HEARING PANEL OF THE DISCIPLINARY BOARD OF THE EPISCOPAL CHURCH IN CONNECTICUT
THE EPISCOPAL CHURCH IN CONNECTICUT
v. ECCT Title IV Matter 2021-1 THE REVEREND AMJAD SAMUEL
Respondent.
OPINION OF HEARING PANEL ON THE MOTION OF THE RESPONDENT REV. SAMUEL TO DISMISS THIS MATTER OR ALTERNATIVELY TO RETURN THE MATTER TO THE INTAKE STAGE OR ALTERNATIVELY TO COMPEL ECCT TO PROVIDE MORE SPECIFIC RESPONSES TO MANDATORY DISCLOSURES AND TO ENTER A REVISED SCHEDULING PLAN AND DISCOVERY ORDER
A. Procedural Background
Onorabout November4, 2022,Respondent Reverend AmjadSamuel(“Respondent”or“TheRev. Samuel”) filed a “Motion for the Hearing Panel to enter an order Dismissing This Title IV Matter entirely based upon the irreparable harm caused to Respondent by multiple Canonical Violations Committed at every single stage of the Title IV process making it impossible for Respondent to get afairHearing; or alternatively returning this Title IVMatterto the Intake stageto have aproper investigator appointed in Accordance with the Canons with new Panels and without interference by Bishop Ian Douglas and/or Robin Hammeal-Urban; if the forgoing is not granted then Respondent Seeks an Order to Compel Church Attorney to Produce the Required Mandatory Disclosures Pursuant to Canon I.13.5a and for the Hearing Panel President to Sign and Enter the Revised Scheduling Plan and Discovery Order Submitted Jointly by Respondent’s Counsel and the Church Attorney on October 14, 2022. 1 (“Motion to Dismiss and for Alternative Relief”)
On or about November 18, 2022, the Episcopal Church in Connecticut (“ECCT”) filed its Motion in Opposition to Rev. Samuel’s Motion and on November 29, 2022, Respondent filed its Reply to the ECCT’s Opposition.
The matter was scheduled for oral argument on the Motion to Dismiss for December 13, 2021.
1 Respondent’s use of 140+ words to label his motion is not favored by this Panel. The Panel sees the purpose of titling a motion is to provide a brief description of its purpose and not to serve as a means in and of itself for advocacy. We request that both parties take this into account in any future pre-motion practice.
Shortly prior to the scheduled date for argument, the Hearing Panel received an emergent request for an adjournment due to additional disclosures of documents received by Respondent from ECCT under its continuing obligations for Mandatory Disclosure. Based upon this request, the Hearing Panel requested additional briefing by the Respondent, due January 4, 2023; Responsive papers by ECCT to be filed by January 18,2021 and adjourned the date for oral argument on the Motion to Dismiss until January 24, 2023.
Prior to the scheduled date for oral argument on January 4, 2023, Respondent requested a third adjournment based upon the scope of the additional materials received from ECCT. The Hearing Panel extended the dates for each of the parties’ briefs and set the argument on the motion for February 8, 2023.
On January 11, 2023, Respondent filed his Supplemental Memorandum in Support of Respondent’s Motion to Dismiss, et al. (“Supplemental Memo”). On January 26, 2023, ECCT filed its Response to Respondent’s Supplemental Memorandum in Support of Respondent’s Motion to Dismiss. (“ECCT’s Response to Supp. Memo”)
Prior to the scheduled date for oral argument on February 15, 2023, the Hearing Panel received a request for an adjournment from ECCT which was granted by the Hearing Panel setting a new date for February 15, 2023.
Prior to the scheduled date, the Respondent requested an adjournment of the date for oral argument until February 21, 2023. The Hearing Panel granted said request.
Prior to the scheduled date for oral argument, Respondent, with the consent of ECCT, requested an adjournment of the date for oral argument and the Hearing Panel agreed to the date of April 11, 2023. The Hearing Panel further advised both parties that no further adjournments of the motion would be granted absent extraordinary circumstances.
On April 11, 2023, the Hearing Panel heard oral argument on the motion. On the date of oral argument, the Hearing Panel received a Revised Scheduling Plan and Discovery Order Submitted Jointly by both parties.
B. Analysis of Motion to Dismiss
Respondent’s Moving Papers cover four main areas: 1) an introductory statement (Respondent’s Br. at 1-3) alleging a series of facts that remain largely unmoored from any citation to a record or to a certification2 of a witness except for two citations at page 2-3 to a General Resolution and to an ECCT Employment Practices Manual on Non-Discrimination;
2) a series of allegations of canonical violations in the pre-hearing panel phases of this case;
3) allegations of failure by the Church Attorney to adequately respond to Respondent’s Request for Mandatory Disclosures and;
2 A certification is a statement that has the same weight as testimony in a court in that the party asserts that the information contained in the statement is true to the best of one’s knowledge and that any willfully false statement could subject the person making the statement to punishment. While there is no canonical way to hold lay people responsible for misrepresentation, clergy can be held accountable under Title IV. Nonetheless, a certification by its nature imparts a higher level of responsibility and accountability for the person so asserting.
