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  Court: NH Can Oversee Audit of Diocese

By Kathryn Marchocki
The Union Leader [Manchester NH]
March 23, 2005

MANCHESTER — Ending a hard-fought dispute between the state and the Roman Catholic Diocese of Manchester, a judge yesterday ruled state oversight of the effectiveness of the church's child protection policies is permissible under the agreement both sides reached in 2002.

Hillsborough County Superior Court Judge Carol A. Conboy also ordered the state and diocese to split the estimated $425,000 to $445,000 cost of the audits intended to determine the diocese's compliance with the agreement.

The agreement called for annual audits through 2007. To date, none have been done.

"The court's order is a victory for the children of New Hampshire," Attorney General Kelly A. Ayotte said last night.

"This order will ensure that the state can conduct a thorough and independent review of the diocese's policies. The state can now evaluate whether the diocese has programs in place that effectively protect children," she added.

Ayotte said her office will contact KPMG auditing firm today and make arrangements to begin its first audit as soon as possible.

The diocese fought against the state's desire to measure the effectiveness of its child protection policies and survey parishioner and employee perceptions of how well the diocese is meeting its obligations under the agreement.

Its attorneys argued that would exceed the "compliance" audit the diocese agreed to and would create an unconstitutional state entanglement in church affairs.

"There is nothing to suggest that the Attorney General wishes to institute a system of 'official and continuing surveillance' or one which substitutes the state's value judgments for church policy," Conboy wrote in her 14-page decision.

"In short, the court does not conclude that the proposed audit threatens the church's First Amendment rights, due process rights or any other federal or state constitutional rights," the judge continued.

Last night in a written statement, the diocese said Conboy's decision was being reviewed by diocesan counsel.

"Since Dec. 10, 2002, the diocese has and continues to report all allegations of sexual abuse of minors by church personnel, regardless of when they occurred," the statement said. "Since 2001, the diocese has and continues to train thousands of adults regarding a safe environment in the church and society."

The statement said the diocese "looks forward to reviewing" the 60 closed-ended survey questions the Attorney General proposes to administer to parishioners and diocesan employees.

Admitting its past handling of sexually abusive priests could have resulted in a criminal conviction, the diocese struck the agreement with the state to avoid prosecution under the state's child endangerment statutes.

Reporting all child sexual abuse allegations to civil authorities, ensuring all diocesan personnel have been trained in child abuse reporting laws, developing child protection policies and protocols and implementing ongoing safety training programs are among conditions the diocese agreed to under the agreement.

The diocese has not objected to being audited. Rather it opposed the type of audit the state proposed.

The diocese argued it is up to it, not the state, to assess the effectiveness of the church's child protection policies.

It said it agreed to an audit that would verify its compliance with the agreement's terms, not the "performance" audit it said the state proposed.

Conboy noted the agreement does not specify the type of audit to be done.

But under the express terms of the agreement, the state must measure effectiveness and survey parishioner perceptions to determine if the diocese is complying, she said.

Conboy cited as one example the provision that the diocese maintain an "appropriately trained and easily accessible" office dedicated to handling child sexual abuse allegations.

This not only obligates the diocese to maintain the office, but also to assure it is easily accessible to anyone who wants to bring a complaint, Conboy wrote.

"Assessment of compliance with this obligation may be reasonably accomplished by, among other things, the surveying of parishioners and employees as to their 'perceptions and behaviors,'" Conboy said.

"To conclude otherwise, would contravene the stated objective of the parties — to effectively protect children from sexual victimization by clergy or other church personnel," she continued.

The diocese has objected to the proposed closed-ended question survey of 2,000 parishioners and diocesan employees to learn their perceptions of diocesan compliance.

In another example, the judge noted the diocese agreed to "revise as necessary" its child protection policies and protocols.

"The diocese's agreement to revise such policies 'as necessary' implies an agreement to submit to an audit to determine whether its policies are working — that is whether they are effective," she said.

She said this is consistent with the diocese's obligation under the agreement to "ensure a system of accountability, oversight, transparency and training."

Conboy also ordered the state and diocese equally share the cost over the life of the agreement, saying they are equally responsible for the agreement's failure to address this issue.

Both sides have wrangled over the cost and scope of the audit since late 2003. The dispute went to court in September after negotiations broke down last summer.

 
 

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