Thursday, December 29, 2005

UFW Response to Tribunal

December 29, 2005
For “Reflections of the Spirit”

The Complete Tribunal Decision (Nov 10, 2005) regarding the validity of the Holy Spirit union contract follows this posting. Important items have been highlighted.

Also attached is our UFW letter of Dec 12, 2005 to the Promoter of Justice, Rev. Jose Rene Angel, outlining our objections to his defense of the union workers and asking him to remove himself as such because he “did not properly promote justice and competently defend the contract”. Also attached is our subsequent letter to him on December 19, 2005.

Since 2002, lay employees at five (5) parishes in the Diocese of Brownsville have tried to work with dignity and respect at their jobs under a union contract. This union contract provided them with a grievance procedure, job security, and a union pension plan.

Since the contracts became effective, Bishop Peña of the Diocese of Brownsville has fought the workers rights to have union representation at every step of the way. First he laid off the two (2) union employees at Sacred Heart Parish in Hidalgo, claiming that the church had no money; then he threatened to withhold grants from three of the smaller parishes because they had signed union contracts, then in June of 2003, he had the new pastor at Holy Spirit Parish, Fr. Ruben Delgado, attempt to fire all of the union employees there. Only four (4) of the union employees were fired, as all of the other union employees were either out on vacation or on retreat.

Bishop Peñ also wrote a letter to all of the bishops in Texas, announcing that he had hired professional people to develop strategies to deal with unionized employees. Although Bishop Peña has said that he had nothing to do with any of these actions, this is exactly how he operates. As an example, upon his arrival as Bishop at the Diocese in 1995, he requested that all department heads submit their letter of resignation. He then went after the second layer of management and within a short period of time, over 80% of his original diocesan staff was either terminated or resigned.

The workers at the parishes under union contracts have held up even under these retaliatory efforts. On November 10, 2005, a 3-priest tribunal declared that the contract signed by Fr. Jerry Frank was invalid because the local pastor did not have authority to sign a contract for more than $5,000.

Pastor Louis Brum, the current pastor at Holy Spirit Parish, who himself is anti-union, called the Tribunal. He kept secret the petition for the tribunal and the Promoter of Justice, Rev. Jose Rene Angel, did an extremely poor job of defending contracts on behalf of the union workers as is pointed out in the two letters following and in the text of the Tribunal decision, which follows this post.

Rebecca Flores
UFW Texas Director

Initial Letter to Rev. Jose Angel
December 12, 2005

Rev. José René Ángel
Promoter of Justice, Judicial Department fax: 956 542 6751
Diocese of Brownsville fax: 956 546 5162
P.O. Box 2279
Brownsville, TX 78522-2279

re: Validity of union contract (Holy Spirit in McAllen, TX)

Dear Father Ángel:

It has become apparent from the sentence of the tribunal, your December 4th letter to me, and your conduct in the defense of the contract in this action before the tribunal that you did not properly promote justice and competently defend the contract in the following ways:

1. You did not competently work with the church employees who benefited from the union contract at Holy Spirit and their union representatives, to defend the union contract to which Church canon law accorded a presumption of validity.

2. You did not competently advise the tribunal that, under canon law, its obligation was to determine the validity of the union contract by reference to the civil law of the United States and Texas (see Canons 1290, 1286).

3. You did not competently provide the tribunal with authoritative constructions of applicable Texas civil law, which clearly would have construed the union contract as valid under Texas law.

4. You did not competently raise issues of impermissible anti-union animus, most notably by Vicar General Rev. Bob Maher's July 3, 2002, letter to Texas bishops, a letter that on its face violates Texas anti-union law and is contrary to Canon law and the teachings of the Catholic Church.

5. Your failure to pursue an appeal in this action and protect the union contract and those workers who are protected thereby.

6. Your failure to clarify for the tribunal that union dues were not charged to the parish, but were merely deductions from employees' pay checks (the same as 403(b) deductions, FICA deductions, and family health care deductions).

7. Your failure to clarify for the tribunal that Holy Spirit had not undertaken any new obligations with respect to the union workers (that is, their pension), but had rather recasted the same obligations in a different format.

8. Your failure to clarify for the tribunal the facts that:

a. Bishop Peña implicitly approved the union contract by approving parish budgets of 2002, 2003, and 2004 that complied with the terms of the contract;

b. Fr. Heberto Diaz, Chancellor advised me in a letter of April 23, 2002, to address issues of wages and working conditions with the “pastor/employer”. He was responding to my April 6, 2002 to Bishop Peña regarding union negotiations; and,

c. The issue of the $5000 authority of pastors never emerged or was articulated as an issue until near the time the tribunal met.

Therefore, on behalf of the Holy Spirit employees under union contract, whom I represent, I respectfully request that you remove yourself from this case and take steps to have a new Promoter of Justice appointed to represent the union contract and the church workers protected by it.

Since today is the last day on which you can give notice to appeal of the sentence (Canon 202, para. 1), we respectfully insist that you do so immediately and thereby not fail to properly promote justice in this case.


Rebecca Flores

Archbishop Gabriel Montalvo
Papal Nuncio Fax: 202-337-4036

Archbishop Joseph Fiorenza
Archdiocese of Galveston-Houston Fax: 713-759-9151

James C. HarringtonTexas
Civil Rights Project Fax: 512-474-0726

Subsequent Letter to Rev. Jose Angel
December 19, 2005

Rev. José Rene Ángel, JCL
Promoter of Justice fax: 956 546 5162
Diocese of Brownsville fax: 956 542 6751
700 N. Virgen de San Juan Blvd
San Juan, TX 78589

re: Validity of union contract (Holy Spirit in McAllen, TX)

Dear Rev. Ángel:

In your letter of December 13, 2005, you state “my responsibilities, as promoter of justice in the above-mentioned case, were entirely fulfilled in accordance with Church law … [and] “the judgment… was on the manner in which the contract was executed.”

Among your responsibilities as Promoter of Justice, wasn’t there a responsibility to look at the effect invalidating the contract would have on workers? This contract has already provided one employee with a pension plan until he passes away and then ½ of his monthly pension check to his spouse until her death. It has also protected four workers from being fired when Fr. Ruben Delgado tried to do so on his first day at work, back in June 2003.

Our Union has requested to sit down with Fr. Louis Brum and with Bishop Peña countless times to go over the contract, but we have never been given that opportunity. On Saturday, December 10, 2005, I spoke with Fr. Carlos Villarreal, and he said, since we were in litigation, Bishop Peña could not meet with us. That is a mistaken idea. We can meet anytime to come to a solution to this problem.

Further, I noticed on page 3 of the tribunal decision the Promoter of Justice and the Procurator-Advocate for the Petitioner submitted their animadversions on June 23, 2005: ”The Court met in collegiate session on the afternoon of June 22 to hear the opinion of the Promoter of Justice and that of the Procurator-Advocate of the Petitioner. Following their oral arguments, each was directed to prepare a written brief.” So, on June 23, the next day after you gave your oral arguments, you submitted the brief because “all Acts already being known to the Petitioner through his Procurator-Advocate.” Now, how could you do all that analysis and writing without having prepared the brief in advance? So what was all the testimony about? Why waste so much time if you already had the answers?

Moreover, I am puzzled how you could effectively serve as Promoter of Justice without interviewing anyone affected by the contract or any of those involved in the making of the contract. Had you done so, you would have learned about our written request to negotiate a union contract directly with the bishop and that he then referred me to negotiate directly with the pastors on that issue and that, subsequent to negotiating the union contracts, the bishop three times, in consecutive years, approved the budgets, incorporating provisions of the union contracts. You simply did not do your job effectively. Indeed, since you work for the bishop, it would be impossible for you to actually work to attain a result other than what he clearly wanted in this case.

We continue to extend a request to meet with Bishop Pena to resolve this issue, and would prefer doing so rather than continue our vigils and our appeals in civil court, and now through the church process.

In the meantime, however, we continue to insist that you remove yourself as Promoter of Justice or, if unwilling to do so, that you refer this to an adjudicator outside the Diocese of Brownsville to make a decision as to whether you should do so. For purposes of this demand, I reiterate and re-incorporate my December 12 letter for all the reasons stated therein.

I trust that you honored our request and appealed the decision of the tribunal when we asked you to do so, within the time period prescribed.

If you have any questions, please contact me on my cell phone: 210 842 xxxx.


