Decision Number 429

Constitutionality of Action by Executive Committee of Board of Church and Society in Reinstatement of Section 10 of the "Health Care" Statement which was Deleted by the 1976 General Conference.

Digest

The Executive Committee of the Board of Church and Society acted illegally in adopting, as policy, the statement rejected by the 1976 General Conference. Action on policy should be the action of the total Board, and not the action of the Executive Committee.

The precise question presented to the Judicial Council was the validity of the action of the Executive Committee. We have been advised that the Board met on October 7, 1977 and confirmed the action of the Executive Committee by a vote of 33 for, 27 against, with 2 abstentions. It follows that the action of the Board is also invalid.

Statement of Facts

The resolution of "Health, Welfare and Human Development" was adopted by the 1976 General Conference of the United Methodist Church on May 8, 1976. (DCA, pages 915-925). The omnibus resolution, Calendar Report No. 392 (DCA, pages 442-448) was amended in Section IV HEALTH CARE, by substituting Calendar Report No. 895 (DCA, pages 612-613), after perfecting Report No. 895 by amendments, one of which deleted Section 10, dealing with health care financing.

At the Annual Meeting of the Board of Church and Society in October, 1976, the General Welfare Division of the Board recommended that:

"In regard to the Health Care coalition and the whole issue itself, it was recommended that we carefully review the Church and Society position on this and refer it back to the Executive Committee for follow-up."

The recommendation was referred to the Executive Committee for "follow-up" at the February, 1977, session. Action to be reported to the Board.

Meeting on February 1, 1977, the Executive Committee of the Board of Church and Society, after a review of the Church and Society's position in regard to the Health Care Coalition and the whole issue itself, adopted a "POLICY STATEMENT ON FINANCING NATIONAL HEALTH INSURANCE" and voted to rejoin the Health Care Coalition, from which the Board members had voted withdrawal at the October, 1976, Annual Meeting. The minutes of the Executive Committee's action were circulated to the Board on March 24, 1977.

The "Policy Statement on Financing National Health Insurance", after a preamble, in the "Position Statement" of the paper, reinstated the paragraphs of Section 10., Calendar Report No. 895, which had been deliberately deleted and rejected by General Conference action on May 8, 1976.

Subsequently, three Annual Conferences: the Western North Carolina, theNorth Texas, and the Louisiana, questioned the legality of the action of the Executive Committee of the Board of Church and Society in reinstating as a policy of the Board, an identical public health funding plan which had been discussed by the General Conference and specifically rejected.

Resolutions and petitions were approved by each of the three Annual Conferences, requesting the Judicial Council to rule on the legality of the Board of Church and Society's Executive Committee's action.

The petitions of the Louisiana Annual Conference also asked: "Did theactions of the Executive Committee of the Board of Church and Society on February 1, 1977, . . . by rejoining the political lobby group entitled 'Health Security Action Council', constitute illegal action . . . and should, therefore, be rescinded?"

For purposes of consideration and decision the three petitions were consolidated.

Briefs have been filed by Rev. Leighton K. Farrell of the North Texas Annual Conference, Robert Kemmerly, M.D., of the Louisiana Conference, and by the Board of Church and Society. Oral statements were made at the open hearing held October 27, 1977, at Boston University School of Theology by Dr. Farrell and by John Stumbo representing the Board.

Jurisdiction

Jurisdiction is accepted by the Judicial Council under Paragraph 2510 of the Discipline.

Analysis and Rationale

The basic issue is the legality of the action of the Executive Committee of the Board of Church and Society. Does the Executive Committee of a Board have the authority to adopt a specific policy statement discussed and rejected as a position by the General Conference?

The Board of Church and Society is accountable to the General Conference. The constitution states the accountability of boards and agencies in Article IV, Par. 15.

"The General Conference shall have full legislative power over all matters distinctively connectional and in the exercise of this power shall have authority as follows:

8. To initiate and to direct all connectional enterprises of the Church and to provide boards for their promotion and administration."

The General Conference enacts legislation to initiate and direct all connectional enterprises. Resolutions are also adopted and approved by General Conference as guidelines for the Church, including its general boards and agencies. Legislation for the General Board of Church and Society defines the Board's authority:

". . . The board shall speak to the Church, and to the world, its convictions, interpretations, and concerns, recognizing the freedom and responsibility of all Christians to study, interpret, and act on any or all recommendations in keeping with their own Christian calling."

Par. 1203

Authority for action in the field of health care is stated in the legislation of Par. 1217.1 of the Discipline.

"It shall be the responsibility of the Division of General Welfare to conduct a program of research, education, and action centering around the following Christian social concerns: ... medical care ... and such other related concerns as the board may specify."

