JCD 1230

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1352&JDMOD=VWD&SN=1201&EN=1230

REVERSAL OF THE BLEDSOE INVOLUNTARY RETIREMENT

Introduction

A year or so ago, the South Central Jurisdictional Committee on Episcopacy surveyed various officers, pastors, and lay people of each annual conference in their region. The results were compiled and compared. It appeared to the committee that Bishop Earl Bledsoe did not grade out anywhere near the other bishops. Each bishop was interviewed separately about his or her respective grades. The results for Bishop Bledsoe were very disappointing and no one felt good about it. A sub-committee, acting on the consent of the whole committee, encouraged him to consider early retirement “to preserve the dignity of the bishop and of the Church.” He announced it a few days before it met to the North Texas Annual Conference where he presided.

Other jurisdictions were working on similar evaluations with their bishops based on Paragraph 412 which was new as of 2008. In at least one of the others, a bishop was found lacking at some points and was directed into remedial continuing education as a way to improve his episcopacy and allowed to continue as bishop.

A couple years back, according to media reports, Bishop Bledsoe was asked to participate in a coaching program at Duke University only to show no growth, according to the chairperson of the South Central Jurisdictional Episcopacy Committee. See http://elections.umc.org/juriswdiction-affirms-bledsoes-removal/

After Bishop Bledsoe announced his retirement, colleagues in the annual conference suggested that he should reconsider because it appeared to them that the process did not seem fair and may have had racial motivations. At the session of the annual conference, he announced that he had decided not to step down after all. There was consternation among those who felt he should have retired. And there were hard feelings that he had been put through this among those who supported him.

Though saying he asked for specifics from the committee and they gave him generalities, media accounts at the time say Bishop Bledsoe acknowledged criticism for how consultations on appointments were handled, that the situation around handling a high profile scandal was difficult, and that the Judicial Council had overturned a reorganization plan he’d pushed. Bishop Bledsoe complained that he had no place to turn for support and advice.

The conference lay leader reported that he had told the bishop that morale was extremely low among the clergy, though the laity liked him well enough. The lay leader also reported that there was upset about the conference having three African American bishops in a row. See UMNS Daily Digest for June 6, 2012.

Having some experience in such matters, to me some things didn’t sound right.

I’ve been through evaluations as a pastor. They get to be pretty specific. They did not always show balance by indicating the numbers or sometimes they were not indicating a time or event, but they certainly pointed in directions a pastor could go to improve. I have not seen the evaluation forms to know how detailed they were but I cannot imagine the format failing to provide something of a clear direction. Therefore, I am not sure the bishop should have said that all he got were generalities.

I know some of what other bishops in that jurisdiction have done in the past that were worse than what was acknowledged by Bishop Bledsoe. I wonder why they were not on the bubble too. I would love to see the evaluation format and would like to know when it was devised in relation to when complaints began coming in to the jurisdictional episcopacy committee.

Another very bothersome thing was that the lay leader even mentioned the three-in-a-row critique EVER, let alone in the committee and then to the media.

The other concern coming out of the June reporting was that the bishop failed to take advantage of the episcopacy committee of the annual conference. The Discipline does not provide that it handle complaints. It has been there to be the support system for the bishop to help move through difficult times. Those who tend to ignore that resource are making a huge mistake.

My conclusion is that the bishop had a hard time with criticism, faced a degree of racism, and probably operated in the classic southern tradition of being “in charge” as a bishop, which meant not needing administrative and diplomatic skills, and presuming authority over whatever he wanted. Even so, the whole situation of being subject to criticism before being told what was expected of him, a problem caused by Paragraph 412 being new and its processes begun after he was elected, was inherently unfair.

Given all that, what followed was not without merit. The bishop was then notified of a hearing to consider his being put on involuntary retirement. There were no charges so none were sent in the notice. Apparently the discussions with him during the evaluation were considered adequate warning as to what the hearing would cover. The hearing itself was handled as if it were an administrative hearing under Paragraph 362.2. He was encouraged to have an advocate. He chose former Judicial Council member Dr. Zan Holmes (1992-2000). The committee is reported to have allowed considerable latitude for Dr. Holmes and Bishop Bledsoe to raise questions and offer responses to the questions of the committee.

