Breach of Trust: A Leader’s Fiduciary Duty

Breach of Trust: A Leader’s Fiduciary Duty

Posted on 03. Jan, 2011 by Tim Stoner in Christianity, Essays, The Church

The two retired police officers seated at the desk in my home office were making me increasingly uncomfortable. They had brought papers with them. These were not requests for year-end contributions, they were court documents notifying me that, one year earlier, a long-term client had had a judgment imposed on her and owed the state over $ 9,000. I had not been made aware of this and, I was sure, neither had she.

I am not the kind of lawyer that spends much of his life inside a court house. The job of a probate and estates attorney is to keep his clients and himself far away from those austere confines. More often than not, wise planning–though it cannot guarantee probate avoidance, in most of the cases, it does. Nonetheless, one is not always able to side-step the occasional contentious probate matter. And, each time I find myself there, I am reminded why I am purposefully transitioning into a less fractious profession.

These experiences were enough to cause my blood pressure to spike when I read the papers. I had been acting as a Trustee for an elderly client and if there is one thing a Trustee is expected to know it is that their client has been sued and–more importantly– lost. I notified my client immediately. Neither of us had received notice of the suit or its outcome. She was shocked. I told her–so was I.

My client owed money to a bank on a credit line and had used her house as collateral. Unable to make the house payments, the house was being foreclosed. Eighteen months earlier I had notified her that I was referring the case to a real estate attorney. At the same time I advised her that during that summer I would be busy preparing my first non-fiction book for publication and would not have time to oversee the matter. The documents I was served made it clear that the lawyer I had recommended had somehow dropped the ball.

The problem? I was a Trustee and a Trustee is under an exorbitantly high standard. A Trustee either knows, should know, better know, or is presumed to know—ignorance is no excuse. Though I had referred the case, had informed my client of my unavailability, like Pilate, washing my hands had not gotten me off the hook. The potential charge? breach of my fiduciary duties.

A fiduciary duty is the highest legal standard of care (SOC). It is a term that comes originally from the Latin fides, meaning faith, and fiducia, trust. In 1928, Justice Cardozo famously described this standard as “Not honesty alone, but the punctilio of an honor the most sensitive.” A fiduciary is held to a standard of absolute loyalty.

It is self-evident that this elevated standard applies not only to those entrusted with economic responsibilities but church leaders as well (I will use the term “pastor” for the sake of convenience). And while their SOC is at least as high as those entrusted with financial matters, penalties for breach are higher.

No one should “presume” to the role of teacher, we are advised, since “we who teach will be judged more strictly” (Jam. 3:1). Paul describes this judgment in chilling detail. It is like going through a car wash where the water hoses have been replaced with blow torches: “he will be saved, but only as one escaping through the flames” (I Cor. 3: 15) Paul warns.

A trustee represents those who have a beneficial interest in the trust assets as well as the one who drafted the trust, A pastor finds himself in much the same situation: he serves the local congregation, but ultimately owes a primary duty to the One who called, set apart, and anointed him for that unique ministry—Christ the head of the Church. He owes Him, and them “the punctilio of an honor the most sensitive”—loyalty that is absolute.

Paul wrote two books to his protégé Timothy instructing him on his fiduciary duties. Right out of the block he reminds him that he had been given strict instructions. Timothy was to “command certain men not to teach false doctrines any longer nor devote themselves to myths.“ (I Ti. 1:3-4). Paul ends that letter by urging Timothy to command the wealthy “not to be arrogant . . .but instead to be rich in good deeds” (I Ti. 6:17-18).

According to Paul, in first place, a Pastor/Trustee must demonstrate courage and a clear conviction. He is to have the moral fortitude to stand against those who are teaching lies and those who are enamored with falsehood and to authoritatively demand that both stop. He must also have the strength to boldly declare unpopular, uncomfortable truths to the powerful and influential—at risk of his own salary.

Paul continues by exhorting Timothy to “fight the good fight”– twice. This is an inner and an outer battle that requires vigilance and tenacity. He concludes by urging him to “guard what has been entrusted to your care” (I Ti. 6:20). In the next letter he repeats this command, again, two times (II Ti. 1:13-14) and concludes with a personal confession: Because he has been a faithful Trustee who has kept (“guarded”) the faith safe from thieves and liars, Paul confidently awaits a crown of righteousness (II. Ti. 4:7-8).

As a successor-Trustee, Timothy owes a duty of absolute loyalty to Paul who handed down to him (”entrusted”–an unambiguous fiduciary term) a precious deposit of truth both verbally and in writing. In the second letter Paul makes it clear that this duty to defend and protect runs not only to the Paul and the elders who laid hands on him, but to Christ Jesus, who is able to “guard what I have entrusted to Him” (I Ti. 1:13). After all, He is the One who ultimately drafted the trust instructions, selected his official agents and empowered them to “entrust” this testimony to “reliable men” who are empowered to extend the official representative chain by entrusting it to other reliable men (I Ti. 2:2).

In second place then, a Pastor/Trustee fulfills his charge by remaining vigilant for dangers to himself and his flock. Like a soldier at the front, he must be always on the lookout for enemies within and without. The former are intent on compromising the Trustee and causing him to fail in his duty to “set an example for the believers in speech, in life, in love, in faith and in purity” (I Tim. 4:12). The latter—those on the outside, are scheming to pervert the apostolic teachings placed under the Trustee’s supervision. These evil men and impostors will turn people away from the truth and will “go from bad to worse, deceiving and being deceived” (II Ti. 3:13).

What then constitutes an actionable breach? The Old Testament prophets spell it out with passionate intensity, but no one as vehemently as Ezekiel. God did not sugar-coat the challenges to this young man: he was being called to a rebellious, obstinate and stubborn people with one basic duty: “Say to them, “This is what the Sovereign Lord says.” He was warned that the audience would hate him and they would hate what he said. So, he was commanded not to be “afraid of what they say or terrified by them” (Ez. 2:3-6).