Rebecca Flores
UFW Texas Director

Archbishop Gabriel Montalvo
Papal Nuncio fax: 202 337 4036

Archbishop Joseph Fiorenza
Archdiocese of Galveston-Houston fax: 713 759 9151

Arturo Rodriguez
UFW President fax: 661 823 6174

James C. Harrington
Texas Civil Rights Project fax: 512 474 0726

Church Tribunal Decision (Scan)

(Holy Spirit in McAllen, Texas)
A 0401



With Benedict XVI as Roman Pontiff, and the Most Reverend Raymundo I. Peña as Bishop of Brownsville, the Tribunal of Brownsville, sitting as Court of First Instance consisting of:

Reverend Francis G. Morrisey, OMI, JCD, Praeses
Reverend Mario Medina Balam, JCD, Judex
Reverend William J. King, JCD, Judex et Ponens
Reverend José R. Angel, JCL, Promotor Justitiae
Reverend Carlos Villarreal, STL, Notarius

in the cause of the validity of a purported contract entered into within the territory of the Diocese of Brownsville and heard in formal process for a declaration regarding the canonical validity of the act, issues the following DEFINITIVE SENTENCE.


Holy Spirit parish is a public juridic person within the Diocese of Brownsville, with a church edifice and parish office located on Martin Avenue in McAllen, Texas.

On May 23, 2002, the Reverend Gerald Frank served as lawfully-appointed pastor of Holy Spirit parish, and therefore as administrator of the public juridic person.

On that day, a written instrument was executed by the Reverend Gerald Frank on behalf of Holy Spirit parish, by which a contract was purportedly entered into with the United Farm Workers of America. This instrument, entitled “Catholic Church Parish Master Contract,” consists of a preamble, introduction, and 28 articles. Two additional instruments were signed on the same day by Father Frank: these dealt with (a) disposition of funds to be received by the parish from the conversion of a defined benefit plan administered by the Diocese of Brownsville; (b) future negotiation regarding sick leave. A third agreement is dated May 23, but was signed on July 1 2002, regarding inclusion of parish pre-school employees in parts of the principal agreement. Lastly, on May 27, 2002, Father Frank signed an instrument which modifies the May 23 document by intending to hind successors or assignees of the parish.

These instruments, by reason of their intimate connection with each other, are considered as one act, the parties to the act being Holy Spirit parish [“the parish”] and the United Farm Workers of America [“UFW”].

The motive for drafting this purported agreement was to provide a means to remedy two concerns among employees of the parish:

First, the Diocese of Brownsville had recently converted a defined benefit pension plan managed by the diocese for lay employees of employing institutions within the diocese to a tax-deferred retirement plan pursuant to section 403(b) of the United States Tax Code. It was told to this Court that employees of the parish were fearful that the resultant monetary amount of payments in retirement would be greatly reduced in comparison to the previous plan.

Second, news or rumors of employment termination or staff realignments in other parishes led to concerns about employment security among some employees of Holy Spirit parish.

On June 18, 2003, the Reverend Ruben Delgado was appointed pastor of the parish, upon the transfer of Father Frank. His pastorate was short-lived. Rev. Brian Van Hove, S.J. was appointed Parish Administrator of Holy Spirit Parish on July 7, 2003.

The Reverend Louis Brum was appointed pastor of the parish on Jan. 22, 2004 and remains in that office.

On June 27, 2004, Father Brum petitioned this Tribunal pursuant to canon 1400, §1, 1°, to examine and to rule on the juridical validity of the purported contract between the parish and UFW, submitting a libellus outlining the basis of his cause of action. With the libellus he submitted also a signed mandate for the Reverend A. Oliver Angel, JCL, to serve as his Advocate and Procurator.

The same day, the Reverend Luis Javier Garcia, JCL, Judicial Vicar of the Diocese of
Brownsville, determined that the libellus was of a juridical basis, that the Tribunal of the
Diocese of Brownsville was competent in law by virtue of the place of the alleged
contract, that the Petitioner (Father Brum) possessed ius standii and accepted the libellus.
The diocesan Promoter of Justice was duly cited.

A Court was constituted on July 30, 2004, consisting of the following ministers of justice:

Praeses, Reverend Francis G. Morrisey, OMI, JCD
Judex, Reverend Mario Medina Balam, JCD
Judex, Reverend Kevin E. McKenna, JCD
Promoter Justitiae, Reverend José R. Angel, JCL
Notarius, Reverend Carlos Villarreal, STL

The contestatio uitis was effected on August 19, p004 with the doubt before the Court formulated as follows:

Was the contract signed by Holy Spirit Parish in McAllen, Texas, and the United Farm Workers of America (UFW, AFL-CIO) on May 23, 2002, VALID according to Canon Law and Diocesan Norms and Regulations?

Because of the unavailability of Reverend Kevin McKenna to continue as judge, a substitution was decreed on May 20, 2005. The Reverend William J. King, JCD, was substituted as judex.

The Court met in collegiate session to hear the Petitioner and witnesses at the Diocesan Pastoral Center in Brownsville on June 20, 2005, and again on June 21 and on the morning of June 22. The Promoter of Justice and the Procurator-Advocate for the Petitioner, Father Louis Brum, were present throughout the hearings by consent of the judges. The Court met in collegiate session on the afternoon of June 22 to hear the opinion of the Promoter of Justice and that of the Procurator-Advocate of the Petitioner. Following their oral arguments, each was directed to prepare a written brief.

In collegiate session on June 22, 2005, the instruction of the case was concluded, all Acts already being known to the Petitioner through his Procurator-Advocate.

The animadversions of the Promoter of Justice and the Brief of the Procurator-Advocate were both received June 23, 2005, and the court in collegiate session appointed a ponens.

The judges again met in collegiate session on October 5, 2005, for a discussion of the case. The ponens was commissioned to place the decision in writing as follows.


This case is presented pursuant to canon 1400, §1, 1° of the Codex Iuris Canonici as promulgated by the Roman Pontiff John Paul II in 1983. That canon provides: “1. The object of a trial is: 1° to prosecute or to vindicate the rights of physical or juridic persons, or to declare juridic facts” (emphasis added). It is to declare the juridic fact of the validity or invalidity at canon law of the written instrument under review that this Tribunal was convened.

Paragraph two of the same canon provides: “§2. However, controversies which have arisen from an act of administrative power can be brought only before the superior or an administrative tribunal”.

This canon, therefore, exempts “an act of administrative power” from the ordinary jurisdiction of a diocesan Tribunal, ceding competence to an administrative tribunal only. The distinction is seen as between an actus administrativus on one hand and an actio administrationis on the other. An actus administrativus or “administrative act’’- another way of fashioning the term, “an act of administrative power” concerns singular administrative acts as described in canons 35 ff. of the Code. These are limited to a decree, precept, or rescript.

The alleged contract in controversy arises from an actio administrationis or “act of administration.” This act is not the issuance of an administrative act as properly construed at canon law, but an act of temporal administration. “Administration” is narrowly understood in canon law as pertaining to actions relative to the stewardship of bona ecclesiastica or “ecclesiastical goods,” that set of property, goods, assets, and liabilities which constitute the temporal patrimony of a juridic person within the Catholic Church.

Acts of administration are exercised as a function of dominium or canonical ownership of temporal goods, which in canon law always denotes ownership for purposes and activities consonant with the religious, spiritual, liturgical and charitable ends of the Church.

As an actio administrationis, the disputed contract properly comes before this Court for an examination as to its validity.

The enactment of a contract which is intended legally or juridically to bind a juridic person, such as is a parish, is rightly termed a ‘juridic act” or actus iuridicus. A juridic act is an intentional external human act (i.e., arising from both intellect and will) posited for the purpose of effecting a determinate legal result or consequence.

Canon 124 provides that:

§ 1. For the validity of a juridic act it is required that the act is placed by a qualified person and includes those things which essentially constitute the act itself as well as the formalities and requirements imposed by law for the validity of the act.
§2. A juridic act placed correctly with respect to its external elements is presumed valid.

The cause before this Court seeks to overturn the prasumptio iuris articulated in paragraph 2 supra. For the validity of the disputed contract to be demonstrated, the requirements listed in paragraph I must all be present. The test, as it were, for the validity of the purported contract before us, may be enumerated as follows:

1. That the person placing the act be qualified to do so according to law;

2. That the external juridic act includes:

(a) those things which essentially constitute it, and
(b) formalities imposed by law for validity, and
(c) requirements imposed by law for validity.

It is evident that this canon lays two foundations for considering the validity of a juridic act — the actor and the act, which is to say:

1. The legal capacity for the actor to accomplish the intended deed or enter into the intended agreement;
2. The legal requirements and formalities of the act or agreement itself.

These two foundations are described also in Canon 10, which provides a general rule for approaching the question of legal validity or invalidity in canon law:

Only those laws which expressly state that an act is null or that a person is incapable of acting are to be considered to be invalidating (irritantes) or incapacitating (inhabilitantes).

