We live in a
litigation-happy society. Assuming your church is safe from lawsuits is a
set-up for disaster.
While many suits are
unjustified factually or legally, way too many suits against churches are
appropriate because of inadequate ministerial practices. The very good news is
that the majority of such lawsuits are preventable.
One of the most important
documents a church can have in its "legal arsenal" is a church ministry
plan set forth in a clearly written, proactive set of bylaws drafted
specifically for churches in America today.
With churches that have
been involved in internal turmoil or litigation, the quality of their bylaws is
important. Churches face a higher risk of being dragged into extensive and
expensive litigation, having their ministry greatly disrupted and being ordered
to pay damages or suffering a variety of serious consequences when their bylaws
are inadequate.
If your church’s bylaws
are not current and properly written, your church has opened itself up to some
of the following serious consequences.
Consequence #1: The risk
of serious errors increases.
Many churches don’t
perform some necessary functions simply because they don’t know that the tasks
are required or the risks of not doing them. Churches can get into significant
trouble when they don’t understand that they should pay overtime, have workers’
compensation insurance for their employees, do background checks on certain
workers, comply with copyright rules, avoid improper political activities, and
implement numerous policies governing property, transportation, discipline and
other matters. Churches have been sued or suffered government intervention
because of their failure – albeit ignorantly and unwittingly – to comply with
these legal duties.
Churches cannot achieve
their God-ordained tasks if they hide in fear. They have legal duties they have
to fulfill to manage their ministerial operations properly. A church can
unwittingly delegate responsibilities it didn’t even know it had. One church
delegated the duty to respond to an employee’s sexual harassment claim to an
untrained group of leaders. Predictably, this group did a very poor job as they
"handled" the matter.
One year later – after
the church thought the situation was resolved – the church found itself in
front of a jury. The employee told the jury how the church had failed to act on
the sexual harassment claim and how the staff member, determined by the church
committee to be innocent, had raped her. The jury decided that the church had
failed its responsibilities and awarded the employee $2 million for her actual
damages. Additionally, the jury ordered the church to pay an additional $4
million in exemplary damages as an example to warn other churches to handle
their ministerial affairs better than this church had.
After the jury had
awarded a $6 million judgment against his former church, this same staff member
was hired by another church. What do you think a jury would do to that
subsequent hiring church on the first rumor of misconduct?
Proper bylaws incorporate
an understanding of such legal, business and government regulatory issues.
Regardless of how much church leaders want to avoid such issues, these issues
are integrally involved in a church’s core ministerial operations. Bylaws
should define these critical functions and delegate accountable individuals.
Church members who are trained and competent to serve on personnel committees,
risk management teams, property and transportation committees, and other
essential teams can dramatically reduce the risks that churches face.
Consequence #2:
Incredible ministry opportunities may be missed.
Pastors, staff, employees
and church members can serve God with more power and wisdom than they currently
do. Church bylaws are not just a document lawyers charge you to prepare that
the church files away after they are adopted. Bylaws are a ministry operating
plan that recognizes what each church participant brings to the church and
utilizes the spiritual gifts, talents and resources God has brought to the
church.
Proper bylaws help
churches achieve the excellence Christ deserves in His body’s core ministerial
operations. Most pastors need support and freedom to achieve the potential of
their role as the spiritual leader of the church. This demands that pastors
focus on their true calling and delegate many tasks they now perform.
Giving up those tasks is
not only a blessing for the pastor but also a blessing for the members who step
into valuable roles of service. Using these servants’ gifts and talents and in
accordance with God’s calling helps churches have more power and impact.
Consequence #3: The church may waive important rights.
Churches have important
"potential but unactualized" rights by merely inserting them in their
bylaws. A church’s bylaws can authorize the church to refuse to hire employees
or select leaders unless theses people are Christians who personally agree to
the church’s doctrinal statement and agree to live in accordance with the
bylaws’ doctrinal statement.
Churches can require all
church employees and members to agree to allow the church to complete disciplinary
processes, effectively waiving potential claims for defamation or violations of
privacy. Bylaws can require that most potential lawsuits be resolved through
internal Christian mediation. If a member or leader is sued, the bylaws can
require that the church protect them from individual liability and pay their
legal fees.
If these rights aren’t
adopted by the church, protections the church could have are probably waived
and unavailable when really needed.
Consequence #4: The
document may create obligations the church doesn’t otherwise have.
Courts can force a church
to do whatever the church "says" it will do in its bylaws, even if
the law would not otherwise have required the church to do what it agreed to do
in its bylaws. Church bylaws easily can grant more "rights" to
employees or impose more obligations on itself than it is legally required to.
A poorly drafted indemnification policy can require a church to pay damages
caused by an employee that the church might otherwise not have to pay.
It’s better to limit the
bylaws to more essential policies and include more detailed ministry plans in
operating policies. Churches should include a disclaimer that the church
intends to follow the policies, but that the policies don’t create rights that
are legally enforceable against the church.
Consequence #5:
Improperly written bylaws can "invite" judicial intervention.
Bylaws explain a church’s
doctrinal beliefs, ministerial practices and church/member relationship issues
to members and nonmembers. Bylaws set forth the process of resolving internal
church issues as they arise. A review of the bylaws can quickly tell a judge
whether a church knows what it is doing. Ones that are well written can
convince a judge that it’s better not to get involved in an internal church
dispute.
Everyone wins when
churches conduct their ministries in a way that gives the law no reason to
intervene. Proper bylaws set up enforceable barriers and disclaimers that
minimize the risk of judicial intervention. Member-approved mandatory Christian
mediation clauses may prevent members from suing their church. Some courts may
require the church to prove its members knew that such provisions were in the
bylaws and agreed to be bound by them.
If bylaws are old and
outdated or if multiple copies exist, a church may have trouble proving which
of several versions are valid. The current copy of the bylaws must be signed
and dated; and it must properly reflect the proper church name.
Make it a major goal by
the end of 2007 to update your bylaws. Get started now. Review them and
prayerfully prepare to lead your church to achieve greater excellence in its
ministries as you implement this important operating document. Always get
competent legal help to make sure your church is protected.
This article is derived from a resource manual
Steven Lewis has written for churches to help them operate with excellence.
After earning his master of business administration and law degree from the
University of Oklahoma in 1984, Lewis was called to the ministry to serve as an
attorney for churches. As president of Church Excellence, Inc., a ministry
designed to help churches achieve excellence in their core ministerial
practices, he has studied church ministerial practices and written about and
led conferences on church legal leadership issues for the last two decades. He
and his wife, Kim, are the parents of three children and members of Henderson
Hills Baptist Church in Edmond, Okla.
Editor’s note: The content of this
article is for general, informational purposes only and is not intended to
constitute advertising, invite an attorney client relationship or serve as a
source for legal advice. Neither you nor your church should rely upon any
information contained in the article for any purpose without seeking legal
counsel from a duly licensed attorney competent to practice law in your
jurisdiction.