"It would mean a great deal if [McDonnell] cleaned house. He needs to take the responsibility of showing he treats survivors who come forward as doing a service to the diocese and not as enemies." - Peter Pollard, March 10, 2004, member of SNAP (Survivors Network of those Abused by Priests).
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Bishop McDonnell has not exactly treated victims as enemies – but neither has he embraced them. Instead, he seems content to watch as the victims, their concerns now "settled", once again recede into a shadowy past.
For example, he has not responded to the non-monetary demands of the victims which Mr. Pollard presented in December, 2008. And, in the yearly review of important stories in the Catholic Observer, a story of some 3,000 words, the $8.5 million settlement rated only about 50 words – the same amount of space covering a supposed apparition of the Blessed Virgin Mary in a damaged window at Mercy Hospital.
Despite Mr. Pollard's hopes in 2004, a review of Bishop Timothy A. McDonnell's actions shows that he did not clean house. The same chancery officials that surrounded Dupre for his 9 years in office (Sniezyk, Liston) the same lay advisors (Schuman, Egan) and the same media crew (Dupont, Pomerleau) continued, and continue essentially unchanged today.
Observers of entrenched bureaucracy will recognize the phenomenon. Some governmental offices can be revisited after a span of five or ten years, only to find that the same people and thought processes are still at work.
And so, corporate life goes on, uninterrupted, in the offices on Elliot St. The chancery continues to be legalistic in intent, defensive in posture, and deadly serious in outlook. Hardball is the rule.
While the Catholic Observer is supposed to be a window on the doings of the people of the Diocese, it is hard to find a story that does not relate directly to the official running of the Diocese, and impossible to find one that does not portray administration in a favorable light.
Regarding the settlement, McDonnell has succeeded in turning the backlogged lawsuits of the Dupre era into slightly over 100 settlements – but these have come at considerable cost. The unreimbursed amount that the Diocese has spent to date is more than $5.5 million.
More important, the continuation of Dupre's legacy has contributed to a grave loss of trust. Many view the Diocese as a polluted vessel. In the next few posts, we examine the rules of the game in the Springfield Diocese, those that constitute the Diocesan Playbook.
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The Playbook has only one goal:
1. protect corporation sole.In order to do this, the Diocese employs many tactics: we concentrate on four:
1. maintain position
2. make decisions by not making decisions
3. avoid responsibility
4. withhold information
We'll look at how these tactics have been used in the Dupre and McDonnell administrations.
But first, a word about the goal (protect corporation sole).
The "Springfield Diocese" is really two things. One is the canonical entity sanctioned by Rome in 1870. The other is the legal Diocese created by the Commonwealth of Massachusetts in 1898. We donate money and property to the legal Diocese and trust them to use it for the goals of the canonical Diocese.
The canonical Diocese is the one that includes all parishioners and clergy as the People of God, organized into a "particular church". It guides our faith, provides solace for the human condition, and challenges us to find a place for redemptive suffering in our lives. The canonical Diocese is part of the communion of saints on earth. It is one with, and sustained by, Jesus Christ.
The legal Diocese is known as corporation sole. It is no exaggeration and not a sign of disrespect to address the Most Reverend Timothy A. McDonnell as the CEO of the corporation known as the Diocese of Springfield.
Though they have the same name, these two "Dioceses" are quite different. Even the standard reference work used by the USCCB, the "New Commentary on Canon Law", has grave reservations about how compatible "corporation sole" is with canon law.
Sometimes, the bishop's motivations for action stem clearly from the canonical side; other times, his deeds are just as clearly meant to enforce a business decision. Sometimes, it can be interpreted either way. I suspect that bishops like this ambiguity.
It should be clear that in this section we refer mainly to the business decisions of the Diocese, shown by their actions over the last twenty years or so. In my opinion, it is the Bishops' desire to protect and preserve corporation sole, at all costs, which has led to most of the tactics described here. All of the tactics are legal, but many are questionable on moral grounds. The tactics were largely instituted by Dupre, and have been carried forward, in a slightly different style, by McDonnell.
An interesting aspect of the $8.5 million litigation is that part of our attorney's argument in Paper 50 was that the Springfield Diocese was essentially canonical rather than civil. He described it as part of a larger unit, sort of like a franchise of a McDonald's. Mr. Egan also tried to extend the "specialness" of Dioceses to the association of attorneys that represent them. He argued that an adverse decision in Springfield would affect the legal prospects of all other U.S. dioceses. It's clear that he was trying to apply canonical reasoning as a way to avoid civil responsibility.
This was rejected by the judge. He ruled instead that the Springfield Diocese was a stand-alone corporation, responsible for its own actions.
He said that the Springfield Diocese had the same duty toward its employees (its priests) as any other corporation. The Springfield Diocese was not excused from normal obligations, even though in the canonical sense it does have a "special quality" that other corporations lack. This is but one illustration that the civil Diocese and the canonical one can be, at times, very far apart.
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When the first misconduct commissions were formed in the early 90's, the Times suggested that "…such a board might still leave final decisions to the cardinal, but it would report directly to him and not through the church bureaucracy." But soon, the commission in Springfield was doing this very thing, if by "bureaucracy" we include the chancery's legal department. This became especially clear during the toxic buildup of cases during 2002.
We've seen that it was the legal opinions of John Egan and others that caused the commission to begin refusing complaints if the victims had already filed suit. Increasingly, commission hearings took on the appearance of an armed camp. By fall of 2002 the new emphasis on litigation was spilling over into the Hampden County legal system.
Throughout 2003 Dupre attempted to throw suits out of court in many ways. His justification was that: "… we should not throw away our defenses, especially, those based on the First Amendment and the laws of Massachusetts…".
Clearly, by fighting the victims, he felt that he was living up to his role as head of the Diocese. What is not clear is whether he was acting on behalf of the corporate Diocese, or of the canonical Diocese. But whatever his motivations, his actions showed that he did not see the self-interest of the victims and the Diocese as compatible. Just as clearly, he was dead set against allowing the victims their day in court.
Then, he resigned.
At first, Bishop Timothy A. McDonnell was greeted as something of a savior. Within days of his appointment in March of 2004, he met with representatives of victims and seemed eager to solve the backlog of cases. With him came a significant change in personal style.
Dupre was a hometown boy made good. Though initially forced into the religious life, he grew to accept it. Dupre seemed destined to wear black, and had a gaunt, funereal aspect to him. His persona was that of a combative canon lawyer.
McDonnell, raised in the hothouse world of New York politics, looked larger than life compared to Dupre, with many more tools at his command. He charmed many during his initial appearances in Springfield, joking in a self-deprecating way that he was worried about getting lost on the road – that he might confuse North Adams with Northampton.
Yet, it's important to remember that during the transition period, McDonnell was under enormous pressure to solve the Diocesan crisis on both the canonical and legal levels.
In April, 2004, McDonnell announced that he wanted to disassociate the Diocese from a $100,000 fund set up by Dupre the previous Fall, funded by anonymous donors to aid indigent, defrocked priests, a fund that newly-defrocked Richard Lavigne would qualify for on May 1. However, a month later, the fund was still in place.
This delay led to public criticism by Rev. James Scahill. He urged the Bishop to dissolve the fund or put it outside Diocesan control. It has since become clear that Scahill had already criticized McDonnell about the fund in private, probably during meetings of the Presbyteral Council. Scahill was a member of this group of 18 elected priests who helped govern the Diocese.
The new Bishop blew up and retaliated. He stated at a council meeting that Scahill had done as much damage to the Diocese as Lavigne. He fired Scahill from the council. When word got out of the comparison of Scahill to a convicted pedophile, victims and parishioners were outraged. The bishop was soon forced to apologize.
Yet, he insisted in his apology that "The Presbyteral Council is meant to be an advisory group to the bishop, not an adversarial one." He characterized Scahill's statements as "personal attacks."
Apparently, Scahill's greatest offense was that he took his criticism public. McDonnell said that "…the public second-guessing of my motives has slowed the [healing] process and, in some cases, may have derailed it…" He did not explain how Scahill's statements had slowed progress.
He also said: "While we can disagree on the arguments, there is no way that an attack by a priest on his bishop does not have consequences…you don't do that and not have repercussions."
This rather blunt display of the command hierarchy would not be repeated. Ever since, McDonnell has taken a different tack. His public statements about abuse are few, invariably kind, and are reflective in tone, even somewhat naïve.
And yet, at the same time, the Diocesan newspaper, of which he is publisher, has on several occasions editorialized on the shortcomings of SNAP (Survivors Network of those Abused by Priests). One example, published at the time of the $8.5 million settlement, is
here, in which the group is tarred as an "attorney-allied group". Another, a reaction to the Burlington damage awards, is
here.
It's difficult to gauge McDonnell's motivations, partly because he avoids speaking publicly about controversial topics. A notable example was on July 2, when the $8.5 million settlement was announced. He was out of town and not available for questions or additional comments during that watershed event.
One might describe McDonnell's approach to governance as "passive-aggressive". He asked parishioners to speak out about parish reconfiguration – but then restricted the "listening session" participants to a selected few. He mandates councils for every parish – but then does not work with them, even when critical decisions are made. He expresses solidarity with victims – but then finds time to criticize SNAP and other victim's organizations.
In a memorable exchange in April of 2008, the mother of two young boys filed a lawsuit against the Rev. Aaron Cote. Cote was not a priest of the Diocese, but the alleged crimes took place in the Springfield area, and Cote had been assigned here in the past. SNAP held a press conference outside 65 Elliot St., pressing McDonnell for more outreach to victims through the Observer, parish bulletins or the Diocesan web site.
The only response from McDonnell was that he knew little about the family or their accusations. "They are talking about it but they are not sharing," McDonnell said of the Survivor's Network. "That's what makes it difficult."
Another recent example was when William Nash, a native of the Springfield Diocese, showed up at Elliot St. to ask for help in defrocking a known sex offender, the Rev. James Tully. Instead, in the words of a local priest, Nash was "…condemned and chastised…" by McDonnell, simply because Tully was not a Diocesan priest. This super-sensitivity to criticism, such that the appearance of propriety seems more important than the pursuit of justice, raises questions about McDonnell's priorities.
One of the positive differences between Dupre and McDonnell is that while Dupre made it clear that pursuing laicization for troubled priests was the last thing on his mind, McDonnell has not opposed it.
In Dec. of 2002, it was reported that Dupre was not seeking laicization for Rev. Koonz, Kennedy, Meehan, Graves, and Dube. Yet in 2006, when Meehan was laicized, we learned from the Republican that another "6 or 7" were also candidates. Indeed, later that year Edward Kennedy and Alfred Graves were defrocked, joining Meehan, Lavigne and Malboeuf. The Diocese has not explained why its web site or print media carries no information about defrocked priests, and why only cursory announcements are made. It's also not clear where the pressure is coming from to continue the defrocking program – from McDonnell, the U.S. bishops, or the Vatican.
The defrocking initiative is important because it generates a great deal of paperwork between the Vatican and Elliot St. This helps to explain why the insurance lawyers were so eager to see the cache of secret chancery papers during the recent $8.5 million settlement.
Other than questions of style, there's been a remarkable continuity between the policies of the two bishops, as reflected in the tactics which we now turn to.
The first point of continuity between the two administrations is the Diocesan law firm of Egan, Flanagan & Cohen. This law firm has been in place for over 50 years, spanning back to the Weldon administration. From all appearances, the legal strategy of John Egan, lead counsel, and the legal strategy of the Diocese are one and the same. Whoever has been calling the shots, the legal strategy of the Diocese has been highly questionable, because it has placed secrecy before justice.
Whatever the meaning of the dollar amounts of the settlements, which, if anything, are on the low side, the moral costs have been high.
We now move from the macro-level of the Playbook to how it's been used in both administrations. Many of these tactics overlap. But, they all contribute to a solitary goal – the protection of corporation sole.
Playbook Tactics:1. maintain position
(we're broke; we're special; it's someone else's fault)
2. avoid decisions
(make decisions by not making decisions; stall; litigate)
3. avoid responsibility
(hide power; create layers to diffuse accountability)
4. withhold information
never admit guilt; never give up defenses; maintain secrecy)
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1. maintain position
(we're broke; we're special; it's someone else's fault)The Diocese has a peculiar position, not easily maintained. It acts as if it's broke – and at the same time pretends it's rolling in money. This contradiction is hard to explain. Perhaps they think that half the Catholic population expects them to be dependent on the Widow's Mite, while the other half expects them to invest as wisely as other corporations. Whatever the reason, the financial facts are cloudy.
Yearly operating budgets show in-and-out cash movement, but are never supplemented by a net worth or balance sheet, something every household is familiar with.
In a press release announcing his decision to sue the insurance carriers, McDonnell stated that "…the resolution of these issues is necessary so that the Diocese can resolve outstanding, legitimate claims…" This ploy of making the pending claims dependent on the reimbursement for the settled claims was sharply criticized by attorneys for the victims, to no avail.
Although McDonnell insisted on other occasions that the well was dry, this appears not to be the case. In a Republican story from November 15, a portfolio of more than $30 million was referenced. It is hard to see how the Diocese was prevented from using this money to satisfy the claims that McDonnell says he wanted to honor.
When victims from the second phase complained to McDonnell that their average award of $76,000 compared unfavorably to the average award of $168,478 of the first phase, the response was not sympathetic. The Diocesan statement was that "our hands are tied" because the insurers only gave a certain amount. This defense ignores that Travelers and Aetna and the other insurance companies were not the ones who were responsible for the priests during the time of the alleged crimes.
The "we're special" argument pops up any time that the employer/employee relationship of bishop and priest is questioned.
In the Dupre era, in April of '03, Egan argued before Judge Wernick that "…in Catholic belief, the relationship of a priest to his bishop is different than that of an employee to a secular employer…". Over a dozen lawsuits were delayed by the argument.
The same point was recycled by Egan during the McDonnell era in Paper 73. He said the Diocese "…contends that its relationship with its priests is different than that of an ordinary employer. Priests are not ordinary employees. They are consecrated to the priesthood on a lifetime basis, absent the extraordinary step of laicization. The priests take vows in connection with their ordination. The relationship between the Bishop and the priests is a sacred one…"
In neither case did the argument hold water. In 2003 the Diocese was not able to throw the cases out, and in 2008 the judge found instead that the Diocese was subject to all the secular rules of law for an employee's behavior. The judge said that examination of documents about the bishop-priest relationship was proper, because it might lead to admissible evidence. Nor did examination of them infringe on church decision-making about the priest's employment.
In 2005 there was a fight over a new law that would have required churches to report yearly income. McDonnell claimed that the Diocese was "special" and needed to devote all its money to good works. Apparently, McDonnell doubted that filling out financial disclosure forms was a good work. He said that the burden of filing would cost the Diocese as much as $1 million dollars, because individual parishes would be required to file – though the bill's sponsor, Sen. Marion Walsh, said that only dioceses – not parishes – would be required to file the reports.
It was later learned that the $1 million figure was claimed by a lobbyist for the bishops group (the Massachusetts Catholic Conference). He made the claim during testimony about potential costs for the Boston archdiocese, not the Springfield Diocese.
McDonnell's position was that "…the bill is a violation of the First Amendment…" and he promised that if the bill was passed, the Diocese would join other churches in a lawsuit to prove that the new law was unconstitutional.
But, it was clear that the bill was about money and accountability – not religious belief. The purpose of the bill was the disclosure of financial information – a sensible requirement that other non-profits such as the Boy's Club, Girl's Club and Red Cross take for granted, and that donors appreciate.
The Diocese claimed that their "specialness" allowed them to criticize Representative Daniel Bosley in August of 2008. Bosley had suggested a moratorium to promote better decision-making about changes suggested for the Adams church community. The Diocese said that the First Amendment prohibited Bosley from commenting on church affairs. They said that he suggested "...a direct interference in a purely religious matter…". The Diocese did not explain how dialogue about administration of church property related to protected religious belief.
"It's someone else's fault".
The Springfield Diocese has a long enemies list, and keeps it updated. The "secular media" and other advocates of free speech are a favorite scapegoat. Letters to the editor, editorials, blogging, victim support groups, and even juries are blamed for church troubles.
The Diocesan annual report for 2006 noted that the "…staff of the Catholic Observer continues to produce a highly regarded and award-winning newspaper that serves to balance the many times sensational reporting on the Catholic Church found in the secular media..."
However "highly regarded and award-winning", the Observer may be in some quarters, it shows an unusual antipathy to free expression, even Catholic free expression. For example, throughout the three-year insurance trial, it is doubtful that a single letter to the editor commented on the trial issues. At least, none were found in a review. The only mention of the lay reform group "Voice of the Faithful" over the last few years was in an article gloating about the problems they've encountered.
An editorial in the Observer complained about the very existence of the internet. The writer admitted that "…the Internet has made it possible for Catholics to find reliable information about happenings in the church from a variety of sources…", but still concluded that "…we can't say it has made our job here at the Catholic Observer any easier…". Perhaps if the Observer communicated with parishioners by posting articles on their web site, it might help. Creating and publishing an email address for Bishop McDonnell might put him in touch, as well.
Sometimes, in finding fault, the Diocese switches horses. For example, in the Dupre era, the lawyers for the insurance company were allies. They worked on the same side of the table as the Diocese, and helped wear down the victims.
Then, about a year into the McDonnell era, the lawyers for the insurers broke ranks when they were sued. For the next three years, they were in opposition, across the table from Egan & Co.
Not surprisingly, once the insurers changed position, they became a target for Diocesan scorn. They were regularly blamed in the Observer for the leisurely pace of the three-year settlement trial, although if one took the trouble to look at the court papers, a different picture emerged. Study of the court papers shows that it was the Diocese that did most of the foot-dragging.
More proof that "it's someone else's fault" was provided in an interview with WAMC public radio in early 2009. The Diocese stated that since for the past 14 years there have been discussions about pastoral planning and church consolidations in the Berkshires that, "...clearly we have made our intentions well known…none of this should have been a surprise really to anyone who was paying attention all these years."
The implication is that if the disenfranchised parishioners of St. Stan's in Adams don't understand the decision to close their church, then they obviously weren't paying attention. Similarly, in recent months Msgr. Bonzagni, the official in charge of pastoral planning, defended the decision to close St. Stan's. He observed that if the participants in the "listening sessions" from St. Stan's did not use their time wisely, then that was not the fault of the Diocese.
In all of this we can see that the Diocese is not above blaming the victim in order to maintain position.
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2. avoid decisions
(make decisions by not making decisions; stall; litigate)It's a peculiar trait of U.S. bishops that they would rather maintain the status quo and not make a decision than make a wrong one. This goes far in explaining how the sexual abuse crisis could have grown so large. The crisis required a creative and aggressive response from risk-taking chief executives, but instead was left to fester. Eugene Kennedy has explored this dynamic in his article for the National Catholic Reporter "The Great Inertia".
In Springfield, Dupre, the canon lawyer, was ideally suited to play the legal game of waiting it out – until the day that he himself ran out of time.
It was a point of pride for Dupre that his Diocese avoided trials. He said: "Although in other areas of our state, abuse cases have come to trial, none involving the Diocese of Springfield ever have. I hope to continue that record."
And he did. Even when lawsuits flooded the Diocese during 2003, where others saw a demoralizing situation, Dupre saw only "a complicated issue" and asserted that priests and laity were still "…standing with our head held high…". Springfield was the last of the four dioceses in the state to share lists of victims and accused priests with the local District Attorneys.
The stalling tactics of the Misconduct Commission started almost as soon as it was formed in Dec. of 1992. Many of the first complainants were dissatisfied with the commission's response. This led to the consolidation of cases under Attorney Wiggins, which led in turn to the 1993 settlement with 17 of Lavigne's victims.
As we've seen in previous posts, the commission kept a lid on cases by playing the "morality" card. First, the emphasis was shifted from justice and investigation to a vaguely defined "healing". The object of the commission's recommendations also shifted, from the accused to the accusers. Victims were told that retention of a lawyer could "complicate" things. They were asked to pray, forgive the priest, and move on.
These strategies deflected accountability while leaving church structure unaltered.
In the spring of 2002, a dead calm prevailed in the commission's docket. We've seen that by fall a victim's revolt was underway, resulting in a wave of lawsuits, many naming higher-ups for the first time. This assault prompted the Diocese to rely more and more on legal muscle.
And yet, at the same time, Dupre expressed distaste for legal scraps, and tried to distance the Diocese from them. For example, when he tried to throw out five suits based on charitable immunity, he called the move to dismiss the cases "…a legal maneuver, which [would] not interfere with financial compensation to all victims with legitimate claims." This rather remarkable statement doesn't take into account that the charitable immunity doctrine caps damage awards at $20,000 dollars.
Although Dupre never ceased claiming that his motivation in pushing for settlements was to give each case "the attention it deserves", he never explained why it was not possible for a victim's case to get the "attention it deserves" from a jury trial.
Nor did he give any hint why going to trial and clearing the name of the priests, assuming they were innocent, was never mentioned as an option. It seems not to have been on his radar. Apparently the self-interest of the Diocese and the accused priest did not always coincide.
In April, '03, the Diocese argued for dismissal of charges in the Dobbert case, one of those which named higher-ups on negligent supervision charges. The motion was clearly an attempt by the Diocese to insulate itself from the actions of its priests. Egan argued that the bishop's oversight of priests in his diocese is a matter of religious, not secular law.
When these lawsuits could not be thrown out or staved off, the result was the 2004 settlement, which had to be managed by McDonnell after Dupre's spectacular flameout. In retrospect, McDonnell's hand may have been forced because the Diocese had hit rock-bottom.
But, under his own steam, McDonnell has continued this tradition of stalling. He too, has worked so that no abuse claims have come to trial. His motto "healing on many levels", though certainly a graceful phrase, has meant in practice that over a hundred victims have forfeited forever their legal right to sue the Diocese. Confidentiality agreements of some 16 pages are still insisted on by the Diocese prior to any settlement, in violation of the reforms established by the Dallas Norms.
