This is the second essay for those already involved in the separation process in the SC Conference of the UMC. The first essay is here and stresses the importance of having an attorney. That applies to this commentary also. If you are not in the process, then this commentary may not be understandable. In the first commentary I described some of the provisions as being as serious as stipulating that the agreement is only valid if delivered by a flying pig during a month with three full moons. The Conference has since issued an amended version. Pigs still can’t fly.

I notice that churches are still trying to navigate this process without an attorney. Once again, that is irresponsible and doomed to failure. I have  heard from so many who are confused by the ever changing legal documents and checklists they receive, but they do not have an attorney to explain it to them. I am not an attorney, but I know when one is needed. The few churches who are successful this June (if any) will be ones who have legal counsel and originate their own counter proposals.

God willing, this is my last public comment on the matter. In the future I will only respond to inquiries from churches who have procured legal counsel.

A document is circulating from the office of the South Carolina Conference of the UMC (regarding from which office it originated or who wrote it, it does not say) that purports to offer an alternative means of complying with the impossible demands concerning liability insurance (par 7 b, c, d).  It is an amended version of the checklist. The essence of the offer allows the church to provide proof of continuous liability insurance coverage going back to 1996 in lieu of the impossible provision in the Agreement to Separate. As of this writing it has been distributed to some churches, but not all. The actual text:

ALTERNATIVE INSURANCE COMPLIANCE METHOD

A church can provide a summary prepared by an insurance professional (the insurance professional needs to be identified and have a statement that they certify the coverages presented) that lists what past insurance coverage the church had (by year) and compares it to the requirements in the separation agreement.  The summary and comparison should go back as far as they can go (but not past 1996).  They are to provide the summary and the insurance policies to the district superintendent who will pass the documents to the Conference Chancellor (representing the Annual Conference Trustees).  The Trustees will evaluate the sufficiency of the insurance coverage. 

Here is my evaluation. This offer had some positive attributes, so let’s look at those first before going on to the traps.

First, the tone seems to indicate a willingness to accommodate. Hopefully, this is an indicator that the Conference is backing off the impossible demand in exchange for a reasonable settlement. This document is not such an offer, but it may be a hurriedly produced response to distribute ahead of an actual offer. Let’s hold on to that hope.

Second, the terms are at least theoretically possible for some churches. There are practical obstacles that will make it impossible for many churches. It exceeds by a proverbial lightyear the normal length of time for preserving records.  There have been a lot of technological changes in document storage and retrieval over that time period and it is not likely that all records have survived the transition. Some items may remain in filing cabinets or on floppy discs (somewhere there must be a device that still reads floppy discs written in ASCII). The offer suggests that it will accept a shorter time frame if documents cannot be located, but it does not identify how short nor does it promise to accept it.  Nonetheless, it is at least a theoretical possibility. That cannot be said of the current demands in the Agreement to Separate.

The positives of the offer are it indicates a willingness to accommodate, an openness to alternatives, and a movement from impossible provisions to theoretically possible but practically infeasible conditions. It seems worthwhile complying with the terms as presented and doing so as quickly as possible. More importantly, however, is to submit a reasonable counteroffer (more on that at the end),

{EDIT: Between the time I started writing this commentary and the time I finished it; the Conference amended the Agreement to Separate regarding liability insurance with a new paragraph “e”. The description of the Alternative Method of Compliance in the checklist does not even come close to describing the terms in the contractual agreement. On some points, the contractual agreement directly contradicts the statement disseminated through the checklist.

Therefore, any references in this commentary to those terms being theoretically possible are void. Any references to the Conference demonstrating a willingness to accommodate or an openness to alternative solutions are void. At first reading, it looks as though they have augmented one impossible condition with an option of choosing a second impossible condition. The new paragraph e could be described as an Alternate Method of Non-Compliance.

