Proposed Amendment to Title IV - Not Acted Upon

 

D029  Amend Title IV

Resolved, the House of _________________ concurring, That the following sections of Canon IV.2 be amended to read as follows:

Church Attorney  shall mean one or more an attorneys selected pursuant to Diocesan Canons by the Disciplinary Board to represent the Church in proceedings as provided in this Title. The Diocesan Canons may provide a process for the removal of a Church Attorney for cause. A Church Attorney shall perform all functions on behalf of the Church necessary to advance proceedings under this Title and shall have the following powers, in addition to the powers and duties otherwise provided in this Title: (a) to receive and review the Intake Officer's report; (b) to conduct investigations and oversee the Investigator and, in connection with such investigations, to have access to the personnel, books and records of the Diocese and its constituent parts; and to receive and review the reports of the Investigator; (c) to determine, in the exercise of the Church Attorney's discretion, whether the reported information, if true, would be grounds for discipline; and (d) to exercise discretion consistent with this Title and the interests of the Church by declining to advance proceedings or by referring any matter back to the Intake Officer or the Bishop Diocesan for pastoral response in lieu of disciplinary action. In representing the Church, a Church Attorney may consult with the Conference Panel.

Complainant shall mean (a) the person or persons from whom the Intake Officer receives information concerning an Offense. or (b) any Injured Person designated by the Bishop Diocesan who, in the Bishop Diocesan's discretion, should be afforded the status of a Complainant, provided, however, that any Injured Person so designated may decline such designation.

Conference Panel shall mean a panel of one, two or three members of the Disciplinary Board selected by the president of the Board by lot or by other random means, unless some other manner of selection is provided by Diocesan Canon, to serve as the body before which an informal conference is held as provided in Canon IV.12, provided, however, that no such member of the Conference Panel may serve as a member of the Hearing Panel in the same case.

Hearing Panel shall mean a panel of three not less than five members of the Disciplinary Board, a majority of whom shall be Members of the Clergy, selected by the president of the Board, by lot or by other random means unless some other manner of selection is provided by Diocesan Canon, to serve as the body before which a hearing is held as provided in Canon IV.13, provided, however, that no such member of the Hearing Panel may serve as a member of the Conference Panel in the same case.

Intake Officer shall mean one or more the persons designated by the Disciplinary Board Bishop Diocesan after consultation with the Bishop Diocesan Disciplinary Board, unless otherwise selected pursuant to diocesan canons, to whom information regarding Offenses is reported. The Intake Officer shall not be an employee of the Diocese or a member of the staff of the Bishop Diocesan.

Investigator shall mean a person having (a) sufficient knowledge, skill, experience and training to conduct investigations under this Title and (b) familiarity with the provisions and objectives of this Title. Investigators shall be appointed by the Church Attorney Bishop Diocesan in consultation with the president of the Disciplinary Board.

Order shall mean a written decision of a Conference Panel or a Hearing Panel which is issued with or without the Respondent's consent. which meets All Orders shall meet the requirements of Canon IV.14.

Respondent shall mean any Member of the Clergy (a) who is the subject of a matter referred for conciliation or to the Conference Panel or to the Hearing Panel; (b) whose ministry has been restricted; (c) who has been placed on Administrative Leave; (d) who is the subject of an investigation and is asked by an investigator or the Bishop Diocesan to provide information or to make a statement; or (e) who agreed with the Bishop Diocesan regarding terms of discipline pursuant to Canon IV.9.

And be it further

Resolved, That Canon IV.3.1 be amended to read as follows:

Sec. 1.  A Member of the Clergy shall be subject to proceedings under this Title for:

(a)  knowingly violating or attempting to violate, directly or through the acts of another person, the Constitution or Canons of the Church or of any Diocese; or

(b) failing without good cause to cooperate with any investigation or proceeding conducted under authority of this Title; or

(c) intentionally and maliciously bringing a false accusation or knowingly providing false testimony or false evidence in any investigation or proceeding under this Title.

And be it further

Resolved, That Canon IV.3.3 be amended to read as follows:

Sec. 3.  In order for any conduct or condition to be the subject of the provisions of this Title, the Offense complained of must violate applicable provisions of Canon IV.3 or IV.4 and must be material and substantial or andof clear and weighty importance to the ministry of the Church.

And be it further

Resolved,  That Canon IV.5.1 be amended to read as follows:

Sec. 1.   Each Diocese shall, by Canon, create a court to be known as the Disciplinary Board as described in this Canon. Each such Board shall consist of not fewer than seven nine persons to be selected by the convention of the Diocese as determined by Diocesan Canon. The membership of each such Board shall include lay persons and Priests or Deacons, and the majority of the Board members shall be Priests or Deacons, but by no more than one. Within sixty days following each Diocesan convention, the Board shall convene to elect a President for the following year. , unless another method for selection of the president is provided by Diocesan Canon.

