist churches in discharging this responsibility. See www.churchlawandtax.com for details.

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1Definitions and Status
- § 1.01Distinctions Between the Terms Pastor, Clergy, Minister
- § 1.02Definition of the Terms Pastor, Clergy, Minister — In General
- § 1.03Status—Employee or Self Employed
  - § 1.03.01Social Security
  - § 1.03.02Income Taxes
  - § 1.03.03Retirement Plans
  - § 1.03.04Legal Liability
  - § 1.03.05Miscellaneous Federal and State Statutes
- § 1.04Status—Ordained, Commissioned, or Licensed
2The Pastor-Church Relationship
- § 2.01Initiating the Relationship—In General
  - § 2.01.01Congregational Churches
  - § 2.01.02Hierarchical Churches
  - § 2.01.03Compliance with a Church's Governing Instrument in the Selection of a Minister
  - § 2.01.04Civil Court Review of Clergy Selection Disputes—the General Rule of Non-Intervention
  - § 2.01.05Civil Court Review of Clergy Selection Disputes—Limited Exceptions to the General Rule
  - § 2.01.06Negligent Selection
- § 2.02The Contract
- § 2.03Compensation
- § 2.04Termination
3Authority, Rights, and Privileges
- § 3.01General Scope of a Minister's Authority
- § 3.02Officer of the Church Corporation
- § 3.03Property Matters
- § 3.04Performance of Marriage Ceremonies
- § 3.05Exemption from Military Duty
- § 3.06Exemption From Jury Duty
- § 3.07The Clergy-Penitent Privilege—In General
  - § 3.07.01A "Communication"
  - § 3.07.02Made in Confidence
  - § 3.07.03To a Minister
  - § 3.07.04Acting in a Professional Capacity as a Spiritual Adviser
  - § 3.07.05In the Course of Discipline
- § 3.08The Clergy-Penitent Privilege—Miscellaneous Issues
  - § 3.08.01Clergy-Parishioner Relationship
  - § 3.08.02Marriage Counseling
  - § 3.08.03Who May Assert the Privilege
  - § 3.08.04When to Assert the Privilege
  - § 3.08.05Waiver of the Privilege
  - § 3.08.06The Privilege in Federal Courts
  - § 3.08.07Constitutionality of the Privilege
  - § 3.08.08Child Abuse Reporting
  - § 3.08.09Confidentiality
  - § 3.08.10Disclosure to Civil Authorities
  - § 3.08.11Church Records
  - § 3.08.12Death of the Counselee
- § 3.09Visiting Privileges at Penal Institutions
- § 3.10Immigration of Alien Ministers, Religious Vocations, and Religious Occupations
- § 3.11Miscellaneous Benefits
4Liabilities, Limitations, and Restrictions
- § 4.01Negligence
- § 4.02Defamation—In General
  - § 4.02.01Pastors Who Are Sued for Making Defamatory Statements
  - § 4.02.02Pastors Who Are Victims of Defamation
  - § 4.02.03Defenses
- § 4.03Undue Influence
- § 4.04Invasion of Privacy
- § 4.05Clergy Malpractice
- § 4.06Contract Liability
- § 4.07Securities Law Violations
- § 4.08Failure to Report Child Abuse
- § 4.09Diversion of Church Funds
- § 4.10State Regulation of Psychologists and Counselors
- § 4.11Sexual Misconduct
  - § 4.11.01Theories of Liability
  - § 4.11.02Defenses to Liability
5Definitions
- § 5.01Tax Legislation—Federal
  - § 5.01.01Churches
  - § 5.01.02Mail Order Churches
  - § 5.01.03Other Religious Organizations
  - § 5.01.04Tax Legislation—State
- § 5.02Zoning Law
  - § 5.02.01Churches
  - § 5.02.02Accessory Uses
6Organization and Administration
- § 6.01Unincorporated Associations
  - § 6.01.01Characteristics
  - § 6.01.02Personal Liability of Members
  - § 6.01.03Creation and Administration
- § 6.02Corporations
  - § 6.02.01The Incorporation Process
  - § 6.02.02Charters, Constitutions, Bylaws, and Resolutions
- § 6.03Church Records
  - § 6.03.01Inspection
