Administrative Leave: it’s more than penal law
First, and foremost, let me state once again, that one of the main reasons I entered the conversation regarding the Communion controversy was to defend Fr. Guarnizo from what I view as the injustice done to him when he was placed on administrative leave. It is fine for people to disagree wtih my opinion that Fr. Guarnizo erred in denying Ms. Johnson Communion, but it is not fine for them to think that thereby I am trying to persecute a priest. They need to re-read my posts carefully and separate the issues (ah, yes, separating the issues so that conversation can take place that will advance the clarity of the arguments and not just resort to digging in our heals to prove a point at all costs, often times at the cost of charity and civility — you wouldn’t believe what some people write in com-boxes! (and never see the light of day because I moderate mine.))
What Fr. Anonymous and I disagree on, and to which major point he’s still not responding, even in his latest volley, is what ‘administrative leave’ is, or isn’t. What Fr. Anonymous doesn’t seem to acknowledge is: a) that administrative leave is operative in things other than penal law, and b) that I am against the use of the s0-called ‘administrative leave,’ in anything other than a penal process.
Fr. Anonymous, using John Beal’s 1993 article as his authority, argues that ‘administrative leave’ can only be used in a penal process. I disagree. I have several observations.
1. ‘administrative leave,’ as we all know, does not exist, as such, in canon law: it is a term used to describe the exercise of administrative power by which an Ordinary restricts the ministry of a cleric.
2. it first came about in penal cases with reference to c. 1722 and became popular/necessary when dealing with priests accused of sexual abuse of minors
3. John Beal wrote his article at the time when ‘administrative leave’ was becoming popular
4. John Beal’s discussion is about penal law, not about ‘administrative law’ per se. He is arguing a controverted point in penal law about at which point, in the penal process, when the penal process is being used, c.. 1722 could be enacted. He is not arguing that ‘administrative leave can only be enacted in a penal case.’ He is arguing about a very specific set of circumstances and saying that ‘in these circumstances, administrative leave can only be enacted at this point, and not at that point,’ without referring to if and when administrative leave can be enacted in other (i.e. non-penal) circumstances. Fr. Anonymous either does not understand this crucial distinction, or he is simply refusing to acknowledge it.
5. Since 1993, canonists have begun using administrative leave in other, non-penal, circumstances such as occur when a priest wishes to take a ‘leave of absence’ from the ministry — another non-canonical term. Administrative leave has become the way that superiors let clergy leave the ministry without getting into penal law, or because they have reached a gentleman’s agreement. For example, a priest abandons the ministry because he has become involved with a woman. Canon law would say that he is to be suspended, in order to bring about his repentance so that he could return to ministry. Instead of declaring a suspension according to the norms of penal law, Ordinaries will often let the priest go off into the sunset on ‘administrative leave.’ Adminsitrative leave is also used in the case of ‘problem clergy,’ the ones who haven’t really committed a crime but who are a nusiance to the chancery (in their opinion).
6. Adminsitrative leave has also developed from using c. 1722 as its basis to using c. 223. This latter use is debated, and has been criticised by Cardinal DePaolis (I’m sorry I don’t have the book with me to make the citation — although the book is a series of essays in Italian on incardination; however, the important point is not the criticism but that administrative leave is being used with something other than c. 1722 as it’s starting point.)
7. My contention is that penal law is not operative in this case because no delict/crime has been committed. The introduction of ‘administrative leave’ does not mean we are automatically dealing with penal law. Developments in caonicial praxis since the early 1990′s prove that. Therefore, with all due respect to John Beal’s excellent article, it is not needed in this case.
8. No one has claimed to be using penal law, certainly not the Archdiocese.
9. Therefore, to argue against the unjust use of ‘administrative leave’ (if it ever is just). one needs to argue from some other perspective than penal law. I have done that by stating that the only other form of ‘administrative leave’ (that is, the only other way a priest may be removed completely from ministry other than by a penalty, or the correct penal application of c. 1722 pending a penal process (whether judicial or administrative,)) is the institute of irregularities. But there are no irregularities present in the circumstances of this case either. Therefore, completely removing a priest from ministry in this case, unless there are facts which we don’t know, is a violation of Fr. Guarnizo’s canonical rights.
So Fr. Anonymous and I both agree that what has happened to Fr. Guarnizo is not right. The real question we are discussing is why that is true. I think it is incorrect to argue from penal law. I do not believe that penal law is the only base from which to argue. Fr. Anonymous’ amassing of citations does not respond to my argument: I still maintain they are irrelevant. In effect, Fr. Anonymous is arguing that an injustice has occured because c. 1722 has not been invoked properly (as if to say that if it were invoked properly, then administrative leave would be okay.)
With charity, Fr. Anonymous, you still need to be careful about references. What is the source for your quotation from Bishop (then Father) Daneels, the Secretary (then Promoter of Justice) of the Signatura? He seems to be talking about adminstrative penal processes. Therefore, Beal’s argument is a propos because he is discussing penal law. Citing him as an authority, however, does not advance your argument. Can you see that we are not dealing with penal law in this instance? or can you demonstrate why we must argue penal law? (Beal’s article is not an answer to that question, I hope you can see.)
What would you say if you spoke to the Ordinary and he replied, “but Fr. Anonymous I did not use penal law in placing Fr. Guarnizo on administrative leave?” Would you have a response? Mine would be to say that, if penal law was not the basis of the action, then the only other avenue available to the Ordinary would have been to declare an irregularity, but an irregularity is clearly not at play here. I would then ask the Ordinary to inform me on what basis he enacted ‘administrative leave. I argue that there is no other basis by which to remove a priest completely from ministry.
Father, it’s not enough to insist that the Ordinary must argue penal law. You have to show why. And in showing why, you have to do more than demonstrate that some very excellent canonists agree that administrative leave can be enacted in penal law — that doesn’t answer the question. We all agree administrative leave can be enacted in penal cases. You have to be able to argue from the Ordinary’s basis (even if it is erroneous.)