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Guarding the church organization: An interview with the Office of General Counsel

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Archives / 2008 / April

 

 

Guarding the church organization: An interview with the Office of General Counsel

Nikolaus Satelmajer , Paul Mwansa
Nikolaus Satelmajer is the Editor of Ministry.
Paul Mwansa served as an intern for Ministry in the summer of 2007.

 

Editor’s note: The Office of General Counsel (OGC) is a part of the organizational structure of the General Conference headquarters at Silver Spring, Maryland. OGC, with six attorneys, counsels the church on issues affecting its function, organization, and mission. They are Robert Kyte (RK), general counsel, Lisa Burrow (LB), Richard Caldwell (RC), Todd McFarland (TM), Dionne Parker (DP), and Thomas Wetmore (TW), associate general counsels.

Ministry editor Nikolaus Satelmajer and Paul Mwansa, who served as an intern with Ministry, interviewed the attorneys regarding the role of the OGC as it relates to the mission of the church.

Nikolaus Satelmajer (NS): What is the Office of General Counsel?

Robert Kyte (RK): The Working Policy of the General Conference (GC) includes our mission statement: The Office of General Counsel (OGC) advises, represents, and provides legal counsel to the church and its institutions in all matters and at every opportunity, consistent with the laws of the applicable jurisdiction. OGC also advises the church as to what appears to be fair, just, moral, and equitable, thereby seeking to direct the church toward a position of moral and social leadership in harmony with Scripture and reflective of Christian love.1 Broadly speaking, we have two areas of responsibility: first, to address specific legal issues; second, to do preventive law by counseling and education.

Paul Mwansa (PM): What are some of the areas covered and by whom?

Thomas Wetmore (TW): My primary areas are tax exempt organization issues and structural issues for the overall organization. I also look after compliance. It’s about preventive law— determining where the church organization should be and how it should be in compliance with the law. We need to be aware of legal requirements and regulations, and be sure that there are appropriate systems in place to make that happen so that the system will run as it should. Substantive areas I deal with pertain to tax, employee benefits, and contracts.

Lisa Burrow (LB): I am involved with immigration work for the GC, other employers in the complex, and some church organizations outside of the building. Workers outside the GC headquarters who need immigration assistance include pastors, teachers, music ministers, Bible workers, and task-force workers. In addition, I also handle contract issues for the North American Division (NAD), whereas Tom Wetmore handles such matters for the GC.

Todd McFarland (TM): I deal with religious liberty issues, such as church-state relations, issues where church members are discriminated because of their faith. In addition, church entities that suffer religious discrimination fall under my purview. I also cover some issues that affect GC/NAD departments, including the Ministerial Association, Biblical Research Institute (BRI), Adventist- Laymen’s Services and Industries (ASI), and Chaplaincy.

Dionne Parker (DP): I care for the employment law or human resources law and intellectual property matters for the GC, Adventist Church in North America, Review and Herald Publishing Association, Adventist Development and Relief Agency (ADRA), and Pacific Press. As part of my intellectual property duties, my primary responsibility is working to protect the name of the church.

Richard Caldwell (RC): My primary responsibility involves charitable estate planning. That includes wills, trusts, estate taxation, gift taxation, income taxes of the trusts, donor-advised funds, and endowment funds. Most of my time is spent with Planned Giving and Trust Services. I also advise GC Auditing Service and trust auditors on the trust and estate planning issues. I consult with GC Treasury on donor-advised funds and sometimes endowment fund issues.

RK: Each of the attorneys has specialty areas in which they practice. But within the broader spectrum, we also have assigned departments and institutions that we liaison with. I focus a lot on corporate and transactional law and work with a variety of organizations including the GC and NAD in dealing with their corporate structure and governance. I also serve as the legal counsel for the GC Corporation. The GC has an unincorporated ecclesiastical body and a legal structure that is the corporate entity. We also serve as general counsel for ADRA, Pacific Press, Review and Herald, and institutions within the GC building including Griggs University, Adventist World Radio, and Hope Channel. We serve as a resource to other church organizations and the divisions around the world.

NS: So it’s primarily the GC and the GC managed/owned organizations, right?

