End of an Era – Administrative Involuntary Removal of Pastors Is Unconstitutional
Rev. Robert Zilhaver of the Western Pennsylvania Annual Conference, who wrote the petition that became ¶2718.3-.4, the appeal of involuntary administrative actions against a pastor, requested a declaratory decision on the constitutionality of certain administrative practices used against ministers who may have been incompetent, ineffective, or unable to perform ministry. His request included an option to replace any that were found to be unconstitutional. Peter Milloy and I were the only ones to send briefs. No one else showed concern about Zilhaver’s request, probably because they were all focused on issues surrounding homosexuality and the various plans intended to deal with a potential split in the denomination, or maybe, more wisely, very concerned that we may only have a decade to solve the global warming crisis facing the planet. For whatever reason, no one else realized the impact a ruling on his questions would make.
At issue was Zilhaver’s concern that for every case of involuntary leave of absence, involuntary retirement, administrative location, and discontinuance of provisional members, the final vote of the clergy session allowed cabinet and Board of Ordained Ministries members to vote even though they had a conflict of interest since they had previously been involved in reviewing and voting on those ministers’ cases..
Let me provide some historical background before I share the impact of the decision. I will follow this commentary with an analysis of the questions raised by the instant decision.
Historical background - In the late 1960s and early 1970s, several dynamics hit the United Methodist Church in America. For one, those pastors who had looked after each other during the Great Depression of the 1930s, because of retirement and death, no longer were there to sustain the collegiality annual conferences had experienced. For another, pastors who had entered ministry during World War II had not all been as well trained and their competence in the less desperate times of the postwar era was being questioned. For a third, pastors with mental and physical health issues were not always willing to step down from ministry voluntarily. And fourth, pastors who were Gay began to come out of the closet and even at that time the liberals weren’t comfortable about it.
Bishops had been cooperating on the necessity of keeping pastors in ministry and tended to exchange pastors, transferring them across conference lines to give them a fresh start. But in 1980, General Conference passed legislation that allowed cabinets to initiate involuntary leaves of absence collaborating with the Boards of Ordained Ministry to handle them. Church statistics showed that by 1983, mid-term transfers between conferences dropped to nearly zero and the number of involuntary leaves soared to the numerical heights where transfers had previously been.
That led to such a number of lawsuits against the denomination that General Council on Finance and Administration pushed the 1988 General Conference to form a study commission to evaluate the personnel processes, both judicial and the new administrative ones. Several of us who had been advocates attended meetings of that group as observers and were allowed to contribute to their deliberations. The most significant thing the commission accepted was due process rights for pastors facing involuntary removal.
While that stopped the law suits, along side of which a 1976 Supreme Court ruling that gave denominations with judicial systems (no matter how flawed) free reign on personnel matters, it did not end injustice toward pastors. In fact, legislation passed at succeeding General Conferences limited the role of advocates (even removing the word!) and expanded the authority of bishops and cabinets to remove pastors. Because of the influence of command that bishops had over appointments, many Boards of Ordained Ministry became rubber stamps. Bishops could almost fire a pastor at will without cause, though they had to put up a good excuse that they really didn’t have to prove in the administrative track, nor did they even have to take chargeable offenses through church trials in those conferences where advocates were intimidated and neutralized by the power of the bishop.
But those extra administrative steps of hearings were a pain to the worst of the bishops so they were delighted when the restorative justice movement finally influenced them to introduce “just resolution,” a quasi-mediation format which allowed bishops to “settle out of court” on the bishop’s terms with pastors in trouble.
Many just resolutions fell apart because the pastors faced unrealistic demands and their cases were sent back into the administrative track where the pastors could be removed involuntarily with little proof of cause. And then, those who had already judged and found “guilty” the pastor whose standing was before the clergy session of the annual conference for change at their recommendation, could vote to support their own recommendations.
So with good networking among advocates, the 2016 General Conference passed the right of appeal from administrative processes (see ¶ 2718.3-.4 of the 2016 Discipline). The Council of Bishops requested a declaratory decision about this new passage to which the Council responded a year later (JCD 1361, October, 2018). The Council supported the passage as written so that the appeal had to be addressed before the annual conference could work on the pastor’s standing as recommended by the Board of Ordained Ministry.
Based on two cases on which the original petitioner for ¶ 2718.3-.4 had been asked to consult, he requested a declaratory decision on the constitutionality of members of the Board of Ordained Ministry, administrative review committee, and Cabinet to vote on cases in the clergy session they had already handled in the course of their personnel responsibilities.
In the instant decision, the Council ruled the processes for involuntary leave of absence, involuntary retirement, administrative location, and discontinuance from provisional membership were unconstitutional.
Initial Impact - Whoa! Did that change the game! The bad bishops’ favorite ways of running off pastors they didn’t like were suddenly gone.
Except for cases already in the pipeline prior to Nov. 1, 2019, no conference could use those tactics and would have to figure out other options to deal with pastors in trouble.
The autocratic bishops panicked because they were losing control of their presumption of their right to fire pastors at will disguised in one of those four tactics. The good bishops who rarely used them were concerned about situations where recalcitrant pastors had to be handled by some technique that was involuntary. Advocates were relieved to see a bad system shut down but also had to see what options remained and what new options might be brought into play.
And what of the cases in the pipeline? Everyone wondered how those could be carried to their proper conclusions when the principle of those who acted on the respondent pastor’s case would not be allowed to participate in the clergy session votes or even in the Board’s votes.
These questions will be discussed in the article below. For now, be assured there has been a major shift caused by this decision of the Council. Its fall-out will extend into the coming years and not be resolved by the 2020 General Conference because the decision came after the deadline for new petitions for GC2020.
The Other Questions asked -The original request for a declaratory decision sought to substitute a previous Disciplinary passage from 1992 to resolve the gap left by the decision nullifying the involuntary processes as unconstitutional. That old passage was to direct all involuntary actions through the trial process as a way to avoid the flaw of mixing judicial and legislative functions as the now unconstitutional passages do. The Council saw that as a legislative matter and did not rule on it.
In the past, when the Council has ruled a passage unconstitutional, the passage’s legal predecessor became effective as the law covering the situation. That has yet to be identified. See the article below (What Do We Do Now?) for some possible answers.