The pastor and the law: Challenges of pastoring in a legally charged environment

Editor’s note: While many of the examples in this article are based on the legal situation in the United States, we believe that readers around the world will benefit from the principles discussed.

Pastors today have an increasingly complex role. There was a time when the pastor’s work could be done with little fear of litigation or having to get involved in the legal issues impacting the church, such as property tax matters, volunteer concerns, employment issues, and a plethora of other matters that come up in today’s church environment. The old days of a pastor shaking hands with a parishioner to seal a deal have given way to a much more challenging role for clergy and church administration. Here are some of the legal hot spots that clergy are now expected to deal with as they lead their congregations.

Legal authority of the pastor

Where does the pastor’s authority to legally commit the church begin and end? This may vary considerably from a congregational-based church where the local church board compensates the pastor and its board defines the pastor’s authority, to a pastor employed by a denomination where the controlling body of the denomination provides the parameters for what the pastor can do and commit to on behalf of his church. Pastors should have a clear understanding of these parameters when assuming the position so that they can be guided in their activities. This is especially critical when pastors have the assignment of contracting services for their churches. To what extent can this be done without creating problems of overstepping one’s authority? In most instances, a pastor will not be an officer or have signing authority of the legal organization that employs the pastor. As such, the pastor’s ability to enter into legally binding contracts to purchase property or sign lease agreements binding the organization may not be valid unless authorization has been granted by the appropriate body to execute such documents on its behalf. This could put any agreements entered into and even the employment of the pastor in jeopardy. As such, the pastor should endeavor to always involve the legal organization in such decision making.

The church board

Most congregations have a leadership group designated as such in their organizational bylaws. In most instances, this group will be known as the local church board. The pastor is involved in the selection of the board, but the congregation as a whole has the final authority. However, the pastor would do well to take the time, when a new group is formed, to provide leadership for the church, to share instruction and information on how the board is supposed to work, its scope and function, the need for privacy and confidentiality in handling certain matters, and how the group’s activities may create a liability for the church and the group’s members. If the pastor is not equipped to handle this kind of informational sharing, then the pastor should look to find someone competent to provide this type of orientation for his church.

The pastor as counselor

The days of pastors being able to counsel their parishioners on everything from marriage issues to children and a large number of other topics that historically fell to the pastor to “fix” are gone. Litigation today has revealed pastors who have been charged with unauthorized practice of counseling when they venture into certain areas and being sued for malpractice when the advice given does not work out. Certainly, it is appropriate for pastors to assist their parishioners in areas of religious counseling and other areas where advanced and special training has been taken. But they should be warned to find out what the laws are in their jurisdiction for various types of counseling and have an understanding of the scope of any malpractice coverage provided by their employer.

Legal privilege

It is commonly thought that anything shared with the pastor becomes privileged information. Pastors should check the laws of their jurisdiction to see the extent of the privilege and whether or not it is applicable. The privilege in most instances can only be waived by the person sharing information with the pastor and not by the pastor. In most jurisdictions, the privilege does not extend to cover certain types of anticipated crimes that may be committed. Most jurisdictions do not extend the privilege outside of a “priest-penitent” setting. Ordinary conversation between individuals not intended to be in this sacred environment and conversations that include a third party are not generally covered.

Resolving disputes and correcting errors

Pastors assist members in resolving disputes at times. But when two members cannot agree on an outcome, the pastor may very well become a party to the dispute, not merely the mediator. Similarly, pointing out the error of a parishioner can be risky. While church processes may indicate the need to expose sin, the pastor must be very conscious of and alert to the fact that such exposure in public forums may expose the pastor and the church to legal liability concerns for defamation and invasion of a member’s privacy.

Employees

Many congregations have a need for employees beyond the services of the pastor. A minister of music, a secretary, a groundskeeper, a janitor, and maybe even assistant pastors are needed depending on the size and resources of the church. Churches oftentimes deal with their employees in informal ways. The secretary may work 20 hours a week but then volunteers to do similar work for no compensation. The groundskeeper may mow the lawn and trim the hedges, but is given the title of grounds manager and classed incorrectly as an employee exempt from overtime pay. The congregation may actually be part of a denominational pay system where the local church secretary receives pay on a different set of standards of compensation and benefits than others working for the broader church. Oftentimes when concerns of such arrangements are raised by lawyers, they are responded to with “we have always done it this way, and it has not been a problem.” That may be true so long as you don’t end up with a disgruntled employee who discovers that “the church has been taking advantage of me.” There are many cases where these scenarios have led to the church being required to compensate the employee for back pay, overtime, and penalties. It not only makes legal sense to meet the requirements of employment laws, but is inherently the right thing to do for a church to be fair to its employees.

Volunteers

Churches could not fulfill their mission without volunteers—members who are willing to give of their time and talents to advance the work of their church. Thus, it seems burdensome to subject volunteers to screening for abuse problems, prior theft problems, or criminal behavior. The purpose of these screenings is not to punish the volunteers or make it difficult to have them as part of the ministry. Rather, screenings safeguard the congregation, resources, members, and especially children from those who might lead a double life or fail to provide the church with information about their past misbehavior. Most members who volunteer have nothing to hide and the background check simply affirms their ability to work in their ministry without the fear of others worrying about what they bring to the position. Volunteers should be trained on an annual basis regarding child abuse policies and procedures that should include information such as the six-month rule¹ or the two adult rule² when dealing with children.