4) argument in support of extending discovery deadlines by way of a revised scheduling order. The Panel addresses each section below
1. Respondent’s Preliminary Statement and the Church Attorney’s Statement of Facts
Significantly all of what is contained in Respondent’s preliminary statement as to his credentials, his background, his history at St. Paul’s and his reasons for leading the congregation at St. Paul’s, and suppositions about how individuals in a given congregation may experience change is not put before this Panel in the form that allows the Panel to test, evaluate or credit these alleged facts. See Respondent’s Moving Papers at 1-4 Similarly, allegations as to what occurred in a September 9, 2021 meeting with the former Bishop and Canon Robin Hammeal-Urban, Canon for Pastoral Response and Disciplinary Resource Officer3 (“Canon for PR&DRO”), Respondent, his wife, his attorney and his advisor is also not alleged in the form of testimony or in a certification. Likewise, theChurchAttorneyinhisoppositionpaperspresentsaStatementofFactsat 3-5thatisalsowholly unsupported with certifications or documentary evidence. As such, the Panel will not weigh any fact alleged by either party that remains unsupported as such.
2. RespondentandECCTFailtoCitetoAnyCanonorArgumentthatGuides the Panel as to its Jurisdiction to Hear Such a Motion at a Pre-Discovery Phase or any Other Phase.
The Respondent and ECCT fail to provide this Panel with any canonical support for authority vested in this Panel to hear a motion to dismiss at a pre-discovery phase that alleges failures by ECCT in the pre-hearing processes. Respondent claims that he is not looking for a “perfect” Title IVprocess, but heis looking fora “fair one” (Respondent’sReply at 13) and thatcombinedalleged errors amounting to “irreparable harm” allow this Panel to dismiss the entire case during a prediscovery phase. Respondent’s Moving Papers at 46 However, nowhere does Respondent cite to any authority vested in this Panel to review and weigh the process by which the ECCT conducted its prehearing processes from the Intake phase to communications during the Hearing Panel process. Likewise, ECCT provides no canonical support either express or implied for this Panel to hear such a motion nor to weigh such allegations. Indeed, ECCT seems to concur with Respondent’s position that this authority does exist for this Panel to consider a motion to dismiss based upon alleged irregularities in the pre-hearing processes where in its papers, ECCT notes that Respondent must “show not simply that the Canons were not followed in a procedural and technical sense, but that he has been ‘irreparably harmed’ by those failures ” ECCT’s Op Br. at 6. However, missing from both parties’ papers is reference to TEC Canon IV.13.10 which provides that the Panel can only weigh credibility through testimony and evidence:
In all proceedings of the Hearing Panel, the testimony of witnesses shall be taken orally and personally or by such other means as provided by order of the Hearing Panel. All testimony shall be given under oath or solemn affirmation and be subject to cross-examination. The Hearing Panel shall
3 Prior to September 1, 2021, Ms. Robin Hammeal-Urban’s title was Canon for Mission Integrity &Training. Subsequently her title was changed to Canon for Pastoral Response and Disciplinary Resource Officer. https://www.episcopalct.org/news/robin-hammeal-urban-canon-for-missionintegrity-training-to-transition-to-pastoral-response-discipline-resource-officer-this-september/ (last accessed April 12, 2023)
determine the credibility, reliability and weight to be given to all testimony and other evidence
3. The Hearing Panel’s Authority to Dismiss is Referenced Only in Stages After a Hearing on the Issue
It is plain that the TEC Canons do not provide express authority for a motion to dismiss based upon alleged errors occurring in the intake process, investigative process, or pre-hearing process. The Canons do provide for sanctions against either counsel for behavior that is viewed as disruptive, dilatory, or otherwise contrary to the integrity of the proceedings. Canon IV.11(a)-(c). These remedies are set out in TEC Canon IV. 11 (c) and do not include a motion to dismiss claims but can include “striking claims or defenses or responses.” Again, these responses would appear to attach to serious misconduct by counsel only.
Indeed, the notion of a dismissal of charges appears in TEC Canon IV.12, but only following a hearing:
Following the conclusion of the hearing, the Hearing Panel shall confer privatelytoreach adeterminationofthematterby(a)dismissalofthematter or (b) issuance of an Order.