It is important to note that canon 15, §1 states clearly:

Ignorance or error about invalidating or disqualifying laws (leges irritantes vel inhabilitantes) does not impede their effect unless it is expressly established otherwise.

Thus, a juridic act which suffers from invalidity cannot be sanated by a plea of ignorance or error by any party to that act. Ignorance or error regarding those requirements of law necessary for the validity of a juridic act cannot be raised as a defense, nor as an attempt to give validity to an otherwise invalid act. This is true for claims of ignorance of canons regarding either the legal capacity of the actor to posit the act (leges inhabilitantes), or the legal recognition of the act itself (leges irritantes). This distinction is discussed immediately below.

The distinction in canon 10 regarding invalidating or incapacitating laws is between the capacity to act (absent the actor’s legal capacity to place the act under scrutiny, the actor is said to be inhabilis), and the juridical recognition of the act itself (absent the requisite elements and formalities, the act is said to be irritus). The critical assessment of the Court in regard to the written instrument at dispute must therefore pursue the following analysis:

1. Was the pastor qualified to enter into the purported contract at the time of its signing?
2. Were the following all fulfilled at the moment of the signing of the disputed instrument:
(a) the essential constitutive elements of a contract under canon law?
(b) the observance of all formalities imposed by law for a valid contract to arise?
(c) the observance of all requirements imposed by law for a valid contract to

The first question relates to Canon 532:

In all juridic affairs the pastor represents the parish according to the norm of law. He is to take care that the goods of the parish are administered according to the norm of cann. 1281-1288.

The generic capacity to act in legal matters on behalf of the parish is conceded to the pastor by this canon. However, it is not an unfettered or unlimited capacity. The canon notes clearly that other canons circumscribe this capacity to act, by structuring and confining the pastor’s administrative discretion. Thus, in order to develop this test further, it is necessary to delineate in more detail what is meant by 2 (a), (b), and (c) above: the essential constitutive elements of a contract, and the formalities and requirements imposed by law for its validity, and also to delineate what requirements are imposed by canons 128 1-1288.

One commentary on canon 124 (CLSA, New Commentary on the Code of Canon Law, 2000), in discussing essential constitutive elements of a juridic act, observes that “a contract implies at least two parties and an exchange of rights, and its object must be possible” (p. 178). In fact, the provisions in canon law for a contract are more complex than that simple statement. Indeed, canon 1290, using an action which has come to be known as “canonizing” civil law, brings into its ambit the state law on contracts, “unless the provisions are contrary to divine law or canon law provides otherwise... “In other words, the prevailing state law on contracts is to be observed in canon law “with the same effects,” unless canon law should impose other requirements that would compel a contrary result. This includes requirements for constitutive elements of a contract as well as for formalities and requirements for contractual validity.

Canon 1290 provides:

The general and particular provisions which the civil law in a territory has established for contracts and their disposition are to be observed with the same effects in canon law insofar as the matters are subject to the power of governance of the Church unless the provisions are contrary to divine law or canon law provides otherwise, and without prejudice to the prescript of can. 1547.

The “canonization” of the state law on contracts, that is, its observance in canon law with the same effects, is limited or negated where canon law already provides for the particular subject matter. The prescriptions of canon law regarding temporal administration of a public juridic person are examples of provisions which impose requirements and formalities which either negate or supplement those of the civil law as it is brought into the canonical ambit.

In acting with regard to the temporal or fiscal affairs of a juridic person such as a parish, the administrator (normally the pastor, in the case of a parish) may undertake four broad types of actions: acquisition, retention, administration, and alienation (cf. canon 1254). Administration of ecclesiastical goods is a function of the nunus regendi of the Church, the ministry of governing or shepherding, and it is conducted within the context of dominium as noted above, that is, ownership toward a spiritual, religious, liturgical, or charitable purpose or end. As a class of actions, administration of the temporal goods of a juridic person within the Church includes those acts affecting ecclesiastical goods but which do not result in a change of ownership of goods or property.

It is a sweeping class of actions, which is why prescriptions for basic fiscal controls are defined and imposed by the Code of Canon Law.

Canon 1280, as an example, requires that each juridic person have its own finance council or equivalent financial advisors to assist the administrator (in a parish, the pastor).

Canon 1281 is directly pertinent to the case at hand, and its observance by a pastor is mandated by canon 532. It reads:

§ 1. Without prejudice to the prescripts of the statutes, administrators invalidly place acts which exceed the limits and manner (fines modumque) of ordinary administration unless they have first obtained a written faculty from the ordinary.
§2. The statutes are to define the acts which exceed the limit and manner (finem et madam) of ordinary administration; if the statutes are silent in this regard, however, the diocesan bishop is competent to determine such acts for the persons subject to him, after having heard the finance council.
§3. Unless and to the extent that it is to its own advantage, a juridic person is not bound to answer for acts invalidly placed by its administrators. A juridic person itself, however, will answer for acts illegitimately but validly placed by its administrators, without prejudice to its right of action or recourse against the administrators who have damaged it.
The text includes reference to both the limit and the manner (as emphasized above) of Ordinary administration. This is important in defining the rule or test for judging validity of an act of administration such as entering into a contract.

The limits and manner (fines modumque) defind the boundary between ordinary administration and extraordinary administration at canon law. The distinction is more than academic, in that it defines levels of consultation and consent which are required for the legal validity of an act of administration. Paragraph three of the canon further stipulates that a juridic person is not hound to specific performance of acts placed by an administrator (pastor) beyond the limits of his ordinary administration and without the requisite written facultas from the Ordinary. What determines an act of extraordinary administration is both the monetary limits (fines) and the manner of acting (modum) required by the transaction. It is without legal validity and thus without legal enforceability if placed without the required grant of a faculty (facultas) in writing from the Ordinary.

The Church Finance Handbook of the Canon Law Society of America (at page 193) states the following about the distinction between acts of ordinary administration and acts of extraordinary administration:

Acts of extraordinary administration are those which because of the nature or importance of the act itself, or its financial value, require the permission of a higher authority. Examples of extraordinary acts include those acts which do not occur on a regular basis, such as purchase of land, construction of new buildings or extensive repair of buildings, expenditures over a designated financial amount, refusal of major bequests, purchase or replacement of major equipment, and the dedication of surplus funds.

In Church Property Church Finances and Church-Related Corporations (Adam Maida and Nicholas Cafardi, Catholic Health Association, 1984), acts of extraordinary administration are defined as follows (at page 301):

Activities by the canonical steward of a public juridic person that do not occur regularly or routinely, are of major import, and are not covered within the meaning of “ordinary administration.”

Commentaries on the earlier 1917 Code of Canon Law also define acts of extraordinary administration. For example, M. Pistocchi, De Bonis Ecclesiae Temporalibus (Turin, 1932), defines them (at page 369) as:

Extraordinaria ad ipsum aditio rein subintelliget pro quae annualis rationum redditio ne sufjciat. (Acts of extraordinary administration are understood as being those for which the annual revenues do not suffice.)

The well-respected commentary of Wernz and Vidal (Ius Canonicum, Gregorian University, Rome, 1934) notes similarly (IV, 209):

Administrationis ordinariae actus generatim loquendo illi sunt qui vel singu1is annis occurrunt vel etiam frequentius et necessarii sunt pro habituali et consuetuta bonorum gestione: actus administrationis extraordinariae generatim loquendo non recurrunt periodice et graviores plerumque sunt. (Acts of ordinary administration are, generally speaking, those which occur each year or even more frequently and are necessary for the habitual and customary management of goods; acts of extraordinary administration generally speaking are not periodically recurring and are more serious and weighty.)

The language of canon 128 1 is important. The grant of facultas is not equivalent to the giving of a permission (permissio) o act. For a parish and pastor, what is necessary for acts of extraordinary administration is not for the diocesan bishop to give permission for or to express approval of a pastor’s decision; rather, the diocesan bishop is to grant the facultas or the legal capacity itself to act. Without such facultas, the pastor utterly lacks legal capacity to place the desired act. In the interpretation of canon law, facultas always refers to an extrinsic power conceded to one who lacks power to act in its absence. Absent the faculty, the actor is inhabilis or incapable of acting with legal validity. Where either the financial limits or the manner of acting, or both, exceed those of ordinary administration, an administrator of goods utterly lacks the power or legal capacity to place a valid or binding act for a juridic person, without the explicit grant of facultas by the Ordinary (for the definition of an Ordinary, cf. canon 134, § I).

