8 Legal Concerns for8 Legal Concerns for
Constitutions & BylawsConstitutions & Bylaws
Presented byPresented by
Dr. Bobby G...
Session OverviewSession Overview
• 1111 Most Common ReasonsMost Common Reasons
People Sue ChurchesPeople Sue Churches
• 3 ...
Why should a church even care ifWhy should a church even care if
their Constitution & Bylaws is up totheir Constitution & ...
1. In the event of a lawsuit, where a1. In the event of a lawsuit, where a
church’s Constitution and Bylawschurch’s Consti...
2. Because churches are being2. Because churches are being
sued, or threatened by lawsuitssued, or threatened by lawsuits
...
While it is impossible to preventWhile it is impossible to prevent
someone from suing a church,someone from suing a church...
DISCLAIMER:DISCLAIMER: This workshop hasThis workshop has
been prepared in consultation with thebeen prepared in consultat...
Understanding that you need moreUnderstanding that you need more
than a good insurance policy, whatthan a good insurance p...
Every church needs an updatedEvery church needs an updated
Constitution and bylaws. ThisConstitution and bylaws. This
gove...
If your Constitution and Bylaws hasIf your Constitution and Bylaws has
not been reviewed and updatednot been reviewed and ...
In most instances, when a church isIn most instances, when a church is
taken to court, the court will look totaken to cour...
For legal purposes, the set ofFor legal purposes, the set of
bylaws is the organization’s mostbylaws is the organization’s...
It is vital that this document beIt is vital that this document be
prepared properly and that itprepared properly and that...
Courts generally hold that aCourts generally hold that a
member who joins a church withmember who joins a church with
know...
So why do peopleSo why do people
sue churches?sue churches?
The 11 Most Common ReasonsThe 11 Most Common Reasons
People Sue ChurchesPeople Sue Churches
1.1. Negligence by generalNegl...
You may say:You may say: “But, we have“But, we have
insurance. That will beinsurance. That will be
enough.”enough.”
TRUE o...
GENERAL PRINCIPLESGENERAL PRINCIPLES
The church bylaws (and all of theirThe church bylaws (and all of their
amendments) mu...
Readily accessibleReadily accessible means that themeans that the
church bylaws is not stored in anchurch bylaws is not st...
The members that are to be subjectThe members that are to be subject
to the bylaws should either beto the bylaws should ei...
A court will not hold a member toA court will not hold a member to
bylaws of which he had no notice.bylaws of which he had...
It is important that your church atIt is important that your church at
least consider all the issues I amleast consider al...
For instance, if the church bylawsFor instance, if the church bylaws
fail to provide for the amount andfail to provide for...
The organization may set whateverThe organization may set whatever
operational rules it wishes, but itsoperational rules i...
Review 8 Areas of ConcernReview 8 Areas of Concern
3 Articles Essential to Include3 Articles Essential to Include
1. Structure1. Structure
Be sure that your structure isBe s...
Committees should be flexible inCommittees should be flexible in
the bylaws.the bylaws.
The church should not list allThe ...
Most committees are temporaryMost committees are temporary
and should be treated in the bylawsand should be treated in the...
2. Statement of Faith2. Statement of Faith
Be sure to carefully draft yourBe sure to carefully draft your
church’s Constit...
CLA strongly recommends thatCLA strongly recommends that
your church Constitution andyour church Constitution and
Bylaws i...
By doing this, you will put yourBy doing this, you will put your
members and prospectivemembers and prospective
members on...
QUESTION: Is listing that yourQUESTION: Is listing that your
church adheres to the Baptist Faithchurch adheres to the Bapt...
Yes and No.Yes and No.
Yes, in the areas that the BF&MYes, in the areas that the BF&M
addresses, it is probably sufficient...
But, NO in the areas it does notBut, NO in the areas it does not
cover. Either list each doctrinalcover. Either list each ...
Your statement of faith should addressYour statement of faith should address
current issues in our culture that arecurrent...
The church bylaws should stateThe church bylaws should state
what version of the Bible iswhat version of the Bible is
acce...
These are “hot-button” issues thatThese are “hot-button” issues that
have a higher potential of puttinghave a higher poten...
3. Membership3. Membership
The church bylaws should carefullyThe church bylaws should carefully
specify the qualifications...
Most churches will want theMost churches will want the
members to be believers whomembers to be believers who
agree with t...
The church bylaws shouldThe church bylaws should
specifically set forth the proceduresspecifically set forth the procedure...
• For example, may members be admittedFor example, may members be admitted
at any service of the church?at any service of ...
Privileges of membership shouldPrivileges of membership should
include that only members at leastinclude that only members...
Only those who are physicallyOnly those who are physically
present at a properly calledpresent at a properly called
meetin...
There should be no proxy orThere should be no proxy or
absentee voting.absentee voting.
The church bylaws should set forthThe church bylaws should set forth
any limitations on a member’s rightany limitations on...