RK: OGC limits its practice to church organizations. Our client base is primarily GC, NAD, and GC institutions. But we’re not limited to that. Often, especially with the NAD, we get calls or letters asking questions specifically about legal issues and how the church has handled similar issues in the past. We also do a considerable amount of work with the divisions overseas because they’re part of the GC. I think we’ve been working with all of the divisions in one way or the other and I spend a lot of time on this. When you’re practicing law your client asks, What is the law? But at the GC, we cannot tell them just what the law is; we have to apply that law within the church setting. That doesn’t mean that we compromise on the law or do something that’s not legal but we counsel the church on how it should function in a particular setting or environment.

NS: When does the church utilize courts either to initiate or to defend a lawsuit? What biblical principles guide you in those decisions?

TM: We initiate lawsuits primarily when church members or church institutions have been discriminated against. For example, when church members face discrimination in their workplace on account of the Sabbath, we go to court after all other avenues have failed. We go through an administrative process. First, the union conference tries to work with the employers. Often that is successful in dealing with the problem, but if not, then the case comes to the division and then to our office, and we take action against the employer on behalf of the aggrieved member. As far as biblical principles are concerned, I refer to the example of Paul. When he was flogged, he responded that he was a Roman citizen and he had certain rights under the law: he could not be flogged. In today’s situation, I see nothing inconsistent with taking advantage of the provisions of the law that guarantees religious liberty. People should be able to be true to their conscience and feed their families.

NS: In this particular area of religious liberty, what has been the trend? Have things become more difficult for our members or are things easing up a bit?

TM: As we’ve become more and more a twenty-four-seven society, the situation is certainly more difficult. More of our members are getting fired; more of our members are having problems. There is another aspect to the problem as well. As the church grows, new converts—people who were working on the Sabbath—find themselves in a predicament, and getting Sabbath privilege becomes problematic. And with the general hostility to religion, people are less willing to accommodate.

NS: Some twenty-five years or so ago, there were other denominations that were very interested in these religious liberty issues. Is that still the case?

TM: The interest has diminished. We certainly work with other organizations routinely. Recently, we did a criminal court brief in a case, and we got eleven church organizations to join us. There are other institutions that do litigation, but they are fewer in number. As far as representing individual members discriminated on the basis of religion, we’re one of the few organizations left.

NS: Dionne Parker, you talked about intellectual property. Does that deal with areas such as the use of the church’s name? What is the status of the name “Seventh-day Adventist”? How frequently does the church go to court in seeking to protect the church’s name?

DP: We work to protect the church’s name, and we try not to go to court often. Take, for example, an offshoot organization that uses the church’s name. We do many things before we ever seek litigation. Usually we start with a letter informing the errant party that they are wrongfully using registered trademarks that belong to the GC Corporation, and we ask them politely to stop using the church’s name. In the majority of cases, people will stop using the church’s name once they’re notified that they’re not in compliance with the law, and they’re infringing on trademark. What happens when we sue someone? Basically we’re not seeking any money benefits; we’re just seeking what’s called an injunction to get the court to have the erring party stop using the church’s name. Our stand is simply this: the more people use the church’s registered trademark without permission, the weaker our trademark becomes.

NS: You’ve mentioned groups separating from the Adventist Church. What about individuals who are church members? Can they use the name for their business undertakings?

DP: Pursuant to the GC Working Policy, individuals are not allowed to use “Adventist” or “Seventh-day Adventist” in conjunction with their commercial endeavors. That’s a violation of church policy. Sometimes we have individuals who try to do that because they think they are members, and they can use the church’s name. In the case of not-forprofit supporting ministries, they can apply for a license to use the church’s name, and that involves a whole process whereby it is approved or disapproved. But the church’s name is not supposed to be used for commercial endeavors.

RK: Any church organization listed in the GC Yearbook,2 including the health system, is free to use our name. The commercial activity issue generally comes into play in private business. There are church organizations—such as publishing houses and hospitals—that could be construed as being commercial, but when one looks at their mission, it’s broader than just a commercial endeavor. A lot of uses by individuals, especially in a commercial setting, are inadvertent. They don’t even think about it, they just use it. Not only is it against GC policy, but in most cases it would be a violation of our trademarks. But litigation is really the church’s last resort—and I emphasize the word last—because we try to work in every way possible not to sue these groups. Let me switch to another question you asked. Obviously, we cannot control who sues us and how we respond to those who sue us. If there are suits that involve personal injuries of any kind, they are turned over to Adventist Risk Management (ARM), the church’s insurance company. With regard to other matters that do not pertain to insurance, we directly handle such suits ourselves or work with outside counsel.

