Decision Number 1189

SUBJECT TO FINAL EDITING

April 28, 2011

Reconsideration Of Decision 1156

Digest

The cause is remanded again to the Baltimore-Washington Annual Conference with directions to comply fully with the terms of Decision 1156 no later than June 30, 2011. The clergy member is entitled to a full-time appointment. We reaffirm the directive contained in Decision 1156 that the member is to be made whole by receiving equitable compensation as required for clergy, as well as insurance, housing, pension, and other benefits according to the Annual Conference Policy and Procedures for the period beginning February 11, 2010, through the date of this decision and until she receives another appointment or until, through appropriate process, she is determined to be ineligible for appointment. We retain jurisdiction in order to monitor Annual Conference compliance with this decision. Evidence of compliance should be transmitted to the Secretary of the Judicial Council by July 15, 2011.

Statement of Facts

The Baltimore-Washington Annual Conference filed a timely request for reconsideration of Decision 1156 pursuant to Rule IX of the Rules of Practice and Procedure of the Judicial Council. A majority of the Judicial Council voted to reconsider its action.
Pursuant to Rule IX of the Rules of Practice and Procedure of the Judicial Council of The United Methodist Church, the Judicial Council may reconsider its decisions whenever a decision of the Judicial Council is shown to be in error or to prevent manifest injustice resulting from interpretation of a Judicial Council decision. We take notice of all previous filings. In this case, the Baltimore-Washington Annual Conference asserts five assignments of error summarized as follows:

1. Decision 1156 confuses two distinct requests for declaratory decision which related to two different pastors.
2. Decision 1156 is based on a critical factual error that the just resolution agreement and voluntary leave of absence followed the referral of an administrative complaint. In truth, no complaint against Reverend Smith was ever referred to the Board of Ordained Ministry.
3. The errors of fact led to significant errors of law.
4. There was no interference with the Board of Ordained Ministry authority to determine conference relations.
5. Decision 1156 wrongly assumes there was a timely and written request by Reverend Smith to come off leave of absence.

An oral hearing was held on April 28, 2011, in Detroit, Michigan. Bishop John Schol and Thomas E. Starnes appeared on behalf of the Baltimore-Washington Annual Conference. Rev. Dr. Helen Steiner Smith and Rev. Dr. Laura B. Easto appeared on behalf of respondent.

Jurisdiction

The Judicial Council has jurisdiction pursuant to Â¶ 2610 of the 2008 Discipline and Rule IX of the Rules of Practice and Procedure of the Judicial Council of The United Methodist Church.

Analysis and Rationale

Our review of annual conference action is circumscribed by the record found in the Annual Conference minutes and the matters admitted by the parties as relevant to the resolution of the request for a declaratory decision. We do not make findings of fact and make no attempt to resolve disputed factual issues. Although briefs and exhibits supplied by parties and amici curiae are helpful in understanding the issues raised and the positions of the parties, such briefs and exhibits are not suitable substitutes for the official minutes of the Annual Conference record. Briefs and gratuitous statements offered by parties or interested persons may not serve in lieu of the official minutes of the Annual Conference action. See Memorandum 1102 and Memorandum 1145.

The Annual Conference assertion that the two requests for a declaratory decision related to two different pastors is not supported by the record. There is no objective reference within the text of the official minutes of the Annual Conference that indicates that the requests related to different pastors. No other pastor is referenced in the Annual Conference minutes that provide a reliable basis to determine that the requests for declaratory decision related to two different pastors. The parties filings establish that the member was placed on voluntary leave of absence by Annual Conference action and that she complains that additional remedial requirements were added after the voluntary leave of absence began. We have reviewed the original briefs and the briefs filed upon reconsideration. It should be noted that a brief was filed by amicus curiae Rev. Valerie A. Barnes in the original proceedings; however, the minutes of the Annual Conference proceedings made no reference to Rev. Barnes in the request for a declaratory decision. Her amicus brief provided no factual or procedural basis for review. We are bound to consider the record as it presents.
Officers of the church who are involved in the administration of disciplinary process with respect to the conduct of clergy that can result in an adverse effect on the conference relations of a clergy member must strictly comply with disciplinary provisions. Said officers are guardians of a sacred trust to follow faithfully and adhere to disciplinary process. Important rights are in play and the clergy person, as well as those who have grievance against them, must be treated with the utmost fairness. The bishop, the cabinet, the Board of Ordained Ministry, and the clergy session of the Annual Conference all have the responsibility of ensuring that disciplinary procedures and processes are faithfully followed. Attention to the specific language of the Discipline is important because the word complaint is used in multiple senses in the paragraphs.

