A routine part of clergy placement for many years, "background checks" are becoming more controversial. They raise a number of serious canonical and theological questions. In response to lawsuits against dioceses, bishops have been persuaded to set up a scheme to obtain personal information about the clergy in order to reduce the risk of dioceses being found liable.

Testimonials with reference to character have always been part of the procedure leading to ordination. But it has always been assumed that a repentant sinner would be eligible. A convicted murderer has been ordained in the Episcopal Church. (It is worthwhile reflecting that St. Paul participated in the murder of St. Stephen.) So have a large number of recovered alcoholics, most of whom have used their experience to reach out pastorally to others. Respectability has never been a prerequisite to discipleship or ministry, lay or clerical.

Last December, I received a notice from the Diocese of Maine requiring me to attend two workshops on forms of sexual abuse. It stated that if I did not attend, my authority to officiate would be taken away. Of course, this was not true. The only way my authority to officiate in my diocese can be removed is by conviction of an ecclesiastical offense by an ecclesiastical court.

In the Diocese of Massachusetts, canonically resident clergy were given the impression that they were officiating under a license which could be withdrawn if they did not cooperate. This was a misrepresentation unworthy of the bishops who permitted it. Instead of being treated as brothers and sisters in Christ, the lesser clergy are now regarded by their bishops as liabilities.

In May, I received a questionnaire from Oxford Document Management Co., Inc., with a covering letter from my bishop. My response read as follows:

"I am returning to you the form for the clergy questionnaire sent to me by the Diocese of Maine. Although I retired four years ago and am not now seeking active employment in the ordained ministry, I respectfully decline to furnish you with any information. Nor will I sign any authorization/release which could deprive me of a right to sue for invasion of privacy if such occurs in the course of your proposed investigations.

"The basis of my refusal is the privilege against self-incrimination stated in Title IV, Canon 14, sec. 9 (b) and the presumption of innocence in Sec. 12 of that canon of the Episcopal Church adopted in General Convention 1994. As a church historian who has taught canon law in two seminaries of the Episcopal Church, I am aware of the danger of the introduction of inquisitorial procedures, and for that reason prize the common law tradition which heretofore has been respected in the Episcopal Church and other churches of the Anglican Communion."

There is nothing to prevent a diocese from using information gathered in a "background check" in a subsequent presentment. The contract between Oxford Management and the diocese allows Oxford Management to furnish material to others if instructed to do so by a diocese.

The covering letter from the Bishop of Maine states: "All information will be entirely confidential, and, for the most part, will be seen only by me." Who else will see this "entirely" confidential material? Will the clergy person see it? When? How soon? What we have here is something resembling an FBI "raw file" which contains all information supplied, whether true or false.

The question has been raised whether a bishop can direct a member of the clergy to answer a "background check" questionnaire. The answer is found in the canon dealing with a "pastoral direction," in earlier days known as a "godly admonition." Title IV, Canon 1, Sec.1 (h) (2) (p. 135 Constitution and Canons, 1994) sets out the circumstances justifying refusal to obey a pastoral direction from a bishop:

"In order for the disregard or disobedience of a pastoral direction to constitute a violation of ordination vows the pastoral direction ... must have been neither capricious nor arbitrary in nature nor in any way contrary to the Constitution and Canons of the Church, both national and diocesan."

Consequently, a pastoral direction ordering a member of the clergy to answer these questions would be invalid as contrary to the national canons establishing a privilege against self-incrimination, and the presumption of innocence.

Compliance with a "background check" is hardly a voluntary act. Most clergy, in their fear or ignorance, already have both answered the questions and signed the waiver. They should now inform Oxford Management that they are revoking such waivers on the ground that they were obtained under duress.

There are two questionnaires. One is sent to the clergy (the Clergy Questionnaire) and one is sent to former employers and educational institutions attended by the person being investigated (the Reference Questionnaire). Although many of the questions are the same, the Reference Questionnaire contains an additional question, No. 17, which reads: "Is there any other information that you think the bishop should know?" This is a real fishing expedition. Few of the clergy of the dioceses of Province 1 were furnished copies of the Reference Questionnaire.

With very few exceptions, common law excludes hearsay evidence. The Reference Questionnaire encourages hearsay. Sixteen of the 17 questions are introduced with the phrase "To the best of your knowledge." The questionnaire collects unproven allegations. Questions 10 and 11 ask: "Has this person ever been charged or had reason to be charged with sexual misconduct or sexual harassment?"

The Reference Questionnaire also condones and encourages violations of the ninth commandment. False witness is not limited to making a statement about another person which one knows not to be true. It also includes irresponsible accusations, the truth of which is not a matter of certainty. To what extent is the mandate of the Church Insurance Company sufficient justification for this course of Episcopal conduct?

The important theological question is this: Do we really believe we should risk losing our worldly life, such as the assets of the Church Pension Fund, or should we attempt to save it by denying the effectiveness of the cross to accomplish the forgiveness of all sins, known and unknown? o