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The following report is presented to the General Synod of the Associate Reformed Presbyterian Church (the Synod) in response to the action taken by the Erskine Board of Trustees (the Board) at its February 17, 2012 meeting.

A majority of the Board refused to thoroughly address a motion made at Synod’s 208th meeting stating in summary that they did not concur with changing the charter to recognize Synod’s authority to remove trustees, and that they did not seek further dialogue on this issue.

This is the original report

We recognize that the issues discussed below have a lengthy history, and that the current Board’s action (as well as actions of the Boards of the past quarter century), which necessitates this report is yet another episode in the story of ongoing tension between these two bodies.

We also recognize that these issues are complex, and we urge that delegates to the General Synod read this response with care. The stakes are high, for the historic relationship between the General Synod and its educational institutions now hangs in the balance. In addition, it is time for the Synod to move its focus to preaching the Word, discipling believers, and reaching the lost for our Lord and Savior Jesus Christ.

The list of Minority Report signers is varied—those who voted against the Board’s action and who voted for it (on the basis of information provided by the Board’s ad hoc Committee that has now been demonstrated to be factually incorrect), but now realize that their vote was mistaken. All are united, however, in the conviction that the Board’s action was not in the best interests of Erskine and that it was less than faithful to the Church of Jesus Christ.

I. Historical Introduction

Some on the Board suggest that the current problems between the Synod and the Board stem from the Synod’s effort to remove the Board in March of 2010, but a candid review of the evidence leads to quite a different conclusion. For example, in 1976, L.L. Dattler, as Moderator of Virginia Presbytery, spoke to the relational strain between the Synod and the Board present at that time:

We of the Virginia Presbytery do not in any way wish to hamper the greater Distinction for Erskine Campaign, nor do we wish to deal in personalities. The problems that disturb us have come about over a number of years, as the review of policies over a period of time demonstrate . . . If we see no change then we shall memorialize the General Synod again to take more direct action. By condoning the line of least resistance, the administration, the faculty, Board of Trustees, and each member of the General Synod is permitting stumbling blocks to impair the spiritual, the emotional, and the intellectual growth of these young lives which are entrusted to us by God and their parents.
[1]

His statement points to disturbances, occurring “over a number of years” prior to 1976, regarding the Board’s failure to properly implement the recommendations of the Synod.

In fact, the Minutes of Synod over the past four decades tell a story of Synod’s instructions and entreaties, the Board’s evasive and incomplete responses to the directives of Synod, the Board’s consistent failure to implement the guiding principles articulated by the Synod, and Synod’s reluctance to hold the Board accountable until the Special Called Meeting of General Synod in March 2010.[2] Witness this pointed language, taken from a motion passed by the 2007 General Synod:

That Synod call upon the Board of Trustees, Administration, Faculty and Staff of Erskine College and Erskine Theological Seminary wholeheartedly to fulfill the instructions of the General Synod regarding character and mission of the College and Seminary and, in particular, that they carefully and without evasion adhere to the requirement that any newly appointed administrative or teaching employee of any board shall have given satisfactory evidence of their belief in and adherence to the basic doctrines of evangelical Christianity.
[3]

This record of failure and conflict could not be denied, and prior to the March 2010 Synod meeting the Board, without dissent, passed a resolution recognizing this contentious history by stating in its opening words:
“In a spirit of humility and acknowledgement of our failings, and a desire to give the glory to God, and to move Erskine forward; we concur in principle with the recommendations of the Moderator’s Commission.
[4]

In the wake of the Special Called Meeting of General Synod in March 2010 which voted to replace the existing Board with an Interim Board, legal actions by the then Chairman of the Erskine Board, employees of Erskine Theological Seminary, and finally by three of the dismissed trustees, were filed in civil court. As the costs of this legal battle continued to mount, the General Synod voted in June of 2010 to renounce its efforts to replace the Board contingent upon the dismissal of the lawsuit filed by the three trustees, and the suit was finally dismissed in September, 2010. Since March 2010, the Board has undertaken a series of actions that (whatever the motives of individual Trustees may have been) have had the effect of unilaterally redefining the relationship between the ARP Church and the Erskine institutions. In May of 2011 the Board approved a new set of Bylaws which in a number of ways acted to distance Erskine from the Synod.

First, the Board in its Bylaws failed to acknowledge the organic relationship between the Synod and the Erskine institutions and the status of Erskine as an “agency” of the ARP Church.

Second, it defined “undue influence” in such a way that any effort by the Synod to ensure accountability to the mission of the schools could be viewed by accrediting bodies as “undue influence.”

Third, it reserved the right of trustee removal exclusively to the Board itself. And finally, the Board revised the Trustee appointment process prior to consideration by Synod’s own Committee on Nominations, making it almost impossible for Synod to alter its will from the floor of the Court, in such a way that the Board now has something close to a de facto power to veto prospective trustees that it does not want appointed.

