Presbytery dismissal policies: The good, the bad and the ugly
By Lloyd Lunceford, The Layman, September 30, 2011
In the aftermath of the passage of Amendment 10A and the removal of the “fidelity/chastity” ordination requirement from the Book of Order, increasing numbers of Presbyterian congregations are giving renewed attention to ways in which they can leave the PCUSA. Alternatively, many congregations are exploring some formalized way to become distinct from the PCUSA even while still being affiliated with it. The single largest gathering of Presbyterians in the world this year was devoted in substantial part to this purpose. One developing, common response following the passage of 10A is ecclesiastical in nature and has been largely clergy-driven. Congregations consider whether to ask their presbytery for “dismissal” (with property), by following a “gracious dismissal policy” adopted by the local presbytery. If the local presbytery has not yet adopted a dismissal policy, well-intentioned pastors are trying to shape fair dismissal policies for adoption by their local presbyteries.
A presbytery’s dismissal process may not be a bad route to take if the policy is truly gracious, but that can be a big “if.” When these policies are biased, unfair and anything but gracious, readers should know that a presbytery-adopted dismissal policy is not the only path to the exit door. The purpose of this commentary is to point out some of the unfair or biased provisions in dismissal policies to be on the lookout for, and to urge extreme caution when considering whether to select a presbytery’s “dismissal” policy as the chosen means by which to leave the PCUSA, if departure is what the session and congregation conclude the Lord is leading them to do.
The Book of Order grants authority to presbyteries to “divide, dismiss or dissolve” particular churches. (More about what that does or doesn’t mean later.) The Book of Order is silent though concerning what procedures to follow when considering, for example, whether to dismiss the church with or without its property. To fill this void, approximately two dozen of the PCUSA’s 173 presbyteries have thus far either adopted a dismissal policy or are about to – and more are expected to follow suit. As I have previously written in almost all cases presbytery-adopted dismissal policies pose great risk of harm to local churches.
Advocates of presbytery-adopted dismissal policies say they are means by which God’s will can be discerned. The presbytery committees appointed under such policies to dialogue with congregational representatives are sometimes called “discernment teams.” It is telling though that in almost every case these policies make no mention of studying the Scriptures or engaging in prayer. One might reasonably ask how God’s will can be expected to be discerned without doing either. In truth, almost all dismissal policies (with one or two exceptions), have little to do with discerning God’s will. Rather, they are the creation of presbyteries that have a financial stake in the outcome. Not surprisingly then, the contents of these policies are therefore something less than impartial, fair or balanced. They function as a gauntlet through which the presbyteries urge local churches to run, and in operation they are designed to discourage or prevent local churches from leaving the PCUSA.
Most dismissal policies allow the presbytery through administrative commissions to take over local churches without ordinary due process. Other one-sided features include long, built-in delays, extraordinarily high quorum requirements and sharply skewed payment provisions.
To illustrate, notice of a congregational meeting ordinarily has only required notice from the pulpit on two successive Sundays, after which a valid congregational meeting can be held upon the convening of a quorum of 10 percent of the members on the active rolls. (The Book of Order’s longtime quorum requirement of 10 percent was recently changed under the new Form of Government to now be 50.1 percent, unless the congregation adopts a different quorum requirement by local rule). Under many of the new dismissal policies, however, the notice requirements are increased to 30 days and require mailing to each household or member rather than simple pulpit announcements. This by itself is not objectionable in light of the importance of the occasion, but many of the dismissal policies that have been adopted thus far around the country often couple this increased notice requirement with an extraordinarily high quorum requirement of 60 percent or more of the members on the active roll. This coupling makes no sense, and is correctly called unreasonable, when the underlying purpose of notice requirements and quorum requirements are considered.
The requirement of giving notice is of course intended to provide a fair opportunity for all those who would like to attend the meeting to do so. As for the requirement of a quorum, Robert’s Rules of Order explains:
“To accomplish their work, voluntary societies that have enrolled membership generally need a provision in their bylaws establishing a relatively small quorum – considerably less than a majority of all the members. In most such organizations, it is rarely possible to obtain the attendance of a majority of the members at a meeting. Sometimes the specification of a quorum is based on a percentage of the membership … The quorum should be as large a number of members as can reasonably be depended on to be present at any meeting, except in very bad weather or other exceptionally unfavorable conditions.” Robert’s Rules of Order, Tenth Edition, Section 40.
