JCD 1383

ee.umc.org/decisions/81138

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.

JCM 1357

www.umc.org/decisions/74485

No Jurisdiction – A Parliamentary matter

Update (9/23/18):  Hopefully, this edition will give advocates a clearer view of how their efforts may need to include additional steps.

Those in the Western Pennsylvania Annual Conference raising the questions of law made a very common mistake.  They forgot to follow a fundamental parliamentary procedure to get the annual conference to actually vote on something that could then be brought to the Judicial Council.  

The bishop ruled a resolution out of order that had been raised and printed in the pre-conference report.  The questioners apparently thought that getting it in the pre-conference journal constituted an action of the conference that could be reviewed by the Council.  They had gone to a great deal of trouble to establish a paper trail regarding their desire to ask questions of law related to their concern.  However, the bishop’s ruling that the resolution was out of order was a presider’s action, not a conference action.  As a presider’s action, it was considered “parliamentary” by the Council, something that should have been resolved at the conference level before being sent to the Council.  

To be a conference action, the questioners should have challenged the ruling of the bishop to the house (plenary session).  It is doubtful that a vote by the plenary that supported the bishop would have been sufficient grounds for the Council to be able to take jurisdiction and rule on the resolution.  Had the vote gone against the bishop’s ruling, that would have put the resolution before the body where either a positive or negative vote could have constituted a conference action and thus propelled questions of law about it into the wheelhouse of the Council.  

In any case, the effort to challenge the bishop’s ruling did not occur in this case so the Council had no hook to take jurisdiction.

Essentially the bishop’s ruling that at least a part of the original resolution was in violation of the Discipline stands because the resolution was not passed.  

Finally let me add that this bishop was probably advised incorrectly by some fellow bishops to refuse to acknowledge the questions of law because she had already ruled the resolutions out of order.  The rules of the Council require that the bishop report any questions of law raised, including those on matters the bishop felt were out of order.  The bishop, in that report to the Council, could then spell out why such questions were inappropriate.  Wisely, the bishop followed the Council’s rule on this and did not play power politics which those other bishops may have advised her to do.

JCM 1299

JHYPERLINK "http://www.umc.org/decisions/64862/eyJyZXN1bHRfcGFnZSI6IlwvZGVjaXNpb25zXC9zZWFyY2gtcmVzdWx0cyIsImV4YWN0Ijoic2VhcmNoOmRlY2lzaW9uX251bWJlciJ9" http://www.umc.org/decisions/64862/eyJyZXN1bHRfcGFnZSI6IlwvZGVjaXNpb25zXC9zZWFyY2gtcmVzdWx0cyIsImV4YWN0Ijoic2VhcmNoOmRlY2lzaW9uX251bWJlciJ9

RECONSIDERATION OF DROPPING CHARGES AGAINST A BISHOP

The Western Pennsylvania team seeking justice in dealing with an African bishop who they allege (with ample evidence) misused funds sent by them to his conference were denied reconsideration of the decision that closed down their complaint.  In JCD 1275, the Council ruled that since the College of Bishops in Africa chose not to forward the charges against the bishop in question, the matter was closed.

The docket does not include the arguments seeking reconsideration so I cannot comment on those.  As noted in the update on this blog related to JCD 1275, JCD 1281 essentially closed the case so the Council probably felt that was that.  

If past experience means anything, the Council has been put under extreme pressure from the Council of Bishops to back off their occasional efforts to hold the bishops accountable (my terminology, not theirs).  Followers of this blog know of my opinion that nearly all bishops with whom I have personally spoken have been respectful, poised, and gracious but that the Council of Bishops as a body influences good bishops to allow bad bishops free reign to seek more and more control with less and less accountability, especially on personnel issues.  Someone needs to adapt Reinhold Niebuhr’s MORAL MAN, IMMORAL SOCIETY to the contemporary scene in the United Methodist Church.

It is exceptional when the Council rules in favor of an accused pastor even when the bishop has violated church law, and this Council has done that more than any other since 1992-1996.  Church law is usually there to aid the oppressed and block abuse of power and the Council has sometimes been creative in seeking that out.  

