Decision Number 689

Review of Bishop's Decision of Law in the Iowa Conference Interpreting Pars. 448.1 and 448.3 of the 1988 Discipline with regard to Continuing Clergy Member on Leave of Absence.

Digest

We cannot affirm the bishop's decisions of law because they were not responsive to the questions asked.

Due process was not followed throughout the events relevant herein, and the matter is remanded to the Iowa Annual Conference and the Board of Ordained Ministry is directed to begin its procedure over, beginning as of August 12, 1991, the date of W. Michael Biklen's original request to terminate the leave of absence. Mr. Biklen must resubmit a specific request. The time elapsed since the 1992 session of the Annual Conference is not to be counted against the five year limitation on leaves of absence found in Par. 448.1.

Statement of Facts

On November 11, 1989, W. Michael Biklen requested a Leave of Absence. This request was approved by the Cabinet (Nov. 11, 1989), the Bishop (Nov. 13, 1989), and the Executive Committee of the Board of Ordained Ministry (Dec. 2, 1989). The Executive Session of the Iowa Annual Conference gave its approval in June 1990.

In the spring of 1991, the Board of Ordained Ministry voted to put Mr. Biklen on Leave of Absence without consent and this was approved by the Executive Session of the 1991 Iowa Annual Conference. The Judicial Council was not given the reason for this change of leave designation, nor any other details of the procedure followed in 1991.

On August 12, 1991, Mr. Biklen requested that his Leave of Absence be terminated pursuant to Pars. 448.3 and 448.1 of the 1988 Discipline and that he be made available for appointment. This request was approved by the Conference Relations Committee of the Board of Ordained Ministry on September 16, 1991. On January 6, 1992, the Board of Ordained Ministry voted to take Mr. Biklen off Leave of Absence, stating, "the end of your leave will occur when a suitable appointment is found and the Bishop and Cabinet vote to end your leave." (Par. 448.1.)

On March 18, 1992, Mr. Biklen was informed by District Superintendent Carver that he was not being considered for appointment and that the cabinet and bishop did not approve his coming off leave.

On April 21, 1992, W. Michael Biklen, David Holmes, District Superintendents Don Carver and Larry Willey met with Bishop Job in his office to discuss the reasons supporting the decision not to seek an appointment or to approve his coming off of leave. On May 1, 1992, the Board of Ministry acted to list Mr. Biklen on Discipline question 47b -- "Those continuing on Leave of Absence without consent."

On June 5, 1992, at the Executive Session of the Annual Conference, after much debate, Michael Biklen was continued on Leave of Absence without consent for the fourth year.

The following day, June 6, 1992, a group identified as Concerned Clergy asked the Bishop to rule that failure to allow Mr. Biklen to be appointed at the 1992 Iowa Annual Conference was illegal based on four (4) different arguments. The Bishop ruled in a writing shortly thereafter, which was published in the Iowa Conference newspaper. He found that no illegality had occurred.

At an oral hearing in Albuquerque, New Mexico on April 22, 1993 Everett Burham appeared representing Concerned Clergy and Roger Witke appeared for the Iowa Annual Conference. Also speaking were W. Michael Biklen, Harvey Walker and William R. Johnson.

Jurisdiction

The Judicial Council has jurisdiction under Par. 2613 of the 1992 Discipline.

Analysis and Rationale

The decisions in this case are against the backdrop of three underlying principles. The operative principles of United Methodist polity and law include the authority of the Annual Conference; the separation of powers of the Episcopacy, the Superintendents, and the Board of Ordained Ministry; and due process.

The Constitution clearly states that "The Annual Conference is the basic body in the Church and shall have reserved to it the right to vote... on all matters relating to the character and conference relations of its ministerial members." (Par. 36)

The separation 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 to the end that ordained ministry's distinctive functions are to be devoted wholly to the work of the Church and the upbuilding of the general ministry. (Par. 110, 1992 Discipline)

These are the measuring rods for reviewing the decisions of law in this case.