Imagine the impact and cost if anImagine the impact and cost if an
angry member demands that theangry member demands that ...
The church bylaws need to stateThe church bylaws need to state
the discipline process that a churchthe discipline process ...
It is not sufficient merely to provideIt is not sufficient merely to provide
the Scripture references. The stepsthe Script...
In any church discipline situationIn any church discipline situation
this outline should be followed tothis outline should...
CLA strongly recommends that anCLA strongly recommends that an
automatic termination ofautomatic termination of
membership...
This provision will automatically,This provision will automatically,
and without any further action fromand without any fu...
CLA recommends against placingCLA recommends against placing
members in an “inactive” or “non-members in an “inactive” or ...
For instance, may those “inactive”For instance, may those “inactive”
or “non-resident” members vote?or “non-resident” memb...
When they are present in a meetingWhen they are present in a meeting
in which a vote is taken, are theyin which a vote is ...
It has been our experience that inIt has been our experience that in
most cases in which there ismost cases in which there...
We should know that someone whoWe should know that someone who
has not attended any service inhas not attended any service...
Providing for an automaticProviding for an automatic
termination clears up any confusiontermination clears up any confusio...
You may exclude from this terminationYou may exclude from this termination
provision such persons as collegeprovision such...
The automatic termination of membersThe automatic termination of members
who flaunt their sexual immoralitywho flaunt thei...
The automatic termination for "going toThe automatic termination for "going to
law against a brother" provides thelaw agai...
5 Articles Often Left Incomplete5 Articles Often Left Incomplete
1.1. DisputesDisputes
Make sure that your bylawsMake sure that your bylaws
provide that any and all disputesprovide that a...
We recommend that you not use justWe recommend that you not use just
any secular arbitration procedure.any secular arbitra...
Instead, be sure that the dispute isInstead, be sure that the dispute is
handled in a Scriptural manner.handled in a Scrip...
2. Procedures2. Procedures
Specify the procedures for selecting andSpecify the procedures for selecting and
removing the p...
If the church prefers to use other titles,If the church prefers to use other titles,
such as pastor or deacon, the bylawss...
For example, the pastor is generallyFor example, the pastor is generally
stated to be the president of thestated to be the...
The bylaws should also address theThe bylaws should also address the
procedures for nominating and electingprocedures for ...
3. Leadership3. Leadership
Articles should be included on churchArticles should be included on church
officers, their elig...
Detail what the powers andDetail what the powers and
duties are given to each of theduties are given to each of the
office...
What do you see as the Biblical offices ofWhat do you see as the Biblical offices of
the church.the church.
The bylaws should set forth theThe bylaws should set forth the
qualifications for a candidate forqualifications for a cand...
Ordination is not a legal matter, but rather aOrdination is not a legal matter, but rather a
ecclesiastical matter.ecclesi...
4. Meetings4. Meetings
Include how often and where meetings willInclude how often and where meetings will
be held, how spe...
This section should also define theThis section should also define the
ministry’s fiscal year.ministry’s fiscal year.
It is important that church documentsIt is important that church documents
carefully spell out the rules and procedurescar...
CLA strongly discourages the use ofCLA strongly discourages the use of
Robert’s Rules of Order to govern meetingsRobert’s ...
Entire college courses are taught on theEntire college courses are taught on the
procedures contained in Robert’s Rules of...
It is preferable to create your own workableIt is preferable to create your own workable
rules based upon the Bible and co...
Most organizations do not properly complyMost organizations do not properly comply
with the Rules of Order anyway.with the...
5. Personal Liability for Organizational5. Personal Liability for Organizational
Activities (see neglected area)Activities...
3 Articles Usually Neglected3 Articles Usually Neglected
Article on IndemnificationArticle on Indemnification
Indemnification is an important protection forIndemnification is an important protection for
those in authority in the chu...
It assures the officers that the church isIt assures the officers that the church is
willing to back their good-faith deci...
Indemnification simply means that theIndemnification simply means that the
church is able to pay for the defense or anychu...
We suggest that indemnification be subjectWe suggest that indemnification be subject
to the approval of the deacons or oth...
The church may decide to purchase anThe church may decide to purchase an
insurance policy to pay for the defense ofinsuran...
Second Article Usually Neglected is anSecond Article Usually Neglected is an
Article on Designated ContributionsArticle on...
Contributions that are designated by theContributions that are designated by the
contributor for a specific purpose impose...
For example, if a designation is made for theFor example, if a designation is made for the
building fund, the amount desig...
If the church receives aIf the church receives a
designated contribution, theredesignated contribution, there
are only thr...
To avoid being required to ask the donor forTo avoid being required to ask the donor for
permission to use the funds for a...
Article on Binding ArbitrationArticle on Binding Arbitration
CLA recommends that the pastor andCLA recommends that the pas...
They recommend that those arbitrationThey recommend that those arbitration
procedures be adopted as soon as possible.proce...