And be it further

Resolved, That following sections of Canon IV.5.3 be amended to read as follows:

(d) Each Diocese shall provide by Canon for the filling of vacancies on the Board. In the event there be no such canonical provision by the Diocese, [A]ny vacancy occurring on the Board shall be filled by appointment of by the Bishop Diocesan remaining members of the Board; and the appointee shall be of the same order as the Board member being replaced; and the appointee shall serve until the next Diocesan convention.

(g) The Disciplinary Board shall appoint a clerk who may shall not be a member of the Board, who shall be custodian of all records and files of the Disciplinary Board and who shall provide administrative services as needed for the functioning of the Board.

And be it further

Resolved,  That Canon IV.6.2 and Canon IV.6.3 be amended to read as follows:

Sec. 32.   Any person other than the Intake Officer who receives information which may indicate conduct constituting one or more Offenses 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.

Sec. 23.  Information concerning Offenses may shall be submitted to the Intake Officer in any manner and in any form. writing, with a certification signed by the Informant that the Informant believes that the reported information is true.

And be it further

Resolved, That Canon IV.6.5 be amended to read as follows:

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 subject Member of the Clergy, 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 a written intake report to the president of the Disciplinary Board. If the Complainant wishes to appeal the dismissal, the Complainant shall sign a notice of appeal indicating that the Complainant appeals the dismissal. The Intake Officer shall assist original certified written statement submitted to the Intake Officer and the Complainant’s notice of appeal the Complainant in preparing and signing a written statement of the acts complained of, which statement shall simultaneously be sent by the Intake Officer to the president of the Disciplinary Board and to the subject Member of the Clergy. 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.

And be it further

Resolved,  That Canon IV.6.6 be amended to read as follows:

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 subject Member of the Clergy, 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.

And be it further

Resolved,  That Canon IV.6.7 be amended to read as follows:

Sec. 7.  If the Intake Officer determines that the information, if true, would constitute an Offense, the Intake Officer shall promptly forward the a written intake report to the Reference Panel and to the subject Member of the Clergy. 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 The Conference Panel may shall consist of one or more three persons. A Hearing Panel shall consist of not less than three five persons and shall include both clergy and lay members. The president shall be ineligible to serve on either Panel. Immediately after their selection, the president of the Disciplinary Board shall advise the Bishop Diocesan and the subject Member of the Clergy as to the persons chosen for each panel.

And be it further

Resolved, That Canon IV.6.10 be amended to read as follows:

Sec. 10.   All communications and deliberations during the intake and referral stages shall be confidential except as the Bishop Diocesan deems to be pastorally appropriate or as required by Canon or by law.

And be it further

Resolved,  That Canon IV.7.7 be amended to read as follows:

Sec. 7.  Any Pastoral Direction, restriction on ministry or Administrative Leave under this Canon shall be effective upon service of the writing setting it forth on the subject Member of the Clergy as provided in Canon IV.19.20. No Rector or other tenured Member of the Clergy shall be denied his or her compensation and benefits by virtue of the imposition of a restriction on ministry or placement on Administrative Leave.

And be it further

Resolved,  That Canon IV.7.11 be amended to read as follows:

Sec. 11.  If a request for review of restriction on ministry or Administrative Leave is made prior to referral to the Conference Panel, then the review shall be conducted by the Conference Panel. If a request for review of restriction on ministry or Administrative Leave is made subsequent to referral to the Conference Panel but prior to referral to the Hearing Panel, the review shall be conducted by the Conference Panel. If a request for review of restriction on ministry or Administrative Leave is made subsequent to referral to the Hearing Panel, the review shall be conducted by the Hearing Panel. The question before a Panel reviewing a restriction on ministry or Administrative Leave is whether, at the time of the review and based upon information then available to the Panel, the restrictions on ministry or Administrative Leave and the terms and conditions thereof are warranted. The review may be conducted either personally or telephonically. The Intake Officer, the Respondent, or the Respondent's Advisor, the Respondent's Counsel or both, the Bishop Diocesan, the Chancellor and the Church Attorney shall each be afforded the opportunity to be present, either personally or telephonically, at the review, and any such person present shall be heard by the Panel if such person desires to be heard. The Panel may hear from other persons at the Panel's discretion.

And be it further

Resolved,  That Canon IV.8.2 be amended to read as follows:

Sec. 2.  In each pastoral response the Bishop Diocesan shall consider offering pastoral care to all those who may be affected by the alleged 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, and any affected Community, witnesses, and the Disciplinary Board.

And be it further

Resolved,  That Canon IV.8.3 be amended to read as follows:

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 alleged Offense or allegations thereof or concerning any Accord or Order as the Bishop Diocesan deems pastorally appropriate.