NS: And you have to respond to those; you have no choice.

RK: If we don’t respond to lawsuits filed against the church, we end up defaulting and losing them and that would put the church’s resources in jeopardy. Fortunately, such cases are few and far between, but there are suits that the GC gets pulled into that don’t really involve the GC at all. They may concern a local conference activity, such as somebody injured on the job or injured on church property. In such cases there’s an automatic assumption by some that the GC is responsible. We try to get the GC dismissed from those cases as quickly as we can.

TW: Sometimes there’s a perception that because we take the defense of a lawsuit seriously, we will defend the church aggressively, and that we don’t look at compromise. But the reality is otherwise. If we perceive that there is real merit to a claim, we will be amiable to resolve the issue as appropriately as possible. We don’t just go to court regardless; we try to be responsible, take every step to resolve an issue long before it gets to court.

NS: I want to go back to the use of the name. If a group of Seventh-day Adventists forms an organization and starts using the name, but they don’t have any formal relationship with the organization, it makes that group appear that it is speaking on behalf of the church, when in reality it has no organizational connection or validity. Is that what’s at stake here?

RK: That’s the basic assumption. The name “Seventh-day Adventist” is reserved to be used only by groups that are officially part of the Seventh-day Adventist Church and are supportive and part of that organization’s structure. There may be some innocent groups that use that name with no ill will at all, but just the same, they’re not part of the church. In the history of the Adventist Church some groups that are not part of the church structure and mission have used the name inappropriately, and this has caused negative and harmful publicity for the church. Hence the safeguard: to preserve and protect the name only for units that are part of the Seventh-day Adventist Church organization.

NS: Any example of such historic misuse?

RK: A tragic example is the one that involved the Branch Davidians in Waco, Texas. Initially, the Seventh-day Adventist Church was brought into that disaster because of the past affiliation of some of its members. When it comes to protecting the name of the church, you can’t pick and choose. You have to protect the name of the Seventh-day Adventist Church as consistently as possible. If you start letting different groups that are not part of the church use that name, you dilute the ability to protect the church’s name and the people.

TW: Some members may feel that they’re entitled to use the name. But we as protectors of the name must recognize that the name is like any other property. If vandals or thieves violate the physical property of a church, we would take legal action. Likewise, if someone “steals” our name and misuses it, we must take action to protect against such misuse.

PM: You spoke about preventative law. How do you prepare for an anticipated legal crisis?

RK: Education is one way to anticipate and prevent a crisis. All the attorneys at the OGC are involved in holding seminars and programs, making leadership at various levels aware of how the law impacts various activities of the church. We are involved in meetings that are conducted by ARM, Human Resources, and other entities. And we actually take part with meetings involving pastors, workers, and members, and create awareness among them on legal issues that affect church work.

RC: May I point out an example of ways in which we try to bring about legal awareness? First, in tax areas. We constantly face new tax laws. I try to keep our church clients informed about these new developments and changes. Keeping up with what’s current is important for all church entities so as to ensure compliance. This involves holding seminars and lectures on trust and estate tax audit issues, on planned giving, on trust accounting topics, and on legal issues facing Planned Giving and Trust Services, etcetera.

TW: The education part of our work comes in informal settings as well. Each of us in OGC attends various church meetings at different levels. Discussions during such meetings often deal with issues that have legal implications. While such implications may not be obvious to lay persons, the person from OGC can pick up the legal issue involved, and try to bring some legal clarity. That’s part of education, part of preventative law. It steers the organization and the administrators down the correct path before they go too far and do the wrong thing.

RK: Some may wonder, Why do we need lawyers working full time within the church when you can hire lawyers from outside as issues arise? The point is that we need to be actively involved in the procedures and processes of the law as it affects our church work. We need to be watching with legal eyes all the time in all of the areas we work in. The work of the church is increasingly more complex—emails, Web sites, announcements, departmental promotions, communications, books and magazines, and a hundred other activities. These need to be carefully monitored and guided so as to not create any legal problems. Recently, a department sent out a very positive promotion for something that concerned certain activities. When we read the announcement, we immediately saw some legal issues in how some things were being handled. Because we were right here in the building, we could address those issues immediately.