Since these procedures areSince these procedures are notnot a part of thea part of the
bylaws, they arebylaws, they are no...
These procedures should be attached to theThese procedures should be attached to the
minutes of the board of deacons meeti...
Closing TipsClosing Tips
• Regularly review your ConstitutionRegularly review your Constitution
and Bylawsand Bylaws
• Eva...
Finally, The Ecclesiastical AbstentionFinally, The Ecclesiastical Abstention
Doctrine prevents civil courts fromDoctrine p...
Whenever a dispute involves questions ofWhenever a dispute involves questions of
religious doctrine or organization orreli...
Because of this doctrine, courts will notBecause of this doctrine, courts will not
entangle themselves or unduly interfere...
Churches therefore have extensive legalChurches therefore have extensive legal
leeway and must use this autonomy wiselylee...
8 Legal Concerns for8 Legal Concerns for
Constitutions & BylawsConstitutions & Bylaws
Presented byPresented by
Dr. Bobby G...
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8 Legal Concerns For Constitutions & Bylaws

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A Workshop on the 8 critical areas of concern for church constitutions and bylaws.

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8 Legal Concerns For Constitutions & Bylaws

  1. 1. 8 Legal Concerns for8 Legal Concerns for Constitutions & BylawsConstitutions & Bylaws Presented byPresented by Dr. Bobby GilstrapDr. Bobby Gilstrap Director of MissionsDirector of Missions Huron & Southeastern Baptist AssociationsHuron & Southeastern Baptist Associations MichiganMichigan In Consultation with theIn Consultation with the
  2. 2. Session OverviewSession Overview • 1111 Most Common ReasonsMost Common Reasons People Sue ChurchesPeople Sue Churches • 3 Articles Essential to Include3 Articles Essential to Include • 5 Articles Often Left5 Articles Often Left IncompleteIncomplete • PLUS 3 Articles UsuallyPLUS 3 Articles Usually NeglectedNeglected
  3. 3. Why should a church even care ifWhy should a church even care if their Constitution & Bylaws is up totheir Constitution & Bylaws is up to date?date? If sued, courts are likely to imposeIf sued, courts are likely to impose liability if the church is not followingliability if the church is not following the proper procedures as stated inthe proper procedures as stated in the church’s Constitution andthe church’s Constitution and Bylaws.Bylaws.
  4. 4. 1. In the event of a lawsuit, where a1. In the event of a lawsuit, where a church’s Constitution and Bylawschurch’s Constitution and Bylaws are inadequate, the court willare inadequate, the court will impose state statutory provisionsimpose state statutory provisions on the church. The church will thenon the church. The church will then be held to state standards ratherbe held to state standards rather than the church’s own standardsthan the church’s own standards which the church has the legalwhich the church has the legal authority to set but has failed to doauthority to set but has failed to do so.so.
  5. 5. 2. Because churches are being2. Because churches are being sued, or threatened by lawsuitssued, or threatened by lawsuits in increasing numbers.in increasing numbers. Proper and careful drafting ofProper and careful drafting of the church’s Constitution andthe church’s Constitution and Bylaws is imperative to protectBylaws is imperative to protect the church from legal liability.the church from legal liability.
  6. 6. While it is impossible to preventWhile it is impossible to prevent someone from suing a church,someone from suing a church, the Christian Law Associationthe Christian Law Association recommends effective languagerecommends effective language that will protect the church asthat will protect the church as much as possible from potentialmuch as possible from potential legal liability.legal liability.
  7. 7. DISCLAIMER:DISCLAIMER: This workshop hasThis workshop has been prepared in consultation with thebeen prepared in consultation with the Christian Law Association (or CLA).Christian Law Association (or CLA). This information workshop should notThis information workshop should not be misconstrued as legal counsel.be misconstrued as legal counsel. Workshop participants are encouragedWorkshop participants are encouraged to consult directly with CLA or anotherto consult directly with CLA or another attorney with specific legal questions.attorney with specific legal questions. This brief workshop is only addressingThis brief workshop is only addressing a limited number of issues in ana limited number of issues in an overview format.overview format.
  8. 8. Understanding that you need moreUnderstanding that you need more than a good insurance policy, whatthan a good insurance policy, what are the 8 Legal Concerns forare the 8 Legal Concerns for Constitutions and Bylaws?Constitutions and Bylaws? • StructureStructure • Statement ofStatement of FaithFaith • MembershipMembership • LeadershipLeadership • MeetingsMeetings • Personal LiabilityPersonal Liability for Organizationalfor Organizational ActivitiesActivities • DisputesDisputes • ProceduresProcedures
  9. 9. Every church needs an updatedEvery church needs an updated Constitution and bylaws. ThisConstitution and bylaws. This governing document sets forth whatgoverning document sets forth what the church has agreed on so it canthe church has agreed on so it can run effectively.run effectively.