And be it further

Resolved,  That Canon IV.11.3, Canon IV.11.4 and Canon IV.11.5 be amended to read as follows:

Sec. 3.   The Investigator shall present the findings of the investigation in writing to the Reference Panel and to the subject Member of the Clergy. The Reference Panel may meet with the Investigator and shall consider the report to determine whether to (a) take no action other than appropriate pastoral responses pursuant to Canon IV.8; (b) refer the matter to the Bishop Diocesan for consideration of proceedings under Canon IV.9; (c) refer the matter to conciliation pursuant to Canon IV.10; (d) require further investigation; or (e) refer the matter to the Conference Panel pursuant to Canon IV.12. The determination shall be approved by a majority vote of the Reference Panel.

Sec. 4.  If the determination is to refer for further investigation, the Investigator shall make such further investigation as the Reference Panel directs and shall submit a supplemental report of findings to the Reference Panel and to the subject Member of the Clergy. The Reference Panel shall then reconvene and proceed as provided in Canon IV.11.3.

Sec. 5.  All investigations shall be confidential except as may be utilized by the Church Attorney, the subject Member of the Clergy, the Bishop Diocesan or the Panels upon the consent of the person interviewed or as the Bishop Diocesan deems pastorally necessary, and all persons interviewed by the Investigator shall be advised of the confidential nature of the investigation.

And be it further

Resolved,  That Canon IV.12.1 be amended to read as follows:

Sec. 1.  Upon referral of a matter to a Conference Panel, the president of the Disciplinary Board shall forward to the Church Attorney the intake report, all of the Investigator's reports and any other writings or other file materials created or collected by the Disciplinary Board or any panel thereof during the intake, investigative or referral process. From this material the Church Attorney shall prepare a written statement, describing each alleged Offense separately, with reasonable particularity sufficient to apprise the Respondent of the acts, omissions or conditions which are the subject of the proceedings. The Church Attorney shall then forward the materials received from the president of the Disciplinary Board, together with the written statement, to the Conference Panel and to the subject Member of the Clergy.

And be it further

Resolved,  That Canon IV.12.3 be amended to read as follows:

Sec. 3.  The Conference Panel shall issue a notice to the Respondent, the Respondent's Advisor, the Respondent's Counsel, the Complainant, the Complainant's Advisor, the Investigator and such other persons, if any, as the Conference Panel in its discretion may determine. The notice shall describe the nature and purpose of the proceeding, contain a copy of the written statement prepared by the Church Attorney, shall disclose the names of all persons to whom the notice is sent, and shall establish a date, time and place for a conference at which the Respondent is to appear before the Conference Panel, which date shall be not less than twenty (20) days after service of the notice upon the Respondent.

And be it further

Resolved,  That Canon IV.12.4 be amended to read as follows:

Sec. 4.  The Respondent shall attend the conference and the Respondent or Respondent’s counsel, or both, shall be heard by the Conference Panel.

And be it further

Resolved,  That Canon IV.12.6 be amended to read as follows:

Sec. 6.  The Complainant may shall attend the conference. but may not be required to do so. The Complainant's Advisor may also attend the conference. regardless of whether the Complainant attends.

And be it further

Resolved,  That Canon IV.12.7 be amended to read as follows:

Sec. 7.  The proceedings of the Conference Panel shall be informal and conversational. The Conference Panel shall describe the alleged Offense to the Respondent. The Conference Panel shall hear from the Complainant or the Complainant's Advisor or both, if either or both are present, and from the Respondent or the Respondent's Advisor or both. At its discretion, the Conference Panel may hear from the Investigator or any other persons present, and may direct the Investigator to conduct additional investigation and suspend its proceedings to allow such investigation to be completed. At its discretion, The Conference Panel may not confer with any participants outside the presence of the other participants Respondent.

And be it further

Resolved,  That Canon IV.12.8 be amended to read as follows:

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. No statements made by any participant in such proceeding may be used before the Hearing Panel.

And be it further

Resolved,  That Canon IV.12.12 be amended to read as follows:

Sec. 12.   The Respondent or the Church Attorney may refuse reject an Order issued by the Conference Panel by giving written notice of the refusal rejection to the president of the Conference Panel within fifteen days following the effective date of the Order as defined in Canon IV.14.10. Upon receipt of the notice of refusal rejection, the president of the Conference Panel shall notify the president of the Disciplinary Board of the refusal rejection and the matter will proceed as provided in Canon IV.14.11.

And be it further

Resolved,  That Canon IV.13.2 be amended to read as follows:

Sec. 2.  Upon receipt of a referral for Hearing Panel proceedings, the Church Attorney shall review all information acquired as of the time of such referral and, if necessary, shall revise or update the statement of the alleged Offense and shall provide the same to the Hearing Panel. The Hearing Panel shall issue a notice to the Respondent, to the Respondent's Advisor, to Respondent’s Counsel, and to the Church Attorney.

And be it further

Resolved,  That Canon IV.13.4 be amended to read as follows:

Sec. 4.  All proceedings before the Hearing Panel, except its private deliberations, shall be public, provided, however, that the Hearing Panel may close any part of the proceedings at its discretion to protect the privacy of any person. No proceedings before the Hearing Panel, except its private deliberations, shall be closed to the Respondent, Respondent's Advisor, Respondent’s Counsel, or to the Church Attorney. A record of the hearing shall be made by such means as to enable the creation of a verbatim written transcript of the hearing.

