Memorandum Number 723
SUBJECT TO FINAL EDITING
Joint Review Process in Light of Judicial Council Decisions, with Specific Reference to Pars. 451.1(c); 2622.1, .3, .4, .5, .6, and .7; and 2625.1(b).
Digest
The decision of law of the bishop pertaining to Pars. 451.1(c); 2622.1, .3, .4, .5, .6 and .7; and Par. 261.1(b) is affirmed with certain modifications related to Par. 454.l(b), and Decisions 698 and 704.
Statement of Facts
During the 1994 Session of the Iowa Annual Conference Charles W. Smith presented to Bishop Charles W. Jordan a series of questions of law on which he asked the bishop to rule. The bishop gave a decision on each question and gave the rationale for his decisions. The questions and his decisions are listed below.
1. Question: Since the statute of limitations in the 1988 Book of Discipline istwo years and the alleged offense of sexual harassment occurred during the years 1987-88, is the complaint filed in 1993 properly before the Joint Review Committee according to Judicial Council's Ruling #691?
Bishop's Ruling: "No, [it] is barred by the statute of limitations containedin the 1988 Book of Discipline."
2. Question: When does the statute of limitations begin to run?
Bishop's Ruling: "As indicated in my ruling on the principal question, inthis instance we are dealing with the 1988 Discipline. The 1992 Discipline provides an unlimited time for bringing a sexual abuse complaint, and it is my opinion that sexual harrassment falls within the same statute of limitations provision as sexual abuse. In effect, under the 1992 Discipline, sexual abuse or harassment has no statute of limitations applicable to it. Therefore, under the 1992 Discipline, it is not critical to identify or delineate when the statute of limitations period with respect to sexual abuse or harassment begins to run. As contrasted to the 1992 Discipline, the 1988 Discipline took a much more restrictive view and provided that complaints for sexual abuse or harassment were to be initiated within two years of the offense. It is my opinion, and I rule, that the 1988 Discipline anticipated that the two-year statute of limitations for which it provided would begin to run from the date of the offense without exception or variation, whether the offense was sexual abuse/harassment, or something else. To hold that the limitation period began to run at some later time, such as when identified or named by the complaining party, would place the inquiry in the realm of subjectivity and ambiguity. Since the 1992 Discipline has alleviated the otherwise possibly harsh results of my ruling on this issue, there appears to be little undesirable ramification from my ruling that for purposes of the 1988 Discipline the statute of limitations for a sexual abuse/harassment complaint or grievance is two years measured from the last date of the offense."
3. Question: Under The 1992 Discipline is the keeping of a verbatim record bythe Joint Review Committee Mandatory?
Bishop's Ruling: "Yes, unless the person against whom the complaint islodged waives in writing his or her right to a verbatim record. Judicial Council Decisions 704 and 698 contain the Judicial Council's conclusion, on page 2, that since the Board of Ordained Ministry develops its response to the Complaint based on the report of the Joint Review Committee, and since such recommendations are often based solely on the file received from the Joint Review Committee, the lack of a verbatim record before the Joint Review Committee deprives the person charged of the right to be heard by the entity which imposes the sanction. The Judicial Council has specifically ruled that the lack of a verbatim record of the proceedings before the Joint Review Committee is a denial of fair or due process. Therefore, although the wording of Paragraph 454.1(c) of the 1992 Discipline is to the contrary, Judicial Council Decisions 698 and 704 mandate my ruling that the person against whom a complaint is brought is entitled to a verbatim record of hearings conducted by the Joint Review Committee. Obviously a person may waive rights granted to him or her. If the respondent waives in writing, with informed consent, his or her right to a verbatim record, the Joint Review Committee may proceed without a verbatim record of hearings before it."
4. Question: Does the respondent have a right to both legal counsel and an"advocate" before the Joint Review Committee pursuant to Paragraph 451.1(c)?
Bishop's Ruling: No. Under Judicial Council Decision 698 the respondent hasthe right to choose an advocate who is an attorney.
5. Question: Should the Joint Review Committee have legal counsel present ifthe parties involved in the complaint have legal counsel present?
Bishop's Ruling: The "Joint Review Committee is free (but not required) tohave legal counsel representing the Committee at the Joint Review Committee hearings, if either the respondent or the person bringing the complaint elects to be represented at the hearing by an attorney."
6. Question: Since the Joint Review Committee must comply with Paragraph 2622.2of The 1992 Discipline (see Judicial Council Decision 691), must the Joint Review Committee comply with the other six subparagraphs of Paragraph 2622 (Fair Process)?
Bishop's Ruling: "Yes. There is nothing in Judicial Council Decision 691,or its rationale, which would suggest that the Judicial Council has anything less in mind than making the entire Paragraph 2622 of The 1992 Discipline, 'Fair Process,' including all subparagraphs thereof, applicable to the work of the Joint Review Committee."
7. Question: May the Joint Review Committee meet without the presence of therespondent or the person bringing the complaint? Bishop's Ruling: "Yes. Paragraph 2622.4 of The 1992 Discipline contains noprohibition against the Joint Review Committee meeting by itself. Neither does Paragraph 454.1(c)."
8. Question: May the Joint Review Committee meet with the parties individuallyor separately in order to function as a mediation agent? (In view of the language of 2622.4)
Bishop's Ruling: "Only if the parties agree to such a procedure."
9. Question: When a person other than the parties involved is to be heard bythe Joint Review Committee, must the parties involved in the complaint also be present?
Bishop's Ruling: "Yes."
10. Question: Paragraph 454.1(c) of The 1992 Discipline provides that the workof the Joint Review Committee is to be " . . . informal and confidential... " If the Joint Review Committee must implement Paragraphs 2622.1 through 7, what is the definition of informal and confidential?
Bishop's Ruling: "Pursuant to Judicial Council Decisions 691 and 698,Paragraph 2622 of The 1992 Discipline has been modified by judicial interpretation to mean that the proceedings before the Joint Review Committee are informal and confidential only insofar as such informality and confidentiality are in harmony and in accord with the fair process provisions of The 1992 Discipline."
The decisions of law rendered by the bishop are affirmed, with the exceptions of the modifications listed below in regard to questions two (2) and three (3):
Question Two: There is no charge of sexual abuse in the 1988 Discipline andreference to such a charge as relates to the aforesaid Discipline should be deleted. There is no indication in the 1992 Discipline that sexual harassment has no statute of limitations provision. This provision applies only to sexual or child abuse (454.1(b)). The ruling by the bishop that there is no statute of limitations on sexual harassment is reversed and should be deleted from his ruling.
Additionally, the statute of limitations on all charges in the 1992 Discipline must be delineated and identified since they must be applied prospectively.
Question Three: There is no provision in Decisions 698 and 704 that a respondent may waive his/her right to a verbatim record. That statement in the bishop's ruling is reversed and should be deleted from the ruling.