TEC Canon IV, Section 13 specifically provides for dismissal post-hearing:
If the determination is to dismiss the matter, the Hearing Panel shall issue an Order which shall include the reasons for dismissal and which may contain findings exonerating the Respondent. A copy of the Order shall be provided to the Bishop Diocesan, the Respondent, the Respondent’s Advisor, the Complainant, the Complainant’s Advisor and the Church Attorney, and a record copy of the Order shall be kept by transmitting a copy to The Archives of the Episcopal Church”
As such, the Hearing Panel denies dismissal of this Title IV case at this time based upon alleged errors in the pre-hearing phases without prejudice to Respondent to renew any such motions after discovery at the time of a Hearing. 4 Additionally, for the same reasons, the Hearing Panel also denies the request that this matter be returned to the Intake stage.
4. Alternatively, the Burden Rests on the Moving Party in a Motion to Dismiss with all inferences favoring the Non-Moving Party. Applying this Standard, the Panel Finds There is an Insufficient Basis to Dismiss the Case.
While this Panel does not believe further analysis is warranted, we consider Respondent’s motion alternatively assuming we have such authority to render a decision.5 While this Panel is not a
4The Hearing Panel takes no position at this time on the ability to the Panel to hear a motion to dismiss that goes to the question of whether the facts as alleged by the ECCT, if true, would constitute an offense or offenses under the canons. This is different than what is being requested here as dismissal here would require the weighing of credibility something that is solely within the province of the Panel during a Hearing.
secular one, the Panel is free to utilize theories and practices from the secular practice where the canons might be silent. In secular civil practice, a motion to dismiss is disfavored and granted in only the rarest of circumstances. The burden of a motion to dismiss is on the party moving to dismiss while drawing all factual inferences in favor of the non-moving party. This means that for purposes of this motion only, the non-moving parties’ facts, if disputed, are presumed true.
a) Allegations of Improper Appointment of an Investigator and a Conflict of Interest between the Church Attorney and the Investigator.
Respondent alleges at 4, 5 of its Moving Papers that an investigator who performed services for the Diocese in this matter was not properly appointed (TEC Canon IV.2), nor was the appointment done in consultation with the President of the Disciplinary Board (ECCT Canon VIII.2.E). Respondent further argues that the appointment was not done in consultation with the Standing Committee.Id.Respondentfurtherclaimsthatthe retentionofan investigator,whowastheChurch Attorney’s son, amounted to a violationof TEC Canon 19.14 (b) (the disqualification canon). This disqualification canonallows apartyto disqualifytheChurchAttorneyor a HearingPanel member where there is a conflict of interest and one’s impartiality may be reasonably questioned. Disqualification under this section is mandated where the person against whom the conflict is alleged or that person’s spouse or any person with a third degree of relationship to either of them is: (1) a Respondent, Complainant or an Injured Person, (2) is likely to be a witness in the proceeding, (3) has a personal bias or prejudice concerning the Respondent, Complainant or any Injured Person; (4) has personal knowledge of disputed evidentiary facts concerning the proceeding; (5) has a personal financial interest in the outcome of the proceeding or in the Respondent, Complainant, or any Injured Person or any other interest that could be substantially affected by the outcome or; (6) is a member of the same congregation or otherwise has a close personal or professional relation with the Respondent, the Complainant any Injured Person or any witness in this matter.
The basis for this allegation by Respondent of a canonical violation stems from a June 18, 2021 letter sent from the Church Attorney to Respondent’s Counsel (Exhibit 3 to Respondent’s Moving Papers) wherein the Church Attorney noted that this matter was referred to him for investigation and hewas seeking an interviewofRev.Samuels throughathird-partyinvestigator,JamesAllison, who the Church Attorney identified as an attorney and as his son.
This letter does not provide any indication that the Bishop’s office, the Standing Committee and the Disciplinary Board did not act in consultation in the retention of Mr. James Allison. Merely because the Church Attorney did not provide information on every aspect of the process in his letter to Respondent’s counsel does not mean, ipso facto, the process as dictated by the canon was not followed. The same faulty assumption is raised by Respondent as to the qualifications of Mr. James Allison. There is nothing other than speculation for the proposition that the investigator did not meet the qualifications as required by Canon.
The allegation by Respondent that dismissal of the case is in order where the Church Attorney allowed his son to serve as an investigator in this matter is misplaced. The disqualification canon provides for a potential remedy by way of a possible disqualification of a conflicted person (Church AttorneyorPanel memberonly) andnot foradismissal ofthe charges. Additionally,there is no indication that Mr. Allison has any greater financial interest in litigating the matter than any other individual being paid for their services by the Diocese in this case. Of further note and
concern is Respondent’s delay in raising this concern some eighteen (18) months after Respondent was informed of this.