  - § 6.03.02“Accountings” of Church Funds
  - § 6.03.03Public Inspection of Tax-Exemption Applications
  - § 6.03.04Government Inspection of Donor and Membership Lists
  - § 6.03.05The Church Audit Procedures Act
  - § 6.03.06Who Owns a Church’s Accounting Records?
- § 6.04Reporting Requirements
  - § 6.04.01State Law
  - § 6.04.02Federal Law
- § 6.05Church Names
- § 6.06Officers, Directors, and Trustees—In General
  - § 6.06.01Election or Appointment
  - § 6.06.02Authority
  - § 6.06.03Meetings
  - § 6.06.04Removal
- § 6.07Officers, Directors, and Trustees—Personal Liability
  - § 6.07.01Tort Liability
  - § 6.07.02Contract Liability
  - § 6.07.03Breach of the Fiduciary Duty of Care
  - § 6.07.04Breach of the Fiduciary Duty of Loyalty
  - § 6.07.05Violation of Trust Terms
  - § 6.07.06Securities Law
  - § 6.07.07Wrongful Discharge of an Employee
  - § 6.07.08Willful Failure to Withhold Taxes
  - § 6.07.09Exceeding the Authority of the Board
  - § 6.07.10Loans to Directors
- § 6.08Immunity Statutes
  - § 6.08.01Directors and Officers Insurance
- § 6.09Members—In General
  - § 6.09.01Selection and Qualifications
  - § 6.09.02Authority
- § 6.10Members—Discipline and Dismissal
  - § 6.10.01Judicial Nonintervention
  - § 6.10.02“Marginal” Civil Court Review
  - § 6.10.03Preconditions to Civil Court Review
  - § 6.10.04Remedies for Improper Discipline or Dismissal
- § 6.11Members—Personal Liability
- § 6.12Meetings of Members
  - § 6.12.01Procedural Requirements
  - § 6.12.02Minutes
  - § 6.12.03Parliamentary Procedure
  - § 6.12.04Effect of Procedural Irregularities
  - § 6.12.05Judicial Supervision of Church Elections
  - § 6.12.06Who May Attend
- § 6.13Powers of a Local Church
- § 6.14Merger and Consolidation
- § 6.15Dissolution
7Church Property
- § 7.01Church Property Disputes—In General
- § 7.02Church Property Disputes—Supreme Court Rulings
- § 7.03State and Lower Federal Court Rulings
  - § 7.03.01Congregational Churches
  - § 7.03.02Hierarchical Churches—the Compulsory Deference Rule
  - § 7.03.03Hierarchical Churches—Neutral Principle of Law
- § 7.04Church Property Disputes—Dispute Resolution Procedures
- § 7.05Transferring Church Property
- § 7.06Zoning Law
  - § 7.06.01The Majority View: Churches May Build in Residential Zones
  - § 7.06.02The Minority View: The Government May Restrict Church Construction in Residential Zones
  - § 7.06.03Legal Remedies Available to Churches
  - § 7.06.04The Religious Land Use and Institutionalized Persons Act (RLUIPA)
- § 7.07Restricting Certain Activities Near Church Property
- § 7.08Building Codes
  - § 7.08.01Lead Paint on Church Property
- § 7.09Nuisance
- § 7.10Landmarking
- § 7.11Eminent Domain
- § 7.12Defacing Church Property
- § 7.13Restrictive Covenants
- § 7.14Reversion of Church Property to the Prior Owner
- § 7.15Materialmen’s Liens
- § 7.16Religious Discrimination in the Sale or Rental of Church Property
- § 7.17Removing Disruptive Individuals
- § 7.18Adverse Possession
- § 7.19Accounting for Depreciation
- § 7.20Premises Liability
  - § 7.20.01Liability Based on Status as Invitee, Licensee, or Trespasser
  - § 7.20.02Defenses to Premises Liability
  - § 7.20.03Use of Church Property by Outside Groups
  - § 7.20.04Assaults on Church Property
  - § 7.20.05Skate Ramps
  - § 7.20.06Sound Rooms
- § 7.21Embezzlement
- § 7.22Places of Public Accommodation
8Employment Law
- § 8.01Introduction: Selection of Employees
- § 8.02New Hire Reporting
- § 8.03Employment Eligibility Verification
- § 8.04Immigration
- § 8.05Negligent Selection
