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Decision No. 700

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October 29 1993
In Re: Review of Sexual Harassment Policy Adopted by the 1993 Southern New Jersey Annual Conference.

Statement of Facts

At the October, 1992 Session, the Judicial Council was presented for review a ruling by Bishop Neil Irons which approved the adoption of a Sexual Harassment Policy which referred final resolution to an Area Task Force and to the Area Cabinet. The Council in Memorandum 677 held that the Sexual Harassment Policy must conform in every detail to the 1992 Discipline and must be adopted in its final form by the Annual Conference. The Council retained jurisdiction in order to examine the final document, as adopted by the Annual Conference. The Southern New Jersey Annual Conference adopted a Sexual Harassment Policy at its 1993 Session and presented the policy to the Council in accordance with Memorandum 677. The Annual Conference has no legislative jurisdiction in matters that have been conferred by the Constitution to the General Conference. There is by definition a separation of powers in the Constitution between the General Conference and the Annual Conference. In reviewing the Southern New Jersey Annual Conference Policy on Sexual Harassment we find the policy is in conflict with the Constitution and the Discipline, including but not limited to the following: First, adding time lines to the judicial procedures of the Discipline amends the Church's aim of settling disputes by reasonable means as defined in Pars. 2626.1 and 454.1(a) by substituting a plan which requires the acceleration of the judicial process in cases alleging sexual harassment. Contrary to the preference of the Discipline, this tends to make litigation an expedient of "first" rather than "last" resort. In addition, a double standard for the adjudication of chargeable offenses is introduced into the legal procedures of the Church, as the charge of sexual harassment alone would be processed according to this streamlined schedule. Second, the language of the policy is an adaptation of the disciplinary paragraphs which describe the process for adjudicating grievances and complaints on chargeable offenses. The language of the Discipline is followed almost exactly in the policy except where the Annual Conference changes it to suit the purpose of the policy. This has been found unacceptable in Decision 476 which holds that while an Annual Conference may include quotations from the Discipline in its standing rules, it "does not have the prerogative to approve, disapprove, or modify the actions of the General Conference." Third, Par. 454.1 (b) states that "if supervisory activity does not achieve the desired results, the matter may be referred as a complaint to the chairperson of the Board of Ordained Ministry." Since this complaint must be signed "by the secretary of the Cabinet or the bishop," it is clear that it is at their discretion that the matter is referred. This discretion is removed in the policy, which substitutes "shall" for "may" in moving a grievance from the level of supervision to complaint. In other words, discretion is removed from the bishop and district superintendents in deciding how much "process" is "due" an individual who brings a grievance against an ordained minister. All charges, no matter how frivolous, must be adjudicated as complaints under the provisions of the policy if "the grievant desires the matter to be processed through the procedures in the Discipline, beginning with the filing of the complaint with the Chair of the Board of Ordained Ministry." (Cf. Conference Policy on Sexual Harassment, II. C. 4.) This conflicts with the disciplinary standard which places responsibility for referral of complaints in the hands of the bishop and district superintendents under Par. 454.1(b). Fourth, the procedures outlined under Section III of the Sexual Harassment Policy subject an accused person to double jeopardy by requiring that he or she go through essentially the same process twice if success in resolving an allegation of sexual harassment is not achieved without filing charges. This conflicts with Par. 2622.5 which protects a person from being "subjected to administrative or judicial process a second time for the same alleged offense." Furthermore, the procedures described under Section III of the policy are modifications of the investigative and trial procedures of the Discipline, and as such conflict with Decision 476 as noted above. Based on these findings the Sexual Harassment Policy of the Southern New Jersey Conference is referred back to the Southern New Jersey Conference for revision to conform to the finding as set forth herein.

Decision

The Sexual Harassment Policy of the Southern New Jersey Conference is referred back to the Southern New Jersey Conference for revision to conform to the 1992 Discipline and previous decisions of the Judicial Council. Evelynn Caterson recused herself and did not participate in any of the proceedings related to this decision.

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