Knowing the issues up front
Presbytery representatives get advice in negotiating church property disputes
By Carmen Fowler LaBerge, The Layman, March 1, 2012
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LOUISVILLE, Ky. – “If you don’t get full disclosure, you’ll end up with a grab bag,” Martha Clark, general counsel for the Office of the General Assembly of the Presbyterian Church (USA) warned attendees during the Office of the General Assembly’s recent “Spiritual and Practical Aspects of Negotiation of Church Conflict” seminar held February 19-20 in Louisville, Ky.
She was addressing the reality of arriving at a legal negotiated division of assets when a church is dismissed from the PCUSA. Clark used a paper bag filled with surprises to illustrate that sometimes presbyteries get more than they bargained for when they seize the entire corporation and don’t work through a principled negotiation process with churches. She said, “Sometimes you get the whole corporation – everything in the bag – all the assets and all the liabilities.”
As she pulled things out of the bag she acknowledged them, “Hymnal – that’s what we really wanted,” and then she added, “But it’s also the thing that people sense has strong emotional value.” Sticking her hand back into the bag, she exclaimed, “Oh! and some candy! Great surprise assets!” And then added, “Oh. And some rocks,” continuing to uncover the contents she added, “lots of rocks.”
“Well, now, here’s a coffee cup, but,” she hesistated peering down into the bag, “there’s no coffee pot and no coffee.” Holding up the coffee cup Clark declared, “This an asset we can’t use.”
Down at the bottom of the bag she found a clear stone. “Now that might be a real jewel – we should get that appraised.” But there was also an unopened envelope from a law firm. Clark said, “That could be really bad news and that could be really good news.” Then turning the bag on its end, she sighed. “What’s not in here that we expected?,” and answering her own question, said, “A check book.”
She told those gathered that “there’s a lot to think about when you consider the assets and liabilities of a church. Just consider cemeteries,” adding, “You’ve got issues of records, upkeep, use, access.”
Clark’s “grab bag” analogy came at the end of her comments about gracious separation and the preparations that presbyteries need to make before entering into principled negotiation with churches seeking dismissal with assets covered by the trust clause.
Clark instructed, “I strongly suggest you arrive at the negotiation prepared.” According to Clark, that preparation includes:
- Know why the congregation wants to leave.
- Verify that they actually voted.
- Know what your policy actually says and recognize that the interpretation likely varies.
- Know what the Book of Order says.
- Know the extent of the authority you have for what you can negotiate.
- What is your bottom line?
- Do you have deal breakers?
- Have a checklist – notes to self: reminders of things you want to discuss in the negotiation.
She told the assembly of executive presbyters, stated clerks and presbytery response team members to “See if all parties can agree that while we’re negotiating the terms of dismissal, can we agree to maintain the status quo?” She explained, “What you’re trying to verify is that there’s not someone outside the room affecting this.”
She then started down a checklist of things the presbytery should ask the church to supply:
- “Ask for disclosure: minutes, financial records, assets, liabilities, what are we negotiating?
- “Ask for audited financial statements but CPA.
- “Pick your negotiating team carefully: accountants and lawyers.
- “Consult in advance with the presbytery accountant and attorney in advance.
- “Both sides should consult with their attorney before signing anything.”
Speaking from experience, Clark said that presbyteries should “be careful what you ask for, you just might get it.” Then she affirmed that “There are lots of ways to structure a dismissal,” adding that “we do not desire to litigate, but sometimes it is unavoidable.”
Concluding, Clark pointed out that “every case is contextual so general rules can lead to more harm than good. Every state is a little bit different but there are some things that you can consider in advance.”