- § 8.06Introduction: Compensation and Benefits
- § 8.07Workers Compensation
  - § 8.07.01Treatment of Churches
  - § 8.07.02Compensating Employees Who Are Receiving Workers Compensation Benefits
  - § 8.07.03Dismissing Employees for Filing a Workers Compensation Claim
- § 8.08Fair Labor Standards Act
  - § 8.08.01Enterprises
  - § 8.08.02Individual Coverage
  - § 8.08.03Federal Court Rulings
  - § 8.08.04Department of Labor Opinion Letters
  - § 8.08.05Exemptions
  - § 8.08.06Ministers
  - § 8.08.07State Laws
  - § 8.08.08Case Studies
- § 8.09Introduction to Federal Employment and Civil Rights Laws—The “Commerce” Requirement
  - § 8.09.01Counting Employees
- § 8.10The “Ministerial Exception” under State and Federal Employment Laws
  - § 8.10.01Cases Recognizing the Ministerial Exception
  - § 8.10.02Cases Not Recognizing the Ministerial Exception
- § 8.11Procedure for Establishing a Discrimination Claim
- § 8.12Title VII of the Civil Rights Act of 1964
  - § 8.12.01Application to Religious Organizations
  - § 8.12.02Application to Religious Educational Institutions
  - § 8.12.03Religion as a "Bona Fide Occupational Qualification"
  - § 8.12.04Discrimination Based on Religion or Morals
  - § 8.12.05Sexual Harassment
  - § 8.12.06The Catholic Bishop Case
  - § 8.12.07Failure to Accommodate Employees’ Religious Practices
  - § 8.12.08The Religious Freedom Restoration Act
  - § 8.12.09The Civil Rights Act of 1991
- § 8.13The Age Discrimination in Employment Act
- § 8.14The Americans with Disabilities Act
  - § 8.14.01Discrimination in Employment
  - § 8.14.02Discrimination in Public Accommodations
- § 8.15Family and Medical Leave Act
- § 8.16Employer “Retaliation” Against Victims of Discrimination
- § 8.17Discrimination Based on Military Status
- § 8.18Employee Polygraph Protection Act
- § 8.19Occupational Safety and Health Act
- § 8.20Display of Posters
- § 8.21Discrimination under State Laws
  - § 8.21.01General Employment Discrimination Laws
  - § 8.21.02Discrimination Based on Sexual Orientation
  - § 8.21.03Discrimination Based on Use of Legal Substances
- § 8.22Termination of Employees
  - § 8.22.01Severance Agreements
- § 8.23National Labor Relations Act
- § 8.24Reference Letters
- § 8.25Employee Evaluations
- § 8.26Employment Interviews
- § 8.27Arbitration
- § 8.28Employee Handbooks
- § 8.29Employee Privacy
- § 8.30Insurance
9Government Regulation of Churches
- § 9.01Introduction
- § 9.02Regulation of Charitable Solicitations
- § 9.03Limitations on Charitable Giving
- § 9.04Federal and State Securities Law
- § 9.05Copyright Law
  - § 9.05.01Copyright Ownership
  - § 9.05.02Works Made for Hire
  - § 9.05.03Exclusive Rights
  - § 9.05.04Infringement
  - § 9.05.05The "Religious Service" Exemption to Copyright Infringement
  - § 9.05.06Electronic Media
  - § 9.05.10Other Exceptions to Copyright Infringement
- § 9.06Government Investigations
- § 9.07Judicial Resolution of Church Disputes
- § 9.08Political Activities by Churches and Other Religious Organizations
- § 9.09Bankruptcy Law
10Church Legal Liability
- § 10.01Negligence as a Basis for Liability—In General
- § 10.02Vicarious Liability (Respondeat Superior)
  - § 10.02.01The Requirement of Employee Status
  - § 10.02.02Negligent Conduct
  - § 10.02.03Course of Employment
  - § 10.02.04Inapplicability to Nonprofit Organizations
- § 10.03Negligent Selection of Church Workers—In General
- § 10.04Negligent Selection of Church Workers—Sexual Misconduct Cases Involving Minor Victims