  10. 10. If your Constitution and Bylaws hasIf your Constitution and Bylaws has not been reviewed and updatednot been reviewed and updated within the past two or three years,within the past two or three years, it’s time to give it a good look.it’s time to give it a good look.
  11. 11. In most instances, when a church isIn most instances, when a church is taken to court, the court will look totaken to court, the court will look to the organization’s bylaws tothe organization’s bylaws to determine whether that church anddetermine whether that church and it’s leaders acted within the scopeit’s leaders acted within the scope of their duties.of their duties.
  12. 12. For legal purposes, the set ofFor legal purposes, the set of bylaws is the organization’s mostbylaws is the organization’s most important document because it setsimportant document because it sets out in detail the internal workings ofout in detail the internal workings of the church.the church.
  13. 13. It is vital that this document beIt is vital that this document be prepared properly and that itprepared properly and that it include all the protections availableinclude all the protections available for the church to safeguard itfor the church to safeguard it against many of the lawsuits thatagainst many of the lawsuits that are being filed against religiousare being filed against religious organizations today.organizations today.
  14. 14. Courts generally hold that aCourts generally hold that a member who joins a church withmember who joins a church with knowledge of the bylaws hasknowledge of the bylaws has agreed to be bound by the bylawsagreed to be bound by the bylaws —even to those with which they—even to those with which they may disagree.may disagree.
  15. 15. So why do peopleSo why do people sue churches?sue churches?
  16. 16. The 11 Most Common ReasonsThe 11 Most Common Reasons People Sue ChurchesPeople Sue Churches 1.1. Negligence by generalNegligence by general publicpublic 2.2. Negligence byNegligence by congregation memberscongregation members and visitorsand visitors 3.3. Negligence (“AttractiveNegligence (“Attractive Nuisances toNuisances to Children”)Children”) 4.4. Negligent supervisionNegligent supervision of Employeesof Employees 5.5. Sexual HarassmentSexual Harassment 6.6. DefamationDefamation 7.7. Apparent AuthorityApparent Authority 8.8. Disputes over electionDisputes over election of the Pastorof the Pastor 9.9. Disclosure ofDisclosure of ConfidentialConfidential informationinformation 10.10.Unfair actsUnfair acts 11.11.Failure to Report ChildFailure to Report Child Abuse or neglectAbuse or neglect
  17. 17. You may say:You may say: “But, we have“But, we have insurance. That will beinsurance. That will be enough.”enough.” TRUE or FALSE?TRUE or FALSE?
  18. 18. GENERAL PRINCIPLESGENERAL PRINCIPLES The church bylaws (and all of theirThe church bylaws (and all of their amendments) must be kept in aamendments) must be kept in a church office file that is readilychurch office file that is readily accessible.accessible.
  19. 19. Readily accessibleReadily accessible means that themeans that the church bylaws is not stored in anchurch bylaws is not stored in an attic, a basement, or away from theattic, a basement, or away from the premises of the church. If thepremises of the church. If the bylaws cannot be placed on thebylaws cannot be placed on the pastor’s desk within five minutes ofpastor’s desk within five minutes of the request, the document is notthe request, the document is not readily accessible.readily accessible.
  20. 20. The members that are to be subjectThe members that are to be subject to the bylaws should either beto the bylaws should either be given their own copy or should begiven their own copy or should be given notice as to where they maygiven notice as to where they may review the bylaws.review the bylaws.
  21. 21. A court will not hold a member toA court will not hold a member to bylaws of which he had no notice.bylaws of which he had no notice. Each state has enacted lawsEach state has enacted laws establishing rules by whichestablishing rules by which ministries incorporated as nonprofitministries incorporated as nonprofit corporations will be governed if itcorporations will be governed if it has no bylaws or if the bylaws dohas no bylaws or if the bylaws do not speak to a specific issue.not speak to a specific issue.
  22. 22. It is important that your church atIt is important that your church at least consider all the issues I amleast consider all the issues I am presenting in this workshop.presenting in this workshop. While a church may omit provisionsWhile a church may omit provisions that do not apply to it, thethat do not apply to it, the organization will need to include theorganization will need to include the majority of provisions we aremajority of provisions we are discussing to avoid having a courtdiscussing to avoid having a court subject the church to the state’ssubject the church to the state’s nonprofit corporation rules.nonprofit corporation rules.
  23. 23. For instance, if the church bylawsFor instance, if the church bylaws fail to provide for the amount andfail to provide for the amount and method of notice to call anmethod of notice to call an organization meeting, and theorganization meeting, and the amount and method of noticeamount and method of notice becomes an issue for thebecomes an issue for the organization, a court will use theorganization, a court will use the state’s provisions to establish thestate’s provisions to establish the amount and method of a meetingamount and method of a meeting notice.notice.
  24. 24. The organization may set whateverThe organization may set whatever operational rules it wishes, but itsoperational rules it wishes, but its failure to do so would force a courtfailure to do so would force a court to impose the state’s rules as ato impose the state’s rules as a default position in the event of adefault position in the event of a dispute that ends in courtdispute that ends in court proceedings.proceedings.
