28 February 2008

A Church Liability Nightmare

Last summer, continuing its long slow slide toward valuing homoerotic behavior over Scripture, my former denomination, the ELCA, passed this resolution:

Substitute Motion for Model Memorial cited in Recommendation E3: Restraint in Discipline Proceedings. (The Landahl Motion)

RESOLVED, that in an effort to continue as a church in moral deliberation without further strife and pain to its members, the Churchwide Assembly prays, urges, and encourages synods, synodical bishops, and the presiding bishop to refrain from or demonstrate restraint in disciplining those congregations and persons who call into the rostered ministry otherwise-qualified candidates who are in a mutual, chaste, and faithful committed same-gender relationship; and be it further

RESOLVED, that the Churchwide Assembly prays, urges, and encourages synods, synodical bishops, and the presiding bishop to refrain from or demonstrate restraint in disciplining those
rostered leaders in a mutual, chaste, and faithful committed same-gender relationship who have been called and rostered in this church.

(The amendment and other proceedings are available at ELCA.org in the 2007 Churchwide Assembly (CWA) reports.)
To the chagrin of my former colleagues, I have publicly commented that this represents a potential nightmare of legal liability for local congregations. Here is my argument for that, as posted on listserv this week.

I have said this before, but I think it bears repeating. This resolution has potentially created a liability nightmare for local congregations. The ELCA as an entity, and the synods of which it is composed, have been legally and corporately structured in such a way as to (they hope) insulate themselves from lawsuits over pastoral misconduct.

The CWA has potentially stuck it to every congregation where the pastor goes astray. How?, you ask. Like this:

In trial law, a significant part of the defense for an employer against a lawsuit regarding the misbehavior of an employee is if the employer has rules and regulations governing the conduct of employees. If you have made a good-faith effort to have a policy in place for how the employee was to act and what procedures they were to follow, and you could demonstrate a good-faith effort to train the employees in the proper procedures to protect the interests of the clients, you are generally shielded from excessive liability judgments in actions brought against you by disgruntled clients. In order to overturn liability limits in many industries, the client/plaintiff would need to demonstrate either gross negligence or willful misconduct. If they could demonstrate either, your liability could potentially be unlimited.

To explain this with a practical example: under the Warsaw Convention of 1929, as updated, the legal limit that you can collect from an airline in the event of the death of a loved one on board an airplane is US$250,000. If, however, you can show that the airline displayed gross negligence or willful misconduct in its operations, you can collect as much as a jury wishes to give you. That is the basis for lawsuits against United and American Airlines over September 11 (I am not sure of the current status of the suits, but this is background to them, and they were filed.) The lawsuits claim that the airlines should have known - gross negligence - or did know - willful misconduct - that someone might hijack a plane and crash it into a building, and therefore the airlines have unlimited liability in their failure to foresee and prevent 9/11.

Part of the airline's defense is that they had security procedures that met industry standards, that they follow government regulations and are therefore limited in their liability.

What does this have to do with the Landahl resolution? Suppose that a local ELCA pastor engages in sexual misconduct. The local church has as part of its defense in a liability lawsuit the fact that they are part of an organization, the ELCA, which has standards for clergy conduct. But the CWA has now instructed the ELCA , for all intents and purposes, not to enforce those standards for clergy conduct. That means that a significant leg in the local congregations' defense has been pulled out from underneath them.

In the airline example above, imagine the impact on the lawsuit if there are minutes from a shareholders meeting where a resolution passed instructing the airline not to take all possible security measures, if they compromised an employee's sense of justice. It would be almost the same as if there were no security measures in place at all, because it is completely subjective. That is functionally what the ELCA CWA has done.

Yes, you can argue that the ELCA is only not enforcing their policy in a very limited set of circumstances. But, I can tell you that I would not want to be the out-of-town insurance company attorney trying to split those hairs in front of a jury when some local residents, be they kids or adults, have been injured by a pastor's sexual misconduct.

I have always maintained that churches are relatively safe from large lawsuits, because no judge was going to hand over 100-year-old church property over an accident. I believe that this is the exception to that rule.

And yes, most churches have insurance that covers against pastoral sexual misconduct. One major loss, however, and churches are going to find that that insurance either becomes astronomically priced or simply unavailable, because the Landahl resolution, in removing the congregations defense, has also removed the insurance company's liability limit.

If I am right, and frankly, I pray I am not, the Landahl resolution may well have very long-lasting implications for the ELCA and for local congregations.

No comments: