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  Diocese, State Head to Court

By Kathryn Marchocki
The Union Leader [Manchester NH]
January 11, 2005

MANCHESTER — The state and Roman Catholic Diocese of Manchester yesterday said the agreement they reached in 2002 is valid and should be enforced, although they remain at odds over how the diocese's child protection policies and procedures should be evaluated.

In dispute is a provision requiring annual audits to determine if the diocese is in compliance with the agreement's terms and diocesan policies.

To date, no audits have been done as both sides wrangled over what the scope of the audit should be. The matter went to court last September. Judge Carol A. Conboy questioned whether the agreement is void if both sides never reached a "meeting of the minds" required for a contract to be effective.

In briefs filed in Hillsborough County Superior Court, both sides said the language clearly shows the agreement is valid; they detailed positions they will make during oral arguments set for Jan. 20.

Diocesan leaders struck the agreement under threat of criminal prosecution Dec. 10, 2002. In it, Bishop John B. McCormack acknowledged the diocese failed to protect children and that its handling of sexually abusive priests during the prior 40 years could have resulted in a criminal conviction.

The diocese argued in its 22-page brief that the agreement calls for a "compliance" audit, but the state now wants to broaden its scope to make it a "performance" audit that also would seek to assess the effectiveness of child protection policies and procedures.

The state argued in its 19-page brief that the agreement's goal to protect children and ensure a system of transparency, oversight and training cannot be achieved without assessing the effectiveness of the diocese's programs.

"The circumstances at the time of the agreement, the goal of the agreement, the plain language of the agreement all compel a conclusion that the audit has to assess whether or not the policies and procedures are implemented and are working to protect children from sexual abuse. I mean, that's the bottom line," Associate Attorney General Ann F. Larney said.

To restrict the audit to a "document review" would "render the agreement meaningless," Larney argued in her brief.

"We know the policies are effective, and we want them to be effective," diocesan attorney David A. Vicinanzo said.

"But it's not for the state to decide who is going to teach religion and who is going to be able to be a minister and what precisely those policies are going to be," he added.

As part of the terms of the agreement, Vicinanzo said the state was aware of the child protection policies the diocese implemented.

The state wants to hire international accounting firm KPMG to conduct the audit at a cost of $425,000 to $445,000 over four years.

The diocese particularly objects to KPMG's proposal to do a closed-question survey to determine "perceptions and behaviors" of about 2,000 parishioners and diocesan personnel and judge the "adequacy" and "effectiveness' of diocesan programs, Vicinanzo wrote.

Ovide Lamontagne, who was lead counsel for the diocese in negotiating the agreement, said the diocese welcomes the state to speak to as many people and review as many documents and policies as it wants to verify the diocese's compliance with the agreement.

But he said the diocese never agreed to have the state assess the effectiveness of its programs.

"The types of questions can then give the state what I would call an inappropriate role in evaluating and, by implication, directing the operation of the church . . . and the way it implements its own policies," Lamontagne said.

This would infringe upon the First Amendment guarantees of the free exercise of religion, the diocese argued.

Larney said this interpretation not only is "implausible," but also would allow the diocese to thwart the agreement's goals of transparency, oversight and accountability.

It would allow the diocese to adopt policies that, on paper, may appear to comply with the terms of the agreement, but in practice are ineffective or may not even be implemented, she said.

"Given the breadth and depth of the investigation, the evidence showing that the sexual abuse went unchecked by the diocese for decades and the diocese's acknowledgment that a conviction was likely, it defies common sense to think that the state would agree to a superficial audit that fails to consider the effectiveness of these policies," Larney wrote.

The KPMG survey, for instance, would attempt to measure whether parishioners and church personnel are receiving required child protection training, understand the policies and procedures and whether they believe the programs are appropriate, Larney said.

Lamontagne said the diocese envisioned an audit in which the Attorney General's Office would review files and documents to verify church personnel and volunteers underwent required child protection training and that all reports of suspected child abuse received after the 2002 agreement were forwarded to the state for investigation.

Lamontagne said the diocese's child protection policies and procedures, which were adopted after being reviewed by the Attorney General's Office, also would be made available to the state to review, Lamontagne said. The state also would be able to verify the diocese's policies were distributed throughout the diocese, he said.

Who pays for the audit also is subject to dispute. The diocese maintains the agreement says the state should pay for it. The state acknowledged the agreement does not specify who should pay for the audit. It proposed splitting the cost with the diocese.

 
 

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