Key point 10-18.04. Denominational agencies can reduce the risk of liability for the acts and obligations of affiliated churches, agencies, clergy, and lay workers by adopting risk management policies and procedures.
There are many ways for denominational agencies to reduce the risk of legal liability. Many of these are the same risk management strategies that may be employed by local churches, and they are addressed in previous sections of this chapter. Other risk management strategies are suggested in the previous subsection in which legal defenses available to denominational agencies are reviewed.
There are some risk management strategies that are unique to denominational agencies. Consider the following:
1. The Discipline of Ministers
Many denominational agencies ordain or license ministers, and reserve the authority to discipline ministers for violations of prescribed standards. Deciding whether or not to discipline ministers, and restore them to pastoral ministry, can be difficult questions because imprudent decisions may expose a denominational agency to liability for future misdeeds. Here are some factors that denominational agencies should consider in deciding whether or not to restore a disciplined minister to pastoral ministry:
- Type of misconduct. The type of misconduct is an important consideration. Some kinds of misconduct are more severe than others. For example, many juries would be aghast at the fact that a denomination allowed a minister previously dismissed or suspended for sexual misconduct to be restored to active ministry.
- Duration of misconduct. The duration of a minister’s misconduct is a relevant consideration. The longer the duration, the less likely rehabilitation will be effective.
- Number of incidents. The more separate incidents of misconduct, the less likely rehabilitation will be effective.
- Number of victims. The more victims, the less likely rehabilitation will be effective.
- Subsequent misconduct. Denominational leaders must recognize that the risk of liability increases significantly when a denomination disciplines and restores to pastoral ministry a minister who was previously disciplined for the same kind of offense.
- How the misconduct was discovered. Did the minister come forward and confess voluntarily? Or was the confession prompted by some external inducement, such as an awareness that the misconduct was about to be revealed.
- When the incident occurred. In some cases, the misconduct occurred many years ago and has not recurred. This is a relevant, but not conclusive, factor to consider.
- Restitution. If there is a “victim” to the minister’s misconduct, has the minister apologized to the victim and made appropriate restitution?
- Criminal nature of misconduct. A decision to rehabilitate an employee should take into account the potential for criminal prosecution.
- The strength of the evidence. In some cases the evidence of misconduct is not conclusive. In general, the legal risk associated with rehabilitating or reinstating a minister increases if the evidence of guilt is weak and conflicting.
- A counselor’s opinion. In some cases, denominational agencies have conditioned the discipline of ministers on the receipt of an opinion by a licensed psychologist or counselor that the minister no longer poses a risk of repeating the same kind of misconduct.
- Limited disclosure agreement. A number of courts have stated that denominational agencies can avoid legal liability for a disciplined minister’s repeat misconduct by disclosing to local churches the minister’s prior behavior at the time he or she is employed. To illustrate, one court ruled that a denominational agency was legally responsible for a pastor’s sexual misconduct since it was aware of a previous incident and failed to communicate this knowledge to the pastor’s employing church.307 Moses v. Diocese of Colorado, 863 P.2d 310 (Colo. 1993).It concluded that “[t]he failure to communicate this knowledge to the [church board] and subsequent placement of [the pastor] in the role of counselor breached the diocese’s duty of care to [the victim].” Of course, disclosing information regarding a minister’s previous discipline to a local church may expose a denominational agency to liability. This risk can be reduced by having disciplined ministers, as a condition of discipline, sign a “limited disclosure agreement” authorizing designated denominational officials to share with local church boards and pastoral search committees the nature and basis of the disciplined minister’s prior discipline. Such an agreement enables a local church to make an informed judgment on whether or not to call a pastor who has completed a rehabilitation program. Lay leaders in a local church are justifiably upset when their minister engages in inappropriate behavior and they later discover that a denominational agency failed to inform them that the minister had committed similar behavior at a previous church. There is no doubt that rehabilitated ministers will have a much more difficult if not impossible time finding employment if churches are advised of the nature of prior discipline. This is one unfortunate consequence of a minister’s misconduct. But denominational agencies are under no duty to “protect” a minister’s employability by concealing relevant information from local churches. The question is whether a denominational agency should protect a rehabilitated minister’s future employment prospects by concealing from prospective churches his or her past, or reduce its own risk of liability through full disclosure.
2. Accepting Ministers from other Organizations
Denominational leaders must scrutinize carefully any applicant for ministry that comes from another denomination. In some cases, ministers who are disciplined or dismissed in one denomination apply for ministry in another denomination. If such a minister later engages in the same type of misconduct for which he or she was previously disciplined or dismissed, the successor denomination may be legally responsible for such misconduct on the basis of negligent selection.