NS: How do you manage your work, when it involves so many states, and often attorneys in other parts of the world?

RK: Actually, we’re licensed in certain jurisdictions and practice only where we are licensed.

NS: But you relate to lawyers in other jurisdictions.

RK: Right, but we work with local counsel. For example, I’m working on issues in various countries right now, but I work with local legal counsel sharing with them the GC perspective.

NS: How do you keep up with all the legal books and developments?

RK: Nearly everything is electronic now. We’re on a subscription base to all the electronic encyclopedias, the laws, and other online research resources. In addition, all of us are engaged in continuing legal education.

TM: We also attend fairly regularly various legal association meetings. The legal profession is pretty good about informing itself with its various magazines and trade publications.

NS: In the last few years some denominations have gotten a lot of bad press with issues of misconduct by clergy or lay members. What is our church doing to address this issue?

TW: We as a church are not free from problems of this sort. From an organizational standpoint, the learning curve has forced us to create policies that would insist that there be a screening process for employees. It’s a basic must. So, hopefully we can prevent things from occurring.

NS: This screening process applies to both employees and to volunteers?

TW: Yes. Simple processes have been put in place where such problems are likely to occur. For example, a screening process for those who would work with children can prevent possible child abuse situations. But policies alone won’t do. We need to set up an educational process at all levels so that everyone understands what’s involved and what’s expected.

RK: When this issue first came up, many conferences were concerned about the costs involved, but they quickly recognized that every dollar spent was worth it. In the NAD even small conferences have now put together good screening processes. ARM has also worked on some procedures that are really helpful. One factor that is changing the thinking of the church is the need for faster recognition and notification of local authorities when an alleged situation of abuse is reported. You speedily report not just because it’s required by law, but because civil authorities have to take necessary steps to investigate and pursue the case.

LB: For the past fifteen years or so, there’s been an increasing awareness that sexual misconduct occurs in the church at all levels, and the church has a responsibility to deal with it. I have noticed a huge difference in the way such conduct is handled now from the way it was handled a few years ago. When the first sexual misconduct guidelines were drafted, it was an effort between ARM and the Office of General Counsel. As the guidelines were used through the years, both weaknesses and strengths were discovered. The guidelines eventually turned into a policy, and now that policy is under revision. The whole process represents a continued growth within the church, a continued responsiveness. I must also add that while we have developed policies to deal with misconduct, we also have been working on the preventive side of the process. You can’t leave out prevention in any aspect; it’s always part and parcel of what we do. When we’re dealing with sexual misconduct, being aware and being responsive are of course important, but we want to prevent misconduct by educating, doing seminars, workshops, and presentations. We must also take steps to avoid the appearance of impropriety.

PM: How do your responsibilities help the mission of the church?

RK: We help protect the resources of the church, and we safeguard the church from getting detoured from its mission. By taking care of the legal problems, we let the church leadership focus on mission and do it in a way that’s legal and that exemplifies the right way of doing business within the environment that we have.

TW: Protecting the name of the church is also protecting the mission of the church. The integrity of the church must remain above reproach. When it comes to protecting the resources of the church, it’s much less expensive to prevent a problem than to fix one after it occurs. Sometimes it’s hard to measure the success of our work because problems are not occurring, but they are not occurring because of systems in place to prevent them from happening.

RK: One unique difference between OGC and other services and departments in the church is the staff. Most departments are staffed by pastors and church leaders with theological training, and they get involved in the direct mission of the church. But OGC has six lawyers, none from a practicing pastoral background. However, we are contributing to the mission of the church by safeguarding the church’s assets and its ability to fulfill its mission.

NS: Thank you for this interview and for all you do in fulfilling the mission of the church.

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1 To see the full text of the mission statement, as well as to access other pertinent information, go to the Web site of the Office of General Counsel, www.adventistlawyer.com.

2 Seventh-day Adventist Church Yearbook (Hagerstown, MD: Review and Herald Pub. Assn., 2007). The GC Yearbook is a directory of all recognized entities and employees of the Seventh-day Adventist Church.

 

 

 

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