Judge Looks at Audit Dispute between AG's Office, Diocese
By Kathryn Marchocki
The Union Leader [New Hampshire]
September 28, 2004
From the state’s perspective, the landmark agreement it reached with Roman Catholic church leaders under threat of criminal prosecution in 2002 is crystal clear.
"We believe the language is very clear. The state may look at any documentation, their policies and procedures without limitation and we can interview diocesan personnel without limitation," Associate Attorney General Ann F. Larney said yesterday.
"That means we can interview 100 of them or 1,000 of them," Larney added.
The diocese yesterday said they have no problem with investigators talking to whomever and as many people as they want. Their objection is whether questions are intended to measure compliance with the agreement, or the effectiveness of their child protection policies and procedures.
"We agreed to have compliance measured, not effectiveness," said the Rev. Edward J. Arsenault, diocesan chancellor.
"Compliance and effectiveness are different terms. Can they go together? Sure. But we agreed to have to the state measure compliance," he added.
Last Friday, the dispute went before a judge, who now questions whether there ever was an agreement at all.
Hillsborough County Superior Court Judge Carol A. Conboy, who signed the agreement, said at issue is whether both sides came to a "meeting of the minds" required for a contract to be binding. She asked both sides to present legal briefs and prepare for oral arguments
In conflict is a three-sentence paragraph that deals with the auditing provision in the agreement the diocese signed Dec. 10, 2002.
In striking the agreement, the bishop acknowledged the diocese failed to protect children and its handling of sexually abusive priests during the last 40 years could have resulted in a criminal conviction.
Annual audits are one of eight terms and conditions called for in the agreement. The section reads:
"The Diocese of Manchester shall retain all documents and information relating to allegations of sexual abuse of minors until the death of the Diocesan Personnel accused.
"For a period of five years ending Dec. 31, 2007, the Diocese of Manchester agrees to submit to an annual audit to be performed by the Office of the Attorney General regarding compliance by the Diocese of Manchester with the terms of this Agreement and Diocesan policies. The audit may include, without limitation, the inspection of records and the interview of Diocesan Personnel."
To date, no audit has been done.
"You have to look at the entire agreement and its goals and purposes. Read together, that section is very clear," Larney said.
The agreement’s introduction cites as one of its goals ensuring "a system of accountability, oversight, transparency, and training."
The state wants to "make sure the Diocese of Manchester fulfills the goals of the agreement to protect children so that what happened in the past never happens again," Larney said.
The state proposes to have international accounting firm KPMG’s forensics practice conduct the audit. It would cost between $425,000 to $445,000 over four years, Larney said.
While Larney said she did not know what questions KPMG investigators would ask, she said the firm is highly experienced and their goal would be to "see if people understand the child-abuse reporting requirements, their training and their responsibility to protect children."
"I wouldn’t want to characterize it as a test," she said.
"You can’t just talk to the hierarchy of the church. You have to talk to the people who work in the parishes. You have to get a sense statewide that this process is working," Larney said.
But diocesan officials said they agreed to a "compliance" audit, not a performance audit designed to measure the effectiveness of their programs, policies and procedures.
"The diocese is committed to measuring effectiveness. It is not what we agreed to have the state measure," Arsenault said.
Added diocesan attorney David A. Vicinanzo: "Our doors are open to the state speaking to anyone they want, to looking at any documents they want to. That isn’t the issue.
"The issue is when the nature of the audit evolves from becoming the compliance audit, as we agreed to, to an effectiveness audit that injects the state into the management and decision-making of the life of the church."
Conboy has said that, at this point, she does not see the conflict as a First Amendment church-state issue, but as a contractual issue.
Asked whether the state would proceed with criminal prosecution of the diocese if the agreement is determined to be void, Larney on Friday said, "That would be a decision for the attorney general to make."
But the child endangerment laws the diocese admitted it may have violated are misdemeanors with a one-year statute of limitations.
The state argued the clock didn’t begin ticking on the one-year statute of limitations until February 2002, when the pattern of conduct of reassigning abusive priests was discovered.
"Statute of limitations was an issue in the past and it will remain an issue and we are prepared to litigate it and we are confident we will prevail," Larney said yesterday.
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