Why Background Checks Are Not Enough

Hi, I'm Jerry Sparks, president of A.G. Financial Insurance, and we have again with us renowned attorney Rich Hammer from the General Counsel, the Assemblies of God. Welcome to Risk Management Live, and boy, do we have a topic today. You know, Rich, over the years we have been stressing people to do background checks, but also to do reference checks. A recent court finding just happened where the jury came back and awarded a 12.5 million dollar award because a church did not do reference checks. So we're going to talk a little bit about this, but why don't you give us some of the um, aspects of that case, if you would?

Well, the actual case occurred back in 2012. Uh, the that was the the portion of the case in which the Florida Baptist Convention was found liable for the act of child molestation by one by a church planting uh, minister in Florida. The just earlier this year in 2014, uh, a court awarded damages of 12.5 million dollars. So the two cases are related; one found liability, one found the amount of damages for that liability. But the case involved a a church planting ministry, as many religious organizations have, and the Florida Baptist Convention uh, selected in some manner a church planting pastor to go to a church, start a church in Florida. And it turned out that this individual had had similar ministry in the states of Maryland and Alabama, and in both of those states, in both of those churches, he had engaged in some type of inappropriate behavior involving of a sexual nature involving minors. However, those churches apparently chose not to report these incidents to the authorities, uh, and but dismissed the person. So the the fact is their failure to report meant that this guy basically had no criminal record. So when the Florida Baptist Convention did a a criminal records check and a sex offender registry check for this guy, he came up clean, and uh, and so they thought there would be no liability just based on that fact alone.

Well, what the court determined was that the the convention was liable because it didn't do enough. Yes, that was good that they did the criminal records checks, the sex offender registry checks, but it should have done more. And what would that mean? Well, it should have contacted the churches in Alabama and Maryland where this person had served in the past to get a reference from them, and because hopefully those church leaders would have disclosed the nature of the allegations against this individual, and so Florida would not have used him. But the fact that they didn't pursue contacts with those other churches where he had previously been amounted to negligence in selection, according to the Florida court, resulting in damages. So I think one of the takeaway points here, Jerry, is that screening needs to be viewed as a multi-faceted uh, precaution that you don't just there's not just one aspect to screening that you do and you don't have to do anything else; that a criminal records check is not in and of itself enough. That's the takeaway point of this case; that's important. It's an important it's an important component of the larger task of a competent screening or background check methodology. And so at a minimum, this court said the the Florida Baptist Convention, in addition to the criminal records check, sex offender registered check, should have contacted those other churches for references.

Yeah, I thought it was amazing that um, the basically the convention ran background checks, motor vehicle record checks, and credit checks, so they thought that, boy, we're good. But what the jury actually came back and the judge ended up coming back and says, but you failed to check references or contact the churches he previously worked in. And if they would have done that, you would have found out that he was accused of inappropriateness with children at both the Maryland church and the Alabama church.

Well, that's the that's what the court uh, assumed, but let's be clear here; that's not necessarily true. Because we know today that the majority of references, and many of you church leaders have experienced this, you try to get a reference on somebody; what do you get in return? A neutral reference. Yes, this person worked for us between these two days; that's all we're telling you because we don't want to get sued if we say anything negative. People are so hypersensitized by the legal system that they're mute when it comes to sharing relevant information about somebody's dangerous propensities. But the fact is, even if you can't extract that information from those other churches or those references, whoever they may be, the fact is uh, by asking the question you've discharged your duty by attempting to get that information. And the fact that you're you run up against a neutral reference that just confirms the dates this person worked as an employee or volunteer, you've done all you can do, and that's the bottom line. So so I think it's important to point out that had the Florida Baptist Convention contacted those churches, there's no guarantee that they would have disclosed any information, but that's not the point. The point is they should have made the attempt. The fact that you're hit with the neutral reference policy and get nothing except dates the person was there, you've discharged your duty; you did all you could do.

Yeah, and I think that's what the court was basically saying is you did not contact the churches. If you would have contacted churches, whether you would have got a reference or not, there's there's a good chance that the church would not have been held liable because they did what they should. Exactly right. So this this is real important. Um, let's take this case now, and by the way, if you have questions, you can ask us; email them to us during this whole thing; we'll be glad to try to get to them. But what should your church do to protect children? So let's take this case now that just happened and and turn it into what we should do to protect our children. And first of all, let's talk about written applications.

