The Fort Worth/Dallas area is home to a number of seminaries including Southwestern Baptist Theological Seminary (Southern Baptist), Dallas Theological Seminary (conservative independent), Bright Divinity School (TCU) and Perkins School of Theology (SMU).

Southwestern Baptist Theological Seminary and Dallas Theological Seminary have teamed up with Liberty Legal Institute (improperly identified by The Fort Worth Star Telegram as Legal Liberty Institute) to prevent a woman from suing her former pastor. Although this is a Texas case, it may well have national ramifications at some point.

Liberty Legal Institute

The facts of the case are as follows:

1. The Rev. C. L. “Buddy” Westbrook is pastor of CrossLand Community Bible Church in Fort Worth.

2. Rev. Westbrook claims credentials as a professional counselor.

***

3. Peggy Penley and her former husband went to Westbrook for marital counseling in 1999.

4. In 2000 Penley informed Westbrook there was another man in her life and that she intended to divorce her husband. Penley resigned her membership in the church.

5. In 2001 Penley and her husband divorced.

6. Westbrook divulged details of his work with Penley in a meeting with the elders and in a letter to the congregation.

***

7. Penley sued Westbrook.

***

8. An appeals court in Fort Worth overturned the lower court decision.

9. The Texas Supreme Court has agreed to hear the case.

Penley’s lawyers argue:

***

Note: *** means quote linked to this story:

Fort Worth Star Telegram, 5-1-06.

Please read the entire article. It's short. I condensed it as best I could, but had to leave a lot out.

Item “x” on the Texas State Board of Examiners of Professional Counselors About the Profession - Code of Ethics says the following about confidentiality:


Code of Ethics

Questions for Debate:

1. Do you think Rev. Westbrook acted ethically in releasing information regarding Ms. Penley?

2. Do you think the pastor acted appropriately as a church official (lower court ruling) or violated the code of ethics as a professional counselor (appeals court ruling)?

3. How do you think the Texas Supreme Court will/should rule in this cause?

4. Regardless of how the Texas Supreme Court rules, do you think this case will eventually end up in Federal court?

Yes. If her adulterous partner had been a member of the church, that would have been released as well, but not being relevant, Westbrook did not reveal it.

QUOTE

2. Do you think the pastor acted appropriately as a church official (lower court ruling) or violated the code of ethics as a professional counselor (appeals court ruling)?

Acted appropriately as a church official.

QUOTE

3. How do you think the Texas Supreme Court will/should rule in this cause?

With the lower court ruling. The primary relationship in this case is the pastor/congregant relationship. It is, according to the article, the relationship that existed first, and it is within the context of that relationship that the counseling took place. Had Penley not been a congregant, then a different relationship exists. Of course, not being a congregant would have negated the need for church discipline.

Yes.

One important fact which I have been unable to find is whether Westbrook is a counselor who has been licensed by the state of Texas. I would assume so, or there would be very little to discuss here. I mean, if it had been a case where Penley had just talked to Westbrook in his capacity as a pastor rather than as a licensed counselor, she ran the risk of having her personal business made public and being "shunned." This is because there is no regulation of the professional activities of pastors (beyond the laws that all of us must follow.)

1. Even if Westbrook had been acting only as a pastor, his actions would have been reprehensible. They might have been legal, and they might have been part of the policy of his church, but they would still be vile. Revealing very personal information about her, and threatening her with "shunning," after she had already left the church, cannot be defended.

2. As I said above, his actions would not have been "appropriate" (even if they would have been legal) even if he had been acting as a pastor. If Westbrook is a licensed counselor, they clearly his actions are not only unethical, but illegal. Unless I found out that Westbrook was not licensed, I have to assume that the appeals court judged this case correctly.

3. Again, the question of licensing comes up. If Westbrook is a licensed counselor, he has to follow the rules. It's an open and shut case.

4. It seems there would be a good chance this would wind up sent to the Supreme Court. If so, I would assume they would refuse to overturn the Texas Supreme Court, or to even hear the case, since the legal issues seem so clear.

Certain elements of the Religious Right are trying to make this into a case of religious freedom. I don't see this at all. Your religion does not give you the right to practice a licensed profession illegally.