Not having anything more than what has been reported in the past to put Western Pennsylvania’s request in context, it may be that church law is not complete enough to overcome actions (or failure of actions) in our system of holding of a bishop accountable.

In any case, because of this ruling no matter what the Council intends, the bishop in question and his episcopal brothers and sisters can feel a little better protected from challenges to the authority they want to have.

JCD 1281

http://www.umc.org/decisions/59642/eyJyZXN1bHRfcGFnZSI6IlwvZGVjaXNpb25zXC9zZWFyY2gtcmVzdWx0cyIsInJhbmdlLWZyb206ZGVjaXNpb25fZGF0ZSI6IjEwXC8yNVwvMjAxNCJ9

END OF A COMPLAINT AGAINST AN AFRICAN BISHOP

This matter has been dealt with in JCDs 1238, 1241, 1275, and now here.  The Council decided it had no jurisdiction over the way money was sent between Western Pennsylvaniia and the East Africa Annual Conference.  The money sent for a particular pastor was returned to the Western Pennsylvania Conference so it can be sent by other channels to its rightful recipient.  And word has finally come that the College of Bishops acted on the complaints against the bishop in question and dismissed them.

So ends the trust which once existed between an American conference and an African bishop and conference. 

So may end enthusiasm for donors here in the United States to send gifts through foreign bishops.  My retired African missionary colleague is saddened by that prospect because she is well aware of several African bishops who are strict in abiding by good bookkeeping standards and the rules related to funding for mission purposes.

A concurring opinion expresses annoyance at the amount of time that the Council spent on this case when he figures it should have been handled by the Council of Bishops and the African Central Conference College of Bishops.  

That opinion is unmerited.  The Council accepted breaking new ground with respect to reviewing the handling of complaints related to apparent misuse of mission funds.  Trying to be sure it operated in an effective way with respect to what was obviously a serious issue (money handling is always significant when it comes to the matter of trust), the Council was open about its limitations and the difficulty of sorting everything out.  

I’ve registered in commentaries on related decisions where I disagreed with the Council.  But in the course of their efforts, they did clarify some lines of accountability and limits of authority.  

To me, the most important aspect of this case is that people on one continent have the right to bring complaints against someone on another continent.  While other efforts by General Council on Finance and Administration (dealt with in JCD 1298 – this commentary is written after the April, 2015, session) to sanction lack of financial accountability as well as General Board of Global Ministries’ efforts along similar lines have been sorted out to some extent, it took awhile and a lot of correspondence for the Council to get assurances that a Disciplinary action did actually occur (decision by the College of Bishops in the African Central Conference).

Now the issue of rebuilding trust is in those bishops’ hands because they all face possible backlash bacause of the pattern of behavior of the bishop in question.  His own stature has diminished greatly here in America.  It will be interesting to see what it does among his own colleagues in that College.

An old preacher friend once observed that preachers are very much like manure: putting them in one place ends up with what others smell as terrible.  Spread them out all over the place, and they do some real good.

The same applies to bishops.  Every bishop that has spoken with me has come across as of great good will.  But I am most often just appalled by what happens when you put several of them or the whole group in one place.  

I will continue to spell that out as I see it.  The good thing about the Judicial Council . . ., it has laid aside the role it played for many years as “the bishops’ best friend” and frequently now holds them accountable.  I’m sorry the Council didn’t see a way to assure accountability in this case.

JCM 1241

 http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1363&JDMOD=VWD&SN=1201&EN=1259

RECONSIDERATION OF JCD 1238

This memorandum deals with the decision made last spring (JCD 1238) where the Council ruled on three items, accountability for use of funds contributed by Western Pennsylvania Conference; accountability for passing along a specific payment to a particular pastor; and accountability for handling of a complaint.  

The Council ruled that there was no way they could determine who was telling the truth about a breakdown in communications between the African bishop and the American group in Western Pennsylvania, something they might have been able to handle had the funds gone through either the Board of Global Ministries or General Council on Finance and Administration where accounting is more tightly handled.

The Council ruled that the pastor should be paid and would follow up on that.

The Council felt it was in no position to deal with the complaint issue because it had no way to determine the truth where the two parties differed about what happened to the process.