This is not a negation of the pastor’s role as proper and exclusive administrator of the temporal affairs of the public juridic person of the parish. Rather, it is an exercise of confining and structuring his administrative discretion in acts which may, by virtue of the monetary scope of the transaction or nature of the project, jeopardize the fulfillment of the spiritual and religious mission of the parish in communion with the diocesan bishop.

This notion of a facultas may be difficult to understand apart from canonical tradition. However, as the noted scholar of canon law, Archbishop Velasio de Paolis notes in his 1995 text on I beni temporali della Chiesa (“The temporal goods of the Church”) at pages 164-165:

Si tratta di una licenza, non propniamente di un mandato: l’autore della licenze non si assume le responsibilita dell‘atto amministrativo. Tale licenza deve essere previa: se essa fosse stata ommessa prima dell’atto, questo non viene sanato con una licenza successive... (This refers to a license, not properly to a mandate: the author of the license does not himself assume the responsibility for the administrative act. Such license is to be prior: if it was omitted before the act, the act does not become sanated by virtue of a later license…)

The prescriptions of canon law regarding the capacity of a pastor to pledge the assets of a parish by means of a canonically valid act must be satisfied irrespective of whether the civil law would impose any analogous requirements. That is so because the pastor and the Church as a whole, are exercising stewardship over resources that must be devoted to ministerial ends, i.e., the accomplishment of the mission of Jesus Christ in the world and the apostolic charge entrusted by Christ to the Church which He established. The canon law therefore affirms a doctrinal imperative in making careful prescription regarding the stewardship of such ministerial resources.

Oversight exercised by a diocesan bishop upon the stewardship of the assets of other juridic persons, such as parishes, cannot be construed to convey ownership or the right of control of those assets. While the pastor functions as proper and exclusive steward and administrator of parish resources, his capacity to devote those resources to specific goals and projects is circumscribed by canon law so as to ensure in practice the theological value of communio or a commonality of vision, mission, and practice in the fulfillment of the religious mission of the Church in the world. The diocesan bishop is not granted a right of control, and certainly not dominium or ownership interest, over parish assets and property, but in matters of greater temporal weight or consequence the law confers the ability to withhold a grant of capacity to transact with legal consequence, so as to afford the opportunity to shape pastoral practice and priorities.

The fact that oversight or the right defined by law to oversee the exercise of stewardship of canonical dominium does not affect property tenure or confer a controlling interest in property is noted in canon 1279, §1:

The administration of ecclesiastical goods pertains to the one who immediately governs the person to which the goods belong unless particular law, statutes, or legitimate custom determines otherwise and without prejudice to the right of the ordinary to intervene in case of negligence by an administrator.

Canon 1276, §1 describes the obligation of the Ordinary “to exercise careful vigilance (sedulo advigilare) over the administration of all the goods which belong to public juridic persons subject to him…” The canon’s second paragraph provides for the Ordinary to accomplish this in part “by issuing special instructions within the limits of universal and particular law.” This is typically to be accomplished through a written instruction, which stipulates the manner in which a law is to be observed (Canon 34), although lawful custom may prescribe the manner and practice of this vigilance (Canons 23-~8)

Canon 1281, quoted in its entirety supra, as an exercise of the general call for careful vigilance voiced in canon 1 276, permits the diocesan bishop — when the statutes of the juridic person are silent — to define the limits and manner of ordinary administration within the diocese entrusted to his care. Canon 1277 provides for the episcopal conference to define acts which are to be considered as extraordinary administration. The United States Conference of Catholic Bishops has not yet clone so, and so it is for the diocesan bishop to do so for juridic persons within his diocese. Where even this is lacking, and where it may be said that a lacuna legis exists, Canon 19 exhorts us to turn to parallel sources and to general principles of law, among other legal fonts. Even in the absence of a true lacuna in the law, we also bear in mind the declaration of Canon 27, namely that “Custom is the best interpreter of the law.”

Canon 1281 provides for a demarcation to be made between the limits of ordinary and extraordinary administration, and notes clearly that administrators invalidly place acts beyond the limits of ordinary administration. However, the Code of Canon Law elsewhere imposes requirements for obtaining permission for an administrator, such as a pastor, to act in fiscal affairs. Canon 1295 reads:

The requirements of cann. 1291-1294, to which the statutes of juridic persons must also conform, must be observed not only in alienation but also in any transaction which can worsen the patrimonial condition of the juridic person.

Canons 1291 through 1294 normally deal with alienation of goods, that is, transactions which result in a change of ownership from the originating juridic person. However, canon 1295 is broadly worded — “any transaction” -~ and imposes the requirement for obtaining the permission of a higher authority in the Church for any transaction which has the potential to “worsen the patrimonial condition of a juridic person.” Again, this must not be construed as a usurpation of the autonomy of a pastor, in the case of a parish, or denial of the exercise of subsidiarity, but rather as a measure of oversight intended to ensure that the parish can predictably and reliably carry on its liturgical, religious, charitable, and educational mission with sufficient resources.

It is not to be overlooked that, when canon 1295 pertains and hence canons 1291 through 1294 are made applicable, canon 1291 requires “the permission of the authority competent according to the norm of law” for validity of the act. This is not the conferral of facultas but licentia or permission. The significance in legal construction is that the pastor possesses by grant of office the legal capacity to posit such acts as may be covered by these canons 129 1-1295), and so he is habilis to place the acts, but the acts themselves are rendered irritus or invalid by the law. The requirements and formalities required by law must be fulfilled, and the grant of a licentia or permission conceded, for the act to obtain legal validity.

The prescription of canon 1295 is not new to the 1983 Codex Iuris Canonici. A commentary on this canon notes clearly that the preceding Code of Canon Law, promulgated in 1917, “…indicated as included in the category of juridical transactions in question the hiring of domestic staff, usufruct, mortgages, the contracting of indebtedness, leasing…” (DePaolis at page 197, ‘‘indicava come rientranti nella categoria dei negozi giuridici in questione le servitu, l’usofrutto, ;’ipoteca, il contrarre debiti, la locazione…”

It is therefore rendered more difficult for one to claim ignorance of a law with consequences as serious as rendering a legal writing invalid, since such a category of law has existed since at least 1 917. As to whether any given transaction bears the potential to worsen the patrimonial condition of a juridic person, consideration must be given to the particular circumstances of the juridic person itself and its financial or patrimonial status, as well as to the nature of the transaction and its incumbent obligations, and to legal or fiscal conditions of the societal and historical context.

Hence, following the above evolution, the rule or test to be applied by this Court in answering the doubt before us can be phrased as follows:

1. Was the pastor qualified to enter into the disputed contract at the time of its signing?

In order to answer question one, therefore, it must be demonstrated that the signatory of the contract was indeed pastor of the parish, that the contract obligated the parish and only the parish, and that the pastor possessed legal capacity to enter into the type and amount of contractual obligations as so attempted, according to its limits and manner. It is also to be considered whether the contract could have worsened the patrimonial condition of the parish.

If the first question of the test can be answered in the affirmative, then the Court’s analysis must reach to the second question, namely:

2. Were the following all fulfilled at the moment of the signing of the purported contract:
(a) the essential constitutive elements of a contract as a juridic act under canon law? (Canon 124)
(b) the observance of all formalities imposed by law for a valid contract to arise?
(c) the observance of all requirements imposed by law for a valid contract to arise?

If it can be said that the purported contract at issue before us could have led to a worsening of the patrimonial condition of the parish, then the requirements of canons 1291 through 1294 would pertain, and an answer to the above questions would need to include an analysis of whether or not those requirements were fulfilled.

Thus having considered the law informing this process, the Tribunal turns to its application to the pattern of facts before us.


The Petitioner, Reverend Louis Brum, as well as the following fifteen witnesses were heard by the Court:

Reverend Sam Arizpe
Reverend Mario Aviles
Ms. Ann Williams Cass
Reverend Ruben Delgaclo
Reverend Heberto Diaz
Ms. Rebecca Flares
Reverend Gerald Frank
Deacon Alvin Gerbermann
Mr. Jack Graham
Reverend Alfonso Guevara
Reverend Robert Maher
Ms. Angie Peña
Ms. Brenda Riojas
Ms. Genoveva Trevino
Ms. Hilda Wedgworth

An unsigned “Declaration” prepared by Martha Sanchez and dated September 13, 2003, was also submitted into evidence.

It is established without question that Father Gerald Frank was lawfully-appointed pastor of Holy Spirit Parish in McAllen on the date he signed the purported contract with the United Farm Workers of America (UFW) on May 23, 2002. His appointment letter has been entered into the Acts of the case.