Once the committee made its decision, the matter was referred to the body which had elected the Bishop (see Judicial Council Decision 475). That body also granted the bishop an opportunity to present his case. And the Jurisdictional Conference then voted to accept the committee’s recommendation for involuntary retirement.

If Fair Process includes being heard before a decision is made, having counsel, having a hearing, and then having the right of appeal, the committee and jurisdictional conference fulfilled the requirements.

Bishop Bledsoe chose to appeal and the Judicial Council accepted jurisdiction under Paragraphs 408.3a and 2609.9. The former included appeal directly to the Judicial Council and the latter granted that the Council was to do what the General Conference asked of it, namely 408.3a.

The Council did an extraordinary thing. It granted two days of hearings for the bishop and for the bishop to have a different former Judicial Council member, Jon Gray, to act as his advocate. Bishops are Elders and Elders have other Elders identified as eligible to be counsel for the respondent (Paragraphs 362.2c and 2712.4). Retired Judge Gray is a lay person. I am uneasy with that, but I believe that every pastor in trouble deserves the best advocate he or she can get.

Since Paragraph 408.3a is new, new practices were an option since the Council has the authority to set its own rules of practice and procedure (Paragraph 2608).

There is another unusual feature of the hearing with the Council. Its president, the Rev. Dr. William Lawrence, is a member of the North Texas Annual Conference. Traditionally, Council members with such a small degree of separation recuse themselves to avoid the appearance of conflict of interest. When they do not, there is usually an explanation provided in the ruling (see JCD 1032). There was no recusal and no explanation. I’m uneasy with that, though I know of no involvement of Dr. Lawrence with the processes at the jurisdictional level.

The decision itself was based on the appeal that there were violations of Fair Process in the way Bishop Bledsoe’s case had been handled. The other aspect of the appeal, the possible unconstitutionality of Paragraph 408.3a, had been resolved during the Council’s regular fall session weeks before the hearing. See JCD 1229.

Interestingly, that decision to rule the paragraph is constitutional is because fewer than six members of the Council thought it was unconstitutional. Beyond that, the Council did not go into any rationale as to why. It is possible that five members thought it was unconstitutional but a previously unquoted portion of Paragraph 2608.2 was used: “An affirmative vote of at least six members of the Council shall be necessary to declare any act of the General Conference unconstitutional.”

It can be noted that briefs for the Bledsoe case were sent in well in advance of the fall session and Council members may have already begun consideration of its nature and concerns before or at the fall session where JCD 1229 was decided. I’m a little uneasy with that timing.

The substance of the case against Bishop Bledsoe was never considered. The Council reviewed process only.

The decision of the Council overturned the involuntary retirement.

Analysis

This Council is a body of educators and they meticulously worked their way through the elements of the case and drew up their conclusions in their usual fashion, full of detail and concepts that help the reader follow their thinking. The decision has enough foundation to be used as a precedent for future cases.

First, let me cite several particulars that may provide strengthening of Fair Process. Second, I will note some new elements which are quite significant because they are unexpected, based on previous decisions of the Council. Third, I will suggest some implications that flow from this decision.

I. Particulars that strengthen Fair Process

There are four particulars which the Council held up as their understanding of Fair Process and which we will expect they will look for in future cases.

One, the “Statement of Reasons” that are the grounds for seeking to take action need to be accurate.

In this case, the statement of the jurisdictional episcopacy committee not only tended to be pretty vague, it failed to include some of what was in the original list of problems given in the committee’s reasons for voting to involuntarily retire the bishop. Further, criteria developed in one evaluation study were not brought into the committee’s original decision because it was not ready until after the process began. The bishop was thus up against a moving target, not being sure what problems would be added next before the end of the proceedings.

Editor’s note: Compare this with JCD 1094 where such specificity in church trials is not required.

Two, the notice for the hearing, given thirty days before that meeting, must include the “Statement of Reasons” and the documentation which supports each of those reasons.

