GOARCH - October 2, 1997
Legal Committee Report to:
His Eminence Archbishop Spyridon,
Board of Trustees of Hellenic College, Inc.
REPORT to: His Eminence Archbishop Spyridon, Board of Trustees of Hellenic College, Inc.
prepared by LEGAL COMMITTEE OF THE ARCHDIOCESAN COUNCIL
October 2, 1997
SCOPE OF REPORT
His Eminence Archbishop Spyridon has directed the Legal Committee of the Archdiocesan Council (the "Legal Committee") to review the handling of an incident that occurred at a student party at Hellenic College/Holy Cross School of Theology (the "School") on February 27, 1997 (the "February Incident"), subsequent disciplinary proceedings and appeals thereof and other related matters. The Legal Committee consists of attorneys Emanuel G. Demos, Simos C. Dimas, John M. Mavroudis and Catherine Bouffides Walsh.
The Legal Committee received and reviewed voluminous information from numerous sources including the Greek Orthodox Archdiocese of America (the "Archdiocese"). The Legal Committee interviewed Fr. Alkiviadis C. Calivas, Archdeacon Gerasimos Michaleas, Fr. George Dion Dragas, Fr. John A. Heropoulos, Fr. Gabriel Karambis, and members of the disciplinary committee (the "Disciplinary Committee") consisting of Fr. Theodore G. Stylianopoulos, Fr. Emmanuel Clapsis, Fr. George Papademetriou, Dr. Nicholas Constas and student Mario Grimanis (student Telemachos Alikakos was not interviewed). These interviews took place in New York City and Brookline on September 26 and September 30, 1997, except that Fr. Stylianopoulos and Fr. Clapsis were interviewed by telephone conferences on September 28, 1997. Numerous meetings and conferences of the Legal Committee to discuss the issues and formulate this report took place in September and October 1997. The review of this matter together with the preparation and presentation of this report involved well over 100 hours of work by the Legal Committee and its members.
The Legal Committee reviewed this matter in an informal fashion, relying upon the facts contained in the available material and the interviews described above (the "Record"). No interviews were conducted of the students involved in the February Incident. The Legal Committee did not and could not conduct a retrial of the case.
On the basis of our review of the Record, the Legal Committee has reached a consensus and made certain determinations as set forth below and more particularly described in this report.
The Disciplinary Committee acted in good faith and in a fair and reasonable manner in reviewing the evidence and rendering a decision concerning the February Incident. The Disciplinary Committee reasonably reached the conclusions set forth in its recommendations although reasonable persons also could have reached different conclusions on the basis of the evidence.
There is no evidence that the Archdiocese or the Archbishop attempted to influence or interfere with: (i) the convening of the Disciplinary Committee; (ii) the work of the Disciplinary Committee; (iii) the investigation of the sexual and other misconduct which is alleged to have occurred during February Incident; or (iv) the formulation of the recommendations of the Disciplinary Committee.
The sections of the School's Student Handbook (the "Handbook") governing disciplinary procedures are unclear and ambiguous. As a result, previous administrations have varied significantly concerning matters referred to disciplinary committees and the manner in which those committees have been constituted and have operated. In this instance, the Disciplinary Committee was constituted and conducted itself in a reasonable and professional manner.
Students involved in the February Incident engaged in a cover-up of the facts throughout the disciplinary proceedings. The failure of certain students to be forthright and forthcoming with the truth was reprehensible and unbecoming their status as seminarians and clergy.
The misuse of process and the delay of the academic Dean of the Holy Cross School of Theology (the "Dean") in rendering a decision on the students' appeals until after graduation, for whatever reasons, appears to have been deliberate, improper and disruptive of the process. The Dean's decision concerning the recommendations of the Disciplinary Committee could have reasonably been reached by an appellate body, although reasonable persons also could have reached different conclusions on the basis of the evidence.
Contacts by the Archdiocese or the Archbishop urging a just conclusion of the appellate process in accordance with pastoral prudence could be susceptible to misinterpretation and could give the appearance that any such contacts were intended to influence the outcome of the disciplinary process, but there is no evidence of any such intent to influence the outcome.
Neither the Archdiocese nor the Archbishop reassigned clergy at the School to hide any sexual misconduct, homosexuality or any inappropriate behavior by students; and. The contemporaneous reassignment of Clergy at the time of the dispute between the Dean and the Disciplinary Committee gives the appearance of impropriety. The Legal Committee speculates that there may have been multiple reasons for the reassignments (as more particularly described in this report).
The Legal Committee makes the following recommendations:
The sections of the Handbook governing disciplinary processes should be revised to provide clarity and specific procedures for the handling of all disciplinary actions, with established and definite time frames for conducting all phases of disciplinary proceedings. In addition, the Handbook should be revised to provide a more clearly defined code of conduct; and
An independent advisory commission should be appointed to prepare and present a learned and reasoned exploration into and recommendations concerning the administration of the School as an institution of Orthodox theological education in the United States. The members of such commission may include hierarchs, theologians, priests, lay scholars and others.
