JCD 1314

http://www.umc.org/decisions/67276

Appeal of Involuntary Retirement

This case tests a serious problem with the administrative processes that involuntarily remove a pastor from ministry.  There is no real appeal.

Paragraph 16.7 of the constitution requires the General Conference to provide a “judicial system,” that is, a way to handle complaints.  Paragraph 20 says the General Conference shall not do away with the right to trial and appeal.  Paragraph 58 requires that there be a judicial system that guarantees trial and appeal.

In 1980, the General Conference accepted a separation of kinds of complaints to be handled by the judicial system.  It separated out incompetence and ineffectiveness to be handled in an administrative setting rather than a judicial one.  Over the years, that administrative system has become more complex, including most of the rights of Fair Process provided for the judicial process.  But General Conference has never provided a clear appeal process.

In the judicial track, a complaint goes from bishop to committee on investigation to trial to appeal all the way to the Judicial Council.  In the administrative track, a complaint goes from bishop to conference relations committee to Board of Ordained Ministry to administrative review committee to clergy session.  Appeals by question of law to the bishop were ruled in JCD 799 as inappropriate because of separation of powers.  Appeals by means of request for a declaratory decision put the authority to refer the request to the  Council in the hands of the same body that voted to remove the pastor from ministry involuntarily.  The presider of the clergy session is the bishop who with the cabinet recommended the involuntary action.  In addition, voting during the clergy session are members of the Board of Ordained Ministry and Conference Relations Committee that voted the pastor’s involuntary status.  And on top of that, all voting members are under the watchful eye of the bishop who has their career in his/her hands.

Since when is an appeal going forward dependent on the ones whose decision is being appealed?  In the judicial track, an appeal may be made by the respondent and neither the presider of the trial nor the trial court may prevent the appeal from going forward.  Isn’t an appeal inherently required to be free to go before an impartial person or body who has not been involved in the case being appealed?

That is the problem the advocate and respondent in this case face.

When the original action was taken against the pastor in 2014, his advocate sought to appeal directly to the Judicial Council under Paragraph 2715 to avoid having to have the appeal go through the conference and bishop who had already acted on his case.  In JCD 1276, the Council refused jurisdiction saying that the respondent had to approach them by means of a request for declaratory decision.

In 2015’s annual conference, the respondent did that very thing, and unsurprisingly, the conference voted down his appeal.  When the respondent then asked questions of law about that very problem, the bishop demurred, as allowed by JCD 799 (still, unfortunately, in the rules of the Judicial Council).  And the Council in this decision went along with the bishop.

Problem?  Unresolved.

Can the Judicial Council deal with this problem by pointing out the lack of appeal through the administrative process?  Or will the General Conference have to resolve it?

I believe the Judicial Council will have to point out this problem and perhaps go so far as to rule the administrative track unconstitutional because by means of it, the General Conference has violated Paragraph 20 by “doing away” with the right of trial and appeal.  An involuntarily retired, located, or leave of absence pastor is just as removed from preaching, parsonage, income, and health insurance under appointment as a pastor who is removed by trial.

The reason the General Conference is unlikely to act is because any petitions for addition of appeal to the administrative track would be referred by the Committee on Referral of the General Conference to the Ministry Legislative Committee and not to the Judicial Legislative Committee.  The Ministry Legislative Committee is stacked with members of the General Board of Higher Education and Ministry.  Observation of the nature of the petitions generated by GBHEM since 1980 shows that they have persistently made it easier for bishops to remove pastors administratively.  They also have turned down petitions seeking to add appeal there.  

Perhaps, if the creativity of advocates continues to fail, the creativity of the Council will provide a way.  Something has to change.  The problem is real.

Update:  General Conference in Portland last May passed a route of appeal for administrative cases.  According to new Paragraph 2718.3, an appeal on questions of procedure may be forwarded to the jurisdictional appellate committee for review and, if necessary, appeal can go from there to the Judicial Council.

JCD 1130

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1246&JDMOD=VWD&SN=1100&EN=1181

A retired pastor questioned the bishop in Yellowstone Conference about how a fellow clergy had been administratively removed from conference membership. The bishop chose to have neither the questions nor her response to them entered in the conference minutes. But she did forward them to the Judicial Council. And they chastised her for censoring.

But the Council did nothing about her answers because they have previously ruled that the question of law strategy is inappropriate for handling personnel matters even in the administrative track. There was no trial so the questions could not go to the church trial’s presiding bishop. The questions should probably have been brought to the chairperson of the Conference Relations Committee prior to its hearing with the respondent pastor. And those same questions plus any others that might have been needed should have gone to the chair of the Board of Ordained Ministry when it dealt with the decision of the committee.

The fatal flaw of the administrative process is that there is no right of appeal outside of the conference where the bishop, who is the primary nominator of the Cabinet and the Board, holds influence of command. The final line of appeal goes to the annual conference when the board action is presented to the clergy session. Who presides there? Either the Board chair who already ruled on the questions when they came before the Board or the bishop.

The Council has been consistent in most cases (the most recent exception is JCD 1031 – though JCD 1135 may also be an exception) that such appeals in the form of questions of law cannot go to the bishop.

I believe that is in error for two reasons: one, the bishop is president of the conference and the next in line to whom appeals can go in the administrative track as stated above, and two, because the Discipline gives the bishop the responsibility to “ensure fair process” (Paragraph 415.3).

The bishop was obligated to respond to the questions but was taking cover under the Council’s past decisions that the questions were improper because bishops are supposedly out of the loop (separation of powers). Bishops have enormous clout in all matters of personnel. Fair handling of those in trouble is in the bishop’s hands in many ways and the bishop should be held accountable when fairness is lost. Having to be chastised for a personnel failure is not much real punishment. Neither is being asked to publish the questions and answers as the Discipline requires. Those who “take authority” must also take responsibility. This decision does nearly nothing toward that end.

I can imagine situations where a set of questions might be more damaging to the respondent if they were raised by an antagonist instead of by an advocate. That appears to be a consideration for several of the Council members. But it would be hard to imagine the majority of the Council being so mean-spirited as to insist on publishing such questions.

My experience is that advocates for pastors who were drummed out of ministry through the administrative process have tended to ask question where the embarrassment lay with the conference officers. The meanness experienced by pastors in trouble across the country has come from church leaders and their supporters who administered the process and not from those who challenge the process.

Not having seen the questions nor having any other information about the situation behind this case, I cannot make a valid and thoughtful judgment on this particular case.