In this case, the thirty-day notice specified in Paragraph 408.3a was ignored. The “Statement” was held back until twenty days prior to the meeting and the documentation came out in spurts, some of it came only when it was requested just prior to the meeting and some was even refused. The bishop not only faced a moving target, he did not have all the evidence that the Church was using for the involuntary “action.”

Three, even though Paragraph 408.3a is brief, it contains the basic elements required for Fair Process: notice, hearing, and appeal. Here, though, the Council inserts the “mandate of Fair Process” which is to be presumed to be operative because it is a “long standing policy.”

For me, that is only twenty years. Fair Process was introduced in 1992 and we have only occasionally seen it actually used. Rather, what we have seen are “alternative methods” and “innovation” with respect to how a pastor should be treated under Fair Process. See the posting in this blog about JCD 1226 for brief descriptions of Cabinet’s typical “alternative methods” and “innovations.”

The Council understands Fair Process “mandate” to mean that notice includes not only the date, time, and place of a hearing as was given thirty days before it, it means that the one facing involuntary action has the right to the two things noted above, specific reasons and full documentation.

In this case, the jurisdictional committee on episcopacy did neither, thinking it was subject to an administrative procedure parallel to Paragraph 362 and Paragraph 358.3, though no one appeared to mention the latter.

Since most administrative actions done with pastors tend to be based on subjective reasons (usually whatever the Cabinet says) with no standard of proof and no requirement for documentation which they can keep safely hidden away in the pastor’s supervisory file, the jurisdictional committee on episcopacy felt it was doing things even better than common practice.

The bishop still faced a moving target which could change at any time without any proof except what his advocate could cajole out of the committee. What the Judicial Council thinks of as the “mandate” of Fair Process was not so thought among the committee.

Four, not only were the reasons for putting the bishop on involuntary leave in flux and not written in clear statements, the committee failed to identify what was “in the best interest of the bishop and of the Church.” Paragraph 408.3a adds that to fair process for bishops.

In this case, the Council felt the committee’s attempt to tie the poor statistics of the annual conference to that was incomplete and not clearly shown to be applied to all of the bishops in the jurisdiction.

The bishop felt he could argue about that but the Council didn’t even consider any substance of the committee’s case against him. That argument became irrelevant in the final decision. Because the committee’s “best interest” phrase was not clear, the bishop really did not have a chance since the vagueness could have illegally allowed the committee to slide over into any other rationale it wanted.

In the Council’s eyes, despite what appeared to be the good intentions of the committee, the bishop really had no chance because of the lack of understanding the committee had about Fair Process at its most crucial initial stages.

In effect, it was a “garbage in – garbage out” circumstance where because of what the Council saw as major flaws in the set up to the hearings for the committee and then for the jurisdictional conference vitiated their respective decisions against Bishop Bledsoe.

II. Unexpected elements of Fair Process

There are four surprises that the Council included in their understanding of the “mandate of Fair Process:” annual conference committee on episcopacy, transcripts, legal fees, and return to seniority and tenure in office.

One, concerns that might lead to involuntary retirement should first pass through the annual conference committee on episcopacy.

Traditionally, as stated above, that group has been a support group. Complaints are to go to the jurisdiction under Paragraph 413. Paragraph 637.3 does not include handling complaints before they go on to the College of Bishops. Bishops rarely thought their episcopacy committee had authority to look over their shoulder except near the end of their first quadrennium.

The implication here is that the annual conference committee should be involved just as the Staff-Parish Relations Committee should be before any concern or complaint enters any involuntary process against a pastor.

That means that the jurisdictional episcopacy committee should refer administrative concerns back to the annual conference to be handled there before taking up a process to retire a bishop against his/her will. That would require referring bad evaluation results as well. This is precedent setting.

Two, transcripts are now reintroduced as critical among the documents required for the Church to provide as evidence. In JCDs 691 and 698, the Judicial Council insisted on written documents, including transcripts, as part of Fair Process. However, General Conference made sure that never was included in the Discipline and the Judicial Council has not previously acknowledged it if it was brought up to them before in administrative cases like this one.

