Can. 502, of the Code of Canon Law

 §1. From among the members of the presbyteral council and in a number not less than six nor more than twelve, the diocesan bishop freely appoints some priests who are to constitute for five years a college of consultors, to which belongs the functions determined by law. When the five years elapse, however, it continues to exercise its proper functions until a new college is established.

In many ways, the authority of the diocesan bishop is absolute. He has all the 'ordinary, proper, and immediate' power necessary to fulfill his pastoral office, except when the law establishes otherwise (c. 381). It is this exception that came to my mind yesterday when I saw the announcement that attempts to settle the case of John Doe 104 had failed.

One of the innovations introduced with the 1983 Code of Canon Law was the creation of the College of Consultors. The overall task of the College is to assist the diocesan bishop in governing the diocese. However, a distinction is made regarding the responsibilities of the College. In some cases the diocesan bishop is obliged to receive the consent of the college, whilst in others he must merely consult with them (audire- to hear). The specific obligation is established in the canons related to the proposed acts. 

For instance, the Archbishop must consult with the College of Consultors prior to appointing or removing the diocesan finance officer (a consultation Archbishop Nienstedt overlooked prior to the forced resignation of CFO John Bierbaum in the wake of the 'discovery' of the theft by the Archdiocesan comptroller, and sought too late to be meaningful in regard to the hiring of his replacement, Tom Mertens). He must also consult them on matters of 'major importance' in light of the financial situation of the diocese (also ignored when it came to providing Archdiocesan funding to outside organizations seeking to secure a constitutional amendment prohibiting same-sex marriage). A diocesan bishop is not bound to follow the advice offered by the College in these circumstances, but the law requires that such consultation occur.

The Archbishop must receive the consent of the College of Consultors in order to alienate (usually by sale or lease) diocesan property of a value that falls between the maximum and minimum amounts, and prior to granting permission for similar transactions at the parish level. He must also secure the consent of the College prior to placing acts considered to be extraordinary according to the criteria established by the USCCB. Among such acts is the resolving of individual or aggregate claims by means of financial settlement.

Theoretically, this should place a necessary check on a diocesan bishop, especially when one considers that he is limited as to whom he may appoint to the College. He must select between six and twelve members, and those members can only be chosen from among the members of the Presbyteral Council. In the Archdiocese of Saint Paul and Minneapolis, the majority of the members of the Presbyteral Council are not appointed by the Archbishop but are elected by the whole body of priests, who vote in their deaneries (generally geographic areas or ministerial categories such as retired priests, academics, or chaplains). The effectiveness of the College is directly related to the extent to which the members represent viewpoints that are diverse and otherwise unrepresented.

When I was Chancellor for Canonical Affairs, I served as staff liaison to the College of Consultors, and I can assure you of that College's diverse viewpoints and of the seriousness with which they undertook their duties. As many priests could attest, they were tough. Unlike the Archdiocesan Finance Council, which shares the responsibility of advising the Archbishop prior to the placing of certain acts, the College of Consultors was not prepared to merely 'rubber stamp' transactions at either the parish or the diocesan level. Several priests found they had to put breaks on construction projects or other transactions because of the rigorous review to which their proposals were subjected, and were taken aback when asked to submit contracts, proposals, tax information, financial data, and anything else the College felt it needed to review before granting its consent. Many were also surprised to find that transactions that had once been considered a standard means of doing business in the church (such as leasing or selling unlisted property to parish employees), would no longer receive the required approval.

Yet, none of this is surprising when one considers the make-up of that particular College. That body was composed of eleven members of which no less than four were lawyers, one was a noted curmudgeon, all had served as pastors with the exception of Father Laird (who was chosen when he sat on the Presbyteral Council as Dean of the Academic Deanery), several were late vocations who had spent years in secular professions, and one was a member of a religious order. 

