Lawyers for the Southern Baptist Convention Executive Committee have indicated they will “fight over every document” requested in the sexual abuse investigation demanded by messengers to the SBC annual meeting, according to the Sexual Abuse Task Force.
The already intense battle between the convention-mandated task force and the Executive Committee trustees and staff showed no signs of resolving over the weekend, but a third meeting of the Executive Committee was announced for Tuesday, Oct. 5, at 10:30 a.m. Central time.
Charges of ‘improper conduct’
Meanwhile, a document obtained by Baptist News Global and dated Oct. 4 indicates that “there are deeply troubling allegations that at least some EC trustees have engaged in improper conduct in matters underlying the investigation.” That charge appears to have originated with the task force but is now represented to Executive Committee trustees by Harriet Miers and Paul Coggins, Dallas-based attorneys brought in to help the Executive Committee.
“There are deeply troubling allegations that at least some EC trustees have engaged in improper conduct in matters underlying the investigation.”
No indication of what that improper conduct might be was explained, and the original letter from the task force to the Executive Committee making such charges was not accessible.
Counsel on what’s prudent and what’s at stake
The confidential letter to Executive Committee members — verified by BNG to be authentic — from the two attorneys continues to make the case that under Tennessee law, Executive Committee members owe a greater duty to the Executive Committee as fiduciaries than to the SBC as the sole member of the Executive Committee’s corporation. Whether legally true or not, this viewpoint stands at odds with Southern Baptist polity and is the crux of the demands from pastors and denominational leaders across the nation that the Executive Committee do what the convention said and waive attorney-client privilege for the scope of this sexual abuse investigation.
“No one can tell you what you believe to be reasonably prudent — neither an attorney nor a majority of the messengers constituting an annual meeting of the convention can tell you what you believe,” the two Dallas lawyers advised the committee.
The letter also clarifies the internal view that “all trustees of the Executive Committee since 2001 are within the universe of those whom some suspect of wrongdoing, although arguably trustees whose service began in June of this year will not be investigated for wrongdoing in their capacity as board members. It would be difficult for any Executive Committee trustee to consider himself or herself completely exempt from any possibility that an accusation of wrongdoing would be made during the course of the task force’s investigation.”
Exactly how the Executive Committee’s attorneys are advising the committee’s staff and trustees has not been documented publicly because all such counsel has been given in executive session. At lengthy meetings the last two Tuesdays, the Executive Committee has gone into private session for hours at a time to hear from attorneys.
Task force makes another statement
The clearest indication that legal counsel is driving the car has come from the Sexual Abuse Task Force, which appears increasingly exasperated that the Executive Committee will not allow it to do the job convention messengers in June assigned it to do and has said so.
“Southern Baptists have spoken clearly about the work of our task force and the independent review by Guidepost Solutions. Through phone calls, emails and social media posts, they have continued to express the same desire as articulated in the original motion, specifically regarding the waiving of attorney-client privilege,” the task force wrote in a public letter Oct. 1.
“We have been unable to reach an agreement because of the EC’s continued insistence on maintaining privilege and on being the party who hires Guidepost.”
Despite weeks of good-faith efforts, “we have been unable to reach an agreement because of the EC’s continued insistence on maintaining privilege and on being the party who hires Guidepost, rather than allowing the task force to contract, per the express will of the messengers. This has unnecessarily wasted a significant amount of both time and money — Cooperative Program dollars which the messengers directed be used for an investigation, but certainly did not direct to be used to delay an investigation.”
The Oct. 1 public letter makes two significant accusations about the Executive Committee’s process to date:
- “Unfortunately, we have not been allowed to communicate clearly and fully with the full Executive Committee, and it has become apparent that our position was certainly not communicated accurately by EC counsel.”
- “For clarity, the only model which comports with the express directives of the messengers is the “messenger model,” which waives attorney-client privilege as to ensure an open, timely and thorough investigation. This has been our focus; this remains our sole focus. We believe this is more important than ever given events of the past several weeks, including attitudes from the EC counsel conveyed as ‘we will fight over every document.’”
Executive Committee leaders have indicated in public comments that they believe there is a way through this impasse that does not fully waive attorney-client privilege. The most recent statements have discussed a “special master” model or a “Michigan model” as alternatives. These would involve some other third or fourth party as an arbiter of what documents should be considered privileged (and therefore confidential) and what should be released. But the Executive Committee’s position so far has been that the Executive Committee must control this process — even to the point of signing the contract with Guidepost Solutions and becoming the client instead of the task force being the client.
That continues to be unacceptable to the task force.
“We must be clear that AT NO TIME did we believe the special master or Michigan model comported with the will of the messengers because they do not,” the task force wrote Oct. 1. “This was made unequivocally clear to the trustees in our Monday meeting. Both models were interim models only to allow work to begin while we continued to stand for the clear directives of the messengers. Neither model comported with the express directives of the messengers, and we made that clear.”
Ronnie Floyd appeals for unity
Also on Friday, Oct. 1, Ronnie Floyd, the top paid staff person at the Executive Committee, released a letter to all Southern Baptists explaining that he doesn’t get a vote in the matter and wants everyone to find a way to get along.
“The SBC Executive Committee fully welcomes this review,” said the Executive Committee president. “The debate has not been about conducting this review. We want this review to be thorough, fair and reveal the truth. We have nothing to hide, and if something is discovered that we are not already aware of, it is past time for it to be discovered and handled in a more appropriate manner. Anything discovered needs to be revealed, repented of and addressed in every way possible. Our team is ready to work with this firm and has been making preparations since the week following the 2021 SBC annual meeting.”
As the two factions head to their third meeting in three weeks, insiders see several questions looming over the future:
- If the Executive Committee still refuses to waive attorney-client privilege, will the task force be able to lead the investigation properly, potentially being denied access to an unknown number of key documents?
- If the Executive Committee does agree to waive attorney-client privilege, will some dissenting committee members find the risk too great and resign their posts in protest? And will the legal counsel that has so strenuously advised not waiving privilege continue on the job after the client has defied their counsel?
- What will be the fallout when the SBC gathers in annual session next June in Anaheim, Calif.? Because “the convention” legally exists only two days a year during the annual meeting, there is no mechanism for “the convention” to challenge its own Executive Committee until then.
- What permanent damage or changes will be brought about by this most significant challenge to Southern Baptist governance in the history of the denomination? That could include an accelerated lack of trust and a potential open door to other litigation made possible by the new understanding that the SBC does, in fact, operate in a hierarchical structure that gives its Executive Committee greater standing than churches gathered in annual session.
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