Decision Number 1031

Review of Bishop's Decision of Law in the Virginia Annual Conference Related to the Disciplinary Purview of the Conference Relations Committee of the Conference Board of Ordained Ministry and the Fair Process Rights of a Pastor.

Digest

The decision of law Bishop Charlene P. Kammerer is reversed. This case is remanded to the Virginia Annual Conference to terminate forthwith the involuntary leave of absence of the Elder.

The Conference Relations Committee of the Conference Board of Ordained Ministry had no authority to consider a judicial complaint. The Board's authority extends to consideration of remedial or other action on an administrative complaint. The Board of Ordained Ministry transformed an allegation determined by the Bishop to be the basis for an administrative complaint into a chargeable offense and as such did not have disciplinary authority to consider the complaint. The Clergy Session's action in approving involuntary leave of absence based on specifications supporting a chargeable offense is null and void.

The Elder is entitled to reinstatement to the status he held immediately prior to the action placing him on involuntary leave of absence. The Elder is entitled to immediate appointment and all salary and other benefits retroactive to July 1, 2005.

Statement of Facts

On March 4, 2005, a district superintendent in the Virginia Annual Conference filed a written and signed compliant with the Resident Bishop against an Elder in full connection in the Conference. The complaint alleged unwillingness or inability to perform ministerial duties.

During the latter part of 2004, an associate pastor in a local church in the Virginia Annual Conference advised the district superintendent that the senior pastor refused to receive into membership in the local church an individual who admitted to living a homosexual lifestyle. The Elder would not permit the associate pastor to receive the individual into membership. The district superintendent met privately with the Elder to discuss the individual's request for membership. The Elder advised the district superintendent that he was meeting with the individual who had requested membership. He further advised that he would continue to meet with him and be in ministry with him but that he could not receive him into membership of the church since the individual would neither repent nor seek to live a different lifestyle. The district superintendent sought consultation with the Bishop and was informed through the office of the Bishop that pastor in the United Methodist Church is to receive anyone who is able to receive the vow, affirm the vow and promise to fulfill the vow. The district superintendent met again with the Elder and advised him that he was required to receive the individual into church membership and anyone else who was able to receive the vow, affirm the vow, and promise to fulfill the vow. After additional meetings and communicating with the district superintendent, the Elder informed the district superintendent that he could not receive the individual into membership of the church given his admittance of continuing the practice of homosexuality and his intent not to discontinue the practice. Thereafter the district superintendent filed the complaint against the Elder charging him with unwillingness or inability to perform ministerial duties.

Upon receipt of the complaint, the Bishop held a supervisory conference with the Elder. The Bishop says that the Elder stated that he wished he would have discretion as a pastor to decide who, if, and when to receive a new member of the church. As a matter of conscience, he would not receive a gay man as a member of his congregation. At the conclusion of the conference, the Bishop says she asked the Elder humbly to receive this gay man as a member of his church, trust God to judge the sexual behavior, and to continue to work to be a transforming and redemptive presence as a pastor in this gay man's life. The Elder advised the Bishop that he would not accept the individual into church membership, that he was not willing to surrender his credentials and that he was not open to early retirement, all possible solutions which the Bishop had explored with the Elder during the supervisory conference. The Bishop says she pleaded with the Elder to change his mind and heart but to no avail. The Bishop referred the complaint on March 14, 2005, to the Conference Board of Ordained Ministry as an administrative complaint.

The Board of Ordained Ministry referred the complaint to the Conference Relations Committee and an administrative hearing was held on April 14, 2005, with the Elder and his advocate in attendance. After the administrative hearing, the full Board met and received the report and recommendation of the Conference Relations Committee. The recommendation was that the Elder be placed on involuntary leave of absence. The Board of Ordained Ministry recommended that the disciplinary ninety-day notice requirement be waived and that the Elder be placed on involuntary leave of absence effective July 1, 2005. The Elder was informed of the decision and of his right to a hearing before the Bishop, District Superintendents and Executive Committee of the Board of Ordained Ministry.