  25. 25. Review 8 Areas of ConcernReview 8 Areas of Concern
  26. 26. 3 Articles Essential to Include3 Articles Essential to Include 1. Structure1. Structure Be sure that your structure isBe sure that your structure is clearly detailed in your document.clearly detailed in your document.
  27. 27. Committees should be flexible inCommittees should be flexible in the bylaws.the bylaws. The church should not list allThe church should not list all committees in the bylaws, butcommittees in the bylaws, but should retain the authority to createshould retain the authority to create and dissolve committees as itand dissolve committees as it chooses.chooses.
  28. 28. Most committees are temporaryMost committees are temporary and should be treated in the bylawsand should be treated in the bylaws as such.as such.
  29. 29. 2. Statement of Faith2. Statement of Faith Be sure to carefully draft yourBe sure to carefully draft your church’s Constitution and bylaws tochurch’s Constitution and bylaws to clearly reflect your church’s positionclearly reflect your church’s position on matters of faith, practice andon matters of faith, practice and procedure.procedure.
  30. 30. CLA strongly recommends thatCLA strongly recommends that your church Constitution andyour church Constitution and Bylaws include your church’sBylaws include your church’s position on important Biblical andposition on important Biblical and doctrinal issues that are underdoctrinal issues that are under attack by the culture at large.attack by the culture at large.
  31. 31. By doing this, you will put yourBy doing this, you will put your members and prospectivemembers and prospective members on notice of the church’smembers on notice of the church’s official position on these issues.official position on these issues.
  32. 32. QUESTION: Is listing that yourQUESTION: Is listing that your church adheres to the Baptist Faithchurch adheres to the Baptist Faith and Message or some otherand Message or some other doctrinal statement enough?doctrinal statement enough?
  33. 33. Yes and No.Yes and No. Yes, in the areas that the BF&MYes, in the areas that the BF&M addresses, it is probably sufficient.addresses, it is probably sufficient.
  34. 34. But, NO in the areas it does notBut, NO in the areas it does not cover. Either list each doctrinalcover. Either list each doctrinal position in your document orposition in your document or reference the BF&M then, detailreference the BF&M then, detail additional doctrinal positions of theadditional doctrinal positions of the church.church.
  35. 35. Your statement of faith should addressYour statement of faith should address current issues in our culture that arecurrent issues in our culture that are ripe for dispute such asripe for dispute such as • HomosexualityHomosexuality • Gender modificationGender modification • Divorce and remarriageDivorce and remarriage • AbortionAbortion • EuthanasiaEuthanasia • Embryonic stem cell researchEmbryonic stem cell research • The position of women in the churchThe position of women in the church • Our attitude toward non-Christians with whomOur attitude toward non-Christians with whom we disagree, andwe disagree, and • Lawsuits between believersLawsuits between believers
  36. 36. The church bylaws should stateThe church bylaws should state what version of the Bible iswhat version of the Bible is acceptable for the church, it that isacceptable for the church, it that is an important issue.an important issue.
  37. 37. These are “hot-button” issues thatThese are “hot-button” issues that have a higher potential of puttinghave a higher potential of putting the church in legal jeopardy.the church in legal jeopardy.
  38. 38. 3. Membership3. Membership The church bylaws should carefullyThe church bylaws should carefully specify the qualifications forspecify the qualifications for membership.membership.
  39. 39. Most churches will want theMost churches will want the members to be believers whomembers to be believers who agree with their Statement of Faithagree with their Statement of Faith and the Church Covenant and whoand the Church Covenant and who have been baptized afterhave been baptized after conversion.conversion.
  40. 40. The church bylaws shouldThe church bylaws should specifically set forth the proceduresspecifically set forth the procedures for admission to churchfor admission to church membership.membership.
  41. 41. • For example, may members be admittedFor example, may members be admitted at any service of the church?at any service of the church? • Does the church vote on the admission ofDoes the church vote on the admission of members?members? • Is it merely a voice vote?Is it merely a voice vote? • Is the membership subject to theIs the membership subject to the prospective member completing aprospective member completing a membership class or signing a statementmembership class or signing a statement of agreement to the Statement of Faithof agreement to the Statement of Faith and the Church Covenant?and the Church Covenant? • Do the church bylaws specifically setDo the church bylaws specifically set forth the basis for the termination offorth the basis for the termination of church membership?church membership?
  42. 42. Privileges of membership shouldPrivileges of membership should include that only members at leastinclude that only members at least eighteen years of age, or of legaleighteen years of age, or of legal voting age, may vote.voting age, may vote.
  43. 43. Only those who are physicallyOnly those who are physically present at a properly calledpresent at a properly called meeting of the church are entitledmeeting of the church are entitled to vote.to vote.
  44. 44. There should be no proxy orThere should be no proxy or absentee voting.absentee voting.
