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.
Showing posts with label JCD 1216. Show all posts
Showing posts with label JCD 1216. Show all posts
Wednesday, November 7, 2012
Tuesday, November 6, 2012
JCM 1227
http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1347&JDMOD=VWD&SN=1201&EN=1229
CHALLENGING A CHURCH CLOSURE
Reconsideration of JCM 1205 and its predecessor JCMs 1176, 1184, and 1192 was sought. The case originated in June 2010 when a church in the California-Nevada Conference was closed without any consultation by anyone in authority with the local church or notice given that a vote to close the church was to be held at conference time.
The Council ruled in JCM 1176 that it had no jurisdiction because the question had been a parliamentary question and not a question of law. JCMs 1184 and 1192 simply denied reconsideration, the usual way the Council deals with such requests. However, in JCM 1205, the Council patiently spelled out the jurisdiction issue reiterating that only a parliamentary question had been asked. In its last sentence of their analysis, they added another important argument.
As I wrote in my commentary on JCM 1205, “In this case, the judicial practice that an action by annual conference was made and not properly challenged at that conference session makes moot any such questions of law made one or more years later.” I also indicated that other cases did not hinge on that (JCD 777). See also JCD 1216.
The persistence of the person seeking the Council’s attention for the fourth time says to me that the conference action is “still devastating to the local church that was closed by fiat by those in power without proper consultation with the church itself” (from my commentary on JCM 1205).
The appellant’s approach is that the Council has not clarified the difference between a parliamentary question and a question of law in the context of his church’s discontinuation done in violation of the Discipline.
I expected that the Council would simply say, “Request denied,” having carefully laid out its rationale in JCM 1205.
Instead, the Council has deferred a decision until their April, 2013, session.
The deferral has no rationale or concurring or dissenting opinions to say why the Council chose not to respond. The significance and difficulty of several of this session’s decisions means that there was no time to consider every request for a ruling. One would think that since JCM 1205 shut the door on further reconsideration and that this request could be settled in a matter of seconds, it might be that there were not enough votes to close the case.
The obvious violation of the Discipline in the actions of the conference to close the church must haunt enough of the Council members that they may have won the day in keeping the request alive, even if only till they finally close the matter on strictly legal grounds. Who knows? Maybe this Council group will not just be legalistic….
CHALLENGING A CHURCH CLOSURE
Reconsideration of JCM 1205 and its predecessor JCMs 1176, 1184, and 1192 was sought. The case originated in June 2010 when a church in the California-Nevada Conference was closed without any consultation by anyone in authority with the local church or notice given that a vote to close the church was to be held at conference time.
The Council ruled in JCM 1176 that it had no jurisdiction because the question had been a parliamentary question and not a question of law. JCMs 1184 and 1192 simply denied reconsideration, the usual way the Council deals with such requests. However, in JCM 1205, the Council patiently spelled out the jurisdiction issue reiterating that only a parliamentary question had been asked. In its last sentence of their analysis, they added another important argument.
As I wrote in my commentary on JCM 1205, “In this case, the judicial practice that an action by annual conference was made and not properly challenged at that conference session makes moot any such questions of law made one or more years later.” I also indicated that other cases did not hinge on that (JCD 777). See also JCD 1216.
The persistence of the person seeking the Council’s attention for the fourth time says to me that the conference action is “still devastating to the local church that was closed by fiat by those in power without proper consultation with the church itself” (from my commentary on JCM 1205).
The appellant’s approach is that the Council has not clarified the difference between a parliamentary question and a question of law in the context of his church’s discontinuation done in violation of the Discipline.
I expected that the Council would simply say, “Request denied,” having carefully laid out its rationale in JCM 1205.
Instead, the Council has deferred a decision until their April, 2013, session.
The deferral has no rationale or concurring or dissenting opinions to say why the Council chose not to respond. The significance and difficulty of several of this session’s decisions means that there was no time to consider every request for a ruling. One would think that since JCM 1205 shut the door on further reconsideration and that this request could be settled in a matter of seconds, it might be that there were not enough votes to close the case.
The obvious violation of the Discipline in the actions of the conference to close the church must haunt enough of the Council members that they may have won the day in keeping the request alive, even if only till they finally close the matter on strictly legal grounds. Who knows? Maybe this Council group will not just be legalistic….
JCD 1228
http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1341&JDMOD=VWD&SN=1201&EN=1229
CONFERENCE POLICY ON CONSENSUAL SEXUAL RELATIONS AMONG PASTORS, STAFF, AND CHURCH MEMBERS
A question of law was raised at the Baltimore-Washington Conference about its policy on consensual sexual relations among pastors, staff, and church members. A section of a policy on sexual misconduct included a means by which to solve a real problem: how may the dating of single consenting adults within a church be wisely addressed?
