I am Chairman of the Board of Deacons at a 200-member church that is a separately incorporated nonprofit. I have requested to see the personnel files of two staff members based on an up-coming annual review. I have been told no by the church secretary because the pastor told her not to let people see them. Where can I find the law that shows I have a right to view the records?
Assuming that your Board of Deacons is the equivalent to a board of directors of a secular corporation, the general rule is that you have a right to review the books and records of the corporation in order to perform your fiduciary duty to the corporation.
If you are lucky, your state nonprofit corporation law will contain a provision, like Section 5512 of the Pennsylvania NPCL, that provides that a director has a right to inspect and copy corporate books and records “to the extent reasonably related to the performance of the duties of the director” so long as the director is not likely to use the information in a manner that would violate the duty of the director to the corporation. This provision has been relied upon by directors of Penn State University to obtain some very sensitive information used to prepare the Freeh Report on the Jerry Sandusky child abuse case. (See Nonprofit Issues®, 9/15.)
But in many states, the right has grown up in common law court decisions rather than from statutory provisions. You may need to search your state decisions for guidance, or if none, cite the general rules of other states.
There are at least two other significant issues in your case that have to be considered, however. First, employees have a certain right to the privacy of their employment records. I would not think it prevails over the director’s right of oversight in most cases, depending on the purpose of the request. Second, if your inquiry is based on the employees’ membership in the church, adherence to doctrinal views, or other religious matters, if you actually file suit, a court is likely to decline jurisdiction and say that it cannot involve itself in ecclesiastical matters.
You should obviously discuss your request with the pastor and other deacons before even thinking about going to court. But you can start from the premise that as a director you have the right to review the books and records in order to fulfill your fiduciary duty.