  - § 10.04.01Court Decisions Recognizing Negligent Selection Claims
  - § 10.04.02Court Decisions Rejecting Negligent Selection Claims
  - § 10.04.03Risk Management
  - § 10.04.04The Relevance of Sexual Orientation in Selecting Youth or Children’s Workers
- § 10.05Negligent Selection of Church Workers—Sexual Misconduct Cases Involving Adult Victims
  - § 10.05.01Court Decisions Recognizing Negligent Selection Claims
  - § 10.05.02Court Decisions Rejecting Negligent Selection Claims
  - § 10.05.03Risk Management
- § 10.06Negligent Selection of Church Workers—Other Cases
- § 10.07Negligent Retention of Church Workers—In General
  - § 10.07.01Court Decisions Recognizing Negligent Retention Claims
  - § 10.07.02Court Decisions Rejecting Negligent Retention Claims
  - § 10.07.03Risk Management
- § 10.08Negligent Supervision of Church Workers—In General
- § 10.09Negligent Supervision of Church Workers—Sexual Misconduct Cases Involving Minor Victims
  - § 10.09.01Court Decisions Recognizing Negligent Supervision Claims
  - § 10.09.02Court Decisions Rejecting Negligent Supervision Claims
  - § 10.09.03Risk Management
- § 10.10Negligent Supervision of Church Workers—Sexual Misconduct Cases Involving Adult Victims
  - § 10.10.01Court Decisions Recognizing Negligent Supervision Claims
  - § 10.10.02Court Decisions Rejecting Negligent Supervision Claims
  - § 10.10.03Risk Management
- § 10.11Negligent Supervision of Church Workers—Other Cases
  - § 10.11.01Risk Management
- § 10.12Counseling—In General
  - § 10.12.01Risk Management
- § 10.13Breach of a Fiduciary Duty
  - § 10.13.01Court Decisions Recognizing Fiduciary Duty Claims
  - § 10.13.02Court Decisions Rejecting Fiduciary Duty Claims
  - § 10.13.03Risk Management
- § 10.14Ratification
- § 10.15Defamation
- § 10.16Defenses to Liability
  - § 10.16.01Contributory and Comparative Negligence
  - § 10.16.02Assumption of Risk
  - § 10.16.03Intervening Cause
  - § 10.16.04Statutes of Limitations
  - § 10.16.05Charitable Immunity
  - § 10.16.06Release Forms
  - § 10.16.07Insurance
  - § 10.16.08Other Defenses
- § 10.17Damages—In General
  - § 10.17.01Punitive Damages
  - § 10.17.02Duplicate Verdicts
- § 10.18Denominational Liability—In General
  - § 10.18.01Court Decisions Recognizing Vicarious Liability
  - § 10.18.02Court Decisions Rejecting Vicarious Liability
  - § 10.18.03Defenses to Liability
  - § 10.18.04Risk Management
  - § 10.18.05The Legal Effect of a Group Exemption Ruling
- § 10.19Risks Associated with Cell Phones
- § 10.20Risks Associated with the Use of 15-Passenger Vans
11A Summary of Constitutional History
12The Present Meaning of the First Amendment Religion Clauses
- § 12.01The Establishment Clause
  - § 12.01.01The Lemon Test
- § 12.02The Free Exercise Clause
  - § 12.02.01The Smith Case
  - § 12.02.02The Religious Freedom Restoration Act
  - § 12.02.03The City of Boerne Case
  - § 12.02.04Conclusions
13Significant First Amendment Issues
- § 13.01The Right to Witness
- § 13.02Prayer on Public Property other than Schools
- § 13.03Prayer During Public School Activities
- § 13.04Display of Religious Symbols on Public Property
- § 13.05Recurring Use of Public Property by Religious Congregations for Religious Services
- § 13.06Nonrecurring Use of Public Property by Adults for Religious Events and Activities
- § 13.07Use of Public School Property by Students for Religious Purposes
- § 13.08Sunday Closing Laws
- § 13.09The Right to Refuse Medical Treatment
- § 13.10Definition of "Religion" and "Religious"

