Overture 25

On Amending the Rules of Discipline Regarding Accountability of Governing Body Officers—From the Presbytery of Detroit.

The Presbytery of Detroit overtures the 217th General Assembly (2006) to direct the Stated Clerk of the General Assembly to send the following amendments to the Rules of Discipline to the presbyteries for their affirmative or negative votes:

1. Amend D-2.0202 to read as follows: [Text to be added is shown as italic.]

“A remedial case is one in which an irregularity or a delinquency of a lower governing body, the General Assembly Council, or an entity of the General Assembly may be corrected by a higher governing body. A remedial case may also be filed against the clerk or moderator of a governing body with the judicial body of that governing body for failing to or improperly carrying out a duty prescribed by the Book of Order.”

2. Amend D-3.0101a to read as follows: [Text to be added is shown as italic.]

“a. The session of a church has original jurisdiction in disciplinary cases involving members of that church, and in remedial cases where the moderator or clerk of session is accused of failing to or improperly carrying out a duty prescribed by the Book of Order.”

3. Amend D-3.0101b(1) to read as follows: [Text to be added is shown as italic.]

“b.(1) The presbytery has original jurisdiction in disciplinary cases involving minister members of that presbytery, and the moderator and stated clerk in remedial cases for failing to or improperly carrying out a duty prescribed by the Book of Order, and commissioned lay pastors serving in congregations in the presbytery. (G-11.0502f).

4. Amend D-3.0101 by adding new sections “c.” and “d.” and re-lettering the current “c.” and “d.” as “e.” and “f.” New sections “c.” and “d.” shall read as follows:

“c. A synod has original jurisdiction over its moderator and stated clerk in remedial cases for failing to or improperly carrying out a duty prescribed by the Book of Order.

“d. The General Assembly has original jurisdiction over its Moderator and Stated Clerk in remedial cases for failing to or improperly carrying out a duty prescribed by the Book of Order.”

5. Amend D-6.0101 to read as follows: [Text to be added is shown as italic.]

“A remedial case is initiated by the filing of a complaint with the stated clerk of the governing body having jurisdiction. Where the case is against a moderator or clerk of a governing body, a remedial case is filed with the judicial entity of the same governing body.”

6. Amend D-6.0102 to read as follows: [Text to be added is shown as italic.]

“A complaint is a written statement alleging an irregularity in a particular decision or action, or alleging a delinquency, or alleging a moderator or stated clerk has failed to or improperly carried out a duty prescribed by the Book of Order. (D-2.0202) The filing of a complaint does not, by itself, stay enforcement of the decision or action.”

7. Amend D-6.6.0202 by adding a new section “c.” to read as follows:

“c. In the instance of a complaint against a moderator or clerk of a governing body, complaints shall be filed with the clerk of the permanent judicial commission of that governing body in the case of presbyteries, synods, or the General Assembly, or with the clerk or moderator of a session, whichever is not the subject of the complaint. A complaint of an irregularity shall be filed within twenty-one days of when the irregularity is discovered. A complaint of a delinquency shall be filed within twenty-one days after the moderator or clerk has failed or refused to respond to a written request to cure the delinquency. Those eligible to file such a complaint are:

“(1) A member of a church against the moderator or clerk of that church with the clerk or moderator of the session;

“(2) A member, commissioner, session, or member of a church of a presbytery with the clerk of the permanent judicial commission of the presbytery;

“(3) A member, commissioner, or presbytery of a synod with the clerk of the permanent judicial commission of the synod;

“(4) A synod or presbytery or a commissioner to a General Assembly with the clerk of the permanent judicial commission of the General Assembly.

8. Amend D-6.0103 by adding the term “or Filing Deadlines” to the title, and by adding new text to the first paragraph so that it reads as follows: [Text to be added is shown as italic.]

“D-6.0103 Stay of Enforcement or Filing Deadlines

“The action or decision of a governing body, of its permanent judicial commission, or of a respondent named in D-6.0202b may be suspended by a stay of enforcement. A stay of enforcement is a written instruction, obtained in the manner described in D-6.0103a, that orders the implementation of a decision or action be delayed until a complaint or appeal is finally determined. In a remedial complaint against a moderator or clerk for failing or improperly carrying out a duty prescribed in the Book of Order, the Moderator and Clerk of the appropriate judicial body may, after examining the complaint and determining that the criteria of D-6.0305 have been met, order that all deadlines and timelines be arrested until the full judicial body decides the case.”

9. Amend D-6.0103a by adding a new section “(4)” to read as follows:

“(4) From an action of a governing body where the moderator or clerk of that governing body is accused of failing to or improperly carrying out a duty prescribed by the Book of Order, where the matter involves an action by the governing body and a stay is necessary to prevent injustice or irrevocable harm, by the moderator and clerk of the judicial entity in the hearing in D-6.0305.”

10. Amend D-6.0301b to read as follows: [Text to be added is shown as italic.]

“b. The particular irregularity including the date, place, and circumstances thereof; or the particular delinquency including the dates of the written request to cure the delinquency and of the next meeting at which the respondent failed to do so. Where the complaint is against a moderator or clerk for failing to or improperly carrying out a duty prescribed by the Book of Order, the specific duty and its Book of Order citation, and the date of the violation or notice of failure to perform.”

