One of the biggest difficulties faced by a church board occurs when the pastor, congregation, or other board members decide that individual board members should be removed from the board. In many instances, there is no effective means of removing board members without costly litigation.
Recently, several church members sought to have two church board members removed because of perceived moral failures. The board anticipated a quick and smooth process. However, the church’s bylaws were not very clear about how to remove board members, and the targeted board members, perceiving a personal vendetta, fought back. Tension between the two factions escalated, and a lawsuit was filed with the hope of driving the entrenched board members into a quick resignation. But the opposite effect occurred. The targeted board members dug in and the matter went to trial. After two years of litigation, the church was hundreds of thousands of dollars in debt, and barely survived. While the facts behind the dispute were tragic, the costs of resolution were caused, to a great extent, by an inadequate process set forth in the church’s bylaws for removing board members.
To reduce risks of litigation like this, and the disruptions it causes to church life, churches should review state law where it is organized, as well as any church articles of incorporation and bylaws that address the process of removing a board member. If a church finds its governing documents do not provide a clear and appropriate means of removing a board member from the board, the church should consider adding a provision to the bylaws that best meets the expectations of the church. The right time to undertake the creation of such a provision is when the board is smoothly operating. It is often too late to address the problem after the need to remove a board member arises.
Why remove a board member?
The reasons for removing a board member vary widely. Sometimes health or career issues make it impossible for the board member to effectively fulfill his or her legal obligations to the board. A departure from the doctrines of the church or a failure to meet the lifestyle standards of the church also are reasons a board member should be removed. Some of the reasons are less clear, such as personality conflicts that prohibit the board from functioning well until the disruptive member is removed.
Fortunately, the issue of whether to remove a board member from the church board is a rare occurrence. Many churches have terms of office for board members that are one to three years, and churches are willing to endure the problem until the board member’s term ends. Some board members will resign if asked to do so by the pastor or board chair, avoiding an often embarrassing and painful removal process.
What does state law say?
When a board member refuses to resign, the process set forth in the governing documents of the church will determine the conditions under which removal takes place. If the church bylaws are silent on this, state business organization law may apply, often with surprising and undesirable results.
State laws regarding the removal of board members fall into three categories:
1. States that allow the removal of board members for any reason by church members or the board. In states that have these laws, it is generally possible for the body that put the board member in office to simply vote him or her out of office for any reason at all. For example, if the membership is authorized to elect board members, the membership can remove them. Similarly, if the board elected its own board members, it can remove board members for any reason as well.
This approach is the simplest one. It gives fewer grounds for lawsuits in disputes about the removal of board members. Because of this, it is the approach used in the Model Nonprofit Corporation Act, which is influential in many states.
2. States that allow removal of directors only for “cause.” “Cause” is a narrow category of reasons set by states to justify an organization’s removal of board members. These include very good reasons, such as being declared of unsound mind by a court, being convicted of a felony, failing to attend board meetings, and failing to meet the standards for membership. This list, while covering very important issues, is often too narrow for churches that have another compelling reason to remove a board member. For example, a church may wish to remove board members if they depart from church doctrines, engage in lifestyle choices that are opposed by the church, or exhibit attitudes out of step with the types of attitudes expected of church leaders. As important as these reasons for removing board members might seem, they would generally not be considered “cause” under secular corporate statutes.
3. States that give no guidance on the issue at all. The states that have statutes that are silent about when board members can be removed are problematic. Churches that attempt to remove board members do so with uncertainty about the legal outcome—unless their bylaws address the issue instead.
The value of church bylaws
Typically, state laws regarding removal of board members are considered “default provisions,” meaning that an organization can set different standards—if it chooses to do so—by addressing the matter in its bylaws or articles of incorporation. The narrower statute requirements are not broad enough to meet most churches’ needs. For these reasons, every church’s bylaws should provide clear guidance on when and how a board member can be removed. No church board should rely on the default statutory requirements unless the church has determined that the statute provides precisely what the church believes serves its governance needs best.
