Decision Number 1055

Bishop's Decision of Law in the North Carolina Annual Conference Concerning the Withdrawal of an Elder

Digest

Withdrawal whether under complaint or voluntary is effective at the time it is received.

Statement of Facts

During the 2006 clergy session the North Carolina Annual Conference, the presiding bishop received a written request for decisions of law on a series of questions. The request was offered on the basis of ¶¶ 51 and 2609 of the 2004 Book of Discipline. The bishop was requested to decide the questions of law in response to the report of the Annual Conference's Board of Ordained Ministry to the clergy session that an elder in full connection had withdrawn from the ordained ministerial office.

1. Is Dr. Wethington's purported withdrawal (subsequently characterized by Bishop Gwinn as 'not' under complaint) null and void because it was predicated upon Bishop Gwinn's representations to Dr. Wethington that a complaint had been filed, when in fact Bishop Gwinn had not received a written and signed complaint, prior to the purported withdrawal, as required by paragraph 362 of the Discipline and relevant Judicial Council Decision (e.g., Decisions 777, 753 and 741)?

2. Is Dr. Wethington's purported withdrawal null and void because Bishop Gwinn, despite representing to Dr. Wethington that a complaint had been filed against him, failed to provide Dr. Wethington with a copy of a written and signed complaint or with a written copy of the process to be followed regarding that alleged complaint?

3. Is Dr. Wethington's purported withdrawal null and void because Bishop Gwinn, despite not having a received a written and signed complaint, initiated a process in which he conveyed an unspecified allegation from an unspecified complaint to the Executive Committee of the Ordained Ministry, seeking their recommendation that Dr. Wethington be suspended?

4. Is Dr. Wethington's purported withdrawal null and void because Bishop Gwinn, despite not having received a written and signed complaint, obtained, obtained the recommendation of the Executive Committee of the Board of Ordained Ministry that Dr. Wethington be suspended and the suspended Dr. Wethington?

5. Is Dr. Werthington's purported withdrawal null and void under the Discipline because it was predicated upon Bishop Gwinn's (i) undue influence and/or duress and (ii) failure to investigate the alleged accuser's background and prior history and receive Dr. Wethington's prior service in an effort to determine whether the allegations were truthful and thus achieve a 'just resolution' in accordance with paragraph 362 thereof?

The Bishop's decision states:

These questions of law do not reference the fact that Mr. Wethington voluntarily withdrew from the ministerial office between sessions of the Annual Conference (Letter of withdrawal attached and labeled as "Exhibit 2"). Information reported to the executive clergy session of the Annual Conference on June 14, 2006, indicated that Mr. Wethington had voluntarily withdrawn from the ministerial office. His withdrawal was not reported as withdrawal under complaints or charges. The questions are therefore moot, and in keeping with Judicial Council Decision 691, should not be decided because Mr. Wethington's withdrawal was effective immediately and resulted in the forfeiture of his disciplinary right to fair process. See Judicial Council Decision 691 (withdrawal is effective immediately and results in forfeiture of constitutional right to trial). The issues raised which relate to the bishop's function in the course of the ordinary fulfillment of the superintending role are improper and hypothetical under Judicial Council Decision 820. In addition, these requests for decisions of law were moot pursuant to Judicial Council Decisions 969 and 799 because they did not state their connection to a specific action taken by the Annual Conference and were not raised during the deliberation of a specific matter upon which the Annual Conference takes action.

Jurisdiction

The Judicial Council has jurisdiction under ¶ 2609.6 of the 2004 Discipline.

Analysis and Rationale

A withdrawal, whether under complaint or voluntary, is effective at the time it is received. (¶ 361.4 of the Discipline). An elder in full connection has fair process rights that attach at the time a complaint is presented. The decision to surrender credentials before being presented with a formal complaint is presumed valid and works as a forfeiture of further rights. In the absence of a record that can only be developed in the context of an administrative or judicial process, duress cannot be established merely because it is included in or suggested by a question asked of a bishop. A pastor that withdraws between annual conference session abandons fair process rights and cannot obtain review by posing a question of law to the presiding bishop in an annual conference session.

Paragraph 361.4 states as follows:

Withdrawal Between Conferences – In the event that withdraw by surrender of the ministerial office, to unite with another denomination, or under complaints or charges, should occur in the interval between sessions of an annual conference, the clergy member's credentials, under the provisions of ¶ 361.1 and .3, shall be surrendered to the bishop or district superintendent along with a letter of withdrawal from the ordained minister. Both the credentials and the letter of withdrawal shall be deposited with the secretary of the conference. This action shall be reported by the board of ordained ministry to the annual conference at its next session. The effective date of withdrawal shall be the date of the letter of withdrawal.