A central issue in need of clarification is the nature of a just resolution in the context of the supervisory response under Â¶ 361 and a just resolution in the context of an administrative complaint under Â¶ 363. Just resolution may be achieved during the supervisory response under Â¶ 361. When so achieved, the reporting directives contained in Â¶ 361.1(b) are to be followed. Once the process moves to involuntary leave of absence, it cannot revert to supervisory process. By the terms of Â¶ 363, a written statement of resolution achieved after the administrative complaint process begins is subject to final approval by the Board. Moreover, if a just resolution process is attempted after commencement of involuntary leave of absence proceedings have begun results in resolution, the written signed statement of resolution shall be given to the Board of Ordained Ministry. The Board thereafter is permitted to dismiss the matter, retain oversight relating to any terms or conditions of the statement of resolution, or take such other action as deemed appropriate (Â¶ 363.1(b)).

A bishop is authorized under Â¶ 361.1(b) to initiate a supervisory response whenever a complaint is received against a clergy member. The supervisory response is pastoral and administrative and shall be directed toward a just resolution among all parties. Paragraph 361.1(d) directs that the supervisory response is to come to conclusion within the time period set forth. At the conclusion of that time frame, the bishop has one of three options as specified in Â¶ 361.1(d). Paragraph 361.1(d) states as follows:

Upon receiving a written and signed complaint, the Bishop shall, within 45 days, either dismiss the complaint after consultation with the cabinet, as having no basis in law or fact, or shall initiate the supervisory response process. If within 120 days after the initiation of the supervisory response, resolution is not achieved, the bishop shall either:
(1) Refer the matter to 3rd party mediator(s) if this has not been attempted; or
(2) Dismiss the complaint with the consent of the cabinet giving the reasons therefore in writing, a copy of which shall be placed in the pastor's file; or
(3) Refer the matter as an administrative complaint (Â¶ 361.1a) or judicial complaint (Â¶ 2704).

All time limitations may be extended for 30 days upon the consent of the complainant and the respondent.

The supervisory response cannot lead to proceedings for involuntary leave of absence without due observance of the provisions of Â¶ 355 that require a bishop to refer an administrative complaint to the Board of Ordained Ministry. Supervisory process ends when the bishop and the district superintendents decide to proceed to place a member on an involuntary leave of absence without consent.

Under Â¶ 355.1, the bishop and the district superintendents may request an involuntary leave of absence without the consent of the clergy member by giving the clergy member and the Board of Ordained Ministry specific reasons for the request in writing. Fair process for administrative hearings is to be followed as set forth in Â¶ 362.2. Under Â¶ 355.2, an involuntary leave may be requested by the bishop and the district superintendents when:

a. A written or signed complaint is not resolved through the supervisory response process (Â¶ 361.1b) within 120 days and is referred as an administrative complaint (Â¶ 361.1d.).
b. Remedial action is required to address allegations of incompetence, ineffectiveness, or unwillingness or inability to perform ministerial duties, which becomes an administrative complaint (Â¶Â¶ 362.1(a) and 363.2).
c. An administrative or judicial complaint requires more than a ninety-day suspension (Â¶ 361.1c).
Should there be complaints or charges pending at the time of a request for involuntary leave of absence, they should be placed in the personnel file of the clergyperson. All subsequent actions concerning such entries should be duly noted and placed in the file.

The 2008 General Conference made significant changes in the leave processes governing changes in conference relations. Prior versions of the leave process contained in Â¶ 352 (2000 Discipline) and Â¶ 354 (2004 Discipline) required the district superintendent to prepare a statement of specific reasons for the request for involuntary leave of absence to be given to the member and the Board of Ordained Ministry. The 2008 General Conference retained the requirement of a statement of specific reasons for the request in writing (Â¶ 355.1) and added the requirement of the referral of an administrative or judicial complaint by the bishop (Â¶ 355.2). The action of the 2008 General Conference established a bright line between the supervisory response and the administrative complaint process, specified a time limitation for the completion of the supervisory response, and established clear parameters for the bishop and the district superintendents when seeking involuntary leave of absence without consent. The action of the 2008 General Conference established additional procedural safeguards to clergy involved in the supervisory response and in involuntary processes. The conference's briefs make clear reference that a statement of reasons for the request for involuntary leave of absence without consent was given by the district superintendent and the bishop. The record is devoid of any evidence that the bishop referred an administrative complaint to the Board of Ordained Ministry as required by Â¶ 355.2.

