YOUTH LEADER SEXUAL MISCONDUCT REPORTING

In the era of transparency, churches and denominations are publicly revealing sexual misconduct claims that in prior generations would not have been made public.  Youthful indiscretions of non-clergy lay members in prior generations would not have been considered a matter of church transparency.  That is no longer the case.  Those churches or denominations that have been forced into bankruptcy law protection by similar claims may publicly reveal sexual misconduct claims.  The question may then arise, for the non-clergy lay person that was a youth leader, can they get their name off such a public disclosure.

In the bankruptcy of the Roman Catholic Church of the Archdiocese of Santa Fe, Opinion (Bankr. D. NM 2021), the federal bankruptcy court in New Mexico had to decide whether to lift the bankruptcy stay in order to permit the state court Plaintiff’s defamation case to proceed.  The state court Plaintiff alleged he was defamed by being listed by the church in its public disclosure regarding sexual misconduct of “Priests, Deacons, and Religious Accused of Sexual Abuse of Children.”  The victim’s complaint was that the Plaintiff, a 19-year-old youth leader in 1970 was accused by the then 17-year-old victim of rape and molestation in a complaint filed in 1995 by the now deceased victim.  The Plaintiff alleged the sexual encounter was consensual.  The church listed the then 19-year-old Plaintiff as a “Benedictine brother” but Plaintiff denied he was ever such, nor was he ever a church employee.  Plaintiff attended seminary for a couple of years but was never ordained in any capacity.  Plaintiff served as a “lay minister” for 39 years (but the Court’s understanding of the role of a “lay minister” in the church in question was not explained).  After being listed, Plaintiff was no longer allowed by the church to serve in any capacity.  Plaintiff wrote a $5,000 check in 1997 and gave it to his lawyer but could not say how the money was used.  However, the victim’s lawsuit was settled, apparently by the church and its insurer, and the Court did not know whether part of the money came from Plaintiff.  The federal bankruptcy court refused to lift the stay because Plaintiff could not disprove that the victim made a complaint in 1995.  The Court held that the settlement precluded any finding the allegations were untrue.  The Court held the Plaintiff should have “appealed the decision through the church’s appellate channels.”  The Court cited no church authority or governing document regarding the availability of such a process.

The facts in the reported case are so odd that extrapolating principles from the case involve a degree of risk.  Also, the Court’s “findings” seemed to involve several inferential leaps.  In any event, publicly disclosing sexual misconduct allegations regarding a non-clergy, non-employee, 19-year-old seems to be risky and probably should not be done without an excruciatingly careful review of the facts and claims.  The first claim that could have been more carefully examined was whether in New Mexico in 1970 a 19-year-old could be a “Benedictine brother.”

DRAMA TEACHERS AND EMPLOYMENT LAW

Church and parachurch employers, especially church schools, struggle with whether federal discrimination statutes govern their employment decisions.  The First Amendment’s clear language, “shall make no law respecting an establishment of religion,” is constantly in doubt by some jurists.  To them, sweeping freedom cannot possibly be the intent of the draftsman.

In Billard v Charlotte Catholic High School, Order (WD NC, 2021), the Plaintiff started out as a full-time drama teacher and performed as such for over ten years.  During that time the Plaintiff’s heterosexual marriage to a woman ended in divorce.  During that same time, the Plaintiff began a relationship with a male.  The Plaintiff retired from full time teaching but continued as a substitute teacher for two years.  The Plaintiff was not required to sign an employment contract as a substitute teacher.  During that period, the Plaintiff announced on Facebook engagement to a male.  Thereafter, Plaintiff was not recalled to substitute.  Upon inquiring about why no further substitute teaching assignments were forthcoming, Plaintiff was told by an Assistant Principal that Plaintiff could no longer act as a substitute teacher because of the Facebook announcement of same sex engagement.  The federal trial court granted summary judgment to Plaintiff on a Title VII discrimination claim.  Because Plaintiff was a teacher of a secular subject, because the school did not require religious training or duties of such teachers, and because the school did not require the teachers to ascribe to any particular denomination, the federal trial court held the Ministerial Exception did not apply.  The federal trial court held “as of now, religious employers have strong legal protections for hiring and firing employees who have a role in promoting their religion’s message if the employment decision is religiously motivated.”  The Plaintiff, however, had no such duties and the church school was not shielded from Title VII duties or liabilities.

