Guidelines for Mandated Groups on dealing with a case under the Section O Process
The United Reformed Church
The Ministerial Disciplinary Process (the Section O Process) September 2011
GUIDELINES FOR MANDATED GROUPS
These Guidelines have been prepared by Mission Council's Ministerial Incapacity Procedure and Disciplinary Process Advisory Group (MIND) to help you to understand the distinctive role which as a member of a Mandated Group you will play in the Disciplinary Process. They take into account all the changes made up to and including April 2011. This is an advisory document; it does not carry the authority of the General Assembly and, in every respect, it is subject to the Disciplinary Process the text of which always takes precedence over these Guidelines. Make sure you have the latest version of the Disciplinary Process by your side when reading this. It can be found on the Church’s website (http://www.urc.org.uk).
The Disciplinary Process was approved by General Assembly in 1997 in order to provide the Church with a means of resolving issues affecting the conduct of ministers of the United Reformed Church which could not be resolved by any other means. Subsequently Church Related Community Workers have been brought within the scope of the Process.
The minister’s/CRCW’s conduct is to be judged applying the standard of proof of “balance of probabilities” against the promises made at ordination/commissioning.
A flowchart has been prepared which charts the progress of a disciplinary case from start to finish. This can be found on the Church’s website www.urc.org.uk.
One member of your Group is on the Joint Panel and is receiving regular ongoing training from representatives of MIND. S/he will therefore be able to lead you as you embark on this Process.
In April 2011 a new Section AA was added to the Process in order to include a Caution Stage. This is explained in Section 3 of these Guidelines.
Forms have been specially prepared to help you at the various stages in the Process and these have been recently comprehensively updated. The forms for use in connection with the Caution Stage are all headed AA and the remaining forms are grouped into 5 categories - A to E, which reflect the chronological sequence through the Process. These are shown at Appendix IV.
The forms in Group A (not to be confused with the AA forms - see previous paragraph) relate to the Initial Enquiry period, so they will be held by the Synod Moderator (or by the Deputy General Secretary if the case emanates from Mission Council rather than Synod). Please obtain Forms A11 and A13 from your Synod office (or from that of the Deputy General Secretary if applicable – see previous sentence) and be sure to use them because this will greatly simplify your own task and that of the Secretary of the Assembly Commission. The remaining forms which you will require will be sent to you at the appropriate stage.
When a case enters the Commission Stage, the Secretary of the Assembly Commission will issue the forms in Groups B, C and D as and when appropriate and s/he is the person to contact with any questions regarding the forms. Should a case go to appeal, the forms in Group E would apply and these are held by the General Secretary.
Note that the Disciplinary Process applies to Ministers of Word and Sacrament and to Church-Related Community Workers (CRCWs). For brevity these notes refer, on the whole, to ministers. You should take it that all such references apply also to CRCWs.
The numbers in brackets in the text below take you to Appendix III which will give you the appropriate reference in the Disciplinary Process itself.
Three Important Principles
The Disciplinary Process contains a list of definitions of words and phrases. (4) You must study this list carefully, because every time a defined word or phrase is used it will carry that precise meaning.
The Caution Stage
3.1 Recently Mission Council approved the addition of a preliminary stage (the Caution Stage) (5) within the Disciplinary Process to deal with cases falling short of Gross Misconduct. (6)
3.2 Where the Synod Moderator and those responsible for pastoral care within the Synod come to realise, possibly after a period of increasing concern, that, either due to deliberate intent or a blatant lack of care and concern, the minister is failing to live up to his/her ordination promises and that this in turn is causing significant damage to the minister's pastorate and/or other areas of his/her ministry, serious issues of discipline arise even though there is no suggestion of Gross Misconduct. The Caution Stage will provide a means of dealing with this problem.
