Reflections On The Scandal
3.01.07
The Special Commission:
Working -- or Working Around?
What is the Special Commission's direction? Will it go where it is directed?
In concluding his February 6 memo to the Metropolitan Council, Metropolitan Herman notes that counsel for the Special Commission, as well as counsel for the OCA, both advise a course of action "consistent
with due legal process." Metropolitan Herman's directives repeatedly tasks the Special Commission to consult with -- and even constrain (!) -- OCA's Proskauer Rose counselors. He says: 'meet with the attorneys of Proskauer Rose to determine what tasks still needed to be concluded by them, with the estimated time and money associated with its completion', 'meet with the attorneys of Proskauer Rose to review the
scope of the investigation documents in order to help determine what form a written report should take', and 'instruct the attorneys of Proskauer Rose to provide the written report to the Commission only'.
Suppose, instead, that these Commissioners independently answered Archbishop Job's original question: "Are the allegations true or false?" Might the Commissioners' own questions and their path to the answers, diverge from the direction tasked them by Metropolitan Herman -- the direction the attorneys call "legally due"? What would be the consequences?
Would the FBI investigation of this crisis be harmed by a prompt Commissioners' report? Probably not.
Instead, a wide-ranging report might aid the criminal case. First, it would supplement the prosecutor's investigation. Second, the Commission's candid disclosure of wrongdoings would 'awaken the peasants,' making prosecution more palatable politically both inside and outside the Church.
As to civil law, would attorneys representing this crisis's players complain that the Commission's transparent, unredacted report taints their clients' due legal process? Again, not likely. These lawyers
might instead welcome the Commission's wide-ranging assessment of wrong-doings. It could goad their reticent clients to finally engage the process by filing lawsuits.
In fact, both criminal and civil due legal processes will likely quicken when the Special Commission addresses the tasks first proposed by Commissioner Nescott. These were aimed at discovering:
"What took place,
Why it went wrong,
Why it won't happen in the future and what limitations have been put in place,
And that the individuals responsible are not in those positions."
(Metropolitan Council Minutes, 12/12/06, in OCANews, 2/3/07)
Archbishop Job asked his question – and his fellow Commissioners seemed to have parsed it into these tasks whose accomplishment would indeed"move the church forward". They maintain that timely, credible answers will promote the OCA's healing.
On the other hand, Proskauer Rose gives the OCA its "legal due" by helping it avoid criminal or civil actions. That's what lawyers do. Their direction, however, will fail to "move the Church forward". Must
the OCA devise legally constructed niceties in deference to potential civil litigants? Must it wait, to avoid 'tainting' the FBIinvestigation -- one which may never be disclosed? Is the OCA obliged to
defer instituting its own metanoia? By such waiting and by caution, the OCA may fail to ever examine its past.
Were the Commissioners to investigate and report as originally planned, they would likely hasten further, deeper examinations by external investigators, both criminal and civil. No wonder, then, that Proskauer Rose directs otherwise. Their client might become even more uncovered, were legally muscled questioners to move even those rocks the Commissioners found too heavy. The sooner the OCA learns rigorous answers to the Special Commissioners' own questions, the sooner the OCA can confront its misdeeds and turn from them. Then the Church can move forward.
Whither the Special Commissioners? God direct their paths!
Rev. David Kossey
Editor's Note: Fr. David Kossey is a former coordinator for emergency disaster relief for the IOCC, and board member of New York Disaster Interfaith Services. He is currently pastor of St. Mary's Carpatho-Russian Church in Manhattan.
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