The final cost for the second wave ($4.5 million for 59 claims) now seems affordable, and maybe even a bargain, compared to other dioceses such as Burlington, in Vermont. There, $12.3 million was awarded last year to two individuals.
We said earlier that the self-interest of priest and diocese are not always the same, and that the Diocese has consistently avoided making decisions that would clear the name of clerics. A case in point is that of Rev. Karl Huller, who was accused after he died. Diocesan attorney Michael Callan admitted that clearing Huller's name was not an objective. "We are defending the diocese. Our concern is that the diocese didn't have knowledge of any abuse that may or may not have been committed," he said.
It is not generally known that the Diocese never pays for an accused priest's lawyer. "The Diocese has never represented any clergy accused of abuse. They have to retain their own counsel", said Michael McDonough, Jr., a member of Egan, Flanagan & Cohen.
Like Dupre, McDonnell has also preferred to settle. He does not fight suits targeting dead priests in order to clear their name. Neither does he encourage or allow the accused priests of the Diocese to fight suits, even when loud claims have been made that some of the accused priests are innocent.
Ironically, Dupre himself, the author of the strategy, has been thrown under the bus. He's become a non-person in the Diocese, an unmentionable man who does not appear on the web site, and who is not even prayed for during Sunday liturgies. The Diocese has done everything but airbrush his face out of group portraits.
On the legal fronts, McDonnell says that church accusations about Dupre have been "forwarded to the Vatican", and are no longer his responsibility. This avoidance may be canonically correct but the morality of it may still be questioned.
On the secular side, Dupre has retained two criminal defense lawyers, though it's not known who foots the bill. Perhaps we'll learn someday about how these decisions are made, but for now, the process remains well-hidden.
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3. avoid responsibility (hide power; create layers to diffuse accountability)When it came time for chancery bookkeepers to record the $7.7 million settlement in 2004, they faced a dilemma. The recording of it would wreck any existing account, yet it could hardly be left out of the annual report.
Putting a good face on the settlement must have presented a challenge. After all, the purpose of the deal was to protect the Diocese of Springfield by neutralizing lawsuits for sexual abuse. The settlement was nothing less than money for "priest protection" or even better "diocesan protection" but, it is not known if these names were seriously considered. What is clear is that the necessity to hide power and create layers asserted itself. The new account emerged in the next annual report as – Child Protection.
The new Child Protection budget of FY2004 included a sub-category: Civil and Canonical Fees. Though lawyers are not specifically mentioned , it's hard to see who else would be commanding these fees. The Diocese was certainly not being billed by the children. The total expenditure for Civil and Canonical Fees through FY2007 has been $894,892.
We've seen that the law was a refuge and a weapon for Dupre. Legal hairsplitting could be the path to a separation of the church's legal obligations from its moral ones. Indeed, the Diocese seemed willing to interpret the law to avoid oversight. In 2003, while trying to have a lawsuit dismissed, Mr. Egan explained that "…even if the Diocese acted irresponsibly in its assignment of priests, the law says that it cannot be held responsible for those actions."
The insurance lawyers, too, were practically an arm of the Diocese during the Dupre era. But, lawyers for the victims spoke up: "They are playing legal hardball and blaming it on the insurance companies," Attorney Stobierski said, after Diocesan lawyers asked for the dismissal of five suits after the bankruptcy of the Home Insurance Co.
The legal team of Egan, Flanagan & Cohen is only one layer of command that bishops employ to get the work done. Other prominent layers are communications (headed by Mark Dupont, assisted by Rev. Pomerleau), pastoral planning (headed by Msgr. Bonzagni), financial affairs (Mr. Schuman, recently retired, and Mr. LaBroad), to say nothing of the chancery offices of the Bishop's Cabinet, the educational sector, the cemeteries, and a host of ad hoc committees, all charged with carrying out the business of the corporation.
McDonnell has created a small army of ad hoc committees to help him govern. Many of these have recently dealt with the rearrangement and suppression of parishes. However, after the announcement is made that they've been formed, they're little heard from again.
It's been said that Weldon ran a tight ship, and that Marshall was no slouch either. It may well be that Dupre was just another in a long line of autocratic and isolated decision-makers who were surrounded by like-minded chancery officials. The Roman Catholic church is famous for such a top-down style.
Nevertheless, Dupre seems to have taken avoidance of personal responsibility to new lows. We cannot ignore that he's made no public statements confirming or denying the charges against him from three individuals.
Some public statements during his last two years in office suggest a man on auto-pilot, at times oblivious to the pain his words must have caused. He defended his decision to support Richard Lavigne by invoking Christian charity. He said that bishops are held to a higher standard and not allowed the "luxury" of a popular choice. His explanation implied that he had no choice in the matter.
