Congregational churches are governed by leadership typically elected by the members. In some, the clergy, too, are hired by congregational votes rather than by elected officers. Most have boards of elected leaders that set policy. These boards bear names consistent with the doctrinal precepts of the congregation, e.g., “Elders,” “Deacons,” “Church Board.” The powers of the church board are typically set forth in the church governance documents, usually a constitution and bylaws.
In Howard v Heritage Fellowship Church, Slip Op. (VA. 19th Cir. Fairfax 2021), the Court overruled a Motion to Dismiss by the church. The Plaintiffs were church members that alleged that the church board revised the membership roll a second time, purging over three hundred from the membership roll, after the unsuccessful election of a senior pastor to convert it to a successful election by 2/3rds of the voting members. The Plaintiffs alleged that the church board’s actions violated the church governance documents. The Court held that a civil lawsuit regarding whether the actions of the church board were in violation of the governance documents could be decided by application of Neutral Principles of Law. The Court held no inquiry into ecclesiastical issues was required. The Court held the Ministerial Exception did not apply because there was no issue regarding the competence of the candidate for senior pastor but only a question as to whether the post-election recount after a post–election second revision of the membership rolls violated the governance documents. Also, the Court held the Plaintiff’s request for appointment of a receiver to protect assets until the senior pastor’s position was filled also did not require ecclesiastic inquiries.
For congregational churches that are governed by congregational voting, the membership rolls are important but rarely well maintained. Indeed, as the reported case indicated, the church board’s first count was off by over three hundred which the church board attempted to remedy after the failed election. Attendance is usually the test of membership and attendance records are not well maintained. Attempting to track attendance at every worship service, year in and year out, requires a financial commitment to staff most churches are unwilling to make. Volunteers come and go, too. At best, attendance records during the month before a congregational vote might be sufficiently reliable from which to derive a membership roll. The other problem with congregational votes are super majority requirements. Inflated membership rolls make such votes less than representative.
Most local churches are separately incorporated. Each denomination exercises a unique level of control and supervision of their local churches that ranges from virtually none to substantial oversight. In those denominations that exercise substantial oversight, liability for the actions of the local church or parachurch organization might exist if the denomination was deliberately indifferent to those actions.
In Buettner-Haratsoe v Baltimore Lutheran High School Association, et al, Memorandum Opinion (D. Maryland, 2021) the federal trial court denied motions to dismiss allegations the church school and the denominational supervisory body failed or refused to control sexual harassment and abuse of minor female students by other students on campus as well as off. Social media, of course, was a major culprit but sexual assault and battery was alleged as well. The culture of the high school was characterized by the Plaintiffs as “hyper-sexualized.” One male student was prosecuted and pled out. The denomination sent a crisis management team to the school to try to address the allegations. The Plaintiffs alleged the crisis management team’s actual agenda was to squelch faculty complaints and the Plaintiffs’ allegations rather than take any action to remediate the situation. The trial court held “deliberate indifference,” an element of federal statutory discrimination claims, in this instance Title IX, sufficiently alleged against both the local church school and the denomination. The trial court held that none of the allegations required inquiry into any “ecclesiastical controversy.” The case will proceed through discovery and possibly future motions for summary judgment or trial.
If the allegations had sufficient credibility, due to numerosity if nothing else, to warrant dispatch of a special team to conduct onsite situational evaluations, the denomination should have dispatched qualified investigators, too. Qualified investigators should have included, for example, retired or former law enforcement officers and attorneys qualified to conduct such investigations. Each complaining student should have been interviewed on the record. Each faculty member that claimed to observe anything or to be the recipient of a complaint from one of the female students should have been interviewed on the record. Some of the complaints might have triggered state mandatory child abuse reporting statutes. Reasonable actions should have been designed based on the investigations and may have included student disciplinary actions as well as employee disciplinary actions. Local churches and denominational supervisory bodies that fail to make a record of duly diligent inquiry risk more than is risked by making a wrong decision about what to do about it.
Churches that do not maintain valid membership rolls and maintain current bylaws risk disputes over control when factions in a church become intractable. Courts faced with such disputes will decide them using Neutral Principles of Law, such as corporate statutes, and ignore ecclesiastical concerns that are not incorporated into a governing document.
In Cohen v Berliner, 2021 NY Slip Op 30682 (U) (Kings County, NY, 2021), the membership roll was lost and no bylaws had ever been adopted. Thus, there was no procedure for determining who the voting members were. The faction apparently in the majority finally petitioned for a special meeting to elect governing board members. Under state law, it only took ten members to call a special meeting. The Court ordered an evidentiary hearing to see if among the 200 members allegedly signing a petition for special meeting there were ten actual members. If so, the Court would order, consistent with state statutes governing corporations, a special meeting to elect a governing board.
The basic principle set forth in the opening paragraph was confirmed by the reported case. Bylaws adopted by a church corporation should set forth the criteria for membership and the procedure for verification of the membership roll. Verification of the membership roll should be done every year and become a governing board tradition on or about the same date every year. The bylaws should also set forth the qualifications to hold every office and position, at least in general terms. Employment positions below the level of senior pastor or minister should be delegated to the governing board so that popularity contests do not become the norm for employment decisions. Whether to require submission of the employment or termination of the senior pastor or minister to a governing board is often a matter of church tradition and may for that reason, require a vote of the membership rather than just the board. In any event, the bylaws should specify the authority and process for hiring and terminating the senior pastor or minister consistent with the church tradition. Official copies of both the membership roll and the bylaws should be maintained not only at the church property but, in this day and age, in the cloud or otherwise off site. Amendments to membership rolls or bylaws should be done carefully and official copies maintained both on and off site.
Most churches incorporate and then appoint a board of directors (or a similar board using names deemed biblical, e.g., “deacons,” “elders,”) responsible for conducting church business. Some church governing documents, which may or may not be called a “constitution” or “bylaws,” do not expressly assign to the congregation’s official membership any other power than an annual vote to elect directors to vacancies created by term expiration. The authority to hire or terminate a pastor is often not expressly stated as that of the board or the congregation.
In Vaughn v Faith Bible Church, Slip Op. (MY App, 2020), the church board terminated the pastor. The pastor sued claiming that church board had to defer hiring and termination decisions to congregational meetings. The trial court entered judgment against the pastor and the appellate court affirmed. The governing documents were silent as to who had authority in the church to hire or terminate a pastor. The state statute governing corporations did not provide an exhaustive list of powers delegated to the corporate boards, and did not expressly mention hiring or firing as a power. The courts held that the statutory list of powers placed in the corporate board was not exhaustive so the corporate board would have the power to hire or fire absent a specific delegation in the governing documents.
Because congregational meetings and votes are unwieldy, only small churches tend to rely on congregational meetings or votes to determine most issues, including employment issues. In small churches, every family committed to the church is usually represented on the board in any event. In larger churches, the church board is usually the body responsible for day-to-day operations, including hiring and firing. Church governing documents should spell out which body has the authority to hire or fire a pastor. Other employees should be under the employment authority of the governing board, or the board and pastor, or controversy will plague the lowest staff position turnover. However, if the documents are silent, a church board created by the governing documents will likely have the authority by default.