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2017 Legal  & Risk Management Briefing  for Church  Leaders 2017 Legal  & Risk Management Briefing  for Church  Leaders

2017 Legal & Risk Management Briefing for Church Leaders - PowerPoint Presentation

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2017 Legal & Risk Management Briefing for Church Leaders - PPT Presentation

2017 Legal amp Risk Management Briefing for Church Leaders 2017 Richard Hammar Introduction seetheglorycom the ideal telescope Meade 8 Schmidt Cassegrain Issue 1 Litigation Review ID: 762563

church court sex religious court church religious sex public state law discrimination pastor supreme board accommodation places sermon issue

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2017 Legal & Risk Management Briefing for Church Leaders © 2017 Richard Hammar

Introduction

seetheglory.com

the “ideal” telescope Meade 8” Schmidt-Cassegrain

Issue #1: Litigation Review

The Top 5 Reasons Religious Organizations Were in Court in 20162016 property disputes 8.7% sex w/child 8.3% personal injuries 8.3% insurance disputes 6.6% zoning, clergy termination 4.5%

Issue #2: Resignations

2 Questions Can a church employee rescind a letter of resignation?When is a resignation of a board member effective to cut off potential liability for board actions?

recent AL Supreme Court ruling pastor resigned, but later attempted to revoke his resignation at the request of members who supported himthe court concluded:“The dispute over whether the pastor resigned or not and if he did whether he may be rehired as pastor is for the majority of the congregation to decide. . . . The central, substantive dispute is whether the pastor is or is not the pastor and such is wholly spiritual and ecclesiastical in nature and the court cannot interfere.”

  other documents to consultA church’s constitution, bylaws, or other governing document.The state nonprofit corporation law under which a church is incorporated.Robert’s Rules of Order Newly Revised. A policy manual.An employee handbook. treat similar cases similarlynon-clergy resignations

The Idaho Supreme Court ruled that a church board member who informed other members of the board that he no longer wanted to be a board member remained a member of the board.“Whether a director has resigned, or has ceased to be qualified to hold or to hold title to, office as a director, are questions of fact to be determined from the circumstances of each case. . . . Idaho Code section 30–3–69(1) states: ‘A director may resign at any time by delivering written notice to the board of directors, its chairman, or the corporation.’ The permissive term ‘may’ applies to the right of a director to ‘resign at any time.’ The remainder of the sentence specifies what the director must do in

order to resign—’by delivering written notice to the board of directors, its presiding officer or to the president or secretary.’ Thus, although a director may resign at any time, the exclusive method for doing so is ‘by delivering written notice. . . .’ In addition to resignation, the district court also found that [two deacons] resigned by absenting themselves from the board. Initially, we note that absence from board meetings is only grounds for removal of a director when specifically provided for in the corporate documents. I.C. 30-3-70(9). Here, there is no such provision in the [church’s] Bylaws or Articles.”

Issue #3: Severance Agreements

what are they why use them2 issuesNLRB (protects concerted employee action to improve pay/working conditions)EEOCcovenants not to sue okay with “carve out” of employee’s right to “participate in a proceeding with any federal, state, or local government agency enforcing discrimination laws,” or“testify truthfully in any legal proceeding”

EEOC Guidance A waiver in a severance agreement generally is valid when an employee knowingly and voluntarily consents to the waiver. The rules regarding whether a waiver is knowing and voluntary depend on the statute under which suit has been, or may be, brought. . . . In addition to being knowingly and voluntarily signed, a valid agreement also must: (1) offer some sort of consideration, such as additional compensation, in exchange for the employee’s waiver of the right to sue; (2) not require the employee to waive future rights; and (3) comply with applicable state and federal laws.

More EEOC Guidance “Provisions in severance agreements that attempt to prevent employees from filing a charge with the EEOC or participating in an EEOC investigation, hearing, or proceeding are unenforceable.” “If your employer decides to terminate your job, you may be given a severance agreement that requires you to waive your right to sue for wrongful termination based on age, race, sex, disability, and other types

of discrimination.  Although most signed waivers are enforceable if they meet certain contract principles and statutory requirements, an employer cannot lawfully limit your right to testify, assist, or participate in an investigation, hearing, or proceeding conducted by the EEOC or prevent you from filing a charge of discrimination with the agency.  An employer also cannot lawfully require you to return the money or benefits it gave you in exchange for waving your rights if you do file a charge.”