3.3 In such a situation the Synod Moderator will be able to invoke the Caution Stage by calling in two persons known as the "Synod Appointees". (7) Their role will be to seek – hopefully with the minister's co-operation – to address the perceived shortcomings and to develop proposals as to how these might be overcome. The Synod Appointees have the power to back up these proposals by issuing a series of sanctions (i.e. Initial and Final Cautions). (8)
3.4 At the end of the Caution Stage, if the Synod Appointees do not consider that the problems have been resolved to their satisfaction despite the imposition of the Cautions, they are likely to recommend the Synod Moderator to proceed to the next stage, i.e. to call you in as the Mandated Group to begin your Initial Enquiry.
3.5 So, if you find yourself dealing with a case which has already passed through the Caution Stage, you will need to pay very close attention to the wording of the Cautions issued and to the report of the Synod Appointees to the Synod Moderator giving the reasons for their recommendation that the case should go forward.
3.6 Having said that, you should remember that, because the Caution Stage is intended to be a co-operative process, it is unlikely that there will have been any cross-examination of the minister or witnesses, which means that the ‘evidence’ on which the Cautions are based will not have been rigorously tested. Also, bearing in mind how long a case may take to pass through the Caution Stage, an appreciable period is likely to have elapsed between the interviews conducted during the Caution Stage and the time when have to carry out your enquiries and investigations. So you will understand why it is very important for you to gather all the evidence afresh rather than simply sitting back and relying on the information which led to the issue of the Cautions without testing it for yourselves.
Your Role Before Issue of Referral Notice
4.1.1 When the Group is called upon in any particular case (9), each of you must act fairly and objectively. You must not serve as a member of a Mandated Group if you have, or have had, any pastoral or personal involvement with the minister or an affected local congregation or if you know of some other reason why your strict objectivity might be compromised. If this situation should arise, you must immediately declare your interest and withdraw from the Mandated Group for that particular case. (10)
4.1.2 In the “Pre-Referral Notice” period, you work with the Synod Moderator (or, very occasionally, the Deputy General Secretary) in carrying out an initial enquiry to see whether there may be a prima facie case against the minister. (11)
4.2 When the Synod Moderator calls you in to carry out your Initial Enquiry into the allegations of ministerial misconduct, s/he will provide you with a written report explaining the reasons for having taken this step, together with all reports, papers and other relevant documents, as soon as s/he is able to do so. If the case has passed through the Caution Stage, the Moderator will include with his/her statement copies of any Cautions imposed by the Synod Appointees (as to this expression see Section 3 of these Guidelines) and of their report to the Moderator. Apart from the Moderator’s statement and the Synod Appointees’ report, all the documents received by you from the Moderator will also be copied to the minister at the same time. (12) Please note the personal file is confidential and everything you receive should therefore be treated with the utmost care to ensure that there is no inadvertent disclosure of its contents to anyone outside the Disciplinary Process.
4.3 At the outset you will need to agree amongst yourselves as to who does what and how you intend to conduct your Initial Enquiry (your immediate task) and later your more detailed investigation, should you consider it necessary to issue a Referral Notice. The member appointed to the Group from the Joint Panel will be the most knowledgeable, having already received training and guidance about the Process. So that person will be expected to play the leading role and to assist the other two with some preliminary guidance so that they too will be aware of the disciplinary criteria and the procedures and generally what will be expected of them. It is very important that all three of you keep in regular touch and work closely together throughout.
4.4.1 Consistent with a careful and thorough approach, you must move as quickly as possible in the interests of all concerned. You should obtain accurate statements before memories fade. There is no time to be lost. The task at this point is not to conduct a detailed investigation, but to review the situation and simply to decide whether or not the case should proceed.
4.4.2 Sometimes as a result of your Initial Enquiry you may realise that, although the problems are real enough, their root cause does not lie in the disciplinary realm but rather that specialised pastoral help is needed. On other occasions allegations may have been made mischievously or maliciously. In such situations, save in exceptional cases, it would not be appropriate for the Group to refer the case into the Commission Stage, which is the next part of the Process and is explained in Section 5 of these Guidelines. Should you reach this conclusion, you must follow the procedure outlined in Paragraph 4.6.1 below.