Church schools that intend for their employees to comply with church doctrine should require it in employment contracts.  Those contracts should contain morals clauses.  Those same rules should appear in employee handbooks.  Both should be drafted by lawyer.  The employee should sign a receipt for the handbook.  The absence of both the handbook and the contract in the reported case probably contributed to the outcome.  Another problem arises when a church school cannot make up its mind about whether it is, or is not, denominational, non-denominational, or secular.  In the reported case, the secular subject teachers may have been separated from religious instruction or observance, which seems anachronistic in a church school.

INDEMNIFICATION OF ATTORNEY FEES

The statutes governing non-profit corporations in some states require that employees or “representatives” be indemnified for legal fees in lawsuits in which they are named because of their title or position in the non-profit.  Such statutes do not apply to personal matters that end up court.  However, even a matter that seems merely personal may be escalated by a Plaintiff searching for a Defendant with more resources than that of an individual.

In Kawimbe v African Methodist Episcopal Church, Inc., Opinion and Order (ND GA, 2021) the federal trial court in Georgia dismissed the Plaintiff’s lawsuit to recover attorney fees.  The Plaintiff was the subject of a disciplinary proceeding in the denomination that resulted in a jury trial.  The jury was composed of ministers of the denomination.  The Plaintiff hired legal counsel to conduct the jury trial and prevailed.  However, the legal fees amounted to $75,000.  The Plaintiff claimed the denomination owed the Plaintiff indemnification for the attorney fees expended defending the internal disciplinary proceeding.  The denomination’s governing document incorporated Pennsylvania law and Plaintiff invoked that state’s non-profit corporation indemnification statute.  The federal trial court, however, held the Ministerial Exception did not apply because indemnification for legal fees can be a matter of contract and decided using Neutral Principles of Law and that the indemnification issue did not implicate hiring or firing of clergy.  But, the federal trial court held that in order to determine if Plaintiff’s cost of defense of the disciplinary proceeding was incurred because of his “representative status,” as a Bishop, an element of the statute, the court would be required to inquire into ecclesiastical matters barred by the Ecclesiastical Abstention Doctrine.  The court held it would have to inquire into the duties of a Bishop, the nature of the disciplinary complaint in reference to the denomination’s governing documents and possibly other inquiries.

Written employment contracts that contain indemnification provisions may allow a court to invoke Neutral Principles of Law and decide whether clergy or non-clergy can recover attorney fees expended in their defense of claims, either internal or external.  Denominational governing documents and local church governing documents sometimes contain indemnification clauses, too, that can likewise be subjected to review under Neutral Principles of Law.  The reason may be that the court can assume the clause has been reconciled with ecclesiastical concerns and would not have been included if there was an ecclesiastical issue, or such an issue would have been stated in the clause.  Generic non-profit corporation statutes may not be as easily applied because no similar assumption can be made.

ONE LESS RISK FROM GOVERNMENT MONEY

Non-profit organizations that take federal or state funds usually must abide with governmental rules for use of the money, and sometimes other rules as well.  Church schools are the most prone to government intrusion if their funding is in part or in whole from government sources.  However, there are limits to the power of government money to compel submission by churches and denominations.

In Rutland v Nelson, Slip Op., Per Curiam (11th Cir. 2021), the federal appellate court affirmed dismissal of a case by a federal Florida trial court.  The Plaintiff was by church and denominational disciplinary proceedings banned from all church property and from speaking to the denomination’s clergy.  The federal trial court held that the Ecclesiastical Abstention Doctrine of the First Amendment barred judicial intrusion into church disciplinary proceedings and dismissed the case.  On appeal, the Plaintiff argued that because the denomination accepted federal funds, it was subject to judicial review of his complaints discrimination based on “disability, veteran status, and religion.”  The United States Court of Appeals for the 11th Circuit rejected that as a basis for shrinking or terminating First Amendment protection or expanding judicial authority.

At least for now, taking government money is not automatically a key to the church doors.