Amenability and Accountability is stated in Par. 802:

"All the general agencies of The United Methodist Church that have been constituted by the General Conference are amenable to the General Conference, except as otherwise provided. Between sessions of the General Conference, the following agencies are accountable to the General Council on Ministries: the Board of Church and Society, the Board of Discipleship, the Board of Global Ministries, the Board of Higher Education and Ministry, the Commission on Religion and Race, and the Commission on the Status and Role of Women."

The 1976 General Conference on May 8, 1976, adopted the resolution on "Health, Welfare, and Human Development", Calendar Report No. 392 (DCA, pages 442-446). Calendar No. 392 was amended in Section IV HEALTH CARE, by substituting Calendar Report No. 895, after perfecting Report No. 895 with amendments, one of which deleted Section 10, dealing with health care financing. Two other amendments: one proposing a combination of private and publicfinancing, and the other seeking to add the 1972 statement on health care financing, of the Book of Resolutions, were not accepted by the General Conference.

The October, 1976, annual meeting of the Board of Church and Society, adopted a recommendation that a review be made "of the whole issue" and it be referred back to the Executive Committee for follow-up.

The Executive Committee of the Board of Church and Society met February 1, 1977, and adopted a policy paper prepared by the Division of General Welfare on "FINANCING NATIONAL HEALTH INSURANCE".

The preamble quoted many of the goals of health care from the 1976 General Conference statement and elements of the social principles of The United Methodist Church, which call for consideration of the specific issue of financing health care services. The preamble closes with:

"The church has charged the Board of Church and Society with the responsibility to speak as the Board to the church and the world. (1976 Discipline, United Methodist Church, Par. 1203). In faithfulness to this charge, the Board of Church and Society affirms the following position on financing as offering the best possibility for fulfilling The United Methodist Church's 'Social Principles', (Section V, A) and The United Methodist Church's resolution on 'Health Care'."

Then the policy statement consists of the three paragraphs of Section 10, Report No. 895, page 613, DCA, which had been discussed and deleted by General Conference action.

The three annual conferences have challenged the legality of this action by the Executive Committee.

The brief of the Board of Church and Society has, in effect, argued that the General Conference did not speak on health care financing, as the deleting action of General Conference on Section 10, and the conference's unwillingness to accept either of two other proposed positions, leaves the entire matter open; thus on this subject, the General Conference is mute.

This argument that the General Conference has not spoken is fallacious. The General conference's action was to delete the paragraphs dealing with universal national financing of health care services. The General Conference intentionally and deliberatively has omitted any approval for the financing of health care services. When a matter is discussed and deliberatively deleted by intentional action, it has been "spoken to".

While the brief of the Board of Church and Society has stressed the positive action of General Conference on Health Care, it does not follow, nor can it properly be implied, that what the General Conference rejected can now be espoused by the Executive Committee, as a financing plan for health care. The action of the General Conference is binding on the Executive Committee.

Further, the brief of the Board of Church and Society argues that Judicial Council Decision No. 387, gives support and latitude to move freely under the call "to speak to the church and to the world", as a precedent for the Board's espousal of public financing for National Health Insurance. The Executive Committee's action, the brief holds, "is to be understood as an earnest and critical attempt to forward in practice a policy which offers the best hope to meeting the General Conference's policy standards. . . "

Using Judicial Council Decision No. 387 as a precedent for the espousing of a public health plan of financing is in error.

The issue of Judicial Council Decision No. 387 was whether or not a general board has the right to support causes without the specific approval of the General Conference. The issue in this case is the legality of the action of the Executive Committee in endorsing and espousing a health care financing plan, specifically discussed and rejected by the 1976 General Conference. While the Judicial Council affirms the responsibility of the program boards and agencies to use initiative and creativity in implementing the concerns of the General Conference as expressed in legislation and resolutions, the boards and agencies are accountable to the General Conference and must accept its decisions and mandates, when specific plans are rejected by the General Conference.

A second question issues out of the February 1, 1977, action of the Executive Committee of the Board of Church and Society, namely the authority of the Executive Committee to act on a policy statement for and on behalf of the Board without a vote from the Board members supporting such action.

Paragraph 1207 of the Discipline states:

"The board shall elect an executive committee ... The committee shall have the power ad interim to fill any vacancies occuring in the elected staff and to transact such business as is necessary between the meetings of the board. It shall report all of its actions to the board promptly after each of its meetings and again for confirmation at the next meeting of the board. It shall have special responsibility for long-range planning, for reviewing and recommending program priorities to the board, and for recommending allocations of staff, budget, and program resources in accordance with such priorities."

