Drell’s Descants

M E M O R A N D U M

To: House of Bishops Committee on Canons
House of Deputies Committee on Canons
From: Bishops and Chancellors of Province One
Re: Resolution A153 Proposed Title IV Revisions
Date: May 30, 2006

During the last eighteen months, the Bishops and Chancellors of Province One (“Province Oneâ€) have followed the preparation of Resolution A153 Proposed Title IV Revisions (the “Proposalâ€). Clearly, the Proposal recommends sweeping changes to the disciplinary canons and, if adopted, would alter process, standards of care, jurisdiction, and polity in the ecclesiastical discipline of the Church. At the 2005 annual conference of Province One Chancellors and Bishops, there was an extended presentation of the initial draft of the Proposal by Duncan Bayne, Chair of the Standing Commission on Constitution and Canons and a member of the drafting team of the Task Force on Disciplinary Canons (the “Task Forceâ€). Subsequently, a special meeting of Province One Chancellors and Bishops in April 2005 reviewed and discussed concerns and comments, which were summarized in memoranda to the Task Force. At the 2006 annual Chancellors and Bishops meeting of Province One, there was an extended consideration and discussion of the final draft of the Proposal. This memorandum contains a summary of the conceptual and technical concerns and comments developed in Province One.

Ecclesiastical Disciplinary Jurisdiction. We uniformly believe that the expansion of ecclesiastical disciplinary jurisdiction to include lay members is a mistake. Our objection is based on theology, polity and practical considerations. In summary, our views are:

Theology: We are not a confessional Church. To set behavioral guidelines before the laity, and then say that failure to abide by them may lead to charges, hearings, and disciplinary orders which may contain “any terms which promote healing, repentance, forgiveness, restitution, justice, amendment of life and reconciliation†makes us a confessional Church. We understand the theological basis for this assertion of jurisdiction to be grounded in the concept of baptismal ministry, applicable to lay members as well as clergy. While we do not dispute the concept, we do not think that this assertion of disciplinary authority is the means to encourage behavior consistent with our baptismal covenant.

Polity I: The Proposal would fundamentally and radically alter the relationship among Bishops, Rectors and Vicars, on the one hand, and lay members of the Church on the other. If the Church asserts the right to discipline lay members under ill-defined standards, Bishops, Rectors and Vicars will have the ability to impose their own version of doctrinal discipline. An implied threat will always exist that if a lay member fails to behave in the way the supervising cleric wishes, disciplinary proceedings might ensue. Pastoral relationships will be forever altered, and in many cases made impossible.

Polity II: Ordination vows place the clergy under an obligation to serve the Church, with the understanding that failure to do so may result in restrictions or loss of the gifts of ordination. Lay members take no such vows. The baptismal covenant is not the same as ordination vows, nor is baptism undertaken in the same way that ordination is undertaken.

Practicality: The potential for assertion of disciplinary jurisdiction will have a chilling effect on the ability of the Church to recruit volunteers that are the mainstay and lifeblood of Church activities at all levels. No process of confidentiality will be credible enough to offset the perception.

In the Blue Book for General Convention 2000, the Standing Commission on Constitution and Canons, in recommending the adoption of present Canon I.17.8, issued the following:

The proposed amendment is intended to make explicit an expectation of good faith and diligent performance of duties, which attend various offices of the Church, whether lay persons or clergy. The Commission acknowledges the diversity of diocesan structures and canons that guide or influence the duties of a particular office and the predominately voluntary nature of service in such offices by lay members. The Commission believes it is preferable to provide a standard of performance rather than to adopt a disciplinary process for lay persons who fail or refuse to perform the duties of such offices.

We view present Canon I.17.8 as the proper approach to encourage faithful execution of an office by lay members. If, however, there were a need for additional accountability for lay members in leadership positions, a review and modification of the provisions of present Canon I.17.8 would be the appropriate course. Changes could include the introduction of familiar standards of corporate conduct (duty of care, duty of loyalty, and good faith) coupled with a provision for the removal of a lay member who does not adhere to the standards. We believe that this approach is as far as the Church should go and is preferable to the inclusion of the laity under the disciplinary system.

