Thursday, April 07, 2011

The ADV Proposed Canons: An Analysis

By Robin G. Jordan

In this article I examine the ADV proposed canons. Due to space and time constraints I am not able to do as thorough analysis of them as I might wish nor am I able to offer many specific proposals for their alteration and amendment. I have for the most part focused upon what I consider some of the most problematic provisions of the canons.

Title I - Organization and Administration of the Diocese and Congregations

Title I.1.5 - Article IV. 7 recognizes the right of each ACNA judicatory to establish and maintain its own governance, constitution and canons not inconsistent with the provisions of the Constitution and Canons of this Province. It contains no reference to Standing Committees.

Title I.5.1 of the ACNA canons states:

A Diocese is a grouping of congregations gathered for mission under the oversight of a Bishop. A Diocese is composed of a minimum of twelve (12) congregations with an ASA of at least fifty (50) each and a collective ASA of at least one thousand (1,000). The Council may modify these requirements on a case-by-case basis by the affirmative vote of two-thirds of its members.

The drafters of the proposed canons may have confused it with Title I.5.2 of the ACNA canons, which reiterates the provisions of Article IV.7 to which it adds the qualifier, “except as hereinafter set forth.” It goes on to recognize “the structures of pre-existing dioceses.” It contains no reference to Standing Committees. The drafters of the proposed canons may have had in mind the phrase “not inconsistent with the provisions of the Constitution and Canons of this Province….” It is questionable whether such a phrase in the ACNA constitution and canons may be translated as “provided by…” as it is in Title I.1.5. It raises questions regarding how the drafters of the proposed canons are interpreting the provincial constitution and canons.

Title I.5.3 of the ACNA canons states:

The governing body of each Diocese shall establish a Standing Committee or its equivalent. This committee shall be a council of advice to the Bishop and the Ecclesiastical Authority of the Diocese in the absence of a Bishop authorized to act. The other rights and duties of the committee shall be established by diocesan canon.

Except for prescribing that the Standing Committee of a Diocese should be a council of advice to its Bishop and the Ecclesiastical Authority of the Diocese “in absence of a Bishop authorized to act,” Title I.5.3 says nothing beyond that “the other rights and duties” of the Standing Committee are to be prescribed by the canons of the Diocese.

Title I.1.7 – This provision make a distinction between that ecclesiastical and non-ecclesiastic executive authority of a diocese that I have not seen in any of the numerous governing documents that I have examined. It also grossly misinterprets Article VII of the ACNA constitution. Article VII.10 states:

The Provincial Council shall have an Executive Committee, whose membership and duties may be established by canon. Initially the Executive Committee shall be composed of the members of the Common Cause Executive Committee, as constituted under the Common Cause Articles.

Article VII.10 is not applicable to dioceses by the wildest stretch of the imagination, which is also the case in regards to the other provisions of Article VII. The claim that Article VII applies to dioceses made in Title I.1.7 raises serious questions about the accuracy of the proposed canons’ drafters’ interpretation of the ACNA constitution and canons elsewhere in the proposed canons.

Title I.1.8 – Article XI establishes the Provincial Tribunal, the jurisdiction of which is “to determine matters in dispute arising from the Constitution and Canons of the Province and such other matters as may be authorized by canon.” It contains no reference to the vesting of the judicial authority of the diocese in an ecclesiastical trial court.

The Constitutional Convention will need to closely examine all references to the ACNA constitution and canons and the diocesan constitution in the proposed canons to determine if they are actually germane and applicable. A number of such references to this point resemble what in Bible interpretation is referred to as “proof-texting.” In proof-texting a text is cited as supporting a particular assertion. This text, however, when closely examined bears no actual relationship to the assertion. Whatever relationship it has to the text is purely in the imagination of the person citing it. Where another governing document is cited in a governing document it needs to have a clear and discernable bearing upon the matter in connection with which it is cited. Its relationship to that matter should be immediately apparent to the reader.

Title I.1.9 – The proposed canons in actuality give member congregations and missions extremely limited choice in how they may organize themselves.