Well, well, just the general point, Jerry, is what should you do? Uh, I I often ask this question: What would a jury expect you to do if, God forbid, you have a child molestation claim in your church and you're hauled before a jury and litigation and a trial, and and this lead pastor of your church is dragged to the witness stand? What did you do to prevent this horrific tragedy from happening? What are you going to how are you going to answer that question? Nothing? It's too much work? We didn't want to mess with it? That kind of thing couldn't happen in our church? Uh, you're going to get hung; you're going to get hung out to dry. The only issue is going to be how much you're going to pay for it. So you want to be I'll tell you when you get involved in these cases, you'll be thankful for everything you did do. Absolutely. It's not a matter of it's too hard; it's not too hard. How are you going to persuade a jury that you acted with reasonable care? And one of the components of that, as you point point out, you start with a written written application form. That form elicits some very valuable information for you; you know, the the biographical information, this person's name and address, and but also, and this is I think the most one of the most important points of this application is uh, where have you worked with minors before? Give us the dates, the organization, what did you do? Was it scouting? Was it working in another church as a volunteer or maybe even as a paid employee of the church? Maybe a children's or youth pastor? Maybe you worked for Big Brothers or Big Sisters. There's just so many organizations out there, charities, religious and secular charities that are youth-serving organizations in which people have worked. So most people that want to work with minors in your church have had a record, have had a history working with other organizations; many times it's other churches, but you want to get that you want to extract that data on that application form.

Yeah, and and getting that's not enough; you got to contact those people for a reference. But so but here's the other thing on that application form, Jerry, what you know you want a criminal history; what what crimes have you been charged with or convicted of? And you can ask that question for a volunteer worker. It can become more troublesome if you're dealing with an employee, whether you can ask whether a person has been charged with a crime. In fact, the EEOC has said that that can be discriminatory because some ethnic groups have a higher arrest record apart from conviction, and and so you got to be very careful about that. But uh, with regard to volunteers, uh, you can pretty much ask anything you want as to those people. But but and this is a a reason why it's so important I think to have your written application prepared by or reviewed by legal counsel. You know, so we actually suggest that you have a written application for workers and for volunteers that are working for workers, meaning employees and volunteers working with children or anyone that has a key, because of a recent court case in California where a person had a key but wasn't working with the children. So that's what we're we're asking. There is some confusion um, if an application should ask if that person had been previously molested as a child. Can you address that?

Yes, I can. This question that I'm asked this question a lot dates back to a 1991 ruling by the Alaska Supreme Court in which it found a church liable for an alleged case of child molestation of a two-year-old child in the church nursery because the church did not ask this woman who allegedly was the offender when they hired her as a volunteer nursery worker; they failed to ask her, "Were you sexually molested as a child as a minor?" And the argument was there's a statistical correlation between being a victim of child molestation as a minor and then becoming a perpetrator of molestation as an adult. That's what the court hung its hat on. That association has been seriously questioned over the years, and any connection is not nearly as significant as what was once thought. In fact, some would say there's no correlation at all. The interesting thing is that case was decided right at the time I released my Reducing the Risk of Child Sexual Abuse in Your Kit resource kit. Many of you have seen that; half the churches in this country have that kit, and uh, that I can remember where that kit included a uh, a reference, an application form; what do we do? So we put a question on that form: "Were you molested or sexually abused as a child?" Uh, and and we said you can discuss your answer with the senior pastor in confidence. We tried to try to uh, you know, uh, reduce the the sensibilities, the invasion of privacy concept. But but the fact is we we felt like we had to ask that question because we didn't know if this case was going to go viral and all of a sudden cases all over the country are going to follow this this ridiculous conclusion. And uh, well, the second edition of that Reducing the Risk resource kit came out five or six years later, and by then it was interesting; by the late 1990s, there hadn't been a single court in another case that applied that same rule; that the fact that you were molested as a child makes you a higher risk of molesting children. So you got to ask that question. No other court anywhere in the other 49 states reached that absurd conclusion. So the bottom line is that question belongs on the application at this point only in the state of Alaska, and it's not required in any other state. I monitor this uh, and if we start seeing other courts uh, reaching the same conclusion as the Alaska case, believe me, I'm gonna be writing about it, and we'll be discussing it right here on Risk Management Live. But that has not happened now in uh, you know, 25 years.

One of the the second thing that we suggest is number one that you check two references and the past church history, and you document it in writing. And why don't you just tell us what kind of reference that they're looking for?