The Board of Ordained Ministry's request for reconsideration asserts that the just resolution agreement was consummated in the context of the supervisory response under Â¶ 361. Once the supervisory response ends and the administrative complaint process begins, the Board of Ordained Ministry is authorized to refer an administrative complaint to the bishop for a process that seeks a just resolution under Â¶ 363.1; however, such a referral neither terminates the administrative complaint process nor does it cause such proceedings to revert to the supervisory response. The bishop's request for reconsideration and the supporting briefs filed by the Chair of the Board of Ordained Ministry evidence their misplaced reliance on the assertion that the just resolution agreement finally achieved was part of the supervisory response. The bishop had clearly manifested an intent to move forward with involuntary leave of absence without consent and provided a statement of specific reasons for the request. He was obliged by Â¶ 355.2 also to refer an administrative complaint in order properly to pursue the involuntary leave of absence process. The Annual Conference brief upon reconsideration suggests that the bishop's decision to seek an involuntary leave of absence was based on Â¶ 355.4, and that said paragraph permits commencement of involuntary leave of absence proceedings upon a statement of specific reasons for the request in writing without the referral of an administrative complaint. There is no disciplinary or Judicial Council authority cited in support of this assertion. Paragraph 355.4 is not a stand alone provision, but must be read and applied in its entirety. Even when pursued as an interim action between sessions of the Annual Conference, all provisions of Â¶ 355 are applicable and must be observed. The bishop and the district superintendents are required to give specific reasons for the request in writing to the member and to the Board of Ordained Ministry. In addition to giving the member and the Board of Ordained Ministry a statement of specific reasons for the request in writing, an administrative complaint must be referred to the Board of Ordained Ministry by the bishop.

Decision 973 (cited by the conference parties) interpreted the involuntary leave of absence provisions of the 2000 Discipline. The Annual Conference request for reconsideration correctly cites Decision 973 for the proposition that a statement of specific reasons for a request for an involuntary leave of absence without consent does not constitute an administrative complaint. The Judicial Council held that a district superintendent's statement of reasons for a request for involuntary leave of absence did not constitute a complaint under Â¶ 359.1 (2000 Discipline). Previous versions of involuntary leave of absence procedures contained in the 2000 and 2004 Disciplines vested sole authority to seek involuntary leave of absence in the district superintendents and provided for a review hearing before the bishop, the district superintendents and the executive committee of the Board of Ordained Ministry. The 2000 and 2004 provisions allowed for involuntary leave of absence without the additional procedural safeguard of an administrative complaint. The 2008 General Conference re-wrote Â¶ 355 to specify procedures to be followed in seeking an involuntary leave of absence without consent. According to Â¶ 355.1, the bishop and district superintendents may request involuntary leave of absence without the consent of the clergy member and are required to give the clergy member and the Board of Ordained Ministry in writing specific reasons for the request, preferably ninety days prior to the Annual Conference Session. The 2008 General Conference further amended involuntary leave absence procedures to provide for circumstances when a complaint is not resolved through the supervisory response and is referred as an administrative complaint, when remedial action is required, and when an administrative or judicial complaint requires more than 90 days to complete. The clear intent of the General Conference was to require bishops and superintendents to pursue involuntary leave of absence based on both a statement of reasons for the request in writing and the referral of an administrative complaint by the bishop. Involuntary leave of absence without consent may only be pursued upon referral by the bishop of an administrative complaint after the bishop and the district superintendents have given the clergy member and the Board of Ordained Ministry specific reasons for the request in writing. Each of the provisions authorizing involuntary leave of absence without consent under Â¶ 355 mandates the referral of an administrative or judicial complaint by the bishop.

In Decision 1156 we believed that when the bishop and the district superintendents sought to place the clergy member on involuntary leave of absence without consent, they had properly given the member and the Board of Ordained Ministry a statement of specific reasons for the request in writing and that the bishop had referred an administrative complaint as required by Â¶ 355.2 of the 2008 Discipline. The bishop's failure also to refer as an administrative complaint was a deviation from disciplinary process. Paragraph 355.1 specifies the requirement of a statement of reasons in writing, and Â¶ 355.2 limits the circumstances in which a bishop may request involuntary leave of absence and requires the bishop to refer an administrative or judicial complaint. Each of the instances in Â¶ 355.2 requires the bishop to refer an administrative or judicial complaint. The bishop's failure to comply with Â¶ 355.2 by referral of an administrative complaint along with the statement of specific reasons for the request for involuntary leave of absence in writing is fatal to all succeeding actions. These failures are not cured by the clergy member's eventual agreement to request voluntary leave of absence.

