Decision Number 782

Petition from the West Michigan Conference for a Declaratory Decision as to the Status of a Clergy Member Affected by Leave of Absence Procedures, in Light of Pars. 36, 448.11 704.4, and 705.6. and Review of Bishops Decision of Law in the West Michigan Conference Concerning Legality of Leave of Absence Recommendations and Actions.

Digest

The respondent is placed in the same status as he would have been before the special clergy session of the West Michigan Annual Conference. He is entitled to salary and other benefits as of July 11, 1995, and to a pastoral appointment immediately. The questions of law referred to Donald Ott, the presiding bishop, and his answers are now, in light of the ruling on this declaratory decision, either duplicative or irrelevant to the issue.

Statement of Facts

Clergy member Marvin Rosa was on voluntary leave of absence for the 1994-1995 year and on December 8, 1994, he requested in writing to terminate this voluntary leave effective July 1, 1995. The Board of Ordained Ministry approved this request. On June 13, 1995, the clergy session of the 1995 West Michigan Annual conference, in response to that motion, voted that Rosa "be continued on leave of absence." At a Cabinet meeting on June 27, 1995, the district superintendents voted to place Rosa on involuntary leave of absence with the effective date to be determined upon completion of the processes pursuant to Pars. 448.1(b) and 2622 of the Discipline. The basis given for this action was that the clergy session of the past June voted to continue Rosa "on leave of absence." Rosa was notified of his rights to a hearing if he so requested within 10 days. The hearing was held on August 31, 1995 by the executive committee of the Board of Ordained Ministry with the full Cabinet present and the decision was made to place Rosa on an interim involuntary leave effective September 1, 1995. On October 23, 1995, a special clergy session of the West Michigan Annual Conference was held to review the Executive Committees' action. A two-thirds vote was not received for approval of the action.

Matters involving the same issues have reached the Judicial Council from two routes. Sixteen questions of law were presented by Marvin Rosa to the presiding bishop, Donald Ott, were answered, and came to the Judicial Council for review.


In addition, by motion, the special clergy session of the West Michigan Annual Conference seeks a declaratory decision from the Judicial Council on four questions in accordance with Par. 2616 of the Discipline. Some of the questions in the motion and in the questions and answers of law overlap.

Although the Judicial Council does not ordinarily grant an oral hearing on a review of a decision of law by a presiding bishop, an oral hearing was held in reference to the motion for a declaratory decision, with Bishop Donald Ott and S. Dale Lathers participating.

Jurisdiction

The Judicial Council has jurisdiction under Pars, 2616 and 2613 of the 1992 Discipline.

Analysis and Rationale

In the course of the clergy session on June 13, 1995, a motion was made that, "By the will of this executive session, Marvin Rosa be continued on leave of absence." It was seconded and passed by a majority vote of 147 yes, 120 no, with 6 abstentions.

Bishop Ott gave a lengthy explanation of what he believed the conference's parliamentary status was regarding the vote.

Bishop Ott explained, "I wish to explain the parliamentary situation you are in. The motion would overturn the action of the Board of Ordained Ministry. It would confirm the desire of this body to retain Marvin Rosa on leave of absence." Immediately, it would require the Chairperson to go to Mr. Rosa to ask it he would remain in "voluntary leave of absence, It he were not to accept, you would be placing him on leave of absence without consent, That would trigger protection from the Discipline. The cabinet would need to meet. They would have to determine that there were reasons, They would have to vote. They would have to inform Marvin Rosa. A hearing would include the Executive Committee of the Board of Ordained Ministry, the Cabinet and the Bishop. That hearing would determine whether he were to be placed on involuntary leave of absence, If this happened it would take place away from the seat of conference, it would be an ad interim involuntary leave of absence. Such involuntary leave of absence would have to be approved at the next clergy session.


We will take the questions submitted for declaratory judgment in numerical order,

Question 1.

Did the June 13, 1995 West Michigan clergy session have the right to initiate matters relative to the conference relationship of one of its members, in light of the 1992 Book of Discipline paragraphs 36 (The Constitution Section VII, Article II); 704.4, 705.6 and Judicial Council Decision 6907 (sic).

We quote with favor the facts as outlined on page four of respondent counsel's brief, which state: During the 1994-95 church year, Rev. Rosa was on a voluntary leave of absence. In December of 1995 (sic) he made a timely request to return from leave effective at the end of the one year period on July 1, 1995. The Board of Ordained Ministry met to review the circumstances surrounding the leave of absence and voted to return Rev. Rosa from Leave effective July 1, 1995. He was advised by this decision by letter of February 28, 1995.

Prior to the clergy session on June 13, the District Superintendents did not take action to initiate a leave, Rev. Rosa did not request additional leave, the Board of Ordained Ministry took no action except that indicated on February 28 to return Rev. Rosa to an appointment, Rev. Rosa received no notice that further leave was being considered, and Rev. Rosa had already received an appointment to be effective July 1, 1995 which both he and the local church had accepted.