On April 25, 2005, the hearing with the Bishop, District Superintendents, and Executive Committee of the Board of Ordained Ministry was held. The Bishop and District Superintendents came into the hearing room at the start of the hearing. The Elder appeared and presented new information. At the conclusion of the hearing, the Executive Committee met to determine whether there was sufficient, new information to refer the matter back to the full Board of Ordained Ministry for reconsideration of appropriate remedial action. The Committee determined that there was sufficient, new information and the matter was referred back to the full Board. The full Board met on May 18, 2005, and recommended that the 90 day notice for placing an elder on involuntary leave of absence be waived, that the [Elder] be placed on Involuntary Leave of Absence per ¶ 354.1b to begin July 1, 2005, for unwillingness or inability to perform ministerial duties (¶ 362.2), and other remedial actions.

The Board gave written notification of its decision to the Elder and again advised him of his right to a hearing before the Bishop, the District Superintendents, and the Executive Committee of the Board of Ordained Ministry before being placed on involuntary leave. The Elder was asked to notify the chair of the Board if he desired to have the hearing. Having not heard from the Elder by the deadline given to advise whether he wanted a hearing, the Elder was contacted by the chair. The Elder advised the chair of the Board that he was not requesting the hearing for involuntary leave of absence, but would appear if it were held. The chair of the Board elected to hold the hearing. The Bishop, the District Superintendents, the Executive Committee of the Board of Ordained Ministry, and the Elder were notified that the hearing for involuntary leave would be held on June 9, 2005.

The Administrative Review Committee's report says that at the June 9, 2005, meeting, the Bishop, District Superintendents, and the Executive Committee of the Board of Ordained Ministry [a]ll met together in the hearing room. Meeting separately after the hearing, each of the three groups voted on the recommendations. The Bishop and the Executive Committee voted to sustain the recommendation to waive the ninety-day notice requirement for involuntary leave, the recommendation to place the Elder on involuntary leave of absence and the recommendation for the other remedial actions. The District Superintendents voted to sustain the recommendation to waive the ninety-day notice requirement for involuntary leave and the recommendation for medical benefits but not the recommendation to place the Elder on involuntary leave of absence.

The matter came before the Clergy Session of the Virginia Annual Conference in its meeting on June 13, 2005. The record of the meeting reflects that the Rev. Keith D. Boyette announced his intention to abstain in all votes in this matter, since he is a member of the Judicial Council. The chair of the Conference Board of Ordained Ministry made a motion to waive the ninety-day notice requirement in order to consider any motion regarding involuntary leave of absence for the Elder.

The Presentation by the Board of Ordained Ministry of the June 9, 2005, Hearing affirming the complaint against the Elder and its decision to recommend involuntary leave of absence was before the body. The chair of the Board moved that the [Elder] be placed on involuntary leave effective July 1, 2005, with health benefits provided by the annual conference for one year, and remedial action. During the session, a series of questions of law were posed to Bishop Charlene P. Kammerer. One of the questions was as follows:

Is the motion to place the [Elder] on involuntary leave of absence (Para. 353.3) out of order because the Presentation by the Board of Ordained Ministry at a hearing on June 9, 2005 has substituted what amounts to a chargeable offense and ‘disobedience to the order and Discipline of the United Methodist Church (Para. 2702.1e)? The Presentation by the Board of Ordained Ministry charges the Rev. Johnson with a violation of United Methodist Church Polity and with being unwilling to uphold [sic] Book of Discipline and to take direction from the district superintendent and his bishop which substitutes an administrative complaint for what rightfully is a judicial complaint. Consequently, is not the matter beyond the disciplinary purview of the Conference Relations Committee of Board of Ordained Ministry and does it not fail to afford the accused with his fair process rights?

