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1.25.08

The Kondratick Papers: Part Two

Letters and Affidavits

Among the documents relating to the trial of Robert Kondratick released by monk James Silver on January 13th, 2008, were three witness affidavits and three letters from Kondratick's former attorney, Harry Kutner Jr.. None exonerate Kondratick as the writers undoubtedly hoped - but each provides additional, sometimes shocking, insights into the scandal and those involved.

The First Letter: Quid Pro Quo

The three Kutner letters cover a critical two week period, from June 6 - June 23, 2006. All relate to a fractious interview that took place June 12, 2006 in the library at the Chancery in Syosset between Proskauer Rose attorneys and Kondratick and his lawyer; its abrupt termination; and Kondratick's attorney's subsequent, but unsuccessful, attempts to restart the interview process.

Four months earlier, on March 16, 2006, Robert Kondratick had been dismissed as Chancellor of the OCA by Metropolitan Herman. At that time the reason the Metropolitan cited to the OCA was that Kondratick, through a letter from Kutner, was threatening the Metropolitan, which the Metropolitan "interpreted as an attack on the Church". (Read Kutner's letter here.) (Read the Metropolitan's statement here.)

Three weeks after he dismissed Kondratick, +Herman offered a different set of reasons to the Metropolitan Council. On April 9th, 2006 +Herman stated:

"On a number of occasions ... I had encouraged the Chancellor to take an administrative leave of absence, but in each instance he refused to consider this. My efforts to resolve our administrative differences particularly following the Fourteenth All-American Council were unsuccessful. I perceived that my administrative directives were treated as opinion, especially as I attempted with the Acting Treasurer to chart a new course of financial management of the central administration of the Church. The initial Financial Guidelines which were to serve as the basis of the financial management for this triennium were challenged.

I informed the members of the Administrative Committee, that due to my dissatisfaction with the manner in which the Chancellor's conduct related to a number of areas of concern especially after receiving a letter from the Chancellor's personal attorney on the eve of the meeting and after careful and prayerful consideration, as well as a sleepless night, I found it necessary to terminate him from his duties as Chancellor of The Orthodox Church in America. I also announced that, after careful consideration and wise counsel, I chose to engage the law firm of Proskauer Rose, on behalf of the Church, to initiate a full investigation of various matters related to our central administration particularly as they relate to all financial allegations that could be identified from various sources."

It was in this context that Kutner wrote to Sarah Gold, a partner at Proskauer Rose, to set the ground rules for an interview between his client and Proskauer Rose. Under the interesting, but limited, description of "AUDIT INVESTIGATION" Mr. Kutner writes:

"Dear Ms. Gold:

Mr. Kondratick has been very, very, anxious to meet with Church officials , as he had been previously with Mr. Lamos, and answer any inquiries regarding his expenditures while Chancellor. So, when I told him I was finally able to discuss the terms of the meeting with your office and reach a tentative agreement with respect thereto, he was very pleased.

As a result of my telephone conversation on Thursday, June 1st with your associate, Celia Passaro, Esq., in which she conveyed the Church's concerns, it is proposed that the following conditions be agreed for the meeting:

1. it be held at 1:000 p.m. on Monday June 12th at the ChurchÕs administrative offices;

2. that the proceedings be recorded by a certified court reporter, the cost of which is to be borne by the Church;

3. that the transcripts of the meeting be held by both attorneys, and not release for any purpose, unless there is any reporting of the meeting's proceedings, in any medium, whether attributedd or not, at which time either side may release the full transcripts.

Finally, please remind your client of his latest assured promise that once the meeting is completed, Fr. Kondratick will be given his canonical release. It would be further bitterly disappointing, and engender further distrust by Fr. Kondratick, were your client yet again to renege thereon and be found to have yet again dangled the canonical release as a carrot with no intention of adhering to his word.

It is hoped that this meeting will end favorably and acceptably for both sides, that the canonical release be given, and the other remaining issues then quickly resolved.

