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Decision No. 697

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October 29 1993
In Re: ) Effect of Decision 689 on Pending Previous Grievance and Status of Clergy Upon Remand of Case; and b) Involuntary Leaves of Absence and their Relation to Par. 2622.5 of the 1992 Discipline.

Digest of Case

Decision 689, which dealt primarily with due process requirements in an involuntary leave of absence situation, did not directly address, nor can the decision be applied to, a pending grievance about which the Judicial Council had no knowledge. However, this grievance (now a complaint) must be dismissed because it violates the prohibition of Par. 2622.5 of the 1992 Discipline which forbids subjecting someone to administrative or judicial process twice for the same offense. Michael Biklen's status in 1992-93 was involuntary leave of absence and must remain so since there is no mechanism to speculate what would have happened if due process had been followed.

Statement of Facts

The Statement of Facts as it appears in Decision 689 is incorporated as if appearing in full herein. Additionally, unknown to the Judicial Council during our deliberations and decision in April 1993, a written grievance, dated January 5, 1993, had been served on Bishop Charles W. Jordan and Michael Biklen. On February 8, 1993, there was a "Supervisory Response" meeting. Reconciliation was not achieved during the supervisory response and the matter was forwarded on February 10, 1993, to the chair of the Board of Ordained Ministry as a complaint. The chair, in turn, forwarded the complaint to the Joint Review Committee on February 15, 1993. On March 26, 1993, the Joint Review Committee had its first hearing. By letter dated April 27, 1993 (four days after Decision 689 was rendered), Michael Biklen was advised to attend a Joint Review Committee hearing on June 24, 1993. This hearing was then reset and held on June 21, 1993. By letter dated September 8, 1993, the Joint Review Committee sent its report to the Board of Ordained Ministry noting that resolution of the matter had not been achieved. The chair of the Joint Review Committee presented this report in person to the Board of Ordained Ministry on September 14, 1993. It is unknown if any additional actions have been taken on the complaint. Meanwhile, on June 4, 1993, Michael Biklen's request to terminate his involuntary leave of absence was granted by the Executive Session of the Iowa Annual Conference; and he received an appointment in July 1993. At this Annual Conference on June 5, 1993, three questions of law were posed to Bishop Jordan and he responded in writing by letter dated July 6, 1993 addressed to the secretary of the Judicial Council, with copies of his decisions going to the proponents of the questions of law. JURISDICTION The Judicial Council has jurisdiction under Par. 2613 of the 1992 Discipline. ANALYSIS An analysis of the bishop's decision on the three questions of law in this matter must begin by affirming and incorporating the full text of Decision 689 as if fully printed herein. Question of Law-Item 1 Inasmuch as the Judicial Council, in Decision 689, dated 4-23-93, has remanded the status of W. Michael Biklen to The Iowa Annual Conference as of 8-12-91, what effect does this have on the status of the grievance filed on 1-5-93 by Merlin J. Ackerson, Chair of the Conference Relations Committee, and Larry Willey, Dean of the Cabinet? Bishop Jordan's decision was that the pending grievance (now a complaint) was being processed under Par. 454 of the 1992 Discipline, whereas the issues of Decision 689 dealt with leaves of absence pursuant to Par. 448 of the 1988 Discipline and that therefore Decision 689 had no effect on the pending grievance. Although neither the question nor the bishop's decision specifically says this is a procedural rather than substantive issue, in view of the second question of law posed, this question is apparently intended to deal with the procedural impact of a Judicial Council decision on an unaddressed pending grievance. In April 1993, the Judicial Council rendered Decision 689 after reading and studying countless documents and hearing oral argument. At no time during that proceeding did anyone, including either party, advise the Judicial Council that a grievance had been filed over four months previously even though the submissions and presentations were made by the same persons as those presenting this matter, except for the appointment of a new bishop. Clearly in April 1993, no party nor presenter saw the pending grievance/complaint sufficiently relevant to the ruling at hand to mention its existence to the Judicial Council. No one sought to have it incorporated in the facts nor in the issues being ruled on. Nothing has been presented now, which was not known last April by the parties and which suddenly makes Decision 689 relevant to the grievance. The bishop's decision is affirmed for these reasons. Question of Law-Item 2 Do the actions of the Executive Sessions of the Iowa Annual Conference placing W. Michael Biklen on involuntary leave of absence during the Conference Years of 1991-1992 and 1992-1993 constitute an "administrative or judicial process" within the meaning of Paragraph 2622.5 of the 1992 Discipline? Bishop Jordan ruled that the 1991-1992 and 1992-1993 involuntary leaves of absence under Par. 448 of the 1988 Discipline did not constitute ". . .administrative or judicial