Halloween is right around the corner, and many churches are active in trying to figure out how to best capitalize on the holiday to get people on their campuses. It can be a great time to provide a family-friendly and not-so-scary alternative to what's roaming the streets. It is also a good time to invite the community to your campus and show the world that Christians aren't that weird after all. Nevertheless, with such activities often comes risk to the church, a topic Managing Attorney Josh Bryant is keenly familiar with.
Are you doing a Halloween Hay Ride? What about Trunk-or-Treat? (One church that we work with routinely has over 2,500 people on campus in a two-hour window for Trunk-or-Treat.) Are you doing a haunted house that depicts hell? All of these things have inherent risks associated with them. Someone could fall off the hayride and break a leg. A child could be kidnapped from your Trunk-or-Treat celebration. A participant in your haunted house could have a heart attack. In each case, your church could be liable.
While this isn't designed to spook you out of doing these spooky events, churches should be aware of the risks and make a calculated decision on whether to attempt to shift the risk back to the participant. There are ways in which this can be done through liability waivers, indemnity agreements, and assumptions of risk. However, these documents must be meticulously drafted in most states before the courts will even consider them.
We have videos in our client only area about liability waivers. Subscribe to Church General Counsel today and get help drafting the first of many liability waivers that Josh Bryant has experience setting up. Your church will not regret this extra level of legal protection. If you want to talk to Josh Bryant before subscribing, use the button on any of the pages of this website to schedule a video conference with him.
My Momma always told me never talk about religion or politics - at least someone's momma told me that. Here we are about to talk about both in one post. The political activity of churches has been in the news a lot this year since President Trump has allegedly repealed the Johnson Amendment that prohibited 501(c)(3) tax exempt organizations from politicking from the pulpit. Did you know that isn't exactly true? The President doesn't have the authority to change congressional legislation. By executive order, he changed the way it is to be interpreted by the IRS. As has been proven time and time again over the last several administrations, with the stroke of a pen that interpretation can again be changed. Here are some reasons to have your Church General Counsel review your political activity policy.
- A written policy on employee political activity is wise.
First of all, a written policy on employee political activity is wise. Do you want your staff or your church to support a particular party or candidate from the pulpit? Does such conduct align with the vision and mission of your church? Is it ok for your staff members to run for office? Can church funds be used for political purposes? What about church resources - could they be used on behalf of a political candidate? Is it ok for church staff to use church time to lobby or campaign? These are all questions which your personnel committee, elders, and/or senior pastors need to answer and put in writing so that everyone is aligned with the direction of church leadership.
Secondly, it is important that you have a political activity policy that is flexible and can be changed quickly. Right now, the Executive Order on the Johnson Amendment prohibits the IRS from finding a church guilty of violating the Johnson Amendment if it could not also find a secular institution guilty. How that would play out if litigated is far from certain since churches have a much bigger pulpit (pun intended) than most 501(c)(3) organizations. Nevertheless, this is just an executive order that cannot overturn congressional legislation. As quickly as it was signed by President Trump, it could be revoked by Congress, the courts (if challenged), or a subsequent president. As such, you need the ability to quickly update, disseminate, and educate others on a policy that aligns with the law as it changes. Managing Attorney Josh Bryant stands ready to help your church comply with this law.
Third, churches need to be fully informed of the repercussions of violating IRS regulations for 501(c)(3) tax exempt organizations. If prosecuted, a church could lose its tax exempt status. That means that every donation made to your church is no longer deductible by your donors. It could hurt your annual giving and ultimately shut the doors to your church. Now, we don't want to be alarmists, and to be fair this is something that has not been tested. However, the law clearly states that you could lose your tax exempt status if found guilty of violating this law. Churches are wise to render unto Caesar in this regard.
Finally, your church needs to understand that there is a difference between endorsement of a particular candidate or party and issue advocacy. You can preach on abortion or poverty until you are blue in the face as long as it doesn't appear that you are endorsing a particular candidate or political party. The government can even complicate this though, as the law up until know has allowed the government to infer violation based on a number of factors even when the content of the message appears on its face to be simply issue based and not directed toward any given party or candidate. Josh Bryant has worked with churches on this issue before, and he can help your church ensure compliance with this unusual law.
There are many different best practices that you could engage in to protect your church from this risk. While we don't want to stifle political speech, we do want to make sure your church is protected from undue government interference. Subscribe to Church General Counsel today for more information.
Jesus said, "Let the little children come to me." It is a sad state of affairs that given such a command we have to talk about a policy that protects kids. Nevertheless, year in and year out, the abuse of kids and vulnerable adults is the top reason why churches end up in court. Since churches get sued most frequently on this issue, the question isn't "why have an attorney review our child protection policy?" The question is, "why wouldn't you?" Here are a few good reasons your church needs a child and vulnerable adult protection policy written by an attorney.
- Your church needs a policy that protects children and vulnerable adults from sexual predators.
Let's start with the main reason you need a good child and vulnerable adult protection policy: sexual abuse in the church hurts the cause of Christ, especially when its victim is a child. The church should be a beacon of hope that points to Christ, not the object of criticism because church leaders did not have a good policy in place to protect kids when they know how prevalent sexual abuse in the church has been up until now. Your church must have a robust policy that does everything it can to prevent abuse from ever occurring.
Secondly, you need a policy that aligns with what most liability insurance companies want. Josh Bryant has experience working with insurance companies on obtaining supplemental sexual incident coverage that is not covered by most general liability policies. Insurance companies are in a great position to know how sexual abuse in the church has occurred in the past, and know exactly what kind of policies they want to see before underwriting an insurance policy.
