At most theological schools, the governing board is the principal fiduciary of the institution. And in times of crisis, the singular role of the governing board is to ensure that the seminary is doing everything possible for the success of the institution and the fulfillment of its mission. Now it is time for boards to be engaged, involved, and aware — and focusing on board-level issues only.
Now is also the time for boards to focus on a particularly critical subject: legal issues.
In Trust recently interviewed James K. Robertson Jr., chair of the board of trustees at Hartford Seminary, about potential legal actions resulting from the pandemic and how to mitigate risks that may be associated with it. Robertson is a partner at a Connecticut law firm, Carmody Torrance Sandak & Hennessey LLP, and also an ordained minister in the United Church of Christ.
Which legal issues should seminary boards be focusing on right now?
These are turbulent times, with many legal challenges facing seminary boards. For example, in response to the COVID crisis, institutional leaders need to take reasonable steps to protect the health and safety of their students, faculty, and staff. They may also need to rightsize the faculty and staff to accommodate declining revenues. They may face challenges from both students and faculty about the need to reduce in-person teaching. They may have to decide whether bequests and gifts can be used for urgent needs beyond the donors’ original expectations. They may even face existential quandaries about necessary structural changes.
What are some of the potential legal actions and associated risks administrators need to be aware of?
From a liability perspective, there are two major categories of risks: those involving negligence claims and those involving breach of contract claims.
Negligence claims vary somewhat from state to state but generally involve the breach of a legal duty that proximately caused some damage. Claims may arise in several contexts — for example, failure to provide a safe environment for employees and students once they return to school; failure to provide a safe and secure remote learning platform during closures; inadvertent disclosure of personal health information when notifying others of potential exposure; failure to provide adequate notice of health hazards; and inadvertent disclosure of personal information via remote learning “hacks.”
No one expects a theological school to guarantee that students and faculty will remain free from injury or illness. The school’s duty is rather to provide reasonable care under the circumstances. Furthermore, it is usually the claimant’s burden to prove the sickness or injury was caused by the seminary’s conduct and not some other source.
Contract claims can be brought by faculty, staff, students, or donors. Students may claim the education promised to them was not delivered. Staff and faculty may claim job expectations during and after the pandemic exceed what they originally agreed to. Donors, accreditors, and other educational regulating agencies may claim that by moving classes online so quickly, the school was excessive in its response to the pandemic. However, schools may be able to defend their actions by claiming that original contracts are overridden by what is ironically called an “act of God” or “force majeure.”
What are some of the ways that risk can be mitigated?
While a lot of risk mitigation is common sense, it requires leadership, discipline and good record keeping. Here are some ideas:
1. Take reasonable steps to reduce disease transmission on campus
- Create or revise health safety protocols.
- Promote social distancing and good hygiene.
- Inquire about and encourage disclosures of illness and exposure for contact tracing purposes. Be careful to reveal only the minimum information when notifying others of potential exposure.
- Develop a plan for extended absenteeism to avoid sick students feeling compelled to attend classes. Provide and facilitate alternative teaching and learning options where feasible.
- Discourage large group gatherings and close common areas where groups may gather.
- Provide remote learning opportunities when appropriate.
- Consider having students who plan to attend in-person classes sign a liability waiver, although such waivers are unenforceable in many states.
2. Take reasonable steps to ensure the appropriate use of remote programming
- Use organization-approved technology programs.
- Restrict access to approved users only.
- Develop written policies and guidelines on the safe use of remote platforms and share them with all users.
- Discourage the online sharing of identifiable personal information.
- Avoid the use of public Wi-Fi and use secure password-protected networks only.
- Work with IT professionals to implement data security and other technical protections.
3. Review contracts and insurance policies
- Review all contracts with employees, students, vendors, etc.
- Assess the availability and applicability of business interruption insurance and other policies. The pandemic has caused insurance mayhem — institutions all over the country are claiming business interruption coverage, but many insurance companies are declining this coverage. Consult your institution’s brokers and lawyers.
4. Closely monitor government orders and official health guidelines
- As everything related to the pandemic is evolving rapidly; be sure to stay up to date on federal, state, and local requirements and guidance, including social distancing and other measures that prevent the spread of the virus.
5. Keep good records
- Do not let good record-keeping protocols fall by the wayside as you are busy navigating these turbulent times. Claims are successfully defended when there are good records.
What advice can you offer to seminary executive leadership during this time?
Don’t be overwhelmed. Acting too quickly or too unilaterally can lead to mistakes. This is a time for leaders to be thoughtful. Feel free to brainstorm. Also, don’t keep everything all to yourself. Executive leadership can be a lonely role. Communicate with your board and other trusted colleagues. These relationships are important.
And what advice do you have for seminary board members?
There probably are not many seminary board members in your neighborhood. Seminaries are unique and sometimes fragile institutions, and boards may feel like they are governing from a silo, without the support of others who are facing similar circumstances. You should try to make connections and stay in conversation with others who are facing similar challenges. ATS and the In Trust Center offer this kind of network, and I have found the Center’s idea-sharing opportunities to be valuable.
Finally, times of crisis provide a reminder of the importance of the board-building cycle. We are fortunate that Hartford’s board includes individuals with diverse talents and areas of expertise. This kind of diversity should be cultivated on your own board so that you can lean on it in challenging times.