Hitherto, the Charter Partners (churches, schools, civic orgs) have hoped to be left out of the whole mess. They are now claiming that BSA is reneging on a promise to cover any claims against them in return for chartering a unit. And they are recommending that existing charter partners (local churches, etc.) not re-charter their units until they see how the bankruptcy plays out.
To be fair, BSA is attempting to deliver on their promise to protect their partners. The outline of the settlement we know so far includes an immediate (and minimal) payout for anyone who wants a quick settlement. That would be those whose claims are sketchy or essentially unprovable due to the passage of time. Insiders estimate that three-quarters of the entire number of claims will quickly go this route. And to take this option requires those accepting the settlement to release any charter partner from liability. As for the more serious or damaging cases, well, we’ll have to see how this plays out. And the negotiations aren’t done.
It should also be noted that in our litigious society, anybody can sue somebody else for just about anything. That doesn’t mean that anybody’s suit will prevail, but it does mean that even defendants who win in court have to pay their own attorneys’ fees (unlike the “loser pays” system in British courts). It behooves churches to carefully consider their risks in doing ministry. Churches mostly assume that their good intentions indemnify them against any responsibility for things other than direct harm (similar to the Good Samaritan laws that allow first-aiders to render care, including CPR, without having to face lawsuits for incidental harm done in rendering that care). This is wishful thinking. All ministry – everything you do for and with other people – involves a certain amount of risk.
Perhaps the saddest thing in the Ad Hoc Committee of Charter Partners’ recommended response is in the model Facilities Usage Agreement they offer to churches to redefine their relationship to their scouting ministry. This reads, in part,
In exchange for the use of the Facilities belonging to the Church in connection with the scouting activities of the User (the “Scouting Activities”), User and the Church agree as follows:The whole point of the charter partner agreement, wherein the community orgs who charter BSA units “own” their units, is to establish that those are not just “the Scouts who meet in our building,” but “our Scouts.” That they are, indeed, a part of our ministry, souls in our care for whom we are responsible. This means that we have the right to determine who the leaders of our units are, and to make sure that our values are communicated to the youth. The recommended Facilities Use Agreement blatantly defines the Scouts and their leaders as Them – very definitely NOT US – an alien group for which we are acting merely as a landlord. Folks, if that’s how we’re going to do ministry, then we might as well close our doors. We are no more than a religious club whose only concern is our own members.1. Not Church Sponsored Activities. User acknowledges and agrees that the Scouting Activities are not sponsored, conducted, supervised, or monitored by the Church or its directors, officers, elders, employees, agents, or volunteers, and that the Church is merely making the Facilities available for use by User in connection with the Scouting Activities. User further understands and acknowledges that the Church will not, and has no obligation to, make available any personnel or volunteers in or around the Facilities for the benefit of User or the Scouting Activities.
But that’s not how we’ve seen it operate, you say. Indeed. Both partners share responsibility for the sloppiness and neglect of the relationship. BSA has too often paid only lip service to being in partnership with the community orgs they relate to. They have downplayed the responsibilities of the charter partner in order to sweet-talk community orgs into accepting a unit. They have not made real efforts to include the charter partners in the governance of the Council (a majority of Council Executive Board members must be Charter Organization Representatives, but I’ve only known two of them attend our Council’s Annual Meeting in the last twenty years). They do not bother to learn how to explain – in our jargon – how to use their programs to help us achieve our goals. On the other side, too many churches have let their Packs, Troops, and Crews become independent orgs. The congregation provides no leaders or direct oversight, and does not promote the programs to their own children and youth. Clergy range from indifferent to hostile in their view of Scouting. Churches routinely ignore the program – sometimes, the only program – that gives them the most contact with unchurched families.
When I moved to my last appointment, I found that in the months before my arrival a prominent Scout leader in our Troop had been dismissed for cause by the local Council. He hadn’t molested anybody, but his behavior outside of Scouting got him arrested and BSA banned him for life. I had some sympathy for him; I’m not sure I would have handled it all the same way. But there you are. He was not supposed to attend or participate in Scouting functions, except as a parent visiting his son’s upcoming Court of Honor and the like. And yet, there he was. He was trying to hang back, not participate, but he was thirsting to do so. And he was being allowed to hang around. This could not continue. I mentioned it to our Scout Executive, who offered to get a restraining order from the court. I said, No, it’s our unit; I’ll handle it.
I was brand-new in that congregation, and the Troop was an important part of our ministry. The Troop leadership and congregational leadership were intertwined. If I faced serious resistance, I was fully aware that I might blow up my pastorate before it had really gotten off the ground. But all I could see was me sitting in court one day to defend the church against accusations of complicity in some horror that happened on a Sunday School or Youth outing, and being asked by the plaintiff’s attorney, “Do you charter Troop XXX?” Yes, I would have to say. “And was So-and-so a leader in that Troop, and was he dismissed for cause by BSA for, etc.?” Yes. “And did you know he continued to participate, even after he was forbidden to do so?” Well, but . . . . “Answer the question.” Uh, yes. “And did you allow this to go on?” At this point, all I could see was the jury adding zeroes on the back end of the check we would have to write. For the ONLY defense against an accusation – which can come from anything we do, brought by anybody we deal with, at any time – is 1) We didn’t know, and 2) If we had known, we’d have done X (as per our policy). Not following policy in one area proves you don't follow policy, period; it's negligence on its face, even if you weren't negligent in that particular area.
So I went to the Charter Org Rep and laid it all out to him, and he talked to the Scoutmaster, who finally had to tell this poor guy to go away. If the COR had blown me off, I would have gone to the Troop Committee Chair, then to the Scoutmaster, then to the Pastor-Parish Committee. If all of them waved me off, I would have told the guy myself, on my own authority, to go away – at whatever cost to me and my ministry. Because part of what a shepherd does for the flock is to protect it from danger, and this guy had become radioactive.
But it’s not just negative actions that are important. I also made sure that our Troop, Pack, and Crew worked with our church calendar. I guided the various unit Committees in choosing leaders. At one time, when we were in a Scoutmaster transition, I made it clear that I would not approve a Scoutmaster who was not a credible example of church-going discipleship. My first preference would be for a SM who was a member of my church; failing that, I wanted him to be a member of somebody’s church, because he couldn’t model what we want to offer the youth if we couldn’t see him in that role. Likewise, I established clear guidelines for our Scouts about conducting worship in the field when they couldn’t attend church, about saying grace, about participation in Scout Sunday. I offered all the religious emblem awards on a regular basis as part of our ministry to children and youth. I made sure that the Local Church Coordinator of Scouting Ministry (UM jargon for a COR) was a full member of the Church Council. And when we revised our child protection policy, I made sure to seamlessly integrate the church’s scouting ministry with the other ministries we had for children and youth.
My personal recommendation is that if you have to resort to the recommended Facilities Use Agreement, you ought not to be doing scouting ministry at all. In fact, you probably ought to admit that your view of ministry, period, is pretty sad, and ask yourself what you think you are in the business of doing. And if you are going to do scouting ministry, then make it YOUR scouting ministry. Accept the risks, and do it right, to the glory of God.