Question of Law -- Item 1

Did the action taken by the Board of Ordained Ministry at its May 1, 1992 meeting illegally deny the Reverend W. Michael Biklen an appointment at the 1992 session of the Iowa Annual Conference?

Bishop Job's response: "I acted appropriately and did not illegally deny theReverend Biklen an appointment... by construing 448.1 to require the approval of the Bishop and District Superintendents to an interim termination of the already existing Leave of Absence status."

In Mr. Biklen's letter of August 12, 1991 to the Conference Relations Committee of the Board of Ordained Ministry he neglected to address two primary points. The first was whether he was requesting termination of Leave of Absence ad interim or beginning at the end of the 1992 session of the Annual Conference. This lack of clarity about what he was requesting caused a great deal of confusion. The second was that Mr. Biklen did not indicate his reasons for requesting termination of his Leave, nor how the circumstances which caused the Leave had been alleviated. (Par. 448.3.)

Even though Mr. Biklen's letter lacked clarity, at the time the Board of Ordained Ministry acted on the letter and approved the requested termination of the leave, it was incumbent on the bishop and the district superintendents to respond as soon thereafter as possible. Their silence after the Board's action could have as easily been interpreted as approval as it could have indicated disapproval.

Further, if the Board and Mr. Biklen did assume that the silence was consent, all concerned were readying themselves for an imminent appointment. Mr. Biklen would have been ordering his life accordingly, only to be disappointed months later. Not only does this dereliction of duty appear in violation of basic principles of fairness and due process, it clearly hindered, if not obviated, the reconciliation which should have been taking place. A simple communication to the Board would not only have clarified the entire situation, but would have alerted all parties that there would only be an appointment in June 1992 at the earliest.

In March, Mr. Biklen was informed that he was not being considered for an appointment in June 1992 and that the cabinet and the bishop did not approve of his coming off the leave of absence. This information is a clear misstatement of the power and authority of the bishop and the district superintendents. Par. 448.1 only provides for approval to be needed from the bishop and district superintendents when there is an ad interim action to be taken. 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 bishop and the cabinet had no authority to say that Mr. Biklen was not being considered for appointment in June 1992. In point of fact, had the Executive Session voted to terminate the leave, the bishop would have had to make the appointment.

On May 19, Mr. Biklen was informed in writing by Bishop Job that he would not be considered for an appointment while on leave, and that the Bishop considered the "circumstances surrounding the granting of the Leave not having been sufficiently alleviated." Nowhere in the Discipline is the bishop given the power to determine whether or not the circumstances surrounding a leave have been alleviated. This decision belongs to the Board of Ordained Ministry, (Par. 448.3) which, in turn, makes the recommendation to the Executive Session.

The action of the Board of Ordained Ministry on May 1, 1992 was directly contrary to its January 6, 1992 decision. While it would have been legal for the Board to rescind its prior action and take a new position, this is not what occurred. Rather, the Board continued, even at Annual Conference, to affirm its January 6th decision. The reason given for the action of May lst was that the Board believed that the bishop had refused to appoint Mr. Biklen and so it had no choice but to put him in the category of leave without consent.

The Board of Ordained Ministry totally abrogated its responsibility when it failed to follow disciplinary mandates and its own decision. Without a rescission of its January 6th action and a change of opinion there is no apparent justification for the Board to take the action it did at the May 1, 1992 meeting.

The bishop's responses (or failure to respond), his assertion of his authority going beyond an ad interim termination of a leave and his statement that he refused to consider an appointment for June 1992 were clearly wrong.

Question of Law -- Item 2

Did the Board of Ordained Ministry take illegal action at its May 1, 1992 meeting when it decided that the name of W. Michael Biklen was to be reported to the Executive Session of the 1992 Iowa Annual Conference as "continued on Leave of Absence without consent?"

