JCD 1216

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1336&JDMOD=VWD&SN=1201&EN=1229

PROPER HANDLING OF A PERONNEL MATTER?

Baltimore Washington Conference’s officers were challenged in a declaratory decision request to the Judicial Council as to whether they followed the Discipline and conference policy in 2010 with respect to the status and to the appointing of a pastor in good standing.

The facts are that the pastor and her local church realized the church could not afford a full-time pastor and asked for a change that acknowledged that reality. The Cabinet accommodated the church but the pastor sought a full time appointment. The Cabinet said they could not find one that was “appropriate” so they suggested several alternatives, one of which was that if she did not take voluntary leave, they would initiate complaints to force an involuntary leave. The pastor chose voluntary leave.

She requested leave again in 2011. The record does not show what she decided to do about seeking appointment in 2012.

The Council reviewed the request about the propriety of the officials’ actions in 2010 and ruled the pastor had been coerced to take voluntary leave and ordered that she be reimbursed at the level of the full pastoral package for 2010-2011. No one questioned her leave of 2011 or of 2012 so the Council did not order reimbursement for those years.

Three issues bother me. Advocacy for the pastor leading to the request which was limited to 2010, the overriding of the annual conference’s vote in 2010 by the Council, and the Cabinet’s decision that there were no “appropriate” appointments for the pastor in 2010.

The first issue, adequacy of advocate, is to some extent my responsibility. It is hard to provide help to an advocate who does not know of Associates in Advocacy’s existence and we have obviously not succeeded in getting word out everywhere that we are available to help.

In this case, the advocate might have been asked by one of our more experienced associates to raise the question including 2011 and 2012 if there was any doubt about the issue of coercion. The statement of facts seems to show there may have been in 2011 where it seems the DS wrote a separate recommendation for voluntary leave indicating problems existed with the pastor but which was not signed by the pastor. Nor did her request for leave indicate problems.

Not having seen the brief, I do not know the specifics which were included there. I do know that past Councils have usually only read what was sent by the bishop and ignored what was sent by the pastor, and ruled as if there were no contending over facts or church law in the case.

Councils during the 1993-1996 period and since 2008 have tended to look at both sides. At least most of the time the Council acknowledged what the appellant raised. And on some occasions it ruled in favor of the one raising the questions.

While advocates have no control over what the Council perceives about a case, we can provide information that the Council may take seriously and find helpful. But the skill and experience of advocates varies and the pastor may or may not be adequately helped.

Each advocate operates within the milieu of an annual conference and what the pastor is concerned about. An outsider like me may not have enough information to criticize. But this case may have had enough more to it that the second year and this year could have been in play for reimbursement as well as the first. My hope is that the pastor is satisfied with the Council’s decision and that the advocate did the best job possible under the circumstances.

The second issue, the Council’s willingness to override a vote of the clergy session about the leave of absence in 2010 is of interest because the Council has taken such a vote as making moot anything not raised at the time of the decision (see JCM 1205).

I am in agreement that the Council was correct in overriding the annual conference in this case. I hope the Council will be ready to override bodies whose decisions were reached without proper procedures having been followed before those decisions were made (see JCD 777). Perhaps JCM 1227 relates to one such case.

The third and most disturbing issue I see in this case is the acceptance by the Council of the statement that the Cabinet could not find an “appropriate appointment” for the pastor. That means that of all the appointments that were open at the time, the Cabinet felt it had none into which they could place her.

In other words, the Council inadvertently supports the Cabinet’s having the authority to determine a pastor is unappointable without fair process showing otherwise. This is contrary to precedent such as cited in JCD 702: “It would be necessary to follow the correct procedure before a bishop could refuse to appoint.”

The Cabinet is stuck all the time with having to place pastors in appointments that are not “appropriate.”

That’s the weakness of our polity, especially when the last matches are made. That problem is illustrated by a game devised by Bishop Dan Solomon for his colleagues and for training Staff Parish Relations Committees wherein no pastor’s gifts and graces match the needs and desires of any of the churches described in the game.

The strength of our denomination is that it seeks the highest quality clergy who should be able to perform adequately in any appointment. More important, the role of any supervisory entity is to help those “inappropriately” matched to succeed together and assure both that a change will be made when more “appropriate” options are available. Every new pastor starts out that way. When our system is functioning, the superintendent and/or mentors help where the match is problematic.

By making the unilateral judgment that the pastor in this case was not appropriate for an appointment somewhere, the Cabinet violated the primary covenant pastors enter when they join the conference. By that judgment, the conference leaders are judged: they are unwilling to perform the ministry to which we have set them aside as Cabinet members.

Of these three issues, competence of advocate, overriding a conference vote, and a Cabinet’s determining “appropriate” appointments as grounds not to offer an appointment, I hope the Council will reconsider the last in this case in order to prevent such abuses and incompetence by Cabinets.

UPDATE: The Council has not docketed reconsideration on this point about "appropriate appointments" as of this update.

JCD 1216 is significant in that it defines "coercion." Coercion has been prohibited in one previous decision (JCD 798) where a withdrawal is final unless it was done under coercion. In this case, coercion was seen by the Judicial Council in the simple fact that the pastor was given only two options, a voluntary one (voluntary leave of absence) and an involuntary one (involuntary leave of absence).

If the Council uses this as precedent, then when a bishop tells a pastor that the only options available are withdrawal or trial, one is voluntary and the other is not, the bishop is coercing the pastor. In the dissenting opinion, it is suggested that the mere mention of those two options is not coercion if that happens outside of the administrative or judicial processes. In JCD 1230, following the precedent of JCD 704, that the submission of a written complaint is the true beginning of Fair Process, then contrary to the the current practice of acting as though contacts with the pastor whether informal or formal under "supervisory response" is not judicial or administrative, a bishop can "mention" just the two and would technically not be coercive. But the message is clear to the pastor. That was the bishop (or superintendent) who said it and it is intimidating. And therefore, it is coercive even in the non-forml process setting.

Besides, offering only two options is a lie. There are always other options like written reprimand, referral for medical or psychological evaluation, continuing education, putting the complaint in abeyance until a related civil action is concluded, or even withdrawing the complaint for its violating fair process requirements or because different information comes up which disproves the complaint. There are also always the possibilities of using restorative justice or mediation (PP 2701.5 and 363.1c).

Coercion occurs when the choice is between a voluntary and an involuntary option to the exclusion of all others that are always available such as postponement for medical, legal, or variations on negotiations to settle the matter.