God knows that when a man is entrusted with God’s words for a rebellious people hell-bent on doing what they want under the plausible protection of religion, a high-level of courage is demanded. This is why Ezekiel is told, “You must speak my words to them whether they listen or fail to listen” but this task is only possible if he complies with His most important duty: “But you, son of man listen to what I say to you” (Ez. 2:7-8).

Thus, besides courage, a Pastor/Trustee fulfills his duty by speaking God’s words, rather than his own or those of others, and this he can only do if he listens to God–not men. The only way Ezekiel can be sure he is speaking for God is by first “eating the scroll” that God gives him (Ez. 2:8-9). Only after “filling his stomach” can he speak God’s words. It is thus a fiduciary breach to eat man’s scrolls in place of God’s and to speak words, be they ever so gracious and generous, that have human wisdom not God as their source.

God gives Ezekiel a further description of his calling: “I have made you a watchman,” This is a terrifying burden with the highest standard of care imaginable, for it requires issuing loud, insistent and clear warnings of impending doom. This is why the scroll the Pastor/Trustee must eat is covered on both sides with “words of lament, and mourning and woe” (Ez. 2:10). “When I say to a wicked man, ‘You will surely die.’” Yahweh continues, “and you do not warn him or speak out to dissuade him” the man will certainly die. But, God will hold the Trustee “accountable for his blood” (Ez. 3:17-18).

Only one conclusion is possible: When a pastor modulates, obscures, deconstructs and effectively muffles the culturally unpalatable warnings of impending judgment he is in actionable breach of his fiduciary duties. Whereas an earthly trustee may get fined, a trustee entrusted with the apostolic deposit—the words of God Himself, becomes potentially guilty of blood. According to Paul who describes the awful burning scene the pastor will eventually get fired literally.

When current teachers redefine the catholic faith: the dominical, apostolic, patristic, historic truths handed down in a fiduciary chain over 2000 years long they are in gross violation of their duty of absolute loyalty; first, to the Trustor who drafted them, then, to the prior Trustees appointed to interpret and hand them down, and thirdly, to the flock entrusted to their care. When a teacher fails to draw firm distinctions between what is licit and illicit, what is truth and error; when he teaches that “there is no difference between the unclean and the clean” (Ez. 22:26) he is guilty of spiritual malpractice.

Ezekiel gives us no escape hatch, when a teacher winks at the demonic power of envy, greed and materialism—love of luxury, or out of compassion or cowardice, refuses to articulate a clear warning about sexual sin, be it hetero, homo or a combination of the two, or soothes those guilty of using their tongues (or keyboards) as swords to slice, dice and flay their opponents, they are in actionable breach. If those they fail to warn die in their wickedness, the negligent fiduciary will bear responsibility. What does it mean to be held accountable for blood? I don’t know and I don’t think any of us want to find out.

Since we are in a sexually-drenched culture with millions in hard and terrible, dehumanizing bondages, and since the impact of these sins go so deep and extend so wide, it is particularly cruel to fail to issue warnings on this front. When the Gospel of freedom is emasculated by gentle, kindly-intentioned pastors into an assurance that “all shall be well, and all shall be well, and all manner of things shall be well” they rob victims of hope and steal from them that which alone can cleanse, heal and set them free. Rather than being an act of compassion it is evidence of extreme cruelty. It is cruel to the victims and the victimizers, because painful, inconvenient, even intolerable, warnings are actually a means of grace, though in a sterner guise.

Here St. Chrysostom give us help. Over 1600 years ago, this “golden mouthed” preacher, preached 90 homilies on Matthew. He comments on John’s abrasive warnings to the crowds flocking to be baptized that “the axe is already at the root” (Mt. 3:10). “Take note,” St. Chrys says, “John does not say that the axe is cutting down the tree, rather it is quite close, and shows no sign of delay.’” Then the good Father adds the word of mercy that can only issue after the word of judgment is taken seriously. “However, even though God has brought the axe so near, He makes it clear that whether it chops through the root depends on you. For if you change and become virtuous men, this axe will depart without inflicting any damage; but if you continue in the same sensual ways, He will tear up the tree by the roots.”

Being an excellent Trustee St. Chrys winds up balancing a warning with a word of encouragement: “Therefore, observe two things: the axe is neither removed from the root, nor is it being swung at the tree, the first, that you may not grow lazy and presumptuous, the second, to let you know that it is possible even in a short time to be transformed by the Gospel and saved” (The Gospel of Matthew, Homily XI, 4, my own updating).

Cruel indeed is the teacher who muffles the sternness of grace and the graciousness of warning. Even more cruel is to teach that bondages are to be celebrated as evidence of freedom. Standing by as the deposit of truth is pillaged and hijacked by false teachers (be they ever so winsome and cultured and kind) with no word of correction, is to be guilty of criminal negligence. The duty of absolute loyalty is absolute. Neither ignorance nor sensitivity to the needs of a postmodern audience, nor a distaste for controversy and discomfort (nor fear of being labeled an intolerant bigot) will protect the Trustee from liability for breaching this duty “the most sensitive.”

The watchman of Israel makes it explicit: a Pastor/Trustee who remains silent at the sins of the people is implicitly teaching them that there is no difference between the holy and the common, the unclean and the clean. In fact, he is whitewashing their sinful deeds (Ez. 22:28) and encouraging them to continue. And worse than blood on the hands is the awful reality that this terrible failure causes God to be profaned among His people (Ez. 22:26).

And this is an awful and unforgivable breach. 

May God help us in this New Year to be worthy of our trust.


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