Constitution and Bylaws
Does your Church Need Both?
Sometimes when we analyze governance issues for our clients, we discover that they have two sets of governing documents: a constitution and bylaws. “Constitution” is the title most commonly associated with the governing document of an unincorporated association, whereas “bylaws” govern a corporation.
One of the main reasons churches have both documents is tradition: “It’s always been that way.” However, it is not legally necessary to have both, and in practice, it can lead to confusion, unclear answers, and unintended outcomes when the organization makes decisions. To prevent these problems, it is best if the organization has one set of governing documents that addresses all of the relevant governance issues.
Organizations end up having two sets of governing documents either by design or inadvertently. If the unincorporated church incorporates, the organization may not recognize the need to repeal its constitution once it approves a set of bylaws. In other instances, the organization may think that it is better to have a document with provisions that are more difficult to change (such as a constitution) and another document with more routine governance provisions, namely, the bylaws. Having both of these documents is unnecessary at best, and on the rare occasion, problems can arise. Because of this, it is advantageous for the organization to consolidate all of its governance matters into a single document known as the bylaws.
Difficulties can arise when organizations have two governing documents because the documents may contain contradictory terms or may describe procedures that are no longer followed. As time passes, these difficulties can worsen if new board members are added that are not aware of how the constitution and bylaws work together or if board members forget that the organization has two sets of governing documents and ignores one of them. When organizations have two sets of governing documents, the bylaws tend to be the document with which board members are familiar, and the constitution is the document that tends to be ignored. Boards that favor the bylaws and ignore the constitution could be surprised if a matter arises where the constitution and bylaws contradict each other. Under Robert’s Rules of Order, the constitution supersedes the bylaws. For instance, if the constitution grants the organization’s members the right to vote on a merger, but the bylaws do not grant such rights, then the members have the right to vote on the merger. If a board is unaware of this and makes no plans to gain member approval, the merger could be stopped or made more difficult if a disgruntled member decides to raise this issue at the last minute.
To minimize confusion and unexpected consequences, we recommend that organizations use only one set of governing documents. If your organization has two sets of documents or is transitioning from an unincorporated association to a corporation, we can help you draft a comprehensive set of bylaws. Please contact us if you would like our assistance.
This article is provided for general information and should not be relied upon as legal advice for a specific situation. If you are in need of specific advice or legal representation, please do not hesitate to contact us.
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