Waivers and Releases: 16-Point Checklist strictly and narrowly construed by the courtscustomized form more likely to be enforcednot enforced if ambiguousnot enforced if involuntarynot enforced if releasor not apprised of risks to be released “ to the fullest extent permitted by law” known and unknown risks consideration death and injuries to minors intentional acts and gross negligence – specifically disclaimed not enforced if a contract of adhesion not enforced if release language is inconspicuous

signature under release provision even if also sign at end of documenteach participant signs his or her own formassumption of risk forms for adults (with same recommendations)parental consent forms for minor participationconsentcertify the minor is physically capable of participating (and can swim if a water even) lists allergies and medical conditions lists activities the child may not engage in medical authorization

Issue #4: SOGI Issues

sermon content church membershipemployment (the “ministerial exception”)“places of public accommodation”same-sex marriagesrestrooms for transgender individualsparticipation in church programs and activities

State and local laws prohibiting specified forms of discrimination by places of public accommodation22 states prohibit discrimination by places of public accommodation based on sexual orientation19 states prohibit discrimination by places of public accommodation based on gender identityreligious exemptions

analysis

Is there a state, county, or local law prohibiting discrimination by places of “public accommodation?” There currently is a patchwork quilt of hundreds if not thousands of such laws, which makes it impossible to answer specific questions without knowing the answers to the questions listed below.If a public accommodations (“PA”) law, what forms of discrimination are prohibited? Do they include SOGI?If a PA law, do churches satisfy the definition of a place of public accommodation?   If a PA law, does it matter if churches rent their property to nonmembers as a means of generating income? Does this make it more likely that

they will be deemed places of public accommodation?If a PA law, does it matter that the church allows outside groups to use its facilities at no charge, or at a fee designed to recoup expenses but not generate income? Does this make it more likely that they will be deemed places of public accommodation?Note: the property tax analogyIf a PA law, does the law in question provide any exemption for churches ? If #6 is yes, does your church meet any conditions that are necessary to qualify for the exemption ?

2 conclusions seem likely :Churches that do NOT rent their facilities to outsiders for marriages and other events face no civil liability for not allowing their facilities to be used to host a same-sex marriage, reception, etc. in violation of its religious beliefs.Churches that DO rent their facilities to outsiders for marriages and other events MAY face civil liability for not allowing their facilities to be used to host a same-sex marriage, reception, etc. even if same-sex marriages violate a church’s religious beliefs.

Recent Precedent #1: Massachusetts attorney general opinionMA attorney general opinion: churches are places of public accommodation subject to nondiscrimination provisions of the MA public accommodations lawlitigationrevised opinion:“The law does not apply to a religious organization if subjecting the organization to the law would violate the organization’s First Amendment rights. However , a religious organization may be subject to the state’s public accommodations law if it engages in or its facilities are used for a ‘public , secular function .’”

#2: Fort Des Moines Church v. Jackson, 2016 WL 6089642 (S.D. Iowa 2016)A church claimed that state and municipal antidiscrimination laws unconstitutionally interfered with its constitutional rights. The church wanted to communicate messages that would place qualifications based on gender identity on who may use its restrooms. It also wanted to explain its views supporting these qualifications through a sermon by one of its pastors. To these ends, it sought a preliminary injunction enjoining the enforcement of certain provisions of state and local public accommodations laws banning discrimination based on gender identity. Both laws contain exemptions for religious acts of religious institutions. Plaintiff alleges that it fears prosecution under the state and municipal discrimination bans if . . . its pastor delivers his sermon about biological sex and the Bible. However [this fear] is not objectively reasonable. All of the statutes, the ordinances, and the interpretations of the provisions appearing in the [state civil rights agency’s] guidance documents include an exemption for religious institutions when conducting religious activities. Although the definitive scope of this exemption is yet to be determined, the court concludes the delivery of a sermon by a pastor of a church is undoubtedly an act intended to serve “a bona fide religious purpose.” Indeed, it is a quintessential religious activity. See Fowler v. State of R.I., 345 U.S. 67 (1953) . . . [in which the Supreme Court ruled] that it is not within “the competence of courts under our constitutional scheme to approve, disapprove, classify, regulate, or in any manner control sermons delivered at religious meetings,” and “sermons are as much a part of a religious service as prayers”. Hence, plaintiff’s allegedly chilled course of conduct is not even arguably proscribed by the statute. Rather, it is expressly permitted. Accordingly, plaintiff’s fear of enforcement consequences if it delivers the sermon is not objectively reasonable because it does not face a credible threat of prosecution on that basis. . . . A plaintiff cannot show a threat of prosecution under a statute if it clearly fails to cover his conduct.

