Memorandum Number 763
SUBJECT TO FINAL EDITING
Review of Bishop's Decision of Law in the North Central New York Conference Concerning Various Aspects of Grievance Procedures and Bishops' Decisions of Law.
Digest
On the questions of law concerning the various aspects of Grievance Procedures and Bishops' Decisions of Law, the bishop's rulings are affirmed as indicated above.
Statement of Facts
During the June 1, 1995, session of North Central New York Annual Conference, clergy member Robert F. Searle read into the record certain requests for decisions of law.
The records provided questions raised in letters about the grievance procedures related to the bishop and the district superintendent. The Judicial Council declines jurisdiction in these matters without a full and complete record of proper fair process. Therefore, these questions are not addressed in this decision.
By letter dated June 21, 1995, to the secretary of North Central New York Annual Conference, Bishop Hae-Jong Kim submitted his response to the twelve questions as follows:
Question No. 1: When a signed written grievance has been brought by a Pastor-Parish Relations Committee against a district superintendent, which Paragraph has precedence, Par. 529.3 or Par. 454?
Bishop's Response: These two, paragraph 529.3 and paragraph 454 should operate independently of each other. Without a specific fact in hand, the question is difficult to answer. The question in its present form is hypothetical.
The Council's Decision on Question No. 1: Par. 529.3 is applicable to theaccountability of a district superintendent to the Cabinet for their work. Par. 454 relates to grievance procedures for clergy violating the covenant of trust based on ". . .incompetence, ineffectiveness, or any one or more of the offenses listed in Par. 2623. . ." (Par. 454.1b). The bishop's decision is affirmed.
Question No. 2: Is it mandatory for the bishop to make decisions of law when they are submitted in writing in the regular business of the session of Annual Conference?
Bishop's Response: Paragraph 2613 provides that "Normally the bishop shall rule before the close of the Annual Conference session during which the question was submitted, but in no case later than thirty (30) days after the close of the session. The Annual Conference secretary shall enter in the Annual Conference journal an exact statement of the questions submitted and the ruling of the bishop."
The Council's Decision On Question No. 2: Par. 2613 is clear that bishops shallrule on decisions of law "submitted to them in writing in the regular business of a session. . . ." The bishop's decision is affirmed.
Question No. 3: Must those decisions of law be reported to the Annual Conference, hence to the one raising the question and the Judicial Council, no later than thirty days after the close of the session?
Bishop's Response: Paragraph 2613 provides that "The Judicial Council shallpass upon and affirm, modify, or reverse the decisions of law made by bishops in Central, District, Annual, or Jurisdictional Conferences upon questions of law submitted to them in writing in the regular business of a session; and in order to facilitate such review, each bishop shall report annually in writing to the Judicial Council, on forms provided by the council, all the bishop's decisions of law. No such episcopal decision shall be authoritative, except in the case pending, until it has been passed upon by the Judicial Council, but thereafter it shall become the law of the Church to the extent that it is affirmed by the council. Normally the bishop shall rule before the close of the Annual Conference session during which the question was submitted, but in no case later than thirty (30) days after the close of the session. The Annual Conference secretary shall enter in the Annual Conference journal an exact statement of the question submitted and the ruling of the bishop."
The Council's Decision On Question No. 3: Par. 2613 states, ". . . each bishopshall report annually in writing to the Judicial Council, on forms provided by the council, all the bishop's decisions of law." Also, Par. 2613 cites, "The Annual Conference secretary shall enter in the Annual Conference journal an exact statement of the question submitted and the ruling of the bishop." The conference journal is accessible to members of the Annual Conference who may have submitted a written request for a decision of law during a regular session. The bishop's ruling is affirmed.
Question No. 4: May those questions be submitted without them being read aloud on the floor of the Annual Conference?
Bishop's Response: Paragraph 2613 does not say if the question should be read aloud or not read aloud. Because there is no specific reference to whether the question needs to be read aloud or not, the bishop must decide case by case - depending upon specific circumstances. Without knowing the situation, a definitive response as to whether the question needs to be read aloud or not read is difficult to ascertain.