Here is the contractual language:

e. Consolidated Coverage. The Local Church and/or the New Entity may procure the pastoral professional liability and sexual abuse and molestation liability insurance that is required by this Agreement pursuant to separate policies or as an endorsement the policy of commercial general liability insurance that is required by this Agreement. If the insurance is provided as an endorsement to the policy of commercial general liability insurance, the policy shall provide for separate limits of coverage for each insurance coverage so a claim under any particular insurance coverage does not reduce the insurance limit for any other insurance coverage provided by the policy. 

The Local Church and/or the New Entity shall deliver to the South Carolina Conference  before the Closure Date, and from time to time thereafter at the request of the South Carolina  Conference, one or more certificates of insurance that evidence that the insurance required by  this Agreement is in full force and effect, together with the declarations and endorsement  pages of each policy and copies of all required amendatory endorsements or the applicable  policy language providing the coverage required by this Agreement.

Staying with the flying pig metaphor, this new paragraph seems to be an option to put a hat on the pig and call it a duck. The problem is pigs still can’t fly.}

Here are the traps in the proposal being circulated as part of the new checklist..

First, the provision that the “Trustees will evaluate the sufficiency of the insurance coverage” is subjective, arbitrary, and nebulous—not objective, systematic, or defined. Each church’s application will be a unique document that must be processed separately. The likelihood is that churches in similar circumstances will be treated differently.  A local church has no way of knowing if they are compliant.

Second, this offer is being made 31 days into the 72-day lifespan of the separation process.  It is unlikely that the Trustees can process a sizeable number of individual submissions before March 1. Most churches will have to hold their Church Conference votes without knowing if they have a legitimate offer to receive title to their property. It would be irresponsible for a church to hold that vote without a valid offer on the property.

Finally, the complete document containing this offer states in four different places, “If anything in this checklist is contrary to what is written in the Agreement to Separate, the Agreement to Separate will prevail.” The alternative method, as presented in the new checklist, is contrary to what is written in the Agreement to Separate. The official Agreement has not changed (see EDIT above).

There are more ways to fix this than there are ways to make it any worse. The simplest way is to eliminate the impossible conditions of paragraph 7 rather than trying to reform them. Below is the wording in the North Carolina Conference agreement. It is consistent with the practice in common use throughout the UMC. The South Carolina Agreement is an outlier.

Insurance Coverage. Local Church, its successors and assigns shall be responsible for maintain insurance that covers the Local Church, its officers, trustees, directors, employees, volunteers and agents, and their activities on Local Church behalf (“Local Church Insureds.:) for all relevant times prior to the transfer, including coverage for property, casualty, automobile, workers compensation, sexual misconduct, and professional malpractice (“Liability Insurance Coverage”), at no less than the levels of coverage recommended by Annual Conferences for local United Methodist churches of the size and circumstances comparable to those of Local Church. Local Church shall provide Annual Conference with certificates of such insurance coverage prior to the Disaffiliation Date. If available for a commercially treasonable price, Local Church shall purchase a reporting endorsement or “tail end coverage” for all Liability Insurance Coverage that continues and maintains such coverage, either in the form of prior acts coverage or as a tail policy, sufficient to cover Local Church Insureds for the period prior to the Disaffiliation Date, and shall provide certificates of insurance for the same to Annual Conference.

There are things I dislike about this paragraph. Some Conferences have different provisions that I believe are more fair and more favorable to the local church. However, it is representative of common practice throughout the Church. It is usual and customary. It protects both parties. It is possible, feasible, objective, systematic, and defined. It treats every church equally. Every party can know if they have complied with the terms. It avoids having Trustees examining stacks of documentation of various types and kinds with different coverages from different agencies written in different terms from different churches. It is all the things that the SC Conference Agreement is not.

Some churches might want to include this as a counteroffer replacing the impossible conditions of paragraph 7 and the nebulous and unfeasible terms of the Alternative Method of Compliance. Perhaps some churches already have. (Have you heard me mention, you need to have an attorney? Have you heard me mention, every church needs to speak up for itself and not wait for someone to do the hard work for you?).