This looks like the core of the case. Does religious law supersede civil law? Are ethics as defined in a religion superior to ethics as defined in a profession? We don't have a theocracy (yet), so I'll have to go with civil law being above religious law, and professional ethics above religious. After all, if there is a conflict, then don't do the profession. Or quit the church. It's a free country.

Where this goes in the courts is anyone's guess. I guess I don't care, but I can see why the woman became upset. Divorce is hard enough without your counselor violating your trust.

This is a bit complicated, and so we need to understand the situation as Peggy Penley knew it.

If she expected confidentiality from her councillor, then that expectation should be met. If she expected the details to go public (because it was her pastor and because of the bylaws of the church) then there is no breach of confidence.

First off, it seems clear that Westbrook is a licensed counsellor. From the article:


So we must ask ourselves, did Penley (and her husband) seek the guidance of Westbrook as a counsellor or as a pastor (or both, I guess). Did Penley believe that the discussions would remain confidential?



If this is true we can assume that Penley knew that the church might "discipline" her for her behavior. If that statement is true, then either Penley had no expectation of privacy or she revealed the behavior to other members who were not councillors. If something becomes public knowledge, the burden on the counsellor would be lifted to a certain degree.

Also, Penley would be able to easily prove if Westbrook was giving counselling as a service subject to the Code of Ethics:


In another provision, it may be prohibited for Westbrook to have provided services (as a licensed counsellor) to Penley:


I certainly consider my pastor as a friend. Penley was a founding member of Westbrook's congregation and they knew each other for years. It may be reasonably concluded that Penley and Westbrook had a "personal friendship".

Thus, at least in Texas, it appears that pastors cannot legally counsel their congregation members as a professional service. Of course, this probably boils down to whether or not Westbrook billed Penley for his services.

1. Do you think Rev. Westbrook acted ethically in releasing information regarding Ms. Penley?

From a legal standpoint, the counselling Penley received was from a pastor. It seems clear that Penley understood this because she left the congregation for fear of "discipline". Penley was aware of the consequences of her actions and her divulgence of them to Westbrook. I'd say Westbrook acted ethically.

2. Do you think the pastor acted appropriately as a church official (lower court ruling) or violated the code of ethics as a professional counselor (appeals court ruling)?

It seems clear to me that a pastor cannot provide counselling to church members in the professional sense. Thus I believe the lower court was correct.

3. How do you think the Texas Supreme Court will/should rule in this cause?

For Westbrook. My line of reasoning clearly separates professional counselling from religious counselling: a religious leader cannot provide legal counselling to his parishioners (at least in the state of Texas). Thus, be default, all counselling by Westbrook falls under the category of religious guidance if it is provided to a member of his congregation.

4. Regardless of how the Texas Supreme Court rules, do you think this case will eventually end up in Federal court?

Don't these cases always end up in federal court? There is no incentive NOT to sue. I'm sure it will go forward and be rejected in federal court.

1. Do you think Rev. Westbrook acted ethically in releasing information regarding Ms. Penley?




I agree completely.



I disagree completely.

This is sort of like getting fired after you quit. As soon as Penley left the congregation, she should not have been subjected to whatever discipline [punishment] Westbrook wished to inflict. I have an interesting little book by evangelical, Ronald M. Enroth, entitled Churches That Abuse The book, now out of print, was published by Zondervan in 1992. Used copies are available at Amazon.com and possibly in some public libraries.

Enroth paints a picture of clerics who subject their congregants to all sorts of indignities, to keep a firm hold on the reigns of power. Westbrook reminds me of just the type mean spirited, small minded hooligan with a collar that Enroth discusses. The fact that Westbrook put Ms. Penleys problems in writing and distributed them to the congregation, rather than mount a fear and smear, word of mouth campaign against her, indicates that this man is definitely not the sharpest knife in the drawer. He failed the CYA test rather misebly.

2. Do you think the pastor acted appropriately as a church official (lower court ruling) or violated the code of ethics as a professional counselor (appeals court ruling)?



Then why are seminaries, like Southwestern Baptist Theological Seminary, offering programs that qualify for state licensing of counselors? I can’t speak authoritatively about other seminaries, but I had a friend who went through the program at Southwestern. The practicum alone was a grueling eighteen months (with only a couple of weeks off at Christmas/New Years). After completing the program she received a temporary and then a permanent state counseling license. I wish I knew how to find her. I’d love to get her take on this issue.

