MAY 2008 AIA MEETING OBSERVATIONS

 

RE: General Conference

 

The grand strategy of moving as many of our petitions related to involuntary actions against pastors to the Judicial Administration Legislative Committee was not as successful as we had hoped.  Even with friends of AIA on that committee, one of whom was a sub-committee chair, little of our thinking stood up against the strong support of delegates (mostly DSs) gave to whatever came from GBHEM and the Council of Bishops. 

 

A number of decisions made by the GC appear to be the result of three things, lack of time to really think through the implications of the legislation chosen that was supported, lack of experience with fair process from the respondent’s side, and lack of institutional history (remembering anything about how the processes came into being and the struggles to get them the way they were).

 

As each of the major areas we reviewed was discussed, we found disagreement between what the computer reported was done and what the delegate reported happening in his legislative sub-committee!  A couple were resolved as we worked our way through the rest of the changes on that area but it appears there will need to be a challenge about some of the others to the correlation committee editing the 2008 Discipline. 

 

So many amendments and petitions were handled in a hasty flurry as the legislative committees concluded their work well into the second week at GC that the delegate really struggled to be clear about what happened.  He said exhaustion also was a factor and that it was hard to be sure everything was taken care of in the final reports that were turned in.

 

The delegate said he was a lone voice speaking up about the validity of other petitions than the ones from GBHEM and the Council of Bishops.  He was the only one who understood the problem of just how deeply the bishop and Cabinet can insert themselves into the processes, including who actually selected all of the hearing bodies and who initially handled the complaints.  None had experienced where even with such powers, Cabinets overstepped their authority.

 

“In one case when I was an advocate, I was able to question whether the DS had followed reasonable efforts to deal with my client and the DS had to admit he had not, which changed the whole case around.  But now that the bishop can choose someone else to be his designee and not involve the DS in that role, those kinds of questions would be harder to get a firsthand answer to.  No one in the sub-committee understood what I was talking about!” the delegate said.

 

He was excited about changing the terminology as a way to clarify where in the process a complaint was.  He argued in his group at GC and with us that it would have been better to use “allegation” for the original complaint.  It would become a “grievance” if it was accepted.  It would become a “complaint” if it was referred for processing.  And if it was forwarded for trial, it would become “charges.” 

 

The problem he ran into was that similar terminology was tried in the 1990s only to be dropped because it was too complicated.  No one knew that history.  But he did not succeed because the sub-committee found it too complicated!

 

Although we did not anticipate the problems we still ran into, I finally realized our efforts to lobby as we have since 1988 does not work.  

 

Let me rephrase that.  I have not succeeded lobbying that way . . . except that occasionally one of my old petitions is used by someone in power as their own.  But that can sometimes take twenty years! 

 

Others have succeeded, though, so the technique is not the major flaw.  Maybe just the way I do it . . . .

 

RE: Finding the legislative tracking by computer

 

We spent a few minutes checking on how to find things that may have been changed by General Conference. 

 

Go to www.umc.org.  Click on the 2008 General Conference logo on the top of the home page.  On the page that comes up, look below the picture headlines on the left.  In the “Highlights” section is “Legislative tracking.”  Click on that and the result is a page with two search boxes on the left side, one in which you can put the number the petitions secretary put on a submitted petition, and one in which you can put a “KEYWORD.” 

 

We found that if you put in the paragraph number from the 2004 Book of Discipline into that second search box and click on SEARCH, you could then check any of the items listed (when there are more than one) to find what you are looking for.  In many cases, the page that comes up is the format for what happened to a particular petition.  It links you to the original petition as written and it also links you to any amendments as passed by General Conference.

 

RE: P 2701 - Judicial complaint procedures

 

This passage was rewritten and reorganized.  Most of it is not new but there were some changes.

 

The only concept among our petitions that survived the JA Committee was Complainants Fair Process Rights.  It was picked up by the “women’s caucus,” those who want to keep our denomination from looking like the Catholics on sexual abuse.  They framed the rights so that the victim would be able to provide a “victim’s statement” before the hearing closed.

 

A further complication is that it appears the bishop becomes the complainant (much as the District Attorney is in a civil case) once the original complaint is referred for judicial or administrative action.  That would mean, if our interpretation is right, that bishops would have a “last word” before any hearing body!  The implications of that blow our minds.

 

There are other modifications but none seemed to us to be significant.  We hope we aren’t wrong!

 

RE: P 362 - Administrative complaint procedures

 

The material is left largely unchanged except for the addition of the option a bishop has to choose a “designee” to handle the complaint.  There were no defining characteristics so it appears the bishop could chose a lawyer or anyone else.  Hopefully it would be a mediator.

 

We weren’t sure if that was good or not.  On the one hand, anyone who would be more experienced could be a great improvement, especially if the person is trained in alternative dispute resolutions.  On the other, what then becomes the role of Counsel for the Church in judicial complaints?  Or what if the bishop dislikes the results and wants to change the designee when everyone else is happy with the resolution the first designee achieved?

