Floyd L. Jennings, J.D., Floyd L. Jennings, J.D., Ph.D.Ph.D.

Assessment of Clergy Assessment of Clergy Candidates: Legal IssuesCandidates: Legal Issues

1

DisclaimerDisclaimer

This presentation is not intended This presentation is not intended to be, nor should it be construed to be, nor should it be construed as:as:

Supplanting consultation with Supplanting consultation with your chancellor, and/or GCFA your chancellor, and/or GCFA Legal Services, orLegal Services, or

Consultation with your BishopConsultation with your Bishop.. The opinions represented here The opinions represented here

are my own.are my own.2

Issues for the ChurchIssues for the Church

Liability – for the Church, with a Liability – for the Church, with a plaintiff candidate plaintiff candidate

Liability – for the Church, with a Liability – for the Church, with a 33rdrd party plaintiff party plaintiff

3

Liability: Psychological Liability: Psychological Assessments – by ChurchAssessments – by Church Specifically, does liability attach Specifically, does liability attach

to Annual Conferences for to Annual Conferences for conducting psychological conducting psychological evaluations of candidates?evaluations of candidates?

And, does HIPAA or Title VII, or And, does HIPAA or Title VII, or the ADA apply to psychological the ADA apply to psychological evaluations of clergy? (Issue for evaluations of clergy? (Issue for both Church and MAS)both Church and MAS)

4

Issues: For the MASIssues: For the MAS

To what extent do MASTo what extent do MAS’’s have s have liability for conducting evaluations of liability for conducting evaluations of clergy candidates?clergy candidates?

What competing roles – if any – exist?What competing roles – if any – exist? Assessment issues – Legal & EthicalAssessment issues – Legal & Ethical Special competencies for Special competencies for

ethnically/racially diverse populationsethnically/racially diverse populations

5

Legal principlesLegal principles

11stst Amendment – establishment Amendment – establishment and free exercise clausesand free exercise clauses

Watson v. JonesWatson v. Jones, 80 US 679 , 80 US 679 (1871)(1871)

““The law knows no heresy, and The law knows no heresy, and is committed to the support is committed to the support [***90] of no dogma, the [***90] of no dogma, the establishment of no sect…”establishment of no sect…”

6

Legal principles p2Legal principles p2

Watson v. JonesWatson v. Jones, 80 U.S. 679 , 80 U.S. 679 (1871)(1871)

““It would be a vain consent and It would be a vain consent and would lead to the total would lead to the total subversion of such religious subversion of such religious bodies, if any one aggrieved by bodies, if any one aggrieved by one of their decisions could one of their decisions could appeal to the secular courts and appeal to the secular courts and have them reversedhave them reversed””

7

Liability: None for the Liability: None for the Church viz. the Church viz. the

CandidateCandidate No liabilityNo liability exists for requiring exists for requiring psychological assessment of clergy psychological assessment of clergy candidates. See candidates. See Starkman v. EvansStarkman v. Evans,, 198 F3d 173 (5198 F3d 173 (5thth Cir. 1999), discussion Cir. 1999), discussion of 1of 1stst Amendment ministerial Amendment ministerial exceptionexception

Neither the ADA nor Title VII applyNeither the ADA nor Title VII apply See See Watson v. JonesWatson v. Jones, 80 U.S. 679 , 80 U.S. 679

(1871). Civil Courts may not resolve (1871). Civil Courts may not resolve ecclesiastical disputesecclesiastical disputes..

8

Liability: None for the Church Liability: None for the Church viz. the Candidateviz. the Candidate

Basis of court decisions:Basis of court decisions:a)a) The The ““ministerial exceptionministerial exception”” arises out arises out

of 1of 1stst Amendment establishment and Amendment establishment and freefree exercise exercise clauses clauses

b)b) This exception has the effect of also This exception has the effect of also exempting the Church from the exempting the Church from the application of Title VII and the ADAapplication of Title VII and the ADA

c)c) This exception applies to This exception applies to clergyclergy and and the “spiritual functions” of the church, the “spiritual functions” of the church, i.e. not to lay employees i.e. not to lay employees per seper se

9

Liability: None for the Liability: None for the Church by CandidateChurch by Candidate

Minker v. Baltimore Ann. Conf.Minker v. Baltimore Ann. Conf., , 894 F2d 1354 (D.C. Cir. 1990). 894 F2d 1354 (D.C. Cir. 1990). ““We cannot imagine an area of We cannot imagine an area of inquiry less suited to a temporal inquiry less suited to a temporal court for decision; evaluation of court for decision; evaluation of the the ‘‘gifts and gracesgifts and graces’’ of a of a minister must be left to minister must be left to ecclesiastical institutions.ecclesiastical institutions.””