Very truly yours,

Harry H. Kutner, Jr."

It is the penultimate paragraph that is most interesting. Kutner infers a quid pro quo between Metropolitan Herman and Kondratick. If Kondratick speaks, +Herman will release him to the jurisdiction of another Bishop, apparently to continue his career in the Church. Kutner then claims that +Herman has already reneged on such a deal once; and warns "further distrust by Fr. Kondratick" will be engendered if +Herman "be found to have yet again dangled the canonical release as a carrot..."

This is a serious charge - that the Metropolitan used his episcopal authority over Kondratick's canonical status - as a bargaining chip, not once, but according to Kutner, at least twice. And it raises the question: if the second time was a quid pro quo (release for testimony) what was the Metropolitan seeking the first time for Kondratick's release?

Kutner's allegations of quid pro quo must be given credence in light of later events. Kondratick, as the affidavits will witness, did not speak with Proskauer Rose. No release was given. Three months later, in September 2006, Kondratick and his wife filed a lawsuit against the OCA for payment on a hitherto little known 2002 Promissory Note. Later that month, the day after the Kondratick's withdrew their lawsuit, +Herman canonically released Kondratick to the Diocese of the South. Did Kondratick finally get a quid pro quo, if not for his testimony, then for withdrawing the lawsuit?

Further events would suggest that was indeed the case. Kondratick served as a priest in the Diocese of the South until his October 2006 release was 'rescinded' in March 2007 with the concurrence of the Synod under pressure from the Special Commission and a unanimous Metropolitan Council. This 'recision' was then contested by Archbishop Dmitri the following day. Confusion ensued, but +Dmitri was eventually forced by the Synod to accept the 'recision' in April 2007. Kondratick was immediately suspended by +Herman, tried at a Church Court in June 2007 and deposed from the priesthood in August 2007. In December 2007 an Appeal was heard and denied. The Kondratick lawsuit was then refiled in January 2008. It now awaits adjudication. Coincidence?

Fr. Fester's Statement

The interview between Proskauer Rose and Kondratick, mentioned in Kutner's first letter, took place on June 12, 2006 as scheduled. The affidavit filed by Archpriest Joseph Fester, the former 'Assistant to the Chancellor' during the Kondratick regime, and currently of St. Seraphim's Cathedral in Dallas, sworn on August 22, 2007, continues the story. Fr. Fester's testimony is as follows:

"The interview (between Proskauer Rose and Kondratick) took place in the Library off the main foyer of the Chancery. I was standing at the top of the stairs which overlooks the foyer. All those listed above entered the Library and the door was closed. I remained there and no more than 10 minutes after the door was closed it opened and I heard and do hereby attest the following to be the conversation that I heard:

Ms. Gold: (as she was leaving the Library and entering the foyer) "Your client is being uncooperative in not answering my questions, this interview is over."

Mr. Kutner: "Ms. Gold, my client did not answer a question of yours because it is of a confidential nature and is not free to answer it at this time. There are many other question you can ask him which he is ready to answer. Let's go back in and you can ask him all of those questions. We can revisit any problematic questions later and resolve them."

Mrs. Gold: "No we are leaving because your client is not cooperating."

Mr. Kutner: "Ms. Gold, my client is prepared to answer all of your questions except those he can't because of confidentiality. Please let's go back in and continue."

Ms. Gold (speaking to her associate): "Let's go"- and they both walked out)."

Both Syosset and Kutner have publicly agreed that the interview failed; that was never in question. Fester's eyewitness account, however, sheds significant new light on the events.

Syosset has claimed that Kondratick would not answer any questions regarding events during the tenure of Metropolitan Theodosius, including the disposition of some $4.75 million in Archer Daniels Midland (ADM) grant monies that disappeared into three secret bank accounts labelled as "discretionary accounts" controlled by Kondratick and Metropolitan Theodosius. Kondratick supporters have claimed that he would only speak of events post-2002, that is, of events during the tenure of Metropolitan Herman. Fr. Fester's account of Kutner's statement would now seem to confirm both assertions.