It is also established without question that Father Louis Brum was lawfully-appointed pastor of the same parish at the time of his petition to this Court to consider the validity of the purported contract between the parish and the UFW. His appointment letter appears in the Acts of the case. As such, he has standing to bring this question before the diocesan Tribunal.

It is evident to the undersigned judges that certain decisions and actions within the Diocese of Brownsville and within Holy Spirit parish gave rise to considerable concern, admiratio, and emotion in the months preceding the alleged contract in question and in the years since its signing. Without prejudice to these significant events and the deeply-held convictions and deeply-felt emotions which they engender, this Tribunal will decide on the singular issue before us, that is, the validity in canon law of the purported contract itself.

Similarly, issues properly understood under the rubric of social or distributive justice, and which are rooted in the social doctrine of the Catholic Church, are also in the mind of all who are connected with this case. There has existed since the inception of the UFW, for example, a treasured relationship between the United Farm Workers of America and the Catholic Church, which has been described and supported in numerous ways and at numerous times in documents of the bishops of the United States.

These issues and questions are important, sensitive, and evocative of strong emotion. They are, however, not of legal relevance to answering the doubt before this Tribunal.
Other events, troubling to many, occurred at times following the drafting of the writings at issue, both at Holy Spirit parish in McAllen and in other parishes. Troubling though these events may be to many persons of good faith and good will, they are not at issue before this Tribunal.

All other issues and concerns notwithstanding, this Court of law lacks competence to insert itself into any question not placed before it according to the norm of law, and so our analysis will address the sole topic at issue, the dubium formulated and presented:

Was the contract signed by Holy Spirit Parish in McAllen, Texas, and the United
Farm Workers of America (UFW, AFL-CIO) on May 23, 2002, VALID according to
Canon Law and Diocesan Norms and Regulations?

It is also to be noted that this case is not an action under canon 1411 for specific performance of the purported contract, but rather a request for a ruling or declaration on its validity at canon law. The decision focuses on this question only.

The following points in fact and in law are considered in answering the above dubium.

A. Conversion of the Defined Benefit Pension Plan administered by the Diocese of Brownsville

In mid-2000, as evidenced by several Memoranda presented and entered into the evidentiary Acts, the Diocese of Brownsville communicated to “All Pastors, Principals, Administrators and Diocesan Employees” (caption of May 24, 2000 Memorandum from the diocesan Insurance and Pension Department) the intention to convert a defined benefit pension plan for lay employees within the diocese to a tax-deferred retirement savings plan pursuant to section 403(b) of the United States Tax Code. Meetings were scheduled for all lay employees within the diocese to receive news of the conversion process, and at which the opportunity was provided to ask questions of diocesan staff and to speak with financial advisors provided by the diocese (Unattributed notice regarding “Open Enrollment” period; and November 2, 2001 Memorandum from diocesan comptroller Rolando Martinez).

It is clearly established in the evidentiary record that the Diocese of Brownsville judged the Pension Plan for lay employees of employing entities within the diocese to be over funded, and in or around the year 2000 decided to convert the plan from a defined benefit pension plan to a section 403(b) tax-deferred employee-managed retirement savings plan. Using a formula provided by the Federal Internal Revenue Service, the diocese paid to each employee within the plan a certain monetary amount, explained options for accepting or investing the money, and made available to each employee an investment management consulting service. Monies which remained following the payout to each employee were to be returned to the employing entity in amounts determined according to a defined formula.

B. Disposition of Pension Fund Assets following Conversion of the Plan

No Memoranda or writing were submitted in evidence to document the instructions provided to pastors or other employers within the diocese regarding disposition of the funds returned to the employing institutions following the conversion of the pension fund to a 403(b) plan.

A letter of June 19, 2002 was sent by the diocesan Comptroller to each “Pastor. Parish Administrator, Principal or Administrator” and contained “a check that represents your share of the current distribution of the amount determined to he an over-funding of the Diocese of Brownsville Lay Pension Fund.” June 19, 2002 seems to have been the date of the first distribution of residual funds to employing entities within the Diocese of Brownsville. The same letter contained the explicit instruction, “If you decide to use some of these funds as compensation to your employees then those payments should go through your payroll process.”

A June 25, 2002 Memorandum from the diocesan Chancellor to “All Pastors/Administrators, Directors and Principals” notes that an advance on the residual due each employing entity had been sent before that date, referring to the June 19 distribution. It is important to note that no distribution of funds had been made prior to June 19, 2002; funds were not in the possession of the parishes prior to that date.

Reverend Heberto Diaz, Chancellor of the diocese, testified as to his clear understanding that additional permission from the diocesan bishop was required to spend the residual funds returned to the parishes: “… anything over $5,000 you should get permission.” (Hearings, p. 58) Father Diaz expanded on his testimony, observing, “I think it was an implied thing that monies had to be used with good stewardship in mind and not just, you know, your interest for the employees.” The Chancellor was clear in noting that the disposition of residual monies from the pension plan conversion was not exempt from the general practice of requiring permission of the diocesan bishop for transactions of any kind in excess of five thousand dollars.

When questioned concerning his understanding of what was to be done with the funds returned to the parish, Father Gerald Frank responded, “ was if you want to use some of this money or all of this money or part of this money to benefit the workers that’s up to each individual pastor.” (Sessions, p.87, n.46) He could not recall whether these instructions were provided in writing or merely verbally. His recollection was that the return of funds was ~to benefit the workers subsequently.”

Father Frank testified also that he was approached by the union (Hearings, pp. 87—88), and opined that parish employees were fearful of losing employment after having learned that the pastor of another parish in N4cAlien had terminated the employment of several parish employees.

Reverend Mario A. Aviles, who served in the diocese as a Parochial Vicar at the time of the plan conversion, testified, “…I don’t remember if it was in a meeting or through a letter that [Bishop Peña] said that the diocese will he sending to the pastors the remaining of the account and they could so, I mean, they could use it for the church or they can distribute it among their employees.” (Hearings, p. 14) He did not believe at the time that further permission was needed to expend the returned funds, although he noted clearly that “…it was mandated to go through the books so there will be, I mean have the proper deductions.” (Hearings, p. 15)

Father Louis Brum recalled in his testimony that “Each parish received their own portion [of the excess revenues after the conversion]” (Hearings, p. 25), and that “The bishop gave us the option that the pastor in conjunction with his financial parish council could decide that money to he used to the best interest of the parish.”

The June 19, 2002 letter from the diocesan Comptroller, cited above, was issued at a date following the execution of the purported contract before us. Its instruction to “go through your payroll process” for disbursements to employees was not, however, novel. It is the judgment of this Court that it merely repeated existing diocesan policy and practice.

There were two disbursements to Holy Spirit parish of the residual funds. The first check was in the amount of $62,957.26, dated June 19, 2002. A second distribution was deposited directly on or about March 20, 2003 into the parish’s savings account with the Diocese in the amount of $39,373.34.

The total of the distribution, or disbursement, from the defined benefit pension fund back to Holy Spirit parish, then, was $102,330.60

This Tribunal concludes that specific restrictions upon the parish use of these residual funds did not exist or were not adequately made known to pastors prior to the distribution, yet expenditure of those funds remained subject to prevailing diocesan policies and practices regarding temporal administration. They were not exempt from the prevailing practices and limits. Conclusions to the contrary are erroneous.

C. Conversations between the Parish and the UFW preceding the Contract

One of the opinions raised by witnesses regarding a motivation for preparing the intended agreement was that Father Frank wished to fortify the job security of parish employees in preparation for a new pastor to arrive, as his own term of office approached its completion.

Reverend Heberto Diaz, diocesan Chancellor, expressed this opinion in his testimony before the Court (Hearings, p. 54): “…as soon as Father Jerry knew more or less that this was his last year at the parish, I think he had, my impressions were he had fears that there might be some questions with regard to a staff being let go, primarily a couple of people and/or maybe he had some anxiety about that.”

It is evident to the judges of this Tribunal that a certain discomfort existed at the time preceding the presentation of the purported contract for union representation. For reasons well beyond the purview of this Court to analyze, there existed at least in Holy Spirit parish a certain animus against diocesan administration and a climate of suspicion in which at least some of the parish employees were fearful that their future employment might be in jeopardy.

In the unsigned “Declaration” of Martha Sanchez, in which she describes herself as a full-time employee of Holy Spirit parish since 1989, she recounts: “In early 2002, we contacted the UFW, AFL-CIO, to discuss the benefits of a union contract, because we wanted job security and a pension plan.” From this testimony and others it is clear that parish employees initiated contact with the UFW.

