Breach of fiduciary duty and negligent hiring/retention/supervision in Florida -Reply -Reply

[Martin Nussbaum]

Colorado, unfortunately, has become the fountainhead for an expansion
of fiduciary duty law which poses one of the most significant threats to
church autonomy today.  With regard to this expansion, several matters
should be considered.

1.  My modest research re the origins and foundation of fiduciary law
indicate that the concept originates not from tort law which deals with
interpersonal relationships but from trust law which deals with financial
and property relationships.  Black's Law Dictionary 563 (5th ed. 1979);
Uniform Fiduciaries Act (purpose statement).  Thus, fiduciary duties have
been imposed upon trustees, bailees, partners, directors, and so on.
Once a fiduciary duty exists, the law charges the fiduciary to act in
these best interest of his constituents (beneficiaries, stockholders,
bailees, fellow partners.  The measure of damages tends to be
restitutionary and tort concepts like comparative fault generally do not
comply.

2.  As far as I have been able to determine, every state and federal court
has rejected claims of clergy malpractice. In a 1988 astoral counseling
misconduct case, the Colorado Supreme Court created an alternative
theory, fiduciary duty, to accomplish the same objective as the spurned
clergy malpractice claim.  Destefano, 763 P.2d 275 (Colo. 1988).  A few
years later, this same court reconfirmed this position and distinguished
clergy malpractice claims (in which courts become over entangled by
defining a std of care for pastors) from fiduciary duty claims which
involve no defined std of care.  Moses, 863 P.2d 310 (Colo. 1993).

3.  The distinction articulated by the Colo. courts is, of course,
poppycock.  For they have now determined numerous stds of care for
churches under the fiduciary theory.  Hearing a parishioners confession
for her misconduct with a minister is a breach of fiduciary duty because
the confessor, as a matter of civil law, is required to tell the penitent that
she "was not the only person responsbiel for her sexual relationship."
Moses, 863 P.2d at 323.  Suggesting that a victim not blab to everyone re
her allegations is a breach of fiduciary duty.  Id.  Failing to offer
assistance is a breach of fiduciary duty.  Id.  Failing to provide
counselors to women-victims is a breach of fiduciary duty.  Winkler, 923
P.2d at 158 (Colo. App. 1996).  Informing one's own congregation that
"there was nothing in [the minister's] personnel file that indicated that he
had [prior sexual] problems" is a breach of fiduciary duty.  Id.   A
church's failure to protect a victim of ministerial misconduct from the
congregation's subsequent criticism is a breach of fiduciary duty.  Id.  In
fact, in Colorado, if a church fails to send a letter to its congregation
stating that the church found the alleged victims credible in the
allegations of sexual misconduct is also a breach of fiduciary duty.  Id.

3.  Fiduciary law as articulated in Colorado,  because it is supposedly
standardless and because it can arise from virtually any confidential or
disproportionate power relationship, appears to have a trajectory that
could cause it to swallow the entire law.

4.  Fiduciary law needs to be restrained to the property and financial
context from which it arose.  If not, such claims against religious
organizations should be barred by church autonomy notions at the core
of the First Amendment.

L. Martin Nussbaum
Church-State Law Group
Rothgerber Johnson & Lyons LLP
90 S. Cascade Ave., #1100
Colorado Springs, CO  80903
719-386-3004
mnussbaum at rothgerber.com