Title I.2.1 – Missing from the powers and duties of the Synod is the very important powers of nominating the members of the Standing Committee, confirming the appointment of non-elected diocesan officers, conducting investigations, and to this end, requiring the appearance of diocesan officers and functionaries, the taking of oaths, the giving of testimony, and the production of documents, suspending and removing members of the Standing Committee and diocesan officers, and determining the composition and manner of appointment or election of its own committees, choosing its own officers, and determining its own rules of order. Without these important powers the Synod is little more than a rubber stamp for the Bishop and the Standing Committee.

Title I.2.4.a – This subsection makes reference to special meetings of the Synod but contains no provisions regarding how special meetings of the Synod are to be called and what notice is to be given.

Title I.2.4.b – This subsection does not make provision for the determination of the date, time, and place of a meeting of the Synod in the event of the death, permanent disability, suspension, or removal of the Bishop and similar circumstances.

Title I.2.5 – If the Standing Committee is to act as the provisional Executive Committee until the Executive Committee is elected and organized, this section needs to clearly state it. As the section is presently worded, it allows the Standing Committee to usurp the role of the Executive Committee. As we will see, the proposed canons give too much authority to the Standing Committee as it is. They would replicate on a diocesan level the kind of centralized organization seen at the provincial level of the ACNA.

Title I.2.6 – This section gives the Bishop too much control over the Committees of the Synod. It enables him to select the chairmen of Synod Committees, to pack the Synod Committees with his cronies and supporters, and in this manner control what happens in the Synod Committees. The Bishop is not required to consult with the Synod regarding his committee appointments or to obtain its approval for these appointments—important safeguards against abuses of episcopal authority. This is something that I might expect to see in The Episcopal Church. If adopted, this section would replicate in the diocese one of the worst features of diocesan government in TEC.

The Synod should be able to determine in the canon, standing rule, or resolution authorizing a committee the manner of its appointment. In some cases the Synod might wish to appoint a chairman and give him authority to select the other members of the committee. In some cases the synod might wish to name the chairman and the members of the committee in the resolution authorizing the committee. How the committee is appointed or elected should be determined by the type of committee and its function or functions. For example, if a committee was authorized by the Synod to investigate into financial matters that might affect the Bishop or those close to him or to inquire into a matter in which the Bishop had a vested interest and report to the Synod on such matter, it would not be appropriate for the Bishop to appoint such a committee. The Synod should be the final judge on the manner in which its committees are appointed or elected. This does not exclude authorizing the Bishop to appoint a committee but it makes that particular method of appointment one of a number of methods of appointment from which the Synod may choose and not the exclusive appointment method.

Title I.2.6 might be amended as follows:

There may be a Synod Committee on Resolutions, Nominations, and such other committees as the Bishop or the Synod may deem necessary. All Synod committee members shall be appointed by the Bishop except where otherwise provided in the canon, standing rule, or resolution establishing the committee and a majority of the committee members shall be current members of the Synod.

Title I.2.8 – The Synod should be able to make its own standing rules for the conduct of business. Members of Synod should not be presented with a different set of rules at each meeting of the Synod, drawn up by the Bishop and the Chancellor for that meeting. This section gives the Bishop too much control over how the Synod conducts its business. He would be able to alter the Rules of Order whenever it suited his purposes to do so. This is also the kind of arrangement that I would expect to find in The Episcopal Church.

Title I.2.10 – This section gives the Bishop and the Standing Committee control over the choice of delegates to the Provincial Council and the Provincial Assembly. There is nothing in this section that prevents the Bishop and the Standing Committee from nominating only one candidate for each vacant position and leaving the Synod no choice but to elect that candidate. Even if the Bishop and the Standing Committee presented a slate of two or three candidates for each vacant position, they would nevertheless be determining who was elected. There should be a separate nominating body to prepare the list of nominees.

Title I.2.11 – This section should be omitted or a section dividing the diocese into two or more regions or districts and providing for their administration should be substituted in its place. The subdivision of the diocese into regions or districts is a matter upon which the Synod as well as the Bishop should be free to initiate appropriate action such as a task force to study the matter and to make recommendations.