The Bishop received the question of law and ruled the motion for involuntary leave was in order. The motion to place the Elder on involuntary leave with health benefits was approved by the required two-thirds vote. The Bishop thereafter answered the question in writing. In answering, the Bishop gave the background leading up to the filing of the complaint and gave the following response:

Having carefully considered the matters of the complaint, and further holding a supervisory session with the complainant and respondent when no resolution was reached, I determined to forward the complaint as an Administrative Complaint.

This decision was made after consulting with legal counsel and several colleague bishops. My hope throughout was for a just resolution to emerge, first from the supervisory meeting, then with the Board of Ministry members. It is the prerogative of a bishop to determine which route the complaint will take.

I believe the complaint process was followed fairly and compassionately. Because the respondent was unwilling to work toward a different pastoral response, the option of Involuntary Leave emerged as a way for the respondent to exercise accountability in the Covenant of the Order of Elders. The request for Involuntary Leave was upheld by the Board of Ministry, the Virginia Cabinet, and myself, the bishop. The Board of Ministry further stated several remedial actions that the respondent was to do prior to returning for consideration for a pastoral appointment. The Clergy Executive Session sustained the Involuntary Leave for the status relationship for the respondent.

Oral hearings were held in Houston, Texas on October 27, 2005. Rev. H. O. Thomas, Jr. and Pat Meadows, Esquire, spoke seeking reversal of the decision of law. Bishop Charlene P. Kammerer, Rev. Jeffrey P. Mickle and Clark Williams, Esquire, spoke seeking affirmation of the decision of law.

Jurisdiction

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

Analysis and Rationale

The question calls for a decision on the parliamentary appropriateness of the motion to place the clergy member on involuntary leave of absence. The settled principle of our jurisprudence is that we do not review parliamentary rulings. However, parliamentary inquiry is clearly not the focus of the member's inquiry.

While we re-affirm our consistent refusal to review parliamentary rulings when the proper remedy is to appeal the bishop's ruling to the body, or to request a bishop's ruling of law on a clear question, we note that the Bishop made a ruling of law. Because the Bishop elected to make a ruling of law, we have jurisdiction to review her ruling. The question suggests that the clergy member's fair process rights were violated.

Fair process can never be presumed but must be clearly demonstrated at each stage of proceeding. The Discipline provides a set of rules and procedures that must be followed in order to take action leading to a change in conference relationship of members in full connection. With respect to the Elder here those rules and procedures were not followed. The Judicial Council finds several errors in the process.

Following the Elder's refusal to receive into membership an individual who professed to be a practicing homosexual, a complaint was filed against him alleging unwillingness or inability to perform ministerial duties. The complaint was referred by the Bishop as an administrative complaint.

Paragraph 362.1.d of the 2004 Discipline provides that [u]pon receiving a written and signed complaint, the Bishop shall, within 45 days, either dismiss the complaint after consultation with the cabinet, as having no bases in law or fact, or shall initiate the supervisory response process. This provision also provides that if the supervisory process does not achieve a resolution, the bishop shall refer the matter as either an administrative complaint under ¶ 362.2 or a judicial complaint under ¶ 2704. While the Discipline gives the bishop the right to choose whether to refer as an administrative or judicial complaint, the Discipline places parameters around the bishop's right to choose. Paragraph 362.2 states: If the bishop determines that the complaint is based on allegations of incompetence, ineffectiveness, or unwillingness or inability to perform ministerial duties, he or she shall refer the complaint as an administrative complaint to the board of ordained ministry for its consideration of remedial or other action (see Â¶ 362.4a).

The allegation of the complaint fits within the provisions set by the Discipline in determining whether it should be referred as an administrative complaint, and the Bishop was bound by the Discipline to refer it as an administrative complaint.

The question of law posed to the Bishop goes to the heart of the work done by the board of ordained ministry and its conference relations committee in carrying out its disciplinary responsibility in connection with the complaint. The question of law sought a ruling on whether the accused Elder was afforded his fair process rights. The Bishop was asked if the Board of Ordained Ministry in its hearing substituted what amounted to a chargeable offense under ¶ 2702.1 of the Discipline for the administrative allegation, thus removing the authority of the Conference Relations Committee and the Board of Ordained Ministry to consider the complaint. The Bishop's response does not answer the question of law. She offers background information concerning the facts leading up to the referral of the complaint and offers reasons why it was referred as an administrative complaint.