Sexual abuse

While pastors must take all steps necessary to avoid the appearance of any inappropriate conduct on their part, they must also make sure to safeguard their members from all forms of abuse. Of special concern are the children and young people entrusted to the ministry of the church. Proper procedures should be in place to screen employees and volunteers working for the church, especially with young people. Any known pedophile or abuser who wishes to be part of the congregation must be dealt with in a positive but firm way as to what church-related activities they may and may not be involved with and how they will be supervised. Additionally, pastors should have a good understanding of the governmental requirements for reporting any abuse that arises and how to relate to the needs of the victim, dealing with the authorities, the families involved, and the congregation. There are many fine lines in dealing with these issues. While prevention is certainly the primary objective, proper handling of a complaint is critical to the overall outcome of such unfortunate situations should they arise.

Political activity

Pastors are on a slippery slope when they move beyond the religious to the political. Certainly, there are matters of legislative interest to churches today that deal with morality and other social issues that impact the church. However, laws, such as in the United States, expressly prohibit churches from supporting or opposing candidates for office, no matter what their positions. Other countries also have their own laws and policies. Pastors must be careful not to let candidates campaign in the church. Supporting or opposing legislative issues must stop short of supporting or opposing candidates based on their views of the issue. Voter guides may be packaged as merely helpful information, but candidate comparisons of this nature cross the line into unacceptable political activity.

Property issues

Pastors should be aware of what their church facilities can be used for under the law. Good legal counsel can prevent a lot of costs and problems for the church. In many jurisdictions, the property will be exempt from property taxes if used exclusively for exempt purposes. Thus, renting out the church for nonreligious activities may trigger costs of property tax far in excess of the income. Even renting out the church to another congregation may jeopardize the property tax exemption if the primary purpose is to produce income rather than to accommodate the religious use by another group.

Another major concern in renting out the church property is the liability that may be created if an injury or other problem develops, such as an act of abuse or loss of property. The landlord church should take care to assure that the renter has adequate insurance to cover such contingencies and that the landlord church group is covered as an additional insured party in case it is sued as the property owner. All of these items of concern and the terms of the rental should be addressed in a written document between the parties.

Facilities

How safe are your facilities? Do the fire alarm systems work? Are the floors and ceiling in good repair? Is there appropriate lighting throughout the facility? What about handrails on staircases? Are there obstacles that are just looking for someone to trip over? What steps have you taken to assure your members’ and visitors’ safety when they come to worship at your church? Too busy to do this? Well, a lawsuit will take even more time if someone is injured by the church negligently failing to maintain a safe environment. We are not suggesting the pastor be a good carpenter. But the pastor should be satisfied that qualified people have been assigned to this important task of maintaining the structure.

Income tax

Churches are generally treated as tax exempt from the income they receive. The offerings given by members to support the mission are not taxable. But that does not mean that all income received is income tax free.

For instance, in the United States, the Internal Revenue Service (IRS) has addressed this matter through what is called unrelated business income tax. Nonprofit organizations such as churches may be subject to tax for income generated from a business activity that is not part of its exempt purpose. Some church leaders may argue that the proceeds of the activity are used for a religious exemption purpose. However, the IRS does not ask what the profit is used for but rather how it was generated. If the income is derived from what is typically a commercial activity, it is likely subject to income tax and, depending on how much income is generated, could jeopardize the denomination’s tax exempt status.

Mission trips

Mission trips are a great idea for team building and sharing the gospel—“Let’s take a church trip to another country to build a church and share the gospel while we are there.” The pastor gets everyone excited and then the plans are made. Before long, questions start to come up: I can’t go on the trip, but can you take my teenage son on the trip? Who will provide medical assistance if someone gets sick or injured on the project? What hospitals are available for any injury? Will our medical insurance cover this or is the church providing coverage for us? The list goes on. Plan thoroughly before you embark on such a venture. Seek the guidance of experienced planners who have done these types of trips. Be sure to check the stability and safety of the location where you plan to go. Is there a travel advisory from your government regarding travel to this country?

Affinity fraud

Whether we like it or not, the church is often the hunting ground for unscrupulous people looking for easy, trusting prey. As pastor you should be aware of this and prevent your congregation from getting dragged into money-losing propositions that are “just too good to be true” but come from this good brother or sister who wants to help out their fellow believers. Watch out for the promoter who speaks the language of the church or attempts to gain your support by giving you special favors or consideration. Recently, a congregation was subject to one of these “fellow believer” schemes in which a large number of the membership was taken advantage of, causing many elderly members to lose their retirement savings. The aftermath of one of these financial fiascos drains the church of its energies to do its mission, to say nothing of the personal impact it has on the lives of those financially ruined.

Conclusion

The pastor’s primary motivation in life must be to preach the gospel and provide spiritual leadership and encouragement to the members. Leaders can easily get distracted from that mission with challenges inherent in doing the business of the church in today’s legally charged environment. We are not suggesting that the pastor’s mission should be sacrificed for the sake of addressing legal issues, but careful thought and planning must be given on how such issues are cared for. The pastor should seek competent assistance from an employing church organization, key leaders of experience in the local congregation, or through local legal counsel for guidance in such matters. The mission of the church will be seriously distracted and displaced if pastors fail to recognize and plan for these issues as part of their ministry.