3. How do you think the Texas Supreme Court will/should rule in this cause?



You may be correct, but having had one court support Westbrook and another Penley, I’m not sure how this will play out.

4. Regardless of how the Texas Supreme Court rules, do you think this case will eventually end up in Federal court?



I agree, that this will end up in federal court and that the U. S. Supreme may well issue a writ of certiorari and hear the case.

I am not so sure of the outcome. Murdering people, human sacrifice, is not protected by the First Amendment. Should character assassination of someone who has already left the “flock” be protected? Personally, I don’t think so.



I agree and on this note I rest my case.

They certainly can be defended. Penley was clearly engaging in activity that violated the requirements of the church, and precisely because of her significant ties with the church, it was imperative upon the pastor to warn his congregation away from her. Had he failed to do so, he would have failed in his duty as a pastor. Now, I realize that you think making her feel good about adultery is more important than his duties to the rest of the congregation, but it just ain't so.

Curious choice of words you use to describe the pastor's actions. "Vile", "reprehensible". Both are moral judgements. You're perfectly comfortable making moral judgements as nothing more than an armchair observer, yet you fault him for doing so when, in fact, its his job, and his responsibility to the community of which she was a member.

Of course, you will raise the "but she left the church" as a reason why he was outta line. Hmmmm, let's see. How often does a founding member leave a church and everybody just waves and says "bye now" and never has anything to do with them again? Nah, it just doesn't work like that... at least not in the real world.

One final observation: Penley engaged in unrepentant adultery, a violation of trust of the most basic human institution. And she's claiming that she was wronged by her betrayal being revealed?

"Character assassination"? So, its your contention that she did not, in fact, commit adultery? She committed adultery, she clearly thinks there's nothing wrong with doing so as long as extenuating circumstances X, Y and Z are all met, which, conveniently dovetail with her situation. Undoubtedly, you would encourage your children (actual or hypothetical as necessary) to hang out with people who engage in behavior that you consider to be morally unacceptable. Or are you more likely, upon finding out that one of their friends is a neo-Nazi skinhead, to advise your urchins to avoid the putz? Nor would you refrain from "character assassination", i.e., identifying the putz as a neo-Nazi.

I'm not interested in passing judgment on whether or not her affair was wrong. Like everyone else, I have my own "can of worms" to deal with. I'm not interested in faulting or exonerating her.

Further, I did not identify Westbrook as a "neo-Nazi." Note: I am not quite sure of what context you brought this up, but it is colmpletely irrelevant).

Please don't put words in my mouth.

She's out of the church and I don't think it is any of Westbrook's damned business if other members choose to befriend her. This type crap is one of the reasons I don't do church.

The pastor's job is to encourage his parishioners to avoid sin. In some cases, that is done by avoiding sinners. Penley knew this, which is why she left the church.

Your portrayal of Westbrook, from the contents of one article, likens him to David Koresh or Jim Jones. Enroth's book is about cults, but of course you knew that. Is every church in America a cult? I didn't see evidence that Westbrook forced a dress code on Penley, or had a set distance between worshippers in the pews, or (more to the point) prevented her from leaving his congregation.

The fact remains that pastors often act as counsellors to their parishioners. People come to them for guidance and for moral support. Good luck on your path through life without outside resources to consult. "No man is an island."

[By the way counselling is a perfectly acceptable spelling: source. Nice try though. ]



Just because they cannot provide guidance in a professional sense does not mean they could not benefit from specific training in the area. I don't know of any cases where the clergy charges the parishioners for consultation, but I won't rule it out I guess. Being a priest (or deacon, or reverend) has aspects of being a counsellor. They just don't get paid specifically for being a counsellor (see the difference?).


Don't you see the point that this is exactly what Westbrook's job is? To guide his parishioners (of which, Penley is no longer counted). His is advising his parishioners that associating with Penley is not good. As my signature says: "You are your friends." If you hang around stupid people who do dumb things, you will likely be stupid and do dumb things. Westbrook was doing his job: pointing out examples of bad behavior.