A prepared statement submitted in testimony before the Court by Rebecca Flores, Regional Director for Organizing for the UFW, notes clearly that “In January, 2002, I was approached by some of the lay parish employees about forming a union...

Minutes of the Parish Council meeting of March 5, 2002, at Holy Spirit parish (notably, without the presence of the pastor, Father Gerald Frank) indicate, “Under new business Ann [Cass] announced that the parish and preschool employees would be signing a contract with UFW, AFL-CIO.” The motivations listed were “recent changes for employees made at the diocesan level,” and including the change to the pension plan and a decrease in health insurance benefits. These minutes were submitted in evidence by Father Frank.

A letter dated April 6, 2002, from Rebecca Flores addressed to Bishop Peña, includes the following: “Canon 215 gives Catholic the right to form associations, and under this, the temporal welfare of Church employees certainly fall.”

Indeed, Canon 215 does provide as follows:

The Christian faithful are at liberty freely to found and direct associations for purposes of charity or piety or for the promotion of the Christian vocation in the world and to hold meetings for the common pursuit of these purposes.

However, these prescriptions are further refined by Book II, Part I, Title V of the Code of Canon Law canons 298 through 329 which directly regard “Associations of the Christian Faithful.” These canons place such associations within the context of the communion of the Catholic Church, subject them to the vigilance of hierarchical ecclesiastical authority, and provide that their purposes are directly connected to and consonant with those of the Catholic Church itself:

to foster a more perfect life, to promote public worship or Christian doctrine, or to exercise other works of the apostolate such as initiatives of evangelization, works of piety or charity, and those which animate the temporal order with a Christian spirit. (cf. Canon 298, § 1)

It is of interest to this Tribunal that the UFW itself directly connects their conversations which preceded the presentation of the disputed writings with associations exclusively for the purpose of carrying on the religious or spiritual mission of the Catholic Church, under the authority and direction of, and in communion with, the proper ecclesiastical superior. It is doubtful that the UFW recognized the implications of their incorporation of canon law into these preliminary writings, or of their definition of the UFW as an “association of the faithful” of the Catholic Church.

D. The Purported Contract Itself

The “Catholic Church Parish Master Contract” at issue begins with a preamble which
quotes several doctrinal statements of the Catholic Church (from a conciliar document of
Vatican Council II; from a World Synod of Bishops; and from documents of the United
States Conference of Catholic Bishops).

The writing states that Holy Spirit parish recognizes the UFW as “the sole bargaining agent with respect to wages, hours, working conditions and benefits... for all employees in the parish performing bargaining unit work at the parish...”

In Article 5, the parish is asked to agree to remit union dues in the amount of 2% of gross wages of each employee who is a union member, payable monthly.

A grievance procedure is defined in Article 6, with an Arbitration clause as Article 7.

Other Articles cover topics such as Leave Without Pay, Medical Leave, Personal Leave, Bereavement, Jury Leave, a schedule of paid holidays (including Catholic religious holydays), vacation, hours of work, overtime, wages, and the like.

A second writing is drafted so as to bind the parish to place funds not yet received from the conversion of the pension plan into a restricted bank account “for the purpose of providing funds for a pension plan for the employees.” Also presented is the following language:

The Union and Employer Parishes will meet within 10 days after receipt of the funds to negotiate and agree upon the manner in which said funds can be used to provide further pension benefits.

Not placed in evidence before this Tribunal is any agreement which arose from the meeting thus described. Testimony is presented, however, that a payment is made by Holy Spirit parish to the pension fund of the UFW for this purpose.

Reverend Louis Brum, the Petitioner in this case and the current pastor of Holy Spirit parish, testified that the parish currently pays “A little over $1,000” (Hearings, p. 20) monthly to the UFW pension fund. Additionally, he testified that the parish pays “around $350” monthly to the UFW, or 2% of each parish employee’s salary.

If this is so, then the parish pays an amount equal to or approximately $16,200.00 annually to the UFW. Over the five-year term of the disputed contract, this would equal approximately $81,000.00 in contractual indebtedness to the UFW. The amount of dues is. however, deducted from the payroll of the member employees, and hence payroll obligations are not increased to the parish. Although this is so, the amount must be considered as an obligation arising from the disputed contract and included in considering the monetary scope of the draft contract as presented.

This Tribunal thus concludes that the purported contract placed before the parish financial obligations of approximately $81,000 over a five-year period.

E. Diocesan Policies and Practices regarding Extraordinary Administration

Canon 1284, §3 states that it is “strongly recommended that administrators prepare budgets of income and expenditures each year,” leaving it to particular law to require budgets and to specify their submission. Canon 1287, §1 does, however, specify that administrators are to present an annual report of administration to the local ordinary.

There is no unanimous testimony among witnesses that diocesan practices or policies regarding limits on ordinary administration were well known by pastors. It is clear that all pastors were aware of such policies and practices in a general manner, although testimony indicates confusion over whether the limit pertained only to construction costs or to parish administration of any sort.

Reverend Heberto Diaz, diocesan Chancellor, testified, “we also have a policy that if anybody wants to spend more than a certain amount of money, I think it’s $5,000 now for whatever project, it’s got to be approved.” (Hearings, p. 55) He stated clearly that this policy was in place in 2002, and he produced a 1995 Memorandum from Bishop Pena which raised the limit of a pastor’s discretionary spending from $4,000 to $5,000. When asked by the Court if pastors generally knew about this policy and limit, he replied, “. . .1 think most of us know what we can spend and what we can’t spend. I don’t think it’s something that’s a secret.” (Hearings, p. 56) He confirmed that pastors requested approval for expenditures over the limit for matters beyond construction, including in his experience as a pastor a ten-year lease agreement for a duplicating machine.

Father Diaz also testified clearly that permission is required to expend parish savings in excess of $5,000, even though that money is in the present possession of the parish: … to protect the money as stewards that policy was instituted so that the monies are all kept within a diocesan umbrella, an account, and whenever you want to get money out of your savings account [in excess of the limit], you have to ask permission for that and you justify why you want to get that money out from that savings account.” (Hearings, p. 57) Father Diaz noted that this practice was placed in effect “to help protect the monies from any kind of, you know, embezzlements or things like that.

Father Diaz also noted the diocesan practice to “shy away from” entering contracts near the end of a pastor’s term or if the parish lacks sufficient monetary resources.

A document entitled “Checklist for Parish/School Bookkeeper” on the letterhead of the diocesan Parish/School Accounting and Auditing Services, and dated December 13, 1999, includes the following instruction under a section captioned “IV. Savings Account:”

5. When a parish/school needs to make a saving withdrawal, we provide a specific form to be filled out and signed by the pastor/principal for authorization of withdrawals. Any form indicating a withdrawal of over $5,000 will be verified by the comptroller for permission acquired from the bishop.

Reverend Mario Aviles testified, “….I knew that you needed to contact the diocese to get into a contract and expend more money.” (Hearings, p. 12) He expressed the opinion that every pastor would know of such limits and requirements.

Monsignor Robert Maher, Vicar General of the diocese, testified that “….there was some kind of written communication” (Hearings, p. 127) provided to all pastors and administrators when, in 1995, the limit on acts of ordinary administration was raised to $5,000. No document, however, has been produced in evidence before this Court. Even so, Monsignor Maher opined that “everyone [i.e., pastors] were well accustomed to that [the dollar limit].’’

Reverend Louis Brum, the Petitioner in this case and current pastor of Holy Spirit Parish, offers concordant testimony: “[It] was always a known fact that any expense over $5,000 whatever area that needed to have the permission from the diocese; has been known always.” (Hearings, p. 21) He also testified that these policies “are written and sent to every priest, to every parish.” When asked if every priest in the diocese is made aware of these policies, Father Brum replied, “Very much so.”

Reverend Sam Arizpe was pastor of another parish at the time the purported contract was signed at Holy Spirit parish. He also executed an intended agreement with the UFW at the parish in which he served at the time. He testified that he was aware of no written policy regarding limits on ordinary administration, although he stated:

I know at the time when I signed the contract I’ve never been aware that there’s a written policy — that there’s no written policy’ that says, well the policy that existed was one that was already in existence and left over from Bishop Fitzpatrick’s time I believe and that had to with actual equipment, material, or building projects. Anything that had to do with purchasing of furniture or building materials over $5,000 had to he approved (Hearings, p. 3).

Ann Cass testified (Hearings, P. 34) that policies such as accrual of sick leave, personal days, and vacation days for parish employees are managed by the diocese. “I think that come[s] from the diocesan handbook, employees handbook.” She acknowledged, however, that she was aware only of a handbook or employee manual which was several years old. However, a copy of the diocesan employee manual has been placed in evidence in this case. It clearly applies only to those employed in diocesan offices. Parishes have in the past been provided with complimentary copies for their reference, but they do not bind the parishes, which are sepal-ate entities and distinct employers from the diocese.

