wfn.org | Disciplinary rules for bishops

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achi
August 6, 1997
Episcopal News Service
Jim Solheim, Director
212-922-5385
ens@ecunet.org

97-1907
Disciplinary rules for bishops
achieve equity for clergy

by David Skidmore
     (ENS) If one issue defined the Episcopal Church's 72nd General
Convention it was equity.
     From ordination rights for women clergy to benefits for domestic
partners, and from parity for lay compensation to retaining the rights of
retired bishops to vote, the convention seemed eager to level the playing
field in many areas.
     In particular, equity also was achieved in a major rewrite of the
church's disciplinary canons governing clergy.
     The Standing Committee on Constitution and Canons (SCCC) has
worked for nearly six years to overhaul the church's procedures for
dealing with clergy misconduct.
     Three years ago in Indianapolis, General Convention approved the
first major overhaul of the canons since the church's constitution was
adopted in 1789. But that revision focused exclusively on the discipline
of priests and deacons.
     This time it was the bishops' turn.
     The latest changes to Title IV of the church's canons places
bishops on a more even footing with priests and deacons. Now, bishops
accused of misconduct or a violation of any canons are subject to:
     ~ temporary inhibition, in which they can be prohibited from
functioning as bishops until a ruling is made; 
     ~ investigation by an independent body, known as the Review
Committee, to probe misconduct offenses;  and
     ~ a broader classification of individuals who can bring charges
against bishops, including the alleged victims or their families.
     A constitutional change allowing for lay people and priests to
serve on trial courts for bishops will have to await a second vote at the
next convention before it becomes effective.
     Other than a provision for appointment of a consultant to accused
clergy and another limiting the use of temporary inhibitions, the latest
installment of Title IV revisions was adopted in nearly the same form as
originally drafted by the SCCC and by overwhelming majorities in both
houses of convention.

Goal was parity
     Members of the SCCC, and the convention's Cognate Committees
on Constitution and Canons which fine-tuned the SCCC's work, are
confident that the goal of parity between bishops and other clergy was
reached.
     The intent was to make the disciplinary procedures as parallel as
possible given the different roles, said Sally Johnson, former chancellor
of the Diocese of Minnesota and principal author of the revisions. "And
we achieved that," she said.
     Judge James Bradberry, who chaired the cognate canons
committee, said the changes "achieve substantial parity" and provide "a
user-friendly disciplinary process" that "will not become a playground for
lawyers."
     Both Bradberry and Johnson noted that members of the
Committee on Sexual Exploitation, one of the strongest critics of the
SCCC's early work, had mostly positive comments during the committee
hearings and debate in the House of Deputies.
     "My sense is that bishops and lay people on that committee are
very pleased with the work," Johnson said.
     Feedback from members of the National Network of Episcopal
Clergy Associations (NNECA) also was positive, Johnson added. In 1994
clergy were apprehensive and complained of a double standard, she said.
One concern was the more limited number of people who could bring
charges against bishops. 
     The 1994 revision expanded the class of people who could bring
charges against priests and deacons but left the list of complainants
against bishops  to three bishops or 10 lay adults. That has now been
remedied by adding victims, victims' spouse or parents, and the "adult
child" of a victim.

Temporary inhibitions differ
     But Johnson acknowledged that disparity still exists in some
situations. One concerns temporary inhibitions. 
     The lack of a provision for inhibiting bishops was a major
concern during the past triennium for NNECA, which saw it as evidence
of a double standard. Under the 1994 canons, no one had the authority to
restrict a bishop from functioning during the investigation of a complaint.
Unless a bishop voluntarily submitted to discipline, nothing much could
be done.
     That has now been changed. A bishop with jurisdiction can be
temporarily inhibited by the presiding bishop, but only with the approval
of a majority of that bishop's diocesan standing committee. The
procedure is more difficult than that for priests and deacons, who can be
inhibited by their diocesan bishop without prior approval of the standing
committee. Clergy have the right to appeal the inhibition to the diocesan
standing committee.
      An amendment adds a new section stating that a temporary
inhibition~for both bishops and other clergy~should be regarded as "an
extraordinary remedy, to be used sparingly" and only to prevent
"immediate and irreparable harm" to victims or church members. 
     Other changes were made in how charges can be filed, Johnson
said.
     The rules allow a complainant or victim of clergy misconduct to
bypass the bishop and file directly with the standing committee. But with
bishops, complainants or victims must first file their complaint with the
presiding bishop. 
     Exercising a "pastoral role," the presiding bishop has 90 days to
resolve the matter before sending it on to the new Review Committee,
which can issue presentments. The Review Committee can also dissolve
or reduce a temporary inhibition against a bishop.
     A third difference concerns doctrinal offenses. For priests and
deacons, a doctrinal offense is processed in the same way as those for
misconduct. But for bishops accused of violating the church's doctrine,
the charge goes to the House of Bishops. Before the bishops can consider
a presentment, they must first vote on a statement of disassociation
signed by at least 10 bishops.
     Those distinctions, Bradberry said, arose from the different role
exercised by bishops, who are interpreters of the church's faith and
order, and have greater oversight and responsibilities than do priests and
deacons. 
     "It was not contemplated that they would be afforded any measure
of insulation, only that we would respect the institution in how we go
about implementing the process," he said.

