GC 2020 – Is the Protocol Legislation “Take it or Leave it?” A Proposed Amendment to section 2 of ¶2556

Frank Holbrook 2 GC 2020

Conventional wisdom appears to be that the proposed Protocol legislation is sacrosanct.  I’m not privy to the inner working of the “Group of 16”, i.e. the signatories to the Protocol; however, reading the actual Protocol leaves me with the opinion that the proposed Protocol Legislation may be amended.  How did I reach this conclusion?

The Starting Point

The signed Protocol memorializes two key points concerning the scope of the Protocol agreement vis-a-vis the proposed implementing legislation.  The key parts are set forth at Article I, paragraphs 4 and 5:

4.   The undersigned agree to use their best efforts to persuade any groups or organizations with which they are affiliated to support the legislation necessary to implement the Protocol. Consistent with the commitment in Article I, Paragraph 1, the undersigned will not participate in or support legislation or other efforts that are inconsistent with the principles and terms of the Protocol and the implementing legislation. They may support other efforts to the extent that all signatories to this Protocol agree that such efforts are consistent with the Protocol. (Emphasis supplied)

5.   The undersigned agree that each of the provisions of this Protocol is integrated with and integral to the whole and shall not be severable from the remainder of the Protocol. Further, should any provisions of the Protocol be deemed illegal by either the United Methodist Judicial Council or by civil courts, the entirety of this Protocol shall be considered null and void.

The question that arises under Article I paragraph 4 is as follows: Does the highlighted language mean the Group of 16 will not support legislation or other efforts (1) that are inconsistent with the principles and terms of the Protocol and the mutually agreed to implementing legislation submitted solely by the Group of 16 or does the highlighted protocol language mean the Group of 16 will not support legislation or other efforts (2) that are inconsistent with the principles and terms of the Protocol and the implementing legislation as it may be amended by other persons?  If the language is consistent with interpretation number (1) then the proposed legislation submitted on behalf of the Group of 16 is indeed “take it or leave it”.  If the implied language is consistent with interpretation number (2) then amendments may be proposed so long as they are consistent with the actual Protocol.  Since the Protocol is ultimately a contract existing between the Group of 16, the parties’ intent would control.  However, I suspect that this may a place where the signatories didn’t have a mutual understanding on this point when they signed the Protocol.

Of course, if I’m wrong and the Group of 16 had a mutual understanding then they may come forward and say the intent of the group was that the legislation proposed on behalf of the group could not be amended.  If the group indicates this was the agreed to path then the group has created a huge hurdle for obtaining approval of the legislation.  This is a very risky path politically because it makes the Group of 16 the sole arbiter of proposed amendments and strips General Conference delegates of their responsibility to consider, and possibly improve, the proposed legislation.  I think if the proposed amendment reaches the floor of General Conference any agreement to “take it or leave it” will be impossible for the Group of 16 to comply with.

Personally, I think the better reading is that the proposed legislation may be amended by proposals originating outside the group of 16 but any such amendment must be consistent with the overarching agreement embodied in the Protocol.

The Proposed Legislation is the Result of the Second Round of Negotiations

In this post  I made the following observation: “As a lawyer I used to tell clients to beware of the second round of negotiations, the negotiations that occur when the actually documents are drafted.  In my mind, a good lawyer should draft an agreement that faithfully carries out the parties’ intent.  But oftentimes the agreement requires decisions that the parties didn’t face and the draftsmen must hash out.  That’s when the second round of negotiations occurs, while the details of the deal are being fleshed out.” (Emphasis supplied)

Delegates should bear in mind that the proposed Protocol legislation goes far beyond requirements of the initial signed Protocol.  The proposed legislation represents additional compromises arrived at in the second round of negotiations by the persons acting on behalf of the Group of 16.  Some of the compromises reflect policy decisions while others reflect process decisions.

A Modest Proposal – a Proposed Amendment to ¶2556 2.