Sensing that the Synod and Board were moving in very different directions, and seeking to resolve the points of confusion and difference, the Synod responded to this action by the Board in June 2011. The Synod passed a motion requesting that the Board enter into a process of charter revision, and proposed “preliminary language” for “consideration and review.” More specifically, the Board was asked “to provide the Synod with its feedbackand proposed amendments in time for distribution and consideration at the Synod’s 2012 meeting, after which, an official proposal of amendment to the charter may be sent to the Board for consideration.”[5] The Synod’s proposed language reads as follows:

Recognizing the historic and organic relationship between Erskine College and Seminary (‘the Institution’) and the General Synod of the Associate Reformed Presbyterian Church (‘the Synod’), the Institution recognizes the right of the Synod to a) through its Philosophy of Christian Higher Education and ‘Definition of an Evangelical,’ delineate the Synod’s aspirations for the institution; b) appoint all trustees to the Board of the Institution; and c) remove trustees for cause by a process set forth in governing documents of the ARP Church.

All Erskine Board members, faculty and administrators shall give affirmation that the Philosophy of Christian Higher Education and the Synod’s Definition of an Evangelical are in accordance with their own views and commitments. In its oversight of the Institution through the Board of Trustees, the Synod shall seek to act in accordance with the Holy Scriptures, the Westminster Standards, its own Philosophy of Christian Higher Education, and the laws of the State of South Carolina.
[6]

On February 17, 2012, rather than continuing the conversation as the Synod suggested, the Board simply declined to do what the Synod asked of it. It is the purpose of this minority report to address the Board’s response to this motion and to locate that response in the broader context of the Board’s ultimate failure to comply with the Synod’s directives.

Like Mr. Dattler in 1976, we the undersigned have no desire “to hamper” Erskine and have no inclination to deal in personalities by singling out any individuals by name. Rather, we seek to promote the mission and vision of the General Synod in and through its ministry at Erskine College and Seminary, and in doing so, promote the success of the college and seminary. It is with these desires, which are ultimately for the glory of God, that this report is respectfully submitted.

In saying this, we readily acknowledge that responsibility for the current impasse lies with both the Board (for its resistance and failure to implement the Synod’s mission for the Erskine institutions), and with the Synod (for its failure to require ongoing accountability of the Board to the mission). Furthermore, the Synod’s own structure has hampered its efforts to respond to a more recent well-organized and determined opposition by those wanting a more independent Erskine, and especially to the vigorous public relations campaign mounted by those opposing Synod’s authority to remove trustees.

In these efforts, the Synod has, in accordance with its nature as a deliberative body, functioned as a “committee of the whole.” It is a large body which normally meets but once a year. In addition, internal divisions within the Synod have made it difficult for it to steer a steady course in this controversy (a pattern that contrasts markedly with the effective efforts of the Georgia Baptist Convention to effect reform at Shorter College as referenced below as an example).

II. Four Reasons Cited by the Erskine Board in Declining Synod’s Request

Erskine’s response to Synod declines Synod’s request to change the charter of Erskine for four stated reasons: (1) potential impact on accreditation; (2) potential legal liability on behalf of Synod; (3) potential impact on academic freedom; and (4) potential impact on trustees’ independence to serve the mission of the Institution.[7]

Note that none of the reasons rises above the “potential” level, suggesting that there are no known or established problems with the requested charter changes, only potentialones. Even if a definition of “potential” is accepted that understands this as “likely to occur” (which, as demonstrated below, is not the case) it remains that these are notknown problems.

For example, the Board stipulates, based on its research, that the accreditation agencies of the Southern Association of Colleges and Schools (SACS) or the Association of Theological Schools (ATS) have no member schools where a denominational body with trustee appointment authority also has trustee removal authority. Evidence will be provided below that this is not the case, and that these two accrediting organizations, which accredit Erskine College and Seminary, in fact, have not raised concerns when the charters of member schools have included provisions for trustee removal by a sponsoring denomination.

Also, note that the second reason listed above by the Board has nothing to do with Erskine and everything to do with Synod and, therefore, only Synod would need to consider this as a reason to oppose the suggested charter change, not the Erskine Board of Trustees.

III. Minority Response to the Board Majority’s Action

Because the Board’s response demonstrates 1) a confusion as to the general principles of the relationship between Erskine and the ARP Church and 2) factual errors in its analysis of specific issues pertaining to that relationship, this section of the Minority Report consists of more general comments pertaining to principles of the relationship followed by a detailed analysis of the reasons given for denying the Synod’s request.

A. Preliminary Comments regarding the Synod/Erskine Relationship

1. The foundational issue involved in this current discussion—as indeed in the ongoing discord—is the relationship between Synod and Erskine. Are the two organizations equal in priority and authority? Does the General Synod of the Associate Reformed Presbyterian Church hold a higher authority and priority, or does Erskine? Is Erskine an arm of the Church, or is it an independent civil entity? Is the relationship between Synod and Erskine vertical in nature, or horizontal? Erskine’s Board of Trustees is appointed by Synod for Synod’s purpose according to the Manual of Authorities and Duties of the ARP Church (hereafter, MAD): “The General Synod has appointed the [Board of Trustees of Erskine College] to carry out specific missions of the Associate Reformed Presbyterian Church.”[8] A recognition of the higher authority and priority of the General Synod would settle the current debate.