And be it further

Resolved,  That Canon IV.13.5 be amended to read as follows:

Sec. 5.  The Church Attorney and the Respondent shall each be afforded reasonable time and opportunity to prepare evidence for the hearing as follows:

(a)  Within thirty days after the filing of the response by the Respondent, the Church Attorney and the Respondent's counsel shall meet and confer regarding the nature and basis of the allegations against the Respondent and the defenses thereto and to make or arrange for initial disclosures as described in Canon IV.13.5(b), and to develop a proposed plan of discovery forms and schedule for approval by the Hearing Panel. A report of the proposed plan shall be filed with the president of the Hearing Panel within fifteen days after the conference.

(b)  Within fifteen days after the conference described in Canon IV.13.5(a), the Church Attorney and the Respondent's counsel  shall each  provide to the Respondent's counsel the other  initial disclosure of (1) the name and, if known, the address and telephone number of each individual likely to have direct knowledge of information which may be used to support the allegations against the Respondent or the defenses thereto  , together with a detailed summary of the expected testimony of the person, if called to testify; and (2) a copy of, or a description by category and location of, all documents and tangible things that may be used to support the allegations against the Respondent.  or the defenses thereto, except as such disclosure would involve Privileged Communications. Within fifteen days after receipt of the initial disclosure by the Church Attorney, Respondent's counsel shall provide to the Church Attorney initial disclosure of (1) the name and, if known, the address and telephone number of each individual likely to have direct knowledge of information which may be used to support defenses to the allegations against the Respondent, together with a detailed summary of the expected testimony of the person, if called to testify; and (2) a copy of, or a description by category and location of, all documents and tangible things that may be used to support defenses to the allegations against the Respondent.

(c)  If the discovery plan has been mutually agreed upon by the Church Attorney and counsel for the Respondent, the president of the Hearing Panel may approve the plan and incorporate it in a discovery order and scheduling order governing all discovery procedures and establishing a date for hearing of the matter. If the Church Attorney and Respondent's counsel do not agree on all elements of the discovery plan, the president of the Hearing Panel shall allow each to be heard with respect to the elements in dispute, make a determination of appropriate discovery procedures and issue a discovery order and scheduling order within thirty days of the receipt of the discovery planning report.

(d)  Discovery procedures may include written interrogatories, oral or written deposition testimony of any person having knowledge pertaining to the Offense alleged or any defenses thereto and requests for production of documents or tangible objects. and requests for admissions of fact.

(e)  In addition to the disclosures required by this section and the discovery obtained pursuant to the discovery plan, the Church Attorney and Respondent's counsel shall each provide to the other and to the Hearing Panel at least thirty days before the hearing final pre-hearing disclosures including (1) the name, address and telephone number of each witness expected to be called to testify at the hearing; (2) identification of each document or other tangible object expected to be used as an exhibit in the hearing; and (3) requests, if any, to have all or portions of the hearing closed to the public.

(f)   Notwithstanding any provision of this section, in approving or determining the discovery plan, the president of the Hearing Panel shall take reasonable steps to assure that the discovery process will not unduly burden any person from whom information is sought or unduly adversely affect any pastoral response being offered to any such person. The Hearing Panel may impose, after reasonable notice and opportunity to be heard, reasonable sanctions on any party for failure to comply with any discovery or scheduling order.

And be it further

Resolved,  That Canon IV.13.6 be amended to read as follows:

Sec. 6.   In all proceedings of the Hearing Panel the testimony of witnesses shall be taken orally and personally, or by such other means as provided by order of the Hearing Panel. All testimony shall be given under oath or solemn affirmation and be subject to cross-examination. The Hearing Panel shall determine the credibility, reliability and weight to be given to all testimony and other evidence. The proceedings shall be conducted as follows:

(a) The president shall regulate the course of the hearing so as to promote full disclosure of relevant facts.

(b)  The president:

(1) may exclude evidence that is irrelevant, immaterial or unduly repetitious;

(2) shall exclude privileged evidence;

(3) may receive documentary evidence in the form of a copy or excerpt if the copy or excerpt contains all pertinent portions of the original document;

(4) may take official notice of any facts that could be judicially noticed, including records of other proceedings and of technical or scientific facts within the Hearing Panel's specialized knowledge;

(5) may not exclude evidence solely because it is hearsay; and

(6) shall afford to the Church Attorney and to the Respondent reasonable opportunity to present evidence, argue and respond to argument, conduct cross-examination and submit rebuttal evidence. and

(7) may, at the discretion of the Hearing Panel, give persons other than the Church Attorney and the Respondent opportunity to present oral or written statements at the hearing.

(c)  Nothing in this section shall preclude the exercise of discretion by the president in taking measures appropriate to preserve the integrity of the hearing.

