An open letter entitled A Conspiracy of Silence, Soon to End is now (2006) being widely publicized on the Internet and mailed directly to hundreds of Kingdom Halls of Jehovah’s Witnesses, informing them the Watchtower Society’s attorneys are arguing before the court that Bethel-appointed elders have no fiduciary duty towards members of the congregation. But what does that mean?
The word fiduciary comes from the Latin, meaning to trust. A fiduciary relationship is one that is based on trust. It is a relationship wherein one party is in a position of trust; being entrusted with, perhaps, the financial interests of another party, as in the case of an accountant, stock broker, banker or real estate agent. According to Law dot com, a fiduciary has the power and obligation to act in behalf of a beneficiary in circumstances that requires complete trust and honesty. Typically a fiduciary has greater knowledge and expertise and is expected to adhere to a higher standard of trust.
The relationship may or may not be legally established. In defining a fiduciary relationship, Law dot com states:
“The relationship is not necessarily formally or legally established as in a declaration of trust, but can be one of moral or personal responsibility, due to the superior knowledge and training of the fiduciary as compared to the one whose affairs the fiduciary is handling.”
The above description certainly describes the relationship between elders and individuals in the congregation. Elders may or may not have more biblical knowledge, but they certainly have access to confidential information that is not available to others and they are also trained by the Society in Kingdom Ministry School. There is no formal, legally binding declaration of trust between overseers and the congregation; but certainly there is an understood moral and personal responsibility due to the office and special training of the elders.
Notice this quote, taken from the Watchtower, describing the duties of the elders and their special relationship to the congregations they are assigned to oversee.
“Loving-kindness is still a mark of God’s people, including the men who shepherd God’s flock. Such elders, or overseers, feel a responsibility to live up to the trust conferred upon them by reason of their appointment. Even so, their shepherding work and other acts of loving-kindness in behalf of the congregation are carried out, “not under compulsion, but willingly.” The elders shepherd the flock because they have both a responsibility and a desire to do so. They express loving-kindness toward Christ’s sheep because they ought to and want to do this.” – Watchtower May 15th, 2002
Isn’t it obvious that the Watchtower here describes a fiduciary responsibility elders are expected to live up to? And it should be noted that the trust conferred upon elders transcends any secular fiduciary relationship for the reason that Jehovah is considered to be the ultimate source of authority that confers the trust upon congregation shepherds. That is evident from the following Watchtower quote:
“Overseers particularly are responsible to look faithfully after the interests of the King here on earth as a trust, looking to the time when the Master will require an accounting of the results of their work. Your assignment may be heavy and at times you may become weary as you work diligently to accomplish what is required.” – Watchtower May 1st, 1962
So, according to the Society, it is a three-way fiduciary relationship. The Master entrusts overseers, who in turn are entrusted by the flock with their own spiritual welfare.
Interestingly, the Watchtower points out that the Greek episkopos, from where the words Episcopal and Episcopalian are derived, and which is translated “overseer” in the New World Translation, carries the connotation of one who is entrusted as a guardian to protect that which belongs to God. The July 1st, 1976, Watchtower states: “The word “overseer,” which is translated from the Greek word epískopos, designates one who is a guardian or who watches over something. Protective care is a basic idea inherent in the word epískopos. So the Christian overseer is one who is concerned about the flock of God and who cares for such flock in the way a shepherd would care for literal sheep.”
If bankers and doctors have a fiduciary duty to protect the financial assets and health of their respective beneficiaries, who can honestly argue that elders do not have a fiduciary trust as guardians of the spiritual welfare of those under their authority?
It is not just elders who are encouraged to look after the congregation. The Watchtower encourages individual members of the congregation to trust the elders, even with their most intimate problems. For example, the May 15th, 1996, Watchtower stated:
“We also need to speak out when we need help. If we are suffering because of some spiritual problem, we may feel reluctant to burden others. But if we keep quiet, the problem may well get worse. Appointed Christian elders care for us and, if we will let them, are doubtless eager to help. This is a time when we should speak.”
As Jehovah’s Witnesses know, elders and the congregation have a very special relationship. The Society reinforces the biblical exhortation to give hard-working overseers respect, honor and obedience. Overseers are likened to shepherds and the congregation is a flock, with individual members of the congregation likened to sheep. Certainly, literal sheep come to trust their shepherd, and like Jesus noted, they will not heed the voice a stranger. Here is what the March 15th, 1996, Watchtower said about the shepherd/sheep relationship:
“Should we conclude that present-day spiritual shepherds need not show particular attentiveness to healthy sheep? Well, when a literal sheep gets into trouble, helping it is much easier if it has confidence in the shepherd. One handbook observes that ‘sheep are naturally shy of humans, and gaining their trust is not always easy.’ Among other things, the same book suggests this basic guideline for winning the confidence of sheep: “Speak to the animals regularly. They get used to the voice, which reassures them. Visit the sheep in the pasture often.’”