I’ve written previously concerning potential problems with ¶2556 2.  Those posts may be found here, here and here.  All of these posts ultimately relate to the proposed legislation implementing this part of Article III of the Protocol:

1.  To implement this Protocol, The United Methodist Church and its members will adopt the following process and timeline for accomplishing restructuring:

            a. Registration with the Secretary of the Council of Bishops of intent to form a new Methodist denomination pursuant to this Protocol must occur not later than May 15, 2021.

Article III 1. a. seems to be a simple requirement but it was at best a placeholder for further negotiations.

Even before the proposed legislation was submitted for public consideration, in early January I noted the open issues concerning the role of the Council of Bishops under the Protocol in this post which made the following observations: “Putting aside questions such as what does the Protocol mean when it says ‘Registration with the Secretary of the Council of Bishops’ the real unanswered question is what is the role of the Council of Bishops?  Is the ‘registration’ merely a ministerial act or does the Council of Bishops provide a gate keeping role?  What requirements may the Council of Bishops impose on registration?  May the Council of Bishops reject a registration?  Who may file a registration ? May I, Frank Holbrook a United Methodist Church layperson register to start a new denomination?  May one of the many existing Wesleyan denominations or churches register?  What happens after registration?  Does the Council of Bishops take any action after registration?  If so, what and how long do they have to act?  What happens if they don’t act?”

After reviewing the proposed legislation I pointed out that the proposed legislation resulting for the second round of negotiations goes well beyond “Registration with the Council of Bishops” and imposes a number of requirements for registration.  I concluded that the proposed legislation, establishes an adjudicatory role for the Council of Bishops. The council must decide whether a new Methodist denomination is satisfactory to the Council of Bishops.  That post, entitled GC 2020: The Council of Bishop’s Role Under the Protocol can be found here.

The proposed legislation found at ¶2556 2 creates the processes of “Conditional Qualification” and “Qualification” by the Council of Bishops.  While such processes may or may not be wise, the starting point for analysis is to recognize that the proposed legislation reflects policy decisions made in the second round of negotiations; the Protocol itself doesn’t require the Council of Bishops to conditionally qualify or qualify the new denomination. The Protocol merely requires “registration”.

To meet the adjudicatory task of determining “Conditional Qualification” assigned to the Council of Bishops a new Methodist Denomination must (1) file a petition on or before May 15, 2021, (2) adopt a legal structure satisfactory to the Council of Bishops, (3) adopt a common core, (4) adopt an ecclesiastical structure satisfactory to the Council of Bishops and (5) have written expressions of intent to join the new Methodist Denomination signed by 100 Local Churches.  In my estimation, some of these requirements  may be good policy choices, but some are extremely burdensome and actually frustrate the objective of the protocol.   Moreover, to the extent the Council of Bishops appears to be charged with subjective evaluation, Conditional Qualification is no simple task for a potential New Methodist Denomination. Consequently, I am arguing that a proposed amendment that actually is more consistent with the Protocol should be adopted and should make the role of the Council of Bishops merely ministerial.

The Proposed Amendment

It’s always easy to sit back and criticize the work of others, but if one merely criticizes without offering a proposed solution such action is purely destructive to the process.  Assuming the Protocol passes, I earnestly desire that the legislation implementing the Protocol creates an efficient and workable process for separation.  With those thoughts in mind I drafted, and submit for public consideration, the following proposed amendment to ¶2556 2.  The proposed amendment would strike the current language of ¶2556 2 and substitute the following language:

Proposed Amendment to ¶2556 2.

2.  New Methodist Denominations—The United Methodist Church hereby creates a pathway for the development of New Methodist Denominations as set forth below. The United Methodist Church shall continue as the denomination for all central conferences, annual conferences, and local churches that do not choose to separate and form or join a New Methodist Denomination.

a) Conditional Qualification—The United Methodist Council of Bishops shall conditionally recognize as a New Methodist Denomination, with which local churches, annual conferences or central conferences may opt (by vote or default) to align. Any proposed New Methodist Denomination may be Conditionally Qualified by meeting all of the following criteria:

     (1) The leadership group forming the new denomination must register their intent to form a New Methodist Denomination by submitting a Petition of Intent with the Secretary of the Council of Bishops by May 15, 2021.