Yes, uh, I I personally believe this is the gold standard when you're thinking about uh, you know, what's your body fat? The goals; what does that have to do with anything? The the gold standard is the immersion tank, not these crazy scales you step on; you got X percent, but those things are plus or minus 50% accurate. But uh, you know, so uh, your question again, check in the references; what exactly they should should get out of a reference? What are they looking for in those references? Yes, there's two there's two there's two kinds, and the the first kind is as a personal reference; the second kind is an institutional reference, and that's a very important distinction because um, a personal reference is one where you're you're listing an individual, and you get a reference from an individual. In many cases, these references are from people the church does not know; these are just names on an application. But in some cases, uh, you'll see people that will list institutions, and that's why it's so important to ask, "Where did you work with children in the past?" And for those that have worked with children, they're going to list the who they work for, when, what was their position? Getting references from those youth-serving charities who have observed this person working with minors; that's the gold standard. Absolutely. And uh, now in some cases a person will not have had any prior work with working with minds; everybody starts somewhere. And so you're left with personal references in that limited case, but my recommendation there is that those personal references be limited to members of your church. The FBI profile on preferential sexual molesters or child molesters indicates that one of the uh, indicators that somebody is a pedophile or a potential child molester is that they they tend to have no friends other than other pedophiles. So what good is it if you're a church in Texas and you have an application form from a guy that wants to work with children in your church or youth, and he lists references: three individuals in Illinois, Wyoming, and Florida that you never heard of before? This is worthless information. Uh, so get the references from institutions where the person has worked with youth, and if there are none, members of your congregation; I think that's the best way to handle references. And actually, one of the things that we're asking for, if you're if you're asking for references, when you're asking for it is is, "Do you have or do you know that this person has worked with children, and do you have any um, any pr, you know, any uh, idea that this person would not be good for working with children?" And that's really the true information you're trying to get.

That that is correct. The the the ultimate answer, the ultimate question uh, is, "Do you know of any reason, institution, youth-serving charity who has observed this person working with minors, do you know of any reason why this person would not be suitable for working with minors?" That is the gold standard; that is the water tank immersion test when it comes to screening of youth workers, not criminal records. Actually, you need to do that too, but keep in mind only a small minority of child molesters have a criminal record. So you so you need to ask that question; you you need to pursue a criminal records check and a sex offender registry check. Absolutely; that's an important component. But in my opinion, the the best way to determine somebody's fitness is to get a reference from institutions where that have observed this per person working with minors.

Is there any other additional legal requirements that might come on a church that may have like a daycare center or something like that?

Yeah, that's a good question. In many states, churches that have uh, preschools, they must be licensed. That's not true in all states, but it's true in some states. So if you have a preschool, as many churches do, and you're in a chur you're in a state where uh, you where your preschool or your daycare has to be state licensed, there will be requirements there with regard to the screening of workers that you must obviously comply with.

Okay, let's talk a little bit about um, the interview process. Next thing that we would would suggest is that we go through a thorough interview. Tell us a little bit about what that interview should talk, you know, should it should be in it.

Well, that's a that's another risk component or a risk reduction component, and the whole point here is if the person is not well known to you, uh, the person hasn't been in the church for that long, you don't really know this person. The bottom line is, "Why are you interested in working with minors?" If that's what this person is applying for, whether it's a paid position or volunteer position, "Why are you interested in working with minors in this church?" That's a very important question. You can also get this information that you can also get on the application form. "Tell us about the experiences you've had working with minors in the past." Be sure you're making notes of the responses, and so you have an interview summary that goes in the person's file.

Let's talk about number four, the six-month rule. A lot of times we actually suggest that before anybody works with children that um, they have to be a member in good standing of that church for six months, Jerry. That that uh, precaution was uh, I created and I put in the original Reducing the Risk of Child Sexual Abuse in Your Church resource kits back in 1991-92, and I just thought that was a good good rule. I still stand by it today. Of course, we're not talking about paid employees like a children's pastor; obviously, you can't just restrict your consideration to people that have been members of your church for six months or more. But certainly for volunteers, uh, you can you can impose this requirement. And the whole point is you get to know the person, and you're not just taking people in off the street because you're so desperate for youth workers. I often ask audiences this: "How many of you have a waiting list of people wanting to work in the church nursery?" And the answer is I've never seen any hands go up, no matter how big the audience, or even for toddlers or children; it's the same thing. So uh, I think that is very important that churches not not be too hasty in putting people in positions involving the custody of minors in the church. And and so that's where the six-month rule comes; it gives you a minimum amount of time. Now that's a member of the church; it takes a certain period of time to become a member, and then six months after that before the relationship ripens into one in which the person is it would be a suitable candidate for working with minors. And again, behind all of these recommendations is the jury; how are they going to view what you have done? Are they going to believe that you've acted with reasonable care and the selection of this person who molested one or more children in your congregation? And this is just an important point; we didn't take people off the street and throw them into a children's ministry; there was a period of maturation, there was a period of evaluation where we were able to observe this person and got to know him or her.