process . . ." within the meaning of Par. 2622.5 of the 1992 Discipline in that there was no equivalent of Par. 2622.5 in the 1988 Discipline. Unlike Question of Law 1, this issue includes both a substantive analysis of whether the grievance/complaint filed in January 1993 concerned the same alleged offense as concerned the involuntary leaves of absence, as well as requiring a legal analysis of whether a process taken pursuant to the 1988 Discipline can be considered under the umbrella of a paragraph which is newly in the 1992 Discipline. The bishop ruled that he need not decide ". . . whether the involuntary leave of absence process under The 1992 Book of Discipline is administrative or judicial process ... nor is it necessary ... to distinguish between administrative process and judicial process." He is in error. The first determination to be made is indeed whether involuntary leaves of absence are either an administrative or a judicial process. The answer is found both in the 1992 Discipline and in Decision 557. Par. 448.1(b) of the 1992 Discipline provides for an Administrative Review Committee (emphasis added) to oversee procedures for involuntary leaves of absence. While the Committee and the paragraph may be new in 1992, the provisions for an involuntary leave itself are not new. Therefore, regardless of which Discipline is used (1988 or 1992) these leaves are clearly an administrative process. Additionally, we said in Decision 557, "If the district superintendent judges the grievance to be a problem which may be resolved through the administrative process described in Par. 455, it may be received as a grievance rather than an accusation, and that process begun." (emphasis added) Par. 455 of the 1984 Discipline is virtually the same as Par. 453 of the 1988 Discipline and Par. 454 of the 1992 Discipline-all of which provide for interjection of remedial processes (among them involuntary leaves of absence) at each stage of the procedure including the first step of initial review. Further, it is clear that the process which begins with a formal written grievance, then goes through the complaint and disciplinary charge stages, and ultimately ends in trial, is a judicial process. Thus, since an involuntary leave of absence is currently an administrative process and was so under the 1988 Discipline as well, and a formal written grievance begins a judicial process, the next issue is whether, in the instant matter, the January 1993 grievance is for "the same alleged offense" as involved in the involuntary leave. While the filed grievance herein is vague and general in its language, subsequent correspondence and rulings make it clear that the grievance involves Michael Biklen's actions which were the basis of his 1991-92 and 1992-93 involuntary leaves of absence. Therefore, the filing of the grievance in January 1993 did indeed violate Par. 2622.5 of the 1992 Discipline by subjecting Michael Biklen to an "administrative or judicial process" a second time for the same alleged offense. It must be dismissed, and the bishop's ruling reversed. Question of Law-Item 3 What is the status of the Rev. W Michael Biklen for the Conference year 1992/1993 in light of Judicial Council Decision 689, dated 4-23-93? Bishop Jordan ruled that Michael Biklen was "on leave of absence without his consent" because that was his status on August 12, 1991 and that was the date Decision 689 set for the parties to ". . . begin its procedure over . . ." upon the remand. Since Decision 689 specifically said that "The time elapsed since the 1992 session of the Annual Conference is not to be counted against the five-year limitation on leaves of absence found in Par. 448.1," the only relevance of Michael Biklen's status for the 1992-93 year, is that, if he were eligible for appointment for that year, but was not appointed, he should now receive not less than equitable compensation pursuant to Decision 629. Proponents for Michael Biklen urge that either the Iowa Conference Board of Ordained Ministry now reconsider his 1992-93 status or that the Judicial Council itself rule that had due process been followed, Michael Biklen would have been appointed for the 1992-93 year. Neither option is feasible. There is no way the Board of Ordained Ministry or a reconvened Conference Executive Session can determine now what they would have or should have voted a year ago if due process had been followed from the beginning, nor can they recreate the situation Michael Biklen was in over a year ago and decide on that basis. The Judicial Council declines to make such a determination, itself. Therefore, for the reasons noted above, the bishop's ruling that Michael Biklen was on involuntary leave of absence for 1992-93 is affirmed.

Decision

Decision 689, which dealt primarily with due process requirements in an involuntary leave of absence situation, did not directly address, nor can the decision be applied to, a pending grievance about which the Judicial Council had no knowledge. However, this grievance (now a complaint) must be dismissed because it violates the prohibition of Par. 2622.5 of the 1992 Discipline which forbids subjecting someone to an administrative or judicial process twice for the same offense. Michael Biklen's status in 1992-93 was involuntary leave of absence and must remain so since there is no mechanism to speculate what would have happened if due process had been followed.

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