Decision Number 814

Review of a Decision of Law of Bishop Robert E. Fannin Concerning the North Alabama Annual Conference's "Policy Statement and Procedures on Misconduct of a Sexual Nature

Digest

The Judicial Council remands the "Policy Statement and Procedures on Misconduct of a Sexual Nature" of the North Alabama Annual Conference for revisions to bring it into conformity with the 1996 Discipline and this Decision. They policy is not in effect until reviewed and approved by the Judicial Council. The ruling of Bishop Robert E. Fannin that the policy is in keeping with the 1996 Discipline is reversed.

Statement of Facts

During its 1997 Annual Conference, the North Alabama Annual Conference adopted a "Policy Statement and Procedures on Misconduct of a Sexual Nature." The Policy Statement addressed sexual harassment, sexual abuse, and misconduct of a sexual nature. The Policy Statement authorized a "Team" appointed by the bishop "... for the purposes of providing a safe place for laypersons (victims and accused) to deal with allegations of sexual harassment, abuse, and misconduct upon the request of one or both parties."

On the last day of the conference, a conference member presented seven questions of law relating to the Policy Statement. Those questions, and a summary of the bishop's rulings are as follows:

1) Does the North Alabama Conference "Policy Statement and Procedures on Misconduct of a Sexual Nature" passed during the business session on Friday, June 6, 1997, comply with The Book of Discipline and with Judicial Council decisions of the United Methodist Church?

Bishop's reply: Yes. The "Policy Statement and Procedures on Misconduct of a Sexual Nature" of the North Alabama Annual Conference of The United Methodist Church complies with The 1996 Book of Discipline of the United Methodist Church, and with Judicial Council decisions. In reviewing Par.65(i) of the Discipline and Judicial Council Decisions 736 and 768, it is clear that the Policy of the North Alabama Conference is in keeping with word and spirit of the Discipline. I would, however, recommend that for clarity the entire Par. 65(i) be included in the statement of policy. In the pre-conference booklet there was an (sic) typographical error in that Par. 65(i) was printed a (sic) Par. 651. This has been corrected and will be published properly in the 1997 Annual Conference Journal.
2) Does the statement, "If the conduct involves a clergy person, it should also be reported to the clergy person's District Superintendent or the Bishop", violate the confidentiality of the pastoral relationship?

Bishop's reply: No.... Confidentiality is addressed in Par. 332.5 and this subject most recently has been addressed by the Judicial Council in its Decisions 788 and 800. The North Alabama policy complies with Par. 332.5 and these two decisions of the Judicial Council. The statement says that the conduct "should" be reported, which leaves the ultimate decision of whether to report the conduct to the person who has been told about the conduct. Assuming that the receiving person is clergy and that s/he was told about the alleged misconduct within the confidentiality of a pastoral relationship, the North Alabama policy would not require this clergy person to breach the confidence by telling the district superintendent or the bishop. The sole purpose of this statement in the policy is to strongly encourage ("should") that the conduct be reported, whenever possible, based on the fact that the supervisory process in Par. 358 of the Discipline clearly encourages and empowers the District Superintendent or Bishop to be responsible for supervising pastors.

3) What is the purpose and membership of the Team?

Bishop's reply; This question is not requesting a ruling of law.

4) Is the Team appointed, composed as described, trained, responsible for the resolution process and operating under established guidelines?

Bishop's reply: This question is not requesting a ruling of law.

5) May the Team be utilized whether the accused is clergy or lay? At which part of the process is the Team available?

Bishop's reply: Yes. The team may be utilized by clergy or lay, but it is very clear in the policy that the team is not mandatory for clergy, but rather is available on an as needed or as requested basis. According to the supervisory process, the Bishop is allowed to use others to assist s/he (sic) in the process. "At the determination of the bishop, persons with qualifications and experience in assessment, intervention, or healing may be selected to assist in the supervisory response." (Par. 358) The team may be one of these resources used for reconciliation.... According to the guidelines the team would be available at the request of any of the persons involved at anytime.

6) Does the Team have access to clergy records?

Bishop's reply: No. The clergy records are kept under strict confidentiality, however, as the Discipline provides the team would be part of the Judicial process as they are related to the accused or the accuser, and thus are within the circle of confidentiality that is implicit (and explicitly required by the Discipline) in the entire judicial process.

7) Does a complaint have to be received as described in the Book of Discipline for the Team to begin?

Bishop's reply: This question is not requesting a ruling of law.

Jurisdiction

The Judicial Council has jurisdiction under Paragraph 2616 of the 1996 Discipline.

Analysis and Rationale

In Decisions 736 and 768, the Judicial Council set out the guidelines for Annual Conferences adopting policies relating to sexual harassment, sexual abuse, and sexual misconduct

In Decision 736, the council ruled that such policies could not "Enlarge or expand chargeable offenses as set forth in Par. 2623 of the Discipline" [Par. 2624 of the 1996 Discipline]; "Violate or conflict with fair process as set forth in Par. 2622" Par. 2623, 1996 Discipline]; "Establish new committees or bodies which have authority to act administratively or judicially on grievances or complaints."

The North Alabama Policy Statement, as written, allows all of the above.

The Policy Statement provides that if the matter involves only laity, the Team could "... deal with allegations of sexual harassment, abuse, and misconduct..."

Par. 2624.3 of the 1996 Discipline identifies charges which may be brought against the laity. Subsection (f) of that Par. names "sexual abuse or harassment." There is no reference in Par. 2624.3 (f) to "sexual misconduct" – unlike in 2624.1 (f), relating to clergy persons, which specifically names "sexual misconduct." Therefore, the Policy Statement, as written, could be read to expand the language of the Discipline. Additionally, the Discipline is misquoted and paraphrased in several places in the policy.

Many of the so-called questions of law deal with the "Team". As phrased, the questions are not asking for rulings of law, but rather interpretation and explanation of the policy. The council has no jurisdiction to review bishops' replies which do not deal with questions of law. However, in the instant policy, the bishop's interpretation of the Team in some instances contradicts the express language of the Policy Statement and the scope of the Team's responsibility appears to go beyond the authority which is in accord with the Discipline and Decision 736. Also, it is noted that the policy "presumes neither innocence nor guilt of the accused or accuser." There must be a presumption of innocence in all sexual ethics policies.

For these reasons, the bishop's ruling that the Policy Statement " is in keeping with the 1996 Book of Discipline" is reversed. Therefore, it is not necessary for this council to give detailed comment on the remaining rulings, although we do note that in some of them, the bishop's rulings are contradicted by the express language of the Policy Statement.

Decision

The Judicial Council remands the "Policy Statement and Procedures on Misconduct of a Sexual Nature" of the North Alabama Annual Conference for revisions to bring it into conformity with the 1996 Discipline and this Decision. This policy is not in effect until reviewed and approved by the Judicial Council. The ruling of Bishop Robert E. Fannin that the policy is in keeping with the 1996 Discipline is reversed.

This copy subject to final editing and correction.