     (2) The Petition of Intent must propose a distinct legal existence, reflecting its polity.

     (3) The Petition of Intent must propose to follow doctrinal standards consistent with the Articles of Religion of The Methodist Church, the Confession of Faith of the Evangelical United Brethren Church, and the General Rules of the Methodist Church, as set out in ¶ 104 of the Book of Discipline.

     (4) The Petition of Intent must propose a definite and distinct ecclesiastical governance structure.

Unless within 30 days of receipt of the petition by the Executive Secretary, the Council of Bishops determines and states, in writing, based solely upon the face of the Petition of Intent, that the petition is deficient by its failure to meet one or more of the forgoing requirements then the petition shall be deemed approved.  No leadership group shall be barred from filing an amended or additional timely Petition of Intent based upon the fact that an earlier petition was denied as deficient; petitions may be amended to cure deficiencies identified by the Council of Bishops with such amendment relating back to the original filing date of the petition. An Amended Petition of Intent shall be acted upon by the Council of Bishops within 30 days of submission and shall be subject to the same requirements as the original petition.   Any Petition of Intent or Amended Petition of Intent timely submitted and not acted upon by the Council of Bishops by June 15, 2021 shall be deemed approved. An entity meeting the qualification requirements receives “Conditional Qualification”.   

b) Access and authority to vote—Any Conditionally Qualified New Methodist Denomination shall be allowed to share information about the proposed New Methodist Denomination with central conferences, annual conferences, Local Churches and individual members of such bodies. Such information may shared directly without the requirement that such information be approved by the United Methodist Church or any constituent body of the United Methodist Church. Upon request by a Conditionally Qualified New Methodist Denomination, United Methodist bishops, clergy, and other leaders shall forward pertinent information to central conference members, annual conference members, clergy, and local church leaders, and they shall not hinder representatives of the Conditionally Qualified  New Methodist Denominations from meeting with interested parties. Meetings that take place on the property of a local church shall abide by the provisions of the Book of Discipline regarding use of local church property, including but not limited to ¶ 2533 and the consent of the appointed clergy.  The conditional qualification in ¶ 2556.2a provides recognition that allows a central conference, annual conference or Local Church the right to vote on the question of joining the Conditionally Qualified New Methodist Denomination.

c) Qualification—The qualification provided in ¶ 2556.2c is necessary in order to form separation and ecumenical agreements. As soon as possible a Conditionally Qualified New Methodist Denomination shall submit the following information:

     (1) The Conditionally Qualified New Methodist Denomination shall submit to the General Council on Finance and Administration information sufficient for it to verify that the New Methodist Denomination has a distinct legal existence sufficient to allow it to enter into Separation and Ecumenical Agreements and that the proposed signers of such agreements have the authority to bind the Conditionally Qualified New Methodist Denomination. Following such submission, General Council on Finance and Administration shall have sixty (60) days to review the submitted information and determine that the requirements of this sub-paragraph have not been met.  Unless General Council on Finance and Administration determines, in a writing that includes its supporting reasoning, that the information provided to it is inadequate to meet the criteria of this sub-paragraph, this criteria shall be deemed satisfied.  A Conditional Qualified New Methodist Denomination shall have the right to cure any deficiencies identified by the General Council on Finance and Administration.

     (2) The Conditionally Qualified New Methodist Denomination must submit information to Executive Secretary of the the Council of Bishops demonstrating that it will

      (a) follow doctrinal standards consistent with the Articles of Religion of The Methodist Church, the Confession of Faith of the Evangelical United Brethren Church, and the General Rules of the Methodist Church, as set out in ¶ 104 of the Book of Discipline;

     (b)  have a definite and distinct ecclesiastical governance structure; and

     (c) have a minimum of 100 United Methodist local churches, regardless of jurisdiction or geography, inside or outside the United States, that have voted under this paragraph to join the Conditionally Qualified New Methodist Denomination.  For purposes of determining whether criteria (c) has been met, the Conditionally Qualified  New Methodist Denomination may include new local churches formed by members who have left United Methodist local churches.  

