As you may know, the Presbytery recently learned that the incorporation of churches is legal in West Virginia. Per the Book of Order (G-4.0101), where permitted by state law, each congregation shall incorporate. Therefore, all churches in the Presbytery should begin the process of incorporation as soon as possible to comply with the Book of Order. To assist with this process, all pastoral leaders and Clerks of Session received a packet of information following the May 20 Presbytery meeting. The packet included template Articles of Incorporation, template Bylaws, a template Board of Trustees Consent, and instructions for completing these documents.
As churches begin the work of incorporation, we are learning new things and wish to provide some clarifications to assist the churches in the process. First, churches will submit two documents to the West Virginia Secretary of State: (1) the completed template Articles of Incorporation (with all blanks filled in and the instructions pages removed), and (2) the Customer Order Request Form, which is linked within the Instructions for West Virginia Articles of Incorporation. The Customer Order Request Form is a cover page for the submission of the Articles of Incorporation and tells the Secretary of State how to process the filing (e.g., 24 hour expedited processing or regular processing time), how to return the filing (e.g. via email, fax, or regular mail), and how the church will pay the filing fee (e.g. check, money order, cash, or credit card). The Customer Order Request Form is not a part of the church’s governing documents but is required by the Secretary of State to process the order.
Additionally, please note that the first two pages of the Articles of Incorporation template provided by the Presbytery are instructions and are not part of the Articles of Incorporation. These instructions pages should be deleted from the Articles of Incorporation before they are submitted to the Secretary of State.
To clarify questions about the Board of Trustees and the Incorporator(s), the Presbytery has been advised that there is no requirement for the Board of Trustees and the Incorporator(s) to be identical. To keep it simple, churches can list one individual as the incorporator. Note that the incorporator must sign the Articles of Incorporation, so churches need to make sure whoever is listed in Article 15 as an incorporator signs the document. If the church elects to have multiple incorporators, then everyone listed in Article 15 must sign.
The Consent need only be signed by the trustees, which do not need to be identical to the Incorporator(s). Note that all of the trustees must sign the Consent.
The Board of Trustees Consent and the Bylaws become official documents of the incorporated church and its record, but they are not submitted to the Secretary of State. Only the Articles of Incorporation are filed with the Secretary of State.
There has been some confusion regarding the membership of the corporation. Typically, the corporation is made up of the ruling elders on the session. Here is what G-4.0102 Members of the Corporation says, “Only persons eligible for membership in the congregation or council shall be eligible to be members of the corporation and to be elected to be trustees. The ruling elders on the session of a congregation, who are eligible under the civil law, shall be the trustees of the corporation, unless the corporation shall determine another method for electing its trustees.” Therefore, only elders on the session should be members and elected trustees of the incorporated church, unless a church specifically states otherwise in their Bylaws.
Some churches are choosing to work through the process and officially incorporate as officers begin terms of service. This is particularly true for sessions that need to evaluate the tasks and roles of current trustees. Churches should have only a single set of Trustees, those of the corporation. Some tasks and roles of current trustees may be assigned by the session to a committee or subcommittee of session or to the Trustees of the corporation. Churches that currently do not have separate trustees do not need to consider this as part of their process.
At the May 20, 2021 Presbytery Meeting, Stated Clerk Maureen Wright shared a recommendation from the Moderator, General Presbyter, Financial Administrator/Treasurer, Leadership Team Chair, Trustees Chair, and Stated Clerk that each particular church in the Presbytery act to approve incorporation and complete the required steps to incorporate. All pastoral leaders and Clerks of Session received a packet of information last week that included the following explanation.
Late last year, conversation began between Presbytery staff, legal counsel, and Presbytery leaders about incorporation of churches. While the West Virginia constitution prohibits churches from incorporating (West Virginia Constitution, Article VI, section 47), the Stated Clerk had received several questions regarding churches incorporating. When the Presbytery’s legal counsel was asked for an opinion, the memorandum was clear that churches in West Virginia have been incorporating since 2003, when changes to the West Virginia Code allowed for the incorporation of churches. Indeed, a 2002 ruling by the U.S. District Court for the Western District of Virginia struck down a similar prohibition in the State of Virginia’s constitution. This ruling likely prompted the change to the West Virginia Code. However, at the time, there was no attempt to change the constitutional prohibition. Incidentally, and separate from this conversation, the West Virginia legislature acted in 2021 so that West Virginians will vote in November 2022 on a constitutional amendment allowing incorporation of churches.
This information, paired with the Book of Order’s clear statement in G-4.0101, “Where permitted by civil law, each presbytery, synod, and the General Assembly shall cause a corporation to be formed and maintained,” makes it clear that it is time for the churches of the Presbytery to incorporate.
As part of our discussions, a number of Presbytery leaders asked, what are the benefits of a church incorporating? Richard R. Hammer of Church Law & Tax Report states, “Members of an unincorporated association are individually liable for [wrongful] acts of agents or employees of the association if the [act] is committed within the scope of their authority.” Brotherhood Mutual adds, “This means all members of an unincorporated church can legally be found responsible for the negligent or criminal acts of one of their fellow members.” (Incorporating Your Church: Why and How?) The reason for a church to incorporate is to limit liability.
The Leadership Team supports churches incorporating and voted to reimburse the cost of the $25 filing fee for all churches that incorporate prior to the May 2022 Presbytery meeting. In addition, the Presbytery worked with legal counsel to develop the necessary templates for incorporation. Print copies of these templates were included in the packet sent to pastoral leaders and Clerks of Session, and to assist churches, the templates are available as Word documents for download on the Presbytery website. These files are on the Documents page; like the Presbytery Directory, they are password protected. The password for all protected documents is the same. Contact the office at email@example.com or 304-744-7634 for password information.