Asto Respondent’s other claims thattheChurchAttorney’sletter implies that theChurch Attorney improperly oversaw the investigative process and reported said information to the Reference Panel rather than the Investigator is without merit. Respondent’s Moving Papers at 7. The assertion of a canonical violation of TEC Canon 6.10 (that provides the Reference Panel refers a matter for investigation) fails where Canon IV.2 specifically provides one of the roles of the Church Attorney is “to conduct investigations and oversee the Investigator.” Respondent’s claim of a violation of TEC Canon 11.2 (requiring the Investigator to investigate all facts) remains unsupported where there is no evidence at this stage that the Investigator did not engage in an investigative process. Nor is there any reasonable support for the assumption that the investigation was improperly disclosed during the investigative process. (TEC Canon 11.5). While, there does appear to be support for the allegation that there was no written investigative report prepared by the Investigator as required by Canon IV.11.5 and instead such report(s) were purportedly prepared by the Church Attorney (ECCT’s Op. Papers at 6), At this time, Respondent has not shown how such a failure prejudices him.6 Similarly, an assertion that the Church Attorney exercised “improper influence over his son” (Respondent’s Moving Papers at 7) is without any support in the record and is therefore, disregarded.
b) Allegations of Improper Intervention and Misconduct by the Diocesan Canon for PR&DRO and the former Bishop in the Title IV Process During 2021.
While the Panel finds it difficult to fully discern the heart of Respondent’s allegations in his moving papers around this topic, it appears that it consists of a series of alleged irregularities including that the Canon for PR&DRO: a) did not have the canonical authority to communicate with Respondent’s Counsel or be involved in knowing the workings of the Reference Panel; b) incorrectly failed to provide Respondent with an Investigative Report and improperly limited access to an Intake Report; c) misrepresented and misled Respondent in believing there was an Investigative Report when none existed and; d) acted improperly to seek to pressure Respondent into accepting an Agreement for Discipline. Respondent’s Motion at 10-16; and d) misquoted the canons at a parish-wide meeting by stating Rev. Samuel was “presumed guilty.” Id at 18.
6 It is notedthat theChurch Attorneyrepresents there “wereReports of Investigationin this matter” that “were prepared and submitted to the Reference Panel by the Church Attorney.” ECCT’s Op. at 6. While Respondent accurately cites to TEC Canon IV. 13.3 that a written report is required, neither TEC Canon 13 3(a) nor TEC Canon 11.5 expressly state that such documentation is required to be provided to Respondent.
i) Concerns Around the Providing of Investigative and Intake Reports; and Refusal of ECCT to Immediately Disclose the Names of Hearing Panel Members.
Respondent does not cite to any canon that mandates ECCT to provide Respondent with either an Investigator’s Report or and Intake Report7. Nor is there any canon that specifically provides that a diocesan employee serving in an administrative or advisory capacity to the bishop cannot communicate with Respondent regarding progress in the intake, reference panel or conference panel phase or otherwise. It is unreasonable to assume that individuals acting as agents of the ecclesiastical authority cannot be present during the Reference Panel nor communicate the results of the panel’s decision to Respondent. As to allegations of purposeful misrepresentations by the Canon for PR&DRO or the former Bishop Diocesan regarding the existence of an Investigator’s Report, we find there is no evidence of such at this time. Thus, this Panel does not find the communications dated July 28, August 3, September 2, September 5, or September 15 to be violative of the canons or to provide evidence of misconduct. Similarly, as to an allegation that the Canon for PR&DRO acted incorrectly in not responding to a request to immediately provide the names of the individuals sitting on the Hearing Panel (Respondent’s Mot. at 14-15), the Hearing Panel does not find this violative of the canons where Respondent has provided no canonical support that this is mandated, nor that Respondent was prejudiced in anyway.
ii) Concerns around the September 9, 2021 Meetings with Parish and Vestry.
Respondent further claims that diocesan communications leading to a vestry meeting and parishwide meeting at St Paul’s for the purpose of an update on the Title IV process were irregular. Respondent first claims that the agendas for both meetings were “generic” and “undetailed” claiming that “no one could possibly have an idea of what to expect.” Respondent’s Mot. at 1516. Secondly, Respondent claims that the Diocese refused to allow the meeting to be recorded and that the Bishop and the Canon for PR&DRO who attended the meeting intentionally misquoted the canons stating that “Rev. Samuel was presumed guilty.” Id at 16. The Church Attorney, in his oral argument on the motion states the ECCT denies this allegation. Respondent claims that these actions amounted to an intentional effort to “improperly influence witnesses and people with knowledge” against the Rev. Samuel Id.
First,assertionsthattheagendaofthemeetingremainedvagueisnotabasisto claimanirregularity or a violation of canons. Indeed, TEC Canon 14.13 expressly provides:
In every case notwithstanding any other provision of this Title to the contrary, the Bishop Diocesan may disclose such information concerning an Offense or allegations thereof or concerning any Accord or Order as the Bishop Diocesan deems appropriate.
