PASTORAL SEPARATION AGREEMENTS
By Mike Grubbs, Esq. and Robert Showers, Esq.
Reasons for a pastoral separation can span the spectrum from voluntary resignation to involuntary termination. Perhaps the pastor accepts a position at another church or leaves vocational ministry. Other times, poor performance, a change in ministry direction, and funding can initiate a pastoral separation. In other more difficult cases, medical disability and/or unethical practices may warrant separation.
In any case, a church undergoing a pastoral separation should thoroughly consider the legal implications and manage the emotional and spiritual well-being of the former pastor and remaining staff and congregation throughout the entire process. Pastoral separation, especially the involuntary termination, is filled with legal implications and public relations nightmares if not handled correctly, and an experienced church law attorney must be consulted. One should also review the pastoral employment agreement and/offer letter to begin the discussions since some provisions may carry over to departure. This article focuses specifically on one aspect of the pastoral separation process: the separation agreement and its implications.
At a minimum, a pastoral separation agreement should address the following:
- A date for the end of the departing pastor’s responsibilities, the removal of the departing pastor’s personal property from church premises, the date of the final compensation payment expiration of various employee benefits (such as health care and retirement contributions), the date that compensation for any unused vacation time will be disbursed, the final date for submission of any reimbursement expenses, and the date of termination of various services (such as cell phone plans on the church account, etc.);
- The amount of compensation and benefits to be paid to the former pastor after departure contingent on signing and fulfilling the separation agreement. Compensation and benefits should continue until the date of the end of the departing pastor’s responsibilities, but many churches offer continuing compensation and benefits past this date. Some churches also offer counseling reimbursements for the pastor and his family. Obviously, if the church wants and needs a release and waiver of any claims and non-disparagement clauses, the severance should be something that will fairly entice the departing pastor to agree. What is the amount of compensation offered to the departing pastor, and what is the final date of payment? What benefits are continued, for how long, and what is the continuing share of financial responsibility for premiums, etc.? (How long is recommended? Because every situation is unique and every church is different in size and budget, the time for continuing compensation vary widely. However, in most situations a church considers no less than 3-6 months of continuing financial benefits in order to care for the former pastor and provide a sufficient time to secure a new position);
- The terms of any loan repayments, if applicable. Many churches offer pastors loans for housing and other expenses. A separation agreement should include provisions related to loan repayment and perhaps a note and deed of trust;
- The former pastor’s return of all employer property (including keys), and possibly an option for the former pastor to receive ownership of personal property purchased with church resources. For example, if the church purchased the pastor a cell phone or computer, will the church offer the former pastor the option to purchase these items, and if so, for how much?;
- The terms of the former pastor’s vacating of any church-owned residence and/or continuation and limitation of the pastor’s housing allowance;
- A provision that ends the post-departure compensation and benefits of the former pastor if, and to the extent that, the pastor secures full-time employment prior to the end of the former church’s obligations under the agreement. The agreement can also specify partial reductions if the former pastor finds part-time employment;
- The extent, if any, of the limitations of the former pastor’s contacts with the congregation
- A clause that releases both parties from legal action, unless the separation agreement is violated;
- The terms and extent of any confidentiality and/or non-disparagement agreement, specifically including social media behavior;
- An affirmative statement that the departing pastor is resigning voluntarily, and not under duress;
- Consideration of narrowly drafted non-compete and comprehensive non-solicitation of employees and church members clauses; and
- Commitments to Christian alternative dispute resolution.
In every situation for pastoral separation, regardless of the cause or the circumstances, the church should consult an attorney experienced in church and employment law to draft and execute a separation agreement between the departing pastor and the church. As no two pastors or churches are alike, no two pastoral separations are alike. Simply put, there is no standard, one-size-fits-all approach. Each situation will be unique.
In cases of an amicable separation, the church may have weeks or months to iron out a well-crafted agreement, communications plan, and approach to ongoing care for the departing pastor. In other less amicable situations, the church might not have that luxury. Therefore, we advise preparing beforehand for the possibility of a pastoral separation. Dedicate a few weeks to discuss some of these issues and where your leadership stands generally. Consult an experienced church law attorney to prepare a draft, standard separation agreement that aligns with your church culture generally, so that, in the worst case scenario of an involuntary termination, you can be ready to move more quickly.
Finally, we will share a few words about making a healthy pastoral transition. First, no matter the circumstances, the church should take an opportunity to celebrate the pastor’s ministry and even in the separation agreement thank them for their ministry and service. Second, well drafted separation agreements with appropriate waivers of claims, non-derogatory statement promises, and non-compete and non-solicitation clauses will help the transition for the church go smoothly and extended compensation and benefits will help the departing pastor as they transition to another job that does not compete with the former church. Third, the severance should be paid out over time so that it helps the church’s cash flow and pastor to make monthly expenses as well as to insure that both parties more likely follow the agreement. Last and most spiritually important is to include a Christian Dispute provision so that if there are ever disputes it will be resolve in Biblical mediation and/or arbitration out of the media attention and court system and consistent with Biblical admonitions.
At Simms Showers, we have handled hundreds of such pastoral separations and have extensive experience in guiding churches through the legal and emotional implications of a pastoral separation. Please do not forego an experienced attorney or try to use a pro bono or well -meaning attorney which does not have extensive experience in church and religious employment matters. Many churches and church leadership have regretted such a decision. If we can assist you in any way, let us know.
Legal Disclaimer: This article and related material have been prepared specifically for churches seeking general information regarding pastoral separation agreements. It is not meant to provide legal advice or substitute for competent legal counsel that can address specifics of each church. Any reader is encouraged to seek appropriately trained and experienced professional legal counsel who specializes in religious corporate, tax exempt, and church law for questions on or related to these issues and you can contact us at mrg@simmsshowerslaw.com or call us at 703.771.4671.
