Life Without the CO's?

[gpurlee]

There is a lot of discussion and consternation today about whether we will see a mass fallout of community organizations opting to continue their association with the BSA through a traditional chartering model, a facility use agreement or perhaps no association at all.

 I am going to go back a few decades to a conversation that I had with the nation’s leading church consultant, Lyle Schaller. I think that it has relevance today. By the time he got around to our church following the aftermath of a devastating fire, Dr. Schaller had consulted with over a thousand churches. And he had already published over 40 books and countless articles. He had remarkable insights coupled with a sharp wit.

 Perhaps half of the churches with which he had consulted had or had had Scouting programs.  I still remember his conversation with me very vividly. His comments have relevance today as we look at an uncertain future.

 He stated that for the vast majority of churches, the Scouting program was only a community group housed by the church even though many of them proudly pointed to it as a part of their community and youth outreach.

 Perhaps less than ten percent of the churches truly “owned the unit” in terms of Scouting being a ministry of the church. So, what was his test?

 (1)   Did the church actively provide adult leadership, support and oversight to the Scouting program? In the past year, how many adult church members were involved with the program on a regular basis?

(2)   Were the youth of the church involved with the Scouting program? As congregations aged, churches had fewer youth and a disconnect of sorts occurred.

(3)   Did the church include the Scouting program in its budget similar to its “official” youth group, coordinate in annual program planning and regular church program committees and regularly have joint programs such as service projects, fellowship events, etc?

Clearly, by his standard, the “ownership” of Scouting as a ministry of the church required both an “informed consent” on the part of the church leadership of knowing what they were agreeing to do and a deliberate commitment of significant time, manpower and resources.

By Dr. Schaller’s test, the vast majority of churches were operating in what today would be referred to as a “facility use agreement.” The Scouting programs were not viewed as being “owned” by the church and key unit leadership often had no other connection with the church. It was not uncommon for a Scouting program to raise the ire of a church, usually by leaving the facility in an unkempt manner, and finding themselves soon afterwards seeking a new place to meet. The training and oversight provided to chartered organizations by councils and districts was often minimal.

Contrast that with the “official church youth group” of that time period. It often had a paid youth director, a budget for supplies and activities, transportation being provided through a church vehicle, scholarships for summer church camp and refreshments provided weekly by members of the church. It was clearly “owned” by the church by Schaller’s standards.

So, when we talk about facility use agreements today, I suspect that Dr. Schaller would argue that type of agreement has in reality been the prime mode of operation for most chartered organizations for the past several decades. Only in the future, the terms and conditions of the signed agreement will clearly state that. And the role of many current chartered organizations will officially be relegated to one as a landlord.

Edited September 1, 2021 by gpurlee

[LostBobwhite]

In an effort to try to be prepared, my unit is hoping to have a plan B should our CO, a Masonic Lodge, decide to pull out as well.  I was assured if worse came to worse, the LC would charter and hey, maybe we just go ahead and do that now since there are issues with your CO anyway.  Ok we said, it will buy us time anyway.  THEN the SE apparently decided that being chartered by the council would not be in our unit's best interest.  Said it would be better to form a citizen group.  Well, I get that being chartered by LC may come with it's own headaches, but I sure don't want the liability or issues by going the citizen group route. 

and just fyi, staffer from our territory spoke to volunteers that had units with UMC (our UMC conference send the "don't charter, do facility use" letter last week). he  told them that the COs weren't being ignored, only that they weren't at that phase of the "discussion."  told the volunteers to go to their Church officials and let them know that "BSA is working on it, please don't make a decision now, give us about 6 weeks and you should see more information."

[Muttsy]

Very illuminating post. Thank you. 
 

Something I don’t understand is why any COs believe that a facilities use agreement will protect them. Landlords/lessors can be held liable if the sexual assault happened on church property under a variety of theories. Many of the fact patterns in the IV files occurred at meetings in the church, school, Kiwanis basements. It wasn’t the chartering agreement that established their liability, it was the facts.  

You can’t let crimes be committed on your property, when you knew or should have known they could occur. You must do something. To do nothing is unreasonable. I suspect these CO’s will have difficulty getting their own liability insurance once they disclose on the renewal application that it is hosting a scout troop. 
 

