1. Are we incorporated? (Should we be?)

If your church or ministry is incorporated, generally this would be reflected in your bylaws. Bylaws are internal rules that govern how your organization operates.

It’s possible that your ministry is no longer incorporated, although it was in the past. Many states require that you submit an annual report to the Secretary of State’s office to maintain your corporate status. 

2. Do we follow our bylaws?

First Amendment protection of religion places churches in a unique legal position. Essentially, the courts allow churches to describe why they exist, how they’re structured, and how they operate.

The church’s bylaws generally serve as the guidelines for a given church’s identity and operation. The bylaws describe how members and leaders are determined, as well as the leaders’ roles within the church. The bylaws typically describe how a pastor is to be called to serve the congregation, and how the pastor is relieved of those duties.

Bylaws explain how annual budgets are to be developed, proposed, and accepted. They also explain other matters of delegated authority, such as who is authorized to bind the church to a contract or to spend the church’s money.

3. Are we putting the ministry’s interests first?

Church board members have been placed in a position of trust. As such, you have a legal responsibility to place the church’s needs ahead of your own. If that trust is betrayed, you could be sued for breaching your fiduciary responsibility to the church.

Fortunately, the law generally provides protections for board members, as long as the members were acting in good faith. There are a few exceptions to the protections, however, that church board members should keep in mind. These exceptions can be summarized as the “duty of care,” “duty of loyalty,” and "duty of obedience."

• The Duty of Care. Board members have a duty to think matters through before making key decisions. The duty of care will generally be met if a board member acts in the same manner that a “reasonably prudent person” would have acted under the same or similar circumstances. For this reason, board members will want to carefully consider the facts and context of each significant decision or action.

• The Duty of Loyalty. Board members have a duty to recognize, disclose, and avoid conflicts of interest. The duty of loyalty requirement states that board members will be protected against personal liability if their actions and decisions aren’t intended to provide them with personal gain over the interests of the ministry. The most common breach of the duty of loyalty occurs when a board member votes in favor of an action that will either provide him or his family a personal financial gain or benefit a business that he owns or controls.

• The Duty of Obedience. Board members also need to ensure that the organization is fulfilling its stated purpose or mission. In addition, the duty of obedience requires boards to ensure the ministry is complying with applicable laws and the organization’s bylaws.

4. Are we protected by "good Samaritan" laws?

Good Samaritan laws are state laws that provide legal protection for certain individuals who provide medical assistance in emergency situations. Unfortunately, this protection is applied differently from state to state. Some laws protect only licensed health care professionals. Others do just the opposite: protecting non-professionals for the first aid they provide until professional help arrives.

It’s important to note that most good Samaritan laws protect individuals, not organizations. If your church is sued for providing (or not providing) medical assistance, it's unlikely that the good Samaritan law in your state will apply to your ministry. It will only apply, if at all, to those who personally intervened. Because the protection varies so much, ministries should ask a local attorney about the scope and application of such laws in their state.

5. Do charitable immunity laws protect us from lawsuits?

Many states have enacted charitable immunity laws as a way to help protect volunteer workers from being sued in connection with their volunteer service. In some instances, charitable immunity laws can offer protection to board members; however, they do not offer the broad immunity from litigation that many may think.

6. How could indemnification provisions in the bylaws help us?

If your bylaws don’t include indemnification provisions to protect board members from becoming personally responsible for a board decision, you may wish to draft some. This will prevent board members from having to pay out-of-pocket costs if they’re sued in connection with their ministry work.

Consider extending this protection to employees and volunteers who are working on behalf of the ministry. Indemnification provisions should be drafted so that the ministry avoids paying the legal expenses of individuals who are not furthering the purpose of the ministry, or who are acting outside of their authority.

7. Are we protecting our ministry from loss?

Perhaps a wet floor in the kitchen causes volunteers to slip every time there’s a church dinner. Maybe the unpadded wall behind the basketball hoop contributes to sporting injuries. Could the string of fender benders in the church van be traced to inexperienced drivers?

Church leaders must be willing to identify what types of injuries happen most often and find ways to reduce their frequency. Using a Notice of Injury form is an easy way to identify what types of injuries are happening in your church. Reviewing all reported injuries over time allows you to see trends, such as the age of the people getting hurt, where the injuries are happening, and what contributing factors were present, such as wet floors or icy sidewalks. Then, the church board can address the underlying causes.

In addition to injuries, other types of losses a church board must seek to prevent include damage to church property and incidents of child abuse on your premises. Such losses can not only cost the church financially, but can damage its reputation as well.

Most importantly, look for ways to avoid losses before they occur. This includes inspecting ministry property regularly to identify hazards such as loose hand rails, tripping hazards, fire hazards, etc. Also, make sure that your ministry implements an effective worker screening program to protect children and vulnerable adults.

8. Do we comply with tax-exempt requirements?

Churches enjoy a special tax-exempt status that allows their donors to claim donations as tax deductions. This is commonly referred to as 501(c)(3) status. This special status comes with strings attached. Organizations with 501(c)(3) status are not allowed to be involved in political campaigns or to contribute to candidates for political office.

Tax law automatically recognizes churches as tax-exempt organizations. Other religious and charitable organizations must apply for recognition by filing Form 1023 with the Internal Revenue Service. Although not required to, some churches apply for tax-exempt status to assure church leaders, members, and contributors that the church qualifies for related tax benefits.

Churches are exempt from filing an annual report with the IRS, but other religious organizations are required to file Form 990, Form 990-EZ or Form 990-N each year. The required report is one page long and simple to complete, but it has to be filed by the due date each year.

9. Are we properly reporting unrelated business income to the IRS?

It is common for youth groups to sell coupon books or other items to raise money for various trips or activities. This fund-raising activity competes with for-profit businesses in town and doesn’t directly relate to the ministry of the church. Therefore, the IRS considers the funds to be “unrelated business income.”

Exempt organizations may be required to pay income tax on revenue that the IRS considers unrelated business income. Coupon book sales are one possible source of revenue that may be subject to this tax. Rental income for residential property, coffee shop income, and income earned from weekday rental of the parking lot are other examples of revenue potentially subject to the unrelated business income tax (UBIT).

Generally, churches that generate approximately 15 percent or more of their total revenue from unrelated business income should consult with a tax professional and will likely be required to file Form 990-T with the IRS to report the unrelated business income.

10. Are we covered by the church’s insurance policy?

When a difficult or controversial decision is needed, the church board likely will handle it. These decisions are recorded in meeting minutes and can be the source of church splits and even lawsuits against the church.

It’s a good idea to make sure your church’s insurance policy provides coverage for your church leaders individually if someone sues the church and names them as defendants.

Subject to policy terms, standard liability policies will typically cover church leaders if they are sued in connection with injuries to people or damage to property. But general liability policies typically don’t cover claims against directors or officers that allege financial damage. You must purchase separate directors and officers coverage to protect your leaders from financial damage claims.