Standards of Care. We have substantial concerns as to the imprecision of the standards of care in Prop. Canon IV.4. We find appealing and admirable an effort to set forth aspirational goals of conduct, but the use of unclear definitions is a troubling approach to discipline. Under the broadly defined standards of Prop. Canon IV.4, a breach of a standard, or the mere failure to comply with a standard, would be often less a question of fact than a matter of judgment. For example, Prop. Canon IV.4(a) provides that laity who qualify as Ministers in Leadership and clergy shall act within limits of competence and shall strive to expand his or her competency. If a cleric engages in marital counseling and the marriage subsequently fails, the question then becomes whether the counseling by definition is an indication that the cleric had exceeded his or her competency. Prop. Canon IV.4(c) requires a Minister in Leadership to perform the duties of Ministry with diligence and integrity. How is the Church to determine under the disciplinary process whether the standard was met? Prop. Canon IV.4(g) requires a Minister in Leadership to uphold the dignity of other members. How is the Church to determine under the disciplinary process whether the standard was met?

The Church should encourage all clergy and laity to strive toward aspirational goals of conduct. However, bright line standards for competency, diligence, integrity, or dignity (or for most of the other standards in Prop. Canon IV.4) are difficult if not impossible. But the application of discipline in the Church calls for more precise conceptual line drawing. Perhaps, the Church should adopt aspirational goals (although not in the disciplinary canons). However, the Church should not hold clergy and laity subject to the discipline for the failure to fully rise to an aspirational goal.

The implementation of imprecise standards would likely open the Church to unlimited allegations of failure to attain a standard. Unfortunately, we are all familiar with situations in which a cleric or member of the laity is unhappy with some action or inaction by the Church or a Church leader. Under the Proposal, such an individual could easily read through the aspirational standards of conduct and find many that arguably have been breached under almost any circumstance. We recognize that Prop. Canon IV.3.3 imposes a materiality threshold for breaches of standards of conduct in order for them to be the subject of proceedings under Title IV. Again the definitions of “material and substantial†and “clear and weighty†lead us to believe the threshold is inadequate and impracticable. In many cases, the harm is done when the accusation is made, even if later dismissed.

We also are particularly concerned that the aspirational approach to defining actions liable for discipline may seriously inhibit prophetic as opposed to pastoral ministry. Prophetic ministry frequently requires a challenge to the established order of things; the enumerated standards of conduct appear to be highly protective of the established order of things.

Changes to the Role and Authority of Bishops Diocesan. The Proposal introduces significant changes to the role of Bishops, modifying the historical disciplinary polity of the Church. Under ordination vows, Bishops are called to guard the discipline of the Church. The clergy, laity and general public often consider a Bishop responsible for everything which occurs within a Diocese. In some ways under the Proposal, the role of a Bishop in the initiation of the disciplinary process is expanded, particularly with respect to Impairment, but in most others, particularly in the resolution of the disciplinary process, the role is diminished. The Proposal establishes the Discipline and Fitness for Ministry Board as the primary administrator of discipline in the Church.

Under present Canon IV.2, a cleric may voluntarily submit to discipline administered by the Bishop. The concept of voluntary submission is replaced in the Proposal by a provision permitting an agreement between the cleric or lay member and the Bishop, the terms of which are then set forth in an Order. However, the Order is not effective unless approved by the Discipline and Fitness for Ministry Board.

The Proposal sets forth a surprisingly broad scope of authority for Covenants and Orders. Prop. Canon IV.13.1 and 2 authorize a Covenant or Order to (i) provide any terms which promote healing, repentance, forgiveness, restitution, justice, amendment of life and reconciliation among the parties, (ii) place restrictions on the exercise of ministry by the cleric or lay member, (iii) place the cleric or lay member on probation, (iv) recommend a sentence of suspension or deposition, (v) remove a lay member from ministry, (vi) limit the involvement of the cleric or lay member in the community, or (vii) any combination of items (i) to (vi). The only authority of the Bishop, however, is to reduce the recommended sentence. The Bishop has no authority as to the other terms of the Covenant or Order.

Even with respect to sentencing, the role of the Bishop is circumscribed. Prop. Canon IV.2 provides for only two sentences – suspension or deposition. The sentence of admonition under the present disciplinary canons is not in the Proposal. Prop. Canon IV.13.5 and 13.8 require a Bishop to pronounce the sentence set forth in a Covenant or Order and authorizes the Bishop to reduce the sentence. However, the determination of whether to accept or reject a recommended sentence must be made by a Bishop within fifteen days from the date on which the Covenant or Order is sent to the Bishop by the issuing Panel. Since there are only two possible sentences, a Bishop would have the authority to reduce a sentence of deposition to suspension, but, if the recommended sentence is suspension, the choice would be illusory since there is no alternative sentence for a Bishop to designate.