Second, the allegation that that the former Bishop and/or his representative incorrectly misquoted the canons at the meeting is legally unsupported in Respondent’s papers. While
7 Respondent’s reference to TEC Canon 11.5 merely provides that “all investigations shall be confidential until such time as information obtained maybe be utilized by the Church Attorney, the Bishop Diocesan or the Panels.” This does not constitute an affirmative mandate that such information must be disclosed to Respondent prior to the matter being directed to Panel.
Respondent’s reply does for the first time provide letters from two attendees asserting this tobethecase,thesestatementsremainuncertified anddonot comeintheformoftestimony as required by TEC Canon IV.13.10. Moreover, the Church Attorney, in his oral argument on his motion, notedthisallegation is disputed. Without more,this is insufficient to support an irregularity or misconduct at this phase of the proceedings
c) Allegations Against ECCT During the Pre-Hearing Process During 2022
i) Communications from the Canon for PR&DRO
Respondent argues that further communications by the ECCT by the Canon for PR&DRO to Respondent during 2022 violated various canons and constituted misconduct. (Respondent’s Mot. at 17-19). First, Respondent claims emails dated January 26, (notifying parties of the “matter proceed[ing] to another phase,” and clarifying the meaning of her email), January 27 (notifying parties that the matter was referred from the Conference Panel to the Hearing Panel), January 27 (providing Respondent’s counsel with the email notification of the Conference Panel President to the President of the Disciplinary Board) constituted misconduct in that conveyance of the Conference Panel’s results is required to be communicated by the Conference Panel President to the President of the Disciplinary Board and the Church Attorney pursuant to TEC Canon IV.13.1. Respondent further argues there is no provision for its disclosure to Respondent by the Canon for PR&DRO and that by so disclosing the results of the Conference Panel, the Canon for PR&DRO “interfered” with the Conference Panel, by “choosing to be right in the middle of everything.” Id at 18.
Without more, we do not find these communications between the Canon for the PR&DRO and the Respondent’s counsel to constitute misconduct. First, there was no allegation that the Canon for PR&DRO participated in any deliberation of the Conference Panel, but rather, merely communicated its result to Respondent’s counsel. Second, there is no canon that precludes this communication by the Canon for PR&DRO to Respondent’s counsel. It would appear that such information would be welcomed by Respondent coming in close proximity to the information being shared with the Disciplinary Board and the Church Attorney.
Next, Respondent argues a canonical violation occurred by the Canon for PR&DRO communicating to Respondent’s Counsel on January 29, when she identified that she provided the results of the Conference Panel’s deliberations to Respondent’s counsel in her role as one of two Title IV Case Managers. Respondent argues that this role is extracanonical and supplants a mandated canonical position that is designed to be independent of the ecclesiastical authority. Respondent’s Moving Papers at 19 citing TEC Canon IV.5.3(g). The Panel does not find this communication to be prejudicial nor indicative that the Canon for PR&DRO received confidential information from the Conference Panel. The Panel does note that there should be a clerk for the DisciplinaryBoardthatprovidesadministrativeservices,butthisdoesnot,inandofitself,preclude case managers from merely communicating the results of the panel’s work to the parties involved in the case.
ii) Communications between the Canon for PR&DRO and President of the Hearing Panel
Respondent further argues that an April 20, 2022 communication (Exhibit 24) sent by the Canon for PR&DRO on behalf of the President of the Hearing Panel that attached a letter to both sides constituted “misconduct” because it canonically should have come from a designated clerk for the Disciplinary Board. Respondent’s Moving Papers at 20. Again, the Panel concludes that the use of the Canon for PR&DRO to send an administrative letter on behalf of the Panel shows no undue prejudice to the Respondent nor any indication of a lack of independence.
iii) Communications fortheformerBishop totheParish and Others as the Title IV Matter Proceedings
Respondent argues at 22 of his Moving Papers that a letter sent to the Parish in February 2022, explaining the Title IV process to the Parish that included a sentence that the Conference Panel proceedings were independent of the Bishop’s office was “false”, “dishonest” and “intentionally misleading”. Respondent argues this is evidenced by the fact that communications as described above were sent by the Canon for PR&DRO. As noted above, the Hearing Panel, without more, finds these communications do not reveal any form of collusion or interference by the Diocesan staff or others in the Title IV process.
d) Allegations Contained in the Supplemental Memorandum Submitted by Respondent
Respondent provides a Supplemental Memo addressing additional arguments alleged to support his motion to dismiss after he received some 475 pages of additional discovery materials from the ECCT. This discovery consists largely of internal communications among diocesan employees who exercised some role in the pre-hearing processes of this Title IV matter.
i) Communications by Intake Officer with other Diocesan Officials with Title IV Responsibilities Regarding an Alleged Breach of a Complainant’s Confidentiality.