The minutes of the October, 1976 meeting of the Board of Church and Society are not entirely clear. They reflect a recommendation from the General Welfare Division of the Board, that "in regard to the Health Care coalition and the whole issue itself", the Board's position be carefully reviewed and referred back to the Executive Committee for "follow-up".

After the recommendation from the General Welfare Division for review, John Kemper moved that the recommendation "be referred to the Executive Committee and acted upon at the February, 1977 session-action to be reported to the Board of Directors". The minutes do not indicate that "for review" empowered the Executive Committee to issue a policy statement on health care financing.

A subsequent motion was made to amend the Kemper motion by deferring action until the October, 1977 Annual Meeting. The minutes do not give the vote on either the Kemper motion or the motion to defer. The minutes reflect that after discussion, the final action was: "M/S/C that the Kemper motion be adopted."

The Executive Committee met on February 1, 1977, adopting the Division of General Welfare's recommended statement on Financing National Health Insurance as the policy of the board. The vote is recorded as 11 for; 9 against; 2 abstentions. The minutes further reflect: "M/S/C that we join the HealthSecurity Coalition. Vote: 10 for; 7 against."

The Judicial Council is concerned that the Board of Church and Society permitted an Executive Committee to adopt a policy statement on Health Care Financing without the specific approval of the Board. The minutes were not circulated to the Board members until March 24, 1977. The policy statement adopted by the Executive Committee, composed of a limited number of Board members, is not the action of the Board. The members of the Board are elected to make significant and responsible contributions to the policy statements of the Board. The reference to the Executive Committee for review of the Health Care Financing Plan was proper. The power, if given to the Executive Committee to act on behalf of the Board on a policy statement, is an abnegation and transfer of responsibility inherent in board membership. The members are themselves responsible to the General Conference for their action.

The question was asked by the Louisiana petition as to the legality of the Board's membership in the Health Security Action Council. The matter of membership in that Council was not acted upon by the General Conference. Sufficient evidence was not presented to us to establish that the method of financing health care is such a major purpose or activity of that Council as to make the Board's membership improper and we do not make such a decision.

Decision

The Executive Committee of the Board of Church and Society was acting illegally in adopting, as a policy, the statement rejected by the 1976 General Conference. Action on policy should be the action of the total Board, and not the action of the Executive Committee.

We have been advised that the Board met on October 7, 1977 and confirmed the action of the Executive Committee by a vote of 33 for; 27 against; with 2 abstentions. For the reasons stated in the analysis the action of the Board is also invalid.

Dissenting Opinion

It was the policy of the Judicial Council of The Methodist Church to construe its jurisdiction strictly and with restraint. As was said in Decision No. 29:

"Under the Declaratory Decision Act of 1944, the Judicial Council may not assume jurisdiction, unless jurisdiction has been clearly vested in the Council. To this extent the Declaratory Decision Act, in the same manner as the Declaratory Judgment Acts of the State Legislatures, should be strictly construed."

Decision No. 255 reads in part:

"For us to view this matter otherwise would require a sharp departure from our long established policy of construing our jurisdiction strictly and with restraint."

We are convinced that the Judicial Council of the United Methodist Church should follow the same policy and not take jurisdiction unless an appeal or petition clearly evidences the basis therefore. Jurisdiction is not evidenced by any of the three documents before us.

There is a basic defect which requires dismissal of all three appeals. An appeal under Paragraph 2510 must involve a matter affecting an Annual Conference. We do not see that the action of a majority of the Executive Committee of the Board of Church and Society affects these Annual Conferences in the sense contemplated by Paragraph 2510.

In Decision No. 301 this Judicial Council held that the resolution of the General Conference entitled "The Rule of Law and the Right of Dissent" did not have a direct and tangible effect on an Annual Conference or the work therein within the meaning of Paragraph 1715 of the 1968 Discipline, the predecessor of present Paragraph 2515. There it was claimed that the statement relating to civil disobedience was widely unpopular in the petitioning Conferences and that that affected the work of the Conferences. We found the statement was not a mandate to church members nor even a legislative act, but only a statement of conviction so that it could not be said to affect the work of any Conference in any direct or tangible manner. In the instant case the policy statement of the Board of Church and Society has even less direct effect upon an Annual Conference.

Decision No. 255 of the Judicial Council of the Methodist Church, reached the same conclusion. In that case the Central Kansas Annual Conference filed a petition for a declaratory decision interpreting a paragraph of the Discipline as to its effect on the annuity claim of a member of that Conference on the Chaplains Pension Fund. The Council found there was no request for interpretation concerning the minister's right to claim annuity from the Annual Conference but only with respect to the Chaplains Pension Fund and stated:

"The personal rights, if any, of Dean W. Dryden to receive payments from the Chaplains Pension Fund are in no substantial sense matters related to the Central Kansas Annual Conference or the work therein within the meaning of Paragraph 914 of the Discipline. For us to view this matter otherwise would require a sharp departure from our long established policy of construing our Jurisdiction strictly and with restraint."