     (3) Upon review of the information required for Conditional Qualification in ¶ 2556.2a, along with the documentation required under ¶2556 2c, the United Methodist Council of Bishops shall, if all requirements have been met, certify compliance with the requirements and recognize the Conditionally Qualified New Methodist Denomination as a New Methodist Denomination, for all purposes under ¶ 2556.  It is expressly recognized that as to requirements of ¶2556 2c1) and 2556 2c2)(b) a Conditionally Qualified New Methodist Denomination shall have the right to adopt of its own standards and such standards are not subject to modification or rejection by the Council of Bishops based upon any subjective criteria. Such certification shall be made within 30 days of a Conditionally Qualified New Methodist Denomination submitting the information required under ¶2556 2c. unless the Council of Bishops determines and states, in writing, based solely upon the face of the documentation submitted to the Executive Secretary under this paragraph, that the documentation is deficient by its failure to meet one or more of the requirements of ¶2556 c.  It is the express determination of the General Conference that such New Methodist Denomination meeting the requirements of ¶2556 2. share common religious bonds and convictions with The United Methodist Church.

    (4) Notwithstanding anything contained in ¶2556 2, whether the New Methodist Denomination or its constituent entities, or both, is able to assume pension liabilities under a separate pension plan administered by the General Board of Pension and Health Benefits (also called Wespath), shall be determined under ¶ 2556.8c. If these entities are not able to assume pension liabilities under the terms of ¶ 2556.8c, the annual conferences and local churches in the United States aligning with the New Methodist Denomination are subject to the terms of ¶ 2556.8c(4). 

A downloadable PDF of the proposed amendment is here.

What are the reasons for the proposed amendment?

First, the proposed amendment makes clear that the Council of Bishop’s role is ministerial.  The Council of Bishops is prohibited from exercising discretion in determining whether qualifications are met.  The qualifications are plain and can be verified to exist without an investigation by the Council of Bishops.  The ministerial role of the council is made clear by the requirement that the Petition of Intent and the documentation in support of Qualification be judged “on its face”.  In addition, the following express language leaves no doubt: “It is expressly recognized that as to requirements of ¶2556 2c1) and 2556 2c2)(b) a Conditionally Qualified New Methodist Denomination shall have the right to adopt of its own standards and such standards are not subject to modification or rejection by the Council of Bishops based upon any subjective criteria.”

Second, strict time limits are imposed on action by the Council of Bishops.  The Council of Bishops is free to set up any structure to perform their ministerial work, but if they do not act quickly to set up such a structure the Petition of intent will be deemed approved.  If the Protocol is intended to allow central conferences, annual conferences and Local Churches to vote quickly then the Council of Bishops should be required to take prompt action.  To do otherwise it to make an illusory promise of ability to take a prompt vote when the reality is that the Council of Bishops have the ultimate unfettered right to decide when and if a new Methodist Denomination will be able to seek a vote.  Consider the potential causes for delay using the proposed language as written.  What if the Council of Bishops decide they will add this issue to the agenda for their next scheduled meeting after the conclusion of General Conference, which I believe is November 1-4 2020?  Such action wouldn’t be prohibited under the proposed legislation.  What if the Council of Bishops concludes that this issue is so important to the future of the church that it shouldn’t be considered until all the new Bishops are elected in 2020?  That also wouldn’t be prohibited under the proposed legislation.  Others may think of other reasons to establish various dates for the COuncil of Bishops to act.

Third, the 100 Local Church requirement is deleted from “Conditional Qualification” but is still required for “Qualification”.  I agree that a new Methodist Denomination should have a certain critical mass and have no problem with the group agreeing, as a matter of policy, to the 100 number (I set the number at 50 in the Plain Grace Plan).  However, in the proposed amendment the time to make that determination is at the end of the voting process, not as a requirement imposed before the start of the voting process.  As written the 100 Local Church requirement for Conditional Qualification is unduly cumbersome and creates a problem variously described as “chicken and egg” or “circular logic”.  The proposed amendment eliminates this problem.

