Menu

Legal Documents

ZBOct

Zenas’ Brief – October 2023

,

ZBOct

Shhh, It’s Confidential

Pastors have an ethical, professional, and sacred obligation not to disclose confidential information about those under their care without permission. But this rule is not absolute and there are often questions about confidentiality. For example: Is it ever appropriate to disclose confidential information? Are there limits to confidentiality? Plus, not all communication is confidential. In fact, it may be common knowledge. But for communications that are confidential, confidentiality comes with expectations. The purpose of this brief is the outline what is confidentiality and when a pastor should and should not keep it.

Confidentiality. Confidentiality is the commitment not to disclose information that has been given with either the explicit instruction that the information is not to be divulged or the implicit expectation that the information remains private.

Penitent Privilege.  The classic case of confidentiality is the penitent privilege. The penitent privilege is when a church member seeks spiritual counseling and confesses a crime to the pastor. Under the law, the confessor may claim a penitent privilege that stops the pastor from sharing the confession, testifying about the confession, or being compelled to testify about the confession. For the privilege to apply, the communication must have been truly confidential, i.e., no third-party present, the confessor had an expectation of privacy, and the confessor reasonably believed he was confessing to an ordained pastor. With penitent privilege, only the confessor may waive the privilege.

Minister.  Communication is not legally considered privileged if it is made to one other than a pastor or minister. A confession to a deacon, teacher, secretary, or even the pastor’s wife is not deemed a communication to a minister. Moreover, for a communication to be confidential, it must be made to the pastor in his capacity as a spiritual advisor, not as a “friend.”

Mandatory Reporting.  Utah and Idaho statutes require the reporting of child abuse, but the requirement does not apply to a member of the clergy functioning in a ministerial capacity.

This leaves the pastor in an obvious quandary. The pastor wants to report the abuse in order to protect the child, but the pastor has an obligation to respect confidentiality. The answer lies in the Bible.

We are called to protect the powerless. If you know that a child is being harmed, you may break confidentiality to rescue the child. It should be noted that anything you say to help the child will likely not be able to be used in man’s court. However, rest assured that God will exact justice, and you’ll have helped a child escape abuse. Finally, if a pastor receives information of abuse from another source, the pastor is required to report that information.

Waivers.  If the pastor has reason to believe that the person may or intends to confess a crime or something for which there is mandatory reporting, the pastor should consider, before any confession is made, informing the person that any such confession will not be regarded as confidential if requested by the authorities or if it involves abuse of a child. The waiver must be clear and specific so that the person understands it. If someone disclosed information to you and you want to break confidentiality, you can always politely ask to share the information with others.

While we touched on confidentiality in criminal matters, there are other areas of confidentiality and privacy to be considered. For example, disclosure of personal giving, personal health problems, church discipline, background checks, and private conversations. The pastor must exercise discretion and respect privacy as disclosure could be the basis for a legal claim against the church.

But there are times when confidentiality and limited disclosure are important and appropriate. For example, in matters of church discipline, the appointment of a ministry leader, and discussions of negotiation strategy for a contract or lawsuit. In these instances, it is paramount that you inform the person of your intent to reveal the information beforehand.

In closing, confidentiality is biblical.* Proverbs 11:13 says “A talebearer reveals secrets, but he who is of a faithful spirit conceals a matter” and Proverbs 29:9 advises us “do not reveal the secret of another.”  

Confidentiality can be confusing. Your Legal Team is here to help you determine when to keep it secret and when to reveal it. And don’t worry, we are also bound by confidentiality.

*For more on biblical confidentiality, go to https://www.thegospelcoalition.org/article/biblical-confidentiality/

ZBSept

Zenas’ Brief – September 2023

,

ZBSept

What is a trustee?

We start with the simple understanding that the church has 2 natures. There is ecclesiastical or ministerial which centers on the mission and spiritual life and growth of the church. This is the responsibility of the pastor, elders, deacons, and other ministry leaders and workers. The secular or corporate nature centers on property, insurance, security, policy, fiscal, legal, and other business matters that support, protect, and enable the ministries of the church. This is the responsibility of the corporate officers (Moderator, Secretary, and Treasurer) and the trustees.

If a church is incorporated, Utah and Idaho state laws require that the church corporation have a board of directors or trustees and provide that all corporate powers be exercised by or under the authority of this board. The church, through its articles of incorporation, bylaws, and policies, may and should specify such things as election, roles, duties, and procedures for its trustees.

The role of the trustees comes with significant responsibilities. They must act (1) in good faith, with the care of an ordinarily prudent person; and (2) in a manner the trustee reasonably believes to be in the best interests of the corporation.

It is said that “good churches have good boards and boards are good when they have a good pastor who helps them be good.”  Some attributes of a good board are that it has the philosophy that the board and pastor serve separate but complementary roles and need to function as partners; supports the pastor and staff and the mission of the church. Baptist churches are typically congregational in nature. Therefore, the trustees are accountable to the membership of the church and subject to actions taken by the church members and to the bylaws and policies of the church.

Some specific duties and responsibilities of the trustees will include the oversight of the maintenance, acquisition, security, use, safety of church property; review and sign all contracts, deeds, and legal documents; review, oversee, and make recommendations regarding insurance, policies, risk management, business practices, and any claims made against or on behalf of the church.

In smaller churches, there may be a tendency for the pastor to assume some of these duties and responsibilities and even to be regarded and act as the CEO and chairman of the board. That should be done cautiously and with the intent that it not be a permanent arrangement as those are corporate in nature.

Your Legal Team will gladly provide training, information, and guidance regarding your trustees.