Secondly, it is clear that the failure of the interview was anticipated. At the end of the affidavit, Fr. Fester states:

"I went downstairs and asked Mr. Kutner: "What was that all about?" Mr. Kutner replied: "That is what we call in the legal profession, blowing up a deposition. It is when one side has no intention of letting the other side say much on the record so that it can be used against them as being uncooperative."

That none of this came as a surprise to anyone is further evidenced by the fact that Fester, Kondratick's former assistant, just happened to be standing at the top of the stairs overlooking the Library from the time Proskauer Rose entered, until the time they left, some ten minutes later. He just happened to be in a position to see, and hear, the whole exchange, an exchange Kutner anticipated and prepared for....

The Second Kutner Letter

Kutner's second letter, dated June 12, 2006, confirms this. Kutner writes:

"Dear Ms. Gold:

Your sudden termination of today's conference was not unexpected. It was anticipated by us prior to the conference that your client's and your goal was to declare him uncooperative at its conclusion. The only surprising element is how quickly you walked out, and how transparently obvious your agenda was from your actions."

The second letter then offers additional insights into the events. Kutner writes:

"The transparency of your agenda to declare Fr. Kondratick uncooperative and thereby scapegoat him before the Metropolitan Council tomorrow was evidenced from your use of a looseleaf binder, nearly 2" thick, during the inquiry. For a conference commencing at 1:00 PM on the eve of the Metropolitan Council's meeting with your scheduled report the following day, there was no chance that your inquiry would be completed in an afternoon."

Kutner's first assertion, that Proskauer Rose had a binder nearly 2" thick, contradicts the Metropolitan's oft repeated claim that nothing could be reported to the Synod, or the Metropolitan Council, or the Church, as Proskauer Rose was "still investigating". If Kutner is to be believed, and there is no reason to question him on this detail, there seems to have beeen plenty of investigating already done...

Secondly, Kutner himself was wrong in asserting that Proskauer Rose was preparing to report to the Metropolitan Council the next day. They were not, and did not; despite the explicit request of the Council that they do so. As Fr. Kucynda, then acting Treasurer, reported to the Council on June 13th, Ms. Gold and her associate were "unavailable". As Kutner reveals they were clearly available to be in Syosset the day before - and the Council meeting had been scheduled six months in advance. In short, Proskauer Rose was not there because the Metropolitan did not want them to be there, nor for the Council to know how far along the investigation truly was...

Kutner's letter continues:

"Instead, when we objected to any inquiry into the ADM matter on the grounds that it was during a prior Metropolitan's primacy, and ruled closed by the Holy Synod and Metropolitan Council in 1999, 2000, 2001, and 2002, you refused to continue any further questioning, and refused to describe the further inquiry of areas or issues, even temporally by period, declaring: "You know what the allegations are!" I reminded you that you refused all prior attempts by me to learn the parameters of your questioning, and that if you were referring to the Wheeler-Stokoe accusations, you should say so."

Kutner later makes Kondratick's objections to speaking even more clear. In the following paragraph he writes:
"I offered to consider various areas, and that we would consent to any question, as to any matter arising during Metropolitan Herman's primacy, and perhaps other areas predating same, provided there was not canonical or other restriction."

Here, then, lies the crux of Kondratick's silence and Herman's reluctance to discuss the investigation. Kondratick would not speak of his actions during the tenure of Metropolitan Theodosius which +Herman wanted explained. On the contrary, Kondratick would only speak of his actions during the tenure of Metropolitan Herman, which +Herman explicitly did not want explained. And so the silence has remained to this day.

Kutner concludes his second letter with a surprising offer - with a loophole one could drive a truck through. He writes:


"Fr. Kondratick is prepared to appear before the Metropolitan Council tomorrow and answer any question about any matter during the current primacy, not barred by privilege, confidence or endangerment to others, and any matter occurring previously provided it is not foreclosed by canonical or other consideration. Should Council members inquire of an area which Fr. Kondratick feels should not be answered, he will explain the reason which we believe will, for the reason given, understand and agree with by them based on their canonical experience.

