What the Presiding Bishop ought to be saying about the constructive resignation of San Joaquin's (former) standing committee

This weekend the Diocese of San Joaquin held a reorganization meeting in the wake of the departure of its former bishop, John-David Schofield. Some conservatives have protested that the meeting was supposedly illegal. Their argument is that a majority of the San Joaquin standing-committee members did not resign, nor did they leave the Episcopal Church; therefore, the protestors claim, the standing committee continues to be the Ecclesiastical Authority in the diocese, meaning that the national church has no authority to replace the elected standing committee nor otherwise to interfere in diocesan affairs.

In trying to justify the national church's action, Presiding Bishop Katharine Jefferts Schori goofed: She relied (1) on the supposed deposition of Bishop Schofield from ordained ministry, and (2) on the argument that the former standing committee members took action inconsistent with their fiduciary responsibilities.

That was a mistake as to the first point because the deposition of Bishop Schofield never happened (the deposition motion having failed to achieve the canonically-required number of votes). 

And it was a mistake as to the second point because "group guilt" is unacceptable. The national church should not be tarring the DSJ standing committee members with the brush of breach of fiduciary responsibilities until, for each individual member, the church makes a determination (involving at least some sort of notice and opportunity to be heard), that the member's personal conduct warranted such action.

What the PB should have done was to take a simpler approach, namely declaring that:

• Bishop Schofield had indisputably resigned;
• the standing-committee members had constructively resigned by failing to dissent publicly from the San Joaquin diocese's purported secession;
• the canons do not contain an express procedure for dealing with such an extraordinary situation; and
• the Presiding Bishop and Executive Council, acting under their general canonical authority, are going to do what needs to be done to deal with these situations.

Specifically, the PB should have gotten the Executive Council, and also the House of Bishops, to approve the following resolution: 

1. It's beyond peradventure that Bishop Schofield has resigned his see in TEC. He walked off the job, publicly announced his intention not to return, and submitted a letter of resignation from the House of Bishops.

The fact of his resignation was not altered by the House of Bishop's failure to muster the required votes to impose a particular consequence, namely complete deposition from ordained ministry.

Nor was the fact of the resignation altered by absence of approval by the House of Bishops. The approval requirement is not a prerequisite to the effectiveness of a resignation (in legal terms, a condition precedent). Bishop Schofield's resignation was unauthorized, and therefore constituted a breach of the canons, but it was effective even without authorization.

Bishop Schofield is thus still technically an ordained bishop, because the motion in the House of Bishops to depose him from ordained ministry did not achieve the required number of votes. But, by virtue of his actions, he is no longer bishop of TEC's diocese of San Joaquin. 

2. Few if any members of the San Joaquin standing committee timely dissented publicly from the ultra vires action of the diocesan convention on December 8 last, which purported to secede from the Episcopal Church. (I don't know whether this statement is true; anyone know otherwise? Link, please?)

3. Every member of the San Joaquin standing committee who did not timely dissent to secession, publicly and on the record, is deemed to have constructively resigned, even if individual members later professed their desire to remain in the Episcopal Church.  In the extraordinary circumstances presented by the December meeting of the diocesan convention, the burden was on each individual standing-committee member to make a clear, timely statement of his dissent. This borrows from corporate- and securities law, in which each individual member of a board of directors is deemed liable for certain corporate actions, regardless whether she personally favored it, unless she timely stated her dissent on the record.

4. As a result, the San Joaquin standing committee can no longer muster a quorum and is legally incapable of taking any action whatsoever. (I have no idea whether this statement is true under the diocesan canons.)

5. The extraordinary situation described above is not expressly addressed by TEC's constitution and canons.  The Presiding Bishop and Executive Committee will therefore take such action as is necessary to replace the DSJ's former leadership, proceeding under their general canonical responsibility "for leadership in initiating and developing the policy and strategy in the Church ..." (Canon I.2.4(a)((1), concerning the Presiding Bishop) and "[to] have charge of the coordination, development, and implementation of the ministry and mission of the Church ...." (Canon I.4.1(a), concerning the Executive Council).