Two Documents & Three Lawyers
Two documents from the Special Commission, both sent to the Metropolitan Council but neither made public by Syosset, reveal tensions between the Special Commission and Syosset over the nature, scope, and purpose of the investigation. More seriously, a comparison of the two documents reveals a clear attempt to exert influence over the actions of the independent Special Commission by the Metropolitan and lawyers working on his behalf.
On January 31st members of the Metropolitan Council received the following email from Special Commission member Gregory Nescott. It read:
"Dear Metropolitan Council members:
Pursuant to His Beatitude's charge to the Commission established to continue the investigation, the Commission is required to periodically report back to the Metropolitan Council on developments. In the meantime, to answer the many questions being asked about whether the Commission has been meeting and proceeding with its work, the Commission has prepared a brief statement.
The statement was submitted last night to the Metropolitan for his approval before it is published on the church website, which is normal procedure. Anticipating its approval and publication there, we send it to you now as a courtesy (below).
Naturally, a more detailed report will be prepared for submission to the Metropolitan Council meeting in March."
Mr. Nescott's confidence in the Metropolitan's approval and subsequent publication was premature. Four days later, with the publication clearly being withheld by Syosset, OCANews.org published the Special Commission's statement. (Read the Statement in full here)
The Meeting of February 5-6
The Special Commission met the following week for two days at the East Norwich Inn, near Syosset. Having already reviewed more than 700 pages of evidence collected by Proskauer Rose at their Parma, Ohio meeting in December (according to their own Statement) a major purpose of the New York meeting was to consult with the attorneys from Proskauer Rose and speak with witnesses who lived in the Syosset area. As reported by OCANews.org, at least two scheduled meetings with witnesses were abruptly cancelled. Both John Kozey, the former chairman of the OCA's internal audit committee from 1995-1999, and Protodeacon Eric Wheeler, the former OCA Treasurer, were asked to re-schedule their testimony for a later time, 'given the heavy workload of the Commission' as the explanation. This would suggest that the face-to face meetings with the Proskauer Rose attorneys were 'heavy work'. The resulting document seems to indicate they were indeed.
The Memo of February 6th
On the evening of February 6th, members of the Metropolitan Council received their first 'official' news concerning the work of the Special Commission. But this time it came not from the Special Commission. The new 'Memorandum' came from the Metropolitan; or, if one reads between the lines, from the lawyers involved. This February 6th Memo has never been made public by Syosset either, but it was posted on the Orthodox Forum by 'Peter Zwick' a week later.
TO: Members of the Metropolitan Council
FROM: Metropolitan Herman
DATE: February 6, 2007
On. February 5 & 6, 2007, the Special Commission appointed by His Beatitude Metropolitan HERMAN at the joint session of the Holy Synod & Metropolitan Council met in East Norwich, New York. The members continued to review relevant documents and to discuss issues related to investigation of the allegations of financial misconduct. The Special Commission also agreed that it will attempt to fulfill the following five charged tasks in preparing its preliminary report to the Holy Synod and Metropolitan Council next month.
1. 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;
2. 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;
3. instruct the attorneys of Proskauer Rose to provide the written report to the Commission only;
4. make a recommendation to the Metropolitan Council on whether the preliminary phase of the investigation should be concluded, whether it should be continued by another firm, or whether some others should take it up to conclude it; and
5. make recommendations to the Metropolitan Council on any next steps that the Commission deems prudent.
Once the Special Commission issues its recommendations, decisions can then be made as to the next steps necessary to conclude the investigation. Alexandra Makosky, legal counsel to the Special Commission, and Jim Perry and Sarah Gold, legal counsel for the Church, have also endorsed this direction, believing that it is consistent with due legal process.
The Special Commission members ask that you continue to pray for them as they work to complete the challenging work ahead of them."
The Statement vs. The Memo
The Special Commission has taken great pains to keep its work secret. As they expressed it in their January 31st Statement:
"Members of the Commission remain deeply concerned about details of their work being disclosed before the investigation and report are complete. Such premature leaks would be unfair to all parties involved, and the Commission members have pledged to keep their findings and conclusions strictly confidential until their work is done. This means that no one in the Church, other than the members of the Commission and special counsel, will be privy to the results of the ongoing investigation. The Commission is convinced that leaks and partial disclosures serve no one, and could seriously compromise the credibility of its work."
As a result, no one associated with the Special Commission is speaking, on or off the record.
A comparison of the Metropolitan's Memo with the Commission's Statement (and the recent Minutes of the Joint Meeting of the Synod and Metropolitan Council) however, clearly reveals that serious differences of opinion as the goals and purposes of the Special Commission exist between the Commission and the current administration. Consider the following:
• The Statement was the Special Commission speaking to the Metropolitan Council directly. The Memo is the office of the Metropolitan, as mediated by the lawyers, telling the Council what the Special Commission has done. The difference is important; ; for if the
Special Commission is allowed only report when the Metropolitan says it may, it is hardly independent; and if it is allowed only to report what the Metropolitan says it may, it is hardly special.
• The Statement repeats the same five goals as in the Minutes of the recent joint session. The Memo sets forth five different goals.