Third, your church needs a policy that perseveres evidence that a defense attorney will want to present to a judge or jury in the event your church is sued after an allegation of sexual misconduct. Unfortunately, churches in which sexual abuse has occurred are more likely to be guilty until proven innocent, and the only things that proves innocence is evidence. You must preserve evidence as best you can, and Josh Bryant has experience in litigation such that he knows what kind of evidence is necessary.
Fourth, your church needs a policy that is as legally defensible as it is operationally manageable. No policy is worth the paper it is written on if the pastors and volunteers responsible for enforcing that policy don't do it. Most pastors and volunteers don't want to be insubordinate to church policy - they simply don't have the time to do much of what a policy requires sometimes. That is why it is important to have an attorney with experience not only in law, but in ministry as well. Josh Bryant can help balance the ministry needs with the legal best practices.
Finally, you need someone to help with your child protection policies like Josh Bryant, who has the experience necessary to get the job done well. When you sign up for our attorney access plan, this is usually one of the first policies that Church General Counsel will review.
It is so important to have a good child protection policy. Members can see more tips on drafting this policy in our members only area, or you can contact us for more information on how we can help you draft a good child and vulnerable adult protection policy.
If you are a church in Arkansas, Josh Bryant is licensed in your state. If you are a church in Texas or Oklahoma, he's developed a network of attorneys to help if we need. Otherwise, you're right. we're not licensed in your state. The good news is, we don't have to be in order to be your "in-house counsel." What? How's that?
- An attorney does not have to be licensed in your state to be your In-House General Counsel.
Rule 5.5 of the Model Rules of Professional Conduct governs what is known as the "Multi-jurisdictional Practice of Law." Organizations and businesses bring in attorneys all the time to work full time for them as "General Counsel." Many Fortune 500 companies have hundreds of lawyers working for them out of their corporate headquarters that aren't licensed in the state of the business because Rule 5.5 allows it.
The thing is, most churches can't afford their own in-house General Counsel at $150,000 per year. But most churches can afford a part-time Church General Counsel, especially at under $150 per month as opposed to the $150 or $200 per hour most attorneys would charge as outside counsel.
There are still limitations. Josh Bryant can't go to court in your state. He can't give opinion on matters that are purely a state law issue. That's ok though. Most of the legal risks churches face are under federal law, like employment issues, taxation, First Amendment, and so forth. Additionally, many of the things he'll advise you on are not inherently matters of legal opinion (although they are formed by legal education and experience). For example, procedural things like the "two adult rule" to protect kids and vulnerable adults in churches isn't necessarily legal advice - it's procedural advice designed to mitigate and manage the risk of going to court because a child or vulnerable adult is abused at your church.
If something came up where you needed a local attorney, your Church General Counsel would manage that relationship for you. It always helps for organizations like churches to have an attorney managing attorneys. Josh Bryant's job would be to lay out expectations to local counsel, provide instructions and get feedback using the legalese we're all trained in, and then communicate that back to you as the decision maker in your church.
This may be a bit confusing, so there will be subsequent podcasts, blogs, and blogs on the subject. Do us a favor - leave any questions you have in the comments below. We'll answer them directly and may also answer them as we produce more content in the future.
We ask people to do some pretty risky things in church. Don't believe me? How about a food fight in our youth department? That doesn't sound too risky. Well, can you guarantee that all of your students are free from any food allergy that they might come into contact with? What about the infamous (and usually a lot of fun) lock-in? Surely locking a bunch of pubescent walking hormones in a church building all night isn't risky. What about mission trips? Are there any risks inherent in traveling internationally to share the gospel of Christ with people who come from a completely different culture that may be hostile to the gospel? Surely not...
Clearly, we ask people to do some pretty risky things in church. And you know what? That's ok! Pastors should be asking their people to take risks for the sake of Christ. Christ didn't ask any less, did He? He told us the world would hate us because of Him. Surely that carries some risk with it.
But who should take the risk - the Christian or the church? Granted, the question sets up a false dichotomy because the church is made up of the Christian. However, if churches and pastors are to encourage sanctification and spiritual growth in their congregations and continue doing so for the long term, it isn't the church that should assume all the risk of ministry. The people should assume the risk.
That's the spiritual side of encouraging disciples to assume the risks of ministry, but there are legal ramifications of this too. The document is called an Assumption of Risk. It is a document that spells out the legal risks of any given activity. For example, if you go on this mission trip to Central America, you could contract a flesh eating jungle fungus while hiking through the rainforest covered mountains to share the gospel with a remote village. Generally speaking, the organizer of an event or trip is responsible for assuming the legal risks associated with and incurred by any participant in the event or trip. However, a properly drafted assumption of risk shifts that risk back to the participant and protects your church from being held liable by a court after a participant or his/her heirs sue the church because of the injury they suffered participating in that event or trip. Generally speaking, the law has some very specific requirements for assumptions of risk. At Church General Counsel, this is one of the primary ways in which we aid churches in mitigating risk.
Not all risk can be avoided, but it can be used to help people grow spiritually and become more like Christ. This can be done legally through an assumption of risk that helps ensure your church can continue doing ministry and helping others assume the same risks of following Jesus and engaging in God's mission of making disciples of the nations.
Call 866.597.5621 for more information, or subscribe for Church General Counsel by clicking here.
Church General Counsel Managing Attorney Josh Bryant, J.D., M.Div., authors most of the posts in this section. From time to time, he will post articles from others in the field of church growth, administration, and operations.