According to The New Oxford American Dictionary spelling counselor or counseling with two ls is “chiefly British." To paraphrase Thomas Jefferson, “Never use 2 ls when one will do.”





As the saying goes, there is more than one way to skin a cat. Westbrook chose the wrong way. There are many things I don’t like about the Catholic Church. One of the things I’ve always appreciated about the Catholic Church is the confidentiality of the confessional. Westbrook could have handled this privately. He didn’t and I will stick by my assertion that Westbrook is mean spirited and to put it in my best Texican, "he ain’t right bright.”



This is a truism. Although I don’t do church, the coffee shop is an equally acceptable place to surround oneself with other people. I am not a licensed counselor, but I do have a Texas School Counselor’s Certificate. Confidentiality has always been a major element in counseling of any type. People at the coffee shop tell me things I never repeat and I’ve told a few people some things about myself that I doubt they’ve broadcasted.

I have never heard anyone in the coffee shop selecting or deselecting other people's friends.

I feel sorry for anyone who lets a pastor or anyone else tell him or her whom to befriend.



Enroth wrote a book, not an article. Have you actually read his book? I never accused Westbrook of running a cult. He does, however, seem to want to think for members of his flock. Those who let him get away with that are close to what my friend PacPanzer calls "sheepel."

To those who seem so bathed in self-righteousness--so judgmental--about her affair, I would say we don't know all the facts. We don't, can't, and shouldn't know what prompted her divorce, but there's another truism: "there are two sides to every story."

No, but you are comfortable in passing judgement on the Westbrook's actions.

I didn't put the words into your mouth, by any stretch. I simply used a HYPOTHETICAL example of an individual that I'm pretty sure you would find morally repugnant to illustrate that you would engage in the same behavior as the Pastor, namely, instructing those whose well being you are charged to insure to avoid people you consider to be treading the wrong path.

Well, it is his business, because that's part of what being in a church is about. Its called "accountability."

Really? How is he supposed to warn everybody in his congregation to avoid this woman, privately?

Yes, and probably a good place to get ham and eggs as well, but a coffee shop isn't a church. Coffee shops don't start and support homeless shelters, they rarely send customers to the far reaches of the world to help others, they have minimal standards of behavior. Mind you, I'm not knocking coffee shops, I just had lunch in one, but I'm not about to confuse one with a church, or try to establish some sort of equivalence. What you can do in a coffee shop may be the same as a church, but what you are expected to do, especially if you're part of the management team, just aren't the same, eh?

But that, of course, is exactly the problem for you, isn't it? Expectations. You consider the expectations of the church to be onerous..., and any attempt on the part of the church to uphold those expectations to be wrong...

I suppose it makes sense then that you don't "do church"

One question: Let us assume that the Pastor didn't warn anybody, and the Penley later has an affair with another member of the congregation. Do you think Westbrook would have been derelict in his duty? What if, instead of being an adulteress, she were an embezzler. For sake of argument, lets say that she made restitution solely in order to avoid punishement, believes that what she did was justified, and no legal action was taken. Would Westbrook be out of line if he warned congregants not to hire her?

What can I say? I once worked for a principal who accused me of having an “underdog complex.” By this he meant that I habitually took the side of the underdog. Westbrook is the establishment, the authority. I tend to buck authority and side with the little guy or woman in this case.



Now this is what I’d call a profound statement. Bikerdad. I’m well aware that a coffee shop isn’t a church. I haven’t seen any steeples, or pews. There’s a stage where musicians play, singers croon or wail and poets sometimes read and rant, but no pulpit or choir loft. There is a library in the one I frequent. There may or may not be Bible or hymnal. I don’t know. I have seen a couple of Rush Limbaugh books, some misguided soul dragged in. Does that count?

In the 60s, at the height of opposition to the Vietnam War, I occasionally visited a Dallas coffee shop called the Attic Window. They had a stained glass window. Folk singers would bring their guitars, sit under the window and sing songs written or made popular by “radicals” like Bob Dylan, Joan Baez and Pete Seeger. Some wrote and performed their own material.

