Investigations 101: Public Contract & Scope
On January 14, 2022, the ACNA Province announced they were hiring the law firm Husch Blackwell to investigate allegations of abuse and mishandling in the ACNA Diocese of the Upper Midwest (UMD).
ACNAtoo has cited several major concerns with this investigation, which we continue to expound in this 3-part series. In Part One, we discussed why waiving attorney-client privilege is essential to a thorough, independent investigation.
In Part Two, we focus on the scope of the investigation and the Province’s ongoing refusal to publish their letter of engagement (contract) with Husch Blackwell.
Part Three is focused trauma and the role it plays in investigations.
All third-party investigations – often termed “independent” investigations – are not created equal. The label “independent” is frequently misleading, since the client hiring the third party investigator is either the institution being investigated or the institution overseeing that institution. By definition, the investigative firm has a fiduciary duty to said client, automatically crippling its own objective third-party status, unless safeguards are enacted to counter this.
The field of independent investigations is composed overwhelmingly of firms who advertise their willingness to adapt to the “client’s needs” (see the Husch Blackwell website). When the “client” (in our case, the ACNA) signs a letter of engagement (contract) with an investigative firm, this contract spells out what the two have agreed upon, based on the needs the client communicated to the firm. This in turn shapes the entire investigation: its processes, scope, goals, limitations, client protections, etc. If survivors and witnesses are to participate (and their participation is key to a thorough investigation), then it is the contract more so than the specific firm that determines whether it is safe for them to do so. (The exception to this general rule is GRACE, due to the non-negotiable parameters of their investigations, which is why ACNAtoo has repeatedly requested an investigation that adheres to GRACE’s standards.)
Investigative Scope
In a third party investigation, the “scope” sets the boundaries of what the firm may investigate and report on. It defines how widely the investigator may cast their net to gather information and data and prevents the investigative firm from including in the final report any evidence they happen to uncover that lies outside the scope.
For example, a very narrow investigative scope might focus solely on one accused person and the accusations already brought to church leaders. The client (the church) could task the investigator with simply interviewing the accused person and the complaining parties, reviewing any evidence they submit, and delivering a report of their conclusions to church leadership.
An investigation that simply adjudicates between two parties might be appropriate in some cases of conflict within institutional settings. But when accusations allege a pattern of abuse by someone in leadership, a broader scope is necessary. Because abuse does not occur in a vacuum, and because reports of the abuse were almost always made prior to the report that sparked a formal investigation, it is important that the investigator not be limited to looking at the isolated incidents of alleged abuse, but to be able to ascertain a fuller picture. Additionally, there are very often other victims who haven’t come forward when an investigation begins, and their stories may be excluded if the scope is overly restricted.
In the case of former Catechist Mark Rivera in the Upper Midwest Diocese, diocesan leadership and senior leaders at two churches were made aware of multiple serious allegations against Rivera, which were disclosed to them by an alleged victim’s mother in May of 2019. Shortly afterward, Bp. Ruch assured the survivor’s mother that her reports would factor significantly into a forthcoming review to examine the child safety processes in question; the internal review concluded in late 2020 without the Bishop communicating to her or any survivors its scope, its findings, or what, if any, changes the UMD would implement as a result.
So when survivors and advocates later called for a formal, independent investigation in early 2021, they asked that the scope of the investigation not only include Rivera’s more than two decades of involvement within Church of the Resurrection (and later Christ Our Light), but also leadership failures to respond appropriately to the 2019 accusations.
When Bp. Ruch announced the hiring of investigative firm Grand River Solutions in May 2021 and failed to communicate clearly the investigative process or scope, survivors protested the investigation publicly. The ACNA Province then stepped in and took over this investigation in July 2021, eventually hiring Husch Blackwell in January 2022. While the PRT has publicly stated that Husch Blackwell will examine leadership failures in the Mark Rivera case up through the diocesan level, they have refused to publish the contract that would confirm this. Additionally, Provincial leaders have specifically declined to comment on their own mishandling of the process as publicly alleged by three former PRT members who resigned in protest of this mishandling on January 19, 2022.
Why the investigative scope matters
Just as failure to waive attorney-client privilege potentially allows investigation-relevant documentation to be withheld from investigators and the public (as outlined in Part One of this series) an overly narrow investigative scope can also shield misconduct and mishandling from public disclosure. The final report from a third party investigator will only include information and evidence that falls within the scope defined in the contract. The investigator’s ability to uncover and report on the full picture of the abuse itself, as well as any institutional mishandling of abuse allegations, is entirely dependent on what the client (in this case the Province) permits them to investigate.