The Council's Decision On Question No. 4: Par. 2613 specifies that questions oflaw shall be submitted to the bishop ". . . in writing in the regular business of a session . . . ." The fact that this submission is to be in the regular business of a session shows that the bishop must recognize the party submitting the questions and therefore it becomes a part of the journal record. Reading such questions is at the discretion of the bishop or as the body decides. Question No. 4 is a parliamentary question and, therefore, is hypothetical and moot. To the extent that the ruling of the bishop means the question is hypothetical, the bishop is affirmed.
Question No. 5: Between regular meetings of the Judicial Council, may the Judicial Council or members thereof, advise the bishops about how to respond to questions of law?
Bishop's Response: On matters pending before the Judicial Council, between regular meetings, neither the Judicial Council nor any members can reply to bishops regarding questions of law.
The Council's Decision On Question No. 5: The bishop's ruling is affirmed withthe understanding that Council's presiding officer or secretary may respond to general questions on procedures of the Council in accordance with Par. 2607. Council members may respond to request for copies of previous Council Decisions.
Question No. 6: May questions of law be brought under paragraphs 2613 and 54 on behalf of a Pastor-Parish Relations Committee on a case pending by their pastor, by their Lay Member of Annual Conference, and/or any other member of the Annual Conference?
Bishop's Response: The question is unclear. More content is needed in order to understand what is being addressed. This makes the question hypothetical.
The Council's Decision On Question No. 6: Under Par. 2613, questions of law maybe submitted in writing in the regular business of a session of Annual Conference. The meaning and effect of this process are that only persons who are members of the Annual Conference, as specified in Par. 702 of the 1992 Discipline, are eligible to submit written questions of law in the regular business of a session. In that the question lacks clarity, the bishop is affirmed.
Question No. 7: No question submitted.
The Council's Decision On Question No. 7: The record shows that there is anerror in the numbering sequence in the questions submitted by Robert F. Searle.
Question No. 8: May the bishop have the discretion of choosing to use Paragraph 529.3 (par. 529.3 "The Cabinet is thus also the body in which the individual district superintendents are held accountable for their work, both for conference and district responsibilities.") to respond to a signed written grievance against a district superintendent or is it unconstitutional under paragraphs 18 and 2622.4?
Bishop's Response: Yes, the bishop may have the discretion to use paragraph 529.3. No, it is not unconstitutional under paragraphs 18 and 2622.4. (Par. 2622.4 "In any involuntary administrative or judicial proceeding, under no circumstances shall one party or counsel, in the absence of the other party or counsel, discuss substantive matters with members of the hearing, trial, or appellate body, while the case is pending. Questions of procedure may be raised with the presiding officer or secretary of the hearing or appellate body.")
The Council's Decision On Question No. 8: Par. 529.3 deals with accountabilityof the district superintendent to the Cabinet and does not deal with the grievance procedure which is described in Par. 454. Par. 18 affirms the right to trial and appeal. Par. 2622.4 prohibits a party or counsel, in absence of the other parties or counsel, from discussing substantive matters with members of a hearing, trial, or appellate body, while the case is pending. Questions of procedure may be raised with the presiding officer or secretary of the hearing or appellate body. Par. 529.3 is not unconstitutional in that it does not deny a district superintendent the right of trial or appeal as required by Par. 18 of the Constitution or by Par. 2622.4. The bishop's decision is affirmed.
Question No. 9: May the bishop or Cabinet go with a signed written grievance directly to the Joint Review Committee without offering mediation? If so, how should Judicial Council Decision 691 be applied which states that "No grievances are excluded by Discipline from mediation?"
Bishop's Response: The decision of the Judicial Council number 691.2 states "No grievances are excluded by Discipline from mediation." Paragraph 464 (sic 454.1a) provides "The supervisory response shall be directed toward justice for and reconciliation between all parties and the clergyperson and may include consultation with the Committee on Pastor-Parish Relations for pastors, the district Committee on Superintendency for district superintendents, or appropriate personnel committee; or mediation in which the parties are assisted in reaching a settlement or agreement satisfactory to all parties by a trained neutral third party mediator or mediation team."
