Decision Number 917

SUBJECT TO FINAL EDITING

October 25, 2001

Request from the California-Pacific Annual Conference for a Declaratory Decision on the Appropriateness of a Cabinet Member Participating in the Administrative Process of the Board of Ordained Ministry Under ¶¶ 318.6, 356.3 and 359.3 of the 2000 Discipline.

Digest

The doctrine of separation of powers and the provisions of fair process in administrative hearings prohibit the district superintendent named by the bishop as a representative of the cabinet from participating in the deliberations of the board of ordained ministry, and its committees, and voting in such bodies, on the administrative processes under ¶ 318.6 (involuntary discontinuation of probationary membership), ¶ 356.3 (involuntary retirement), and ¶ 359.3 (administrative complaint). In any such matter, the district superintendent shall not be present for the deliberations and the vote, and shall not discuss with the board of ordained ministry and its committees substantive issues in the absence of the responding clergyperson.

Statement of Facts

At the 2001 meeting of the California-Pacific Annual Conference, the conference approved a request for a declaratory decision under the provisions of Â¶ 2610.2(j) of the 2000 Discipline. The annual conference has requested a declaratory decision on the following question:

Since the district superintendent is â€œan extension of the oversight of the bishopâ€ (Â¶ 405.2) [sic] and Judicial Council Decisions 832 [sic], 909, 799 and 830 all speak of the Constitutional Separation [sic] of powers and its limitations on the office of bishop, is it proper to [sic] the cabinet member serving on the Board of Ordained Ministry to participate in administrative processes under Â¶ 318.6, Â¶ 359.3 or Â¶ 356.3?

Appearing at an oral hearing on October 25, 2001, were Richard R. Bentley, Jr. and Thomas H. Griffith, representing the California-Pacific Annual Conference, and Robert F. Kohler, representing the General Board of Higher Education and Ministry.

Jurisdiction

The Judicial Council has jurisdiction in this matter under Â¶ 2610 of the 2000 Discipline.

Analysis and Rationale

In Decision 398, the Judicial Council observed that the itinerant district superintendency is clearly an administrative arm of the itinerant general superintendency, established in the Constitution and law of The United Methodist Church as the basis of its distinctive connectionalism. This long-standing principle of our church is expressed in the language of our Discipline in Â¶Â¶ 401 and 404.2.

"Inasmuch as the district superintendency is an extension of the general superintendency, the bishop appoints the elders who serve as district superintendents. Â¶417. Through their selection as district superintendents, these elders become members of the cabinet. Â¶429.1. Paragraph 429.2 of the Discipline provides, The cabinet under the leadership of the bishop is the expression of superintending leadership in and through the annual conference. Furthermore, the cabinet is charged with the oversight of the spiritual and temporal affairs of a conference, to be executed in regularized consultation and cooperation with other councils and service agencies of the conference. Â¶ 429.4. Specifically, the cabinet is to consult and plan with the district committee and conference board of ordained ministry in order to make a thorough analysis of the needs of the district for clergy, implementing this planning with a positive and conscious effort to fill these needs. . . ." Â¶ 429.5.

Unlike the bishop who clearly is not a member of the annual conference, who never has a vote on matters that come legislatively before the annual conference either at its annual meeting or through its various boards and agencies, and who always exercises executive authority when he or she acts, the persons who occupy the office of district superintendent are much more of a hybrid. At times, as a result of their role and function as district superintendents and as the cabinet, they are clearly exercising executive authority as part of the superintendency of the church. Nevertheless, at all times, they are members of the annual conference in which they serve, have a vote on all matters pending before the annual conference, and are eligible for election to serve as delegates to the jurisdictional, central and general conferences of the church. Thus, at times, the persons who serve in the role of district superintendent exercise legislative authority.

The petition for declaratory decision here asks if the presence of a district superintendent serving as a member of the board of ordained ministry representing the cabinet violates the requirements of separation of powers, particularly when the board acts with respect to conference relationships involving the involuntary discontinuation of probationary membership (Â¶ 318.6), involuntary retirement (Â¶ 356.3), or in the handling of an administrative complaint (Â¶ 359.3).