11. Amend D-6.0303 as follows: [Text to be added is shown as italic.]

“The committee of counsel of the respondent shall file with the stated clerk of the higher governing body a concise answer within forty-five days after receipt of the complaint, and shall furnish a copy of the answer to the complainant. The answer shall admit those facts alleged in the complaint that are true, deny those allegations that are not true or are mistakenly stated, and present other facts that may explain the situation identified as an irregularity or delinquency. The answer may also raise any issues mentioned in
D-6.0305 and may include a motion to dismiss the complaint. In the case of a complaint against a moderator or clerk for failing to or improperly carrying out a duty prescribed by the Book of Order, the respondent shall file an answer with the session or permanent judicial commission within fourteen days.”

12. Amend D-6.0304 as follows: [Text to be added is shown as italic.]

“When the complaint and answer have been filed with the stated clerk of the higher governing body, the stated clerk shall transmit them at once to the officers of the permanent judicial commission of the governing body and shall give notice to the parties that the case has been received. When a remedial complaint against a moderator or clerk of a governing body is received by the clerk (or in the case of a session, the moderator) of a judicial entity, the clerk shall within three days give notice to all parties and the session or permanent judicial commission.”

13. Amend the first paragraph of D-6.0305 as follows: [Text to be added is shown as italic.]

“Upon receiving the papers specified in D-6.0304, the moderator and the clerk of the permanent judicial commission of the body that will try the case, or in the case of a remedial complaint against a moderator or clerk, the session or permanent judicial commission shall promptly examine the papers to determine whether”

14. Amend D-6.0310 as follows: [Text to be added is shown as italic.]

“At any time after a case is received by a permanent judicial commission, the commission may provide by rule for the parties or their counsel, if any, to explore settlement possibilities; or, in a pretrial conference, to seek agreement on a statement of facts and disputed issues, to exchange documents and other evidence, and to take other action which might reasonably and impartially narrow the dispute and expedite its resolution. In every case where a remedial case has been filed against a moderator or clerk of a governing body, the permanent judicial commission or session shall, within two weeks of receiving the answer, hold a pretrial conference to explore settlement possibilities, to seek agreement on a statement of facts on disputed issues, to exchange documents and other evidence, and to take action that may reasonably and impartially narrow the dispute and expedite its resolution."

15. Amend D-7.0101 as follows: [Text to be added is shown as italic.]

“The trial of a remedial case shall be conducted by a permanent judicial commission or, in the case of a complaint against a moderator or clerk of session, the session. In a case against a moderator or clerk for failing to or improperly carrying out a duty prescribed by the Book of Order, trial shall commence within twenty-eight days of the receipt of the complaint.”

Rationale

Assigning certain duties to individual officers. The polity of the church gives all authority to governing bodies. In some cases, authority and responsibility for certain acts are given to moderators and clerks because of the impracticality, impossibility, or impropriety of requiring the decision be made by a governing body in plenary session. In such cases, the governing body trusts that its officers will faithfully and competently carry out the duties assigned. The intent of this overture is to provide a procedure to ensure that moderators and clerks perform their duties in timely and proper ways.

Assignment of duties to specific officers. Clerks and moderators of governing bodies are given certain duties and authorities in the Book of Order to take action without specific authorization of the governing body.

Reliance on the proper exercise of these duties. In many cases, the duties given moderators and clerks are necessary for the proper conduct of governing body and judicial processes, and for the protection of rights. When the duties are not carried out promptly and properly, the intent of the Constitution can be frustrated, and those relying on the polity for justice or satisfaction can be left without recourse.

Consequences of the failure to carry out the duties. In many cases, timeliness is essential to the process. If a moderator or clerk fails to act promptly and properly, matters requiring immediate action may be rendered null or rights lost.

The need for an effective way to address the problem. When a body or an individual relies on officers to carry out their duties, there should be a quick, non-punitive, and effective way to ensure that the officers are carrying out their duties in a timely and correct way.

Ineffectiveness of the current system. There is now no effective recourse in cases where a moderator or clerk refuses or fails to do a duty assigned by the Book of Order, or does it improperly. Under current procedures, all that can be done is to file a disciplinary complaint, which is not effective when time is of the essence because of the cumbersome and lengthy procedures required to protect the rights of an accused . In cases of ordinary negligence, a disciplinary complaint is probably inappropriate. Moreover, the only remedies available in disciplinary cases are degrees of censure, which are designed to correct future behaviors rather than to rectify past acts.

The best location to handle the problem. The failure of a moderator or clerk is an issue of concern to the body served and should be handled at that level rather than by a different governing body. Under the current system, where a disciplinary case is the only option, if the moderator or clerk of a governing body is an elder, the investigation and trial would be conducted by the session of the church of membership, even though he or she may be the moderator or stated clerk of a presbytery, synod, or General Assembly. When the officer is a minister of Word and Sacrament, trial would be held by the presbytery of membership, regardless of the governing body served.

The intent of this overture. This overture is designed to offer a way to bring the failure of a moderator or clerk of a governing body to the judicial process of that same governing body for a decision and resolution. It will provide a church analogue to a civil writ of mandamus, which is a petition to require an official of government to perform his or her duties. The intent of this overture is not designed to punish.

The limits of this overture. This overture limits the scope of the jurisdiction to those duties of a moderator as moderator or a clerk as clerk. For example, it could not be used to force a minister of a church (who is the moderator of its session) to do things or stop doing things that are unrelated to duties assigned by the Book of Order to a pastor in the capacity as moderator of session.