Ann Cass testified (Hearings, p. 34) also that parish budgets as well as a record of monthly parish expenses are submitted for oversight to the “central office,” that is, the finance office of the diocese. She added, “I know when I was administrator and Father Jerry [Frank] was our pastor, there was a deadline for the budgets to be submitted to the chancery.” She noted her understanding that this was not for review or approval, but for record-keeping only.

Father Gerald Frank noted in his testimony that he successfully presented to the diocesan bishop, at a meeting of the Presbyteral Council, a proposal to raise the diocesan minimum wage. This is an explicit admission on the part of Father Frank that he was aware of a central exercise of vigilance over administration of employee compensation within the diocese.

Father Frank also testified (Hearings, p. 90) of his current awareness of a five thousand dollar limit on ordinary administration. He added, however, that he “. . .always understood that in terms of buildings.” He was aware in 2002 of a process for submitting parish budgets (Hearings, p. 90). He had, prior to 2002, submitted requests for non-construction expenditures in excess of $5,000 — copies of several such requests made by Father Frank are entered into the Acts of the case.

When asked specifically if he knew at the time that he would need to seek approval from the diocesan bishop to sign the draft contract presented by the union, Father Gerald Frank responded, “I knew I would never, I knew it would be futile.” When questioned further by the Court, Father Frank noted his conclusion that the promise to return funds to the parish from the converted pension fund constituted “authority” to enter into a contractual agreement with the UFW, and that no other review or faculty was necessary (Hearings, p. 96).

The Tribunal concludes that there was a consistent practice, albeit perhaps inconsistently documented, within the Diocese of Brownsville, by which fiscal transactions in excess of five thousand dollars required prior approval by the diocesan bishop. This Court does not accept as an exculpatory explanation the erroneous conclusion that that permission was required for construction contracts only. Ample evidence exists to demonstrate that Father Gerald Frank himself had previously submitted requests for approval of transactions in excess of $5,000. Even if he acted in vincible ignorance given the unique nature of the action under dispute, ignorance of an invalidating law does not render an invalid act valid. In this circumstance, ignorance cannot he presumed since prior documentation revealed the necessity of obtaining the diocesan bishop’s permission even to withdraw funds from parish/school savings in excess of $5,000.

F. Diocesan Policies and Practices regarding Contracts

Numerous letters were placed in exhibit which demonstrate consistent understanding by many pastors and diocesan administrators that there existed a limit of five thousand dollars upon the ordinary administration of a pastor, and that any expenditure or obligation to be incurred by a parish in excess of five thousand dollars would require permission of the diocesan bishop before execution by the pastor. In other words, there existed a common understanding that expenditures or indebtedness in excess of $5,000 constituted an act of extraordinary administration for a pastor. Several of these documents had been submitted by Father Gerald Frank himself.

Placed in the testimonial Acts of this case are several letters from 1995 and 1996 which demonstrate that reminders were delivered to pastors who had budgeted for capital expenses in excess of the limit on ordinary administration but who had not asked for explicit approval of the act. In fact, a letter from Father Frank as pastor of Holy Spirit parish to Bishop Pefia dated September 14, 1995, requested “permission to purchase a new Chevy Van, for the price of $23, 903.” A letter to then-diocesan bishop Enrique San Pedro, signed by Ann Cass as Pastoral Administrator of Holy Spirit Parish and dated 15 November, 1992, confirmed the prior grant of “permission to purchase two 1989 Ford 15-passenger vans at the price of $7500 each,” and thanked the bishop for his “kind permission.

Monsignor Robert Maher, Vicar General of the diocese, offered the testimony that the singular nature of this contract placed it in the category of an act of extraordinary administration. When asked if the diocesan policy regarding a limit of $5,000 applied to all contracts or only construction contracts, he responded, “I think the only kinds of contracts everybody was used to was labor contracts for what you would call contracted labor for a repair job or something like that, or a service that is a bookkeeper you would think of as contracted labor. You contract them for a job.” (Hearings, p. 127)

The Court understands from the testimony of Father Heberto Diaz and others that such contracts or commitments to employment always required explicit approval by the diocesan bishop, but this approval could be obtained in one of two ways: explicit approval ad actum, that is by request and written approval for a request: or implicit approval through review and approval of the budget prepared and submitted in advance of a new fiscal year.

G. The Contract as an Act of Extraordinary Administration

Reverend Monsignor Robert Maher, Vicar General of the diocese, testified to his clear opinion that the purported contract “…certainly seems to me to be an extraordinary rather than an ordinary act of administration.” (Hearings, p. 1 22) He judged it to be so because of its five-year term of obligations as well as its total financial obligation to the parish:

By its very nature most contracts are for a year or two years, but not five years. So even by civil standards it seemed to me to be fair to describe it as extraordinary. And even without the mathematics of calculating the $5,000 spending limit, which can’t be exceeded without explicit permission from the bishop, the nature of the act is extraordinary and not ordinary administration... Needless to say this is not an ordinary day-today thing for a pastor to sign a contract representing the parish with a union that is external to the Church... And the extraordinary nature of it had ample attention drawn to it by the fact that the union representatives portrayed it as not an ordinary thing but an extremely extraordinary thing. (Hearings, p. 122)

Monsignor Maher notes as well that the disputed contract touches on the pastoral ministries of the parish (Hearings, p. 122):

But these people are not just clerical staff. They’re pastoral staff. They are serving in capacities which are extensions of the trust given to the pastor to govern a parish, govern God’s people. SO their vocation should be a sacred matter. They should have a theological, an ecclesiological, vision for what they’re doing and they should see Church in my mind as a covenantal relationship between people who have consecrated themselves to serve the Lord in various ways according to gifts and so on, and for the good of the Church, but they have made the Church equal to for-profit free enterprise commerce in which the gains so to speak, the economic gain, is to get the highest distribution of the rewards of human labor for yourself...

Although there appears to have been no explicit restrictions presented to pastors and other administrators regarding the application or use of the funds given by the Diocese of Brownsville to employers following the conversion of the pension plan, it is equally true that no exemptions were communicated from the usual and customary practices of temporal administration within the diocese.

It can only he concluded that a dedication of monies received from the diocesan disbursement for the express purpose of satisfying a five-year obligation for union clues of $12,00Q per year or $60,000 total, clearly constituted an act of extraordinary administration.

The Contract may also he seen, as Monsignor Robert Maher has brought before this Tribunal, as an act which expresses approval of an Association of the Faithful at canon law (Hearings, p. 127): “…it’s a pastor giving formal recognition of an association of the faithful, which he can’t do; that’s extraordinary administration. It has to be the bishop who formally recognizes and brings into being an association of the faithful.”

This Tribunal concludes without question that the draft contract presented to Father Gerald Frank for signature was an act of extraordinary administration, and as such the explicit and prior grant of facultas was necessary for the valid execution of the contract.


It is apparent from a consideration of the facts and the law pertinent to this cause that the Reverend Gerald Frank utterly lacked the competence in law, that is the juridical capacity, to enter into the intended contract which he signed on May 23, 2002. All parts of that act, although consisting of several writings and signed on different dates, suffer from invalidity. Father Frank was inhabilis to posit the act in question absent the written grant of a facultas from the diocesan bishop to commit parish funds in excess of five thousand dollars in obligations arising from a contract which would bind the juridic person of the parish for a five year term. The act of entering into such a contract is to be seen as an act of extraordinary administration by virtue of its total fiscal obligation to the parish in excess of five thousand dollars, as well as its length of obligation beyond one year.

It is also apparent that the act itself is to be seen as invalid, or irritus at canon law, in that the requisite constitutive elements and formalities attendant to such an act were absent at the moment of its signing. The monies to be used to fulfill the obligations of the intended contract were not in the present possession of the parish at the time of the writing. It was not possible for a contractual obligation to arise from a promise to deliver what was not in the legal possession of a party at the moment the promise was made.

From both fines modumque, that is the financial limits and the manner of acting, the intended juridic act is to be recognized as invalid at canon law ab initio. Given the exceptional, indeed singular, set of circumstances which gave rise to the context of this matter, a prudent inquiry by the pastor could reasonably have been expected before his attempt to commit funds in excess of the generally-established limit within the diocese, and by means of an instrument which would create obligations beyond one year, indeed beyond his term as pastor of the parish.

