directors of sponsorship meeting december 10, 2008 scottsdale, az “trends in canon law” donna...

Directors of Sponsorship MeetingDecember 10, 2008

Scottsdale, AZ

“Trends in Canon Law”Donna Sauer, JD, JCLAssociate Director for Civil Law

Legal Resource Center for Religious

(c) LRCR Donna Sauer "Sponsorship"

2

Moving toward the future

Trends in canon and civil law– Canon Law– Civil Law

With regard to trends and the future, the most important thing for religious institutes (RIs) to do with regard to their sponsored ministries is to determine exactly what they mean when they speak of any given activity as a “sponsored ministry.”


3

What does “sponsorship” mean?

1st point - Meaning of “sponsorship”– No civil law meaning– No canonical meaning

Although some urge an objective meaning for sponsorship, it is not likely to come. Subrogation is the norm when it comes to this area.


4

How is the term used?

The use of the word “sponsorship” in two technical contexts:

(1) in discussions within a RI concerning the future of its apostolate, the activities of which take place within a corporation (cc. 675, 677); and

(2) in secular law analysis of the appropriate authority that the leadership of a RI needs to retain in a corporation which carries on the activities of its apostolate in the secular sphere.


5

Colloquial vs. technical (legal) use

While the word “sponsorship” is used very broadly in its informal context, this discussion focuses on to those works which are called “proper works” of the institute, in the canonical sense. In order to determine this canonical connection, we will look at several canons that have import in this task.


6

Relevant Canons (see handout)

116118578583586

6356756766771284


7

Sponsored ministry ≠ proper work

Not all “sponsored ministries” are on the level of “proper works” of the RI.

“Proper work” is a technical canonical concept which identifies the apostolic activity as part of the charism of the RI and therefore is part of its patrimony.


8

Why the “legalism”?

The ID of proper works establishes the basis in canon law for other derivative rights and obligations of both the RI and its members.

Example: Case of member working on an Indian reservation.


9

An example to consider…

Is the work of one member on an Indian reservation a “co-sponsored ministry” of the RI?

Does it matter whether the US government or the reservation’s own government recognizes this?

Is the mere presence of the member there enough? Is financial support required? Is financial support alone

enough? Does the member have to consciously assert the RI’s charism

into her work? These are all questions that the RI’s leadership must evaluate.


10

Is it a sponsored ministry?

A RI is certainly free to decide on many ways to adapt to specific circumstances, the means by which it carries out the proper works of the institute (c. 677).

However, an analysis of whether a work is a “sponsored ministry” should be grounded in an understanding of the nature of the apostolate or RIs dedication to external works of the apostolate.


11

Teachers, for example…

For example, a RI dedicated to education may have dozens of members employed in a variety of places as it fulfills its proper works.

At some point, leadership must examine how this methodology affects the apostolate “in the name of the Church and in the name of the institute”.

The answer is not simple. There is no one way.


12

What’s the point?

The point is that the criteria in the canons are lost when the word “sponsorship” is used for everything.

Every decision about the future of any given ministry must be grounded in the canons.

These canons reflect an underlying theology of the Church and of the participating RI in the visible structure of the Church.


13

Subjectivity vs. objectivity

This requires that we move from a subjective view of “sponsorship” to a more objective view.

The reason for objectivity is because you have to ID what is a true activity of the apostolate (and therefore part of the stable patrimony).


14

Consider Canon 1284

This recognition of what constitutes the stable patrimony of the RI will determine what is subject to canon 1284, which is one of the primary canons on the preservation of the temporal goods of the Church.


15

Applying Canon 675

If the RI lacks a canonical understanding of the significance of “apostolic action which belongs to the very nature of institutes dedicated to works of the apostolate and mission and works proper to the institute” (see c. 675), compliance with c. 1284 will be seriously jeopardized to the detriment of the Church’s claim that charitable works are its own mission and right and to the legacy of RI.