This continues to be familiar language, because the Diocese often announces that it is "compelled" or "forced" to do things, when a secular understanding would be that they've made a choice to do this or that.
In Jan. '07, shortly after the judge's decision to compel the Diocese to release most of the 7,700 documents that were in dispute, attorney Stobierski commented that "…nearly every other diocese in the country has been able to negotiate these very same issues with their insurers…"
The explanation for the resistance by McDonnell shows a continuation of the Dupre philosophy. The reply was that "…the diocese felt it needed to be compelled by the court to disclose that information…"
Thus, we are supposed to believe that is the compulsion of the court that creates the Diocesan decision – an example of making a decision by not making a decision.
The Diocese sometimes uses legal arguments to advance its interests in unusual ways. One is the quixotic campaign to make lemonade out of the Dupre indictment. The claim advanced is that the investigation which resulted in two counts of child rape for Dupre was actually an exoneration of Diocesan bookkeeping practices.
This point is so important that Egan's explanation of it was included in the press release about the $8.5 million dollar settlement in July, and then repeated in the announcements of the settlement awards on Dec. 2. It's been a staple of Catholic Observer articles about the insurance trial.
Egan has regularly conflated the grand jury investigation of 2004, which looked at 80,000 documents, with the discovery portion of the settlement trial, which looked at about 60,000 – even though the two efforts are separated by several years and had different objectives.
While the grand jury chose not to indict Dupre on obstruction of justice or tampering charges, presumably for a lack of evidence that would hold up in court, there was no statement at the time from DA Bennett that he found Diocesan files to be pristine.
The grand jury was looking for evidence specific to Dupre, and while they found enough to indict on child rape, they did not find him personally responsible for the tampering charges. It's that simple. But, ever since, Egan sets up this straw man so that it can be knocked down.
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4. withhold information
(
never admit guilt; never give up defenses; maintain secrecy)Often, news stories about accused priests and victims have included a reference that information was released by the Diocese after an inquiry from the press. This has been so common that it raises a question – how much information has been put out by the Diocese in response to inquires without the acknowledgment?
Dupre was an expert at withholding information. For example, in Feb, '02, he confirmed in the Republican that Rev. Graves, Dube and Meehan had been removed from ministry years before – but this confirmation came only after an inquiry from the newspaper, and only after the newspaper had obtained those names from other sources.
During a lawsuit against Lavigne in Nov. of '02, Attorney Stobierski sought to examine Lavigne's file. Dupre authorized 168 pages to be released, out of a supposed total of 699 pages. Stobierski was not satisfied and sought a court order for the rest.
Six months later, the attorney was asking for 2000 more documents, which appears to be the true size of the file. This size difference was corroborated later during Rev. Scahill's testimony during a deposition.
The Diocese consistently argued in the Dupre era that the reason Lavigne's documents (and the documents of many other priests) could not be released was due to "confessor-priest" privilege.
It took until Jan. '07 of the McDonnell era before a judge ruled on this assertion. In Paper 77, Judge Agostini ruled that "…there is no support in the statute or the case law for the Diocese's sweeping assertion that any statement or acts…are covered by the privilege…" simply because one of the parties happens to be a priest.
It is an understatement to say that Dupre attempted to use all legal defenses. In 2003 the efforts to throw suits out of court seemed unending.
The Home Insurance Co. insolvency in July caused an immediate delay for five suits. Confessor-priest claims slowed the Lavigne cases, the Dobbert case was used as a test case for a dozen more under the Church/State argument, and the pre-1971 charitable immunity defense slowed five more.
It appears that the legal strategy during 2003 was hardball, pure and simple – litigate – and litigate some more. Or, as Dupre put it: "The issue is that we were willing to settle then and we are willing to settle now. But you have to get both sides to a reasonable spot." There is no way to know for sure, but, from all we know now, it is questionable whether Dupre would have ever stopped stalling, short of contempt of court.
We now know that confidentiality agreements were another prong of Dupre's approach. While settlements kept the costs down, it was confidentiality agreements within the settlement papers that kept court documents sealed.
An important case was the confidential settlement with Joseph Croteau, Danny's brother, in 1996. There is no way to be sure, but Joseph's settlement may explain why the 1993 settlement figure of 1.3 to 1.4 million had jumped to 1.7 million by the time a 2004 report on abuse was issued by the Diocese.
Even when the lawsuits and complaints kept rolling in, reaching a total of 65 or so by his resignation, Dupre felt no need to apologize for the alleged incidents. After all, they had not been proven.