When an end to voluntary leave of absence is desired, a member is required to make a written request to the Board of Ordained Ministry. Upon such a request, the member is entitled to further administrative hearing. The directive in Decision 1156 was not based on a determination that the member had made a proper and timely written request to end her voluntary leave of absence. The directive was for the board to determine whether the circumstances that led to the voluntary leave of absence had been resolved and to grant or deny her request to end her voluntary leave of absence. The board has the option to grant or deny the request and is to make its determination in the administrative hearing process. That determination is to be made by the board without pre-clearance by the bishop or any designee of the bishop. Fair process requires that the member is entitled to hear all information considered by the board. The bishop's point of view on the issue is an integral part of the board's administrative hearing process. Fair process requires the bishop's point of view to be received by the board in the presence of the member during the administrative hearing itself and not in the absence of the member or in an ex parte manner Â¶ 362.2(d). To do otherwise would allow the bishop to determine when and whether the member is heard by the board on matters specifically delegated to the board for determination.

The original brief filed by the chair of the Board of Ordained Ministry made specific note that the request for involuntary leave of absence was the member's failure to carry out pastoral duties and to protect the well-being of the congregation pursuant to Â¶ 361.1(c). Said section authorizes suspension but does not provide the requisite basis to seek involuntary leave of absence. Paragraph 362 provides the following:

Administrative Complaint â€“ 1. Definition of Referred Complaints
a. Administrative Complaint â€“ If the bishop determines that a complaint is based on allegations of incompetence, ineffectiveness, or unwillingness or inability to perform ministerial duties, he or she shall refer the complaint as an administrative complaint to the Board of Ordained Ministry for its consideration of remedial or other action (see Â¶ 363.2). (Emphasis added)
b. Judicial Complaint â€“ If the bishop determines that the complaint is based on allegations of one or more offenses listed in Â¶ 2702.1, the bishop shall refer the complaint to counsel for the church, in accordance with the provisions of Â¶ 2704.2.

Our review of the Discipline shows that the term failure to carry out pastoral duties is not listed as a valid basis to request involuntary leave of absence under Â¶ 355 or as a basis for an administrative or judicial complaint under Â¶ 362. We assume that failure to carry out pastoral duties and to protect the well-being of the congregation, as cited in the brief of the Chair of the Board of Ordained Ministry, is intended to be the functional equivalent of disciplinary allegations of incompetence, ineffectiveness, or unwillingness or inability to perform ministerial duties as codified in Â¶ 362.1. Strict adherence to the Discipline requires strict adherence to rather than innovation upon disciplinary terms. If a bishop determines that a complaint is based on the allegations set forth in Â¶ 362.1, a bishop is required to refer the complaint as an administrative complaint. We originally believed that a written administrative complaint was referred as required by the Discipline. It is now clear that an administrative complaint was not referred. It is also clear that an administrative hearing was convened with the stated aim and purpose of placing the clergy member on involuntary leave of absence without consent. Lacking the necessary procedural predicate of a statement of specific reasons in writing for the request and the referral of an administrative complaint, all succeeding actions are fatally defective.

Paragraph 355 requires that fair process for administrative hearings shall be followed in all involuntary leave of absence procedures. Involuntary leave of absence can only be sought under Â¶ 355 that requires the fair process safeguards of Â¶ 362.2 and Â¶ 363. After a hearing to place the clergy member on involuntary leave of absence without consent was convened, the Board of Ordained Ministry opted, as was its prerogative, to refer the case to the bishop for further attempts at just resolution as referenced in Â¶ 363. Just resolution is available as a part of a supervisory process under Â¶ 361. Just resolution is also referenced in Â¶ 363 and is an available remedy even after the supervisory response ends and the administrative complaint process has been initiated. The Board of Ordained Ministry is authorized to refer an administrative complaint back to the bishop for a process that attempts just resolution; however, such action does not dismiss the administrative complaint. Even when just resolution is achieved after referral by the Board of Ordained Ministry in the administrative complaint process, the members rights continue. Just resolution in such context does not place the parties back in a pre-administrative complaint posture nor does it restart the supervisory response. Once the process of involuntary leave of absence without consent has been commenced, the role of the Board of Ordained Ministry continues according to Â¶Â¶ 362 & 363. The alternatives available once the administrative complaint process begins are those specified in Â¶ 363. Proceedings to place a clergy member on involuntary leave of absence must follow meticulously the provisions of the Discipline. Deviations from the careful processes set forth in the Discipline, even when undertaken in good faith or for the sake of efficiency, fall below acceptable standards of fair process. Under Â¶ 355.1, the bishop and the district superintendents may request an involuntary leave of absence without consent of the clergy and must give the clergy member and the Board of Ordained Ministry the specific reasons for the request in writing. Proceedings under Â¶ 355.2 to place a clergy member on involuntary leave of absence without consent also require the bishop to refer an administrative complaint to the Board of Ordained Ministry.