Give me a little credit. I’m 63-years-old and I’ve been around the block multiple times. Although I don’t do church, I’ve done church in the past—three of them, in fact. None of them were completely satisfactory and all of them drained my energy when I needed it to teach retarded kids during the week. (Note: I still consider myself Unitarian, but I haven’t been in years. Of the three groups I joined it produced less stress than the others.) Now before you say it, I am well aware that the “fault” might be as much mine as the institutional church, but as Sly Stone sang, “different strokes for different folks.” The First Amendment gives you the right to find your stroke in church; it gives me the right to find mine elsewhere.

While a coffee shop is not a church, there are parallels. Regulars at a coffee shop develop friendships and informal support groups. If someone’s car won’t start, for example, there’s usually someone ready with the jumper cables.

Responses on this thread have not developed as I anticipated. While Rev. Westbrook talks of “tough love,” I see much toughness and little love in his approach. To avoid setting off the profanity filter, I’ll just say that Westbrook made a complete donkey of himself. As I think about it, the stubbornness connoted by the word “donkey” makes it more appropriate than the one it replaced. It also occurs to me that the endless pursuit of alleged “evil doers” (Ms. Penley) has the potential of becoming evil itself. Ah, remember the Salem Witch Trials.

There are two tragedies on this thread.

First, Ms. Penley would probably get more understanding and compassion at my coffee shop, any coffee shop, than in the church she helped found.

Second, you and Amlord are both taking a hard-nosed, no compromise position regarding Ms. Penley. There is toughness in your approaches. As the little old lady used to say in the commercial "where's the beef?" Uh, I mean where's the love and compassion?



I was on the board of trustees of the local Unitarian Church in the 70s. It was valuable experience, but in retirement, I’ve found I can manage my life quite well. If I’m governed only by my own “expectations” I won’t disappoint anyone by not meeting them the way Ms. Penley didn’t meet them, eh. There was a time in counseling when this was called self-actualization.

I'm not sure whether you're admitting your bias with quiet pride, or confessing your prejudice and bigotry with chagrin.

Aye, there may be parallels, but few of them are in the realm of expectations, eh? Which was my point. At the coffee shop, you may form informal support groups, whereas a church is explicitly a FORMAL "support group".

Somehow, I doubt that if she started showing up in The Attic touting her determination to go to Vietnam and do everything she could to help the Americans and South Vietnamese achieve victory by killing as many VC and NV as possible, that she would have found much understanding and compassion. Why? Because her behavior would have been anathema to the community standards. After a couple of y'all failed to dissuade her from mission, the "word" would have gone out "stay away from Penley, she's a baby killer!" The simple reason your coffee shop denizens would have more "understanding and compassion" is because they don't consider committing adultery to be wrong.

I have neither love, nor compassion for adultery. Penley is unrepentant. Since the same source of "love and compassion" that you think I'm not following in this instance is the one who laid out the EXACT process that Westerbrook followed, I'm not going to worry that I'm out of God's will here. Love and compassion does not mean giving sin a free pass. Plendey is upset that she wasn't given a free pass...

Yes, and there was a time when being accurately identified as sleeping with somebody other than your spouse wasn't considered to be "defamation", but simply the truth.

At the risk of offending....

The issues of this case seem to all revolve around questions of expectation of privacy; did Ms Penley have a reasonable expectation of privacy regarding the content of her counseling (counselling, councellelleing, counsell-a-ella-ding-aling?)?

Assuming that Rev. Westbrook didn't make an explicit promise of confidentiality (I'm a licensed counselor, everything you say here is confidential) then the question really seems to focus on one of primacy of roles, Rev Westbrook is a licensed counselor and a religious leader; in the context of advising a parishioner through troubling times, which role is the foremost. That is; is he a counselor who happens to be the member of a religious order or is he a "man of the cloth" who happens to have professional training and credentials as a counselor?

If he is primarily a counselor, than he acted unethically at the very least. It seems clear from the postings above that most counselors take confidentiality as part of their professional obligation to their clients. While not absolute (intent to harm another, admission of a serious crime can, in at least some states, be shared even without the patient's consent), most folks go to counselors reasonably expecting that what is discussed remains in confidence.

If, on the other hand, the Reverend is a Reverend first and foremost than, as others have pointed out, he behaved consistently with his greater obligations to his flock (note: this is based on the way folks have described the rules of that congregation; the correctness of those rules is beyond the scope of this issue). Further, as a member of the congregation (when counseling started) she would have known these rules and hence, could not have expected any sort of privacy from the rest of the flock.