And assuming the FUA has an indemnity provision requiring BSA to indemnify, what’s the value of that now? Fool me once…

[CynicalScouter]

7 minutes ago, Muttsy said:

And assuming the FUA has an indemnity provision requiring BSA to indemnify, what’s the value of that now? Fool me once…

https://www.scouting.org/wp-content/uploads/2020/11/Short-Form-Facility-Use-Agreement-draft-10-21-2020.pdf

Facility Use Agreement

Licensor:			Licensee:
Facility Description and Address:			Licensee Address:
Restricted Area(s), if any:
Primary Contact with Phone Number:			Primary Contact with Phone Number:

 

This Facility Use Agreement (“Agreement”) is between the Licensor and Licensee named above. Licensor owns and/or operates the facility identified above (the “Facility”) and desires to grant Licensee a license to use the Facility during the Term on the terms and conditions set forth herein for the purpose of hosting Scout meetings and operating other Scouting-related activities (the “Purpose”).  For good and valuable consideration, the Licensor and Licensee agree as follows:

1.      Licensor hereby grants to Licensee and its individual units (i.e., dens, packs, troops, crews) a non-transferable, non-exclusive, limited right to access and use the Facility identified above (not including the Restricted Area(s), if any) during the Term on the terms and conditions hereof, and Licensee hereby accepts such license. Licensee’s use of the Facility shall be limited to the Purpose.  

2.      Licensee’s right to access and use the Facility begins at [TIME] a.m./p.m. on [DATE] (the “Start Date”) and ends at [TIME] a.m./p.m. on [DATE] (the “End Date”, and together with the Start Date, the “Term”). Licensee may terminate this Agreement any time for any reason (or no reason). 

3.      In exchange for the right to access and use the Facility, Licensee will pay Licensor the sum of $[AMOUNT] (the “Rental Fee”). A non-refundable deposit of $[AMOUNT] will be due no later than [DATE], and the balance of the Rental Fee will be due no later than [DATE].

4.      Licensee shall use reasonable care to preserve and protect the Facility from damage and to leave the Facility in substantially the same condition as when delivered by Licensor, reasonable wear and tear excepted. Licensee will be responsible for the reasonable costs to repair damages to the Facility caused by Licensee’s use under this Agreement, not including reasonable wear and tear.

5.      Licensee has inspected and accepts the Facility “as is” in its current condition.  Licensor makes no representations or warranties with respect to the condition of the Facility or its suitability for any particular purpose. Licensee understands that due to the nature of the Facility, it may not accommodate persons with certain disabilities.  Licensee is responsible for providing all disability accommodations necessary for its guests and invitees.

6.      Licensee will procure and maintain throughout the Term commercial general liability insurance with coverage limits of no less than a combined single limit of $2,000,000 and including coverage for bodily injury, property damage liability, and contractual liability. Licensor will be named as an additional insured under such policy and receive a certificate of insurance prior to the Start Date as evidence that Licensee meets the foregoing insurance requirement. 

7.      Licensee’s use of the Facility shall comply with all applicable local, state and federal laws and regulations. Licensee will furnish all equipment, materials, and resources required, and adequate supervision necessary for the safe and efficient operation of, the

Licensee’s meetings and related activities. Licensee agrees to abide by Licensor’s rules and guidelines applicable to the Facility of which Lessee is made aware in writing.

8.      Licensee will defend, indemnify and hold harmless Licensor and its employees, directors, officers, contractors and agents from any and all claims, liabilities, losses, damages, and other costs and expenses, including reasonable attorneys’ fees, investigative costs, court costs (collectively, “Losses”), arising out of Licensee’s use of the Facility, except to the extent such Losses are the result of Licensor’s negligence or intentional misconduct or a condition of the premises not caused by Licensee.  This indemnification obligation shall survive the termination of this Agreement.

9.      Licensor shall not promote or exploit Licensee’s use of the Facility for the purpose of, or name Licensee in connection with any, political or social advocacy conducted by Licensor, including partisan politics, support or opposition to government action, or controversial legal, political, or social issues or causes.

10. This Agreement is governed by and will be construed in accordance with laws of the state where the Facility is situated. This Agreement represents the entire agreement between the parties concerning the subject matter herein and may not be modified or amended unless such modification or amendment is made in writing and signed by both parties. Each party hereto represents and warrants that the person executing this Agreement on such party’s behalf is duly authorized to do so. Any provisions of this Agreement found by a court of competent jurisdiction to be void or unenforceable shall not affect the validity or enforceability of any other provision.  