4.4.3 This Paragraph contains an important caveat. There may be times when you feel that an informal warning to the minister or the imposition of a particular condition upon him/her would be sufficient. BUT you have no authority to issue such a warning nor to impose any condition on him/her, as this would compromise your own distinctive ‘non-pastoral’ role within the Disciplinary Process. (13) Furthermore, it could defeat the object of dealing with the “Initial Enquiry” stage expeditiously. Therefore under no circumstances must you depart from your strict terms of reference as laid down for Mandated Groups in Section B of the Disciplinary Process, particularly Paragraphs B.8 and B.9.
4.5 Both before and after the issue of the Referral Notice, you will, as a group, need to conduct interviews with the minister and others involved, and the following points should be noted:-
4.5.1 When requesting anyone to attend an interview, you should make it clear that the person concerned can decline to be interviewed or, if agreeing to attend, that s/he may terminate the interview at any time.
4.5.2 At the same time you should also inform the minister or other interviewee that s/he may have a friend present with him/her at any interview. (14) If interviews have to take place with children, the presence of another party, e.g. parent, guardian, social worker, friend or counsellor, is essential. Always make sure that you give plenty of notice of this.
4.5.3 When making the appointment, you must stress that the whole of the Disciplinary Process is protected by confidentiality. This is essential in the interests of natural justice in order to ensure a fair Hearing for the minister. It should be pointed out when the appointment for the interview is made and repeated at the outset of each interview that discussion of the case with people not directly involved in the Disciplinary Process might prejudice the chance of a fair Hearing. However, you should also inform those being interviewed that anything disclosed during the interview may be presented at the Hearing as evidence.
4.5.4 When interviewing the minister and other witnesses all three of you (but never less than two) should make every effort to be present. This is to ensure that the record of the meeting is accurate, and to afford protection against any criticism that one member of the Group acting alone might have conducted the interview improperly or misunderstood or misrepresented the evidence given by the person being interviewed.
4.5.5 You must be courteous and fair and not intimidatory, your aim being to create a relaxed and informal atmosphere so that the person being interviewed does not feel under pressure.
4.5.6 When you interview a person who provides information which in your view supports the case against the minister, you should ask whether s/he would be willing to attend the Hearing if required to do so. Unlike the courts of law, there is no power under the Disciplinary Process to subpoena witnesses to attend to give evidence. Therefore you cannot fully assess the strength of the case unless you know who will and who will not be prepared to attend the Hearing, and it is as well to find this out as early as possible (although it should be noted that witnesses can of course change their minds later).
4.5.7 You should prepare a written summary of the discussion and invite the interviewee at the conclusion of the interview to read the statement and, if satisfied with it, to sign it. You should then also sign it. If the interviewee is unwilling to sign the statement, you should invite him/her to state why and, if appropriate make any necessary amendments to resolve any reasonable and proper concerns which s/he may have. If s/he still refuses to sign, you should add an explanatory note at the end of the statement and then you should sign it, so long as you are satisfied that it represents a fair and accurate summary of the discussion. In the event of an interviewee being unable or unwilling to attend the Hearing, the importance of a written statement cannot be over-emphasised.
4.6 Bearing in mind what has been said at Paragraph 4.3.1, you must aim to bring your initial enquiry to a conclusion as quickly as possible in one of two ways:- (15)
4.6.1 If you believe that there are no grounds or insufficient grounds for pursuing the matter further, you must immediately serve on the Synod Moderator (or other person who called you in) a notice to this effect (called a ‘Notice of Non-Continuance’). (16) Once you have served this notice, you are discharged from any further involvement in the matter except that you are required to make a written report of your conduct of the case to the Secretary of the Assembly Commission. (17) It is the responsibility of the Synod Moderator to tell the minister that the case is not proceeding. (18)
4.6.2 If however you decide that the case should proceed, you must follow the Referral Notice and Suspension procedure explained in Section 5 of these Guidelines. (19)
4.7 You may occasionally find yourselves involved in a case where the minister was first considered within the Incapacity Procedure (Section P of the Manual) but later brought within the Disciplinary Process instead. If so, you are asked to pay careful attention to any special factors which may be present. (20)
The Referral Notice and Suspension of Minister
5.1 If as a Group you believe that there is a prima facie case against the minister you should issue a Referral Notice using the form provided. (21) The Process then moves into the Commission Stage.