Obviously, there is also the question of presentation and communication (did the Reverend, while never claiming confidentiality, make a point of presenting himself first and foremost as a counselor, did Ms Penley ever explicitly ask if things would be kept private, etc) and the aforementioned possibilities of deception, but were I a judge, the crux of the matter would come down to which was Westbrook's primary role under the circumstances. I don't really have a good answer for that, nor do I have nearly enough context and detail to offer an informed opinion.

On a personal level, I can certainly understand the feeling of betrayal and exposure that Ms Penley must feel; we all hope that when we share personal (or embarrassing) information, that those with whom we share it will exercise discretion and respect for our privacy. I also recognize that there are times when we are obligated to make embarrassing information public in the name of compelling interest or greater societal good.

As always, just my Euro .02

I agree with your thought process. I laid out a similar one in my first post.

We seem to know a few things that you left out.

First off, Penley seemed to expect the response she got from the pastor when she broke off her attempts to reconcile her marriage. From the original article:



BoF linked the Code of Ethics for the profession in Texas and it seems that the Code of Ethics forbids counselors from providing services to family, friends, business associates, or other people with whom the counselor may have an outside relationship.

I think it's fairly clear that Westbrook and Penley had a relationship either akin to friendship or a business relationship. So, it seems that the Code of Ethics precludes ministers from providing professional services to their parishioners.

If Westbrook was not acting in a professional capacity as a counselor, then he, by default, was acting in his role as a minister.

Penley quit the church to avoid the discipline that she knew would be forthcoming for her actions. The article states that plainly. Assuming that is true, we can infer that her expectation of privacy was low or non-existent.

Now Westbrook, after Penley left his church, could not really discipline her, but he could advise his members not to associate with a person who had broken the church's code of conduct. As a spiritual advisor to these people, this is within Westbrook's prerogative. It is probably his duty to these people.

Back to the legal matter. Penley is suing Westbrook for defamation. Defamation usually carries four burdens of proof:
(1) A publication to one other than the person defamed
(2) of a false statement of fact
(3) which is understood as being of and concerning the plaintiff
(4) which is understood in such a way as to tend to harm the reputation of plaintiff.

I think the lynchpin here is #2: is what Westbrook said false? We don't know what he published or what he said to his congregation. If he called her a "whore" then that might be defamation, regardless of the facts of the case. If he called her an "adulteress" or "unfaithful" then he would be in the clear.

The case's decision

The court documents show what Westbrook said about Penley:


"Break fellowship"? Not wear a Scarlet Letter?

Let's dig further:

Westbrook specifically told his church members that this was a "members only issue" not to be shared with outsiders and told them "to not gossip or judge" Penley.

The lower court dismissed the case, it seems, not on the merits but because very little testimony was given. Westbrook's attorneys maintained that the court had no legal basis for hearing testimony relating to intra-church procedures. The case was dismissed because Penley was not able to get Westbrook (or anyone from the church) to testify.

Reading the full briefing, the appeals court did not rule in favor of Penley. They merely ruled that the case be remanded (for count 1 only) and that the trial go forward to determine the merits of the case. This was due to Penley's assertion that Westbrook provided negligent secular counseling to her and not that Westbrook provided negligent ministering.

Not having read this before, I will reverse (sort of) what I said before. I believe that the Texas Supreme Court will support the Appeals Court and that the case will be decided on the merits. On the merits, Penley will lose. She admits that Westbrook had three relationships with her: "Penley stated that Westbrook was her friend, her pastor, and her professional counselor."

This, coupled with the lack of a confidentiality disclosure at the commencement of counseling should clearly convince the court that Westbrook was not a secular counselor to Penley, but a minister. As demonstrated by her own actions, she believed this to be the case herself. In addition, Westbrook's actions do not venture into the realm of defamation but are within the realm of church discipline which the civil courts cannot intrude upon. Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 708-09, 724-25, 96 S. Ct. 2372, 2380, 2387-88 (1976)

Amlord,

This at first looked fishy to me, as a court demands witnesses to appear by subpena. Then I thought that this might not be the case in civil proceedings, as opposed to criminal.

Anyway, it seems odd. I'm not sure that the prosecution has the ability or responsibility to bring in defense witnesses.