  45. 45. The church bylaws should set forthThe church bylaws should set forth any limitations on a member’s rightany limitations on a member’s right to inspect church records. CLAto inspect church records. CLA recommends that you minimize therecommends that you minimize the access a member can have toaccess a member can have to church records.church records.
  46. 46. Imagine the impact and cost if anImagine the impact and cost if an angry member demands that theangry member demands that the church provide records from threechurch provide records from three to five years in the past.to five years in the past. In some states, members have thisIn some states, members have this right unless the bylaws restrictright unless the bylaws restrict members’ access to records.members’ access to records.
  47. 47. The church bylaws need to stateThe church bylaws need to state the discipline process that a churchthe discipline process that a church will follow in dealing with an erringwill follow in dealing with an erring member.member.
  48. 48. It is not sufficient merely to provideIt is not sufficient merely to provide the Scripture references. The stepsthe Scripture references. The steps should be stated specifically asshould be stated specifically as understood by your church.understood by your church.
  49. 49. In any church discipline situationIn any church discipline situation this outline should be followed tothis outline should be followed to the letter.the letter.
  50. 50. CLA strongly recommends that anCLA strongly recommends that an automatic termination ofautomatic termination of membership for nonattendance bemembership for nonattendance be included in the bylaws.included in the bylaws.
  51. 51. This provision will automatically,This provision will automatically, and without any further action fromand without any further action from anyone, remove from the churchanyone, remove from the church membership rolls any person whomembership rolls any person who has not attended a regular churchhas not attended a regular church service in the amount of timeservice in the amount of time established by the church. Ideally,established by the church. Ideally, that period of time should be lessthat period of time should be less than a year.than a year.
  52. 52. CLA recommends against placingCLA recommends against placing members in an “inactive” or “non-members in an “inactive” or “non- resident” membership status. Thisresident” membership status. This is a problem because it is a vagueis a problem because it is a vague status.status.
  53. 53. For instance, may those “inactive”For instance, may those “inactive” or “non-resident” members vote?or “non-resident” members vote? If not, may they attend membersIf not, may they attend members only meetings?only meetings? If so, may they have a say on theIf so, may they have a say on the issue at hand?issue at hand?
  54. 54. When they are present in a meetingWhen they are present in a meeting in which a vote is taken, are theyin which a vote is taken, are they counted for purposes ofcounted for purposes of determining whether a quorum isdetermining whether a quorum is present?present?
  55. 55. It has been our experience that inIt has been our experience that in most cases in which there ismost cases in which there is internal church dissension,internal church dissension, members who have not attendedmembers who have not attended for months appear and expect tofor months appear and expect to have a say and/or vote in thehave a say and/or vote in the matter.matter.
  56. 56. We should know that someone whoWe should know that someone who has not attended any service inhas not attended any service in several months is upset atseveral months is upset at something.something.
  57. 57. Providing for an automaticProviding for an automatic termination clears up any confusiontermination clears up any confusion as to who is eligible to vote, attendas to who is eligible to vote, attend members meetings, count formembers meetings, count for quorum purposes, or have a say inquorum purposes, or have a say in a member’s meeting.a member’s meeting.
  58. 58. You may exclude from this terminationYou may exclude from this termination provision such persons as collegeprovision such persons as college students, military personnel, shut-ins,students, military personnel, shut-ins, missionaries, evangelists or others whomissionaries, evangelists or others who are legitimately unable to regularlyare legitimately unable to regularly attend services.attend services.
  59. 59. The automatic termination of membersThe automatic termination of members who flaunt their sexual immoralitywho flaunt their sexual immorality spares the church the shame of havingspares the church the shame of having to "speak of those things which areto "speak of those things which are done of them in secret" for disciplinedone of them in secret" for discipline purposes.purposes.
  60. 60. The automatic termination for "going toThe automatic termination for "going to law against a brother" provides thelaw against a brother" provides the church with protection against having tochurch with protection against having to retain as a member an individual who isretain as a member an individual who is willing to harm the church by taking it towilling to harm the church by taking it to court. Because this provision iscourt. Because this provision is automatic, it avoids the charge ofautomatic, it avoids the charge of retaliation.retaliation.
  61. 61. 5 Articles Often Left Incomplete5 Articles Often Left Incomplete
  62. 62. 1.1. DisputesDisputes Make sure that your bylawsMake sure that your bylaws provide that any and all disputesprovide that any and all disputes between a church member andbetween a church member and the church cannot be litigated inthe church cannot be litigated in the civil courts as this is Biblicallythe civil courts as this is Biblically forbidden, but, if such a disputeforbidden, but, if such a dispute does arise, that the matter woulddoes arise, that the matter would be arbitrated in a Biblically basedbe arbitrated in a Biblically based Christian manner.Christian manner.
  63. 63. We recommend that you not use justWe recommend that you not use just any secular arbitration procedure.any secular arbitration procedure.