Unmarried pastors, staff, and church members fall in love just like everyone else. And like everyone else who is an adult, consensual sexual relationships may feel right to the respective couples. Such sexual ties have been allowed in some church contexts when the matter came to being defined in church law: for example, “bundling” is allowed and even encouraged in some Christian groups.
The solution put forward by the new policy was to allow such a relationship if permission is granted by a person in authority in the church. Presumably, that leader knows both parties and trusts their relationship and discretion. That leader might also be able to assess the dangers of abuse of power or conflicts of interest in the relationship and affirm those are irrelevant. And if they were relevant and potentially toxic, the permission would not be granted. If the relationship was consummated in that latter circumstance, one or both of the couple would be subject to sanctions under church law.
One flaw is that the private relationship between two people would no longer be private.
Another flaw is that the United Methodist Church has not dealt with this issue outside of normal institutional practices and guidelines of recent years. Church law is clear: no sex outside of wedlock.
I have not seen the briefs so I have no idea how mature the arguments were with regard to the sensitivity to the dilemma that single pastors and staff face in their dating life. So it is hard to assess the depth of the consideration by the Council of this difficult subject.
The Council did give a bit of a clue, though. It appears they have no sensitivity to single people.
In a unanimous concurring opinion, the Council stomped on singles’ needs by asserting that the only factor involved is the power relationship that the Council presumes always exists in a relationship within the church.
There is always that danger. But not every relationship is tainted by it. Before the furor over clergy sexual misconduct began in the 1990’s, nearly every widowed or divorced pastor I knew found love and marriage within their respective congregations or staffs.
Propinquity reigns as a significant basis for establishing relationships. It always will. Again, it is not the only factor when love comes our way.
It is clear that this Judicial Council group will not allow for propinquity. The concurring opinion makes it sound like a moral matter. But it is a combination of fear of law suits and a fear that people can operate in a mature fashion when it comes to their love life. Ideologically, the Council joins with those who do not trust people in matters of love. The Pharisees would be very at home with them on this issue.
Please understand that many if not most women have experienced cruelty and abuse related to their sexuality by some man in their lives. Their concern about power abuse is well-grounded and deserves as much attention as any other form of abuse in our society. But that does not excuse fierce legalistic rules which are destructive of responsible relationships.
This is not to say the Baltimore-Washington proposed policy is a good option to solve this dilemma. This is not to say there are not dangers of conflict of interest and power abuse. What worries me is the lack of sensitivity to single people’s dating issues. Unfortunately, as a denomination, we are not having an adult conversation about that.
CONFERENCE POLICY ON CONSENSUAL SEXUAL RELATIONS AMONG PASTORS, STAFF, AND CHURCH MEMBERS
A question of law was raised at the Baltimore-Washington Conference about its policy on consensual sexual relations among pastors, staff, and church members. A section of a policy on sexual misconduct included a means by which to solve a real problem: how may the dating of single consenting adults within a church be wisely addressed?
Unmarried pastors, staff, and church members fall in love just like everyone else. And like everyone else who is an adult, consensual sexual relationships may feel right to the respective couples. Such sexual ties have been allowed in some church contexts when the matter came to being defined in church law: for example, “bundling” is allowed and even encouraged in some Christian groups.
The solution put forward by the new policy was to allow such a relationship if permission is granted by a person in authority in the church. Presumably, that leader knows both parties and trusts their relationship and discretion. That leader might also be able to assess the dangers of abuse of power or conflicts of interest in the relationship and affirm those are irrelevant. And if they were relevant and potentially toxic, the permission would not be granted. If the relationship was consummated in that latter circumstance, one or both of the couple would be subject to sanctions under church law.
One flaw is that the private relationship between two people would no longer be private.
Another flaw is that the United Methodist Church has not dealt with this issue outside of normal institutional practices and guidelines of recent years. Church law is clear: no sex outside of wedlock.
I have not seen the briefs so I have no idea how mature the arguments were with regard to the sensitivity to the dilemma that single pastors and staff face in their dating life. So it is hard to assess the depth of the consideration by the Council of this difficult subject.
The Council did give a bit of a clue, though. It appears they have no sensitivity to single people.
In a unanimous concurring opinion, the Council stomped on singles’ needs by asserting that the only factor involved is the power relationship that the Council presumes always exists in a relationship within the church.
There is always that danger. But not every relationship is tainted by it. Before the furor over clergy sexual misconduct began in the 1990’s, nearly every widowed or divorced pastor I knew found love and marriage within their respective congregations or staffs.