If Erskine is an agency of the ARP Church then by implication the Board should recognize the authority of the Synod to remove trustees (as is the case with other agencies of the Church). In other words, the Synod is not asking the Erskine Board to grant this authority, but to recognize it. The authority already exists in the higher priority and larger authority of Synod. Refusal to recognize this authority by the Erskine Board indicates that the Board considers its authority and priority to be higher than that of the Synod for Erskine, and considers itself to be an essentially independent civil institution. If the Board were to recognize Erskine as an arm of the Church, it would submit to the ecclesiastical authority of the General Synod.

That the Board is unilaterally seeking to change the terms of the relationship between itself and the Synod is evident in the family metaphor it chose to use to describe that relationship. The relationship of Erskine to the Synod, it argues, is that of a child to its parents after that child has reached maturity and is now responsible for and to itself. But this is hardly an apt illustration, for the Synod defines the mission of Erskine, it appoints the trustees, and it is the single largest monetary donor to the schools.[9] In light of this, a quite different family metaphor commends itself: Is not Erskine more like a rebellious teenager that insists on “doing its own thing” while still expecting to live off the resources of his or her parents?

2. Since the Board’s rebuff of the Synod’s request, there has been a good deal of rhetoric on the Erskine website to the effect that the Board still desires a close relationship with the ARP Church.[10] But, considering its refusal to recognize the higher status of the General Synod, what sort of “close relationship” does the Board envision? The Board’s response makes it abundantly clear that the Synod is viewed as an outside or external entity, in a greater sense than just recognition that Synod is external to and distinct from the Board governing Erskine.[11] They are viewed as separate entities that can relate cooperatively, but not as organically related to one another with appropriate structures of accountability.

Much, if not all, of the Board’s stated concerns evaporate if Erskine is regarded, rather, as an agency organically related Synod. Whether Erskine is seen to be organically related to Synod in much the same way as, for example, World Witness, really seems to be at the foundation of the ongoing tension between Synod and Erskine. Holding Synod to be an external body is a confusion on the part of the Erskine Board, for it fails to distinguish between the ideas of “distinct” and “separate.” Though Erskine is distinct from Synod, it is not separate from Synod. Furthermore, this understanding is reflected in the above statement quoted from MAD, concerning the appointment of the Board of Trustees of Erskine College to carry out specific missions of the Associate Reformed Presbyterian Church. The MAD also requires that, “Erskine Trustees shall accept, believe and affirm in practice the Synod’s Philosophy of Higher Education and Synod’s Definition of an Evangelical.”[12] The MAD holds that in regards to the teaching ministry of the Church, the Synod has ordained higher education to be “provided by Erskine College and Erskine Theological Seminary.” Perhaps the clearest example of this is found in the followingMAD statement concerning the duties of the Erskine Board: “In the exercise of its authority, the Board shall comply with The Standards of the Associate Reformed Presbyterian Church, and its policies and programs shall be consistent with the purpose of the General Synod.”[13]

3. The response of the majority of the Erskine Board assumes a sameness of relationship between Erskine and a variety of ‘external’ groups: the Synod, Faculty and Staff, Students, and Alumni. Considering Synod as an outside entity leads directly to such a misunderstanding. The relationship between Synod and Erskine is of a different kindthan the other relationships which Erskine may have. The Synod-Erskine relationship is at a higher level, primarily because of the higher priority of the General Synod and the foundational nature of the relationship. By virtue of its having founded the schools, appointed the trustees, set the schools up as missions of the Church, and the lengthy legacy of financial support, the General Synod relates to Erskine in a unique way. Furthermore, if there is a sameness of relationship between Erskine and all of these groups, then SACS should have a problem with Synod’s appointing trustees. Yet if the proper vertical relationship is understood by both parties, accreditation issues concerning “undue influence” go away.

4. The Board’s response indicates that there ought to be a single-minded fiduciary obligation on the part of Erskine trustees for Erskine.[14] Understanding such an obligation to be one of holding someone or something in trust,[15] it appropriately describes the trustees’ obligation to Erskine. But it is not “alone” to Erskine that trustees are fiduciaries. They also have a fiduciary obligation to the General Synod, both because of its higher priority and because each trustee is appointed by the Synod. Moreover, it is the historic understanding of the Synod that a trustee’s fiduciary obligations to Erskine do not stand in tension or conflict with obligations to the Synod as his or her appointing authority, precisely because Erskine is organically related to the ARP Church as the educational arm and agency of the Church. In fact, were the relationship understood as it ought to be—as an organic relationship of the General Synod to one of its agencies—then there would be no artificially contrived conflict between the obligations.