And be it further

Resolved,  That Canon IV.14.7 be amended to read as follows:

Sec. 7.  Prior to the issuance of an Order by a Conference Panel or a Hearing Panel, the issuing Panel shall afford the Bishop Diocesan, the Respondent,and the Complainant each with an opportunity to be heard on the proposed terms of the Order.

And be it further

Resolved, That Canon IV.14.11 be amended to read as follows:

Sec. 11.  If the Order is issued by a Conference Panel, the Respondent may refuse reject the Order as provided in Canon IV.12.12 and the matter shall be referred to a Hearing Panel for hearing as provided in Canon IV.13.

And be it further

Resolved,  That Canon IV.14.12 be amended to read as follows:

Sec. 12.  Notice of Accords and Orders which shall have become effective and are not subject to refusal rejected  by the Respondent shall be given without delay as follows:

***

And be it further

Resolved,  That Canon IV.15.2 be amended to read as follows:

Sec. 2.  Within forty days after issuance of an Order by a Hearing Panel, the Respondent or the Church Attorney may appeal to the Provincial Court of Review, by serving written notice of the appeal upon the Bishop Diocesan, with copies of the notice to the presidents of the Hearing Panel and the Province. The notice of appeal shall be signed by the Respondent's counsel or the Church Attorney and shall include a copy of the Order from which the appeal is taken and shall state the grounds of the appeal.

And be it further

ResolvedThat Canon IV.15.7 be amended to read as follows:

Sec. 7.  It shall be the duty of the Hearing Panel to produce the record on appeal, consisting of a transcript of the proceedings before the Hearing Panel together with documentary and tangible evidence received by the Hearing Panel. The record shall be printed  or otherwise reproduced as authorized by the president of the Provincial Court of Review. Within thirty days after receiving the record on appeal from the Hearing Panel, the party appealing Respondent shall serve two copies of the record on appeal, the notice of appeal and the appealing party's Respondent’s brief, if any, upon the opposite party Church Attorney and shall deliver five copies to the president of the Provincial Court of Review. Within thirty days after receiving a copy of the record on appeal, the party opposing the appeal Church Attorney shall serve the brief in opposition, if any, upon the appealing party, with five copies to the president of the Provincial Court of Review. Any reply brief of the appealing party Respondent shall be served likewise within fifteen days following service of the brief in opposition.

And be it further

Resolved,  That Canon IV.15.12 be amended to read as follows:

Sec. 12.  If, after a notice of appeal has been filed, appealing party Respondent fails to pursue the appeal as provided in this Canon, the Provincial Court of Review may dismiss the appeal.

And be it further

Resolved, That Canon IV.15.15 be amended to read as follows:

Sec. 15.   Upon determination of the appeal, the president of the Provincial Court of Review shall give notice of the determination in writing to the appealing party, the party in opposition and to the Bishop Diocesan, the Respondent and the Church Attorney. The appeal record shall be certified by the clerk of the Provincial Court of Review and the president, and shall be delivered to the Bishop Diocesan along with a copy of the record on appeal from the Hearing Panel.

And be it further

Resolved,  That Canon IV.19.6 be amended to read as follows:

Sec. 6.  In any proceeding under this Title in which the Respondent fails to appear before the Conference Panel as required by Canon IV.12.4 without good cause and without notice to the president of the Conference Panel or to timely file with the Hearing Panel the written response required by Canon IV.13.2(c), such Panel may proceed in the absence of the Respondent and may accept as true the matters described in the notice issued to the Respondent pursuant to Canons IV.12.3 or IV.13.2.

And be it further

Resolved,  That Canon IV.19.10 be amended to read as follows:

Sec. 10.  Each Diocese shall make provision for Advisors to be available to Respondents and Complainants as provided in this Canon for the purposes of support, assistance, consultation and advice regarding the process provided in this Title and the rights, responsibilities, consequences and alternatives pertaining thereto.

(a)  The Bishop Diocesan shall make an Advisor available to the Respondent not later than the earliest of (1) the filing of the intake report with the reference Panel; (2) reference for conciliation, to the Conference Panel or to the Hearing Panel, (2) or (3) the imposition of restriction on ministry or placement on Administrative Leave. or (3) any interrogation or request for a statement or other information from the Respondent.

(b)  The Bishop Diocesan shall make an Advisor available to the Complainant not later than the earliest of (1) the forwarding of the intake report to the Reference Panel, (2) the Complainant's appeal of a dismissal under Canon IV.6.5 or (3) the Bishop's designation of an Injured Person as a Complainant.

(c)  The following shall be disqualified from serving as an Advisor: the Bishop Diocesan, the Church Attorney, any member of the Disciplinary Board, the Intake Officer, any Investigator, any person who is likely to be a witness in any pertinent proceeding and the Chancellor or any Vice Chancellor of the Diocese.

(d) No Respondent or Complainant shall be required to accept the services of any Advisor made available by the Bishop Diocesan. Any Respondent or Complainant may use the services of any Advisor of his or her choice after designating that person as Advisor in writing to the Intake Officer.