Shepherds are not merely expected to have a relationship with congregants while at the kingdom hall. For years the Society has required elders to make personal visits to the homes of all members of the congregation, in what are called “shepherding calls.” The same article quoted above goes on to say:
“Personal contact is therefore necessary if a trusting relationship is to exist between the shepherd and the sheep. The same is true in the Christian congregation. An elder noted: ‘Being known in the congregation as an elder who regularly visits the sheep makes it easier to call on one who has problems.’ Hence, spiritual shepherds should not try to feed and care for the sheep exclusively at the Kingdom Hall. As far as circumstances allow, elders should get to know the sheep by making shepherding calls at their homes.”
Do not the above statements taken from the Watchtower indicate that elders appointed by the Society are entrusted as guardians of the entire congregation and the members of congregation are likewise expected to welcome elders into their homes and trust them with their spiritual lives? Does that not describe a fiduciary relationship? Why, then, does Bethel’s Legal Department deny in court that elders have a fiduciary duty as trustees of the congregation?
It is about money, the love of which is the root of all evil. The Watchtower is fiercely determined not to allow the floodgates of civil litigation to open against them. They stand to lose millions and their lawyers are doing what lawyers are trained to do – win, even if that means denying Jehovah.
The Society’s hypocrisy is positively staggering. Basically, the Watchtower Inc. has become like the thing they have most hated. They have become like the loathed institutions of Christendom. Consider that the Watchtower has seemingly gloated over the legal problems pedophilic clergy have brought upon themselves in recent years. For example, the December 1st, 1994, Watchtower said: “The clergy have also denied God by turning their backs on his moral standards—as evidenced, for example, by a steady stream of lawsuits against pedophile priests.”
In 1990, the Watchtower reported:
“The Los Angeles Times reports that along with it have come “embarrassing public disclosures and costly lawsuits that have forced several churches into bankruptcy.” The Times notes that insurance agents say that pending in the courts are as many as 2,000 sexual abuse cases involving the clergy.”
Embarrassingly, though, approximately ten years later a lawyer for plaintiffs, Kimberlee Norris, is quoted in the Napa Valley Register stating she had been contacted by over 2,000 of Jehovah’s Witnesses abuse victims, at which point she stopped counting.
Seeing that they are now in the same position as many of the churches of Christendom, being hit with a wave of lawsuits, the Watchtower has now adopted the very same legal strategy as the clergy of Christendom; in denying any fiduciary duty exists in relation to their respective congregants.
The Federalist Society website discusses a New Jersey Supreme Court case about ten years ago in which a majority of judges considered that clergy do have a fiduciary duty toward their parishioners. The case stemmed from a lawsuit brought by a woman who had an adulterous affair with her pastor, and later sued for breech of fiduciary duty. Commenting on the case the article said: “The Court found the breach of fiduciary duty cases persuasive, and held that pastoral counseling creates a fiduciary relationship. ‘By accepting a parishioner for counseling, a pastor also accepts the responsibility of a fiduciary.’”
In a recent case in Massachusetts involving the Watchtower Society, as archived on SilentLambs, this very issue of fiduciary responsibility was argued before the state. The Society’s lawyers argued that there was “no fiduciary duty running from a church to its congregants.” But attorneys for the plaintiff put forth the following argument before the court: “It is very important, and to me obvious, that clergy members owe a duty towards congregants in the sense that the relationship is one of trust and confidence.” He went on to observe: “You have a fiduciary duty running to lawyers and accountants, that is all the more reason why it should run to children, who are particularly vulnerable, in the case of clergy members.”
The plaintiff’s attorney makes a very good point. Since children are much more vulnerable than adults, is not that all the more reason elders have a fiduciary duty to protect them? Surely, Jehovah agrees with that opinion. That is why he expects his shepherds to plead the legal case of the fatherless boy. The Society, though, has done the exact opposite. They have taken an adversarial position against the downtrodden and afflicted.
As has been noted, fiduciaries typically have more knowledge and expertise than their beneficiaries. In the case of elders of Jehovah’s Witnesses, they are often privy to information that the congregation is not. Confidentiality expressly forbids them to divulge private matters.
Take the ongoing case in Texas as an example, as reported on in Law dot com. Kelly was an admitted child abuser in the Dumas, Texas, congregation of Jehovah’s Witnesses. Later he moved to a congregation in Amarillo, Texas. Keeping with organizational procedure, the Dumas elders notified the Amarillo elders of the case; but, of course, the Amarillo elders kept the matter confidential. Unquestionably, the elders had important information that the congregation did not. That puts the elders in a position of trust and responsibility. They knew that Kelly had sexually abused a child on a previous occasion. And they knew that their local congregation was unaware that a pedophile was in their midst. Placing such a man in a position of trust, which they did, was irresponsible. It was a breech of their fiduciary duty. What a reproach on the Watchtower Society that their lawyers are denying that the Amarillo elders had no such duty to protect the congregation from the crimes of a congregant.
Regardless of the outcome of the case of Amy B. v the Watchtower, and whatever other cases may be pursued in the future, the Watchtower’s legal team would be well advised to consider how they will defend themselves before the supreme court of Heaven when the time comes, when made to answer the following: “Whom did you become frightened at and begin to fear, so that you took up lying? But I was not the one that you remembered. You took nothing to your heart. Was I not keeping silent and hiding matters? So you were in no fear even of me.” – Isaiah 57:11
Footnote: Amy B. was part of the group who received a multimillion-dollar out-of-court settlement from the Watchtower