DISCUSSION OF CONCLUSIONS
A. SUMMARY OF RECORD
On February 27, 1997, a party in a student's room in Polemanakos Hall at the School triggered an investigation that led to formal disciplinary proceedings against a number of students. The Disciplinary Committee appointed by Fr. Alkiviadis C. Calivas, the then President of the School (the "President"), made certain findings of wrongdoing on the part of several students and issued recommendations for various disciplinary sanctions against those students.
Although disciplinary sanctions were recommended for several reasons (including excessive drinking and dishonesty in attempting to "cover-up" the events that occurred during the February Incident), the most severe disciplinary sanction imposed by the Disciplinary Committee was the expulsion of one student (an ordained clergyman) accused of engaging in sexual misconduct. The sexual misconduct involved an Archimandrite student, Fr. Kallistratos Ikonomou, who allegedly fondled the buttocks and chest of a collegian, Jiries Shamma. The collegian was, at the time, on probation due to previous disciplinary action, earlier that year, for misconduct not of a sexual nature. The Record reflects that Fr. Ikonomou had withdrawn from the School during the previous academic year due to personal problems and that he had been readmitted to the School by the Dean, bypassing the usual procedures for re-admission. The Record reflects that Shamma struck Fr. Ikonomou with such force that medical attention was required.
Affected students appealed the disciplinary sanctions to the Dean, Fr. George Dragas. Upon appeal, the findings of the Disciplinary Committee were reversed. Thereafter, the President asked the Disciplinary Committee to review and respond to the decision of the Dean in anticipation of the conveying of the School's Presidential Caucus. On June 20th, the Disciplinary Committee submitted a response to the President. No further appellate review took place. On June 23rd, certain members of the Disciplinary Committee were notified by the Archdiocese of planned changes in their status at School (collectively, the "Reassignments").
B. PURPOSE OF REVIEW
The Legal Committee was asked to undertake an independent inquiry of the following matters:
Whether the Disciplinary Committee was properly convened, constituted and followed the policies and procedures of the School in making its recommendations;
Whether the proper appellate procedures were followed in reviewing the recommendations of the Disciplinary Committee;
Whether the portions of the Handbook regarding disciplinary proceedings should be reviewed and modified, in whole or in part;
Whether there was an attempt to thwart a legitimate investigation into the February Incident; and
Whether the Reassignments of Disciplinary Committee members resulted from an effort by the Archdiocese to "cover-up" a proper investigation into any sexual or other misconduct that may have occurred during the February Incident.
The Legal Committee has reviewed the Record as presented to it by the Archdiocese and concerned members of the Greek Orthodox community. The Legal Committee has also considered various statements contained in the media. The Legal Committee has not reviewed matters pertaining to tenure or hiring policies of the School or accreditation issues.
C. REVIEW OF DISCIPLINARY ACTION
The Legal Committee is of the opinion that the sections of the Handbook governing disciplinary action are unclear and ambiguous. As a consequence, procedural errors may have occurred respecting all phases of the disciplinary proceedings. However, the Disciplinary Committee was constituted and conducted itself in a reasonable and professional manner.
The "Disciplinary Procedure" section of the Handbook, a copy of which is annexed hereto, describes policies governing both formal and informal disciplinary proceedings. The Record indicates that the School sought to initiate informal disciplinary proceedings concerning the February Incident; such informal proceedings were subverted by the refusal of certain students (including ordained clergy) to cooperate and be forthright and forthcoming with the truth of the events.
Because of this lack of cooperation, the Dean of Students (Archdeacon Gerasimos Michaleas) felt compelled to recommend formal disciplinary proceedings. However, if the Handbook is to be construed in the light most favorable to the rights of the affected students, formal disciplinary action may have been inappropriate under the circumstances. One construction of the Handbook's provisions reserves "formal" disciplinary action solely for "repeated" violations of School policies with admonitions which remain "unheeded". There is no evidence in the Record that the disciplined students (with the possible exception of Shamma) had engaged in any repeated violations or received any admonitions. Under this interpretation of the Handbook, therefore, formal disciplinary proceedings were inappropriate and should be dismissed. Another theory would require that the provisions of the Handbook be interpreted in the light of precedent. Yet another interpretation of the disciplinary guidelines permits the Dean of Students to refer to the Disciplinary Committee for examination and decision all matters pertaining to student deportment. In the case of seminarians, the President may deal directly with serious infractions by imposing any disciplinary action he considers necessary for the benefit of the student and the school. (It should be noted that the President did not choose to exercise this authority in the instant case.)
Other issues and differing interpretations exist with regard to the provisions of the Handbook governing various procedural aspects of the disciplinary action. Under one interpretation of the Handbook's provisions concerning the composition of the Disciplinary Committee, adequate representation requires that a total of four faculty members (two from each school) participate in the review of disciplinary matters. The Disciplinary Committee was comprised of only one faculty member from each school. The composition of the Disciplinary Committee was consistent with the composition of some previous disciplinary committees. The Legal Committee further notes that the record of the disciplinary proceedings does not contain any recorded or other verbatim transcripts of the student interviews but is comprised of summaries prepared by members of the Disciplinary Committee. Accordingly, the Legal Committee relied on such summaries as accurate representations of the testimony of the students.