1. According to the Memo, the Special Commission is no longer to investigate "what took place and why it went wrong" but to discuss "allegations of financial misconduct" by "meeting with Proskauer Rose" to "determine what tasks still need to be concluded by them" (Proskauer Rose).
2. According to the Statement "....at the conclusion of its work, a written report to the Church must be made" by the Special Commission. According to the Memo, the Special Commission is not to prepare a report for the Church - but "meet with Proskauer Rose... 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."
3. According to the Statement, "On December 12, 2006, .....His Beatitude, Metropolitan Herman named six individuals --- two bishops, two archpriests, and two lay persons --- to a committee charged with completing the investigation..". According to the Memo, the task of the Commission is no longer to "complete the investigation". Rather the Commission is to make a recommendation to the Council as to how the "preliminary phase of the investigation should be concluded, whether it should be continued by another firm, or whether some others should take it up to conclude it." This last clause in the Memo is unclear. Does this mean Proskauer Rose, another legal firm, or, more ominously, a more compliant Special Commission?
4. In fact, the only things the Statement and Memo have in common is the concluding plea for prayers for the Special Commission. Given the differences in goals between the Special Commission's Statement of January 31st and the Metropolitan's Memo of February 6th, no wonder prayers are needed. It must have indeed been "heavy work" in those two days of meetings, with all lawyers and no witnesses....
The Statement mentions one lawyer - Ms. Alexandra Makosky, who has been engaged by the Commission as pro bono legal counsel. Ms. Makosky is an associate in the Litigation and Dispute Resolution Department of the Harrisburg (Pennsylvania) office of Pepper Hamilton LLP. She is the daughter of the former FROC President Peter Melnik and was one of the co-signers of the 'Lawyers Letters'. (Read that story here).
The Memo mentions three lawyers: "Alexandra Makosky, legal counsel to the Special Commission, and Jim Perry and Sarah Gold, legal counsel for the Church." Mr. Perry, as reported earlier, has been serving as informal pro bono legal counsel for the OCA for several months - and Ms. Gold, of course, is the chief attorney working with the OCA from Proskauer Rose LLP. According to the Memo, these three have inserted themselves as players in this drama, along with the Metropolitan and the Commission. The Memo states the three attorneys "have endorsed this direction, believing that is consistent with due legal process." Why are these lawyers endorsing anything - specifically the Metropolitan's "new" direction rather than the goals outlined by the Synod, Metropolitan Council and the Special Commission itself? Is this not rather obvious evidence of an attempt to co-opt, influence or steer the work of the Special Commission by these lawyers on behalf of Syosset? Why is Ms. Gold specifically, acting as legal counsel to the OCA, rather than just giving testimony to the Special Commission on what Proskauer Rose discovered? Perry and Makosky are working pro bono; but it might be wise for the Metropolitan Council at its next meeting to request detailed billing from Proskauer Rose to see exactly what the OCA continues to be charged now that their investigation is finished. If the Memo is correct, what wags are calling "Proskauer, Perry and Makosky" may be the "new" legal counsel for the OCA- but with what appear to be the same old results.
Restoration of Trust vs. Due Legal Process
The Special Commission's Statement made clear that: "The Commission has agreed that the restoration of trust must be the primary goal of the investigation,...". The Metropolitan and his lawyers say no such thing in their Memo. Rather, their conclusion (literally, for it is the penultimate line in the Memo) is that the results of the investigation "must be consistent with due legal process." The Special Commission is not a legal body, for it has no authority beyond its own integrity. So why this sudden legal, rather than moral, emphasis? By endorsing this standard, "Proskauer, Perry & Makosky" seem to be more worried about protecting the OCA, the Metropolitan and his administration from possible civil suits than helping the Special Commission seek the truth. In the end the OCA can withstand a civil suit; it cannot long survive without the restoration of its integrity. "Due legal process" is a fine and necessary criterion; but cannot and must not be used as an excuse to cover, delay, thwart or interrupt the work of the Special Commission.
The Special Commission
Even a cursory comparison between the Special Commission's Statement and the Metropolitan's Memo reveals significant tensions between the issuing bodies. A close reading reveals even more. According to the Memo, it appears that the Special Commission is expected, in the end, simply to sign off on Proskauer Rose's investigation and conduct none of its own. Will the Synod accept that? Will the Metropolitan Council? Fortunately for those interested in the truth, the Memo itself suggests that the Special Commission will not.
With four lawyers in the room at the East Norwich Inn (Special Commission member Gregory Nescott is also a lawyer) one can be sure that every sentence of the Memo was parsed. So read carefully what the Special Commission agreed to: "The Special Commission also agreed that it will attempt to fulfill the following five charged tasks in preparing its preliminary report to the Holy Synod and Metropolitan Council next month." Agreed to attempt to fulfill. Not "agreed to"; nor "will fulfill". Agreed to attempt to fulfill. It doesn't take a lawyer to see that hole. One expects all six members of the Special Commission, for the sake of the Church, will jump through it, and thus stay true to the task given them by our bishops and Metropolitan Council representatives. Hence the term - "Commission".
The Special Commission is scheduled to report to the Metropolitan Council at its next meeting, March 13-14th in Syosset.