  64. 64. Instead, be sure that the dispute isInstead, be sure that the dispute is handled in a Scriptural manner.handled in a Scriptural manner.
  65. 65. 2. Procedures2. Procedures Specify the procedures for selecting andSpecify the procedures for selecting and removing the pastor and deacons.removing the pastor and deacons. At a minimum, the church corporation needsAt a minimum, the church corporation needs to have a president, a secretary, and ato have a president, a secretary, and a treasurer.treasurer.
  66. 66. If the church prefers to use other titles,If the church prefers to use other titles, such as pastor or deacon, the bylawssuch as pastor or deacon, the bylaws need to identify the corporate functionneed to identify the corporate function of the ministry name.of the ministry name.
  67. 67. For example, the pastor is generallyFor example, the pastor is generally stated to be the president of thestated to be the president of the corporation.corporation. Most states require a nonprofitMost states require a nonprofit corporation to have at least threecorporation to have at least three directors (or trustees).directors (or trustees).
  68. 68. The bylaws should also address theThe bylaws should also address the procedures for nominating and electingprocedures for nominating and electing officers, the duties and terms of serviceofficers, the duties and terms of service for each officer, the procedure forfor each officer, the procedure for removing an officer before the end ofremoving an officer before the end of his elected term, and the procedure forhis elected term, and the procedure for filling a vacancy in an office.filling a vacancy in an office.
  69. 69. 3. Leadership3. Leadership Articles should be included on churchArticles should be included on church officers, their eligibity for office, termsofficers, their eligibity for office, terms of office, and their election.of office, and their election.
  70. 70. Detail what the powers andDetail what the powers and duties are given to each of theduties are given to each of the officers.officers.
  71. 71. What do you see as the Biblical offices ofWhat do you see as the Biblical offices of the church.the church.
  72. 72. The bylaws should set forth theThe bylaws should set forth the qualifications for a candidate forqualifications for a candidate for licensing or ordination and shouldlicensing or ordination and should direct who will determine whether thedirect who will determine whether the candidate should be presented to thecandidate should be presented to the church for licensing or ordination.church for licensing or ordination.
  73. 73. Ordination is not a legal matter, but rather aOrdination is not a legal matter, but rather a ecclesiastical matter.ecclesiastical matter.
  74. 74. 4. Meetings4. Meetings Include how often and where meetings willInclude how often and where meetings will be held, how special meetings may bebe held, how special meetings may be called, and the procedures for notifyingcalled, and the procedures for notifying members of annual, regular, and specialmembers of annual, regular, and special meetings.meetings.
  75. 75. This section should also define theThis section should also define the ministry’s fiscal year.ministry’s fiscal year.
  76. 76. It is important that church documentsIt is important that church documents carefully spell out the rules and procedurescarefully spell out the rules and procedures for all church business meetings, includingfor all church business meetings, including who is to preside at the meeting and thewho is to preside at the meeting and the number of eligible voters required for anumber of eligible voters required for a quorum.quorum.
  77. 77. CLA strongly discourages the use ofCLA strongly discourages the use of Robert’s Rules of Order to govern meetingsRobert’s Rules of Order to govern meetings because they are too specific and inflexible.because they are too specific and inflexible.
  78. 78. Entire college courses are taught on theEntire college courses are taught on the procedures contained in Robert’s Rules ofprocedures contained in Robert’s Rules of Order. They are familiar with court cases inOrder. They are familiar with court cases in which the issue is whether the organizationwhich the issue is whether the organization complied with correct procedure as outlinedcomplied with correct procedure as outlined in Robert’s Rules of Order.in Robert’s Rules of Order.
  79. 79. It is preferable to create your own workableIt is preferable to create your own workable rules based upon the Bible and commonrules based upon the Bible and common sense.sense.
  80. 80. Most organizations do not properly complyMost organizations do not properly comply with the Rules of Order anyway.with the Rules of Order anyway.
  81. 81. 5. Personal Liability for Organizational5. Personal Liability for Organizational Activities (see neglected area)Activities (see neglected area)
  82. 82. 3 Articles Usually Neglected3 Articles Usually Neglected
  83. 83. Article on IndemnificationArticle on Indemnification
  84. 84. Indemnification is an important protection forIndemnification is an important protection for those in authority in the church.those in authority in the church.
  85. 85. It assures the officers that the church isIt assures the officers that the church is willing to back their good-faith decisions onwilling to back their good-faith decisions on behalf of the church.behalf of the church.
  86. 86. Indemnification simply means that theIndemnification simply means that the church is able to pay for the defense or anychurch is able to pay for the defense or any damage that occurs when an officer makesdamage that occurs when an officer makes a decision for which he is later sued.a decision for which he is later sued.
  87. 87. We suggest that indemnification be subjectWe suggest that indemnification be subject to the approval of the deacons or otherto the approval of the deacons or other authority so that the church has the option ofauthority so that the church has the option of indemnification.indemnification.
