Decision Number 784

SUBJECT TO FINAL EDITING

April 24, 1996

General Conference Petition for Declaratory Decision on Questions of Law Submitted by the Northeastern Jurisdictional Review Committee Relating to Grievances, Statute of Limitations, and Double Jeopardy.

Digest

A grievance which has been judicially terminated cannot be the subject of another grievance based on the same facts and time period even though titled "amended grievance" as such would constitute double jeopardy. Only material not barred by the statute of limitations can be considered in the handling of the grievance. The date of receipt of the grievance stops the running of the statute of limitations.

Statement of Facts

On April 18, 1996 the General Conference referred to the Judicial Council a petition for a declaratory decision on certain questions from the Northeastern Jurisdictional Review Committee. The three questions of law are:

1. Can an amended grievance, after a portion of an original grievance is time-barred, be considered by the NEJRC? Par. 513

2. Does consideration of an amended grievance constitute double jeopardy under the provision of Par. 2622.5?

3. How does the statute of limitations apply to material included in an amended grievance? Is the relevant date of the statute of limitations the date of the original grievance or the date of the amended grievance?

These questions arise from actions taken by the grievant, the respondent, the College of Bishops of the Northeastern Jurisdiction, and the Northeastern Jurisdictional Review Committee.

On January 26, 1995, a grievance was filed with the College of Bishops of the Northeastern Jurisdiction against a bishop, alleging offenses of sexual misconduct and abuse of power of the office, course, the College of Bishops referred the matter to the Jurisdictional Review Committee as provided in Par. 513.2 of the 1992 Discipline. Inasmuch as some of the allegations occurred more than two years prior to the filing of the grievance, the Jurisdictional Review Committee petitioned the Judicial Council as to whether the 1992 General Conference lengthened the statute of limitations under Par. 513.5 from two years to six years as was done in Par. 454. While the matter was pending before the Judicial Council, the Jurisdictional Review Committee held a hearing on September 11, 1995, at which time testimony was received from both grievant and respondent with a verbatim record being made by audio tape. The Review Committee withheld final consideration of the matter until the Judicial Council ruled on the matter of the statute of limitations under Par. 513.5.

On October 27, 1995, the Judicial Council in Decision 761 held that the statute of limitations against a bishop is two years as provided in Par. 513 of the 1992 Discipline.

On November 20, 1995, the Northeastern Jurisdictional Review Committee met and returned the grievance to the College of Bishops with copies to the grievant and the respondent. The text of the document reads as follows:

In light of the Judicial Council Decision #761, the Review Committee acknowledges that all of the alleged misconduct of prior to January 26, 1993 is barred from consideration by the statute of limitations. (Para. 513.5)

The alleged contacts between the grievant and the respondent after January 26, 1993 are not sufficiently definitive, as written, to justify sending the complaint to the Committee on Episcopacy.

We are therefore returning the grievance to the College of Bishops.

The NEJRC, nevertheless, recognizes that serious violation of covenants have occurred, therefore justice and healing must be sought for all concerned, the grievant, the respondent, the families and the College of Bishops.

We therefore recommend that:

1. The principals in this case be offered therapy and spiritual direction and that financial resources be sought to share in the cost of such assistance.

2. As an expression of the committees concern and care for the bishops, we encourage the College of Bishops to do what is necessary for healing within its community.

3. We encourage the bishops to give leadership within each of their episcopal areas to continue and intensify training and researching in areas of clergy sexual misconduct.

4. The College of Bishops find ways to eradicate the continual racial polarization around issues of clergy sexual misconduct.

On December 12, 1995, David Polhemenus, the Secretary of the Northeastern Jurisdictional Review Committee, wrote to the respondent stating:

This is to inform you that all of the tapes made of your interview were destroyed at the November meeting of the Review Committee in the presence of the committee.

On December 16, 1995, the Northeastern Jurisdiction College of Bishops received an "amended grievance" dated December 15, 1995 from the grievant which alleged "offenses of immorality and disobedience to the order and Discipline of The United Methodist Church" against the respondent bishop, which set forth essentially the same allegations in the earlier grievance for the period between January 26, 1993 and ending December 21, 1994.

On February 5, 1996, the College of Bishops referred the December 16, 1995 "amended grievance" to the Northeastern Jurisdictional Review Committee. On April 9, 1996, the Review Committee met and petitioned the Judicial Council for a declaratory decision on the questions set forth above. The petition was referred to the Judicial Council by action of the General Conference on April 18, 1996.

Jurisdiction

The Judicial Council has jurisdiction under Par. 2616 of the 1992 Discipline.

Analysis and Rationale

In order to answer the questions presented, it is necessary to consider the facts of this matter in relation to applicable Disciplinary provisions and Judicial Council Decisions. The Judicial Council has held that once a formal grievance is filed, the judicial process begins (Decision 697). At all levels of consideration fair process must be followed as set forth in Par. 2622 of the Discipline and by Decision 763.