Moreover, there is an additional danger to the interests of the Synod lurking here in this language of “single-minded fiduciary obligation” to Erskine. On this understanding, any demonstration of loyalty by Erskine trustees to the directives of the Synod could, in principle, be interpreted by the Board as a violation of this “single-minded fiduciary obligation.” Some current trustees believe that this language could sooner or later be used by the Board majority to remove trustees who acknowledge their fiduciary responsibility to both Erskine and the Synod.

5. The Erskine Board response suggests that safeguards are now in place via its revised bylaws to provide Synod with assurance that it will be heard in the future. Nevertheless, there is no assurance that these “safeguards” would make a difference when Synod seeks to correct the direction the Board has taken Erskine. Rather, the response seems almost blind to pre-March 2010 tensions as reviewed above. “[A]ppropriate formal and informal avenues for communication of issues and concerns between the General Synod and the Board of Trustees are in place, which have been and should continue to be respectfully, competently, and successfully utilized.”[16]Does this truly give an accurate description of the communications between Synod and Erskine over the past quarter century? Obviously not! Indeed, as the Board has unilaterally redefined the relationship between the General Synod and the Erskine institutions by treating the General Synod as a separate entity (and refusing to acknowledge the organic relationship that has historically existed), any attempt by the Church to require adherence to MAD can now be construed as “undue influence.” The Board majority’s attitude to the Synod at this point is rather clear: ‘We will take your money and we will listen to what you have to say, but at the end of the day we will do as we please.’

The Board’s response continues to ignore the legacy of tension between the Church and schools in a section subtitled, “Effective and Working Processes Are in Place.”[17] While offering limited ‘repentance’ for past shortcomings, the response suggests that, now that the Board has adopted new bylaws that spell out a trustee removal process, Synod can have “great assurance that the Board’s self-governance works [though as yet untested by any Synod concerns] and that any such situations properly brought to the Board’s attention will be thoroughly and appropriately investigated and resolved [not necessarily to Synod’s satisfaction].”[18] Given the Board’s longstanding resistance to Synod’s wishes (resistance which continues with the Board’s February 17, 2012 action under discussion here), such assurances by the Board offer no reassurance at all.

6. The report confuses “Operational Autonomy” and “Compositional Autonomy.” TheMAD makes the operational independence, or operational autonomy, of the Erskine Board very clear: “The Board of Trustees of Erskine College has direct control of the operation of Erskine College and Erskine Theological Seminary and is empowered to establish policies and educational programs and to manage all properties and funds.”[19] Regarding the day-to-day activities of the institution, the Board is independent of the General Synod and all other entities as it exerts priority oversight of the operations. Compositional autonomy has nothing to do with activities or operations of the institution, but rather, the make-up of the Board. Synod, through its nominations process, oversees the composition of the board taking into account such guidelines as the appropriate number of board seats, the required number of ARP ministers as stated in the MAD, and the proper number of Erskine Alumni per the Erskine Bylaws. Compositional autonomy refers to the persons on the board not the operations of the Board making policies, detailing procedures, or initiating and overseeing programs.

It is important to understand the differences between these two concepts. There is nothing in the determination of board composition that necessarily limits the Board (as it is at any time composed) from operating as it alone determines is in the best interests of Erskine. There is no essential difference between trustee appointment and trustee removal for cause; both are factors of board composition, not the board’s ability to decide and act. Yet the Board report claims that a more efficient determination by the Synod of an appropriate composition of the Board of Trustees (by recognition of Synod’s authority to remove trustees for cause, not granting such authority to Synod) would limit the Erskine Board’s independent ability of operation. This is not the case. For the Synod to remove a trustee for cause, thus re-configuring the board, is no different in terms of the Board’s operations from its reconfiguring the board each year through appointment of new trustees to replace trustees whose terms expire

B. Detailed Reply to the Board’s Four Stated Reasons

1. Potential Impact on Accreditation—In more recent dealings between Synod and Erskine, accreditation has been a “trump card” played by the Board as leverage against the Synod. There is no denying the negative attitude of accrediting agencies toward religion and religious bodies, especially if such are “conservative” or “evangelical” in nature. But accrediting agencies themselves must comply with published standards, and these standards limit their ability to act arbitrarily. A close reading of the standards quoted in the Board’s response does not reveal any violation by the proposed charter change. In fact, the proposed charter change would make the relationship between Synod and Erskine more clearly in compliance with the quoted SACS Comprehensive Standard, C.S. 3.2.2.[20] The presence of such clarification of relationship in the official documents of at least six area colleges who are accredited by SACS and all of the Southern Baptist Convention’s seminaries (all accredited by SACS and ATS), proves that such language has not ever been, and is not currently, in conflict with the standards of these accrediting agencies.