As a result of the vote of the clergy session on June 13, 1995, Rosa did not receive an appointment, but was rather placed at that time on an illegally processed leave of absence. Par. 448.1 of the Discipline states:
Leave of Absence.-1. This relationship is granted to clergy who are probationary, associate, and full members who because of sufficient reason, are unable to or who chose temporarily to cease to perform the duties of full-time itinerant ministry. This relationship may be initiated by the minister as a voluntary leave of absence or the district superintendents as an involuntary leave of absence through the Board of ordained Ministry, and granted or renewed by the vote of the executive session of clergy members in full connection of the Annual Conference upon the board is recommendation. The fair process as set forth in Par. 2622 shall be followed in any involuntary leave of absence procedure. Between sessions of the Annual Conference, leave of absence may be granted or terminated, with the approval of the bishop and district superintendents, by the executive committee of the Board of Ordained Ministry. This interim action shall be subject to the approval of the executive session of clergy members in full connection with the Annual Conference at its next session.

This leave shall be counted as a part of the eight-year limit for probationary members unless the eight-year limit is extended by the executive session of the clergy members in full connection with the Annual Conference upon the recommendation of the Board of Ordained Ministry. Should there be grievances, complaints, or charges pending at the time of a request for leave of absence, they should be placed in the file of the clergy member. All subsequent actions concerning such entries should be duly noted and placed in the file, Clergy members on leaves of absence shall have no claim on the conference funds. However, in exceptional circumstances, on the recommendation of the district superintendents, salary and/or other benefits may be granted by vote of the executive session of the clergy members in full connection with the Annual Conference. In an interim between sessions of the Annual Conference, by vote of the bishop, Cabinet, and executive committee of the Board of Ordained Ministry, salary and/or benefits may be granted Clergy members on leaves of absence shall not be eligible for membership on Annual, Jurisdictional, Central, or General Conference agencies and may not be elected or serve as delegates to General or Jurisdictional Conferences. Involuntary leaves of absence shall be approved by two-thirds vote of the clergy members in full connection at a session of the Annual Conference.

a) Voluntary Leave of Absence. - The written request for this relationship should be made at least ninety (90) days prior to the Annual Conference session, giving specific reasons for the request. Representatives of the Annual conference Board of Ordained Ministry may interview the clergy member to determine sufficient cause. This relationship shall be approved annually upon written request of the clergy member and shall not be granted for more than five years in succession except by a two-thirds (2/3) vote of the clergy members in full connection.

b) Involuntary Leave of Absence. - The District superintendents may request an involuntary leave of absence without the consent of the clergy member, at least ninety (90) days prior to the Annual Conference session. They shall give to the clergy member and the Board of Ordained Ministry in writing specific reasons for the request. The clergy member has the right to a hearing before the bishop, district superintendents, and executive committee of the Board of Ordained Ministry prior to being placed on involuntary leave of absence, By two-thirds vote of the executive session of clergy members in full connection with the Annual Conference, upon recommendation of the bishop, district superintendents,, and Board of Ordained Ministry, the ninety-day notice requirement may be waived. This relation shall be approved annually upon written request of the district superintendents and shall not be approved for more than three years in succession.

There will be an Administrative Review Committee composed of three members and one alternate in full connection who are not members of the Cabinet, Board of Ordained Ministry, or Joint Review Committee. This committee shall be nominated by the bishop and elected quadrennially by the executive session of clergy members in full connection with the Annual Conference. Its purpose shall be to ensure that the Disciplinary procedures for involuntary leave of absence were properly followed. The entire process leading to the recommendation for involuntary leave of absence shall be reviewed by the Administrative Review Committee and it shall report its findings to the executive session of clergy members in full connection with the Annual Conference.

Involuntary leave of absence shall be approved be two-thirds vote of the clergy members in full connection at a session of the Annual Conference. The vote held on June 13 of the clergy session did not fulfill this requirement nor the requirements of Par. 2622, or Pars. 36, 704.4, 705.6. (See also Decision 697.) Therefore, we rule that while the West Michigan clergy session did have the right to vote on Rosa's request to come off voluntary leave, it could not legally place Rosa on an involuntary leave.

Question 2.

In light of the f act that on June 13, 1995 the clergy session sustained the motion that "by the will of this executive session (the names (sic) clergy person) be continued on leave of absence" and in light of the facts that neither had the clergy person requested a continuance of a voluntary leave of absence, nor had the District Superintendents initiated a process for an involuntary leave of absence; was a two-thirds requirement of the 1992 Book of Discipline Paragraph 448.1 applicable to this motion?

To reiterate, extension of the voluntary leave was not voted on, and could not be under the circumstances.

We refer to Decision 650 of the Judicial council in which a similar situation existed, and we hold that even if it were legally possible to vote for an involuntary leave, there was a requirement for a two-thirds vote in this matter, which was not met.

Question 3.

What was the status of the clergy person from July 1, 1995 until September 1, 1995 when the clergy person was placed,, ad interim, on involuntary leave of absence following the initiation of such. processes by the District Superintendents on June 27, 1995 and a hearing before the Executive Committee of the Board of Ordained Ministry, the Bishop and the District Superintendents on August 31, 1995?

It is to be noted that the 1992 Discipline substantially changed the language of Par. 448, and that a requirement of fair process was added under Par. 2622.