It was not apparent when we announced Decision 1156, but has become apparent since then upon reconsideration, that some members of the superintendency have continued to process requests for involuntary leave of absence upon a statement of specific reasons alone without the additional disciplinary requirement of referral of an administrative complaint to the Board of Ordained Ministry by the bishop. We encourage annual conferences and boards of ordained ministry to review any and all instances occurring since the effective date of the 2008 Discipline to ensure that full and fair process as intended by the 2008 General Conference was afforded in each case where an involuntary leave of absence process was commenced that resulted in a voluntary or involuntary leave of absence. In instances where appropriate process was not observed, the annual conference should consider taking appropriate steps to resolve any deviation from disciplinary process.

Decision

Under Â¶ 355, the bishop and the district superintendents may request an involuntary leave of absence without the consent of the provisional, associate, or full member by giving to the clergy member and the Board of Ordained Ministry in writing specific reasons for the request. Involuntary leave of absence may be requested by the bishop and the district superintendents when a written or signed complaint is not resolved through the supervisory response within 120 days and is referred as an administrative complaint, when remedial action is required to address allegations of incompetence, ineffectiveness, or unwillingness or inability to perform ministerial duties which becomes an administrative complaint or when an administrative or judicial complaint requires more than a ninety day supervision. Deviations from disciplinary process, even when undertaken in good faith or for the sake of convenience or efficiency fall below acceptable standards of fair process.

The cause is again remanded to the Baltimore-Washington Annual Conference with directions to comply fully with the terms of Decision 1156 no later than June 30, 2011. The clergy member is entitled to a full-time appointment. We reaffirm the directive contained in Decision 1156 that the member is to be made whole by receiving equitable compensation as required for clergy, as well as insurance, housing, pension and other benefits according to the Annual Conference Policy and Procedures for the period beginning February 11, 2010, through the date of this decision and until she receives another appointment or until, through appropriate process, she is determined to be ineligible for appointment. We retain jurisdiction in order to monitor Annual Conference compliance with this decision. Evidence of compliance should be transmitted to the Secretary of the Judicial Council by July 15, 2011.

SUBJECT TO FINAL EDITING

Concurring Opinion

The forthcoming and candid admissions made in this case upon reconsideration by the bishop, the cabinet, and the Chair of the Board of Ordained Ministry are worthy of respect. Candor, however, is not a suitable substitute for adherence to disciplinary process. Under the Discipline, the office of bishop is vested with the authority to institute the supervisory response or to pursue administrative complaints against clergy members leading to involuntary process without consent. The best interests of the Church require that a clergy member whose performance or behavior falls below expected and accepted covenantal standards should be subjected to appropriate disciplinary process. The supervisory response should not include a discussion of involuntary process without consent. The supervisory response is pastoral and administrative and is designed to lead to a just resolution among all parties. I also believe that a bishop should not be timorous about pursuing the more difficult path of involuntary process, whether it be involuntary leave of absence or involuntary retirement. When such a path is chosen, all provisions of the Discipline must be meticulously followed.

Upon review of all the relevant facts admitted by the bishop, the superintendents and the Chair of the Board of Ordained Ministry, and disregarding any contrary or disputed assertions of the respondent pastor, I would find the proceedings by which the member was placed on voluntary leave of absence to be void ab initio due to a total failure of compliance with disciplinary process. In my view, the member deserves a determination of the full extent of her loss from the date of the action placing her on suspension up to and including the date of our decision on reconsideration and is also entitled to be compensated by the Annual Conference until she receives another appointment, or until she is determined to be ineligible for appointment through appropriate disciplinary process.

Jon R Gray

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