Reflections On The Scandal
or Disingenuous Distorting:
How to Critically Read
an “Investigative Report”
by Robert Wachter, Esq.
One of the biggest challenges the reconstituted Investigative Committee will face will be to overcome doubts about its independence, objectivity, and determination to report the truth. Although Bishop Benjamin has recruited a solid group of independent-minded individuals of the highest integrity, the whole history of the Metropolitan’s maneuvering and meddling with the Special Commission casts a cloud of doubt over the Committee’s work. Will the new Investigative Committee be as zealous and resolute as the dissolved Special Commission? People are skeptical, and rightfully so.
One way that the Investigative Committee can overcome this skepticism is to prepare a high quality report that will put these doubts to rest.
Standards for Investigative Reports
In my years of training and practice as an attorney
I have frequently been called on to perform investigations and write investigative reports. Though the general public often views lawyers through the prism of litigation (where the truth is often colored or embellished), in other contexts lawyers are often called on to provide a true, honest and balanced assessment of the facts. This is most common in the financial context, when an investor considers making a major investment, or when two companies contemplate a merger.
In these circumstances the client is not preparing for a litigation battle or trying to “build a firewall.” Rather, the client simply wants to know the truth. The attorney responds by preparing a report that tells a balanced story. In the legal world, the fundamental structure of such an objective investigative report is fairly standardized. There is always an introductory section for several pages that explains the purpose, scope, assumptions and qualifications of the report. This introductory section is usually followed by an executive summary, and then the body of the report summarizing the factual findings.
It is important to carefully study the introductory section of any investigative report to understand how and why the report was created. In fact, without understanding the objectives and intended scope of the report, the factual findings and conclusions of the report might be misleading, incomplete or unreliable, and the report as a whole might be a wasted effort.
A quality investigative report should explain and confirm the following:
(1) Objective. The investigators should clarify the purpose of the report. Is the primary purpose to objectively determine and report facts? Is it to diagnose structural problems in an organization and recommend solutions? Is it to build a civil or criminal case against one or more individuals? Is it to identify a legal strategy for recovering funds? Is it to summarize and evaluate evidence? Or to make judgments based on the available evidence?
(2) Questions. After stating the purposes of the report, the investigators should identify a specific list of the questions the report attempts to answer. These questions might include the “who, what, where, when, why and how” of the matter under investigation. Listing the questions puts the recipient in a better position to evaluate whether the scope of the investigation was too broad or too narrow.
(3) Sources. The most important part of any investigative report is to summarize the scope of the sources the investigators consulted. Who did they interview? What documents and files did they review?
(4) Evaluation of the Sources. The investigators should report whether they believe that the sources they consulted (written or otherwise) were adequate to properly answer the questions -- and why or why not. Were there any documents that the investigators asked for but did not receive? Did anyone refuse to answer questions? Did anyone obstruct the investigation or otherwise refuse to cooperate? Is there a document retention policy in place, and was the policy followed? Is critical evidence inconclusive?
(5) Findings. The report should summarize the factual findings that answer each of the questions. If the purpose of the report is merely to summarize the evidence (for what might or might not have happened, or for who may or may not have been responsible) this task is relatively easy. If the purpose is to build a case against someone or to make judgments based on the available evidence, this task is more difficult. In either case, the investigators should comment on whether the evidence is sufficient to answer the questions presented.
(6) Assumptions. A well-written report also includes a list of assumptions that the investigators made, and why they believe these assumptions were appropriate for purposes of the report. For example, are the investigators assuming that the documents they have reviewed are true and complete? Have they assumed that oral statements in all of the interviews are all true? Have they attempted to independently verify any or all of the critical facts? If they received work product from another source (such as a law firm or accounting firm), have they assumed the analysis and conclusions to be true and correct?
(7) Other Qualifications. The report should also identify any other important circumstances or limitations that might affect the conclusions in the report.
All of these elements are necessary for several reasons.
First, an investigative report is not reliable unless the recipient can make an informed evaluation of whether the investigators did a thorough job. Sometimes investigators ask the wrong questions, sometimes they ask the right questions but do not dig deeply enough to find answers, sometimes they intend to dig deeply, but they overlook some critical sources of information, and sometimes they cannot did deeply because they are constrained by time or budget. That is why the investigators should explain what they considered, what they omitted, and why.
Second, the disclosures and qualifications can protect the integrity and professional reputation of the investigators if facts come to light that later contradict the findings in the report. When third party professionals are hired to prepare the report, the disclosures can also protect against liability for professional malpractice.