When churches draft bylaw language regarding how and when a board member can be removed, they should keep in mind that bylaws are written for two audiences: the church that will apply them and the courts that will be called upon to interpret them if disputes lead to litigation. While many churches wish to have bylaw provisions that are crafted in a way that shows great deference to spiritual direction, a lack of clear and concrete language may make it difficult to predict how a court will interpret the bylaws.
For example, a church may wish to have a bylaw provision that states that a board member may be removed for behaving in an “ungodly manner.” Because of the First Amendment’s religion clauses, secular courts will not be drawn into determining what kind of activities are consistent with the values of a church. However, if the bylaws indicate who the decision-maker is for removal of the board member, the courts can readily apply the provision without interfering with the values of a church. For instance, a bylaw provision may state that a board member will be removed if the senior pastor determines, after counseling, that the board member is engaged in an ungodly lifestyle. This type of provision gives a court a path for decision-making that does not call on it to interpret church standards. The court will defer to the pastor’s decision on the grounds for removal, and then enforce that standard without having to determine what an ungodly lifestyle is.
Three approaches to bylaws that address removal
In preparing bylaws that address the removal of board members, there are three basic approaches: removal by the church membership, removal by the church board, and removal by a designator. Each approach is outlined below.
1. Removal by church membership. This approach is most common when the church membership is empowered to elect board members. Churches that are congregational in governance often must have this form of removal because of church polity. In these circumstances, allowing a board member to be removed for any reason has practical advantages. Consider a large church—not all members will be well-informed on church governance issues. Such a congregation may be ineffective in determining if specific standards are met. If the standard turns on a factual determination, such as whether a board member engaged in wrongful conduct—and the board member denies engaging in the conduct—the congregation may not be equipped to make such a factual determination.
These problems are generally avoidable if the bylaws authorize the members to remove board members without requiring the members to vote on whether a specific standard was violated. For example, some bylaws state that board members can be removed for financial impropriety. The pastor may possess clear evidence of embezzlement by a board member, but is reluctant to let details out to the congregation because of the pain and damage this could cause others. Since the pastor understandably does not want to disclose this information, the church membership will never have sufficient information to vote on removal of the board member. In contrast, if the bylaws allow church membership to remove a board member for any reason, the pastor may provide sufficient information to the church membership to call for a vote without disclosing information that should remain private.
Churches that allow for the removal of board members by the church membership should make sure that their bylaws provide a means for the church to call a meeting of the membership on short notice. For example, the bylaws only allow for the membership to meet for business once each year. If an incident giving rise to removal takes place 11 months before the only annual members meeting, no action may be taken before the board member’s term ends. This type of removal process is not very effective.
The Model Nonprofit Corporation Act has a provision for membership organizations like congregational churches that can be very useful if incorporated into a church’s bylaws. This provision provides that while the membership can remove a board member for any reason, the board can remove one of its members without the need for a vote from church members. This would allow the board to discreetly remove a board member without a lot of public embarrassment and anguish. This provision stipulates, however, that the specific reasons for such a removal must be spelled out in the bylaws.
When bylaws provide for the removal of board members by the church membership, the bylaw provisions also should be very clear on the process needed for the removal. Consider, for example, the timing of meeting notification. When should notice be given before a special meeting is called for voting on removal? Many church bylaws require a notice of at least two weeks before a special meeting, either by an announcement from the pulpit or publication in a church newsletter or bulletin. Further, the bylaws should state whether or not to include the purpose of the meeting in the notice. It could be viewed as unfair to remove a board member at a meeting that was poorly attended because many church members were unaware that an important vote was going to take place.
The language in the bylaws that describes how notice for a meeting is to be given should be very clear, and not so complicated that claims of defective notice can be raised. Bylaws should avoid use of the term “posted notice” when what is meant is publication in a newsletter or bulletin. “Posted notice” may mean different things under state law than is intended by a church, making this provision ambiguous and creating grounds for a claim of ineffective notice. In some jurisdictions, posted notice would mean that an announcement is placed in a prominent location in the church, such as a door or wall. That is not an ideal way to inform a congregation, especially in churches that have more than one entrance.