Title I.3.1.a.1 – There should be a provision that the elected members of the Standing Committee should as far as may be possible represent the geographic areas in which the Diocese operates. Otherwise, as the proposed canons are presently written, they may represent only one geographic area of the diocese, leaving the other geographic areas unrepresented or underrepresented.

Title I.3.2.e – This subsection makes the Standing Committee the nominating body for candidates “for all offices filled by the Synod except for nominations by the Committee on Nominations for Bishop.” This means that the Standing Committee is a self-perpetuating body, choosing new members to replace outgoing members. Nothing in the proposed canons require the Standing Committee to nominate more than one candidate for a vacant office. Even if the proposed canons were amended to require the nomination of two or more candidates for a vacant office, the Standing Committee would be selecting its own members with the Synod only ratifying its choice. Once a faction established itself in the office of Bishop and in the Standing Committee, it could maintain itself in power for an indefinite period.

The drafters of the proposed canons have not learned from their experiences in TEC. They are replicating TEC in the ACNA. There should be a separate nominating body for members of the Standing Committee, as in the case of delegates to the Provincial Assembly and the Provincial Council. Nominations should also be permissible from the floor of the Synod.

This subsection as it is presently worded also discourages the establishment and appointment or election of a Committee on Nominations for Bishop and encourages over-reliance upon the Standing Committee as a nominating body. It enables the Standing Committee to usurp the role of the Committee on Nominations for Bishop.

Title I.3.2.g - The bishop’s assignment of other duties and responsibilities to the Standing Committee should be subject to the approval of the Synod, especially if the Standing Committee is acting as the Executive Committee of the Synod.

Title I.5.3.d – See comments related to Title I 3.2(e). Title I.5.3.d. should be omitted.

Title I.6.2.c – Nowhere in the ACNA canons does it say that a congregation or mission of another denomination seeking to unite with a diocese or other judicatory of the ACNA must make application to the Executive Committee of the ACNA for admission as “a member of the Province.” If this represents an alteration in the ACNA canons, why has it not been made public? This section evidences the tendency toward centralization of authority in the province and weakening of the autonomy of the diocese that is exhibited in the ADV proposed constitution.

Title I.6.3.a – A congregation or mission should have the option of determining how it nominates candidates for its vestry in its own constitution and bylaws. Placing the selection of candidates for the vestry in the hands of the rector and the vestry is the sort of thing that I would expect to find in the canons of a TEC diocese. It turns the vestry into a self-perpetuating body and vestry elections into a farce.

Tile I.6.3.b.ii - A congregation or mission should have the option of determining the number of its wardens and the mode of their election. The ADV proposed canons are looking more and more like the canons of a TEC diocese.

Title I.6.3.c.i – The ACNA is not yet a Province of the Anglican Communion. This section would exclude members of the Reformed Episcopal Church from vestries in the diocese since they have not been received or confirmed by “a Bishop of a Province of the Anglican Communion.”

The Constitutional Convention should carefully weigh whether it wishes to exclude spouses and other immediate family members of vestry members and paid staff of the congregation and their spouses and other immediate family members from vestries. This subsection would bar some very qualified people from serving on the vestry due to their relationship to a vestry or staff member.

Title I.6.3.c.iv – The vestry oath in this section would exclude conservative evangelicals like myself from serving on vestries in the diocese. It would also exclude the Anglican Reformers. It is also noteworthy that at this present stage to my knowledge the ACNA has not adopted any “forms of worship.”

Title – A congregation or mission should have the option of calling a special congregational meeting to fill a vacancy on the vestry especially if the vacancy occurs at the beginning of a term of office.

Title I.6.3.e – A congregation or mission should have the option of determining the manner of the appointment or election of its treasurer in its constitution and bylaws. The proposed canons require too greater uniformity of organization or structure in the congregations and missions of the diocese. They severely restrict local autonomy in a number of areas. They belie Title I.1.9.

Title I. 6.3.i.i(a) – This section excludes conservative evangelicals like myself from membership in congregations and missions of the diocese in requiring the public affirmation of the ACNA Fundamental Declarations.

Title I. 6.3.j – The title of this section makes reference to “Sacramental Registers” and then lists confirmations and weddings among the official acts that must be recorded in such registers. It infers that confirmation and weddings are sacraments in contradiction to the doctrine of the Thirty-Nine Articles and the position of authentic historic Anglicanism on the sacraments.