Next, let's talk about background checks. What should be included in the background checks, and who should they run background checks on? Exactly.

Well, I recommend that they'd be done on volunteers and paid employees, of course, and on current as well as future. I see I see some churches that start a screening program, and it only applies to workers from this day forward; forget that. You need to also include, and my church did this a number of years ago; we had a couple hundred people uh, do we want to screen them too? And we made the decision to do that, and I think that was the right decision.

Yeah, actually um, I I've had churches say, "But this lady has worked in the in the nursery for 40 years," and I'm going, "Yes, but if you have a policy and if something happens with somebody and you did screen some people, did a background check which includes a criminal background check and and checking the sexual uh, offender registry, yes, and you didn't do it on others, you you just open yourself up for major liability." So people can understand that, but there's no exceptions, including the lead pastor, uh, and they can understand that the problem comes when you start making exceptions. "Well, Grandma Jones over here, this talked fourth grade Sunday school for 40 years; we're going to exempt her." Well, where do you draw that line? It becomes very difficult to draw the line; people see exceptions being made; they want an exception, and it's just better to have an absolute rule.

Let's talk about what if a person is a minor? How do you run a background check on on somebody that is actually a minor? How do you screen that worker that it you know that is a minor that is wanting to work in the nursery?

Very good question; it's a very common question because many most churches allow minors to work with children with younger children, usually in the uh, with with one or more adult workers as well; they're kind of assist the adult workers. And I get asked this question frequently, Jerry, you know, "What what do we do? How do we screen this 17 or 16-year-old girl or boy that wants to work in children's ministry?" And God bless them; I mean, it's great uh, training for them; it's an it's an opportunity for ministry for the uh, the adolescent. But there has to be some screening done. Now it's going to be different than it is with an adult worker because a 16 or 17-year-old typically doesn't have a history of working with minors; you can't do a criminal records check on these people. And and so what do you do? Well, let me just make a couple of comments here. I think one thing you could do is uh, get two or three or four references from people that are very familiar with this individual, such as the youth pastor at the church, such as other people in the church that have observed this person, that know him or her well; maybe one or more teachers from the public school if it's or private school the person attends, people in the community; maybe the person's involved in scouting or some other uh, youth-serving charity uh, who have had an opportunity to observe the individual. What do these people think about this person's aptitude for working with minors? Do they know the essential question, like you've said, "Do you know of any reason why this person would not be fit for working with minors?" Include a parent on your list. So if you get three or four of these kinds of references, I think that's reasonable. What else can you do if you can't do criminal records checks? The person doesn't have a history of working with minors in most cases; I would certainly ask to make sure that's the case. But another thing that I would recommend here is what I would call benchmarking, and that is where you contact other charities in your community, youth-serving charities, and what do they do when they have adolescents working with younger children in some capacity? Scouts do it; public schools often do it. Contact the public school district in your community; that's the ideal standard, and and find out from these other youth-serving charities uh, what they do under these circumstances to uh, to screen that person. And as long as you're aligning your practice with those of these other charities, especially the public school district, you've gone a long way I think in establishing the exercise of reasonable care.

Let's take this one step further, and then I'm going to get to somebody has got a question, and we'll get to that here in just a minute. But what if it is an undocumented worker or what we used to call an illegal alien, somebody that is not documented in the United States, so they're not a U.S. citizen? What do you do in that situation?

Well, the answer is uh, again, what is reasonable care under those circumstances? You're held to a standard, some say a high degree of care when you're dealing with children's workers. What would a high degree of care require in the screening of an undocumented worker who's here in this country, you know, an undocumented status, and maybe it's not been here that long? There have been cases like this and where churches have been sued because such a person does molest a child. I'm thinking of one case where it involved a Head Start program at a local church where this person had been in the country only like six months, undocumented, was allowed to work uh, as a some kind of overseer in this program and molested four children, and there was a 6.5 million judgment against that church.