The committee included transcripts in its outline of what it would provide to Bishop Bledsoe. The Council depended on a transcript in its search for clarity about “best interests.”

Such importance of transcripts changes the requirements for future administrative hearings because this decision has set that precedent.

Three, “making whole” a person after a church process is overturned has changed over the years. Prior to 1980, a pastor could only get minimum salary to cover the period he had been improperly removed from office until he was returned to appointment. In JCD 492, the pastor was granted the full pastoral support package including housing, mileage, health insurance, pension rights, etc. General Conference enacted legislation to counter that by stripping housing out of the remuneration but that was later added back.

This decision adds other things to the list of what needs to be repaid by the Church:

"The Judicial Council orders that Bishop W. Earl Bledsoe is entitled to be made whole for all sums, costs, and expenses incurred by him in defense of this action, including, but not limited to, salary, benefits, pension accruals, health, hospitalization, and major medical insurance for himself and his dependents, seniority and tenure of office, relocation expenses, travel and lodging expenses, fees, costs, and related expenses. This amount will be reduced by any funds already received by any contributions provided for the support of Bishop Bledsoe and his defense" (Emphasis added.).

All “fees, costs, and related expenses” owed to the bishop in this case are extended to cover “his defense.” This precedent raises the cost of future flawed procedures against pastors.

Four, in addition to covering legal fees, this decision includes returning the Elder to “seniority and tenure of office.”

Up till now, pastors who won their appeals usually dropped to the bottom of the appointment chain and could look forward to minimum salary appointments the rest of their careers. This precedent requires putting the pastor back into ministry at the same level in which he or she was when the administrative process began.

Imagine, having a denomination that channeled concerns through the support/liaison group between the pastor and the Church, required transcripts of administrative hearings, paid all expenses incurred in the pastor’s defense as well as all other living costs when the process is overturned, and returned the pastor to the same level as he or she had before the mess began. . ., why it would be like belonging to a Christian organization!

III. Implications

As I have observed before, this Judicial Council group continues its practice of careful analysis that treats its readers like adults who want to understand what the law means. This decision like JCD 1156 and many others gives excellent explanations and clarifications about church law and provides a textbook for counsels, advocates, church leaders and wonks like me who have to deal with church law. The decisions of this Council are mostly superior to anything written in the GCFA Administrative and Judicial Procedures Manual.

Besides, this is church law where the manual is not!

I see at least three major implications that flow from this decision of the Judicial Council and a question:

It clarifies how involuntary retirement for bishops can be handled.

It offers a real opportunity for genuine appeal compared to some previous precedents.

It raises the bar for understanding Fair Process.

Will it enhance or discourage holding bishops accountable?

First, this decision does what is very much needed: it clarifies how involuntary retirement procedures for bishops should be handled. While it cannot legislate and does not intend to, the Council does provide definitive steps for Paragraph 408.3a:

(a) inclusion of the annual conference committee on episcopacy in the evaluation process;

(b) the jurisdictional committee on episcopacy’s written notice to the bishop of at least thirty days, with a clear statement of the reasons for such action attached to or placed in the body of the notice;

(c) submission to the bishop, at least thirty days prior to the hearing of all records, documents, etc., relied upon by the jurisdictional committee on episcopacy in the statement of reasons;

(d) a hearing (Editor’s note: including having an advocate with voice);

(e) finding by the Jurisdictional or Central Conference Committee on Episcopacy that involuntary retirement is in the best interest of the bishop and/or the Church, as clearly defined by the Jurisdictional or Central Committee of Episcopacy; and

(f) appeal (Editor’s note: added to complete the steps).

Unfortunately, the writers of Paragraph 408.3a had not thought through what they were saying. Fortunately, the Judicial Council now has.

Second, this appeal is real in that an impartial group evaluates what happened free of the pressures from the parties and conflicts of interest and brings fresh eyes and minds to a situation that could be harmful if mishandled.

