Friday, July 1, 2011

Day of Reckoning - Really?

Today, July 1, the changes to ECUSA's disciplinary canons (Title IV) go into effect at the national level. (The text of the new Title IV may be downloaded as a .pdf file.) Let us take the example of the violation of the ordination canons apparently committed by the Rt. Rev. Katharine Jefferts Schori as the Bishop of Nevada in 2004, and use that as a test case to see how the new process would work at the highest level.

Canon IV.17.3 of the new Title IV establishes a Disciplinary Board for Bishops:
Sec. 3. The Disciplinary Board for Bishops is hereby established as a court of the Church to have original jurisdiction over matters of discipline of Bishops, to hear Bishops' appeals from imposition of restriction on ministry or placement on Administrative Leave and to determine venue issues as provided in Canon IV.19.5. The Disciplinary Board for Bishops shall consist of ten Bishops elected at any regularly scheduled meeting of the House of Bishops, and four Priests or Deacons and four lay persons initially appointed by the President of the House of Deputies with the advice and consent of the lay and clergy members of the Executive Council and thereafter elected by the House of Deputies. All lay persons appointed to serve shall be confirmed adult communicants in good standing. Members of the Board shall serve staggered terms of six years, with terms of one half of the Bishops and one half of the lay persons, Priests and Deacons collectively expiring every three years, with the first expirations occurring at the end of the year 2012.
The members of the Disciplinary Board have all been appointed; the roster of the Board is at this link. And it appears as though they are meeting today by "Tele/Web" conference to take care of the initial business of appointing an Investigator and a Church Attorney, who works with the Investigator in evaluating any charges, as we shall see. They may also decide on a President today, as Canon IV.17.4 provides:
Sec. 4. Within sixty days following each General Convention, the Board shall convene to elect a president for the following triennium. The president shall be a Bishop. If there is no president, the Bishop who is senior by consecration shall perform the duties of the president.
For disciplinary matters involving a bishop, the process starts with the canonical Intake Officer, who is appointed by the Presiding Bishop. Bishop Jefferts Schori has appointed the Rt. Rev. F. Clayton Matthews, who heads up the Church's Office of Pastoral Development in New Bern, North Carolina, to be the Intake Officer for bishops. Canons IV.6.2 and IV.6.3 provide:
Sec. 2. Information concerning Offenses may be submitted to the Intake Officer in any manner and in any form.

Sec. 3. Any person other than the Intake Officer who receives information regarding an Offense shall promptly forward the information to the Intake Officer. A Bishop Diocesan may forward information to the Intake Officer whenever the Bishop Diocesan believes that the information may indicate conduct constituting one or more Offenses.
Let us say, therefore, that someone in the Church brings the matter of the reception of the Rev. Bede Parry into the Episcopal Church in Nevada in 2004 to the attention of Bishop Matthews. What he does with that information is spelled out in the following sections of Canon IV.6:
Sec. 4. Upon receipt of such information, the Intake Officer may make such preliminary investigation as he or she deems necessary, and shall incorporate the information into a written intake report, including as much specificity as possible. The Intake Officer shall provide copies of the intake report to the other members of the Reference Panel and to the Church Attorney.

Sec. 5. If the Intake Officer determines that the information, if true, would not constitute an Offense, the Intake Officer shall inform the Bishop Diocesan of an intention to dismiss the matter. If the Bishop Diocesan does not object, the Intake Officer shall dismiss the matter. The Intake Officer shall provide written notice to the Complainant and the Bishop Diocesan of the decision of dismissal, the reasons therefor, and the Complainant's right to appeal the decision within thirty days of the date of the notice and shall send a copy of that notice and the written intake report to the president of the Disciplinary Board. . . .
For purposes of all disciplinary matters involving bishops, the new Title IV provides (as discussed in this earlier post) that the "Bishop Diocesan", wherever that term is used, shall mean the Presiding Bishop. (See Canon 14.17.2 (c).) The "Reference Panel" mentioned in Section 4 consists (for bishops) of the Intake Officer (Bishop Matthews), the Presiding Bishop, and the President of the Disciplinary Board. (See Canon IV.2.) However, when the Presiding Bishop herself is the subject of the charges being investigated, Canon IV.19.24 provides:
Sec. 24. If the Presiding Bishop is unavailable to act by virtue of absence, disability or other disqualification, actions to be performed by the Presiding Bishop in this Title shall be performed by that Bishop who would be the Presiding Officer of the House of Bishops as provided by Article I, Section 3, of the Constitution in the event of the resignation, infirmity, disability or death of the Presiding Bishop.
The person who would take the place of the Presiding Bishop on the Reference Panel is thus the Rt. Rev. Dean Elliott Wolfe, the diocesan of Kansas who was elected at GC 2009 as the Vice President of the House of Bishops.