The court ruled that the pastor and church lacked “standing” to prosecute their claims in federal court:Plaintiff alleges that it fears prosecution under the state and municipal discrimination bans if . . . its pastor delivers his sermon about biological sex and the Bible. However [this fear] is not objectively reasonable. All of the statutes, the ordinances, and the interpretations of the provisions appearing in the [state civil rights agency’s] guidance documents include an exemption for religious institutions when conducting religious activities

The court concludes the delivery of a sermon by a pastor of a church is undoubtedly an act intended to serve “a bona fide religious purpose.” Indeed, it is a quintessential religious activity. See Fowler v. State, 345 U.S. 67 (1953) . . . [in which the Supreme Court ruled] that it is not within “the competence of courts under our constitutional scheme to approve, disapprove, classify, regulate, or in any manner control sermons delivered at religious meetings,” and “sermons are as much a part of a religious service as prayers”. Hence, plaintiff’s allegedly

chilled course of conduct is not even arguably proscribed by the statute. Rather, it is expressly permitted. Accordingly, plaintiff’s fear of enforcement consequences if it delivers the sermon is not objectively reasonable because it does not face a credible threat of prosecution on that basis. . . . A plaintiff cannot show a threat of prosecution under a statute if it clearly fails to cover his conduct.

#3: Hitching Post Weddings v. City of Coeur d’Alene, 172 F.Supp.3d 1118 (D. Idaho 2016).A federal district court in Idaho ruled that a married couple, both of whom were ordained ministers, lacked “standing” to challenge in federal court the constitutionality of a city ordinance “to deny to or to discriminate against any person because of sexual orientation and/or gender identity/expression the full enjoyment of any of the accommodations, advantages, facilities or privileges of any place of public resort, accommodation, assemblage, or amusement.”

The ordinance exempts “religious corporations, associations, educational institutions, or societies.”The City Attorney informed the couple that “they will not be prosecuted for refusing to perform same-sex marriages” and that “so long as they remain a religious corporation, they will not be prosecuted pursuant to the Ordinance No standing because no “injury ”

Issue #5: Child Abuse Reporting Update

Former Penn State president Graham Spanier sentenced to 60 days in prison (plus a year of house arrest) for failing to report allegations of child abuse by Jerry Sandusky endangering the welfare of a child by not reporting reasonable suspicion of child abuseprosecutor: Spanier is “a failure as a leader who chose to protect the school’s reputation over the well-being of innocent children”“I deeply regret that I did not intervene far more carefully” (Spanier)

“this is a fall from grace that is both unfortunate and well deserved” (sentencing judge) 2 other University officials sentenced to prison terms; one told the court during sentencing: “It sickens me to think I might have played a part in children being hurt. I am sorry that I did not do more, and I apologize to the victims.”relevance to church leaders

Issue #6: The Case for Defibrillators

definition ventricular fibrillation and cardiac arrestsurvival stats:2-5% after 12 minutes5% survival rate for out-of-hospital cardiac arrest50% survival rate for cardiac arrests occurring in places that have defibrillatorsaverage EMT response times (my church . . .)AHA’s “3 minute rule” of every 100 cardiac arrests: victims treated with CPR alone: 1-2 full recovery survival rate rises to 74% for victims who are defibrillated in 3 minutes

racial disparities how effective are they?90% success rate in detecting CA99% success rate in not sending shocks if VF not detectedcostease of usefoolproof?CPR sufficient?calling 911 sufficient? AHA recommends training in both CPR and AEDs placement, locked box, maintenance

keys for medical professionals, and persons with CPR/AED training factors to consider deciding whether to get an AEDsize of congregationfrequency of use of premisesfitness classes911 response timewillingness of members to be trained

liability issues: if AED failsif AED does not save the life of a CA victimif church has no AEDif church has AED but no one on hand to use it“Good Samaritan” lawsCardiac Arrest Survival Act

Issue #7: 15-Passenger Van Update: Are Newer Vans Safe?

recent safety measures electronic stability control (ESC, 2011)rearview cameras (2018)forward collision alerts (2022)are they safe enough to use?safety improvements do NOT address:high center of gravityflat sides contribute to instability in crosswinds seating configurations place excess weight on left rear tire (due to walkway to the rear seats being on right side) and contribute to instability

designed for the less rigorous standards of transporting cargo ”width of stance”inexperienced driverslack of maintenance, tire exams, etc.continue to be banned by public schoolsBEST PRACTICE . . .