The bylaws also should clearly state whether the board member has any rights at that meeting, such as the right to be present to make a statement before the vote. While providing such a right may lead to highly contentious meetings, it also gives a degree of fairness to a process that might otherwise be viewed as forced upon a congregation that lacks the information it needs to decide an important outcome.
Since the election of board members by the general membership is the most common form of governance in churches, this model as a provision for bylaws can be adapted to the unique needs of a given church:
- The membership of the church may remove, with or without cause, one or more board members at a meeting of the church membership.
- The membership of the church may remove one or more board members at a meeting of the membership for the following reasons: The bylaws would then list what constitutes cause, including, for example, being declared of unsound mind, being convicted of a felony, missing a specified number of consecutive board meetings, and failing to meet doctrinal or lifestyle requirements.
- Board members may be removed at either a regularly scheduled business meeting of the membership, or a specially called meeting. However, no board members may be removed from the board at such a meeting unless advance notice of the motion for removal of the board member has been given to the membership.
- For purposes of this provision, “advance notice” of a meeting at which the removal of a board member shall be considered requires that a statement be made in the church newsletter at least two weeks before the meeting, indicating the date, time, and location of the meeting, as well as indicating that a resolution will be presented on the removal of a board member from the board. The notice must state the name of any board member or board members whose removal from the board will be considered.
2. Removal by the other board members. This is most common in churches that do not have a membership system. In these churches, the board is “self-perpetuating,” and it makes sense that the board that voted to put an individual on the board should be able to decide if that person ought to be removed from the board.
As with the removal by the church membership, removal of a board member by the other board members for any reason at all is the easiest to describe in the bylaws, and the easiest to apply in practice. Unlike congregational membership, boards tend to meet frequently, and consist of members who are highly informed on issues and are passionate about the decisions they make. This can be good, but it also can be problematic. Where church boards are sharply divided on issues, they may engage in tactical and divisive maneuvers for political advantage. By introducing standards for removal, some of these maneuvers can be minimized. For example, the bylaws could require that once a board member is elected to the board, he or she can only be removed because of excessive missed meetings, lifestyle or doctrinal issues, commission of a crime, disruptive behavior, or similar issues.
For a church that has a history of sharply divided boards, one way to avoid frequent debates regarding the removal of board members is to shorten the length of terms. Churches with one-year terms for board membership may often avoid the need to seek removal of a board member, while those with three-year terms will experience more frequent incidences of motions for removal.
3. Removal by a designator. While this approach to removing board members is not as common in churches as it is in other types of nonprofit organizations, it can be adopted for the church context. A church may require a specific person or a group of people (such as denominational leadership or a nominating committee) to have rights in the appointment of board members. If well-suited to a church’s needs, designators could be given the exclusive right to consider grounds for the removal of board members. The advantage of this approach is that it can ensure the decision to remove a board member is done by an individual or group that has unique expertise or knowledge needed to make a wise decision. Further, this approach could also ensure that the decision-maker is detached from the day-to-day operation of the church. If the desire is to have decisions on removal made for reasons related to the spiritual life of the board member, a specific designator or designators may be better suited for this task than the general membership of the church or the board itself. Church leadership, however, must carefully select a designator to make sure that one or two people are not able to manipulate church leaders for a personal agenda. This risk is minimized by making a group of people the designator, rather than just one person. The group should include someone outside of local church leadership, such as a denominational leader.
Disputes over the removal of board members are among the most difficult for a church to face. Fortunately, when these issues do arise, most of them can be resolved through counseling the board member in question so that he or she resigns in order to avoid scandal or turmoil. However, the fact that many board members have willingly, if reluctantly, resigned should not lull a church into thinking that this will always be the case. Every church should be prepared for the possibility that it may need to follow formal action to remove a board member who resists action.
Careful preparation of bylaws provisions that set forth a clear process for removal in concrete language can help avoid painful and costly conflict. The very presence of such language can provide an incentive for board members to resign rather than resist a well-crafted removal procedure. It is important this language be drafted and inserted into bylaws long before problems arise since they are very difficult to add once problems arise. Planning ahead in board member removal provisions are an effective way to protect a church from what can be a costly risk.