 

A deletion struck us as problematic.  The confidentiality of the supervisory response has been violated so many times that passage in P 362 became meaningless.  The phrase about confidentiality has been removed so there is no possible protection for either the complainant or the respondent now. 

 

Our strategy of silence in the supervisory response will now become a necessity in all cases.  The way that has been spun by church officers in hearings has been “He did not deny the allegations.”  That misrepresentation can be overcome by good questions by the respondent’s advocate . . . provided questions are allowed by the hearing officer.

 

The original petition offered a sentence that would have stopped church actions if a civil action was intruded into the case, such as a civil suit against a pastor by the complainant whose complaint was being used against the pastor in the committee on investigation.

 

The matter of lawyers using both church and civil processes for fishing expeditions did not win in the legislative committee and was dropped. 

 

The argument that won was that the church had to proceed with timely action. 

 

You almost have to be a trained lawyer to catch on to some of these kinds of subtleties and the Ministry and Higher Education legislative committee had very few if any.

 

RE: P 334 – Guaranteed appointments

 

While the first section of this paragraph which contains the support for guarateed appointment does not appear to have been changed, the new last paragraph seems to take it away. 

 

The last paragraph contains three clauses, any of which the bishop can determine is sufficient to have the pastor “forfeit“ appointment and thus not have that right any more. 

 

The clauses are: “fails to meet professional responsibilities,” “does not demonstrate vocational competence . . .,” “and/or does not accept appointment.”  Each of these is vague enough that bishops will be tempted to use any of them to fire a pastor even though a reasonable procedure is directed in earlier sections of this paragraph.

 

The phrasing of the last part of that last paragraph sounds permissive: “then an appointment MAY be forfeited and provisions of P 362 MAY be invoked.”  (EMPHASIS added.) 

 

With the pastor “forfeiting” his right to appointment without fair process because a bishop determines the pastor fails one of the three criteria, does that actually provide the bishop with the power to dump pastors allowing them no recourse and thus be in violation of P 20, the right to a hearing and appeal to cause a change in conference standing?

 

If the pastor “forfeits” his/her appointment, does that mean s/he also loses status without the vote of any procedure, thus no longer being a member of the annual conference? 

 

But if the pastor retains conference membership and standing but has no appointment, the conference obligates itself to provide that pastor’s support package until the status is changed in the Disciplinary way or an appointment is provided.

 

A challenge to the Judicial Council on this passage would have to be based on a real case where it was clear no fair process was attempted. 

 

If the “hypothetical” (“ruling for clarification” in a request for a declaratory decision) was asked of the Council and they supported the revision, then it would open the flood gates to bishops to fire pastors at will. 

 

If the challenge is based on a case, then it would have a better chance of a more just result from the Judicial Council.

 

RE: P 354 – Leave of absence

 

The Reference Committee left this matter in the Ministry Legislative Committee in which ten GBHEM general board members were involved.  The rationale it was not moved to Judicial Administration legislative committee was that the voluntary and involuntary forms of leave were too intertwined to be separated. 

 

The petition offered by GBHEM was taken over without any serious modifications.  Included in the changes it brings are these:

 

“Transitional leave” is now in the Discipline.  It is a term that has been used already.  It is defined to refer to leaves which cover the time between someone going from appointment to some other status or to beyond the local church appointments,   While it lasts for up to a year, it is intended to be temporary and takes the Cabinet off the hook for those pastors for not finding appointments or for not paying them during the transition period.

 

Pastors on voluntary leave have regained some rights.  They can now belong to conference boards and agencies.  They can have a chance at maintaining health insurance under the conference program.  They can be given special permission by the bishops to do preaching outside the charge conference to which they belong.

 

The Board retains its authority to determine if the grounds of the voluntary leave have been resolved.  I find that onerous.

 

New P 355 describes involuntary leave.  They may not belong to conference boards and agencies.  There is no provision for them to perform pastoral services.  Under certain circumstances, they may be eligible to participate in benefit plans and health insurance.

 

The most onerous addition in the new paragraph allows Cabinets to use involuntary leave to continue a suspension that has gone past 120 days. 

 

That gives the Cabinet the right to change a pastor’s status as well as to punish the pastor by not having to pay support even if church leaders failed to fulfill their obligation to handle the complaint in a timely fashion.

 

This needs to be challenged to the Judicial Council when an appropriate case arises.

                                                                                                    

RE: Other areas of concern

 

Other changes were too modest to report.  Nearly all other concerns in our petitions were rejected by the legislative committees, mainly because they were not seen as better than what GBHEM and the Council of Bishops wanted (or because they had my name on them!). 

 

Cabinets can still treat local pastors and probationary members shabbily and still be within the letter of the law.

 

We did not study the restorative justice sections in any detail but it appears they were not changed, other than to be reorganized in some of the rewrites.