Respondent alleges that various communications (Bates Stamped B0003-38) among Diocesan representatives regarding a complainant’s allegation of a breach of confidentiality exhibits improper collaboration by Diocesan Title IV participants and bias by those administering the Title IV process. Respondent’s Supplemental Memo at 1-4. The Panel does not conclude these communications exhibit improper collaboration or bias, but rather reveal concern for a possible breach of confidentiality at the earliest stages of a case, when the canons provide unequivocally, that the process is confidential. Title IV.6.108
Additionally, Respondent further claims that communications by the Canon for PR&DRO reveal a bias where she referenced: a) the potential of Respondent having communicated the improper disclosure of the identity of a complainant to the parish; b) the potential identified complainant as a “harmed complainant”; and c) alleged 2018 complaints made by others about Respondent that did not result in charges. Additionally, Respondent argues that the Canon for PR&DRO improperly edited the Intake Report thus exceeding the scope of her authority. Respondent’s
8 “All communications and deliberations during the intake and referral stages shall be confidential as the Bishop Diocesan deems to be pastorally appropriate or as required by law.
Supplemental Memo at 5-9. While Respondent makes conclusory allegations against the actions of the Canon for PR&DRO, there is no canonical support that the behavior of the Canon for PR&DRO in offering advice and suggestions to the Intake Officer, Reference Panel or to the Diocesan Bishop during the Title IV pre-hearing process is canonically prohibited.
First, as it relates to claims of bias by the Canon for PR&DRO in the Intake phase in communications made in response a Complainant’s allegation of a breach of confidentiality of his identity, the Diocese was required to consider the Complainant’s allegation that Respondent was the source for a purported leak. As with any other allegation of wrongdoing, in the first instance, the canons dictate that the Intake Officer is to assume the facts asserted by a complainant are true. Canon IV.6.7. Thus, there was no irregularity during this time frame by the Intake Officer or other Diocesan officials. As to the Canon for the PR&DRO communication to other Title IV Diocesan officials about allegations made in 2018 against the Respondent, the Respondent provides no canonical support that precludes this Diocesan official from providing advice or opinions to other Diocesan officials on a cleric’s personnel record or on prior allegations of alleged wrongdoing. At the end of the day, it is the Reference Panel, who will decide whether a case proceeds forward to the next step of the Title IV process, The Canon for PR&DRO does not sit as a member. Similarly, it is the Diocesan Bishop who has the canonical discretion to determine what if anything to offer relative to an Agreement for Discipline. Again, the Canon for the PR&DRO has absolutely no authority to decide what a Bishop Diocesan will offer to a Respondent. Finally, while the process allowing a bishop to offer an Agreement for Discipline is designed to provide an opportunity for early resolution, avoiding an ecclesiastical hearing, the Respondent has the ultimate right to refuse to accept an offer for an Agreement for Discipline and to test the validity of the underlying charges forcing the ECCT to prove any such allegations by “clear and convincing” proof. There is absolutely no control that the Diocesan officials have over the decision-making process of this Panel.
ii) Claim of the Canon for PR&DRO Improperly Drafting a Summary of an Intake Report and Misrepresenting Facts
Respondentargues at9-10oftheSupplementalMemothattheCanonforthePR&DROimproperly created a summary of the Intake Report for the benefit of others engaged in the pre-hearing process and misrepresented facts contained therein. Again, Respondent fails to provide a canon that precludes this Diocesan employee from creating a summary of the Intake Report Additionally, Respondent’s claim that this summary contained misrepresentations remains unsupported in that the responsibility for intake is merely to correctly state the claim of the complainants. There is no support for any alleged irregularity in this process.
iii) The Diocesan’s Bishop’s Consideration of a Restriction on Ministry and Respondent’s Claims.
Respondent argues at 1,14 of the Supplemental Memo that the communications among Diocesan officials concerning consideration by the Diocesan Bishop of a Restriction on Ministry and the suitability of a replacement were irregular. A Diocesan Bishop has the authority in any phase of a Title IV proceeding to restrict the ministry of a cleric who: may have committed any Offense, or that the good order, welfare or safety of the Church or any person or Community may be threated by the member
of the clergy, the Bishop Diocesan may, without prior notice or hearing, (a. place a restriction upon the exercise of the ministry of such Member of the Clergy or (b) place each member of the Clergy on Administrative Leave.