Given the typical disparity between the number of members on the active rolls and average weekly worship attendance, and the usual disinterest most members have in attending church business meetings, the PCUSA quorum requirement has historically been only 10 percent. Even under the “Articles of Agreement” that were in effect temporarily during the time period surrounding the merger of the Presbyterian Church in the United States and the United Presbyterian Church in the United States of America, the quorum requirement for a special congregational meeting to vote on whether to seek dismissal was only 33 percent of the active confirmed members in good and regular standing. Given the significance of the occasion, an increased notice requirement is certainly justified, and 30 days certainly gives anyone who is interested in attending the meeting a reasonable opportunity to attend. Coupling this with a quorum requirement of 50 percent, 60 percent or higher, though, with no exceptions permitted for larger churches or special circumstances, is unwarranted and can only be for the purpose of chilling the chances for a valid meeting being held.
It is also interesting to note that under the “Articles of Agreement” a church would automatically be dismissed with all of its property if, after convening with a 33 percent quorum, 66 percent of those present and voting vote to request dismissal. In sharp contrast to this, under many of the policies recently adopted by PCUSA presbyteries dismissal with property without payment is only guaranteed if 80 percent, 90 percent or more vote to request dismissal. And under some policies, if an ambiguous “significant number” of members wish to remain within the PCUSA, the financial conditions that have to be met in order for the majority to be dismissed with the local property is left entirely up in the air, to be decided later – even when the “significant number” in the minority is as little as 5 percent or less.
Under one policy th
at was examined, if 90 percent of the congregation voted to request dismissal it would be dismissed with all of the local property without any payment required but if 85 percent voted to request dismissal the presbytery would only dismiss the congregation with its property upon payment of 15 percent of the assigned value of the property. If the local property was worth $2,000,000.00, for example, the payment that would be required would be $300,000.00 – even under facts where there was no trust in place that the law recognized as valid, the local church had paid everything for all of the land and buildings, and the local church had covered all maintenance and insurance costs for 50 or 100 years without any financial contribution or guarantees from the presbytery, and 85 percent of the congregation voted to leave the PCUSA.
If a presbytery is unwilling to either adopt a fair dismissal policy, churches that are located in legal jurisdictions that apply the ordinary rules of property law and that have favorable property-related facts in their deeds and local articles of incorporation have an alternative to subjecting themselves to the stacked deck of a presbytery’s skewed dismissal policy. Although the Book of Order has an ecclesiastical provision that says that only presbyteries have authority to divide, dismiss or dissolve particular churches, this provision cannot abridge the fundamental legal right, guaranteed by state and federal constitutions, of local congregations to act on their own to terminate their voluntary affiliation with the PCUSA. In order to be compatible with state constitutions and with the constitution of the United States of America, the Book of Order provision that grants authority to the presbytery to dismiss can only be properly interpreted as a limitation on other PCUSA governing bodies (sessions, synods and General Assemblies).
In other words, as between the four categories of PCUSA governing bodies, only presbyteries have authority to either wave the asserted trust or to try and seek its enforcement. But congregations still retain authority to act for themselves and vote to leave the PCUSA by exercising their constitutionally guaranteed, First Amendment rights of assembly and free exercise of religion. The courts have made it very clear that whatever authority a denomination may have over affiliated local churches is derived solely from the consent of the governed. Any other alternative would be an ecclesiastical form of indentured servitude. “Dismissal” is only an ecclesiastical or ceremonial act by a presbytery, upon a request of a congregation. In contrast, “disaffiliation” (a term not found in the Book of Order but which nevertheless describes an action taken pursuant to state and federal, constitutionally guaranteed rights) is a legally binding act by a congregation (effective upon a passing vote at a properly noticed and convened congregational meeting) irrespective of what the presbytery chooses to ecclesiastically do or not do.
Voting to disaffiliate terminates the congregation’s voluntary association with the denomination. By itself, it does not resolve property issues. It does allow, though, for the property rights of the parties to be determined by an impartial, neutral civil court which, unlike the presbytery, does not have a financial interest in the outcome. Of course, litigation should be avoided when possible, but the adoption of onerous, unbalanced dismissal policies leaves local churches with few alternatives. Well-meaning pastors who push their congregations into participating in an unfair presbytery dismissal process, under the belief that such participation is necessary in order to be a good presbyter, risk inadvertently delivering their flocks to the wolves.
Before embarking on any presbytery-adopted dismissal process, local churches would do well to first obtain an independent evaluation of the potential pitfalls that may lurk in the policy’s text. They would also do well to obtain an objective legal analysis of the property-related facts and applicable law in order to determine the strength or weakness of the local church’s claim to property ownership unfettered by an enforceable trust attaching to the property.
Lunceford, of Taylor, Porter, Brooks & Phillips, LLP, has represented the property interests of several Louisiana congregations, and has consulted or been retained by Presbyterian congregations in several other states. He is editor of The Guide to Church Property Law, second edition, published by Reformation Press. He is a member of the Presbyterian Lay Committee’s board of directors.