The articles of incorporation of three South Carolina colleges associated with the South Carolina Baptist Convention (Anderson University, Charleston Southern University, North Greenville University), all accredited by SACS, establish that there is no real threat to Erskine’s accreditation if the “removal for cause” language is added to the charter. For example the North Greenville University (NGU) Articles of Incorporation, which were amended and restated in 2005 and sent to SACS, did not raise any concerns from the accreditation body. NGU’s accreditation was not in any way threatened, nor was the school put on probation, because of the presence of the following language:

South Carolina Baptist Convention may remove trustees prior to the expiration of the term of trustees’ election upon the recommendation of the Convention’s Executive Board, by vote of two-thirds of the messengers voting. Removal may occur only upon the Convention’s finding that removal of the trustee is in the best interest of the corporation and one or more of the following causes for removal are deemed in the judgment of the Convention to exist: breach of trust; neglect of duty; physical or mental incapacity of the trustee; conduct by the trustee which is deemed by the Convention to be immoral, fraudulent or dishonest; the trustee’s engaging in a conflict of interest transaction.
[21]

NGU subsequently received re-affirmation of their accreditation in 2011. Dr. Jimmy Epting, President of NGU, stated that SACS has never raised any concerns about this authority of the Convention.

Similarly, for the three colleges affiliated with them, the Baptist Convention of the State of Georgia has trustee removal authority as explicitly stated in the schools’ Articles of Incorporation. The language was drafted by Georgia Baptist Convention’s staff attorney, Tom Duvall, with the assistance of Nashville attorney, Jim Guenther. Duvall stated that he sent the language to the attorney at SACS and no concerns were raised about it. It was subsequently enacted during the time of a lawsuit against the Convention by the President and a majority of the Board at Shorter College, as they sought to remove the college from the Convention’s oversight. They based their desire to separate on threat of losing SACS accreditation—a threat that SACS representatives initially embraced. Nevertheless, even while Shorter College and the Convention fought in the courts of Georgia, the school was never placed on probation and their accreditation never threatened. SACS re-affirmed Shorter’s accreditation in 2002, the year the legal conflict ensued. When the Georgia Supreme Court ruled in the Convention’s favor in 2005, and the Board of Trustees was removed and replaced by the Convention, SACS did not intervene in any manner. The Articles of Incorporation of Shorter College (now Shorter University since its explosive growth after renewing its strong bonds with the denomination) established such trustee removal by the Convention by referring to the Georgia Nonprofit Corporations Act, which states in §14-3-808, “members may remove, with or without cause, one or more directors elected by them” and by making the Convention the only “Member” of the corporation in the Articles of Incorporation. Article VII of the Articles states:

The Corporation shall have one (1) member in accordance with Section 14-3-140(20 and Sections 14-3-601 et seq. of the Nonprofit Corporation Code, with such member being the Baptist Convention of the State of Georgia (the “Member”). The Member shall have those rights, powers, authority, benefits and privileges set forth in the Nonprofit Code or any other laws
[22]

Analogous to Erskine, the Bylaws of Shorter University also contain a process for the Board itself to remove trustees for cause in addition to the right of the Convention to do so.

The Board’s response quotes an email from an ATS Director, Accreditation and Institutional Evaluation stating, “with respect to denominationally-related schools where trustees are appointed/elected by the church, the church may not withdraw appointment of, dismiss, or remove trustees once they are appointed, and that the ATS Board of Commissioners would not consider the allowance of such removal or withdrawal of appointment of trustees by an ecclesial body to be good governance—because it means that the church is the de facto board if it has the authority to remove board members for a variety of causes.”[23] This opinion of the sender, not official edict from the accrediting body’s Board of Commissioners, did not quote or identify any ATS standard that such removal authority would abrogate. Her reasoning about such an authority making the Synod the “de facto board” makes the same error of confusing operational autonomy with compositional autonomy as is apparent in the Board’s response to the Synod. In addition, she either purposely or negligently ignores the fact that the three largest ATS member seminaries that are related to a denomination have such trustee-removal-by-ecclesial-body provisions in their charters or articles of incorporation. Did she not know or was she being less than straightforward?
Her email was dated December 21, 2011. In February 2012, Southwestern Baptist Theological Seminary successfully went through ATS re-affirmation without any question of their charter’s acknowledgement that the Southern Baptist Convention not only appoints its trustees but also has authority to remove them. Similarly, Southeastern Baptist Theological Seminary is going through re-affirmation now in early 2012, and they have not received any stated concerns from ATS regarding the Convention’s trustee appointment and removal authority. The Articles of Incorporation of the Southeastern Baptist Theological Seminary in Wake Forest, NC read:

The Southern Baptist Convention may remove a trustee prior to the expiration of the trustee’s term for any reason deemed sufficient to the Convention, without regard to any provision of the North Carolina Nonprofit Corporation Act, the election and removal of trustees by the Convention being religious acts within the scope of the free exercise of the Convention’s religion under the Constitution of the United States.
[24]