The Consultors were:

Father Dan Griffith
Father Bob Hart
Father Patrick Hipwell
Father Peter Laird
Father James Perkl
Father Thomas Sieg
Father Peter Williams
Father Thomas Kunnel*
Father Ralph Talbot
Father Tom Walker
Father Francis Kittock

While I have been disappointed in the conduct of several of these priests since my resignation and my decision to go public with what I knew about the Archdiocesan response to accusations of sexual abuse by clergy, my faith in their ability to advise the Archbishop (at least at that time) was absolute. Which is why I consider it a pity that the term of this College ended in November of 2013.

I consider it even more a pity when I review the list of the current College of Consultors, as published in the Minnesota Catholic Directory (see below). Don't get me wrong- I have nothing against any of these men, and I think quite highly of several of them. But, they do not have the education or the experience of the previous group, which is sad given how desperately such knowledge is needed at this time.

But, what troubles me most about the current make-up of the College is that in empaneling it the Archbishop apparently chose to deviate from the law in order to ensure that a majority of votes would always be cast in his favor. For, if the Minnesota Catholic Directory (produced and published by the Archdiocese) is to be believed,  this College apparently is composed not only of men selected from the Presbyteral Council as the law requires, but also of those whose appointments to it are listed as being ex officio (by virtue of office). 

Say what?

Obviously, there are no ex officio positions on a College of Consultors. If there were, the Code would list them. Moreover, the idea of ex officio appointments- which would change as the holders of those offices do- goes against the idea that the College is a stable body that once selected serves for five years, even during a vacant See (when there is no diocesan bishop or he is impeded). 

Even more concerning is the appointment of Bishop Cozzens to the College (ex officio). Bishop Cozzens was not ordained to the episcopacy until December 9, 2013, while the College of Consultors should have been established in October or November of 2013. As auxiliary bishop, Cozzens would have an appointment on the Presbyteral Council, but again he did not become an auxiliary until December and so would not have been a legitimate member of the Council prior to that. The only other way that he could have had a legitimate seat on the Presbyteral Council prior to his episcopal ordination was as Dean of the Academic Deanery, but that position was held by Father Michael Keating (appointed by the Archbishop with full knowledge of the accusations that had been made against him). So, it seems highly unlikely to me that Bishop Cozzens is/was even eligible for membership on the College of Consultors.

And why have him there at all? Surely Auxiliary Bishops, like Vicars General, have other opportunities to provide counsel and advice to their bishop. No, the only reason for having these 'ex officio' members is so that the Archbishop is guaranteed a certain number of favorable or unfavorable votes. Anyone who thinks I am kidding or exaggerating should just ask one of the previous Consultors how often the Archbishop himself tried to cast a vote during their consultations!

But does it matter? Should we care? Yes, most certainly. As I have already said, the College must give its consent to certain transactions, including the alienation (transfer of ownership, or turning over of the administration) of diocesan property. This means they would have likely had to approve the transfer of funds to the new Appeal Foundation, as well as the shifting of any assets prior to the Archdiocese's filing for bankruptcy. Even more importantly in light of recent events, they would have to approve legal settlements and 'any financial transaction or contractual agreement, the terms of which address matters involving an actual or potential conflict of interest for the diocesan bishop, auxiliary bishop(s), vicar(s) general, episcopal vicar(s), or diocesan finance officer'. In other words, if you want to know how much the Archdiocese paid Greene and Espel to investigate the Archbishop Ask a consultor. 
 

*Thomas Kunnel, TOR, is the religious order priest, of course. Once a close friend of Archbishop Nienstedt (and of Joel Cycenas), that relationship soured and Father Kunnel would escape the Archdiocese before his term was up, meaning the College dropped to ten members. Interestingly, Kunnel found refuge with Bishop Pates in the Diocese of Des Moines. I suspect we will hear a great deal more about this when the investigation into Archbishop Nienstedt is finally made public. 

 


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    Jennifer Haselberger is a canon lawyer who served as the Chancellor for Canonical Affairs in the Archdiocese of Saint Paul and Minneapolis until April of 2013, when she resigned in protest of the Archdiocese's handling of sexual misconduct by clergy.

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