We agree with that decision. The instant case seems to have even less effect on an Annual Conference or its work than do the pension rights of a member of that Annual Conference.

There must be a reason why Paragraphs 2510 and 2515 do not authorize an Annual Conference to appeal the validity of any action of a general board or petition for a declaratory decision as to the meaning of any portion of the Discipline but limit them to matters affecting an Annual Conference or the work therein. In such a connectional church as ours it is hard to conceive of an act of a general board that would not have at least some remote effect on an Annual Conference. The only logical interpretation is that these paragraphs require some reasonably significant and direct effect on the Annual Conference seeking to challenge the action of a general board. The cases above discussed involved matters more directly affecting the Annual Conferences bringing those actions than seems the case here, but the Judicial Council unanimously found the effect not sufficiently substantial. Here none of the three conferences submitted any evidence whatsoever seeking to establish an effect on them.

We realize that in the very similar situation involved in Decision No. 387 a majority of the Judicial Council accepted jurisdiction, without any explanation of the reason. We note that in that case one issue involved the expenditure of World Service money as a contribution to the Health Security Action Council, whereas the recent action rejoining that organization apparently included no financial commitment. We do not know what other evidence there may have been in that case of effect on the appealing Annual Conference or its work, but for the reasons set forth above we are convinced that we do not have jurisdiction of the three matters now before us.

Even if we could agree with the majority decision as to jurisdiction, we would have to dissent on the merits.

It is clear that under Paragraph 803 of the Discipline all general agencies are amenable to the General Conference. It is also clear under Paragraph 612 that no general board or other organization has the authority to speak officially for the United Methodist Church, this right having been reserved exclusively to the General Conference.

On the other hand, in Decision No. 387 we held that a program board is free to improvise on General Conference legislation which is more general in its statements than a specific issue requires for adequate treatment. We pointed to Paragraph 956 which says, with respect to the authority of the Board of Church and Society, that it is the responsibility of the board to witness on those social issues that call Christians to action and to speak to the Church and to the world its conviction, interpretations and concerns.

The decisive fact in this case is that, while strongly espousing national health care, the General Conference did not adopt any position as to the method of financing. There were two quite different proposals before it. One was the same as the position subsequently adopted by the Board of Church and Society calling for public financing. The other called for primary emphasis on private financing. The General Conference did not adopt either, so passed its resolution supporting improved national health care without taking any position as to the method of financing. Under these circumstances the board was left free to support as its own position either public or private financing. Neither had been opposed by the General Conference.

There are a great many reasons for voting not to adopt a particular resolution. Some may think it goes too far in a direction they do not want to go. Some may think it does not go far enough. Many may feel undecided or consider it inadvisable to make any pronouncement on the subject.

To every General Conference there are submitted a great number of resolutions on all sorts of subjects. Very few of them are adopted, but that does not mean that the General Conference is opposed to all the others. The Conference speaks for the entire church, and doubtless in many cases wisely decides that it should not take a position for all of its members on a particular issue. When it does speak it usually makes pronouncements on basic principles but does not deal with all of the details involved in achieving major objectives.

The board had already stated its own position. The General Conference did not oppose that position or direct the board to change it. The General Conference simply declined to put the entire church on record either for or against a particular method of financing the improved health care principle which it endorsed. It will be most unfortunate if the majority opinion is logically pursued. General boards have often sought to persuade the General Conference to adopt in resolutions statements on various issues; but they may be very hesitant if they must fear that; if the General Conference decides not to speak on a particular issue or some aspect of it, the board is thereafter prohibited from taking any position on the matter.

Had the General Conference in effect said we oppose public financing as the principal source of public health care funding, or had it said we believe the primary source should be private, the board, of course, would be obligated to accept and support that decision, but no such action was taken by the General Conference.

We believe the Board of Church and Society is free to state its own position on the best method of financing national health care since that statement is not in conflict with or contrary to, any position taken by the General Conference. We do question the authority of the Executive Committee to adopt a policy for the entire board, especially in the absence of any evidence of an emergency requiring action before the Board could make its own decision. Since the Board has now confirmed and adopted the action of the committee, however, we cannot find that action of the Board to be unlawful.

FLORENCE LUCAS EDWARDS ELIZABETH B. GUNDLACH LEONARD D. SLUTZ