[skeptic]

So, if simply the location puts them at risk, does that mean the Forest Service, or even the city that owns the park with its numerous dark and secret areas can be held accountable and sued when something happens there?  It comes back to who is the "real" perpetrator and if somehow the property owner could logically know that someone would cause harm on their property.  If the church or school does not offer the "place", the predator will find one if possible, as it is their nature and no manner of barriers will stop them all.  And the truth is that the largest percentage of abuse occurs within family homes and under the noses of others known to the family and victim.

 

[Muttsy]

All I’m saying is that they could still get sued and possibly held liable depending on the facts. The cost of defense could be prohibitive. 
 

I also question whether BSA could obtain insurance that does not contain an exclusion for sexual abuse which has been standard since beginning in the late 1980’s.  If it could it would probably require a huge deductible. 
 

Hey Skeptic, don’t shoot the messenger because you don’t like the message.  

[CynicalScouter]

20 minutes ago, skeptic said:

So, if simply the location puts them at risk, does that mean the Forest Service, or even the city that owns the park with its numerous dark and secret areas can be held accountable and sued when something happens there?

Depends in prevention (or foreseeability) and soverign immunity.

First, keep in mind that the Forest Service and (some) local and state governments have what is called soverign immunity: you can't sue them for a tort (like personal injury) UNLESS they give you permission first. Here's a hint: they won't.

See, for example https://www.virginiainjurylawyersblog.com/federal-appellate-court-determines-government-immune-liability-bicycle-accident-occurring-national-forest/

Quote

The court held that both prongs of the exception were met and that sovereign immunity did attach. The court explained that while the [Forest Service]  rangers were required to keep the trails clear, there was no proscribed method for doing so. The court explained that the De Soto National Forest is 382,000 acres, and certain judgments had to be made regarding the forest’s upkeep. Similarly, the court determined that the decisions of the rangers were based on the “social, economic, or political public policy” that the doctrine of sovereign immunity was designed to protect. As a result, the plaintiff’s case was dismissed.

So, there's that.

Second is the idea of prevention or foreseeability. GENERALLY "There is no duty to control the conduct of third persons."

Yes, a person renting a property out has some duty to ensure that the physical property is safe, but it is VERY hard to make a claim that the landlord is legally responsible for any criminal conduct or civil torts that takes place in there.

So, to use the example of BSA, if the facility was rented out with a big giant leak in the floorboards causing John Cub Scout to slip and fall? The landlord may be on the hook, sure. You'd have an argument the landlord was responsible for ensuring the safety of the building.

But if a scoutmaster was abusing scouts in the bathroom? The best that can be said it "maybe." 

https://scholarship.richmond.edu/cgi/viewcontent.cgi?article=1895&context=lawreview

Quote

Several courts willing to impose a duty do so reluctantly and strictly define the circumstances under which liability will attach. Courts prefer a narrowly drawn foreseeability requirement which demands that the land-lord could foretell with some certainty that the victim's injury was going to occur.2 Some courts go even further and require that the operation of the business itself must "lure" or "abet" criminal activity in order for the landlord to be liable.2 3

So, and to use the BSA example. A landlord/church rents out the fellowship hall to Cub Scouts. The Cubmaster then uses those Pack meetings to run a drug den using the scouts as drug mules. A scout ODs.

The forseeability here is going to be at or near zero. There was NO WAY that the landlord could have reasonably known that Cub Scouts would be dealing and doing drugs.

BUT

A landlord/church rents out the fellowship hall to Cub Scouts. The Cubmaster sexually abuses a scout in the bathroom. Given BSA's track record of child sexual abuse, I would bet some lawyer would make an attempt at foreseeable: "Landlord, you KNEW that BSA had a history of abusing children and you went right ahead and let then use your property for it anyway. You know, or should have known, that was going to happen."

Etc.

Edited September 2, 2021 by CynicalScouter

[Muttsy]

22 minutes ago, skeptic said:

If the church or school does not offer the "place", the predator will find one if possible, as it is their nature and no manner of barriers will stop them all. 

Barriers to entry do work and are the most effective. Your argument seems illogical. If YP actually works as a barrier to entry, then logically the perpetrator will go elsewhere. 
 

Sex crimes laws on the state and federal level have gotten much tougher over the past thirty years. To your point, the pedophiles have gone elsewhere and in the process created a huge offshore child sex tourism industry to places like Thailand, Romania and Mexico to name a few. 