Under Par. 513 of the Discipline, the College of Bishops had, in addition to seeking the required reconciliation, several options in dealing with the grievance. One option was to forward the grievance to the Jurisdictional Review Committee. Acting on that option, the grievance was forwarded to the Jurisdictional Review Committee by the College of Bishops. Upon receiving the grievance, and after consideration of the matter, the Jurisdictional Review Committee, in addition to seeking reconciliation, had the option of taking one of two actions. One option was to dismiss the matter. The other option was to "prepare a complaint and forward it to the Jurisdictional/Central Conference Committee on Episcopacy" (Par. 513.4).

In considering the matter, the Jurisdictional Review Committee held a hearing in which fair process was required: i.e., both grievant and respondentpresent, and verbatim testimony recorded as required by Par. 2622.1 and Judicial Council Decision 698. While the matter was pending before the Jurisdictional Review Committee, the committee had the right to hold additional hearings with grievant and the respondent to obtain additional information concerning alleged contacts between the grievant and the respondent within the period allowed by the statute of limitations. A written grievance must contain sufficient information to allow the respondent an opportunity to prepare a response to the allegations, but the language of the grievance does not restrict testimony to specifics of the grievance so long as testimony does not introduce new charges and so long as testimony is defining of the matter contained in the grievance. In the instant matter, after Decision 761 was rendered, the Northeastern Jurisdictional Review Committee met and acknowledged that all the alleged misconduct prior to January 26, 1993 is barred from consideration by the statute of limitations. There was no additional testimony and the Jurisdictional Review Committee returned the grievance to the College of Bishops, In taking this action, the Jurisdictional Review Committee no longer had the matter pending before the committee. In addition, the committee destroyed the tapes of the testimony; this fact alone is sufficient to bar further proceedings.

We hold the action of the Jurisdictional Review Committee constituted a dismissal of the grievance. The only other action the committee could have taken was to refer the matter to the Committee on the Episcopacy, which they did not and could not have done because they had destroyed the tapes.

We held in Decision 698 that a verbatim record of the proceeding must accompany the recommendation to a body which has the authority to recommend remedial action, as in this case, from the Jurisdictional Review Committee to the Jurisdictional Committee on the Episcopacy in Par. 513.6. We stated in Decision 698 that the absence of a verbatim record of the proceeding would deprive the respondent of the right to be heard by the entity required to develop a response based on the report of the Review Committee. Failure of the verbatim record to accompany the recommendation of the committee would constitute a violation of Par. 2622 which was developed to ensure fair process in accordance with Par. 18 of the Constitution.

Having related the facts, Disciplinary provisions, and Judicial Council Decisions to the matter, we issue our ruling on the questions asked as follows:

1. Can an amended grievance, after a portion of an original grievance is time-barred, be considered by the NEJRC? Par. 513

Answer: There is no provision in the Discipline for an amended grievance; however, this does not prevent a body in the judicial process which has a matter properly pending before it from obtaining additional information or facts upon which to file a complaint in connection with the filed grievance. The Northeastern Jurisdictional Review Committee could have considered the portion of the grievance which was not barred by the statute of limitations and obtained additional testimony in order to prepare a complaint to forward to the Committee on the Episcopacy. The committee chose instead to return the grievance to the College of Bishops and destroy the tapes, which action we hold constituted a dismissal of the matter.

2. Does consideration of an amended grievance constitute double jeopardy under the provision of Par. 2622.5?

Answer: Under the facts of this case, the processing of this grievance, even though titled "amended grievance", alleging conduct covering the same time periods or a portion thereof of a grievance which has already been dismissed, constitutes double jeopardy under Par. 2622.5.

Therefore, the "amended grievance" which was filed in December 16, 1995, covering alleged conduct of the same period, constitutes double jeopardy and no proceeding can be pursued in connection with the amended grievance.

3 . How does the statute of limitations apply to material included in an amended grievance? Is the relevant date of the statute of limitations the date of the original grievance or the date of the amended grievance?

Answer: Again, we hold there is no provision in the Discipline for an amendedgrievance, whether or not the statute of limitations is involved. Again, we hold that a body can obtain additional information or facts relating to a grievance which is properly pending before the body. We further hold that the relevant date of statute of limitations relates to the date of the filing of the grievance. Inasmuch as we hold there is no provision for an amended grievance, the second part of this question is moot.

The Judicial Council offers no opinion on the truth of the allegations of the grievant, which have been denied by the respondent, and renders this opinion on the basis of procedures and fair process as set forth in the 1992 Discipline.

Decision

Concurring Opinion

We find it grievous that bodies of the church charged responsibilities in this matter have failed to follow the procedures for fair process in a timely and efficient manner. Fair process, as defined in the 1992 Discipline, clearly provides for conclusion of matters such as this while ensuring fairness to all parties.

Sally Curtis AsKew

Wesley Bailey

Evelynn S. Caterson

John G. Corry

Susan T. Henry-Crowe

Zan Holmes

Tom Matheny

Theodore H. Walter