Bishop Job's response: "I believe and rule that I did not act illegally orimproperly, and that the Board of Ordained Ministry acted within its authority in making the above recommendation. Mr. Biklen was not illegally denied an appointment at the 1992 session of the Iowa Annual Conference."

If the Board of Ordained Ministry acted between sessions or ad interim, this relationship may be granted or terminated with the approval of the Bishop, District Superintendents, and Executive Committee of the Annual Conference Board of Ordained Ministry. (Par. 448.1.) Only the Board approved the recommendation to terminate the Leave. Therefore, it was not granted ad interim.

However, the Board of Ordained Ministry, in addition to shirking its responsibilities as noted above, added to the confusion and misrepresentations when its spokesperson represented in the 1992 Executive Session:

Now the question is, "Did the Board vote to rescind its January 6th action?" The answer is "No." The Board voted to list Mike this way because he has to be listed somewhere when we go back home, folks, and this is the place he had to be if he wasn't voted to be taken off leave by the bishop and the cabinet. This is clearly not the rule of the Discipline. Mr. Biklen could have been listed in accordance with the January 6th decision as a member to be considered for appointment regardless of the cabinet's and the bishop's opinion on an ad interim termination of leave.

Question of Law -- Item 3

Under Paragraph 448.1 (1988 Discipline), was the Reverend W. Michael Biklen denied an appointment of the 1992 Annual Conference because no written request for continuation of the Reverend W. Michael Biklen's Leave of Absence was made at least ninety days prior to the Annual Conference?

Bishop Job's response: "I rule that the Cabinet, the Board of OrdainedMinistry and the Annual Conference all acted appropriately under the 1988 Book of Discipline in continuing the Rev. W. Michael Biklen on Leave, thus making him ineligible for appointment."

The pertinent sentence of Par. 448.1 reads, "The written request for this relationship should be made at least ninety days prior to Annual Conference." Intense debate has centered around the meaning of the word "should" and whether or not it means "shall." In all likelihood the General Conference would have used the word "shall" if it so intended, and "should" implies a discretionary, but highly recommended, act. An equally important question centers around the issue of "written request." A written request, while not mandated, would certainly have been very appropriate to clarify the already muddied situation, and should have been made at least ninety days prior to the Annual Conference. In this regard, the bishop was incorrect in ruling that the cabinet, the board, and the Annual Conference all acted appropriately.

Question of Law -- Item 4

Does Paragraph 448.3 grant exclusive jurisdiction or power to the Board of Ordained Ministry to finally decide whether a member' s request to terminate Leave of Absence should be granted?

Bishop Job's response: "My decision is that the Board of Ordained Ministryhas no such power or authority, either at the time of Annual Conference or in the interim between Annual Conferences. The power or authority rests with the Annual Conference."

The Constitution states that "the Annual Conference is the basic body in the Church and shall have reserved to it the right to vote... on all matters relating to the character and conference relations of its ministerial members." (Par. 36) The Board of Ordained Ministry's role is "to review the circumstances surrounding the granting of the relationship for the purpose of determining whether those circumstances have been alleviated." After reviewing the case, the Board recommends to the Executive Session.

A review of the procedures followed prior to the vote of the Executive Session clearly indicates due process was not followed. The question placed before the Executive Session was not sufficiently clear for the Executive Session to make a fair and inform decision.

Decision

We cannot affirm the bishop's decisions of law because they were not responsive to the questions asked.

In view of the Council's determination that due process had not been followed throughout, the matter is remanded to the Iowa Annual Conference and the Board of Ordained Ministry is directed to begin its procedure over, beginning as of August 12, 1991, the date of W. Michael Biklen's original request to terminate the leave of absence. Mr. Biklen must resubmit a specific request. The time elapsed since the 1992 session of the Annual Conference is not to be counted against the five year limitation on leaves of absence found in Par. 448.1.

Note: This copy subject to final editing and corrections.