If you were sincerely interested in questioning Fr. Kondratick and not in a charade with a predetermined agenda, then please contact my office to reschedule the continuation of the conference even tomorrow. Fr. Kondratick and I will rearrange our schedules to accommodate you."

Needless to say, Fr. Kondratick did not appear at the Metropolitan Council meeting - nor was there any mention made of his offer to testify made to the Council. It was, in fact, 10 days later that Kutner wrote his third letter, on June 23rd, complaining that :

"It is disappointing that we still have not had the courtesy of a response to our request for a resumption of the conference. Since June 9th,* the Metropolitan has repeatedly assured Fr. Kondratick that you would contact me to reschedule, but once again, those representations have been unfulfilled. Please contact me without delay."

Fr. Westerberg's Affidavit

The second affidavit is from Archpriest Michael Westerberg, of New Haven CT. Fr. Westerberg, the "Group Leader and Trustee" of the OCA Pension Board, and a former member of the Metropolitan Council, was one of Fr. Kondratick's most vociferous defenders on the Council. Fr. Westerberg relates a conversation he had with the Metropolitan during the Metropolitan Council meeting just mentioned, on June 13th, 2006. Westerberg states this 10 minute conversation also took place in the Library in Syosset, with the door closed, and no one else present. He lists three items he discussed with Metropolitan Herman.

In 'Item One' Westerberg expressed concern that Fr. Strikis, the bookkeeper, who Westerberg felt was incompetent, was still on staff. The Metropolitan agreed with the concern, stating that if Fr. Strikis had "properly managed his responsibility and the record keeping as he should have 'ninety percent of the entire problem would go away'".

What the Metropolitan meant was made immediately clearer in 'Item Two'. Westerberg states:

"Item Two: His Beatitude then said that in the absence of proper records, he had advised Father Bob
(Kondratick) ' to just fill in any names' as recipients of funds. 'Nobody is going to check on it and nobody will know the difference, or care' was his Beatitude's advice."

It is difficult to know what is more shocking here; blaming the bookkeeper for the diversion of funds it is known he did not divert or use; the Metropolitan reportedly advising the Chancellor to cook the books because 'nobody is going to check and nobody will know the difference, or care'; or Fr. Westerberg, then a member of the Metropolitan Council, failing to mention the Metropolitan's suggestion of fraud to anybody for a year.

Cash and Carry Given New Meaning

Having minimized Kondratick's responsibility by blaming Fr. Strikis in Item One, in 'Item Three' Fr. Westerberg attempts to explain away Kondratick's misuse of funds . He states: " I mentioned that Russia was a cash society and that I, like most people who had travelled to Russia/the Soviet Union, have all brought in cash to be given away..... The Metropolitan volunteered that he had never gone to Russia or Ukraine without carrying cash to give to people on his own behalf and on behalf of others. His Beatitude said that on one trip there were five priests travelling with him and that at JFK Airport he gave each priest an envelope containing five thousand dollars, this in addition to the (undisclosed amount of) cash he himself carried. Once they arrived in Moscow he collected the envelopes and was able to deliver the funds where they needed to go. His Beatitude acknowledged that many who travelled on official trips carried cash. The problem is no one gets a receipt and no can account for the money."

Finally, a third affidavit, by former Syosset employee David Lucs, asserts that on four oversees trips he participated in during his time in Syosset Lucs saw "financial assistance" being given by Kondratick "to hierarchs, clergy, charitable organizations or individuals on behalf of the Orthodox Church in America."

Luc's testimony is irrelevant. No one ever doubted Kondratick gave away money in Russia. It was the amounts, and to whom, that is in question - and how much he kept for himself. To those questions, Lucs offers no answers.