Few objections
     The only major objection to the revisions came from Bishop
William Wantland of the Diocese of Eau Claire (Wisconsin).  Wantland
tried to amend provisions adopted at the last General Convention
extending the window on filing sexual misconduct charges to July 1,
1998. 
     That change, which was a major point of controversy in the first
revisions, allowed retroactive charges for offenses on which the statute of
limitations had expired.
     Wantland called the change "utterly unconstitutional and illegal in
every federal, state and local court system of this republic. It is an ex
post facto law." 
     As a compromise, he suggested moving up the deadline to
January 1, 1998. His suggestion was not accepted.
     Wantland also complained about the canons' lack of an explicit
definition for such terms as "immorality," "sexual abuse," and "sexual
exploitation" that are listed among the offenses for which members of the
clergy can be charged. "Unless we define these things," Wantland said,
"we open a Pandora's box."
     Responding to Wantland's criticism, Bishop Mary Adelia McLeod
of the Diocese of Vermont argued that to reduce or dispose of the
expanded window would be "a grave injustice" to misconduct victims.

Setting uniform procedures
     The starting point for the canonical overhaul was the fallout from
a rash of sexual misconduct cases in the late 1980s, particularly several
high-profile cases such as those involving Bishop Steven Plummer of the
Navajoland Area Mission; Wallace Frey, former priest and vice president
of the House of Deputies; and five former students of Nashotah House
seminary.
     The outcry from church members, coupled with the impact of
multi-million dollar lawsuits, led the 1991 General Convention to direct
the SCCC to revamp the Title IV disciplinary canons to make them
clearer, more uniform, and more balanced in addressing the rights of
both victims and accused clergy.
     In 1994 the General Convention approved more than 100
amendments to 16 Title IV canons, focusing on uniform procedures for
ecclesiastical courts, protecting the due-process rights of accused clergy,
increasing the types of persons who may file charges, reducing the statute
of limitations on filing misconduct charges, and removing bishops from
the presentment process.
     The question of bishops' discipline was left to the SCCC to
address and bring to the 1997 convention.
     Disciplinary actions against bishops for misconduct are not
commonplace. During the past six years, the complaints have been settled
through the presiding bishop's intervention outside the formal disciplinary
process, or through retirement or resignation. 
     Bishop Plummer took a year's leave of absence in 1993 after
accusations surfaced of sexual involvement with a male adolescent. The
Diocese of Maine's Bishop Edward Chalfant retired last June after a
woman came forward with allegations of sexual misconduct.
     The only bishop to be brought into a Title IV disciplinary
proceeding was retired Bishop Walter Righter, who was charged with
violating the church's doctrine in 1995 for having ordained a non-celibate
gay deacon five years earlier when he was assistant bishop of the Diocese
of Newark.
     That case ended in May 1996 when the trial court ruled the
ordination did not constitute a violation of the church's "core doctrine."
A major factor influencing the court's decision was the lack of an explicit
definition of doctrine.
     That has now been remedied. The convention added a new canon
to Title IV defining doctrine as the church's "basic and essential
teachings" as found in the canons of Holy Scripture and understood in
the Apostles and Nicene creeds; and in the sacramental rites, the ordinal
and catechism in The Book of Common Prayer.

New help for accused clergy
     The new Title IV also revises general provisions affecting all
clergy. Among the changes are the provision for a consultant who would
advise clergy on Title IV prior to the issue of a presentment. The cost of
the consultant would be the responsibility of the dioceses of the accused
clergy. 
     Another is the replacement of the Federal Rules of Civil
Procedure with a limited set of procedures tailored to the issues specific
to ecclesiastical proceedings.
     The changes were prompted by criticisms raised  by Michael
Rehill, chancellor of the Diocese of Newark. In testimony earlier in the
convention before the cognate committees, Rehill said using federal
procedures was inappropriate because they provided for overly broad
discovery procedures.
     A provision for mediation between both the complainant and the
accused clergy person also is included. The provision permits either party
involved in a disciplinary proceeding to submit the matter for mediation
by a neutral third party. 
     Using a mediator is not intended for disputes around sexual
misconduct, according to Johnson, though the resolution's language does
not explicitly bar sexual misconduct complaints from being submitted for
mediation. The only part of a proceeding not available for mediation is a
dispute over sentencing.
      "It is intended to be a way to get the involved parties to sit down
and talk about something and work it out to their mutual satisfaction,
rather than having to do a finding of fact and prove what actually
happened," Johnson said.
     She also noted that mediation isn't mandatory. Either party can
decline to participate. 
     Another change is a clarification that privileged communication in
an ecclesiastical proceeding is not protected in a civil or criminal action
of a secular court. 

~David Skidmore is director of communications for the Diocese of
Chicago.