The first line of the process is thus the investigation which Bishop Matthews would conduct. He could interview Bishop Jefferts Schori, talk to Bede Parry, and the members of the Nevada Commission on Ministry who would have assisted the Bishop in evaluating the Rev. Parry's credentials to be received as a priest in 2004. Note that under Section 5 of the Canon (as just quoted above), the Intake Officer's task is not to investigate for the purpose of deciding whether or not the allegations of the complaint are true. Instead, his initial investigation is to decide whether or not the allegations, "if true" (emphasis added), could form the basis of an "Offense" as defined by the new canons. If he concludes after his investigation that the charges -- even "if true" as presented to him -- would not amount to an "Offense" under the Canons, he has to get the approval of Bishop Wolfe to dismiss them, as spelled out in the portion of Section 5 quoted above. If he then dismisses the complaint with Bishop Wolfe's permission, the complainant could appeal the dismissal -- to the president of the Disciplinary Board, as the remainder of Canon IV.6.5 spells out:
If the Complainant wishes to appeal the dismissal, the Intake Officer shall assist the Complainant in preparing and signing a written statement of the acts complained of, which statement shall be sent to the president of the Disciplinary Board along with a statement that the Complainant appeals the dismissal. The intake report and any related information, in the case of a dismissal, may be retained by the Intake Officer and considered in connection with any additional information that may come to the Intake Officer thereafter concerning the subject Member of the Clergy.
Canon IV.6.6 specifies what happens in the event of an appeal:
Sec. 6. In the event of an appeal of a dismissal, the president of the Disciplinary Board shall, within thirty days of the receipt of the appeal, review the intake report and either affirm or overrule the dismissal. The president shall promptly notify the Complainant, the Intake Officer, and the Bishop Diocesan of the decision. If the decision is to overrule the dismissal, the president shall refer the intake report to the Reference Panel.
Let's pause a moment here to appreciate what the drafters of the new Title IV have given us. Charges are brought to Bishop Matthews, who investigates them on his own and (say) decides to dismiss them, because even "if true", they would not amount to a violation of the Canons. To do so, he has to discuss the matter with Bishop Wolfe and obtain his consent to the dismissal.

The complainant appeals the dismissal to the President of the Disciplinary Board, who is a third bishop. If that bishop decides to overrule the dismissal, the charges are referred to the Reference Panel -- in this case, a three-person body including Bishops Matthews and Wolfe (as the Intake Officer and the replacement for the Presiding Bishop) -- both of whom had just agreed that the charges should be dismissed!

What happens next? Let's assume the charges were not dismissed by Bishop Matthews, and see what procedure the new canons provide:

Sec. 7. If the Intake Officer determines that the information, if true, would constitute an Offense, the Intake Officer shall promptly forward the intake report to the Reference Panel. The president shall promptly select from the Disciplinary Board, by lot or by other random means, a Conference Panel and a Hearing Panel, and shall designate a president of each Panel. A Conference Panel may consist of one or more persons. A Hearing Panel shall consist of not less than three persons and shall include both clergy and lay members. The president shall be ineligible to serve on either Panel.

All right, so we now have, in addition to the Reference Panel, a Conference Panel and a Hearing Panel, appointed at random by the President from among the eighteen members of the Disciplinary Board. Canon IV.17.5 spells out the requirements for their composition -- they each have five members, of whom three must be bishops:
Sec. 5. The Conference Panel shall consist of three Bishops, one Priest or Deacon and one lay person. The Hearing Panel shall consist of three Bishops, one Priest or Deacon and one lay person, except that the Hearing Panel for the Offense specified in Canon IV.4.1(h)(2) pertaining to Doctrine Offenses shall consist of five Bishops only.
Now back to Canon IV.6.8, to see what the Reference Panel can do with the charges, once it has them before it (remember -- the reference panel in this case we are assuming consists of Bishop Matthews, Bishop Wolfe, and the bishop who is the President of the Disciplinary Board for Bishops):
Sec. 8. The Reference Panel shall meet as soon as possible after receiving the intake report to determine how to refer the report. Referral options are (a) no action required other than appropriate pastoral response pursuant to Canon IV.8; (b) conciliation pursuant to Canon IV.10; (c) investigation pursuant to Canon IV.11 or (d) referral for possible agreement with the Bishop Diocesan regarding terms of discipline pursuant to Canon IV.9. Referral decisions shall require the approval of a majority of the Reference Panel.
So once again, we see how the two who decided to dismiss the charges could also be the majority who decide on nothing more than "appropriate pastoral response", as provided in Canon IV.8:
CANON 8: Of Pastoral Response