In its Presentation, the Board of Ordained Ministry based its recommendation for involuntary leave of absence on ¶¶ 161(G), 214, 225 and 423.13 of the Discipline. The Board stated that [a]s an ordained elder in the United Methodist Church it is the responsibility of the [Elder] to uphold . . . The Book of Discipline [and that] failure to adhere to the district superintendent's interpretation of church law by an elder subject to the district superintendent's supervision is a violation of United Methodist Church Polity. The Board's Presentation recognizes that [t]he complaint against the [Elder] is based on ¶326.2, unwillingness or inability to perform ministerial duties but it goes on to again reflect that the decision to place the Elder on involuntary leave of absence was based on the Board's finding that he was guilty of a chargeable offense.

The Board in its Presentation further states:

Since [the Elder] is unwilling to uphold [sic] Book of Discipline and to take direction and supervision from his direct superintendent and his bishop, this makes it inappropriate for him to continue to serve under appointment. His unwillingness already threatens the authority of those who are charged to supervise him. For him to continue would only confuse and erode our understandings of connectional authority and boundary.

A review of the Presentation by the Conference Board of Ordained Ministry reflects that this body transformed an allegation of unwillingness or inability to perform ministerial duties into a charge of disobedience. The Board determined that the Elder was guilty of insubordination, violating United Methodist polity, and failing to uphold the Discipline. Simply because the complaint has an administrative label and went through the administrative process does not change what actually occurred. The Board transformed an administrative allegation into specifications supporting a chargeable offense. The conference relations committee and the conference board of ordained ministry have no disciplinary authority to consider and pass upon a judicial complaint. Consideration of a chargeable offense against an Elder must be pursued in accordance with the disciplinary provisions for a judicial complaint. Had the complaint been referred as a judicial complaint, it would have taken a completely different pathway. In the first instance, the conference relations committee would not have received the referral. It would have gone to the Committee on Investigation. See Â¶Â¶ 2704.2.a, 2705 and 2706 of the Discipline. Thereafter, the complaint would have continued to follow the disciplinary path for processing a judicial complaint.

It is unfortunate that the process worked its way through the committees to the clergy session and a vote to sustain the recommendation to place the Elder on involuntary leave of absence. The error noted here could have been corrected at an earlier stage. The Discipline provided a means for corrective action. Upon receipt of the recommendations from the Conference Relations Committee, the Discipline gave the Board the option of accepting or amending the recommendation of the Committee or dismissing the complaint. The Board also had the option of referring the complaint back to the Bishop for possible referral as a judicial complaint. See Â¶ 362.4 of the Discipline. The Board did not avail itself of any of these corrective measures and the decisions must be overturned. Accordingly, the decision of Bishop Charlene P. Kammerer must be reversed.

Decision

The decision of law of Bishop Charlene P. Kammerer is reversed. This case is remanded to the Virginia Annual Conference to terminate forthwith the involuntary leave of absence of the Elder.

The Conference Relations Committee of the Conference Board of Ordained ministry had no authority to consider to a judicial complaint. The Board's authority extends to consideration of remedial or other action on an administrative complaint. The Board of Ordained Ministry transformed an allegation determined by the Bishop to be the basis for an administrative complaint into a chargeable offense and as such did not have disciplinary authority to consider the complaint. The Clergy Session's action in approving involuntary leave of absence based on specifications supporting a chargeable offense is null and void.

The Elder is entitled to reinstatement to the status he held immediately prior to the action placing him on involuntary leave of absence. The Elder is entitled to receive immediate appointment and all salary and other benefits retroactive to July 1, 2005.

Shamwange P. Kyungu was absent.