Complaint procedures delineated under ¶ 362 are available for clergy who choose to assert their fair process rights. We have reviewed all of the parties' submissions. Under the circumstances the Judicial Council would have to make findings of fact to respond to the questions posed. The Judicial Council is not a fact finding body. There is no indication that there was any element of duress or intimidation that prompted the members' decision to tender his voluntary withdrawal. The questions posed were therefore moot and hypothetical in nature.

Decision

Withdrawal whether under complaint or voluntary is effective at the time it is received.

Mary A. Daffin and Shamwange P. Kyungu were absent. Keith D. Boyette dissents.

Dissenting Opinion

This matter turns on the issue of whether the withdrawal of a clergy person from the ordained ministry of the North Carolina Annual Conference was voluntary. The presiding bishop, among other things, ruled that the clergy person voluntary withdrew from the ministerial office between sessions of the Annual Conference and that his withdrawal was effective immediately and resulted in the forfeiture of his disciplinary right to fair process. In his ruling, the presiding bishop states that the clergy person withdrew from the ordained ministry on July 21, 2005. Initially, the presiding bishop concedes that the clergy person's withdrawal from the ordained ministry was classified by the bishop and the annual conference as a withdrawal under complaint pursuant to ¶ 361.3 of the 2004 Discipline. The presiding bishop, in his ruling then states:

After the bishop had deposited with the secretary of the Annual Conference [the clergy person's] letter surrendering his credentials, the bishop informed [the clergy person] by letter dated November 21, 2005 that he had decided to amend the record filed with the secretary to indicate that [the clergy person's] withdrawal was a voluntary withdrawal under ¶¶ 361.2 and 361.4 of The Book of Discipline and not a withdrawal under complaint.

The questions of law asked at the clergy session of the annual conference challenged this amendment of the record. It was the bishop who had originally characterized the clergy person's withdrawal as occurring under complaint. It is apparent from both the questions asked of the bishop and from the amendment of the records of the Annual Conference by the bishop that both the clergy person and the bishop believed that a complaint existed at the time of the clergy person's withdrawal on July 21, 2005. It is also apparent from both the questions asked of the bishop and from the amendment of the records of the Annual Conference by the bishop that it was later determined that no complaint existed on July 21, 2005, when the clergy person delivered his letter of withdrawal.

The questions of law delivered to the presiding bishop raise this crucial issue: When a clergy person withdraws upon a representation that a complaint has been filed against him and it is later determined that no complaint existed, what is the impact of the non-existence of the complaint at the time of the withdrawal on the clergy person's withdrawal? The decision of my colleagues concludes that a withdrawal is a withdrawal and that it does not matter whether the clergy person understood that he was withdrawing in response to a complaint which in fact did not exist at the time of his withdrawal. I differ.

Those officers of the church who are involved in the administration of the disciplinary process with respect to the conduct of a clergy person must act in good faith and through the communication of accurate information at every step of their supervision of the clergy person. Important rights are in play, and clergy persons as well as those who have grievances against them must be treated with the utmost fairness.

The Judicial Council has held that when a clergy person withdraws under complaint, the withdrawal is effective immediately and the clergy person's disciplinary rights terminate immediately. Decisions 691 and 798. However, the Judicial Council has also held that when a withdrawal under complaint occurs under circumstances where the acts outlined in the complaint are barred by the statute of limitations, the withdrawal under complaint is null and void. Decisions 741 and 753. Importantly, the Judicial Council has not held that such withdrawal under complaint is thereby converted to a voluntary withdrawal because of the legal non-existence of the complaint. I see no reason to deviate from this principal where a person withdraws under complaint and then it is determined that no complaint in fact existed at the time of withdrawal as is the case here. Such a withdrawal is not then converted to a voluntary withdrawal. Rather, the withdrawal under complaint is null and void once it is determined that there was no complaint. The annual conference is then free to proceed against the clergy person in whatever way it deems appropriate within the provisions of the Discipline, including processing a complaint that might thereafter be filed.

In arriving at this determination, I am not engaging in fact-finding on disputed facts. As I have indicated above, the ruling of the presiding bishop here provides the factual basis for the determination I have made. There is no question that the situation faced by the presiding bishop, the annual conference and the clergy person was fluid and ambiguous on or about July 21. There was nothing inherent in the circumstances presented that required the presiding bishop and the annual conference to act in the fashion it did in the face of such ambiguity. It is the bishop and the annual conference that has the responsibility of ensuring that disciplinary procedures and processes are faithfully followed. In my opinion, that was not done here and I would so hold, declaring the clergy person's withdrawal under complaint null and void, and not thereby converted to a voluntary withdrawal, since there was no complaint at the time of the withdrawal and permitting the annual conference to proceed as the Discipline would require under the facts that would then occur.

Keith D. Boyette