The board of ordained ministry is elected by the annual conference. The membership of the board includes a district superintendent named by the bishop to represent the cabinet. Â¶ 632.1. There are significant reasons why it is important to have a district superintendent representing the cabinet serving as a member of the board of ordained ministry, not the least of which is enabling the cabinet to fulfill its responsibilities under Â¶ 429.5 referenced above.

In Decision 689, the Judicial Council observed:

. . . [S]eparation of authority and decision making is integral to the United Methodist Constitution and law. While the boundaries can become hazy in any particular situation, the preservation of the separation of powers must be observed.

It is the responsibility of the bishop to make and fix appointments. The superintendents oversee the ministry of the pastors and churches under their supervision, and the needs both of the parish and the pastors for witness and service.

The Board of Ordained Ministry reviews the change in status of candidates for, and persons in, ordained ministry. . . .

The roles of the bishop, the district superintendents, and the board of ordained ministry are distinct in our system of connectionalism. Certain functions are entrusted to the board of ordained ministry which are to be fulfilled without interference from the bishop or the district superintendents. See, e.g., Decision 689 (unlawful for the bishop and district superintendents acting as the cabinet to determine that a clergyperson who had been on a leave of absence would not be considered for appointment because the final and ultimate consideration for appointment and termination of a leave of absence rests solely with the Executive Session of the Annual Conference.).

The importance of keeping these roles clearly differentiated becomes even more apparent when the potential discontinuance of a probationary member (Â¶ 318.6), the potential involuntary retirement of a clergyperson (Â¶ 356.3), or the handling of an administrative complaint (Â¶ 359.3) is considered. The Discipline, in each such instance, provides that the board of ordained ministry is the decision maker in the first instance and that the ultimate decision maker is the clergy session of the annual conference. With respect to matters of conference relations of its clergy members, the annual conference, through its clergy session, acts as a legislative body. The procedures which govern such activities are carefully set forth in the Book of Discipline and are to be made without interference from the bishop or the district superintendents acting individually in that role or collectively through the cabinet.

In each of the administrative processes referenced in the petition for declaratory decision,

fair process administrative hearing procedures are to be followed. Those procedures are outlined in Â¶ 359.2. It would be inappropriate and a violation of the doctrine of separation of powers for the bishop to participate in the deliberations of the board of ordained ministry, or its committees, leading to the recommendation which is conveyed to the clergy session of the annual conference. In one instance, the handling of an administrative complaint, the bishop may well be the proponent of the administrative complaint. Fair process clearly precludes the bishop from discussing substantive issues with members of the hearing body outside the presence of the responding clergyperson. Â¶ 359.2(d).

In each of the administrative processes referenced here, it is likewise inappropriate and a violation of the doctrine of separation of powers for the district superintendent named to the board of ordained ministry as a representative of the cabinet to participate in the deliberations of the board of ordained ministry, or its committees, leading to the recommendation which is conveyed to the clergy session of the annual conference. Because the district superintendent in such an instance is serving as a representative of the cabinet and an extension of the general superintendency, the same limitations which exist for the bishop in such proceedings likewise exist for the district superintendent serving as the cabinet's representative on the board of ordained ministry.

The bishop and the cabinet are involved in the process which leads to commencement of procedures for involuntary discontinuation of probationary membership, involuntary retirement, and initiation of an administrative complaint. In fact, they can properly be seen as the moving parties with respect to such actions. Fair process necessitates that they, and their representatives, not be involved in the deliberations of the board of ordained ministry and its committees, in the absence of the responding clergyperson, in bringing forward a recommendation to the clergy session of the annual conference. As Decision 830 states, Fair process is a constitutional, as well as a disciplinary, right. . . . The district superintendent named to the board of ordained ministry as a representative of the cabinet, if present during deliberations of the board of ordained ministry, and voting in that board on the administrative processes addressed here, violates fair process and the doctrine of separation of powers.