And, and, and the court said you should have contacted, obtained references from this individual's home, uh, I think it was in Mexico in that case, uh, like what church the person attended, or uh, what charities the person had identified with or worked with in the, for in his home country. Done a criminal records check, which you can do now in foreign countries—that in many cases they're more expensive than done uh, here in the United States—but it's something that can be done if you're going to use undocumented workers. I don't know that I'm recommending that you that you do so, but if you choose to do so, uh, you've got to exercise reasonable care in the screening of these people, and that's going to probably involve inquiries with the country of origin and also again to benchmark and to find out from other charities and the public schools, to the extent they use, even if they're documented workers that have come from another country, what kind of background checks do you do. I think that's invaluable information.

Let's go ahead and take a couple questions here, and, and the first question is, and I think we've kind of answered this, but I'll let you do it, answer it: What do you do if you've already hired volunteers but have not adhered to the processes? Can I do anything retroactively? Absolutely. You should screen those. You should have a comprehensive screening program that covers current as well as future workers. That is a ticking bomb if you do not do that. Yeah, actually, they should be doing, you know, you can go back and implement, even like you said, even on the people that have been working, not just the people going forward, but have that in your system. How long should they keep these records for? In permanently, Jerry, because as you know, with the statute of limitations being the amount of time you have to file a lawsuit in a child molestation case is being stretched and expanded in so many states, it can be decades in the future, and you've got to produce that policy to have a defense uh, provided for you, and so that's that's a type of document that should be retained permanently.

One of the questions asked also is on a background check. Okay, um, what is a disqualifying crime for a worker? That is an excellent question. I get asked this question all the time. You do a background check. I'll tell you about a case I, I dealt with a few years ago in Wisconsin where a church wanted to use this guy in the church as a uh, chaperone on a short-term missions trip with some high school kids that were, it's going to, was going to be a week-long activity, and this guy, they did a criminal records check on him, and he had a conviction years ago for resisting arrest. And so I checked the Wisconsin statutes on what crimes are disqualifying for public school employment. Every state has a list of disqualifying crimes for public school employment, and I found that list; there were 37 crimes, and I went down that list, and resisting arrest was not one of them. So the point is, he could have been employed by a public school; that was not a disqualifying crime. So where that church, I said you could align your practice with that of the public school, which is a state agency, and I think that's a reasonable uh, conclusion.

One other thing that we suggest that a church do is basically that no child is left behind, or used to be called the two adult rule. Um, you want to just talk a little bit about—so important, so important that you, you know, the bottom line is you never want one minor alone with one adult on your church premises or in any church activity or program. That comes up many ways. It's a youth ministry activity; the youth pastor takes a carload of kids home, drops them off, but the last part, it's a male youth pastor and there's a 16-year-old girl is the last person he drops off; you violated the rule. So that youth pastor's spouse must be in the car or another adult if you're going to have kids being taken home. So the point is this rule asserts itself in many unexpected ways, and but the fact is there can't usually be any possibility of child molestation if you follow a two adult rule. Now that doesn't mean you have two adults anytime groups of kids are present. I teach a fifth-grade Sunday school class, and there are 10 or 15 kids in that class every Sunday morning for an hour, and I'm the only adult; that's okay. Look at your local public school down the street; go to a third-grade or fifth-grade classroom; you got 30 or 40 kids, you got one teacher, sometimes a teacher's aide, but not always; that doesn't violate the state rule. So don't impose a rule on yourself that's going to be in excess of what's reasonable. Hey, if you want to do it, go for it; if you've got the, if you've got the number of volunteers to do it, go for it, but most churches don't, and you're not going to be held to a standard that ex, that that exceeds that of the public, public schools, which is a state-mandated standard. So find out what this, the public schools are doing, what their ratio or their rule is, and if you're following that, I think that's evidence of reasonable care on your part, which would negate negligence. It's not that negligence cannot be proven; there are a number of circumstances that would be considered, but that's a good start on your part to demonstrate that you are not negligent.

We're going to be following up on this, and we're out of time for today, but we're going to be following up on this, and we're going to go ahead and put together what your church should do uh, to protect their children, and, and we're going to put the, we'll list the these five items down for you so you can have access to those. We'll also probably give you access to having an application, one for employees, one for your volunteers, what you should ask in the reference checks, and, and, and how to keep this information. So we'll put this all together and we'll get it, we'll put it online for you. We appreciate your time, and we'll see you next time at Risk Management Live. Thanks, Rich.