Third, the disclosures make it easier for the reader to evaluate whether the report is fair objective. In the context of the Investigative Committee, these types of disclosures would enable the Metropolitan Council and Holy Synod to better evaluate whether the investigators were biased or subject to outside influence, or whether they improperly relied on sources that were biased or subject to outside influence.
Evaluating the “Summary Report of the Preliminary Report”
Judged against these standards, the “Summary Report of the Preliminary Report” leaves too many questions unanswered. Who prepared the Summary? What was the purpose of the Preliminary Report? Was it to answer the question “Are the allegations true?” If so, which allegations, and against which individuals? Was the purpose to summarize all of the evidence against Robert Kondratick? Was it to build the strongest possible case against Robert Kondratick? Who did the investigators interview? What documents did they consult? Besides Proskauer Rose and Lambrides Lamos & Moulthrop, what sources did they draw on? How much did they rely on materials they received from Proskauer Rose? Did they receive everything they asked for from Proskauer Rose and other parties? Did they independently confirm why Proskauer Rose was hired, and the scope of their engagement?
Without answers to these critical questions, the Summary Report should be read with a skeptical eye, particularly considering that the Summary only addresses the charges against Robert Kondratick, and phrases some of its findings in a conclusory, accusative style. For example, the Summary includes the following statement: “Despite meeting face-to-face five or six times with the accountants from Lambrides, Robert Kondratick could not provide them with the name of one 9/11 victim or parish who received any of the $176,500 allegedly distributed.”
Let’s break down this claim. What did Lambrides specifically ask? Did Lambrides ask the same question at each of the five or six meetings, as implied? Was the problem that Robert Kondratick could not answer the question? Or that he did not answer the question? Did he confess that he could not answer, or is this the author’s or Lambrides’ inference? Did he give another reason for not answering? As readers, we do not know. All we can say for certain is that the author is not objectively reporting the facts. The author is spinning facts. Perhaps the spin in this instance is warranted and the conclusion is accurate, but as readers we do not have enough facts to judge one way or the other.
Compare the quoted sentence to the following alternative phrasing (which is entirely fictional and perhaps inaccurate): “Representatives from Lambrides reported that they asked Robert Kondratick on five or six separate occasions how $176,500 of the 9/11 funds were distributed. They reported that on each occasion he replied that he did not remember, and could not provide any documentary evidence for how the funds were distributed.” Do you see the subtle difference the quoted sentence and this alterative? To an attorney, there is a world of difference. The former reads like it was drafted by a litigator determined to build a case against Robert Kondratick. The latter reads like it was drafted by an impartial fact finder.
The recipient of an investigative report should not be required to labor through second-guessing the author and reading between the lines. That is why it is so important that the author explain the purpose, questions, sources, assumptions and qualifications of the report. That is why any report that fails to do so is seriously flawed and unreliable.
Evaluating Proskauer Rose
The Proskauer Rose investigation was similarly flawed. Proskauer Rose never provided clear written confirmation of its objectives, the questions it sought to answer, or the scope of the materials it reviewed. Robert Kondratick’s supporters have charged that the instructions to Proskauer Rose were to ‘build a firewall” around the Metropolitan. Without a written statement from Proskauer Rose confirming what the firm did, and why, there will always be doubts about the objectivity and reliability of the Proskauer Rose findings. The fact that Prokauer Rose has not issued any written report at all is valid cause to be skeptical and suspicious.
The Investigative Committee cannot and should not rely on Proskauer Rose’s findings without independently confirming what the firm was hired to do, and what the Metropolitan instructed it to do.
All eyes will be on the Investigative Committee in the coming weeks or months. What can we reasonably expect from the Committee? We cannot expect them to be superhuman. We cannot expect them to find and expose all of the skeletons in the OCA closet. We cannot expect them to magically solve the OCA crisis. But we can expect them to candidly report what they set out to do, what they were looking for, where they looked, what they reviewed, what they relied on, what they assumed, what roadblocks they encountered, what they found, and what they recommend. These are the questions the Investigative Committee should endeavor to answer even before asked, and these are the standards against which the Church should judge their work.
If the reconstituted Investigative Committee conducts a thorough investigation and prepares a quality final report, people are more likely to have confidence in the Committee’s work, and the final report may become an important catalyst for the Church to move forward. If the report fails to candidly address these issues, then regardless of how hard the Investigative Committee labors, and regardless of its factual findings and conclusions, the report is likely to raise more questions than it answers, and the scandal is likely to drag out even longer.
(Robert Wachter, a member of the OCA, is currently teaching law in South Korea.)