(emphasis added)
While this provides a bishop with broad authority, the canons also afford the cleric the opportunity to contest any such restriction by appealing the restriction to either the Conference Panel or Hearing Panel. TEC Canon 7.10. This Bishop’s consideration of a pastoral direction falls squarely within the Bishop’s broad discretion in a Title IV proceeding. Equally telling, is the Diocesan Bishop did not issue a pastoral direction precluding the Respondent from continuing in his position. The Panel, at this time, does not find the Diocesan Bishop’s or the Canon for PR&DRO’s communications regarding a possible restriction on ministry as improper.
iv) Allegations that the Complaints Against Respondent are False
Respondent argues throughout his Supplemental Memo that the allegations against him are false because the Church Attorney chose not to proceed on some of the other allegations made by complainants. See Supplemental Memo at 13. As Respondent knows, merely because the Church Attorney chose not to proceed on some of the allegations, does not mean that other allegations are meritless.
v) Claims of Corruption, Lies, Deceptions by Diocesan Officials
Respondent spares no fodder in his spate of conclusory statements and posed questions regarding what he considers the corruption, lies and deceptions regarding the actions of Diocesan officials in the pre-hearing phase of the case. Throughout his Supplemental Memo, Respondent cobbles together partial citations from portions of correspondence in a stream-of-consciousness approach to arrive at the conclusion of a conspiracy theory involving almost every diocesan official responsible for Title IV. Respondent’s Supplemental Memo at 16-32. These include allegations that: a) the Canon for PR&DRO and the Diocesan Bishop may have improperly appointed members of the Hearing Panel because the Bishop expressed concern in one communication about ensuring the Panel was racially diverse (Respondent’s Supplemental Memo at 18, 22); b) the denial of certain requests made by Respondent for information was somehow connected to Respondent’s status and not the based upon good faith interpretations of the canons (Id. at 16-19, 22; 24); c) the internal decision-making process of deciding how to address the demand by Respondent to proceed to a Conference Panel instead of directly to a Hearing Panel exhibited “gameplaying….to avoid being calledracist” (Id at 25); andd)theCanonforPR&DROreference to “acclimating” Conference Panel members to their roles meant the Canon was improperly influencing them, as opposed to providing appropriate training. Id.
The Panel does not find these brazen conclusions to be currently supported by the bits and pieces of documents from which the Respondent cites.
To conclude, this Panel concludes that it is without jurisdiction at this time to dismiss the case for alleged irregularities in the pre-hearing process. Alternatively, assuming this Court does have the jurisdiction to do so, there is insufficient facts as presented in Respondent’s Moving Papers and Supplemental Memo with Exhibits to support such a motion at this time.
C. Mandatory Disclosures
Respondent lists seventeen (17) items that have been requested that he asserts are incomplete. The following represents the Panel’s analysis and conclusion as to each item:
Item 1
Respondent seeks complete recordings of all interviews with all witnesses, instructions, comments and directions that were provided and the identity of each person in the Zoom video. ECCT responds that it has provided the full scope of the recordings that it has.
Conclusion: ECCT should provide Respondent with any directions, instructions or comments provided to each witness as well as a list of each witness in the order that they appear in the recording, so that Respondent is able to identify each witness. This should be provided to Respondent’s counsel within 15 days with a certification of counsel
Item 2
Respondent requests interview notes of the Church Attorney and the Investigator taken during the interview of the former diocesan bishop. ECCT responds that it did not interview Bishop Douglas as a witness on its behalf during the investigative stage but has since interviewed him when his name was listed as a witness for respondent. ECCT claims these notes are protected by attorneyclient work product.
Conclusion: ECCT need not provide these notes and accepts they are protected by attorney work product.
Item 3
Respondent requests all of the former bishop’s emails or notes relating to this Title IV matter; his notes relating to 2017-2018 allegations; notes between him and the Canon for PR&DRO; communications with Canon for PR&DRO and Alison Hollo about or to any Panel in this matter; and all communications with the Conference Panel and the Hearing Panel or any of its members after they were selected. ECCT does not object to this request and notes they will be provided prior to a hearing.
ECCT provides no basis for not providing any such documents prior to depositions in this matter.
Conclusion: ECCT shall provide these materials, excluding privileged materials within the next thirty (30) days and certify to same.
Item 4
Respondent requests interview notes from the interview of Bishop Laura Ahrens.
ECCT provides there are no such notes.
Conclusion: ECCT needs to certify to this assertion with five (5) days of the date of this Opinion.
Item 5
Respondent requests interview notes from the interview of Ms. Robin Hammeal-Urban
ECCT responds that the Church Attorney did not interview Canon Robin Hammeal-Urban as part of its case but has since interviewed Ms. Hammeal-Urban as a potential witness for the defense and such interview is protected work product.
Conclusion: ECCT need not respond further. The Panel accepts that such interview is protected by attorney work product.