5.2.1 When you issue the Referral Notice you must at the same time suspend the minister (22) from active involvement within his/her pastorate or other sphere of work within the Church. There is no discretion as to whether or not to suspend. Nor do you have authority to suspend a minister without issuing a Referral Notice, although in urgent cases you may notify the minister orally of his/her suspension so long as you immediately follow this up by issuing the Referral Notice and the written Notice of Suspension. Suspension is regarded as a necessary part of the Process and does not carry any pejorative implications. (23)
5.2.2 Occasionally you may find that the Moderator has already suspended the minister under emergency powers. (24) In such a case, at the same time as you issue the Referral Notice, you must also give the minister written notice that his/her suspension will continue during the Commission Stage (25)
5.2.3 When issuing the Referral Notice and suspending the minister, you must also inform the person who called your Group in (usually the Synod Moderator) and it is his/her responsibility, not yours, to take, or make arrangements for, such pastoral steps as may be appropriate. (26)
5.3 The Referral Notice must always relate the perceived breaches of discipline to the ordination/commissioning promises and must contain as full a statement as possible of the reasons why you believe that a breach of Discipline has or may have occurred. You should also include in this statement a summary of the supporting information which has led you to issue the Referral Notice (27), although you do not have to state in the Referral Notice the names of the complainant and any other persons who may have supplied the information. This summary will tell the minister at an early stage what allegations are being made against him/her and it might also avoid the need for an application at a later stage to admit information not contained in the Referral Notice, which in turn might delay bringing the matter to a Hearing. Note that you must include on the Referral Notice details of any Outside Organisation (28) which has been informed of the minister's Suspension. (This last term is defined in Paragraph A.5.28 as: "any body or organisation outside the Church by which the minister is employed or with which the minister holds any position or post or has any involvement, paid or unpaid, where such body or organisation would have a reasonable and proper expectation of being made aware of the particular step(s) being taken". This will be an organisation with which the minister has a relationship, perhaps directly through the work of his/her church or because s/he is, for example, chaplain to a hospital, school or prison or is involved with any of the uniformed organisations such as Scouts or Guides.) The Synod Moderator (or the person who called you in if this is someone different) will be able to tell you if any such organisation is involved.
5.4 For the procedure to run smoothly and promptly, it is essential for the Secretary of the Assembly Commission to have one, and only one, contact point with the Mandated Group. For this reason you are asked to state in the Referral Notice the name and address of the member of the Mandated Group who will accept service of documents on behalf of the Group. As the Joint Panel member will be playing the leading role in the work of the Mandated Group, it is expected that s/he will be named as the contact person and that s/he will sign the Referral Notice. If you fail to include this information, the member of the Mandated Group who signs the Referral Notice is the one to accept service of documents. The Secretary of the Assembly Commission will liaise with that person. (29)
5.5 In most cases the Mandated Group will be called in to represent the Synod. However the Rules also provide for the calling in of a Mandated Group on behalf of General Assembly, and if this should apply to your Group please note the few minor changes in the procedures. (30)
The Commission Stage - A. Before the Hearing
6.1 Once the Referral Notice has been issued, every case will ultimately be brought to an Assembly Commission for decision. You will have the task of investigating the matter (31) and then of presenting the case against the minister at the Hearing itself. (32)
6.2 The Secretary of the Assembly Commission is appointed by the General Assembly to deal with the procedural and administrative aspects of Disciplinary cases. S/he is not a member of the Assembly Commission, and his/her task is to see that the correct formalities are complied with. S/he is the Mandated Group’s link with the Assembly Commission in the steps that have to be taken prior to the Hearing.