10

Liability: None for the Liability: None for the Church by CandidateChurch by Candidate

Combs v. Cent. TX. Conf.Combs v. Cent. TX. Conf., 173 , 173 F3d 343 (5F3d 343 (5thth Cir. 1999). An Cir. 1999). An associate at 1associate at 1stst Church, Hurst Church, Hurst was terminated and claimed was terminated and claimed violation of FMLA & Title VII. The violation of FMLA & Title VII. The court asserted court asserted ““the fundamental the fundamental right of churches to be free from right of churches to be free from government interference in their government interference in their internal management and internal management and administration…administration…””

11

Illustrative casesIllustrative cases

McDowell v. Calvin Presbyterian McDowell v. Calvin Presbyterian ChurchChurch, 397 F.3d 790 (9, 397 F.3d 790 (9thth Cir. Cir. 2005)2005)

Serbian E. Orthodox Diocese for Serbian E. Orthodox Diocese for the U.S. and Can. v. Milivojevichthe U.S. and Can. v. Milivojevich, , 426 U.S. 696 (1976)426 U.S. 696 (1976)

Lewis v. Seventh-Day Adventists Lewis v. Seventh-Day Adventists Lake Region ConferenceLake Region Conference, 978 , 978 F.2d 940 (6F.2d 940 (6thth Cir. 1992) Cir. 1992)

12

Starkman v. Evans -1Starkman v. Evans -1

Louisiana Conference case, 1992, Louisiana Conference case, 1992, decided 1999.decided 1999.

Organist sued under ADAOrganist sued under ADA The "ministerial exception The "ministerial exception

encompasses all employees of a encompasses all employees of a religious institution, whether religious institution, whether ordained or not, whose primary ordained or not, whose primary functions serve its spiritual and functions serve its spiritual and pastoral mission.”pastoral mission.”

Catholic University, Catholic University, 83 F.3d at 46383 F.3d at 463

13

McClure v. Salvation McClure v. Salvation ArmyArmy

McClure v. Salvation Army, 460 F.2d 553 (5th Cir.1972), the Fifth Circuit first articulated the the Fifth Circuit first articulated the "ministerial exception" to employment "ministerial exception" to employment discrimination claims. In McClure, this discrimination claims. In McClure, this court held that the application of the court held that the application of the provisions of Title VII to the employment provisions of Title VII to the employment relationship existing between the plaintiff relationship existing between the plaintiff and her church "would result in an and her church "would result in an encroachment by the State into an area of encroachment by the State into an area of religious freedom which it is forbidden to religious freedom which it is forbidden to enter by the principles of the free exercise enter by the principles of the free exercise clauseclause." ." 460 F.2d at 560..

14

Liability: Exists re non-clergy Liability: Exists re non-clergy employeesemployees

The ministerial exception would The ministerial exception would not apply to employees whose not apply to employees whose duties are not intrinsically duties are not intrinsically religious and integral to the religious and integral to the religious functions of the churchreligious functions of the church

A janitor, or secretary, may well A janitor, or secretary, may well be covered by Title VII or the be covered by Title VII or the ADAADA

15

Liability: Exists for Liability: Exists for Church by 3Church by 3rdrd party party

Negligent hiring/retention claims could Negligent hiring/retention claims could possible prevail – as well as other possible prevail – as well as other torts.torts.

Sexual misconduct claims against Sexual misconduct claims against ministers, e.g. ministers, e.g. Destefano v. GrabrianDestefano v. Grabrian, , 763 P.2d 275 (Colo. 10/17/1988). Clergy 763 P.2d 275 (Colo. 10/17/1988). Clergy counselor subject to secular law when counselor subject to secular law when providing counseling servicesproviding counseling services

Sexual misconduct by clergy may give Sexual misconduct by clergy may give rise to both civil and criminal rise to both civil and criminal prosecution, and liability for the prosecution, and liability for the conferenceconference

16

Liability: Exists for MASLiability: Exists for MAS

Regulatory violations, Board Regulatory violations, Board complaints, complaints,

Malpractice claims (civil)Malpractice claims (civil) Criminal prosecution for sexual Criminal prosecution for sexual

misconductmisconduct

17

MAS LiabilityMAS Liability

Liability is predicated upon a Liability is predicated upon a duty which exists,duty which exists,

A breach of that duty by the A breach of that duty by the examiner, andexaminer, and

Damages result which are Damages result which are proximate to the breachproximate to the breach

18

Examples of MAS DutiesExamples of MAS Duties

CompetenceCompetence Consent & Confidentiality, e.g. Consent & Confidentiality, e.g.

disclosure of confidential disclosure of confidential information to entities of the information to entities of the Church sans consentChurch sans consent

Honesty and fair dealingHonesty and fair dealing Maintenance of personal Maintenance of personal

boundariesboundaries Record keepingRecord keeping

19

Specific issues in Specific issues in Assessment – cont.Assessment – cont.

Ownership of records: MAS owns only Ownership of records: MAS owns only data he/she generated and his/her opinion. data he/she generated and his/her opinion. Church owns all reports – clarification of Church owns all reports – clarification of this policy is crucial.this policy is crucial.

Access to report, determined by policy of Access to report, determined by policy of Annual Conference whether before or after Annual Conference whether before or after submission of same. Adequate consent submission of same. Adequate consent necessary. DOM provides formsnecessary. DOM provides forms

Records retention: MAS, pursuant to law Records retention: MAS, pursuant to law of jurisdiction, Church – AC policof jurisdiction, Church – AC policyy

Behavioral Guidelines: DOM websiteBehavioral Guidelines: DOM website

20

Ethical issuesEthical issues Blind interpretation of data without Blind interpretation of data without

disclosure of limitations, Some states disclosure of limitations, Some states may prohibit entirely!may prohibit entirely!