In Dupre's view, there was only one type of information and one way of understanding things – the Diocesan way. And, there were no shades of gray. One senses that his confidence may have stemmed from a theological conviction that the canonical Diocese can never be wrong, morally, because of it's union with Christ. From that position, it is but a small step to the view that the Diocese (as corporation) cannot be wrong, either.
Dupre memorably referred to "the information" in the singular during an attempt to explain why it was that he and Rev. Scahill were so far apart. They differed in their recollections of what Dupre had said about the destruction of documents during a Presbyteral Council meeting.
In his explanation, Dupre said that he contradicted Scahill publicly because "…without prior notice to me or anyone in the diocese, the incorrect information was given by the priest [Scahill] to the local and Boston newspapers. So I felt the correction had to be equally public."
In the same statement he addressed the abuse charges: "…in a pastoral context, it does not matter who was legally responsible. What matters is, how can we bind up the wounds?"
Again we witness a conflict between canonical and civil. He asserts that his canonical responsibility for healing and pastoral care trumps all. Yet, his constant attempts to thwart and throw out suits and deny the civil rights of the victims suggest instead that he was willing to place the civil rights and needs of corporation sole well above those of the victims.
McDonnell has continued this strategy by restricting his public comments and instructing his lawyers and other confidants to keep Diocesan governance well-hidden. The decision about the so-called "privileged" documents which essentially ordered the Diocese to turn over the 7,700 pages they sought to keep private, is the best example. Even after a court order, the Diocese continued to insist on "privileges" that did not exist. In this attitude McDonnell is joined by the Most Rev. Roger Mahony, whose relentless stonewalling of similar documents is at the heart of the federal indictment underway in the Archdiocese of Los Angeles.
In
Paper 77, Judge Agostini found that the Diocese had raised a religious autonomy-First Amendment argument about documents "…which are, on their face, not confidential…or which are devoid of substance…" He also wrote that "…privacy mandates by ecclesiastical authorities are not, standing alone, binding on this court."
In addition, the judge rejected arguments that a psychotherapist-patient privilege precluded disclosure. "The Diocese argues that where…the documents from and relating to the accused priests' treatment were placed in a confidential file accessible only to the bishop and his designees, the psychotherapist privilege applies and precludes their disclosure. This assertion is at odds with the statue and the case law."
Egan's immediate reaction in filing for a "protective order" to continue protecting the documents was labeled an "…impoundment dressed as a protective order…" when it was dismissed by the judge. The judge noted that not only the insurer's lawyers, but also the underlying claimants (victims) opposed the protective order.
Eventually, after they had exhausted all possible appeals and stalling tactics, Diocesan lawyers explained their motivation. They said that they felt they needed to be compelled by the courts in order to disclose the information. While this answer may be reasonable for a civil corporation, the same explanation, when applied to a canonical organization, makes a mockery of the transparency and openness that the Diocese claims to uphold.
The oddest thing about the battle over the so-called "privileged" papers is that the discovery went forward as planned, nearly all of the withheld documents were seen by the insurer's lawyers – and nobody died. None of the dire consequences predicted by Egan & Co. happened.
Dupre's brinkmanship was on display when he took the Fifth in connection with the civil charges levied against him in July of 2004. It's an unusual tactic because it must be disclosed in future litigation, and is usually considered to weaken the leverage of the defendant. Nevertheless, in a situation in which he could have answered the charges by affirming the facts, denying the facts, or remained silent, he chose the latter.
This same attitude of "taking the Fifth" seems to have permeated the Diocese during Dupre's tenure – he was tight-lipped about details of priestly misdeeds, regularly withholding important information from parishioners, the public and law enforcement officials.
The attitude has prevailed under McDonnell. He runs the Diocese with an iron hand, albeit while presenting a kinder face. The laity is not any more empowered now than it was under Dupre. McDonnell has mandated parish councils on paper, but then allows pastors to avoid setting them up. When they are set up, he avoids consulting them on important local decisions.
He insists that confidentiality agreements be part of the settlements (though the Dallas Norms supposedly put an end to this practice). He consistently has had "no comment" about Dupre, and maintained this silence even when the Dupre indictment was announced.
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The Diocesan Playbook, summary
Playbook Tactics:1. maintain position
(we're broke; we're special; it's someone else's fault)
2. avoid decisions
(make decisions by not making decisions; stall; litigate)
3. avoid responsibility
(hide power; create layers to diffuse accountability)
4. withhold information
never admit guilt; never give up defenses; maintain secrecy)