6.3 At the outset of the Commission Stage, an Assembly Commission consisting of five persons will be appointed from the Commission Panel to hear the case. (33) You and the minister both have the right to object to the appointment of any of the proposed appointees to the Assembly Commission or to its Secretary on the ground of personal or pastoral involvement. (34) (See also Paragraph 4.1 of these Guidelines).
6.4 Natural justice demands that the minister should be made fully aware of the accusations laid against him/her; that s/he should have the opportunity to answer those accusations and that s/he should receive a fair hearing. All these matters have been taken into account in deciding the timescale for the steps leading up to the Hearing. The result is that several months may elapse between the date of the Referral Notice and the date of the Hearing. This allows time for the proper appointment of the Assembly Commission, for the pre-hearing procedures to be dealt with and for both parties to prepare for the Hearing. (35)
6.5 In conducting your investigation you must always act in a fair-minded way without any prejudice for or against either the minister or those making the allegations and your enquiries during the Commission Stage will need to be detailed and painstaking. In your investigation of the facts and your presentation of the case at the Hearing you must not be aggressive towards the minister or his/her witnesses. Nor should you only carry out a desultory or superficial investigation and ignore important facts or shy away from sensitive areas because, for example, you might feel sorry for the minister or his/her family and/or be apprehensive about the upheaval and resentment which detailed personal questioning might cause. You should also bear in mind that if information comes to light which may assist the minister this should be passed on to the minister via the Secretary of the Assembly Commission. Objectivity, fairness and thoroughness must be the hallmarks of your work.
6.6.1 You should concentrate on the matters referred to in the allegations contained in the Statement of Reasons set out in the Referral Notice. It is not part of your brief to investigate other aspects of the minister's life. However, if in the course of the questioning other facts emerge which you believe might have a bearing on the case (including any such occurring during the Commission Stage), you may approach the Secretary of the Assembly Commission to ask the Commission to exercise its discretion to allow consideration of these matters as part of the case. (36)
6.6.2 Sometimes it may seem to you both before and during the Commission Stage, and even at the Hearing itself, that the minister is acting in an unco-operative or unacceptable manner, either in relation to the Disciplinary Process itself or more generally. If so, your spokesperson is entitled when presenting your case to ask the Assembly Commission to take such conduct into account when considering its decision. The minister has reciprocal rights against a Mandated Group which s/he believes to be similarly infringing the Rules of Procedure contained in the Process. (37)
6.7 You need to be aware of the issue of defamation. Some of the statements made about the minister or other persons involved in the disciplinary matter could in themselves be defamatory and, if untrue, could lay the person making them open to an action for defamation. The statements are protected if made without malice and for the sole purpose of the Disciplinary Process.
6.8 Criminal Cases. Cases will sometimes come into the Disciplinary Process where a minister is subject to criminal investigation, and in some cases criminal charges may have already been brought against him/her. In these situations there could be serious consequences if you do not follow the correct procedures which are explained in detail in Appendix I of these Guidelines. Please study both Appendix I of these Guidelines and Paragraph E.7 of the Process itself with especial care.
6.9 Having carried out a detailed investigation, you should prepare for the Hearing by examining all the information which has been gathered. You will need to consider the reliability of each item of information and how pertinent it is to the case against the minister. There are many reasons why evidence might not be reliable. A few examples might be - a person’s emotional state, some degree of personal animosity, inconsistencies in information supplied, a witness quite simply saying that, whilst believing that such-and-such happened, s/he cannot be absolutely sure.