Any change in the historical role of Bishops under the disciplinary canons requires careful review and reflection. In view of the radical changes in the Proposal to process, standards of care, jurisdiction, as well as the role of Bishops, the need for careful reflection and the development of a common mind as to a fair system of discipline is critical. There are Bishops and Chancellors in Province One who view the magnitude of the changes created by the Proposal with grave concern.

Impairment. We are increasingly uneasy about the inclusion of impairment proceedings in Title IV, particularly as they may apply to lay members or to Bishops. While we understand and support the need for proceedings to deal with circumstances of impairment, all of our concerns about Title IV proceedings for lay members are greatly heightened by the potential for impairment proceedings for the laity. Allegations of substance abuse, mental or spiritual conditions, lack of integrity or competence – all of which are included in the definition of Impairment – are far too powerful weapons, even if they were ultimately disproved or dismissed, to be available in a Church setting. The potential for abuse of impairment proceedings and the potential ensuing harm far outweigh any benefits.

With respect to Bishops, it seems clear to us that an allegation of Impairment is very likely to become the recourse of choice to any member or group who has a dispute with the Bishop. The process will become clogged with complaints, each of which will have to be investigated and dealt with. This will result in a very substantial weakening of the authority and influence of the Bishop. In effect, this process becomes a process for dissolution of the pastoral relationship for Bishops, as Canon III.15 presently is for Rectors.

Abandonment of the Communion. We recognize that the use of present Canon IV.10 is the subject of substantial criticism. However, there are clear historical reasons for the canon and we believe that abandonment of the communion should retain its unique status and not be aggregated with other allegations of misconduct. Especially in the complex controversies affecting the Church today, there is a need for a speedy and effective way to address those situations where a cleric abandons the Church for another denomination. If there are perceived abuses in the use of present Canon IV.10, the definition of abandonment in the present Canon IV.10 could be narrowed. Without question, present Canon IV.10 is a powerful weapon and a change in the scope of present Canon IV.10 may be appropriate. A change in the manner of availability is not warranted.

Definition of Pastoral Care. We are disturbed by the definition of Pastoral Care in Canon IV.2 insofar as it imposes that relationship forever between a Minister in Leadership (including the laity) and any person to whom that Minister has provided pastoral care, spiritual direction, or the regular ministration of any sacrament. As written, any chalice bearer or Eucharistic Minister will forever have a Pastoral Relationship with all members of the congregation. Because of the broad definition of sexual misconduct, the definition will put these persons at risk for allegations of sexual misconduct years down the road for actions which would not normally be considered actionable.

Church Attorney. The role of the Church Attorney is described in the definitional section under Prop. Canon IV.2. The definition provides that the Church Attorney represents the Diocese and may consult with the Standing Committee, but does not address the issue of oversight. The Proposal appears to require the retention of a Church Attorney at all times in order to receive and review documents and to exercise discretion and undertake proceedings from time to time. Under the present canons, the role and oversight of a Church Attorney is limited and clearly defined. Under the Proposal, the role of Church Attorney effectively is one of an independent prosecutor without oversight. The definition in Prop. Canon IV.2 should at least include authorization for diocesan canons to include a process for oversight as well as selection of the Church Attorney.

Suspension of Disciplinary Proceedings. We note that Canon IV.16.3 now permits suspension of disciplinary proceedings for emotional and spiritual conditions. While we realize that this involves placing the person who claims such a condition in an impaired status, that may be greatly preferable for a Respondent to a finding of guilty of a canonical violation – and once claimed, it would seem hard to dispute the existence of such a condition.

Pastoral Response. Under Prop. Canon IV.8.1, a Bishop is required to provide for an appropriate pastoral response whenever any report is made to the Intake Officer. There is no discretion as to gauging the seriousness of the allegation. Since the Intake Officer has the authority to dismiss a report for lack of materiality, a full pastoral response to a report or allegation that does not meet the threshold standard of materiality does not appear warranted. Also, under Prop. Canon IV.8.2, the term Minister appears to be omitted.

Fifteen-Day Requirement for Action by Bishop. Under Prop. Canon IV.13, the requirement of fifteen days for the Bishop to respond to a recommended sentence in a Covenant or Order may not be appropriate and clearly is not practical. In any event, there should be clarity as to the time period. The time period for consideration should commence with the date of receipt rather than the date of sending.

Prop. Canon IV.6.10. The reference to Prop. Canon IV.11.8 in line 416 does not appear correct.

Prop. Canon IV.5.4(e). There should be parentheses added around the “e†in the canonical reference in line 335.