16

Identifying “proper works”

There are 3 simple questions that capture the canonical scheme and provide the criteria for the adaptation of the means the RI uses to achieve its proper works: the engagements of the individual members, the use of its ministry funds, and the creation of governance structures of corporations.

These criteria may be useful to satisfy the mandate of c. 1284. These questions are:

– Who is the canonical actor?– What is the purpose (the end) of the canonical actor?– How does the canonical actor fulfill its purpose?


17

A new concept?

These three questions replace the use of the word “sponsorship” on the technical level of deciding if and how to accommodate the way which a RI carries out its mission and proper works.

They are also instructive for lawyers trying to ID and evaluate which legal structures best protect the needs of the client, both in the immediate situation and over time as personalities change, in harmonious and hostile environments.


18

Sources in the Code

Moreover, the codal sources for these questions lies in canons 116, 118, 578, 675, and 677.

C. 116, §1 – Public juridic persons are aggregates of persons or of things which are constituted by competent ecclesiastical authority so that, within the purposes set out for them, they fulfill in the name of the Church, according to the norm of the prescripts of the law, the proper function entrusted to them in view of the public good; other juridic persons are private.


19

A RI = a public juridic person (PJP)

A RI is a PJP, so it acts within the purposes set out for it by competent authority and fulfills these “in the name of the Church.”

This canon also requires the RI to have the means to fulfill the purpose, so the RI cannot simply abandon the means (ministry). This illustrates the need for objectivity rather than subjectivity. If indeed, a member is able to walk away from a ministry and there are no other strings attached, it probably was not truly a “sponsored ministry” to start with, even in the broadest meaning of the word.

While a RI may modify the ways in which it carries out its proper works, it may not divest itself of the responsibility for the means to carry out its works without a formal canonical process. (c. 583)


20

Canon 118

“Representing a public juridic person and acting in its name are those whose competence is acknowledged by universal or particular law or by its own statutes. Representing a private juridic person are those whose competence is granted by statute.”


21

Task of religious leadership

PJPs are represented by those defined in canon law and in particular law (constitutions of the RI). Thus, religious leadership has the ultimate task of representing the apostolate. They need to have the structures in law that secure their ability to meet this responsibility if the means used are corporations which are governed by American law.

Each institute has a certain canonical autonomy. See canons 578 and 586.


22

Canon 578

Canon 578 mentions “patrimony” and “governance.”

“All must observe faithfully the mind and designs of the founders regarding the nature, purpose, spirit, and character of an institute, which have been sanctioned by competent ecclesiastical authority, and its sound traditions, all of which constitute the patrimony of the same institute.”


23

Patrimony + Governance

c. 578 - defines the RI’s “patrimony” and includes:– nature, |– purpose, |– spirit, and | sanctioned by competent– character of an institute | ecclesiastical authority,– and its sound traditions

So this is where we talk about:– Fostering mission– Preserving charism– Imbuing the work with spirit of the RI

…as components or aspects or features or parts of “sponsorship” that governance must protect


24

Canon 586

Canon 586 then speaks of “autonomy of life, especially of governance”.

Can. 586 §1. A just autonomy of life, especially of governance, is acknowledged for individual institutes, by which they possess their own discipline in the Church and are able to preserve their own patrimony intact, as mentioned in can. 578.

§2. It is for local ordinaries to preserve and safeguard this autonomy.


25

Governance structures

Talking about Governance of sponsored ministries, which includes the protection of temporal goods, usually comes up in context of reconfiguration process, where we look at several alternatives for the new entity:

– 1. Establish a Committee Structure– 2. Retain an Executive– 3. Form a Non-Profit Corporation to Manage Sponsored

Ministries– 4. Organize Along Lines of Exempt Activities


26

Canons 675 and 677

Can. 675 §1. Apostolic action belongs to the very nature of institutes dedicated to works of the apostolate. Accordingly, the whole life of the members is to be imbued with an apostolic spirit; indeed the whole apostolic action is to be informed by a religious spirit.

§2. Apostolic action is to proceed always from an intimate union with God and is to confirm and foster this union.

