Disciplinary Rules for Bishops Achieve Equity for Clergy
Episcopal News Service. August 6, 1997 [97-1907]
David Skidmore, Director of Communications for the Diocese of Chicago
(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.
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.
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.
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.
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.
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.