A Permanent Judicial Commission (PJC) from Synod of the Northeast (SNE) ruled that the gracious dismissal policy from the Presbytery of New York City (PNYC) shall be set aside and have no force or effect.
The PJC ruling on a remedial complaint filed in the matter of Mildred McGee, et. al. vs.Presbytery of New York City was handed down Sept. 11, 2013.
The PJC upheld five of the seven counts in ruling for the complainant in the matter.
Ruling Elder Mildred McGee filed a remedial complaint with the stated clerk of SNE Feb. 13, 2013, alleging the presbytery’s action in adopting and implementing its gracious dismissal policy, approved Jan. 29, 2013, was irregular as constitutionally required, and requested a stay of enforcement.
The Executive Committee of the PJC answered the preliminary questions affirmatively and granted the stay. PNYC made a motion that the case be referred to the General Assembly PJC on April 29, 2013. The motion was denied on May 23, followed by a subsequent motion from the presbytery that the commission reconsider the decision.
Noting that it was “neither desirable, nor necessary to refer this case,” the commission again denied the motion on July 27.
The presbytery began drafting its dismissal policy early in 2012 after the 218th General Assembly (2008) urged presbyteries to do so in response to churches requesting dismissal from the Presbyterian Church (USA). The PNYC’s Board of Trustees commissioned appraisals from the firm Massey-Knakel regarding value of properties for all its congregations.
A draft of the policy and valuations were discussed on April 30, 2012, and a draft dated July 12, 2012 was included in the meeting packet for July 28 though never discussed on the floor. A Nov. 5 version was introduced for first reading at the Dec. 6, 2012, meeting. Following open hearings Dec. 13 and 20, the final version of the gracious dismissal policy was approved Jan. 29, 2013, by a 56-49 margin. Two days later, a church notified the presbytery that it sought dismissal to join the Evangelical Presbyterian Church (EPC).
Presbytery of New York City’s gracious dismissal policy allows sessions to request commencement of the dismissal process following a two-thirds majority vote. Following the request, the stated clerk calls one or more meetings between a Special Resolutions Committee of the presbytery and the session as well as the Board of Trustees during a 120-day period after receiving the request.
If the notice is not withdrawn by the end of that four-month period, a congregational meeting – needing a 50 percent quorum – is called, with dismissal approved if confirmed by a three-fourths majority vote of the congregation.
Financial arrangements include payment of any arrears in per capita, five years of per capita payments on a declining scale and compensation for church property of 10 percent of the assessed value that exceeds $1 million, with a cap on the compensation of $2 million.
According to the PJC documentation, there is no presbytery vote. If all conditions are met by the church seeking dismissal, the dismissal automatically takes place.
According to the ruling, the following counts were sustained by the PJC:
Count One: “Purporting to confer a unilateral right of a Presbyterian Church (USA) congregation to depart from the denomination.”
Since there is no presbytery vote, if all conditions are met by the church seeking dismissal, the dismissal automatically takes place. The PJC questioned how one would know if all conditions were met, and since nothing spelled out such reasoning to dismiss an entity, a suggestion of appointing an Administrative Commission to perform such a task was made.
Count Two: “The PNYC gracious dismissal policy does not give full effect to the trust clause.”
The dismissal policy approved by PNYC is a global settlement arrangement that grants approval to each future congregation seeking dismissal as long as the noted requirements are met, thus granting the presbytery no power to alter financial terms set out on the policy or tailor a dismissal to a particular situation. The synod PJC stated that in essence, it does not give proper consideration to the findings of Tom et. al. vs. The Presbytery of San Francisco that outlines the fiduciary responsibility of the presbytery to exercise due diligence regarding the value of property deemed to be held in trust for the use and benefit of the PCUSA.
The dismissal policy becomes self-executing and effective immediately upon action of the congregation rather than the presbytery, and it gives no further details of dismissal, also eliminating power of the presbytery to approve or disapprove a specific dismissal request.
Count Three: “Enacting/implementing a gracious dismissal policy that provides inadequate mechanisms for reconciliation has a chilling effect upon debate about our theological differences, and allows for dissolution on the basis of unexamined or pretextual theological differences or simple class differences.”
The PJC determined that the policy lacked guidance for discernment and acknowledged there should be actions taken by PNYC representatives to ensure that dismissal is the only viable remedy for theological differences.
Count Four: “Approval and implementation of this policy fails to safeguard the minority and account for schism.”
The dismissal policy was found to be unconstitutional because it does not allow a determination whether those who choose not to leave the PCUSA may retain the property. The PJC determined that the policy shows preference for the group voting in the majority to depart.
Count Seven: “Allowing dismissed congregations to retain their historical records.”
The complaint also alleged that the policy does not provide for appropriate disposition of historical records of the congregation. The Book of Order indicates that minutes and all other official records are the property of said councils or their legal successors. Thus when a council ceases to exist, such as a dismissed session, the records should become the property of the next highest council, in this case the presbytery.
The following counts were not sustained by the PJC:
Count Five: “Dismissal to denominations that are considered Reformed under the new policy may represent a subterfuge to attain independent status or represent incidences of steeplejacking.”
While noting that any dismissal procedure can develop into a way to attain independent status, the PJC did not find direct evidence that could sustain this count.
Count Six: “Failure to conduct business decently and in order.”
The PJC determined that the requirement that decisions should be reached in council by vote following an opportunity for discussion and discernment with a majority governing were met.
The presbytery argued that setting aside the policy would leave it unable to reach agreements on dismissals, resulting in costly litigation. However, the PJC determined that to be a far-fetched assessment, noting that dismissal agreements could be reached through the use of Administrative Commissions or a Special Resolutions Committee.
The Commission indicated a high level of mistrust and conflict in the life of the Presbytery of New York City and listened to testimony that those drafting the gracious dismissal policy felt it unwise to allow the presbytery to vote on dismissal congregations for fear that such a vote would present occasion for malice and sabotage.
The report indicates that one of the drafters of the dismissal process expressed in his testimony a hope that the policy would prevent expensive litigation and free the presbytery to devote its resources to mission work.
Other testimony expressed a lack of trust and openness in the drafters of the policy to concerns and questions during its development, observing that no one chose to avail themselves of two open hearings held regarding the subject.
In regard to testimony at the trial, the PJC noted, “… this commission observes with great sadness that (testimonies given) are evidence of the pain and broken relationships that continue to impede the mission and witness of the Presbytery of New York City.”