§3. Apostolic action, to be exercised in the name and by the mandate of the Church, is to be carried out in the communion of the Church.


27

Canon 677

Can. 677 §1. Superiors and members are to retain faithfully the mission and works proper to the institute. Nevertheless, attentive to the necessities of times and places, they are to accommodate them prudently, even employing new and opportune means.

§2. Moreover, if they have associations of the Christian faithful joined to them, institutes are to assist them with special care so that they are imbued with the genuine spirit of their family.


28

“In the name of the Church…”

There is a parallel, then, between cc. 116 and 118 on the one hand and cc 578, 675, and 677 on the other. Because the apostolate is an integral part of the charism of the RI, when members of apostolic communities engage in works proper to their institute, they do so “in the name of the Church.” The canonical actor is the institute, which is the answer to that first question that we posed.


29

Meanwhile, back on the reservation…

So in the example of the member who works on an Indian reservation, we see that it is the government—and possibly the member—who is the actor, not the RI. Although the member works with permission of the RI, she is not acting in its name, and therefore not in the name of the Church. The member must have explicit authorization to do work in the name of the institute.

While education or social work may be an expression of the proper work of the RI, the actor in that situation is not the RI but the individual. The RI has no responsibility, canonically for the ultimate purpose or goals of the government in fulfilling the Indian reservation contract, or for the school when a member merely works there (with no further “investment” from the RI).


30

Who?… What?… How?

Recall the 3 questions:– Who is the canonical actor?– What is the purpose (the end) of the canonical actor?– How does the canonical actor fulfill its purpose?

Viewed from the scheme of these canons which focus on the identity of the canonical actor and its ecclesial purpose, one sees the ecclesiastical dimension of questions concerning the apostolate which is distinct from the individual ministries of members of the RI.


31

The future flows from the past…

In the past, the relationship was informal Head of schools was member of the RI Everyone had input b/c teachers and head were

members of RI so they talked all through the evening and at meals

Now the head is a lay person who goes home Same with Board – used to be former students, but

now it’s “money people” you want on the board but they are not imbued with the spirit/charism

“Catholic ethos” does not exist in the same way as it used to – and so requires adaptation


32

A Recent Unfortunate Example

Notre Dame Academy in Middleburg, VA Started by SNDs of Chardon, OH in 1965 1994 Board of Trustees formed from Advisory Board

(started in 1992) 2000 sold the school to Board Trustees with intention

they would carry on the tradition October 2008, Board announced it would hire non-

Catholic headmaster and no longer be Catholic October, Bishop Loverde of Arlington reluctantly

announced it is no longer a “Catholic” school (7.1.09)


33

TRENDS

Sustaining Agreements– Describe relationship in a legal document– To have influence, you need a statement about the

relationship– Not so much about control but about the relationship– If you are ever in position against your own board, you’ll

lose. Raw power will destroy the relationship.– Keep dialogue open so you are on same page.– Protect charism and Catholicity– Examples:

OSBs / St. John’s Jesuits


34

Joint Ventures?

Joining with other organizations– Actual mergers or unions– Depends on what you want to accomplish– Example: Ministering Together

Website and brochure www.ministeringtogether.org


35

Associations of the Faithful?

These are NOT public juridic persons, nor even private juridic persons – Come under Bishop, not RI, because a RI cannot

create an Association of the Faithful. Bishop approves statutes.

– Property is not ecclesiastical property– Can become a private juridic person, but not likely

to become a PJP


36

The Presenter

Donna Sauer, JD, JCLAssociate Director for Civil LawLegal Resource Center for Religious8812 Cameron StreetSilver Spring, MD [email protected](301) 589-8143 (Main)(301) 589-2897 (Fax)As of 1.1.09, LRCR and NATRI become RCRI (Resource Center

for Religious Institutes www.trcri.org)

directors of sponsorship meeting december 10, 2008 scottsdale, az “trends in canon law” donna...

Documents

canon lawdonna sauer

ri needs

id of proper works

level of proper works

cosponsored ministry

sponsored ministries

word sponsorship

external works