6.10 The burden of proving the case falls on the Mandated Group (38) and the standard of proof required is the civil standard of “balance of probability”, not the criminal standard of “beyond reasonable doubt”. (39)
6.11.1 Having carefully examined all the information and discarded any which you consider to be unreliable or irrelevant, you should then consider the inferences to be drawn from the reliable, relevant evidence. Do they, in your view, lead to a conclusion on the balance of probability that the minister has broken the promises made at Ordination to lead a holy life and to preserve the unity and peace of the Church? (1) This is the first principle stated in Section 1 of these Guidelines. If you do reach that conclusion you have a further question to consider. Do you believe that the breach of discipline is sufficiently serious to justify deletion from the Roll (40) or would a written warning be sufficient? (41) The final decision rests with the Assembly Commission, but you should ensure that your spokesperson fully expresses your view on the seriousness of any perceived breach of discipline at the Hearing.
6.11.2 As stated in the last paragraph, the conduct of the minister is to be judged in the light of the promises made at ordination. What if the conduct complained of occurred prior to ordination? In that situation the issue is whether that conduct was disclosed to those responsible for assessing him/her as a candidate for ministry (42).
6.11.3 It cannot be stressed too strongly that, in presenting the evidence before the Assembly Commission at the Hearing, you should make every effort to ensure that your witnesses are there at the Hearing in person. This will give you the opportunity of taking them through the evidence thoroughly and will also enable the minister or his/her spokesperson to ask them questions and, if appropriate, to challenge their version of events. Also it will give the members of the Assembly Commission the chance to assess their credibility as witnesses. All this is important in ensuring that the minister receives a fair hearing.
6.11.4 There may be exceptional circumstances where it is impossible or very difficult or, in your opinion, inadvisable for you to bring a particular party to the Hearing. In this event, you should contact the Secretary of the Assembly Commission, explain the reasons and ask the Assembly Commission for special permission to dispense with that person's attendance and allow a written statement or video or other type of recording to be accepted instead (43) (This links with Paragraph 4.5.7). However, even if the Assembly Commission agrees to dispense with the person's attendance, it is unlikely to attach as much weight to evidence which relies on written statements etc. as to that given first hand by a witness who attends the Hearing.
6.12.1 After you have carefully assessed the information and weighed up both its reliability and its pertinence to the central issue of whether or not the minister has committed a breach of discipline, you will then need to prepare a list of witnesses and make sure that those persons will be able to attend the Hearing in person.
6.12.2 Your correspondent (see Paragraph 5.4 above) must in advance of the Hearing lodge with the Secretary of the Assembly Commission copies of the documents, statements and information to which you intend to refer at the Hearing (44) and a list of the witnesses you intend to call to give evidence (45). The statement which you provide to the Assembly Commission should include an account of material events related to the case covering both the chronology and the location of incidents. This will provide a framework for the evidence which you will present.
6.13.1 An important step which you have to take before the Hearing is to appoint a spokesperson to present the case against the minister to the Assembly Commission at the Hearing. You will most likely choose one member of the Group to perform this task but you may instead appoint a separate spokesperson if you so wish. Prior to the Hearing date you must inform the Secretary of the Assembly Commission of the name and status of your spokesperson. (46) You must not appoint anyone to act as spokesperson who could not serve as a member of your Mandated Group for the reasons explained in Paragraph 4.1 of these Guidelines. (47)
6.13.2 When all the investigation work has been completed, the spokesperson should prepare for the Hearing itself by spending some time reading all the statements and papers, “mulling over” the salient facts and considering the sort of questions which s/he should put to the witnesses in evidence at the Hearing.
6.14 Sometimes there may seem at first sight to be a strong case, but when you investigate further it may become apparent to you that the evidence is unreliable or not substantial enough to support a case that the minister has committed a breach of discipline. In this event, you may give written notice to the Secretary of the Assembly Commission in advance of the Hearing that as a result of your investigation you do not intend to press the case against the minister. The Assembly Commission will then in consultation together and entirely at its own discretion decide whether the formal Hearing should nonetheless take place or whether it can be dispensed with. In the latter case the Assembly Commission’s ruling would be that no breach of discipline had occurred and that the minister’s name be retained on the Roll. (48)