For example, if the Province’s contract with Husch Blackwell specifies that they are only to investigate whether Christ Our Light Anglican leaders mishandled abuse allegations against Mark Rivera, then the final report will only include information directly relevant to mishandling by Rev. Rand York and COLA Senior Warden Christopher Lapeyre. If that is their given investigative scope, then even if Husch Blackwell uncovers clear evidence that Bp. Stewart Ruch, Canon William Beasley, Chancellor Charlie Philbrick, and other Church of the Resurrection/UMD leaders also mishandled these allegations, this information will likely be excluded from the final report, as it would fall outside the initial scope laid out in the letter of engagement.
Without the ability to cast their nets as widely as needed to gather and report on all relevant data and testimony, investigators cannot uncover, to the greatest extent possible, the truth of abuse and mishandling within the Diocese of the Upper Midwest. Mark Rivera attended Church of the Resurrection for decades, held multiple prominent leadership positions, and continued interacting with church youth even after his June 2019 arrest and subsequent bond release. Without an investigative scope that allows for this entire time period to be investigated, including outreach to youth and vulnerable adults who may have interacted with Rivera at Church of the Resurrection decades ago, this investigation will be incomplete.
Given that credible allegations of mishandling have also been publicly brought against the PRT by three of its former members, who resigned on January 19, 2022, a properly thorough investigation scope should likely include the PRT itself, to fully examine all mishandling of the Mark Rivera case within the entire ACNA. Additionally, since Bp. Ruch’s May 4, 2021 announcement assured his congregations, “I have been keeping my superior, Archbishop Foley Beach, apprised of the situation,” any relevant communications between Bp. Ruch and Abp. Beach should also be disclosed to investigators.
Although the Province has stated that Husch Blackwell “will have complete discretion to investigate allegations of sexual misconduct and mishandling within the Diocese,” disclosing their contract with Husch Blackwell is the only way to assure survivors and the public that the investigative scope is adequately broad.
Publishing the letter of engagement
A letter of engagement is the signed agreement/contract between the client and the investigative firm.
This contract defines every aspect of the investigation, including the investigative scope, the investigation's goals and objectives, whether or not attorney-client privilege will be waived, the cost of the investigation, whether the firm is currently providing legal counsel or may later represent the client in future litigation (see here for why this is problematic), and more.
Even the best investigative firm can only do as much as their contract permits. This is why survivors and advocates have requested that the Province’s letter of engagement with Husch Blackwell be published in full. The specifics in the letter of engagement are equally as important as the expertise and competence of the firm itself. These details determine whether an investigation will be independent, thorough, and safe for survivors to engage with.
There is no way for survivors to make an informed decision about whether to participate in the upcoming Husch Blackwell investigation unless the Province provides this information. Sadly, the vast majority of church/ministry abuse investigations leave survivors re-traumatized, making it all the more essential that third party investigations adhere to standards that ensure both survivor safety and a thorough and complete investigation.
ACNAtoo survivors and advocates have requested multiple times that the Province commit to publishing their letter of engagement (contract) with their chosen investigative firm. As explained in a November 7, 2021 email from survivor and advocate Joanna Rudenborg to the Provincial Response Team, this step is essential “so that the public is fully aware of the investigation parameters and process and so that survivors at large can make an educated decision about whether it is safe and worthwhile for them to participate in the investigation.”
In a November 29, 2021 response to Joanna’s email, the PRT stated that they would not be publishing the contract, without explaining their decision.
It is actually standard procedure for organizations to publicly disclose their letter of engagement with an investigative firm as soon as the investigation is publicly announced, so this request from survivors and advocates is not only self-evidently reasonable but also in line with what other institutions in the ACNA’s position have done.
For example, when LSU hired Husch Blackwell in 2020 to investigate whether the university’s handling of past sexual harassment cases complied with the federal Title IX law, they included their letter of engagement with Husch Blackwell as part of their public announcement of the investigation.
Likewise, when the SBC Executive Committee announced their October 2021 vote to waive attorney-client privilege in an investigation of sexual abuse and mishandling by Guidepost Solutions, their letter of engagement was publicly disclosed in conjunction with the announcement.
The fact that the Province is refusing to disclose their contract with Husch Blackwell calls into serious question the honesty and transparency of the PRT’s handling of this investigation. If the Province truly has “no interest in protecting any persons in our dioceses and churches who commit abuse or misconduct,” as it has publicly stated, then a broad investigative scope and a publicly disclosed contract are necessary steps toward transparency and accountability.