Florida Court Overrules Pastor
By Raul Rivera
Today, I want to discuss a topic that I thoroughly cover in our conferences. That topic is the adding and removing of board members. In 2011, the pastor and another board member of a church in Florida removed four board members. The board members that were removed protested and made attempts to get restored to the board. However, after an extended period of time they filed a complaint in court. The trial court dismissed the case by stating that the "ecclesiastical abstention doctrine" prohibited the court from hearing such a case because it would entangle the court in "doctrinal and/or theological issues." Disagreeing with the trial court, the removed board members appealed to the Florida Court of Appeals, Third District.
The appeals court reversed the trial court's decision, stating that if the court can resolve the dispute "by applying neutral principles of law without inquiry into religious doctrine and without resolving religious controversy, the civil courts may adjudicate the dispute." Additionally, the court stated, "Because the church in the instant case had no bylaws governing the removal of board members . . ." state law overrides what procedures to follow. In this case, the state stepped into a church's affairs to dictate how board members can be added or removed. This is a problem that can be easily fixed by documenting removal procedures in the bylaws and making it a doctrinal issue.
What the church lacked
(For the sake of this discussion, I will not go into who was right or wrong in this case; there is a greater lesson to be learned here.) The dispute between the pastor and the four board members began in 2010 when he (along with another board member) removed the four board members, voting three new persons into the board in their place. The four board members sued in court, claiming that the pastor lacked authority to remove and appoint the board members because the bylaws did not outline a clear procedure for such. The pastor argued that the bylaws did not need to state a procedure because, as a religious corporation, he had acted for spiritual (ecclesiastical) reasons. He was under the impression that as the leader of a religious organization, he had the right to lead the organization in any way that he felt led of the Lord. He may have been correct in his thought process, but he lacked the documentation in his bylaws to support him. The court disagreed with his claims and presumptions, stating that state law requires the church to clearly document in the bylaws how it will govern itself.
How to properly add and remove board members
Adding and removing board members does not have to be an unpleasant process. Below is an outline of a process for adding and removing board members. First the church's articles of incorporation must state that the adding and removing of board members shall be described in the bylaws. Secondly, the bylaws must include appointment and removal clauses that make the process very clear.
1. Manner of appointment: Adding a board member is much easier than removing one. In many churches the pattern for board members serving is that they enter with joy and leave with anger. This usually complicates things down the road especially if the church does not have a clear entry and exit procedure for individuals who serve on the board. Not only is a removal clause necessary, but an appointment clause is just as important. While every church has a way of adding board members, documenting the process matters, otherwise state law will dictate. Below are the due diligence steps I recommend for adding someone to the board.
a. Identification. The president, pastor, or designated person identifies and invites those he/she wishes to serve on the board by calling them and asking them to serve on the board. A letter of invitation is then sent to each of the persons who agreed in principle with the idea of serving on the board.
b. Letter of invitation: On page 83 of the conference manual, I give you a sample letter of invitation to serve on the board. The letter of invitation explains to the recipient that his or her decision to serve on the board is not to be taken lightly and therefore, time spent in contemplation and prayer is prudent. It also welcomes the invitee to meet personally with the pastor to further discuss the matter.
c. Incoming board member statement: On page 84 of the conference manual, I give you an incoming board member statement that contains 5 clauses that each board member agrees to and signs before he or she gets appointed to the board. These include active participation requirements, abidance to the constitution and bylaws, voting powers, and more.
d. Presentation to the board: Now that you have gone through the three requirements above, each prospective board member is presented to the board by the president/pastor. The president/pastor also submits to the board the due diligence documents (letter of invitation and incoming board member statement) and officially nominates each prospect.
e. Voting in the prospective board member: Once the pastor has nominated the prospective board member and submitted the due diligence documents, the board (including the pastor) votes on each nominee. I recommend a process that restricts the board to vote only for those who have been nominated by the president. Following is a sample clause that can be added to the bylaws. "The senior pastor/president shall nominate, and the board of directors shall confirm directors to office."
2. Removing a board member: The incorporation laws of nearly all fifty states have procedures that are beneficial to a church/ministry on how and when a board member can be removed, yet many churches lack this knowledge. By clearly putting into writing the church's desired procedure for the removal of board members, a church can avoid a court stepping in to dictate what happens when a board member disagrees with his/her removal. As always, wisdom and patience should be exercised when removing a board member; however, an unyielding requirement must be that all board members live a life that is consistent with Scripture. Below is part of a sample removal clause.
Any board of directors' member may be removed from office with or without cause by a simple majority vote of the board of directors including the senior pastor/president's approval.
Notice how the clause has a condition that requires the senior pastor's vote. This prevents the removal of any board member unless the pastor is in agreement with it. Additionally, I recommend that you also include a clause that gives the president/pastor authority to remove a board member without a vote of the board if any of the reasons stated below deem it necessary:
a. Multiple absences to board meetings
b. Violation of the scriptural standard of living clause. This is a clause that makes the removal of a board member an ecclesiastical issue, which is an area that courts have consistently ruled is outside of their jurisdiction.
I had not thought of that
In my many conversations with pastors all across America, I often hear, "I had not thought of that." With all of the responsibilities that a pastor faces in leading a church, today's environment of ministry is too complicated to think of every possible legal pitfall. That is why startCHURCH exists. When the Lord put this ministry in my heart, I knew that one day it would touch the lives of thousands of pastors in all fifty states. I encourage you to take the content of this blog and make serious efforts to apply what you have learned. As always, we stand ready to serve you if you have questions; feel free to contact us at 770-638-3444. You will be happy that you did.