(e)  All communications between the Respondent and his or her Advisor or attorney counsel and between the Complainant and his or her Advisor or attorneycounsel shall be privileged.

(f)  The reasonable costs and expenses of providing Advisors made available by the Bishop Diocesan shall be the obligation of the Diocese in which the matter of Discipline is proceeding unless otherwise provided in an Accord or Order. The reasonable costs and expenses of providing Advisors chosen by the Respondent or Complainant and not made available by the Bishop Diocesan shall be the obligation of such Respondent or Complainant unless otherwise provided in an Accord or Order.

(g)  In all proceedings under this Title at which the Respondent or the Complainant has the right to be present, their Advisors shall also have the right to be present.

And be it further

Resolved,  That Canon IV.19.16 be amended to read as follows:

Sec. 16.  There shall be a presumption that the Respondent did not commit the Offense. It shall be the burden of the Church Attorney to establish an Offense by any Respondent. The standard of proof required for a Hearing Panel to find an Offense by a Respondent shall be that of clear and convincing evidence.

And be it further

Resolved,  That Canon IV.19.17 be amended to read as follows:

Sec. 17.  In all matters under this Title, it shall be the burden of the Church through the Church Attorney to establish an Offense by any Respondent

Involuntary Statements.

(a)  No person proceeding under the authority of this Title may interrogate, or request a statement from, a Respondent or a person suspected of an Offense without first informing that person of the nature of the accusation and advising that person that no statement need be made regarding the Offense of which the Respondent is accused or suspected and that any statement so made may be used in evidence against that person in a proceeding under this Title.

(b) No Respondent or person suspected of an Offense may be compelled to make any statement or admission or to testify against himself or herself in any proceedings under this Title.

(c)  No statement obtained from any person in violation of this Canon, or through the use of coercion, undue influence or improper inducement may be received in evidence against that person in a Trial under this Title.

 

Explanation

The 2009 revision to Title IV established new disciplinary structures; added numerous new canonical offenses; and stripped Members of the Clergy of fundamental due process rights which under the predecessors to Title IV were intended to provide Clergy facing ecclesiastical discipline with a fair process and a fair trial. This resolution is intended to restore those rights which are critical to insuring Clergy a fair and impartial process, including the right not to be required to testify or give evidence against himself or herself. With only one exception, this resolution does not address any of the new offenses, and does not change the new structures established with the 2009 revision. The Standing Commission on Constitution and Canons (the "SCCC") has proposed revisions to only four sections of Title IV, three of which are also the subject of this resolution. Unfortunately, while the SCCC revisions would reduce inconsistencies between various sections, none addresses any of the issues addressed in this resolution.

Canon IV.2 revision: This section defines various structures and roles in the Title IV disciplinary process.

The first proposed amendment pertains to the selection of the Church Attorney. It provides that there shall be a single Church Attorney selected by the Disciplinary Board. This will insure independence of the Church Attorney who under the revised Title IV represents the Church is not simply the prosecutor.

The second proposed amendment pertains to the "Complainant," as the person or persons from whom the Intake Officer receives information concerning an alleged canonical offense. This proposed amendment would eliminate the possibility of a Member of the Clergy being subjected to a Title IV proceeding, with all of its consequences, as a result of anonymous allegations, which is now possible under this Section. It would restore to the accused Member of the Clergy the right to know the identity of his or her accuser, a right which is fundamental to Anglo-American jurisprudence, and which may permit the early dismissal of frivolous complaints. The revision proposed by the SCCC would eliminate anonymous complaints only with the consent of the person making the complaint.

The third proposed amendment would require that a Conference Panel consist of three members of the Disciplinary Board. This section now permits a Conference "Panel" of only one person. In addition, it requires that the members of the Conference Panel be chosen "by lot or other random means." The Conference Panel has a significant role in the revised structure, and to have that role be filled by less than three members of the Disciplinary Board and to have its members not randomly selected has the potential of denying the right of the accused to a fair and impartial proceeding.

The fourth proposed amendment would require that the Hearing Panel consist of not less than five members of the Disciplinary Board. In addition, it requires that the members of the Conference Panel be chosen "by lot or other random means." The present section provides that it shall consist of three members, which is inconsistent with Canon IV.6.7 which provides that a Hearing Panel consist of "not less than" three members of the Disciplinary Board. The revision proposed by the SCCC would eliminate the inconsistency between the two sections but would retain the language of Canon IV.6.7 ("not less than three"). The Hearing Panel is the trial court. It should consist of at least five members, and they should be randomly selected. The fate of a member of the Clergy should not be in the hands of only two people.