Title I.7.4.e – This subsection would give authority to the Archbishop of ACNA in a purely diocesan matter over which the Archbishop has no jurisdiction under the provisions of the ACNA constitution and canons. The ACNA governing documents do not designate the Archbishop to be the metropolitan of the province not do they grant him metropolitical authority. For the Standing Committee or Vestry to make an appeal to the Archbishop in a dispute between a congregation and its rector is a gross infringement upon the autonomy of the diocese and the prerogatives of the diocesan bishop. The Archbishop’s sphere of ministry is the Province and the larger Anglican community, not the Province’s constituent Dioceses. The Archbishop’s meddling in diocesan affairs should be strongly discouraged. The Bishop may have good reason for delaying to take action. If the office of Bishop is vacant, the Standing Committee should authorized to deal with the matter as the Ecclesiastical Authority of the Diocese. It should be given authority to invite the Bishop of another Diocese to mediate in the matter if it saw the need for such mediation. Whatever provisions are adopted should seek to preserve diocesan autonomy, to permit the Bishop as chief pastor of the diocese a reasonable degree of discretionary judgment in such matters, and to resist the kind of centralization that has occurred in TEC.

Title I.7.4.f – This section authorizes the Bishop to request from the Synod the expulsion of a congregation in the event its vestry becomes involved in a serious dispute with the Bishop over its Rector. The canons of the Episcopal Diocese of Virginia, on the other hand, only authorize the Bishop to recommend to its equivalent of the synod of the diocese that the congregation be placed under his supervision as a mission until it has complied with his judgment in the matter.

Title II - Worship and the Administration of the Sacraments

Title II.2 – Did those who drafted the canons weigh the full implications of this canon? It subjects wholly to the discretion of the Bishop what translations of the Bible may be used in services of public worship rather than establishing a list of authorized translations and giving the bishop authority to authorize additional translations. Under its provisions the Bishop could direct congregations and missions in the diocese to use inclusive language translations of the Bible and other paraphrases that are objectionable to conservative Christians.

Title II.3 – This canon leaves solely to the judgment of the bishop what constitutes “Anglican Faith and Order” rather than establishing a standard for the diocese such as the historic Anglican formularies to which even the bishop must adhere. With this canon the ADV proposed canons come dangerously close to the TEC canons, which identifies as the doctrine of TEC whatever its bishops of the moment are of the opinion is the doctrine of that ecclesial body.

Title II.4.1 – This section identifies matrimony as a sacrament in contradiction to the doctrine of the Thirty-Nine Articles. The Anglican Reformers rejected the Roman Catholic sacramental system with its seven sacraments. Authentic historic Anglicanism recognizes matrimony as a state of life, not a sacrament.

Title III - Of Ministers, Their Recruitment, Preparation, Ordination, Office, Practice and Transfer

Title III.2.1 – Why require that a prospective candidate must affiliate with a single congregation in the diocese for at least two years? This section seems designed for the twentieth century, not the twenty-first century. We live in a time in which the population is much more mobile and transfers, office relocations, and other job-related moves are much more common. This provision assumes a degree of stability that does not exist in this day and age. It also does not take into consideration the prior experience of individuals affiliating with congregations of the diocese. They have been highly active in ministry in their previous congregation, diocese, or denomination. They may have already been involved in the discernment process in that diocese or denomination but a job transfer necessitated their moving to a new community. This section also does not make any provision for the bishop to dispense with the requirements in this section in cases where circumstances warrant such dispensation.