Item 6
Respondent requests all documents regarding this Title IV matter from Ms. Hammeal-Urban that have not already been produced, all documents from the 2017-2018 matter that have not been produced and all documents relating to this Title IV matter to and from Bishop Douglas; any and all documents between Robin Hammeal-Urban to and from or about any Panel or with any Panel; all communications with the Reference Panel, Conference Panel or Hearing Panel in this Matter and alist ofall thepeopleMs. Hammael-Urbanspoketo forany interviewand any notespertaining to same.
ECCT notes it has already responded with all documents responsive to this request and that there are no documents that list all of the individuals to whom Ms. Hammeal-Urban spoke
Conclusion: ECCT must certify that it has made diligent inquiry for said documents and all responsive documents have been provided within ten (10) days.
Item 7
Respondent requests a list and date of everyone interviewed by the ECCT or its investigator.
ECCT notes that it “believes that” this information has already been provided, but it will “again provide the list of witnesses to Respondent before the hearing in this matter.”
Conclusion: Respondent is entitled to this information immediately and is entitled to a firm response assertion as to whether this has already been provided. Please provide same to Respondent within the next fifteen (15) days with a certification of counsel
Item 8
Respondent requests any and all emails referred to or regarding an individual whose name was previously redacted as a complainant.
ECCT responds that all emails in its possession have been provided, but further responds that counsel for ECCT will review his file and will provide such information prior to a hearing in this matter.
Conclusion: Respondent is entitled to this information immediately. ECCT is to review its file and certify that no further information is available or provide such information within fifteen (15) days hereof.
Item 9
Respondent requests information regarding the credentials of an individual who claims that Respondent is a “narcissist.”
ECCT responds that this information is based upon the individual’s observations and that the individual has no special credentials.
Conclusion: This requires no further response
Item 10
Respondent requests a specific document referenced in an email dated May 17, 2022 where a witness claimed to have seen a document where Respondent allegedly called people who did not agree with him as “white supremacist” (sic).
ECCT responds that he has no such document in his possession, custody or control.
Conclusion: ECCT must take reasonable efforts to determine if such a document exists and if so, whether it can be secured. A certified response must be provided within fifteen (15) days.
Item 11 and Item 12
Respondent requests a video interview and notes relating to Scott Colvin and Sunhwa Chapman.
ECCT responds that all such notes and recordings have been provided.
Conclusion: This response must be certified by the Church Attorney within five (5) days.
Item 13
Respondent requests text messages referred to in Bill T’s video.
ECCT responds that all such text messages in the possession of the Church Attorney have been provided.
Conclusion: ECCT must make diligent inquiry that all text messages have been requested and that what has been provided has been represented as complete. A follow up with a certification from counsel is to be provided within fifteen (15) days.
Item 14
Respondent requests a copy of the retainer between the Investigator, James Allison and the Diocese.
ECCT responds there is no such document.
Conclusion: ECCT must certify to this within five (5) days.
Item 15
Respondent requests a full list of documents from Bishop Ahrens.
ECCT responds that it has provided all responsive documents and that there is no list of all individuals that Bishop Ahren spoke with about this matter.
Conclusion: ECCT must certify to this within five (5) days.
Item 16
Respondent requests a full list of documents from Alison Hollo.
ECCT responds that it will provide such documentation forthwith.
Conclusion: ECCT must respond to this within the next thirty (30) days and certify to same Item 17
Respondent requests any and all emails from complainants and witnesses and texts and other information as was requested in June 7, 2022 emails to Respondent’s Counsel.
ECCT asserts that all such information has been provided
Conclusion: ECCT must provide that it has conducted a diligent search and inquiry and certify that such documentation has already been provided within 10 days
To recap, ECCT must respond by providing additional responses to Items 3 and 16 within thirty (30) days from the date of this decision. ECCT must respond to Items 1,7,8, 10 and 13 by making diligent inquiry as to whether additional documents exist and certify to such efforts within 15 days. ECCT must make diligent inquiry and certify to their responses to Item 6 within 10 days; ECCT must otherwise certify to their current responses to Items 4,11, 12, 14, 15 within five (5) days.
D. Revised Scheduling Order
Prior to the oral argument on this Motion, the Hearing Panel received a Joint Proposed Revised Scheduling Order from both parties. The Panel will review the Order and, if necessary, provide a further date for consideration of same.
E. Conclusion
The motion to dismiss the action is denied; the motion to return the matter to the Intake phase is denied; and the motion to compel responses to mandatory disclosures is granted in part and denied in part.
Joseph Shepley
The Rev. Joseph Shepley President of Hearing Panel
Louise Kalemkerian
The Rev. Louise Kalemkerian, Member of Hearing Panel
Tom Smith
Tom Smith Member of Hearing Panel
April 14, 2023