Competence: Persons provide only Competence: Persons provide only such services and render such such services and render such interpretations of test data as they interpretations of test data as they may be qualified by education, may be qualified by education, training and experiencetraining and experience

Conflicts of interest, Conflicts of interest, Special sensitivity populations: Ethnic Special sensitivity populations: Ethnic

and racial differences, as related to and racial differences, as related to test data and behavioral guidelinestest data and behavioral guidelines

21

Conflicting roles of Conflicting roles of examineexaminerr

Roles may differ at differing Roles may differ at differing stages:stages:

Candidacy Candidacy – fitness– fitness

Commissioning – readinessCommissioning – readiness

Final orders /full connectionFinal orders /full connection

-- effectiveness-- effectiveness

■■ Possible conflict between Possible conflict between examining and nurturing functionsexamining and nurturing functions

22

Conflicting rolesConflicting roles

Loyalty – to whom? The Church? Loyalty – to whom? The Church? The Candidate? Who is the The Candidate? Who is the client?client?

Reporting adverse information? Reporting adverse information? What duties exist to the What duties exist to the Candidate?Candidate?

The necessity for truly informed The necessity for truly informed consent exists – as this is a 3consent exists – as this is a 3rdrd party examinationparty examination

23

Treater or examiner?Treater or examiner?

Note that in some jurisdictions the Note that in some jurisdictions the examiner than be a examiner than be a ““treatertreater”” or or ““examinerexaminer”” but not both in the same but not both in the same case.case.

Examinees in a forensic context, Examinees in a forensic context, where 3where 3rdrd parties are involved as the parties are involved as the client, do not necessarily have the client, do not necessarily have the same rights as same rights as ““patientspatients””

Thus, Thus, ““Who is the clientWho is the client”” is important. is important.

24

SummarySummary

No liability for the Church viz. No liability for the Church viz. the candidatethe candidate

Exposure for lay employees of Exposure for lay employees of the Churchthe Church

Lability exists for examiners on Lability exists for examiners on multiple levelsmultiple levels

25

Behavioral health Behavioral health guidelines -1guidelines -1

Physical healthPhysical health Management of personal Management of personal

financesfinances Mental illnessMental illness Alcohol abuse and dependenceAlcohol abuse and dependence Chemical abuse/dependencyChemical abuse/dependency

26

Using behavioral Using behavioral guidelines – a sampleguidelines – a sample

Category: Marital statusCategory: Marital status Standard: The candidate's marital Standard: The candidate's marital

circumstance must be stable.circumstance must be stable. Critical behaviors:Critical behaviors:

A divorce in the past three yearsA divorce in the past three years A history of having been married more than twiceA history of having been married more than twice

Exploratory Questions:Exploratory Questions: If a recent divorce: If a recent divorce: What steps have you taken to understand the nature of What steps have you taken to understand the nature of

your own contribution to the dissolution of the marriage?your own contribution to the dissolution of the marriage? What steps have you taken to move yourself through a What steps have you taken to move yourself through a

healthy grief process?healthy grief process?

27

Using behavioral Using behavioral guidelines - 2guidelines - 2

If multiple marriages:If multiple marriages: What steps have you taken to identify What steps have you taken to identify

and deal with any dysfunctional and deal with any dysfunctional patterns in intimate relationships?patterns in intimate relationships?

In either case:In either case: Have you maintained fidelity in Have you maintained fidelity in

marriage? If not, what steps have you marriage? If not, what steps have you taken to understand your actions and taken to understand your actions and decisions so as to safeguard current decisions so as to safeguard current or future covenants?or future covenants?

28

Using behavioral Using behavioral guidelines - 3guidelines - 3

Recommendation:Recommendation: If a history of divorce is present, then at least three If a history of divorce is present, then at least three

years shall have elapsed since the divorce prior to years shall have elapsed since the divorce prior to certification for candidacy or for continuance. certification for candidacy or for continuance.

If the candidate has been married more than twice, If the candidate has been married more than twice, then at least five years either in singleness or in a then at least five years either in singleness or in a stable marriage shall be required prior to certification stable marriage shall be required prior to certification for candidacy or for continuance.for candidacy or for continuance.

In either case, and particularly where there is evidence In either case, and particularly where there is evidence of a candidateof a candidate’’s infidelity, the Board may wish to s infidelity, the Board may wish to recommend or require a course of psychotherapy with a recommend or require a course of psychotherapy with a focus on relationship issues.focus on relationship issues.

29

Behavioral health guidelines Behavioral health guidelines - 2- 2

Legal (general)Legal (general) Family violenceFamily violence Divorce or infidelityDivorce or infidelity Sexual misconductSexual misconduct Legal – sex related crimesLegal – sex related crimes

30

Additional issuesAdditional issues

Conflicts of interestConflicts of interest Special competencies – Special competencies –

especially as regards especially as regards ethnically/racially diverse ethnically/racially diverse populations.populations.

31