Title III.6 – The provisions of this canon display a limited understanding of the role of licensed ministers in the Church. Licensed ministers may be ministers of the diocese, as well as the local congregation. In all of the constitutions and canons of the Anglican Provinces and dioceses that I have examined and I have examined a substantial number of them, the bishop of the diocese grants licenses to the licensed ministers in the diocese such as evangelists, pastoral assistants, lay preachers, catechists, lay readers, communion assistants, and other church workers, as he does the clergy in the diocese. Delegating the licensing of such ministers to rectors and other members of the clergy in charge of congregations takes away from the bishop the selection, training, deployment, and oversight of a whole class of ministers. Licensing is one way that the bishop ensures that prospective candidates are qualified for such ministries and receive adequate training before they are licensed and commissioned. It is also how he makes sure that they receive ongoing training after their licensing and commissioning. Like deacons, they are accountable to the bishop even though a rector or other member of the clergy in charge of a congregation is their immediate supervisor. As ministers of the diocese the bishop may deploy them where they are most needed and may be used to the best advantage. For example, the bishop may place a lay reader in a charge of a mission when a member of the clergy is not available. In some Anglican provinces and dioceses a licensed minister may receive a stipend. According to Lyle Schaller, a leading US ecclesiologist, substantially more than half of US congregations are pastored by licensed ministers.

In addition to taking away from the Bishop the authority to grant licenses to licensed ministers, the proposed canons contain no provision for the licensing and rostering of clergy in the diocese.

Title IV – Ecclesiastical Discipline

Title IV.4.1 – Where a disciplinary tribunal is involved, an important safeguard is that the disciplinary tribunal has its own nominating body. There is an over-dependence in the proposed canons upon the Standing Committee as a nominating body. Such an over-dependence can be expected to produce in the diocese conditions similar to those in dioceses in TEC in which one faction controls the diocese. In TEC this has led to the marginalization of congregations and clergy who are not members of this faction. It was a contributing factor to the formation of the Anglican Church in North America.

The canons also make no provision for the respondent or his counsel to challenge members of the disciplinary tribunal nor do they require its members to recuse themselves where their recusal may be warranted. To ensure that a respondent receives a fair hearing two panels should be created—one consisting of clergy of the diocese and the other of laypersons who are members of a congregation or mission in the diocese. The chancellor of the diocese would in consultation with a Judicial Committee nominated and elected by the Synod from its members, clergy and lay, select members of each panel. Panel members would serve for a specific term and then rotate off their respective panel. When an ecclesiastical trial court was needed, the clergy and lay members of the court would be chosen from these panels by lot. The respondent or his counsel would be entitled to challenge a certain number of the members of the court. Those who were challenged would be replaced by other clergy and laity from the two panels, also chosen by lot. Members of the court who recused themselves would be replaced in the same manner.

The proposed canons concentrate too much power in the hands of a small group—the Bishop and the Standing Committee. The members of this group, under the provisions of the proposed canons, may be appointed or otherwise selected by this group. The group is self-perpetuating.

The kind of organization or structure that the AVD proposed canons create has a high potential for abuse of power and arbitrariness in decision-making. It is the kind of organization or structure that would greatly appeal to TEC liberals. It would give them greater control at both the middle judicatorial and local congregational levels.

The argument that the proposed canons reflect how things are done in an episcopal church simply does not hold water as a survey of the governing documents of Anglican provinces and dioceses will show. A more accurate statement would be that the proposed canons reflect how The Episcopal Church operates at the diocesan level. When combined with the tendency toward centralization and the disdain for constitutionalism and rule of law observable in some quarters of the ACNA, they are apt to produce in the ADV an environment like that found in TEC.

ACNA members who are former Episcopalians have yet to extricate themselves from the ecclesiastical culture and mindset of TEC. They also show a propensity to reject some of the better features of organization and governance in TEC and to retain some of its worst features. This suggests that the latter have become deeply ingrained patterns that are hard to shake.

Both the ADV proposed constitution and canons have strengths as well as problem areas. It is my hope that the Constitutional Convention that will be finalizing these two governing documents in May will give serious thought to concerns and proposals expressed in this article and the preceding article, “The ADV Proposed Constitution: An Analysis.” If the Constitution Convention addresses the problem areas, it will be providing a more than adequate set of norms and procedures for the diocese’s operation, one that should serve it well for the foreseeable future.

To read the ADV proposed constitution, click here.

To read the ADV proposed canons, click here.

To read the ACNA constitution and canons for purpose of comparison, click here.

To submit feedback on the ADV proposed constitution and canons (deadline April 8, 2011), click here.

To read previous article, "The ADV Proposed Constitution," click here.

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