I'm not sure I can agree with your conclusions. She resigned from the church to avoid being disciplined by the members; this is not, to my mind the same as resigning to remove herself from the authority of the pastor. To put it another way, she knew that adultery would have consequences within the parish, that is not the same as acknowledging that she expected the pastor to share the information that would lead to those consequences. A fine point, I agree, but a potentially important one.



Again, I almost agree with you, but not quite. It would seem to me that the code of ethics suggests that there was a potential ethical conflict in Rev. Westbrook acting as a counselor, particularly as the specific by-laws of his church require him to take very specific action in regards to certain behaviours. It is both the Reverend's calling and the specifics of the rules of his church that set up this conflict (I imagine a UU Minister would have no such conflict for example).

Further, you take the existence of the conflict and then make the resolution self-evident, which I'm not sure it is. Again, there was a conflict of roles, but it is not self-evident that the conflict is resolved by saying "since you were in violation of the code of ethics, clearly you were acting in a different capacity". This lets the good Reverend off a bit easy as, again, we don't know what expectations he set, how he communicated this potential ethical conflict, etc.



Again, it may be his duty as a Reverend, but then he has a concomitant responsibility to make it clear to the Ms Penley that he is acting as a leader of the church, not as a counselor. This, to my mind, is implicit only if he did not present his role in talking with her as that of a counselor (or as primarily that of a counselor) or emphasize his professional counselling credentials in order to get her to seek his guidance. Also, her withdrawing from the church does not, to my mind, imply that she clearly had no expectation of privacy, it simply shows she wanted to avoid punishment, regardless of how likely she felt it to be that she would face such actions.

As to the matter of defamation as a reasonable civil complaint; I agree that, given the criteria you listed in your post, what the Reverend did falls short. No one seems to be arguing that he lied about Ms Penley's actions, only that he violated an ethically obligated confidence in sharing them with his parish.

Ms. Penley may have cause, therefore, to sue for malpractice or even breach of contract (she may not, it would depend on the rules in that state regarding "licensed counselors") and she may also have a reasonable complaint to make to the certifying body that gave the Reverend his credentials.

The Code of Ethics is clear that a counselor must inform his clients of confidentiality, fee schedules, etc. before engaging in counseling. I have seen no evidence (beyond Ms. Penley's assertion) that he was engaging as a secular counselor and not a clergyman. Were funds exchanged? To me, that is the deciding point. If he took money for this then he was a counselor and not a clergyman. Otherwise, from his actions and from her expectations, we can reasonably conclude that he was acting as a minister.

If money DID exchange hands, then Mr. Westbrook acted unethically, since he would be subject to the Texas Code of Ethics. In fact, if he did accept money, he is in violation of more than a few sections of the Code of Ethics (half a dozen at least).

But the burden of proof is on the plaintiff to show that she went to Mr. Westbrook as a secular counselor and not her clergyman. Her actions seem to indicate that this was not the case.

The more I look at this thread, the more I’m convinced that how one replies has much to do with how one sees authority. How much authority does, or should, a “pastor” have over his “flock?” My answer to that is, only as much as the individual congregant wishes the minister to have.

I would also suggest that the struggles for power within a church setting often involve matters other than adultery. I have a couple of illustrations, one as an insider and the other as an outside observer.

Observation from within

In October 1960, I was a high school senior, who had turned 18 the previous month. I kind of grew up in the largest Baptist church in Fort Worth. As the election grew near, the pastor decided he needed to warn his flock about the horrid dangers of electing John F. Kennedy President of the United States. The week before the election he preached a “sermon?” in which he advised voting against Kennedy because he was a Catholic. In grad school I wrote a paper on anti- Catholicism in the 1960 election. I managed to get a copy of the sermon, then six years old, from the church library. In an emotional speech lasting about 45 minutes, the pastor used the words “Rome,” “Roman, or “Romanish” [sic] 38 times.

At that time 18-year-olds could not vote. After the service I went down front, shook the pastor’s hand and informed him I thought the sermon out of line and that if I could vote it would be for Kennedy. The pastor, who was 6’4”, glared down at me and said he was just “trying to preach the gospel.” I didn’t say it, but the thought that ran through my mind was “well that wasn’t what you were doing.”