The fifth proposed amendment pertains to the Intake Officer. The revision would require that there be a single Intake Officer designated by the Disciplinary Board after consultation with the Bishop Diocesan. The present section provides for designation of the Intake Officer by the Bishop Diocesan after consultation with the Disciplinary Board. The Intake Officer has a significant role in the disciplinary process. It is the Intake Officer who makes the threshold determination as to whether the allegations against the Member of the Clergy, if true, would constitute a canonical offense. If the Intake Officer determines that they would constitute a canonical offense, the matter is submitted to the Reference Panel which consists of the Bishop Diocesan, the President of the Disciplinary Board and the Intake Officer. If the Intake Office is chosen by the Bishop Diocesan, he or she will control two-thirds of the Reference Panel, thus denying it impartiality, particularly when the "information" given to the Intake Officer comes from the Bishop Diocesan. In order to insure impartiality, the proposed revision also provides that the Intake Officer not be an employee of the Diocese or a member of the staff of the Bishop Diocesan.

The sixth proposed amendment pertains to the appointment of the Investigator or Investigators. For the purpose of insuring independence from the Bishop Diocesan, this proposed amendment would have investigators appointed by the Church Attorney in consultation with the President of the Disciplinary Board rather than by the Bishop Diocesan.

The seventh proposed amendment relates to Orders issued by a Conference Panel or a Hearing Panel eliminating surplus and ambiguous language.

The eighth proposed amendment relates to an accused Member of the Clergy. It would eliminate designation as a Respondent of a Member of the Clergy who "is asked by an investigator or the Bishop Diocesan to provide information or to make a statement". The language in the present section is overly broad and is contrary to the intended restoration of the right of the Member of the Clergy not to be required to provide information or make a statement against himself or herself.

Canon IV.3.1 revision: This proposed amendment would eliminate the new canonical offense of failure "to cooperate wth any investigation or proceeding conducted under authority of this Title." Under the present Canon, a Member of the Clergy who, on advice of counsel, refuses to give evidence or testimony which could be self-incriminatory, could be charged with this offense. It is of little value to a Member of the Clergy to have the right to counsel, if then denied to follow that advice.

Canon IV.3.3 revision: This proposed amendment would require that for any conduct or condition to be subject to Title IV the alleged offense must be both material and substantial AND of clear and weighty importance to the ministry of the Church. The present language provides for either, not both.

Canon IV.5.1 revision: This proposed amendment would require that the Disciplinary Board consist of at least nine persons, that it be elected by the convention of the Diocese, and that the President of the Disciplinary Board be elected by the members of the Board. The number of members must be at least nine if there is to be a Conference Panel of three and a Hearing Panel of five. The Disciplinary Board is the ecclesiastical court. The manner of the selection of the members of the court and the manner of the selection of the President of the Board is necessary to insure impartiality. The present section is silent on both issues, and in at least one Diocese, the Bishop Diocesan not only appoints the Intake Officer and the Church Attorney, but also appoints the members of the Disciplinary Board and chooses its President.

Canon IV.5.3 revision: This proposed amendment would provide that vacancies on the Disciplinary Board be filled by the remaining members of the Board, rather than by the Bishop Diocesan in order to insure impartiality and a fair trial for the accused Member of the Clergy. In one recent case, all of the members of the Conference Panel disqualified themselves and the Bishop appointed the entire conference Panel. The members of the Hearing Panel then disqualified themselves, and the Bishop appointed all of the members of the Hearing Panel. The effect was to have a trial court specially chosen by the Bishop to try a Member of the Clergy for alleged offenses on a complaint brought by the Bishop.

 Canon IV.6.2 and Canon IV.6.3 revisions: These proposed amendments give recognition to the presumption that the accused Member of the Clergy did not commit any canonical offense and requires that the "information’ provided to the Intake Officer be in writing with a certification signed by the Informant that the Informant believes that the reported information is true. This restores a requirement in the predecessor Title IV to eliminate or lessen frivolous complaints.

Canon IV.6.5 revision: This proposed amendment would provide that the accused Member of the Clergy shall be notified if the matter is being dismissed by the Intake Officer; and that an appeal from such dismissal by the Complainant must be provided to the subject Member of the Clergy.

Canon IV.6.6 revision: This proposed amendment would provide that notice of the decision of the Disciplinary Board on an appeal of a dismissal by the Intake Officer also be provided to the subject Member of the Clergy.

Canon IV.6.7 revision: This proposed amendment would provide that if the Intake Officer determines that the information, if true, would constitute an Offense, the Intake Officer shall forward a written intake report to the Reference Panel and to the subject Member of the Clergy. This proposed amendment would also provide that the Conference Panel shall consist of three persons (it could presently be only one of two persons), and would provide that the Hearing Panel shall consist of not less than five persons. It is now only three persons.

Canon IV.6.10 revision: This proposed amendment would provide that confidentiality shall be subject to Canons.

Canon IV.7.7 revision: This proposed amendment would add a provision stating that no Rector or other tenured Member of the Clergy shall be denied his or her compensation and benefits by virtue of the imposition of a restriction on ministry or placement on Administrative Leave.

This is consistent with the historical polity of the Church and recognizes that accused Members of the Clergy are presumed not to have committed any canonical offense.