In many previous rulings, the Council has deferred to the body and presider closest to the action and to a vote of a conference as making moot any challenges. In this case, despite an earlier decision (JCD 475), the Council has overturned a voted conference action because of bad procedures leading up to those votes.

When in football, there is an appeal for a replay, the details of the play are examined by someone who is not a player on either team for any violations of the rules of the game, and a more fair determination can then be made, sometimes reversing the original call on the field.

The appellate bodies of our Church like the Judicial Council now have precedent to do just that, reviewing what happened and having authority to enforce action against those who improperly cross boundaries even if the original calls about their fairness were made by those closest to the events.

Or put in historical terms, the appeal can show that the end does not justify the means.

Third, this decision raises the bar on applying the “mandate of Fair Process,” especially for administrative hearings. The Council is asking for specificity, documentation including transcripts, timely service, avoidance of shortcuts or variations of process, and involvement of the main personnel body related to the one facing involuntary processes. It also shows the consequences of failing to follow Fair Process, that “making whole” includes the whole pastor support package plus all other costs to the pastor including legal fees plus returning the pastor to the same level of ministry previously held.

To those who would say that this ruling is restricted to only this case, let me point out that that stricture is not included in this decision.

Far more important, if the rules apply to an Elder who happens to be a bishop, then they should also apply to an Elder who happens to be under appointment. Further, Fair Process when applied to anyone else’s case does not belong to one class of members of the denomination but to all. I would be very uneasy if that were not the case.

JCD 1230 sets serious standards for handling of Fair Process in our Church.

IV. Will this encourage or discourage holding bishops accountable?

People in our denomination are going beyond personal disrespect for church leaders who have shown little or no sensitivity to the reality of local churches, pastors, and parishioners. The votes against initiatives of the Council of Bishops at General Conference this year are the most obvious sign that the denomination is standing up to them. That Paragraphs 408.3a and 412 were passed four years ago and that the jurisdictions have implemented them to evaluate bishops points to the trend that bishops will be held accountable, sooner or later.

The Judicial Council’s clarification of what seems like the simplest and lowest key process means that holding bishops accountable can be done following the understandable steps they have laid out.

But will anyone be willing to try, given the expectations are so high as are the costs if the process is flawed no matter what the facts of the case may be?

There is a growing body of people knowledgeable about church law. Thanks to the growing body of decisions from the Council that instruct us as to how to go about following church law in some areas, they can help church leaders charged with handling Fair Process to do it correctly.

But will the Council of Bishops tolerate allowing accountability of their members or their respective superintendents? Can they handle the idea that they are wrong in their presumption that they are above evaluation and some blame for the direction our denomination is heading? Will the General Conference consider legislation that cuts into the power now held by Cabinets and bishops, such as their being able to initiate involuntary procedures against pastors, selecting their own successors, and being the only nominators of all of the groups and individuals who handle personnel and judicial work for the annual conference?

So far the answer to those questions is a resounding “no!”

My guess is that administrative failure by bishops will not be directly addressed by threats of early retirement under Paragraph 408.3a. It will continue to be handled by moving them each four years until they retire. I do anticipate that for the rest of this quadrennium inept or arrogant bishops will be pressured into remedial training and coaching opportunities which would be good even if ineffective.

Let us hope that jurisdictional conferences have become much more astute at picking competent people to elect to the episcopacy and less susceptible to being manipulated into electing “politicians” more interested in power than in helping the Church.

Will bishops face hearings like Bishop Bledsoe did? Probably not.

Had the Council supported the action against him, then all of the bishops might get serious about their administrative and diplomatic skills. I do not see that happening in the current cultural milieu in which the Council of Bishops operates.

Conclusion

This decision is historic. Its implications could be far reaching. It may be used to challenge the cavalier way many conferences do Fair Process which could lead to a significant upgrade in dealing with pastors in trouble, or even bishops in trouble, for that matter.

If past experience means anything, nothing will really change because those who should be most affected will go on, presuming their colleagues in the episcopacy will be better leaders and be loath to challenge or let others challenge their handling of their annual conferences or their own authority.

But a shot has been fired across the bow. Will enough people and enough bishops notice?