by Lonnie D. Brooks
The Judicial Council from 2008-12 poses for a group photo during the 2012 United Methodist General Conference in Tampa, Fla. Seated, from left: Belton Joyner, Jon R. Gray, Susan Henry-Crowe, and Kathi Austin Mahle. Standing from left: Ruben T. Reyes, Dennis Blackwell, Beth Capen, William B. Lawrence and Angela Brown. A UMNS photo by Kathleen Barry
I don’t need to recount for you in detail the torturous process by which at General Conference 2012 we arrived at its closing hours struggling to understand the impact of Judicial Council Decision 1210 which struck down the plan for the restructuring of the general agencies of The United Methodist Church. By now that has resounded throughout the Church, at least among those who care about the Church as it exists connectionally.
But briefly to summarize, after the General Administration Legislative Committee had failed to decide on any plan for restructure, advocates of two competing plans—the plan proposed by the Connectional Table upon the recommendation of the Interim Operations Team and the alternative plan called Plan B—worked together for two days to craft a compromise plan using elements from each of the plans, also including elements from the plan put forward by the Methodist Federation for Social Action. Two important elements of the MFSA plan that were included based upon conversations earlier conducted between representatives of MFSA and Plan B were inclusion of representatives of the five recognized racial and ethnic caucuses in membership on the Council for Strategy and Oversight and independent reporting to General Conference for the monitoring function of the Committee on Inclusiveness.
That compromise plan became known as Plan UMC, it was presented to General Conference, and, with one amendment increasing significantly Central Conference representation on the remaining general agencies, on Wednesday morning, 02May12, it was adopted by General Conference by an overwhelming vote of 567 to 384, a 60% majority, which in the United States Senate would be strong enough support to break a filibuster. (Daily Christian Advocate, page 2639, last line on page.)
On Friday, 04May12, the Judicial Council announced its decision that “Plan UMC is unconstitutional,” further saying that it is “constitutionally unsalvageable.” (JCD 1210) By that latter finding, the Judicial Council meant that it could not declare parts of the legislation unconstitutional and other parts in compliance with the Constitution, but simply was striking down the entire package.
That was an astounding act of the Judicial Council, without precedent for so wide ranging a piece of legislation. One must go all the way back to October, 1972, to find anything similar when in JCD 364 the Judicial Council struck down a portion of the legislation creating the General Council on Ministries. An important difference between the two cases is that in 1972, the act creating the GCOM was left to stand, and only the portion of its powers decided by the Judicial Council to be legislative in nature was struck down. And in that case, there was a strong dissenting opinion by two of the members who claimed the delegated powers were not legislative since all actions of the GCOM had to be consistent with decisions and decrees of the General Conference. Moreover, the Judicial Council had refused to decide the case in the heat of the action of General Conference, but postponed its decision until the fall session so it could study the issues involved, listening to the arguments on all sides of the matter.
There were two constitutional principles that the Judicial Council says were violated by Plan UMC, and they each deserve scrutiny. First, JCD 1210 says that General Conference “legislative functions may not be delegated” The functions at issue are, “the creation and establishment of general Church boards and agencies, the fixing of their structure, the determination of their functions, duties and responsibilities, and the establishing of Church priorities” which “are legislative functions reserved to the General Conference alone.”
The second constitutional principle that the Judicial Council says was violated by Plan UMC was that “the Constitution authorizes the Council of Bishops to bear the responsibility for general oversight.” It went further to say the following:
The constitutional authority of the Council of Bishops cannot be compromised or modified by legislative enactments. As ¶ 47 (Article III) of the Constitution provides:
The council shall meet at least once a year and plan for the general oversight and promotion of the temporal and spiritual interests of the entire Church and for carrying into effect the rules, regulations, and responsibilities prescribed and enjoined by the General Conference…
By far, the more important principle, in my judgment, is the latter one concerning the oversight authority of the bishops, as seen against the back drop of Methodist history and our own Constitution and current polity. So, I’ll save my analysis of that until later in this essay.
Delegation of Legislative Authority
That is not to say that the first principle of the delegation of legislative authority is unimportant. It is simply that the Judicial Council has misunderstood in total what Plan UMC does and does not do. I find it hard to believe, in fact, that the Council was even reading its own writing, because Plan UMC did not give to the General Council for Strategy and Oversight (GCSO) any of the authority that the Council says was in violation of the Constitution.