  88. 88. The church may decide to purchase anThe church may decide to purchase an insurance policy to pay for the defense ofinsurance policy to pay for the defense of church staff members or volunteers and forchurch staff members or volunteers and for the payment of any judgment against him forthe payment of any judgment against him for his actions on behalf of the church.his actions on behalf of the church.
  89. 89. Second Article Usually Neglected is anSecond Article Usually Neglected is an Article on Designated ContributionsArticle on Designated Contributions
  90. 90. Contributions that are designated by theContributions that are designated by the contributor for a specific purpose impose acontributor for a specific purpose impose a “trust” obligation upon the recipient church“trust” obligation upon the recipient church to use the designated funds for that purposeto use the designated funds for that purpose only.only.
  91. 91. For example, if a designation is made for theFor example, if a designation is made for the building fund, the amount designated mustbuilding fund, the amount designated must be used solely for the purpose of thatbe used solely for the purpose of that building fund.building fund.
  92. 92. If the church receives aIf the church receives a designated contribution, theredesignated contribution, there are only three things the churchare only three things the church may legally do with the money:may legally do with the money: 1.1. Use it for the purposeUse it for the purpose designateddesignated 2.2. Return the gift to the donorReturn the gift to the donor,, oror 3.3. HHave the donor change orave the donor change or remove the designation.remove the designation.
  93. 93. To avoid being required to ask the donor forTo avoid being required to ask the donor for permission to use the funds for a purposepermission to use the funds for a purpose other than the designated purpose, theother than the designated purpose, the bylaws should contain a specific provisionbylaws should contain a specific provision making gift designation advisory only.making gift designation advisory only.
  94. 94. Article on Binding ArbitrationArticle on Binding Arbitration CLA recommends that the pastor andCLA recommends that the pastor and deacons (or other group) adopt proceduresdeacons (or other group) adopt procedures for arbitration.for arbitration.
  95. 95. They recommend that those arbitrationThey recommend that those arbitration procedures be adopted as soon as possible.procedures be adopted as soon as possible.
  96. 96. Since these procedures areSince these procedures are notnot a part of thea part of the bylaws, they arebylaws, they are notnot required to be votedrequired to be voted upon by the church members and shouldupon by the church members and should notnot be included in the church bylaws.be included in the church bylaws.
  97. 97. These procedures should be attached to theThese procedures should be attached to the minutes of the board of deacons meeting inminutes of the board of deacons meeting in which they are adopted, and should be keptwhich they are adopted, and should be kept in a safe place with the other importantin a safe place with the other important church documents.church documents.
  98. 98. Closing TipsClosing Tips • Regularly review your ConstitutionRegularly review your Constitution and Bylawsand Bylaws • Evaluate your activitiesEvaluate your activities • Keep accurate records of all incidentsKeep accurate records of all incidents that occurthat occur • Scan and maintain records onScan and maintain records on removable media such as writableremovable media such as writable CD’sCD’s
  99. 99. Finally, The Ecclesiastical AbstentionFinally, The Ecclesiastical Abstention Doctrine prevents civil courts fromDoctrine prevents civil courts from determining the correctness of andetermining the correctness of an interpretation of a Biblical text or someinterpretation of a Biblical text or some decision relating to government of thedecision relating to government of the religious group.religious group.
  100. 100. Whenever a dispute involves questions ofWhenever a dispute involves questions of religious doctrine or organization orreligious doctrine or organization or government of the church, the court losesgovernment of the church, the court loses jurisdiction.jurisdiction.
  101. 101. Because of this doctrine, courts will notBecause of this doctrine, courts will not entangle themselves or unduly interfere withentangle themselves or unduly interfere with the affairs of churches except to determinethe affairs of churches except to determine whether the church has adhered to its ownwhether the church has adhered to its own provisions in its Constitution and Bylaws.provisions in its Constitution and Bylaws.
  102. 102. Churches therefore have extensive legalChurches therefore have extensive legal leeway and must use this autonomy wiselyleeway and must use this autonomy wisely by drafting a clear and unambiguousby drafting a clear and unambiguous Constitution and Bylaws provisions that willConstitution and Bylaws provisions that will adequately protect the church’sadequately protect the church’s Ecclesiastical interests and its “sincerelyEcclesiastical interests and its “sincerely held” religious beliefs as protected under theheld” religious beliefs as protected under the U.S. Constitution’s provisions regarding FirstU.S. Constitution’s provisions regarding First Amendment Freedom of Religion rights andAmendment Freedom of Religion rights and privileges.privileges.
  103. 103. 8 Legal Concerns for8 Legal Concerns for Constitutions & BylawsConstitutions & Bylaws Presented byPresented by Dr. Bobby GilstrapDr. Bobby Gilstrap Director of MissionsDirector of Missions Huron & Southeastern Baptist AssociationsHuron & Southeastern Baptist Associations MichiganMichigan In Consultation with theIn Consultation with the
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