Not at issue in this case is the fault of any party to the disputed writings of May 23, 2002. This is not a penal action, nor an action for restitution. At issue alone is the validity at law of the writings themselves. Hence, there is no question to be raised and no fault to be inferred from the fact that some or all parties to the writings, acting in good faith, placed trust in the presumed legal competence of the pastor to sign the instrument as the juridical representative of Holy Spirit Parish according to the provisions of canon law. The fact that he was acting beyond his legal competence or capacity in the case at hand should have been known and could have been discovered readily by any party to the writings.

Therefore, the undersigned judges of the Tribunal of the Diocese of Brownsville, having maturely considered both the law and the facts relevant to this cause, having invoked the Divine Name and having only God before our eyes, do hereby define, declare, and decree that the doubt before us, namely:

Was the contract signed by Holy Spirit Parish in McAllen, Texas, and the United
Farm Workers of America (UFW, AFL-CIO) on May 23, 2002, VALID according to
Canon Law and Diocesan Norms and Regulations?

is to be answered in the NEGATIVE, which is to say



We decree that this Definitive Sentence is to be published to the Petitioner, Reverend Louis Brum, according to the norm of law. The Petitioner, should he judge himself aggrieved by this decision, is afforded a period of twenty days tempus utile from publication of this Sentence to him, in which to posit a plaint of nullity before this Court or a petition for formal appeal before the ordinary Court of Second Instance of the Diocese of Brownsville, or before the Tribunal of the Roman Rota.

Given this Tenth Day of November, in the Year of Our Lord 2005.

In testimony whereof I affix my signature and the seal of the Tribunal, to this page and to the judicial signatures which follow:

Reverend Carlos Villarreal, STL

I, the undersigned judge in the collegiate tribunal constituted to hear the matter involving the validity of a contract entered into with the United Farm Workers of America on behalf of Holy Spirit Parish in the Diocese of Brownsville, do indicate that, having only God before my eyes, and having considered the law and the facts as presented, I concur in the decision of this tribunal,


The act of the pastor in entering this contract is invalid.

November 10, 2005

Reverend Francis G. Morrisey, OMI, JCD
Judex et Praeses

I, the undersigned judge in the collegiate tribunal constituted to hear the matter involving the validity of a contract entered into with the United Farm Workers of America on behalf of Holy Spirit Parish in the Diocese of Brownsville, do indicate that, having only God before my eyes, and having considered the law and the facts as presented, I concur in the decision of this tribunal,


The act of the pastor in entering this contract is invalid.

November 10, 2005

Reverend William J. King, JCD
Judex et Ponens

I, Reverend Mario Medina Balam, JCD, the undersigned judge in the collegiate tribunal constituted to hear the matter involving the validity of a contract entered into with the United Farm Workers of America by the Reverend Gerald Frank on behalf of Holy Spirit Parish in the Diocese of Brownsville (on May, 2002), do indicate that, having only God before my eyes, and having considered the law and the facts as presented. I concur in the decision of this tribunal,


The act of the pastor in entering this contract is invalid.

Mexico City: November 10, 2005

Reverend Mario Medina Balam, JDC

Monday, December 26, 2005

Newsletter of 12/25/05

Somos el Cuerpo de Cristo
Thoughts from Some Fellow Parishioners of Holy Spirit—December 25, 2005

Un Soñador
Dark don’t lie, dreams come true
All it takes is one or two...
Townes van Zandt

Advent 1980, twenty-five years ago, was like a lot of Advents: it ended with Christmas, there were births, and there were deaths. In particular, there were six deaths within just a few days of each other at the end of November and the beginning of December that year that should give us pause. Four of those were the American church women (Sisters Maura Clarke, Ita Ford, Dorothy Kazel, and lay church worker Jean Donovan) martyred in El Salvador, and the fifth was Dorothy Day who passed quietly at the age of 83.

Dreamers all, these five women, who gave their lives to the simple proposition that the Gospel means what it says. It is stunning how authorities, the government and the Church, react so harshly, and sometimes even violently, when faced with people who propose that the link that Jesus made between justice and peace is not simply pious prattle, but a directive for how the Christian life is to be led.

The government of El Salvador murdered the churchwomen and the official Church (with the exception of Romero) turned a blind eye to the conditions that led to their deaths. The American government and the Church hierarchy were, and remain, hostile to Dorothy Day and the Catholic Worker Movement—just last week the Catholic Worker Houses showed up on the FBI watch list and have been subject to government surveillance within the past year!

In the Old Testament, Joseph’s brothers violently attacked him and left him to die because his dream seemed dangerous to them.

Oh, that sixth death in Advent 1980?
And they say I’m a dreamer, but I’m not the only one... John Lennon

In law school, students sometimes are presented with hypothetical cases and asked to analyze them. Let’s try one!

Suppose that a diocese had a policy that said that any parish purchase of over $5,000 needed approval from the bishop. Also suppose that a pastor wanted to purchase an item that cost $8,000. The diocesan policy would seem to require the bishop’s approval of the expenditure, right? However, consider the following scenario: The pastor got a third party to pay for the full purchase of $8,000 and then paid that party back with two $4,000 parish checks, written days apart but in two different calendar months. Since each check was under $5,000, the pastor’s reasoning was that the bishop’s approval was unnecessary.

Is the pastor’s reasoning correct, and were both the letter and the spirit of the diocesan policy followed? Or, was the purchase in violation of the policy and so, “canonically invalid”? For your assignment, write a reasoned analysis of this hypothetical case.

Live the Difference
This being the holiday movie season, my kids are caught up in Harry Potter fever. So, we have seen not just the currently released movie but have re-watched the others as well. At the end of the third movie in the series, Harry is talking with one of his mentor/professors and trying to make sense out of what has just happened. In his confusion and sadness, Harry asks “But what difference did it make?”

It is a great question for us as we end Advent and enter the Christmas season. After a time of waiting and preparation, a baby is born. The Word becomes flesh as a poor homeless baby wanting only to be loved and to find a place in our hearts.

But what difference did it make?

As events in the movie, it made all the difference in the world, and our lives are forever changed. May we live the difference? From fellow parishioner, Michelle Peña

$$$$$ Update
According to the Sunday Bulletins, in the past ten weeks parishioners have donated $17,731.71 less than the $145,000 the parish budget called for during that period. If the spending patterns of the last fiscal year have continued (13.4% over budget), then during this ten-week period an additional shortfall of $19,422.60 was created. This gives a total of $37,154.31 of red ink (versus budget) for the ten-week period ending December 18th. Stretching that pattern for an entire year, the Parish would fall short by $193,202.41.

Peace on Earth
“In the arms of Mary, He had already stirred up the world.
May all creation reap the hope born in the breath of the Nonviolent Teacher of Peace.”
Pax Christi Christmas card. From the Peace and Justice Committee of the Holy Spirit Community

Good Standing
In the spirit of the hypothetical, suppose someone was saying publicly and frequently that the Reverend Monsignor was “a priest not in good standing.” Also suppose that among that person’s reasons were that “his celebration of Mass violates many of the directives of the GIRM,” “he is a prominent member of an organization (K of C) that supports a government policy (the war in Iraq) that the Church has roundly condemned,” and “he is virtually derelict in his duties as pastor by his frequent absences from the office and the parish.”

Even if all of the reasons cited were true, none of them would rise to the level of creating a condition where the Reverend Monsignor would be “a priest not in good standing.” That phrase has very precise meaning in the Church—it describes a public sinner or a person who has formally separated himself by denying Church doctrine. Ordinary folks have neither the competence nor the authority to use such a phrase, only the Bishop or the Vatican can do that, and then only at the end of a careful, formal process.

Throwing the “priest not in good standing” phrase around would be irresponsible and slanderous, since it damages a person’s reputation in a way that would affect his ability to carry out his role in the Christian community.

Moving away from the hypothetical to the unfortunately actual situation in which many people in the Parish find themselves. The Reverend Monsignor has said publicly and frequently that certain people are “not Catholics in good standing.” He has neither the competence nor the authority to either make that judgment or to impose restrictions on people on the basis of the judgment. Only the Bishop or the Vatican can do that. His statements are just as irresponsible and slanderous as the hypothetical situation presented above. People’s reputations are being damaged and their ability to carry out their role in the Christian community is being adversely affected.

Holy Spirit Peace and Justice Committee

Affirmation Night
Monday, March 13, 2006 at 7:00 PM
More Info to Follow On Speaker and Location

Prepared by RGV Parishioners for Progress and edited by Jerry Brazier. Copy this, and pass it on to fellow parishioners, either by e-mail or paper. If you want an opportunity for prayerful discussion of these and other issues about the parish or have any other comments, please contact us at

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