Look at the first example from the legislation that the Council has cited:
The General Council for Strategy and Oversight oversight responsibility shall include the authority for consolidation of administrative services to the extent practicable for all general church activities into the appropriate agency on a fee for service basis as it affects agencies receiving general church funds. (Amendment of ¶ 901.4, DCA p. 2552)
That provision is on Lines 446 to 449 of the DCA citation. This calls for the consolidation of administrative services, not of program responsibilities. And in the digest of the decision, the Council has acknowledged that General Conference does have authority to delegate its administrative power, where it says:
The Constitution limits the General Conference in the authority it may delegate to the boards and agencies it creates. This authority is limited to the work of promotion and administration.
The second instance the Council cites to support its claim that General Conference has attempted to delegate its legislative authority is equally mysterious, and its conclusion simply does not follow from the citation. Here is what the Council said:
…the General Council on Strategy and Oversight:
… may direct the General Council on Finance and Administration to withhold funding for any programs and activities until the GCSO determines that the responsible general agency has achieved, or identified means satisfactorily to achieve, the established outcomes. [This is a quotation from Lines 507 to 510 of Plan UMC as it was printed in the DCA of Tuesday, May 1, 2012.]
This provision unconstitutionally delegates the authority of the General Conference for “distributing funds necessary to carry on the work of the Church” to the General Council on Strategy and Oversight, contrary to ¶ 16.9.
First and foremost, there is no delegation of authority to the GCSO to distribute or redistribute funds budgeted by General Conference. There is a delegation of authority to withhold funds until a recalcitrant agency has complied with requirements established by General Conference and policies set by the agency’s own board of directors in compliance with the mandates established for it by General Conference. Moreover, this is simply a restatement of authority already in place with the General Council on Finance and Administration. In multiple places in the Book of Discipline GCFA is already provided with authority to withhold funds when an agency does not comply with policy: ¶¶806.12.c)(2), 807.13.b), 811.1, 811.2 are four examples where this authority has already been delegated by General Conference.
Authority to withhold funds is not authority to redirect funds. Withheld funds will revert to the general fund if the agency never comes into compliance, and such funds would be available for budgeting by a future General Conference, but not by the GCSO or by GCFA.
And finally, on the topic of delegation of legislative authority, the Council said that General Conference may not delegate its authority over boards and agencies for, “the fixing of their structure, the determination of their functions, duties and responsibilities, and the establishing of Church priorities.” Yet the Council has not provided one single example of where such a delegation has occurred. The very good reason for that is that there is none. No such authority was provided in Plan UMC to the GCSO. All the mandates for all the surviving agencies in Plan UMC are left in place in the Book of Discipline. All the priorities are established by General Conference, and each agency’s board of directors works within those priorities to direct the work of each agency.
Oversight Responsibility of the Council of Bishops
The far more important principle that the Judicial Council says is violated by Plan UMC is the principle of oversight. The Council said, “In ¶ 47, the Constitution authorizes the Council of Bishops to bear the responsibility for general oversight.” It quoted from ¶47, which says, “The council shall meet at least once a year and plan for the general oversight and promotion of the temporal and spiritual interests of the entire Church and for carrying into effect the rules, regulations, and responsibilities prescribed and enjoined by the General Conference…”
That does not address the question of whether or not authority for “general oversight,” which is given to the Council of Bishops, excludes the possibility that General Conference may give authority to another body of the Church for specific instances of oversight over particular ministries. It certainly does not preclude the possibility that oversight in particular instances is a shared responsibility. Nor does it preclude the agency boards from administrative oversight of the mandates of General Conference assigned to each agency.
It is extremely important to take note of the fact that the authority for oversight that is given to the Council of Bishops is not unmodified, which means it is not unlimited. The authority is for general oversight. This is parallel to the power given to the federal government in the United States Constitution to “provide for the common Defence and general Welfare of the United States.” Authority to provide for the general welfare of the United States has never been interpreted to mean that state and local governments are prohibited from establishing structures intended to deliver services for the welfare of their people. Thus the State of Alaska has its Department of Environmental Conservation, its Department of Natural Resources, its Department of Health and Social Services, and so on through a whole gamut of departments, each intended to provide for specific instances of the welfare of the people of Alaska, none of which powers encroach on the authority of the Congress of the United States to provide for the general welfare.