Canon IV.7.11 revision: This proposed amendment would clarify the requirement that Respendent’s Counsel would be given the opportunity to appear before the Conference Panel on the review of a restriction on ministry or placement on Administrative Leave.

Canon IV.8.2 and Canon 8.3 revisions: These proposed amendments would give recognition that Members of the Clergy are presumed not to have committed a canonical offense and that a complaint only contains allegations of an offense.

Canon IV.11.3, Canon IV.11.4 and Canon IV.11.5 revisions: These proposed amendments would provide that the reports of the Investigator shall be provided to the accused Member of the Clergy. Without having the Investigator’s Report, an accused Member of the Clergy is not able to prepare a defense prior to meeting with the Conference Panel, or seek dismissal or an Accord by the Conference Panel.

Canon IV.12.1 revision: This proposed amendment would provide that all materials submitted by the Church Attorney to the Conference Panel also be provided to the Respondent Member of the Clergy.

Canon IV.12.3 revision: This proposed amendment would provide that at least twenty (20) days notice be given to the Respondent of the meeting with the Conference Panel. This will give time for preparation and adjustment of the schedules of the Respondent, Respondent’s Advisor and Respondent’s Counsel.

Canon IV.12.4 revision: This proposed amendment would provide that the Respondent or Respondent’s counsel, or both, shall be heard by the Conference Panel.

Canon IV.12.6 revision: This proposed amendment would provide that a Complainant is required to attend the meeting of the Conference Panel just as the Respondent is required to attend.

Canon IV.12.7 revision: This proposed amendment would eliminate ex parte conferences by the Conference Panel by providing that the Conference Panel may not confer with anyone other than the Church Attorney outside of the presence of Respondent.

Canon IV.12.8 revision: This proposed amendment would add a provision stating that no statements made by any participant in a proceeding before the Conference Panel may be used before the Hearing Panel.

Canon IV.12.12 revision: This proposed amendment would substitute the word "reject" for "refuse." The accused Member of the Clergy has the right to reject any proposed Order by the Conference Panel. It is not a refusal to comply with an Order.

Canon IV.13.2 revision: This proposed amendment would give recognition to the presumption that the accused Member of the Clergy did not commit any canonical offense.

Canon IV.13.4 revision: This proposed amendment would provide that no proceedings before the Hearing Panel, except its private deliberations, shall be closed to the Respondent, Respondent's Advisor, Respondent’s Counsel, or to the Church Attorney, and that the Record of the hearing must be verbatim.

Canon IV.13.5 revision: The proposed amendment to paragraph (b) would provide that the initial disclosure of witnesses and exhibits by the Respondent shall be fifteen days after receipt of such disclosure by the Church Attorney. The proposed amendment to paragraph (c) would provide for the use of written interrogatories and eliminate requests for admissions. The former is necessary for the Respondent to be fully apprised of the specifics of the charged offenses and the latter recognizes that an accused Member of the Clergy should not be compelled to make admissions.

Canon IV.13.6 revision: This proposed amendment would eliminate the provision permitting the Hearing Panel to take official notice of technical or scientific facts within the Hearing Panel's specialized knowledge. All evidence must be in the record. This proposed amendment would also eliminate the provision permitting persons other than the Church Attorney and the Respondent to present written statements at the trial. A written statement cannot be cross-examined, and to permit such statements would deny Respondent the right to confront his/her accuser(s) and subject such person(s) to cross-examination.

Canon IV.14.7 revision: This proposed amendment would provide that prior to the issuance of an Order by a Conference Panel or a Hearing Panel, the issuing Panel shall afford the Respondent an opportunity to be heard on the proposed terms of the Order.

Canon IV.14.11 and Canon IV.14.12 revisions: These proposed amendments would substitute the word "reject" for "refuse." The accused Member of the Clergy has the right to reject any proposed Order by the Conference Panel. It is not a refusal to comply with an Order.

Canon IV.15.2, Canon IV.15.7, Canon IV.15.12 and Canon IV.15.15 revisions: These proposed amendments would eliminate the power of the Church Attorney to appeal from the decision of a Hearing Panel. Only the Respondent should be permitted to appeal.

Canon IV.19.6 revision: This proposed amendment would provide that the Conference Panel may not act in the absence of the Respondent if the Respondent’s absence is for good cause and written notice has been given to the president of the Conference Panel.

Canon IV.19.10 revision: This proposed amendment to paragraph (a) would provide that the Bishop Diocesan shall make an Advisor available to the Respondent not later than the filing of an intake report with the Reference Panel, and eliminates the provision for interrogation or request for a statement from the Respondent. The other changes substitute the word "counsel" for "attorney".

Canon IV.19.16 revision: This proposed amendment would merge the language contained in this section with the language in Canon IV.19.17.

Canon IV.19.17 revision: This proposed amendment would restore the right of an accused Member of the Clergy not to be compelled to testify or give evidence against her/himself.  It is taken verbatim from Canon V.14.11 of the predecessor Title IV.