After this episode some, but not all, of the young people gave me a cold shoulder and let me know it wasn’t the place of an upstart high school kid to dispute a pastor’s sermon. When I think of Nixon as the alternative, it amazes me how much smarter than the pastor I was and only wish more people had called him on this power grab that reached even the voting booth.

Observation from without

I am almost finished reading Doris Kearns Goodwin’s Team of Rivals: The Political Genius of Abraham Lincoln. One of the things I’ve come to love about Lincoln is his almost unique ability to illustrate complex ideas with simple stories.

In 1998, I was attempting to setup a DJ business to supplement my income when I retired. I played several nursing homes free, but my first paying gig was in a small, conservative evangelical church in a suburb of Fort Worth.

As it turns out, the guy who booked me and I had known each since first grade. I had just set up my equipment when the pastor approached me. The conversation was somewhat surreal.

The pastor introduced himself and said:

“Now I don’t know you from Adam, so I hope you don’t play anything in here tonight that’ll make me have to get down on my hands and knees and ask forgiveness from the man upstairs. You know, no Steppenwolf or Grand Funk Railroad.”

I assured the pastor that I played by request, and didn’t think his members would request anything like that.

They treated well. They invited me to partake in dinner and paid me in advance.

Once the dance stared, the pastor was in font of the stage dancing by himself. It seems his wife did not attend that night. After about an hour he came up and told me to play about three more songs and they were going to wind it down. When I announce this, he said “no, that’s alright, I’m going home, but they want to stay.”

Within 30 minutes of the pastor’s leaving, 75% of those in attendance left. A small core of dancers hung around for several hours.

What I was viewing was a power struggle between a pastor and members of his congregation.

My friend sort of won this one, despite those that took their cue from the pastor and made a hasty exit. He won the battle, but didn’t win the war.

My friend booked me again a year later. He had rented the community convention center and planned to hold the dance there, rather than in the church. A few days late he called and cancelled, saying he couldn’t get enough people to attend. He asked how much he owned me and I told him, “Nada, I know what your up against.”

It appears the pastor distaste for dancing had won out over my friend’s desire to have a dance.

GETTING BACK TO PENLEY

Does it really surprise you Amlord that nobody would testify in the lower court? Westbrook sure as hell wasn’t. My guess: it's all aboujt a “spiritual tyrant" trying to protect his power, much like my former pastor, who tried to derail Kennedy’s election and my friend’s pastor who did scuttle all future dances. Westbrook is flexing his power muscles and displaying an ego on steroids. This isn’t about adultery, it’s about power, control and authority. The congregants will not testify because they are afraid he might punished them. As with the secular world, Lord Acton's words hold true. "Power corrupts and absoute power corrupts absolutely."

Amlord I am not as sure as you are about how this will play out in court, but I am ever so certain that it will end up in federal court. The ramifications of this are huge. It will impact what people in the pew will tell their clerics and have pastors, with state license in counseling, scurrying about for better CYA tactics.

Again, I agree with your premise, just not completely with your conclusions. I don't see this as a case of caveat emptor nor do I feel that the only factor in concluding a counselor role was played is in the determination of a fee. In the absence of any other indication from Westbrook, I would agree that Penley, knowing the rules of the church, should have explicitly indicated that she was looking for a confidential counselor. If Westbrook was not willing to offer that service, she would have either gone elsewhere or accepted the risk of disclosure to the congregation (although I think it would have been a decent act of Westbrook to have told Penley that what they discussed was not private or, at the least, to tell her that he felt he had to disclose this information before disclosing it).

However, if, as alleged, Westbrook had indicated either specifically to Penley or generally to the congregation that he was willing to act as a counselor (particularly if he used that word and also emphasised his professional qualifications; for example "I just want you all to know, if you have any problems you need to discuss, I'm a state-certified counselor and I'm always willing to listen"), then I think he's on much sketchier ethical ground and a complaint to the ethics board is certainly in order (possibly a law suit as well). In this case, he's clearly implied that he has a dual role and I think it is incumbent upon him to ensure that folks know which of those roles will have primacy.

In the end, without the additional context of how and why Penley came to Westbrook and how Westbrook presented himself and his qualifications, I really would have a hard time making this call.