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Pastor, Church & Law

Negligent Selection

Table of Contents

1Definitions and Status

§ 1.01Distinctions Between the Terms Pastor, Clergy, Minister

§ 1.02Definition of the Terms Pastor, Clergy, Minister — In General

§ 1.03Status—Employee or Self Employed

§ 1.03.01Social Security

§ 1.03.02Income Taxes

§ 1.03.03Retirement Plans

§ 1.03.04Legal Liability

§ 1.03.05Miscellaneous Federal and State Statutes

§ 1.04Status—Ordained, Commissioned, or Licensed

2The Pastor-Church Relationship

§ 2.01Initiating the Relationship—In General

§ 2.01.01Congregational Churches

§ 2.01.02Hierarchical Churches

§ 2.01.03Compliance with a Church's Governing Instrument in the Selection of a Minister

§ 2.01.04Civil Court Review of Clergy Selection Disputes—the General Rule of Non-Intervention

§ 2.01.05Civil Court Review of Clergy Selection Disputes—Limited Exceptions to the General Rule

§ 2.01.06Negligent Selection

§ 2.02The Contract

§ 2.03Compensation

§ 2.04Termination

§ 2.04.01Civil Court Review of Clergy Termination Disputes—the General Rule of Non-Intervention

§ 2.04.02Civil Court Review of Clergy Termination Disputes—Limited Exceptions to the General Rule

§ 2.04.03Civil Court Review of Clergy Termination Disputes—"Exhaustion" of Ecclesiastical Remedies

3Authority, Rights, and Privileges

§ 3.01General Scope of a Minister's Authority

§ 3.02Officer of the Church Corporation

§ 3.03Property Matters

§ 3.04Performance of Marriage Ceremonies

§ 3.05Exemption from Military Duty

§ 3.06Exemption From Jury Duty

§ 3.07The Clergy-Penitent Privilege—In General

§ 3.07.01A "Communication"

§ 3.07.02Made in Confidence

§ 3.07.03To a Minister

§ 3.07.04Acting in a Professional Capacity as a Spiritual Adviser

§ 3.07.05In the Course of Discipline

§ 3.08The Clergy-Penitent Privilege—Miscellaneous Issues

§ 3.08.01Clergy-Parishioner Relationship

§ 3.08.02Marriage Counseling

§ 3.08.03Who May Assert the Privilege

§ 3.08.04When to Assert the Privilege

§ 3.08.05Waiver of the Privilege

§ 3.08.06The Privilege in Federal Courts

§ 3.08.07Constitutionality of the Privilege

§ 3.08.08Child Abuse Reporting

§ 3.08.09Confidentiality

§ 3.08.10Disclosure to Civil Authorities

§ 3.08.11Church Records

§ 3.08.12Death of the Counselee

§ 3.09Visiting Privileges at Penal Institutions

§ 3.10Immigration of Alien Ministers, Religious Vocations, and Religious Occupations

§ 3.11Miscellaneous Benefits

4Liabilities, Limitations, and Restrictions

§ 4.01Negligence

§ 4.02Defamation—In General

§ 4.02.01Pastors Who Are Sued for Making Defamatory Statements

§ 4.02.02Pastors Who Are Victims of Defamation

§ 4.02.03Defenses

§ 4.03Undue Influence

§ 4.04Invasion of Privacy

§ 4.05Clergy Malpractice

§ 4.06Contract Liability

§ 4.07Securities Law Violations

§ 4.08Failure to Report Child Abuse

§ 4.09Diversion of Church Funds

§ 4.10State Regulation of Psychologists and Counselors

§ 4.11Sexual Misconduct

§ 4.11.01Theories of Liability

§ 4.11.02Defenses to Liability

5Definitions

§ 5.01Tax Legislation—Federal

§ 5.01.01Churches

§ 5.01.02Mail Order Churches

§ 5.01.03Other Religious Organizations

§ 5.01.04Tax Legislation—State

§ 5.02Zoning Law