See the posting on this blog about JCD 1238 of last spring.

This memorandum states the Council will not go beyond its previous decision.  The concurring opinion, signed by a minority of the Council, states the Council will continue to take responsibility for the second and third issues which supports the call for payment to the pastor and adds a little more assurance that the complaint will be dealt with.

JCD 1238

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1360&JDMOD=VWD&SN=1201&EN=1240

CONTROL OVER MISSION GIVING AND HANDLING COMPLAINTS

More than a decade ago, Western Pennsylvania Annual Conference entered into a working relationship with the East Africa Annual Conference over projects in Uganda.  The one working with them from the beginning was Rev. Daniel Wandabula.  When members of the American conference toured the sites of the projects, they found incomplete work at one, no financial payment at the second, and a well bored in the wrong place.  During the years of attempting to sort out what happened, Rev. Wandabula became bishop and there was no resolution of the problem over the projects, despite Bishop Wandabula’s promises.

The Judicial Council responded to three issues raised by the Western Pennsylvania group.  With respect to the funding of a church building, the Council felt it had no way to resolve the problem under church law, citing that the funds were handled by the annual conference and not through the General Board of Global Ministries.  Without saying it, the Council was telling Western Pennsylvania, “Buyer beware.” 

There was sharp disagreement as to why so little was done on the church building.  The bishop said there was no response from the Americans when problems arose at the site.  The Americans said there were no communications about the problems prior to their trip to see what was happening.  The Council did not try to resolve that dispute but basically went along with the bishop.

The Council did demand a payment be made to a particular pastor because some records were found that showed the cash had made its way to Uganda and had just not been used for that purpose. 

The third issue had to do with whether or not the complaints brought by the Americans had been processed.  The bishop said they had been dropped and the Americans said they had heard nothing whatever about what happened to the complaints.  The Council ruled that the process was still open until they heard otherwise but did not order anything be done to conclude the process or to have a report forwarded to them about the case.  They will wait for an appeal at the conclusion of the process in order to take a look at the matter.  In practice, that means that the complaints are dead in the water.  If the African Central Conference refuses to act one way or another, the complainants have no recourse.  They cannot appeal something that did not happen nor can they appeal since they are being represented by the Church who cannot appeal a judicial decision except in extraordinary circumstances (usually meaning the matter related to homosexuality).

In effect, the Council found no way to hold the Africans accountable in this case other than to be sure a pastor was paid.  The two African members of the Council were not involved in the East African Conference in any way so they did not need to recuse themselves in this case.

The upshot is that the enthusiasm of the American church to work hand-in-hand with churches and conferences outside the United States may dwindle.  The Board of Global Ministries and the General Council on Finance and Administration are trying to deal with the accountability issues in the financial realm just to minimize discouragement of our desire to help in mission projects.  To see more on that, read the side bar to the article written about this case in the UM Communications article at

http://umcconnections.org/2013/04/21/in-split-decision-churchs-top-court-rules-on-western-pennsylvaniaeast-africa-dispute-2/

As a point of disclosure, Associates in Advocacy was asked to provide an advocate for Bishop Wandabula before the Judicial Council’s hearing.  We were able to offer an experienced pastor advocate and he was present, working with the bishop’s group.  

JCM 1223

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1346&JDMOD=VWD&SN=1201&EN=1229

LEGALITY OF THE USE OF FUNDING IN EAST AFRICAN ANNUAL CONFERENCE

A Western Pennsylvania pastor presented a referral to the Judicial Council challenging the use of funds from his district by a person in the Eastern Africa Annual Conference and the validity of complaints involved.

The matter was deferred to the spring 2013 session.

One colleague knowledgeable about the matter stated that the Council was making sure it gave the bishop every chance to respond to each of the allegations brought in this referral. There were communication and mailing problems related to preparations for the hearing that needed to be addressed. Under the pressure of the large docket the Council was handling this session, the hearing the Council held only further showed the complexity of the situations under consideration.

We are a global church when a lay person in the U. S. can charge a person on another continent with illegal use of funds and a body that is one third international gets to adjudicate it. That’s pretty neat! At this point in time, it also slows the judicial process….