 

And new terminology will be thrown at us. 

 

There were no changes in how Cabinet members can be held accountable.

 

RE: Judicial Council

 

We reviewed a number of members of the new Council, though we did not finish the whole list.  But what we heard about the new members we know, we are hopeful that some of our concerns may be heard, understood, and dealt with.

 

There was concern that the denomination lost at least one competent member when he was not re-elected. 

 

There was concern that the new office of part-time clerk created for the Council as a central point for archives may not work as efficiently for the new secretary as the previous practice.  There are many decisions yet to be made about where the office will be, who will be hired, and just how that office will function.

 

RE: Administrative and Judicial Handbook

 

Our experience has been mixed with the manual authorized by the 1992 General Conference and modified each quadrennium since.  One advocate disowns it completely in his work in his conference and another finds its materials extremely helpful because church leaders ignore its help completely, making the advocate’s role of showing failures to follow reasonable procedures clear to the hearing groups.

 

We anticipate that Irene Howard and Bob Kohler will write the respective sections on the judicial track and the administrative track for GCFA’s manual. 

 

If anyone has any suggestions about past errors and biases, please let me know and we will try to follow up on them with you.

 

One I will send in is to include the COSROW material on sexual harassment that is already in the Legal Manual (yes, Virginia, there is a second major manual to help people go through legal issues.  Go to www.gcfa.org/ and then click on “I’m looking for…” and click next on “Resources.”  Click then on “Legal” and look down the list to “GCFA Legal Manual.”  Clicking on that gives you the table of contents of the legal manual.  Go down on the far left side to “Personnel.”   Clicking on that gives you Section 1 and Section 2.  Click on “Section 2” which opens to the text after which you can scroll down to the passage on “Sexual Harassment/Misconduct Investigative Guidelines,” pp. 64-67.

 

Meditations for our meeting

 

Tom Butts provided us with inspiration as we began.  He talked about problems that may be beyond our powers to fix.  His sermon will be posted on our website after he sends me the draft.  I will also send it by e-mail when it is ready.

 

Bill Boyd’s closing was not written but was a moving experience in which he spoke of the high price of freedom and standing for justice.  His inspiration was Martin Luther King, Jr.

 

Bill urged us to follow three things Dr. King tried to do.  One, always focus on everyone involved, both the poor and unjustly treated and the ones in power who may be abusing that power.  Two, fight for the dignity of all, the “enemies” included.  Three, remain emotionally and physically non-violent.

 

These strategies need to be a part of our approach to our advocacy ministry. 

 

While Bill feels he has received some significant blessings for following these strategies, he promised nothing for us other than being faithful to Christ’s own witness of giving Himself. 

 

Our business

 

One of our new projects is the indexing of Judicial Council Decisions.  The current one I’ve done on the AIA website (www.aiateam.org) is vastly incomplete.  It is technologically possible to burn the decisions to disk and develop the indexing from there.  We discussed other things like developing case law now that there are over a thousand Judicial Council Decisions.

 

There was also a need to get word around about things we learn as we go through a case.  Two of our group have been using P 2715.2 to appeal committee on investigation and pre-trial rulings to the Jurisdictional appeals committee who usually resolved the concern with a conference phone call.  There have been no appeals to the Judicial Council by that route as yet.  But they anticipate the possibility.

 

The website we provide has been used by everyone present.  It was accepted formally as AIA’s project and the subscription for the domain will be paid by the association beginning September 1.

 

We spent a lot of time trying to figure out how to get the bishops, especially the new ones, to accept training in Fair Process.  Ordinarily, none have been involved from a respondent’s point of view so they usually have no idea of what to do except the most expedient thing to get it off their desk.

 

We also discussed briefly who might be good at helping when a Cabinet becomes entrenched about a case and refuses to be open to any resolution but their own.  We have two in our group who may have suggestions.  Let me know if you need help on something like that.  I’ll put you I touch with the two.

 

We ran out of time and did nothing more about helping delegates pick good bishops at the jurisdictional conferences.

 

Some thoughts

 

We hope we will be seen in much the same role in our system as “public defenders” are in the civil court system.

 

We hope to get better definition of “when the clock starts” on a complaint for the purpose of knowing when the time limits are up.  The implication is that the time starts when the complaint is signed by the complainant and given to the DS or bishop.  But there are no clear agreements on that.

 

One line popped up in the discussion:  “Being a martyr is a bitch!”

 

Finally, does anyone have a better word than “hypothetical” which can be used to describe “clarification of the meaning and application of the Discipline?”

 

Next meeting

 

We set November 11-12, 2008, as the likely date for our next meeting.  The agenda will include review of the decisions made by the new Judicial Council.  Tom Butts and I will be developing a possible seminar/training session for advocates that may lead to the extension of our meeting into more than 24 hours.  One resource being considered is inviting a lawyer with skills in cross-examination.  More on that soon.

 

Respectfully offered,

 

Jerry