The Legal Committee has not interviewed the witnesses that appeared before the Disciplinary Committee. Other than Shamma's testimony, there was no other testimony that any sexual misconduct occurred despite the presence of numerous other individuals at the party. (The lack of corroborating testimony is not dispositive of a conclusion that no sexual misconduct occurred, as it is evident that the students at the party were engaged in a "cover-up".) According to the Record, the testimony of Shamma varies widely at different stages before, during and after the investigation process.
We further note that the Archdiocese appointed an episcopal oversight committee consisting of Bishop Maximos and Bishop Philotheos which committee had been visiting since the fall of the previous year. This committee found Shamma's testimony to be credible.
D. REVIEW OF APPEALS PROCESS
The Handbook clearly supports the right of students from the School of Theology upon whom disciplinary action was imposed to appeal the decision of the Disciplinary Committee to the Dean. Under one interpretation of the procedures set forth in the Handbook, the Dean has the authority to reverse the determinations of the Disciplinary Committee and to withdraw or modify the formal sanctions imposed upon students by the Disciplinary Committee. Under another interpretation of the procedures set forth in the Handbook, the Dean can only make recommendations to the School's Presidential Caucus. These varying interpretations are an example of the Handbook's unclear and ambiguous guidelines for disciplinary proceedings.
The Dean may have had the right to review the Disciplinary Committee's decision, but the substantial delay that occurred in the completion of his review appears to have been deliberate, improper and disruptive of the process. This delay and the fact that the Dean did not render his decision prior to the graduation date of certain affected students has resulted in the appearance of impropriety. The Legal Committee recommends that the School implement policies establishing definite time frames for conducting all phases of disciplinary proceedings.
We emphasize again that the Handbook's procedures regarding appellate review are vague and ambigious. If read in the light most favorable to students, only the aggrieved students could have appealed the decision of the Dean to the Presidential Caucus. Since all formal disciplinary action on the students was effectively reversed by the Dean, there is no basis for expecting that the affected students would have sought a further appeal. Another interpretation of the Handbook supports the postion that the students' appeal to the Dean is but one step towards final determination of the matter by the Presidential Caucus. The Legal Committee was divided on the issue of whether further review was in fact intended to be provided under the procedures set forth in the Handbook.
E. ALLEGATIONS OF "COVER-UP" AND REASSIGNMENTS
It is evident from the contradictory testimony in the Record from many of the involved students, that School students (including seminarians and ordained students) did, in fact, attempt to "cover-up" the events of the February Incident and to prevent a legitimate investigation by School officials.
There is no evidence that the Archdiocese or the Archbishop attempted to influence or interfere with: (i) the convening of the Disciplinary Committee; (ii) the work of the Disciplinary Committee; (iii) the investigation of the sexual and other misconduct which is alleged to have occurred during the February Incident; or (iv) the recommendations of the Disciplinary Committee.
Information available to the Legal Committee indicates that communications between the Archdiocese and the President occurred after the Disciplinary Committee reached its determination. Representatives of the Archdiocese urged a just resolution of the appellate process in accordance with pastoral prudence. The Legal Committee suggests that all care should be taken in the future to avoid even the appearance of impropriety or interference into School disciplinary proceedings.
The contemporaneous reassignment of Clergy at the time of the dispute between the Dean and the Disciplinary Committee gives rise to an appearance of impropriety. The Record indicates that there may be many possible reasons for the Reassignments. Among the potential reasons may be some or all of the following: (i) the Reassignments took place as planned after the end of the academic year as a result of an ongoing review of the School by the Archdiocese; (ii) the Reassignments took place as a consequence of the Archdiocese's view that the School administration had failed to conclude the disciplinary process in a just and expeditious fashion in accordance with pastoral prudence;
(iii) the Reassignments took place due to the Archdiocese's view that the clergyman involved in the Reassignments had failed to adhere to the Orthodox tradition of obedience by failing to conclude the disciplinary process in a just and expeditious fashion in accordance with pastoral prudence.
There was no attempt on the part of the Archbishop or the Archdiocese to prevent legitimate investigation into allegations of sexual misconduct, homosexuality or any inappropriate conduct at the School.
It is our fervent prayer that our efforts will assist to bring closure to this matter.
Very respectfully submitted,
LEGAL COMMITTEE OF THE ARCHDIOCESAN COUNCIL
s/ John M. Mavroudis
John M. Mavroudis, General Counsel
s/ Emanuel G. Demos
Emanuel G. Demos, Vice Chairman
s/ Simos C. Dimas
Simos C. Dimas
s/ Catherine Bouffides Walsh
Catherine Bouffides Walsh
October 2, 1997 ]