Fourth, the questions of determining whether the New Denomination’s legal structure and authority to execute agreements are legally are adequate are delegated to the General Council on Finance and Administration.  In my opinion, this is the most appropriate entity for deciding the legal issues on behalf of the United Methodist Church.  In addition, GCFA is required to complete its review within 60 days of receiving the information.  Bear in mind that under the proposed amendment a new Methodist Denomination may submit this information as soon as it believes it has met the requirement.  In all likelihood, GCFA will have the necessary information and complete its review well before documents concerning the other Qualification requirements are delivered to the Council of Bishops.

Fifth, a Some unnecessary verbiage has either been removed since it (1) appears to add nothing of substance and creates additional complexity or (2) should be moved to a more relevant section of the legislation.  I offer the following example of such language that was deleted form the first full paragraph of ¶2556 2: “New Methodist Denominations may be formed by the process set forth in this paragraph, including any Traditionalist Methodist Denomination that maintains the current stance of the Book of Discipline regarding the definition of marriage and ordination standards related to lesbian, gay, bisexual, transgender, and queer persons. A motion to separate from The United Methodist Church, in order to align with a New Methodist Denomination, shall specify the new denomination to be aligned with, the proposed Separation Date, and name the persons or body of the annual conference authorized to enter into a Separation Agreement on its behalf.”  The first deleted sentence merely repeats language found in the immediately preceding sentence of paragraph  ¶2556 2. or duplicates langauge found  elsewhere in the proposed legislation.  It adds no real substance to the legislation; it may be what lawyers sometimes refer to as the belt and suspenders approach.  The second deleted sentence would appear to be more appropriate to include in the sections of the proposed legislation addressing the post-Conditional Qualification voting process; if the deleted language in the second sentence is intended to apply to a motion to separate for the 100 Local Church requirement of Conditional Qualification then the deleted language further confuses the process and makes the Conditional Qualification requirement impossible to satisfy.  How can a Local Church specify the new Methodist Denomination when the new denomination hasn’t been Qualified?

Neither the five listed reasons for the proposed amendment set forth above nor the discussion of the proposed amendment is intended to be exhaustive.   Nonetheless, I believe the listed reasons and discussion gives the general sense of the approach taken in the proposed amendment.  It is intended to be an amendment that is consistent with the written terms of the signed Protocol and also consistent with what I perceive to be the the main objective of the protocol: “to multiply the Methodist mission in the world by restructuring the Church through respectful and dignified separation”.

My proposed amendment is not “take it or leave it”.  I believe it provides a good starting point for a better piece of legislation and I invite comments and critiques.  The only word I would say about comments is please apply the same standard that I have applied to myself: “It’s always easy to sit back and criticize the work of others, but if one merely criticizes without offering a proposed solution such action is purely destructive to the process.”

Thanks for Reading

Thanks for reading a very lengthy post and thoughtfully considering the proposed amendment.  I recently had someone observe: “Frank, if you think the average layperson is tracking with this cascade of ‘plans’ then you, sir, will be shocked when more vote with their feet in the days ahead, as many are already voting with their withheld donations.”  I don’t think I’ve ever suggested that the average lay person is tracking the “Cascade of ‘plans’” and to suggest that I believe that to be the case is erroneous and misleading.  I know, and wrote early on, that many members, including average lay persons, are already voting with their feet or by withholding their tithes and offerings.

On the other hand, I’ve also been criticized for writing posts that are too long or too in-depth.  I think that opinion is more grounded in fact but I disagree with the conclusion.  Good points are often made in tweets of 240 characters or posts of 1,000 words; but I try not to artificially constrain thoughts on a topic by having a self imposed word limit.  I believe that the persons reading these posts are more invested in analysis than the average lay person.  That’s my target audience.  Consequently, when describing my work I sometimes describe my posts as “wonky”; if you’ve read to this point I consider you a fellow wonk.  I mean that as a compliment.  I also consider you as someone who will tolerate spelling, grammar and proofreading errors by my huge staff of employees and volunteers (me).

Thanks for those who have extended me grace by reading, thinking about and sharing my posts.  Thanks for those who tolerate proofing, spelling and grammatical errors.   I appreciate your kind and generous spirit.

Keep praying for GC 2020.