How long does a denomination or local church have to investigate sexual misconduct allegations against personnel? Most governing documents that address the question, and most are actually altogether silent or do not differentiate such allegations from other matters of discipline, do not set a time limit on investigations or discipline. Stated another way, must the duration of such an investigation be “reasonable?”
In Taylor v Evangelical Covenant Church, 2022 IL App (1st) 210524, Slip Op., the trial court’s decision to dismiss the case with prejudice was affirmed. The Plaintiff was suspended by the denomination from pastoral duties in 2017 pending investigation of a sexual misconduct claim alleged to have arisen in the 1970s. The defendant denomination licensed pastors and had the authority to suspend them. The defendant denomination investigated during 2017 – 2018 and reinstated Plaintiff’s licensure but did not reinstall him in another local church as pastor by the time suit was filed in 2020. In the interim the local church that previously employed Plaintiff hired a replacement. The Plaintiff alleged the denomination violated its governing documents by “keeping Plaintiff in a suspended status for an unreasonably lengthy period.” The appellate court determined that the substance of Plaintiff’s pled claims related to “internal matters of church governance and discipline” including the claim about undue or unjust delay. Therefore, the Ecclesiastical Abstention Doctrine precluded court review.
The governing documents need not set time limits on investigations, discipline, or any other matter of internal church governance. Indeed, it is probably better that they do not. The actual procedures the denomination used on the fifty year old sexual misconduct allegation were not set forth in the opinion. Nor was there any report of whether the investigation found the allegations credible. The reinstatement of the licensure of the Plaintiff seemed to indicate the allegations were not found credible. That the Plaintiff had not be reinstalled as a church pastor may or may not indicate anything other than supply and demand given the lack of specifics in the opinion.
Unincorporated church associations are governed, in some states, by a “non-profit organization” statute. Such a statute may impose on the church association certain requirements to disclose financial records to members of the association. An unincorporated church association can also have a Constitution and Bylaws. The trap for the unwary is that such Constitution and bylaws, while not identical to those of an incorporated church, will not be effective as governing documents if they lack specificity similar to corporate cousins.
In the case of In Re Lee Edward Thomas, Slip Op. (Tex. Civ. App. 6th 2022), the Constitution and Bylaws of the unincorporated church association did not specify the procedure for termination of the pastor but did specify the procedure for hiring the pastor. The same documents also described duties of a finance committee but did not disclose the method or procedure for appointment of finance committee members. When the church split spilled into the street, each faction claimed it represented the congregation. At stake was control of the church property and several hundred thousand dollars. The bank holding the money threw up its hands and sought to interplead the money. The trial court held the issue of the employment, or unemployment, of the pastor was outside the jurisdiction of the court because of the Ecclesiastical Abstention Doctrine. Because the Constitution and Bylaws did not specify the method of selection of the finance committee members, their appointment was a matter of church governance, claims about which were barred by the Ecclesiastical Abstention Doctrine. The court could not determine whether the allegedly voting members were in fact members because the church had not maintained an official membership roll. However, embezzlement, conversion and breach of fiduciary duties claims were retained to the extent they could be decided by Neutral Principles of Law.
Unincorporated church associations have the same needs for governing documents and membership rolls as do incorporated churches. The governing documents can certainly be inspired by the religious beliefs of members but the practical, secular, and, yes, worldly aspects should be drafted by a lawyer consistent with state statutory requirements. Governing boards of unincorporated church associations should keep minutes just like incorporated churches and for the same reasons, such as documenting adoption of an annually updated membership roll and amendment of governing documents. Without such, the unincorporated church association will fall into disorder which will be laid bare in an internal dispute.
Churches and parachurch organization often struggle with representations regarding the funding needs of the moment followed by spending which might not exactly match the representations after the crisis has passed. Also, using funds for “ministry” might mean one thing to a member and something different to the leader of a church or parachurch organization in the best of times much less in a crisis. The level of disclosure regarding the use of donated funds might lack clarity because the purchase of a box of paper clips, much less salaries and benefits, might be viewed as a cost of “ministry” by some but not others.
In Dux v Bugarin, Slip. Op. (Mich. App. 2021), the trial court dismissed the lawsuit by a group of parishioners disgruntled because the denomination determined that a forty-year-old allegation of sexual misconduct by the church pastor was “credible,” removed the pastor, and published the allegation. The allegation of sexual misconduct was investigated by law enforcement at the request of the church. The Plaintiffs claimed the publication of the sexual misconduct claim was a tort of outrage. The court held the Ecclesiastical Abstention Doctrine precluded the court from reviewing the denomination’s methodology in investigating and evaluation of the claim. The court likewise held that the publication that the denomination found the allegation “credible” was also an ecclesiastical matter because the weight to give to the allegation, as well as the evaluation of the conduct in question, was as ecclesiastical as the choice of method to communicate with members. The allegation that representations by the denomination’s parachurch organization that it would not use donations to pay settlements in sexual misconduct cases were false could not be evaluated by the court. Some funds, and not necessarily those donated by the Plaintiffs, were used to pay for treatment of the alleged victim and to pay for the investigation. The court held that only the church and its parachurch arm could determine whether the expenditures were “ministry” or some other similar use of funds.
Fraudulent donation claims will be effective against embezzlers and thieves. However, such claims will not likely be useful to redirect the flow of funds from one seemingly legitimate use to another. Only incredibly precise representations of the contemplated use of donated funds will make an inquiry possible but even then there will always be some reasonable discretion to use the funds otherwise.
Clergy accused of molestation or child sexual abuse may be subject to criminal prosecution, civil lawsuits, and church disciplinary actions. In the latter category, the church, all of them, had to face the grim reality that failure to publicly reveal a finding of credibility in such an investigation will no longer be tolerated by church members, especially those otherwise loyal to the offering basket. The church found that the instinctive response of a church to rehabilitate, forgive, and to reinstate was no longer viable for clergy. The church came to this realization late because the church did not soon enough see the need to treat clergy with seemingly less compassion than laity.
In Foley v McElroy, Slip. Op. (Cal. App. 2021) the state appellate court affirmed dismissal of the Plaintiff’s defamation claim by the trial court. The Plaintiff sued because the church listed Plaintiff as “”credibly accused” of child molestation.” The church disclosed Plaintiff based on two allegations even after a church canonical trial as to one of the allegations “found him “not guilty.”” The appellate court noted by analogy that “[a] basic tenet of American criminal justice is that a not guilty verdict is not a determination of factual innocence.” To make a defamation claim, the Court held the Plaintiff would have to prove actual innocence and not merely that in a prior adjudication the “prosecution” did not make their case. In any event, only one prior allegation was adjudicated and not the other. Therefore, the Plaintiff failed to state a claim for defamation under California law.
While the criminal justice system has the nearly impossible task of determining the truth and punishing the guilty, the church should not undertake such efforts for clergy. The church that engages in such tasks will find itself not only ill-equipped but accused of aiding and abetting. The accusation will not come in the criminal justice system, except in rare cases, but rather in the court of public opinion. The church will find itself even less well equipped to defend itself in the court of public opinion. Indeed, the church will seem to have lost its way and to have abandoned its true mission. Meanwhile, clergy defamation claims are rarely tenable and less often successful because the claims cannot bypass the fortress defenses.