Diocese, N.H. Go to Court over Abuse Agreement
Fallout over Scope of Annual Audits
Associated Press, carried in Boston Globe [New Hampshire]
September 26, 2004
MANCHESTER, N.H. -- The agreement the Catholic Diocese of Manchester has made with the state to avoid criminal prosecution stemming from sexually abusive priests could be in jeopardy if both sides can't agree on a key oversight provision.
"It very well may be there never was an agreement at all," Judge Carol Conboy of Hillsborough County Superior Court has told state prosecutors and lawyers for the diocese.
The agreement the attorney general reached with the bishop Dec. 10, 2002, calls for annual audits through December 2007 in exchange for not seeking indictments against the diocese. No such audits have yet been done because both sides have wrangled over the wording of one paragraph in the 10-page document.
The section in dispute says the diocese "agrees to submit to an annual audit to be performed by the office of the attorney general" and audits may include, "without limitation," record inspection and interviews with diocesan personnel.
The state argues a "full and fair" audit is needed to determine whether the diocese is complying with the agreement's terms. The state is calling for mandated child-abuse reporting, safety training for all diocesan personnel, and the establishment of child protection policies and protocols.
Diocesan attorney David Vicinanzo said his clients have complied with the agreement.
"For the last several years, the diocese has implemented extensive policies to ensure a safe environment for children, including the policies referred to in the December 2002 agreement," he said.
Both sides took the issue to court Friday after discussions over the audit's scope and methods broke down. Conboy said she's reluctant to "fill in the gaps" in the document's meaning because she may not accurately convey the sense both sides had when they created it.
She asked Vicinanzo and Associate Attorney General Ann Larney for documents outlining arguments on "whether the agreement should be enforced, or is there an agreement to enforce it, and is that paragraph so vague as to not create a contractual obligation."
She said that if she concludes the groups were "talking at cross-purposes" during negotiations, there "may not be an agreement."
The decision will hinge on a concept known as "a meeting of the minds." John Orcutt, a professor at Franklin Pierce Law Center, said the mutual understanding the term implies is generally required for two parties to form a binding contract.
"We believe there was a meeting of the minds . . . as to what an audit means," Larney said.
The diocese acknowledged in making the agreement that church officials failed to protect children. It also acknowledged as part of the agreement that its handling of abusive priests over the last 40 years could have resulted in a criminal conviction.
The state proposes having international accounting firm KPMG's forensics practice conduct the audit. KPMG has proposed asking about "60 closed-ended questions" to about 2,000 people in the audit. It lists church leaders, diocesan personnel, parishioners, victims, victims advocates, and law enforcement representatives as possible interview subjects.
Vicinanzo filed a legal motion in May, objecting to having thousands of "so-called" church personnel, including lectors, Sunday school instructors, ushers, or greeters, interviewed to test their knowledge of state laws on sexual abuse and reporting it. He contended that it would amount to an "unnecessary incursion," go beyond the agreement's scope, and have a "chilling effect" on volunteer participation.
Larney said the audit was initially estimated to cost $1 million but will cost "less than half that" and still be comprehensive.
"The cost issue is not driving this," she told reporters. "Defining the scope of the audit and the scope of the agreement is what's driving this dispute."
The judge unsealed the case file and asked both sides to prepare for oral arguments.
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