Mediation is not mandatory; mediation is an option. A bishop cannot prohibit mediation. The way the question is stated it is impossible to determine if the bishop and cabinet refused to allow mediation. But, it is to be remembered that mediation is an option, therefore not mandatory.
The Council's Decision On Question No. 9: Reconciliation is the aim of thesupervisory response. In Decision 691 the Council stated, "If mediation is chosen . . .", which clearly does not mandate mediation, but is advisable in order to bring about ". . . justice for and reconciliation between all parties." (Par. 454.1(a)). The bishop's decision is affirmed.
Question No. 10: May an official of an Annual Conference conduct an investigation into allegations of grievance before the grievance is passed onto the Board of Ordained Ministry as a complaint?
Bishop's Response: The question is not clear. It is hypothetical thereforemoot.
The Council's Decision on Question No. 10: The question is hypothetical. Thebishop's decision is affirmed.
Question No. 11: May an officer of the Northeastern College of Bishops or another bishop, neglect to refer the matter as a complaint to the Review Committee of the Jurisdictional Committee of the Episcopacy if reconciliation between all parties and the bishop against whom the complaint was filed has not been achieved?
Bishop's Response: The officer of the College of Bishops may decide not toforward the grievance when/if the College decides the matter was resolved (Paragraph 513.2) or through supervisory activity the desired results are achieved (Paragraph 513.3) or when deemed that there is the lack of substance.
The Council's Decision on Question No. 11: Pars. 513.2 and .3 are applicableonly to members of the Colleges of Bishops. This process has similarities and differences from the process for clergy members of an Annual Conference under Par. 454. However, Par. 2622 on the fair process applies to any administrative or judicial process. Under Pars. 513.2 and .3 when the grievance is resolved by supervisory activity of reconciliation, agreement, or settlement among the parties, there is no further action required. Par. 513.2 states, "The grievance is a written statement claiming misconduct, unsatisfactory performance of ministerial duties, or one or more of the offenses listed on Par. 2623." Also, Par. 513.3 states, "If the supervisory function of the President of the College of Bishops or the designated officer cannot resolve the matter, the College of Bishops may refer the grievance as a complaint to the Review Committee of the Jurisdictional Committee on Episcopacy." However, the College of Bishops may find cause to dismiss a grievance against a bishop. A similar option may be elected by the Conference Board of Ordained Ministry in regard to a complaint against a clergy member of the conference. The bishop's decision is affirmed.
Question No. 12: Can the College of Bishops or any of its members terminatea grievance against one of its members?
Bishop's Response: Yes, the College of Bishops, as the supervisory body, may at their discretion decide not to forward a grievance to the Review Committee (paragraphs 513.2 & 513.3).
The Council's Decision on Question No. 12: The bishop's decision is affirmed.
Question No. 13: Actions taken under Paragraph 454 require a written grievance. Who must be the signer and what is required to be the contents of the grievance for it to receive action under Paragraph 454?
Bishop's Response: A grievance may be signed by a bishop, district superintendent, and/or person filing the complaint. The grievance shall contain as much information as is available at the time the grievance is prepared to give notice of what is being complained of and the time period involved. Paragraph 454. No complaint shall be considered for any misconduct which shall not have been committed within six years immediately preceding the filing of the grievance (paragraph 454.1a) except in the case of sexual or child abuse.
The Council's Decision on Question No. 13: For a clergy member of the Annual Conference, the grievance procedure and related fair process are under Par. 454 and other related paragraphs (Pars. 2622-2628). The complainant signs the grievance, which includes alleged specifications of time, place, events. The formal complaint based on Par. 454.1(b) or Par. 2623.1 is signed by the secretary of the Cabinet or the bishop and forwarded to the chair of the Board of Ordained Ministry. The appropriate disciplinary statute of limitations (Par. 454.1(a) and Decision 691) shall be applied. The bishop's decision is affirmed.