Presbyteries and polity geeks are sifting through a recent court ruling to see what implications the decision has for how presbyteries can dismiss congregations that want to leave the Presbyterian Church (U.S.A.) for other denominations.
The General Assembly, in approving a commissioners’ resolution in 2008, encouraged presbyteries and synods to form “gracious dismissal” policies — hoping such policies would diminish the number of disputes with departing congregations taken to secular court.
A recent decision from the General Assembly Permanent Judicial Commission, however, provided new instructions for presbyteries in handling such cases. The commission, which is the highest court in the PC(USA) system, ruled that presbyteries need to show “due diligence” in assessing the value of any property of a departing congregation — which likely will mean that some presbyteries will need to revisit and perhaps revise the dismissal policies they already have on the books.
There could be ramifications as well for negotiations already under way between presbyteries and particular congregations in the process of trying to leave the PC(USA), usually for the Evangelical Presbyterian Church or for ECO: A Covenant Order of Evangelical Presbyterians.
Case-by-case. Among presbytery executives and stated clerks, the commission’s ruling has created some buzz. They wonder how they demonstrate fiduciary responsibility toward property yet avoid fueling an acrimonious process.
“There seem to be a lot of presbyteries working with congregations that are looking to leave,” said Laurie Griffith, manager of judicial process and social witness for the Office of the General Assembly.
Her office has been fielding questions about the ruling — in part about what would constitute “due diligence,” and about what portion of the fair market value of a departing congregation’s property a presbytery should request.
Griffith’s advice: “The presbyteries are going to have to take into account the property valuation as part of their fiduciary duty. That’s just one of multiple elements, but it has to be there. It doesn’t say anything about what they have to do with that valuation. They still have broad discretionary power.”
In response to questions, the Office of the General Assembly has issued a “Frequently Asked Questions” memo, which stresses the importance of presbyteries taking property issues into account on a case-by-case basis. Policies that would be unconstitutional, that memo states, include ones which require a congregation to pay a set percentage of its assets prior to dismissal, or which take into account only a congregation’s mission or per capita obligations and not the value of property.
Trust clause. The so-called “Trust Clause” in the PC(USA) constitution holds that a congregation’s property is held in trust for the benefit of the denomination. That is in part a recognition of the contributions members have made over time to acquire the property and to support the congregation.
“The Trust Clause reflects our understanding of the church as a communion of saints across time, with responsibilities both to those who came before and those who will follow,” the judicial commission ruled in a case stemming from how the Presbytery of San Francisco handled the departure of a church.
“When a congregation seeks to leave the PC(USA), it is breaking what is often a significant historic relationship; it is also departing from a fellowship in which its officers have participated, by whose polity they have pledged to be governed, and with which many members may feel bonds of affection.”
When a congregation seeks dismissal to another denomination, “it is the responsibility of the presbytery to fulfill its fiduciary duty under the Trust Clause,” the judicial commission ruled in the San Francisco case. “This fiduciary duty requires that the presbytery exercise due diligence regarding the value of the property of the congregation seeking dismissal.”’
Leaving with property. In some cases, presbyteries have let congregations depart without requiring a payment specifically for the property. That has sometimes meant they accepted funds for the per capita or mission budget instead of a designated payment for property.
Tropical Florida Presbytery, for example, last May dismissed nine of its 57 congregations to other Reformed denominations — churches representing about a quarter of the presbytery’s membership. Those congregations took their property, but did not pay anything close to full market value.
Tropical Florida’s gracious dismissal policy states that “the Trust Clause should not be used as a weapon to threaten civil action against a congregation.” When at least 80 percent of the members present at a congregational meeting vote to leave, the policy states, the presbytery typically would allow the congregation to take its property with a payment of three years of per capita assessments and three years of mission funding.
The judicial commission’s decision could pose new challenges to gracious dismissal policies such as those. It ruled that “payments for per capita or mission obligations are not satisfactory substitutes for the separate evaluation of the value of the property held in trust.”
Range of policies. The types of policies presbyteries have for dismissing congregations vary widely — from those intended to minimize conflict, to those having no formal written policy governing dismissals.
The Presbytery of St. Andrew in northern Mississippi, for example, handles these discussions on a case-by-case basis. “My view is that the presbyteries which have these policies are encouraging churches to leave,” said Gregory Goodwiller, St. Andrew’s executive presbyter and stated clerk. “We would rather encourage churches to stay by assuming we’re going to stay together and work together.”
While the court ruling states that presbyteries must perform “due diligence” in assessing the value of property of departing congregations, it does not specify exactly how much money a presbytery needs to collect from a departing church.
“I do not believe a presbytery must get 100 percent,” said Ed Koster, the stated clerk of Detroit Presbytery. Other factors a presbytery might consider in exercising “due diligence,” he said, could include things such as the presbytery’s ministry strategy for the geographic area; the financial health of the presbytery; and the cost of maintaining the property or finding a suitable use for it.
Another factor might be what portion of the congregation favors departure — and whether there is likely to be a significant “remnant” of church members who don’t leave the PC(USA). The court ruling refers to an assessment of “spiritual needs,” which could include the question of what Presbyterian ministry is likely to continue in an area and the value in Christian witness of not embarking on a bitter property dispute.
In some cases, the support for leaving is strong, and “we’re not going to find a continuing church there, not a sustainable one,” even if the presbytery keeps the property, said Steve Salyards, a California ruling elder who writes the GA Junkie blog, which parses Presbyterian polity and politics.
In some presbyteries “we have enough trouble keeping our smallest churches growing,” Salyards said, and it might be better for the presbytery “if you don’t have to deal with a white elephant property” that could be difficult to sell.