The following is the language from the charter of Southern Baptist Theological Seminary in Louisville, KY: “A trustee elected according to the provisions of the Third Article of the Fundamental Laws [a section of the Charter] may be removed from office by the Southern Baptist Convention according to procedures it adopts.”
[25] A recent communication from another ATS official, also a “Director, Accreditation and Institutional Evaluation,” to a Puritan Reformed Theological Seminary (PRTS) professor who is working on their ATS self-study sheds great light on the above-referenced ATS official’s email response. The PRTS professor asked,

We are busily working away at our ATS self-study here at Puritan Reformed Theological Seminary. As we do so I wondered whether you could comment on whether or not our seminary bylaws (particularly Articles 1-3, as connected to Article 3, Section 3) stand in harmony with ATS standard 8.1.2.3? I’ve attached the bylaws document. We believe they do, and wholly affirm them without reservation, but want to be sure particularly in regard to our bylaw, Art. 3, Sec. 3, relating to our Board of Trustees: “Removal. The Members may remove any Trustee from office with or without cause.”

To this question, the ATS official responded,

I am assuming that this particular section of your bylaws is consistent with your denominational governance structures, authority, and practice. And for as long you [sic]determine that this is consistent with your mission, as stated in the documents submitted to ATS, ATS would not encroach on the school’s prerogative to determine how it governs itself; and for as long as such practices are not in violation of local, state, and federal laws. (Emphasis added.)

All this provides more than sufficient evidence that trustee-removal language in Erskine’s charter should not threaten either SACS or ATS accreditation. So, why was the removal of the Board of Trustees by the Synod in 2010 the cause of SACS probation, and why did the ATS official misstate her organization’s official position on such authority in her email to the ad hoc Committee of the Erskine Board? Here, the suggestion of recently retired Shorter University Board Chairman, Dr. Nelson Price, is revealing. It is his opinion that SACS is more than happy to come to the aid of college administrations and boards in their efforts against religious sponsoring bodies. When the college via the administration or the board self-reports an undue influence by the denomination, SACS is happy to bring pressure to the situation. He thought it was very likely that either an Erskine administrator or a trustee solicited SACS’ cooperation in Erskine’s clash with the Synod. That both the Erskine President at the time and a former Erskine Trustee (who was among the trustees dismissed by the March 2010 Synod and who subsequently sued the Synod) had close ties to SACS, suggests that this explanation is plausible. It is also possible – or even probable – that a lack of explicitly recognizing the Synod’s trustee removal authority in the Charter or Bylaws of Erskine led to the probationary action since representatives of SACS reportedly stated at the time that clearly delineated removal authority on the part of the Synod would not be a problem with accreditation. As for the ATS official who sent the email to the ad hoc committee, her motivations remain suspect.

2. Increased Legal Liability for Synod—Note that this potential liability is not a de novo, or newly created potential liability but a potential increase in a potentially already existing potential liability. The appointment of the trustees who control Erskine already makes Synod liable—if the argument regarding “ascending liability” is valid.[26] Contra the legal opinions of two participants in the Board’s ad hoc committee meetings and an attorney later hired by Central Services, we have found that such liability is no more than a remote possibility, and that there are steps that the Synod can take at modest cost in order to shield itself from such a remote threat.

Keith Munson, the attorney who represented Synod in its defense against the Erskine trustees and others who brought suits against the Synod in 2010, offered the following comment about this supposed ascending liability: “By ascending liability I assume you mean a situation like where a Football team hazes a student until he gets seriously injured and sues the coach, the school for hiring the Coach, the Trustees for hiring the President that hired the coach and then the Church for negligently selecting the trustees that negligently hired the president that hired the coach … As a member of the legal profession, I am sorry that the possibility of such remote culpability is even possible” (emphasis added).[27] Tom Duvall, staff attorney for the Baptist Convention of the State of Georgia, stated that he has no concerns whatsoever about ascending liability. His organization has three SACS-accredited colleges and they all have trustee removal language in their Articles of Incorporation. He said that as long as the two bodies are separate and distinct corporations, that full operating and policy authority is vested in the Board, and the Convention does not get involved in day-to-day operations, there is no significant ascending liability threat.

Nashville attorney Jim Guenther has represented colleges and seminaries in dealings with denominations and accrediting agencies, and has represented denominations and state conventions in dealings with their educational institutions. He wrote the Articles of Incorporation for the three South Carolina Baptist colleges. Guenther states that the key consideration in determining ascending liability is control. Control is safe and appropriate as long as a suitable corporate structure and relationship are established; control is NOT appropriate if the parent group has operational control of day-to-day activities of the affiliate. According to his criteria, he understands the Synod-Erskine relationship to be safe and appropriate. Guenther speaks with considerable authority on this issue—he and his firm have been involved in between fifty and sixty ascending liability cases. Most were dismissed, and HE HAS NEVER LOST AN ASCENDING LIABILITY CASE. It is his opinion that trustee appointment authority rather than removal authority (which he states is implicit with appointment authority) evokes ascending liability challenges from plaintiffs’ attorneys. In fact, many of his cases occurred before the trustee removal language was added to Southern Baptist Convention seminaries’ articles of incorporation.[28] In plain language, removal authority may actually decrease legal liability for the appointing body. This was the conclusion of the attorney who wrote the board removal [policy for the Synod: “Arguably, the Board Removal Policy strengthens the ARPC against the spurious claim of increased risk of ascending liability.”