A Failed Attempt

While intending to help exonerate Kondratick the revelation of the Kutner letters and the affidavits by Frs. Fester and Westerberg by monk James Silver does not do so. Kutner made a case that Proskauer Rose wanted the meetings to fail - but admitted his own client would not answer questions central to the scandal, nor to his role in it during the Theodosius years when the majority of funds (some $3.75 million of the $4.75 donated, by the OCA's latest count) disappeared.

Fr. Fester confirmed Kutner's account of the events of June 12th, but in so doing made evident that his witness to the events was not by accident, but by design. Fr. Fester is not an innocent eyewitness: he was a participant in the defense. Nor does Fr. Westerberg's affidavit exonerate Kondratick of his responsibility in the scandal. By calling into question Fr. Strikis' competency, Fr. Westerberg raises the question: why would a talented manager like Kondratick seek out, and then keep someone so plainly incompetent in such a key role, for more than a decade? Who better to blame, should questions ever be asked? That +Herman and Fr. Westerberg choose to do so is clear evidence the scheme worked...

The Metropolitan's Role

If none of the documents exonerate Kondratick, they do clearly allege questionable behavior on the part of Metropolitan Herman. From quid pro quo deals, to hiding Proskauer Rose's investigation results from the Metropolitan Council, to suggestions to Kondratick on how to defraud auditors, to overseeing cash transfers abroad to circumvent banking and customs laws, the list of misdeeds alleged against Metropolitan Herman by witnesses continues to grow. With every new revelation about the scandal, the Metropolitan has asserted his 'authority' as justification for his actions. But in truth he has no 'authority' left - he only has a position and a title he himself continues to bring disrepute upon.

And the disrepute grows. A former Chancellor of the Diocese of New England, an Archpriest of the OCA, has now sworn under oath the Metropolitan suggested means to defraud the Church's auditors - "just make up names"; a justification for it - "no one cares"; and dismissed those who did as not, as not being able "to tell the difference". One has to wonder if this is the first time the Metropolitan has recommended such a course of action - or has it been used before, say, in his current, or former Diocese - not to mention the monastery and seminary he controls. Does anybody care?

The question is not rhetorical. Assume Fr. Westerberg is lying. Can a priest bear such public witness against the Metropolitan with no consequences? In the OCA, yes. In the past year alone we have seen the Chancellor of one diocese accused of sexual harassment and himself accuse a Bishop of physical abuse. No report was ever even heard by the Synod, and nothing happened. We have seen a former Metropolitan accused by the OCA itself of participating in diverting millions into secret "discretionary" accounts. Nothing has happened. A Bishop tonsures a convicted sex offender- and nothing happens. The list, unfortunately, goes on and on.

Assume, though, Fr. Michael is telling the truth. Will the Metropolitan be held to account for his actions? Probably not. He will be given yet another pass, as he has been for the past nine years of scandal: for the firing of Treasurer Protodeacon Eric Wheeler in 1999, the cover-up of the ADM monies in 2000, the missing million in 2002, the diversion of charity and appeal funds he authorized in 2003-2005, the reappointment of Kondratick even after viewing the Moscow Tape in 2005, withholding the Proskauer Rose report in 2006, interfering with and dismissing the Special Commission in 2007 The list goes on and on.

Does anybody care? Or are these latest revelations regarding the scandal just more mind-numbing and soul-destroying examples of how corrupt our common life in the OCA has become? Does the Synod care? Does the 'new' administration in Syosset? Does the new 'Special Investigation Committee'? Does the Metropolitan Council's Ethics Committee? Does the Pre-Conciliar Commission, which speaks much of repentance, but not a word about confession?

More importantly, do the priests of the OCA, or its faithful lay contributors? Or, is Metropolitan Herman ultimately correct in his reading of the OCA - that we no longer know the difference, or care? Clearly, he, and those who support his vision of the OCA, are counting on it.

- Mark Stokoe

_________________


* Kutner has misstated the date. It should read June 12th.

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Coming in The Kondratick Papers: Part Three

The Kondratick Notice of Appeal

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 
 

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