Therefore, Rosa was without an appointment and was placed on leave of absence in an improper fashion from July 1, 1995 through August 31, 1995. He is entitled to salary and other benefits for that period.

Question No. 4.

What is the current status of the said clergy person subsequent to the action of the October 23, 1995 clergy session in which the session did not sustain an involuntary leave of absence motion, and in light of the June 13, 1995 clergy session action that "by the will of this executive session Marv Rosa be continued on leave of absence"?

Again, we quote with favor from Counsel's brief in which he stated that the action of the clergy session was illegal for the following reasons:

% The meeting of June 27 was not a meeting of the District Superintendents, but rather a Cabinet meeting at which the Bishop and assistant were involved.

% The District Superintendents state the reasons for their action was that the clergy session had already voted to place him on leave. This notice does not provide "sufficient reasons" for a leave as required by 448.1.

% Neither did the notice received relative to the right to hearing provide specifics required for the respondent to prepare a defense as required by 2622.2.

% At the hearing before the Executive Committee of the Board on August 31, the presumption of innocence was not maintained in violation of 2622.

Therefore, the appropriate answer to this question is that since July 1, 1995, Rosa has been improperly listed on leave of absence.

Having reached this four-part declaratory decision, it is not necessary or helpful to rule on the 16 questions of law, as the material is either duplicative or irrelevant.

We find that the provisions for fair process and the two-thirds vote requirement for the imposition of an involuntary leave were not followed. Consequently, the respondent, is placed in the same status in which he would have been prior to the special clergy session and is entitled to salary and other benefits retroactive to July 1, 1995.

Decision

The respondent is placed in the same status as he would have been before the special clergy session of the West Michigan Annual conference. He is entitled to salary and other benefits as of July 11, 1995, and to a pastoral appointment immediately. The questions of law referred to Donald Ott, the presiding bishop, and his answers are now, in light of the ruling on this declaratory decision, either duplicative or irrelevant to the issue:

Tom Matheny, President

Wayne Coffin, Secretary

Concurring Opinion

In Par. 448 of the 1992 Discipline there is a missing link related to voluntary leave of absence and involuntary leave of absence. There is lack of clarity on the subsequent status of a clergy member, who makes a timely, written request to terminate a voluntary leave of absence, with the affirmative recommendation of the Board of Ordained Ministry to the clergy session. A major problem arises, in the event, vote of the clergy session denies the request to terminate the voluntary leave of absence. A majority vote of the clergy session is required to grant a voluntary leave of absence, if the circumstances of the leave have been alleviated or resolved (Par. 448.4). The primary question of subsequent status of the clergy member arises when the vote denies the termination of voluntary leave of absence. Is the clergy member in "good standing" by default without an intentional majority vote of the clergy session or does the status of voluntary leave of absence continue?

In brief, when termination of voluntary leave is requested, the 1992 Discipline is not clear that by majority votes the clergy session may continue the status of voluntary leave of absence, or that the clergy member's status reverts to involuntary leave of absence.

Regarding the right to vote, Decision 632 notes: "Par. 36, Article II of the Constitution reserves to the Annual Conference the right to vote on, and thus determine, all matters relating to the character and conference relationship of its ministerial members. Since an "involuntary leave of absence," as set forth in  448.1, is a conference relationship to be determined by the Annual Conference under 36 of the Constitution, Par. 448.1 is constitutional."

The phrase "involuntary leave of absence" as used in 448 has reference to a relationship which a ministerial member holds to the Annual Conference. It is not punitive.

With involuntary leave of absence an additional problem exists. The current process requires two-thirds (2/3) vote to grant or terminate involuntary leave of absence (Par. 448.1(b)) and the fair process (Par. 2622) which includes notice, hearing, right of advocacy, etc. The effect of this required two-thirds (2/3) vote by the clergy session means that one-third (1/3) plus one additional vote may determine the status by not granting an involuntary leave of absence. One consequence of such action during the Annual Conference session most certainly places a clergy member at disadvantage for the proper consultation in an appointment process, which in many conferences would be near completion. Par. 448.1(b) allows for the ninety (90) days notice to be waived. Even interim involuntary leave of absence, family leave (Par. 451), and disability leave (Par. 449) are subject to such a potential vote when reported to the clergy session.

The Discipline is not clear on the effect of the noted actions on these two leaves of absence by the clergy session. Attention to legislation by the General Conference is needed in Par. 448:

1. To address a process for granting or terminating voluntary leave of absence, which continues allowing the clergy session to restore qualified clergy into full membership in the conference by at least by majority vote, rather than default.

2. To clearly state whether or not a clergy member, who requested termination of voluntary leave of absence, may be continued on voluntary leave of absence by majority vote which denies the termination.

3. To address a process for granting or terminating involuntary leave of absence, which is determined by more than one-third vote plus one vote.

4. To determine whether or not, when a stated margin of votes is not received, a clergy member on voluntary leave of absence may be continued, until the circumstances for granting the leave have been alleviated or resolved (Par. 448.4) or the fair process is followed to change status to involuntary leave of absence.

Evelynn S. Caterson

Theodore H. Walter