Nevertheless, such a threat of legal liability has become another “trump card” in discussions with Synod. As stated earlier, even if this were a significant risk, this is a concern for Synod, not the Board, and it is already present in appointment authority if the liability is real. One response to this, if indeed members of Synod consider the threat to be of significance, is to purchase liability insurance to cover such a remotely possible occurrence.[29] Mr. Guenther concurs with this suggestion. Such available coverage is relatively inexpensive because of the remote nature of the threat, based on our past history. Mr. Guenther recommends that a denomination purchase liability insurance for itself and its subsidiaries to cover the legal costs of dismissing or defending a case. Another approach, suggested by an insurance underwriter, is to have the Synod agencies that are incorporated to write into their liability insurance policies that the General Synod is a “named insured” or “affiliated entity” (sometimes referred to as a “shared limits endorsement”) and then Synod would be covered by the liability insurance of the agency (this is usually at no cost or minimal cost).

3-4. Academic Freedom and Trustee Independence—The Board’s last two reasons for declining Synod’s request both involve a persistent confusion of operational and compositional autonomy. Nothing in the clarification of Synod’s ability to remove trustees for cause directly affects academic freedom any more than does Synod’s appointing of the trustees. The Board acts independently however it is composed. The Synod’s Board Removal Policy delineates the causes for trustee removal: “Causes For Removal: The Synod of the ARP expressly adopts the removal of members of its Agencies and Standing Committees only ‘for cause’ including, but not limited to, the following: 1. Failure to maintain a duty of care; 2. Failure to maintain a duty of loyalty; 3. Failure to maintain a duty of fiduciary; 4. Failure to maintain a duty of Christian unity; and, 5. Failure to maintain the duty of Christian godliness.”[30] In fact, the due process outlined by Synod is arguably much more rigorous than the Board’s own process for removal of a trustee. It is harder for Synod to remove Erskine trustees than it is for the Board to do so.

The “including, but not limited to” language has caused concern among some Erskine trustees, but no trustee need to “look over her shoulder” to see if Synod is looking because of the way she voted on an issue of Erskine governance. Trustees need only to act in concert with their obligations of appointment. This “but not limited to” language is standard, recognizing the inability to delineate all appropriate causes for removal, and is more stringent than the ‘for-any-reason-deemed-sufficient-type’ language of the Southern Baptist Convention for its schools. This is not unreasonable, and a school desiring a close affiliation with its sponsoring body should not cower at such language.

To further emphasize that there is no threat to academic freedom or trustee independence, we again quote the MAD (an official document of the General Synod) which makes it clear that the Synod has no desire to, nor can it under its current policy, limit trustee independence or academic freedom: “The Board of Trustees of Erskine College has direct control of the operation of Erskine College and Erskine Theological Seminary and is empowered to establish policies and educational programs and to manage all properties and funds” (emphasis added).
[31]

IV. Conclusions and Recommendations:

A number of conclusions are inescapable. Since 2010 a majority of the Erskine Board seems to be unilaterally seeking to redefine the relationship between Erskine and the ARP Church through bylaws provisions that effectively marginalize the role of the Church, and it has rebuffed the most recent request of the Synod to bring those bylaws and the Charter into conformity with Synod’s expectations of its other agencies. With respect to this last action, the Board acted on the basis of research that was demonstrably incomplete and assertions by the ad hoc Committee that were factually incorrect. Nevertheless, it is also now clear that a majority on the Board do not wish for Erskine to be an “agency” of the Church that is organically related to the Synod. Instead, it envisions a “cooperative” relationship of essentially independent entities in which the Board is not accountable to the Synod. In short, after decades of conflict in which the Board majority has more passively resisted the efforts of the Synod to define the mission of the Erskine institutions, the Board has now arguably embarked on a trajectory that, if pursued, will likely lead to the separation of Erskine from the ARP Church.[32] Indeed, if the Synod does not act decisively at the 208th meeting to address this challenge, it will be difficult to stop this process of separation.
In an effort to re-focus the conversation between Synod and the Board about the relationship of Erskine College and Erskine Theological Seminary to the ARP Church, and to attain clarification of various matters in dispute, we offer the following two recommendations:

1. That Synod reaffirms this statement in the MAD: “The Board of Trustees of Erskine College has direct control of the operation of Erskine College and Erskine Theological Seminary and is empowered to establish policies and educational programs and to manage all properties and funds.”