Propinquity reigns as a significant basis for establishing relationships. It always will. Again, it is not the only factor when love comes our way.
It is clear that this Judicial Council group will not allow for propinquity. The concurring opinion makes it sound like a moral matter. But it is a combination of fear of law suits and a fear that people can operate in a mature fashion when it comes to their love life. Ideologically, the Council joins with those who do not trust people in matters of love. The Pharisees would be very at home with them on this issue.
Please understand that many if not most women have experienced cruelty and abuse related to their sexuality by some man in their lives. Their concern about power abuse is well-grounded and deserves as much attention as any other form of abuse in our society. But that does not excuse fierce legalistic rules which are destructive of responsible relationships.
This is not to say the Baltimore-Washington proposed policy is a good option to solve this dilemma. This is not to say there are not dangers of conflict of interest and power abuse. What worries me is the lack of sensitivity to single people’s dating issues. Unfortunately, as a denomination, we are not having an adult conversation about that.
Summary Remarks for JCDs 1212 – 1229
1. The new group seems to have picked up where its predecessors left off, avoiding being factional and sticking with church law pretty rigorously. The new Council has also shown little propensity to side with the bishops automatically and has opened the door to accountability of bishops beyond the cases where one may be involved in sexual misconduct.
2. That objectivity about accountability of bishops will face tests in a special hearing set up in November reviewing an appeal of a bishop who was involuntarily retired and again next spring when a former bishop may seek readmission to being a retired bishop.
3. I personally appreciate the posting of the original requests for Judicial Council rulings as they were sent to the Council.
4. In the past, the Council has been unable to resolve cases because of the lack of needed materials that should have been sent in by appellants and conference secretaries. For this session, the New York Conference (JCD 1218) was alone in not sending in all the minutes that would have helped the Council get the full context of the case from them. Another bishop made assertions that he did not document (JCM 1224), something that was not the fault of the conference secretary. This degree of discipline getting documentation asked for by the Judicial Council is admirable and certainly helps facilitate the Council’s work.
5. With the one exception (JCM 1214), the Council wrote in ways that were good continuing education for those needing to know church law.
6. Consistency is always a goal and some questions about it could be raised on the basis of these decisions from the Council (especially JCM 1214).
7. Because of the absence of a “regular” member for whom an alternate had to sit in, there were three “first-timers” dealing with this very big docket. The overall quality of the decisions approaches the level reached by the previous group who had worked together for four years.
8. Even so, there were some things that will have an impact that cannot be fully anticipated (JCDs 1212, 1215, 1218, 1226, and 1229). And maybe some which I think the Council may need to reconsider or they will leave in place some things that hurt the church (JCDs 1216, 1221, and 1228).
9. Finally, if only the rest of us pay attention and provide insights and information useful to this new Council, the denomination will benefit the most.
Note: Many have honored my request for their critiques of these posts as I worked on them. I take full responsibility for what each of these posts says but much wisdom has been shared to improve them.
2. That objectivity about accountability of bishops will face tests in a special hearing set up in November reviewing an appeal of a bishop who was involuntarily retired and again next spring when a former bishop may seek readmission to being a retired bishop.
3. I personally appreciate the posting of the original requests for Judicial Council rulings as they were sent to the Council.
4. In the past, the Council has been unable to resolve cases because of the lack of needed materials that should have been sent in by appellants and conference secretaries. For this session, the New York Conference (JCD 1218) was alone in not sending in all the minutes that would have helped the Council get the full context of the case from them. Another bishop made assertions that he did not document (JCM 1224), something that was not the fault of the conference secretary. This degree of discipline getting documentation asked for by the Judicial Council is admirable and certainly helps facilitate the Council’s work.
5. With the one exception (JCM 1214), the Council wrote in ways that were good continuing education for those needing to know church law.
6. Consistency is always a goal and some questions about it could be raised on the basis of these decisions from the Council (especially JCM 1214).
7. Because of the absence of a “regular” member for whom an alternate had to sit in, there were three “first-timers” dealing with this very big docket. The overall quality of the decisions approaches the level reached by the previous group who had worked together for four years.
8. Even so, there were some things that will have an impact that cannot be fully anticipated (JCDs 1212, 1215, 1218, 1226, and 1229). And maybe some which I think the Council may need to reconsider or they will leave in place some things that hurt the church (JCDs 1216, 1221, and 1228).
9. Finally, if only the rest of us pay attention and provide insights and information useful to this new Council, the denomination will benefit the most.
Note: Many have honored my request for their critiques of these posts as I worked on them. I take full responsibility for what each of these posts says but much wisdom has been shared to improve them.
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