The new offer of an Alternative Method of Compliance being circulated through a new checklist, with all its faults and traps, at least indicates a willingness to accommodate and an openness to alternative solutions. The Conference leadership could easily fix this within a minute of opening the document in their word processing software. They could create a process that is possible, feasible, objective, systematic, and defined—one that treats all churches equally and where one can know if they are complying. They chose instead to create an agreement that is impossible, unfeasible, subjective, arbitrary, and nebulous—open to uneven treatment of local churches.

This ends my commentary. If this sounds condemnatory of the Conference leadership, it is not. It is merely descriptive of their action. I yield that they desire to be fair, are doing what they believe is right, and are acting in their best understanding of the Christian faith. To that point, and if you have a time to linger a bit, I offer a story that has lessons for those going through this process.

Matthew 5:37, But let your communication be, Yea, yea; Nay, nay: for whatsoever is more than these cometh of evil.

The General Rules of Our United Societies: First: By doing no harm, by avoiding evil of every kind, especially that which is most generally practiced, such as…the using many words in buying or selling.

In 2015 we purchased the property for the Hermitage. That is our home you see pictured on the home page of this website. When we got to the closing, the attorney was awe-struck at how easy it was. He said he had never closed a transaction as smoothly as this one. It was so simple he almost didn’t want to charge a fee, but he did. He had a right to it.

Why was it so simple? For one thing it was a cash transaction, so we did not have to involve financial institutions. Financial institutions require the use of many words in buying and selling. Most importantly, the person we bought the property from is the widow of a missionary in one of the holiness traditions, and I am a pastor that holds the historic Christian faith. We had the same understanding of the Triune God, shared the same authority of Scripture, had a common awareness of the way of salvation, and share a common commitment to holiness. That affected how we communicated with each other.  Each of us looked out not only for our own interests but for the interests of the other. We spoke plainly. We did not use many words in buying and selling. We made sure each of us understood the other. We were clear on what we could and could not do. Neither of us sought an unfair advantage over the other. Because we shared a common faith, were under a common authority, applied that faith in our life, and used the same terms, there were no surprises for anyone when we got to closing. If we had done otherwise, I might have paid a little less, or she might have received a little more. Each of us was satisfied with the agreement, and we still are. Neither of us could have expected that from the other if we were negotiating with someone outside the household of faith.

I observe that most traditionalist local churches conduct their affairs this way. Whether it is within their church or with others in the community, they know the person’s faith and integrity and share a common understanding of how to communicate. In rural and small-town in America there is nothing worse for a business than to be found having swindled a church, and little more destructive to a church than being dishonest in business. Traditionalist local churches are accustomed to negotiations where each party speaks plainly and looks out for the interests of the other. They naturally carry that perspective into negotiations with Conference leadership. That is a grave error.

Both the traditionalist local church and the institutional Conference believe they are the rightful heirs of the historic Christian faith. But every official commission that has investigated the problems in the UMC has reported that they have a better understanding of what each party means when they use the words heretic or Pharisee than we do when they use the word, Christian.

The bishops’ said in the mission statement for their own Commission on A Way Forward, the UMC has “fundamental differences regarding our understanding and interpretation of Scripture, our theology, and our practice.” That Commission responded in their final report, “there are irreconcilable theological differences.” The commission that produced the Protocol of Reconciliation through Grace and Separation was constituted of scholars from every theological perspective, but they all agreed, the UMC has fundamental differences regarding our understanding and interpretation of Scripture, our theology, and our practice. “

A people who have differences which the bishops themselves have described as fundamental, theological, and irreconcilable will have a hard time understanding each other. The UMC is fourteen overdue on a new hymnal because it cannot produce a commission that can agree on common hymns or liturgy. They will misunderstand each other not because of intent to deceive, but because they have too few commonalities in our faith, practice, and language. They must take extraordinary steps to be sure the other has said what they think they said.

Prudence suggests that those involved in this process should treat each other as two used car dealers who will never see each other after the transaction. Use plain speech. Be wary when the other uses many words. Make sure you understand exactly what the other has said.