There is such overlap explicitly within the United Methodist Constitution itself. ¶47, already cited, says, “The council shall meet at least once a year and plan for the general oversight and promotion of the temporal and spiritual interests of the entire Church…” where I have added emphasis to the word “promotion.” Please also look at ¶16.8, which gives authority to General Conference to establish boards and agencies: “To initiate and to direct all connectional enterprises of the Church and to provide boards for their promotion and administration.” The same word, “promotion,” is used in that provision for the power of the agencies as was provided to the bishops. The promotion of the interests of the Church is now, and always has been, a shared responsibility that is not exclusive to the Council of Bishops.
In fact, the connectional structure of the Church is replete with examples of where General Conference has done precisely that and established structures for sharing that responsibility. The General Board of Church and Society has been empowered with overseeing the work of other agencies in pursuing their legislative agenda. ¶1004 says, “The Board shall facilitate and coordinate the legislative advocacy activities in the United States Congress of other general agencies of The United Methodist Church that receive General Church funds.” Please note that the phrase “facilitate and coordinate” is synonymous with “oversight” in this instance. In defining the work of the General Board of Discipleship ¶1109.1 says the following:
¶ 1109. Christian Education—1. The board shall have general oversight of the educational interests of the Church as directed by the General Conference. The board shall be responsible for the development of a clear statement of the biblical and theological foundations of Christian education, consistent with the doctrines of The United Methodist Church and the mission of the board. The board shall devote itself to strengthening and extending the teaching ministry of the Church through research; testing new approaches, methods, and resources; evaluation; and consultation. [Emphasis Added]
In ¶1204, the Division on Ministries with Young People has authority “to determine and interpret program directions that support its mandate.”
In ¶1303.3 the General Board of Global Ministries is given the following authority:
The board shall facilitate and coordinate the program relationships of other program agencies of The United Methodist Church with churches and agencies in nations other than the United States.
In ¶1405.10 the General Board of Higher Education and Ministry is given the following authority:
To recruit, endorse, and provide general oversight of United Methodist ordained ministers, including persons who speak languages in addition to English, who desire to serve as chaplains in specialized institutional ministry settings in both private and governmental sectors. [Emphasis Added]
This list is not exhaustive, but representative of the shared nature of oversight authority in our Church. It was not intended that the general oversight authority provided in the Constitution to the bishops be considered to be exclusive of any oversight responsibility that might be assigned by General Conference to other bodies of the Church for particular ministries or the administration of General Conference mandates and provisions. In Plan UMC authority for oversight of the work of general agencies was delegated to the GCSO, and that is thoroughly consistent with delegation of other areas of ministry to other agencies from time to time. No authority was delegated to the GCSO for oversight of the work of local churches, districts, or annual conferences, areas that clearly are reserved for the general oversight of the bishops.
In 1939 The Methodist Episcopal Church, The Methodist Episcopal Church South, and The Methodist Protestant Church came together to form The Methodist Church, one of the predecessor churches of The United Methodist Church. The Methodist Protestant Church had been formed in 1828 primarily over the polity issue of the power and authority of the bishops. Among those three churches, by far the most exalted view of the episcopacy was held in the MECS, and the MPC simply held that bishops had no place in the church. As the price of its entry into the merger, the MPC wanted assurances that there would be no imperial episcopacy in the new church, with the token of that pledge’s being that there would be a Judicial Council as a check on the power of the bishops. Whereas prior to 1939 in the episcopal branches of the church decisions of church law were tendered by the bishops and were instantly applicable throughout the church, in the newly merged church, decisions of law by a bishop were applicable only in the area over which the bishop presided and only to the case at issue until the decision had been reviewed and affirmed by the new Judicial Council.
For over 70 years now, under the influence of the great compromise regarding the authority of the bishops, we have had an understanding that the authority of oversight and supervision has been shared between the bishops and whatever other bodies the General Conference empowers to share that power in particular areas of ministry, as well as with the General Conference, itself. The latter power is explicit in the Constitution, where General Conference is given exclusive legislative authority. That authority has been shared implicitly with the bishops for a long time now, since much of the legislation that makes it through General Conference comes from our general agencies, all of which have voting members who are bishops.
This decision 1210 from the Judicial Council inexorably points us in a new direction, and the Church has never agreed to go there. It would have us revert to a time of over 100 years ago when oversight of all ministries in all instances is within the exclusive authority of the bishops, and our Methodist Protestant forebears would not be happy about that.