2. That the Moderator of Synod appoint a Special Committee to Study the Relationship between the General Synod of the Associate Reformed Presbyterian Church and Erskine College and Theological Seminary. This committee shall consist of seven (7) members, four (4) of whom shall be teaching elders and three (3) of whom ruling elders. It shall determine if and how an appropriate and healthy relationship between the General Synod and the Erskine institutions can be re-established. More specifically, this Committee shall: (a) evaluate the current status of the relationship between General Synod and Erskine; (b) identify what the future of the relationship ought to be according to the best interests of the General Synod; (c) clarify any outstanding issues pertaining to the legal authority of Synod to remove Erskine trustees in accordance with South Carolina law, accreditation matters, liability, and any other issues relevant to the relationship of Erskine to the Synod; (d) work with the Erskine Board of Trustees (or their designated representatives) to determine if and how the current impasse can be overcome and discover why the Erskine Board did not do its utmost due diligence and ended the conversation with Synod so abruptly; and (e) report their findings with recommendations for action to the 209th General Synod in 2013.

We the undersigned trustees of Erskine College and Seminary respectfully submit this minority report to the 208th General Synod of the Associate Reformed Presbyterian Church.

Signed by (in alphabetical order)
Fred Carr
Jim Corbitt
Dixon Cunningham
Joey Donahue
David Johnston
Steve Maye
Bobby McDonald
Mantle Nance
Steve Suits
Peter Waid
Tim Watson
[1] Minutes of the General Synod (1976): 263.
[2] See, e.g., Minutes of the General Synod (1977): 459-462, 480-485, 498; Minutes of the General Synod (1978): 663-665; Minutes of the General Synod (1987): 357-358;Minutes of the General Synod (1989): 108; Minutes of the General Synod (1995): 51-54;Minutes of the General Synod (2006): 433-434; Minutes of the General Synod (2007): 102, 110-111; Minutes of the General Synod (2008): 514-515.
[3] Minutes of the General Synod (2007): 102.
[4] Resolution adopted by Erskine Board of Trustees (February 19, 2010).

[5] Minutes of the General Synod (2011): 128
[6] Ibid., 129-130 (see pp. 127-130 for the full motion and explanation).
[7] “Response of the Erskine College and Theological Seminary Board of Trustees to the 2011 General Synod’s Requests” (February 17, 2012), pp. 1-2 (hereafter cited as “Response”). This document is available at http://news.erskine.edu/wp-content/uploads/2012/02/Erskine-Board-of-Trustees-Response-to-2011-General-Synods-Requests-as-adopted-2-17-2012.pdf). All references to the Erskine response will be to this document that was approved by the Erskine Board on February 17, 2012. The final Erskine Board Report to Synod was not available when this minority report was written.
[8] Manual of Authorities and Duties of the ARP Church (2011), p. 10.
[9] According to a report provided to a current trustee by the Erskine development office, between February 6, 2001 and March 5, 2012, the General Synod alone contributed almost six million dollars ($5, 963,550.76) to Erskine. Factored out over the life of the institutions, the General Synod is far and away the largest single donor to Erskine.
[10] See “Erskine trustees seek continued, cooperative, and mutually beneficial relationship with the ARP General Synod,” February 22, 2011 (http://news.erskine.edu/?p=1461).
[11] Of course, understanding the Synod to be external to or outside of the Erskine Board of Trustees is also a misunderstanding of the Synod–Erskine relationship.
[12] MAD, p. 11.
[13] Ibid., p. 41.
[14] “Response,” p. 15.
[15] The Synod’s Board Removal Policy (MAD, p. 11) defines this fiduciary responsibility this way: “‘Duty of Fiduciary’ should be understood as the duty to serve the best interest of the institution.”
[16] “Response,” p. 10 (emphasis added).
[17] Ibid., pp. 16ff.
[18] Ibid., p. 16.
[19] MAD, p. 41.
[20] Quoted in the Erskine “Response” on p. 10.
[21] North Greenville University, Articles of Incorporation.
[22] Shorter University, Articles of Incorporation.
[23] “Response,” p. 12.
[24] Southeastern Baptist Theological Seminary, Articles of Incorporation.
[25] Southern Baptist Theological Seminary, Articles of Incorporation.
[26] The concern about “ascending liability” among religious organizations began with a California case wherein a financial institution sued the United Methodist Church to collect on a Methodist retirement home’s indebtedness after the home declared bankruptcy. Though the Methodist Church prevailed in this case, the theory of “ascending liability” continues to be discussed and employed by ‘enterprising’ plaintiffs’ attorneys.
[27] Personal communication dated February 24, 2012.
[28] Telephone conversation with Mr. Guenther on or about February 29, 2012.
[29] The Synod already has liability insurance, but we have not read the policy details to ascertain whether or not ‘ascending liability’ issues are specifically covered.
[30] MAD, p. 11.
[31] Ibid., p. 41.
[32] This is a script that was written long ago and which has been followed in any number of church contexts, for the social and cultural forces that tend to pry churches and their educational institutions apart are powerful. The most complete chronicle of this process in a wide variety of institutional contexts is James Tunstead Burtchaell,The Dying of the Light: The Disengagement of Colleges and Universities from Their Christian Churches (Grand Rapids: Eerdmans, 1998).


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