Sec. 1. The Bishop Diocesan shall provide for appropriate pastoral response whenever any report is made to the Intake Officer. Such pastoral response shall embody respect, care, and concern for affected persons and Communities. The response shall be designed so as to promote healing, repentance, forgiveness, restitution, justice, amendment of life and reconciliation among all involved or affected.
Assuming the process has gotten this far, would a "pastoral response" be the best way to deal with a violation of the ordination canons back in 2004? Would Bishop Jefferts Schori have to promise to be more thorough in conducting background checks in the future? (Of course, such checks would apply only to appointments now under her charge, such as posts in the Convocation of American Churches in Europe.) Consider the next section of Canon IV.8:
Sec. 2. In each pastoral response the Bishop Diocesan shall consider offering pastoral care to all those affected by the Offense or allegations thereof. Pastoral care shall be considered for the Complainant, the Complainant's family, the Respondent, the Respondent's family, Injured Persons, Injured Persons' families, any affected Community, witnesses, and the Disciplinary Board.
Just who was harmed by Bishop Jefferts Schori's casual reception of a pedophile into the priesthood of the Episcopal Church? Although no reports of any offenses committed by Fr. Parry while serving as an Episcopal priest at All Saints in Las Vegas have surfaced, surely the other clergy in the Diocese of Nevada have a right to expect that their bishop would adhere to a standard that a candidate for orders in the Church who is caught in a lie about his background would not be accepted? And do not all Episcopalians have cause to be concerned about the adverse publicity that would come upon the Church once the facts came out, as is happening now? Moreover, as this commenter points out, if such a reception could go forward in this case, how can any Episcopalian (or other member of the Anglican Communion, which recognizes Episcopal orders) be assured that their newly ordained/received priest is not an admitted pedophile?

So the main question for Episcopalians this day is: how many of you are genuinely disturbed and upset by Bishop Jefferts Schori's actions in accepting as priest an admitted (but prevaricating) pedophile? The wide scope of the persons affected by this (assumed) violation would seem to dictate that "pastoral response" would not be an appropriate course to take here, particularly since all such action taken under Canon IV.8 may be kept confidential, in the discretion of Bishop Wolfe:
Sec. 3. In every case, and notwithstanding any other provision of this Title to the contrary, the Bishop Diocesan may disclose such information concerning any Offense or allegations thereof or concerning any Accord or Order as the Bishop Diocesan deems pastorally appropriate.

Sec. 4. The Bishop Diocesan shall give consideration to the respective privacy interests and pastoral needs of all affected persons.
What other actions may the Reference Panel take? Of those listed in Canon IV.6.8 quoted above, "conciliation" would not seem to apply, since Fr. Parry has resigned and has asked to be able to renounce his orders. And working out the terms of an Accord for discipline would seem an unlikely possibility as well, for the reasons that a "pastoral response" would not be appropriate. That leaves a referral to further investigation pursuant to Canon IV.11.

I shall not bother to quote that Canon here. Suffice it to say that after the Board's Investigator (who is different from its Intake Officer) conducts a further investigation, he writes up a report and gives it to the Reference Panel, who again have the same four options as before, plus one new one: referring the matter to the Conference Panel for a hearing. And don't be fooled into thinking that such a referral would result in an open trial, as with the former presentment procedure. In their wisdom, the drafters of the new Title IV have provided (Canon IV.12.8):
Sec. 8. No witnesses shall be called to testify at the proceedings before the Conference Panel. No record of the proceedings of the Conference Panel shall be made. The conference shall be closed to all except the members of the Conference Panel, and invited participants. Proceedings before the Conference Panel shall be confidential except as may be provided in an Order or Accord or as provided elsewhere in this Title.
The Conference Panel (five members, with three bishops, remember) could terminate the proceedings with an Order of Dismissal, giving reasons which would likewise remain confidential, or it could refer the matter to the Hearing Panel for a public airing of the charges. From there the matter could proceed to judgment and a sentence, as under the former Title IV.

What has this exercise in imagination taught us? That the more things change, the more they remain the same. As in the armed forces, so with the Episcopal Church (USA): disciplinary proceedings are mainly for use against the lower echelons, who are relatively powerless in the total structure. Those at the very top have little to fear from all the built-in protections, which ensure that only the people who share the power with them (or who, in the case of the Presiding Bishop, are actually under her power more than ever, with the adoption of the new Title IV) have a role in deciding their fate.

In sum: don't look for much to happen with l'affaire Parry any time soon -- unless a sufficient number of Episcopalians complain to the Intake Officer, Bishop Matthews.


  1. Apparently no "day of reckoning" here either.. A little mission in this state has as organist (payed under the table btw) a registered juvenile sex offender, anyone can look him up on the "list".. Supposedly two bishops (one former) have signed off on it. If you knew which diocese I am talking about, I'd say its probably a cap feather if KJS comes after the diocesan..
    Disgusted in the south.

  2. Interesting you should use KJS as a "for instance" and provide a road map for those who may wish to take the journey. Those who live by the sword will perish by the sword.