NHTSA Current Recommendations tire pressure (inspect before each use; check B pillar recommendations)spares (they weaken with age even if unused)driver (CDL preferred; regular experience)attention (driver rested, attentive at all times, no cell phone use, limit conversation with passengers, 8 hrs/24hrs)speed (safe speed, slow down in rain)occupancy (fewer than 10)

cargo (forward of rear axle; nothing on roof; no trailer) seat belts (80% of fatalities not wearing seat belt)

Issue #8: Noted Briefly

Risk Multipliers 1. joint and several liabilityAL NCDE PAMD RIMA VA2. blue states3. judicial “hell holes” St. Louis California NYC FL supreme court and south FL New Jersey

Cook, Madison, St. Clair counties in IL LouisianaNewport News, VAHidalgo county, TX“watch list”GA supreme courtMcLean county, ILMontana supreme courtnorthern district of TX federal court PA supreme court Pittsburgh, PA West Virginia

3 SCOTUS developments

1. Will hear appeal in Masterpiece Cakeshop v. Colorado Civil Rights Commission caseIssue: Can a bakery owned by evangelical Christians refuse, on religious grounds, to bake a cake for a same-sex couple’s wedding?Public accommodation laws vs. religious freedom2. CA concealed carry law (“good cause”) cert. denied

3. Trinity Lutheran Church v. Comer (7-2) A church applied for Missouri's Scrap Tire Grant Program so that it could provide a safer playground for children who attend its daycare and for neighborhood children who use the playground after hours--a purely secular matter. The state denied the church’s application solely because it is a church. Supreme Court:“This Court has repeatedly confirmed that denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest of the highest order.”

“The exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution . . . and cannot stand.”

Other Developments Several donors lost charitable contribution deductions in 2016-17 due to the church’s failure to provide a receipt complying with the code and regulations.An Indiana appeals court ruled that a husband and wife could sue the state for the emotional suffering they experienced as a result of the disclosure of the husband’s identity as the person who reported five neighbors on his church bus route to the child abuse hotline.

An Ohio court awarded $4.5 million in damages to parents whose 2 daughters were sexually molested by an associate pastor AND ruled that the damages were not covered by the church’s liability insurance.A New York court authorized a church to ignore the investment restrictions in a decedent’s will and invest estate funds under the Prudent Investor Act.

A Pennsylvania court rejected a church’s request for permission to invade the principal of a $1 million charitable trust whose terms provided only for distribution of income. The court concluded:The plain language of Article IV does not permit discretionary distributions from the corpus of the trust when needed or requested by the church

in order to sustain its financial viability. To the contrary, the language indicates unequivocally that the trust is to be held perpetually and only the income is to be distributed to the respective beneficiaries. Invasions of principal would deplete the trust so that it would not be perpetual, in violation of the settlor’s clearly-articulated intent.

6. A federal district court in Colorado ruled that sex offender registries violate the Constitution’s ban on cruel and excessive punishments. an appeal is likelyformer Supreme Court precedent (Alaska; 2003; 5-4)Registries based on “grave concerns over the high rate of recidivism among convicted sex offenders and their dangerousness as a class.” The Court quoted from a U.S. Department of Justice study: "When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault."

In a 2003 ruling upholding the constitutionality of the Connecticut sex offender registry, the United States Supreme Court observed: "Sex offenders are a serious threat in this Nation. In 1995, an estimated 355,000 rapes and sexual assaults occurred nationwide. Between 1980 and 1994, the population of imprisoned sex offenders increased at a faster rate than for any other category of violent crime. As in the present case, the victims of sexual assault are most often juveniles. In 1995, for instance, a majority of reported forcible sexual offenses were committed against persons under 18 years of age. Nearly 4 in 10 imprisoned violent sex offenders said their victims were 12 or younger. When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault .”

Impact on screening church volunteers and employees

Resources

Churchlawandtax.com