Misconduct on Council’s Radar?

By G. Jeffrey MacDonald

Two months after Presiding Bishop Michael Curry fired two senior administrators for misconduct, the church’s governing board has a new mandate: find out why the misconduct remained hidden and strive to prevent a recurrence.

That’s according to several nonprofit governance experts, who say a board must take swift action to review and, if necessary, strengthen policies and procedures after receiving a misconduct report.

The 40-member Executive Council will have its first crack at the situation when it meets June 8-10 in Chaska, Minnesota. Among the pressing items: confront how long the misconduct went unaddressed and why.

“As part of the board’s obligation to be informed, they’re going to have to understand what that duration was and why the system failed,” said Kevin LaCroix, an Ohio-based attorney and longtime insurance industry consultant on director and officer liability issues. Council members will then need to assure “not only that there are appropriate procedures, but also that they are followed.”

The meeting will be the council’s first since the Philadelphia-based law firm of Curley, Hessinger & Johnsrud delivered results of its independent, three-month investigation. The report led to the April firings of Sam McDonald, deputy chief operating officer, and Alex Baumgarten, director of community engagement.

Curry did not disclose the nature of the misconduct, saying only that the two “failed to live up to the Church’s standards of personal conduct in their relationships with employees.” A third administrator, the Rt. Rev. Stacy Sauls, was found to have committed no wrongdoing but has left his role as chief operating officer.

Council members have said they plan to follow standard best practices for nonprofit governance in handling the misconduct case. That would entail grappling openly this month with the report’s implications, said Brent Never, an associate professor of nonprofit leadership at the University of Missouri–Kansas City.

“That first meeting back really has to clear the air about where structure failed and where culture failed,” Never said. “It needs to be a real strong, heart-to-heart conversation, meaning laying it all on the table. … What structures weren’t there? What structures were there but were not used? And then what were the people or cultural aspects at the heart of this?”

Regardless of what types of infractions took place, the sequence of events raises questions for the board to answer, experts say. Curry’s tenure was not six weeks old when he announced on Dec. 11 that the three executives had been placed on administrative leave. One week later, he announced the start of an investigation that would ultimately encompass more than 40 interviews and thousands of pages of documents.

Never and other observers said the vast scope suggests the misconduct had gone unpunished for months or years.

“It’s not surprising to me that this could happen and would require a changing of the guard to bring something to light,” Never said. “But ideally a board would be strong enough that they could be a counterbalance to a bishop.”

Being unaware of misconduct is not necessarily a legitimate excuse for a board, LaCroix said, explaining that nonprofit directors have specific legal duties to care, to be informed, and to inquire. In the event of litigation, council members who served while the misconduct was occurring would need to show that they did properly inquire, stay informed, and take appropriate action.

“The question that a court is going to ask is: Well, did the board have procedures in place?” to gather information, and were its members “making appropriate inquiries to understand events within the organization that could affect its reputation, ability to function, and ability to fulfill its mission?” LaCroix said.

Questions may arise about where the work of Executive Council ends and the work of General Convention begins in watching for misconduct. For now, the onus is on the council to act on what the church learned from the misconduct report. That could mean adopting and thoroughly disseminating stronger policies. Or it could mean creating new protocols to make sure employees feel safe to speak up without suffering retribution. Either way, the process will involve looking back at what happened and analyzing what needs to change.

“They’ve got this information from the work the firm did, so they’re going to know where the information stopped,” said William Brown, a professor of nonprofit management at Texas A&M University. “At some point it stopped somewhere. You could find out exactly why it stopped [and create safeguards by] making sure there are these runaround options — so that somebody who knows and feels like their voice isn’t being heard can go to a place that’s safe.”

The Rt. Rev. Katharine Jefferts Schori, who served as presiding bishop from November 2006 to Oct. 31, 2015, declined to comment when asked via email to explain what workplace policy for reporting misconduct was in place during her tenure. She also declined to discuss how any such policy was enforced.

Both were within her realm of responsibility, Brown said.

“The board is clearly in the position to be asking the questions about how these kinds of policies are in place to make sure that this [misconduct] doesn’t happen,” Brown said. “And the bishop is one who says, here’s what they are, here’s how they function, here’s how we make sure that people are getting the information that they need.”

LaCroix said that if misconduct victims were to sue, Jefferts Schori as chief executive at the time would need to account for the church’s misconduct policies and how they were enforced.

“If this was one of those circumstances where some information was known to senior officers or to the board, what did they know?” LaCroix said. “What actions did they take in response to that? Were their responses appropriate given the nature of the information? And so on.”

In well-run nonprofit agencies, every employee knows what constitutes misconduct and what to do when concerns arise, Never said. Protocols ensure that employees have more than one place to go if they fear retaliation after speaking to a supervisor. They also make sure chief executives are notified when allegations arise at lower levels. Employees know they can bring concerns directly to the board if need be.

Among the questions facing Executive Council: even if the church’s procedures are strong, are employees afraid to use them? Do employees know what to do when a supervisor or bishop decides a complaint does not warrant further action?

It may be that “the culture is such that we don’t question what the bishop decides is the right thing to do,” Brown said. “So you have to be able to let people know — in particular areas, particular situations — absolutely you need to go around the bishop, and here’s the mechanism by which we do that.”

Curry said in his April 4 announcement of the firings that “the real and more important work we must do together going forward is not primarily organizational and structural, but deeply cultural and spiritual.”

But council members cannot merely assume that structures for preventing misconduct are adequate, LaCroix said.

“They should reach their own conclusion on that,” he said. “And they should reach their own conclusion, even on the bishop’s decision that it’s cultural and spiritual, as to what that means in terms of what the organization needs to do in order to protect itself from future incidents.”

Looming large over Executive Council’s discussions will be the possibilities of triggering liability and litigation. Should all 40 board members review the report from Curley, Hessinger & Johnrud? Some might argue no, the content is too sensitive to be made available to so large a group and should be left to study by a subcommittee.

But individual council members can be held personally liable if a court finds that, in responding to the misconduct situation, they failed to inquire or be informed, LaCroix said. Board members could demand to see the report lest they be deemed negligent if sued in a future misconduct case.

“It may be that the board feels that there’s no way for them to fulfill their obligations under the duty of care to act on an informed basis without everyone seeing the report,” LaCroix said.

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