ZBJuly

Zenas’ Brief – July 2023

, , ,

ZBJuly

Assuming You Assumed the Risk

It’s summer, and the Vacation Bible Schools are humming. You’ve got your curriculum picked and the songs about Jesus ready to be enjoyed by all ages. You sent out the sign-up sheet and on it you had a release form waiving all liability thereby giving you the ability to focus on preaching the Word and having fun.

Or maybe you enrolled your child in a summer camp, and the house is blissfully quiet. But you’re having a hard time relaxing because you signed a release form, and you’re concerned about what may happen if your child gets hurt.

Almost everyone has come across a release form asking the signer to not sue the provider if the signer is harmed by the provider. This type of form is called an assumption of risk form and is predominantly used by people or organizations providing an activity to others. The idea of the form is that the signer knows that the activity comes with risk and accepts responsibility for any injury that may occur from partaking in the activity.

While a well-written assumption of risk form will protect churches offering events, such as a Vacation Bible School, it is not full proof. Courts frown upon assumption of risk forms because it is against public policy to attempt to avoid liability. In other words, courts fear that providers will become careless and sloppy if they cannot be held accountable. Because of this, courts will narrow release forms as much as possible to ensure accountability.

Therefore, if your church is offering a summer activity, we recommend churches view release forms as a document that puts families on notice of an activity and the inherent risk. Do not neglect your policies and procedures or rules of the activity that your church put in place to keep people safe. Likewise, if you are sending your child to a summer camp, ensure that adequate measures are being taken to protect your child so that you may rest somewhat easier while he or she is away.

As always, feel free to contact your UISBC Legal Team if you want us to review a release form or help create one for your church event.

ZBJune

Zenas’ Brief – June 2023

, , ,

ZBJune

So, You’re Sending Messengers!

What’s a messenger and what should the messenger expect?  A “messenger” is a delegate appointed by an affiliated SBC church to attend the SBC Annual Meeting on the church’s behalf.  Much goes on at the annual meetings, messengers will meet people, hear speakers, visit vendors, and hopefully have a fun and informative time. Being a messenger has definite legal aspects and responsibilities. The collective messengers are similar to a legislative body, like Congress, they make decisions through asking questions, speaking, and voting.

When messengers arrive at the meeting, they first need to check in at the Credentials Desk and upon registration will be given a packet of materials including an itinerary, copies of reports, and documents, resolutions, anticipated actions, and more. The messengers need to become familiar with those. Each day, a newsletter will be distributed that gives updates and information about the day’s activities. There will be several sessions at which Baptist entities (for example, the International Mission Board) will make reports, elections will be held, motions or resolutions will be proposed, discussed and voted on, etc.  Look, learn, and listen….and vote as God leads.

In choosing messengers, ensure that you are picking people who exemplify the qualities of 
1 Timothy 3:8. We also recommend confirming travel plans, reimbursements, and insurance for messengers.

The SBC Annual Meeting is a great opportunity to learn what others are doing, experiencing,  thinking…and especially to enjoy “the unity of the Spirit in the bond of peace” (Eph. 4: 3). Afterwards, it would be great if your messengers let us know their thoughts and experience. Thanks for going!

ZB-may

Zenas’ Brief – May 2023

,

ZB-may

FRAUD PREVENTION

An unfortunate reality of our fallen world is that people will take advantage of the church. Whether the person is outside of the church or a wolf within the church, the church is vulnerable to attack. In a study by Church Law & Tax, an arm of Christianity Today, nearly one-third of 700 churches surveyed suffered from some form of financial misconduct, not including cybercrimes.

The financial toll can be staggering. In recent years, a church employee stole almost $200,000 from a church during a two-year period, and a member of the clergy embezzled $256,000 from three churches. These examples are bad actors within the church, but people from outside the church are constantly sending phishing scams and ransomware attacks. While the financial harm from fraud can be severe, the amount of time spent trying to remedy a fraudulent act and the shame of being a victim should not be overlooked.

Churches must be proactive in preventing fraud. We recommend having policies in place that provide oversight for people handling money within the church. We also recommend policies on technology to help ward off phishing and ransomware attacks. While it is impossible to stop all fraud, having strong policies and procedures will deter the likelihood of your church falling victim to someone’s evil ways.

Finally, while fraud is a terrible act, we can rest in the sovereignty of God and pray for that He chooses to work a miracle in the heart of those who wish the church harm.

The UISBC Legal Team will be presenting on policies and procedures later this month. We invite you to attend and learn more about how a good policy can help protect your church. If you have any questions, feel free to contact your UISBC Legal Team.

ZBApril

Zenas’ Brief – April 2023

, , ,

Zenas’ Brief – April 2023

Mission Planning

Christ directed in Mark 16:15 to “Go into all the world and preach the Gospel to all creation.” 

Many of our churches are planning mission trips and projects. Here are a few legal tips.

If minors are going, obtain written consent and relevant information from the parents (e.g., allergies, medications, health issues, emergency care, contacts, etc.)

If traveling by vehicle, all vehicles should be inspected and in good order. Driver licenses should be reviewed to confirm they are not expired. Review your church’s insurance with your carrier to confirm the details of coverage for the mission trip and do not assume that the church’s general liability insurance is adequate or appropriate.

Meet with the team, parents, church leaders to discuss team leader authority, supervision of minors, emergency situations and actions to be taken, security measures, rules of conduct, travel routes, as well as travel and project expectations. Give everyone a packet with this and other information.

International mission trips involve more such as passports, visas, inoculations, security, travel challenges, and what to do in an emergency.

Think ahead and be prepared. If you have any questions or want more detailed advice, feel free to contact your UISBC Legal Team.

Load More