[elitts]

18 minutes ago, Muttsy said:

Very illuminating post. Thank you. 
 

Something I don’t understand is why any COs believe that a facilities use agreement will protect them. Landlords/lessors can be held liable if the sexual assault happened on church property under a variety of theories. Many of the fact patterns in the IV files occurred at meetings in the church, school, Kiwanis basements. It wasn’t the chartering agreement that established their liability, it was the facts.  

You can’t let crimes be committed on your property, when you knew or should have known they could occur. You must do something. To do nothing is unreasonable. I suspect these CO’s will have difficulty getting their own liability insurance once they disclose on the renewal application that it is hosting a scout troop. 
 

And assuming the FUA has an indemnity provision requiring BSA to indemnify, what’s the value of that now? Fool me once…

Yeah, a finding of liability for negligent security in a church would be one hell of a stretch if you were trying to base it solely on "The BSA has a history of CSA." 

I mean, if insurance availability was based upon public opinion, you might be right; but insurance companies run on numbers, not publicity. 

[Muttsy]

My point is that if your church gets sued under a “should have known of the hazardous potential” theory or any theory, your church has already lost. It’s lost money for lawyers. To even get to a summary judgment dismissal stage, it has endured discovery and motions practice - easily 100k in defense costs depending on prevailing law firm billing rates. 
 

it’s also suffered reputational damage in the community. A single lawsuit could crush a small church or civic organization. 

[CynicalScouter]

7 minutes ago, elitts said:

Yeah, a finding of liability for negligent security in a church would be one hell of a stretch if you were trying to base it solely on "The BSA has a history of CSA." 

How forseeable was it that because SCOUTING IN GENERAL or BSA NATIONAL had a history of child sexual abuse cases that a landlord letting PACK 123 use their fellowship hall would lead to the sexual abuse of a scout (generally, or on the premises)?

That's a stretch in a half to say the least.

But it will cost the church thousands to defend that suit, or the insurance co. for the church.

Edited September 2, 2021 by CynicalScouter

[Eagledad]

Curious, Walmart has insurance that covers for customers who hurt themselves falling in their parking lot. Does Walmart have a reputation of customers falling in their parking lot? I imagine just as much reputation as BSA's history of child sex abuse. 

Barry

[elitts]

2 hours ago, Eagledad said:

Curious, Walmart has insurance that covers for customers who hurt themselves falling in their parking lot. Does Walmart have a reputation of customers falling in their parking lot? I imagine just as much reputation as BSA's history of child sex abuse. 

Barry

Every parking lot everywhere is going to have tripping/slipping and falling hazards at some point; those in areas of snow even more so.  That's a foreseeable risk with prevention steps that can be taken to mitigate the risk.  And yes, I'd imagine that any given Walmart sees a significant number of fall complaints every single year; most businesses with high customer traffic get those claims with some regularity.

Most scout troops don't have pedophiles in them.  Regardless of the large number over the years nationwide, there's simply no evidence of it occurring frequently enough at this point that anyone could consider it a likely problem on the individual troop basis.

Edited September 2, 2021 by elitts

[skeptic]

54 minutes ago, elitts said:

Every parking lot everywhere is going to have tripping/slipping and falling hazards at some point; those in areas of snow even more so.  That's a foreseeable risk with prevention steps that can be taken to mitigate the risk.  And yes, I'd imagine that any given Walmart sees a significant number of fall complaints every single year; most businesses with high customer traffic get those claims with some regularity.

Most scout troops don't have pedophiles in them.  Regardless of the large number over the years nationwide, there's simply no evidence of it occurring frequently enough at this point that anyone could consider it a likely problem on the individual troop basis.

Anyone with rational thinking that is.  There obviously are a few that seem to think it is, and has been, a huge issue, even though the "stats" would suggest otherwise.  The trouble is, of course, is that those that believe that, or at least claim it, are very loud bayers and not particularly rational.  I am not speaking of the actual victims that  have valid claims and do exist, but the larger picture in comparative society.  And, as discussed over and over, our legal system allows a great deal of overreach and irrational claims.  Those that choose to not agree, that is your right, but please do not accuse me of not having concern or empathy, as that is simply not true.

Edited September 2, 2021 by elitts

[Gilwell_1919]

I took out a hefty, personal umbrella policy when I agreed to take on the role as SM. Why? Because the sad fact is... we live in a litigious society.