Miami priest, deacon guilty of embezzlement, extortion?

By Matt C. Abbott

The following is the text of a complaint filed Jan. 27, 2006 in Miami. The Defendants are Father Bernard Kirlin, Deacon Victor Pimentel and the Archdiocese of Miami:

	IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA
MARIA H. GREEN,            Plaintiff,	GENERAL JURISDICTION DIVISION CASE NO.: 06-1675-CA-32 JUDGE: SARAH I. ZABEL

vs.


BERNARD G. KIRLIN,
an individual, VICTOR PIMENTEL,
an individual, and the ARCHDIOCESE
OF MIAMI, INC., a Florida non-profit
corporation,

           Defendants.
___________________________________/

COMPLAINT FOR PURE BILL OF DISCOVERY
Plaintiff, MARIA H. GREEN, sues Defendants, BERNARD G.

KIRLIN, VICTOR PIMENTEL and the ARCHDIOCESE OF MIAMI,

INC., and states as follows:

Jurisdiction, Venue and Parties
1. Plaintiff, MARIA H. GREEN, is a resident of Miami-Dade County, Florida.

2. Defendant, BERNARD G. KIRLIN ("Kirlin"), is a resident of Miami-Dade County, Florida.

3. Defendant, VICTOR PIMENTEL ("Pimentel"), is a resident of Miami-Dade County, Florida.

4. Defendant, ARCHDIOCESE OF MIAMI, INC. ("Archdiocese"), is a Florida non-profit corporation, doing business in Miami-Dade County, Florida.

5. This is an action for a pure bill of discovery.

6. The basis for this Court's jurisdiction is in equity.

7. The venue of this action is proper in Miami-Dade County, Florida.

Background
8. Saint Augustine Catholic Church and Student Center ("Saint Augustine") is located in Coral Gables, Florida, and upon information and belief, is owned and/or operated by the Archdiocese and/or Archbishop John C. Favalora.

9. Plaintiff has been an active registered parishioner of Saint Augustine since 1986 and regularly donated to the weekly Sunday Mass collections. She has served as an Extraordinary Eucharistic Minister, taught Catholic catechism (CCD), participated as a team member of the Rite of Christian Initiation for Adults (RCIA) and Emmaus retreats, respectively, and is a member of the Council for Catholic Women (CCW).

10. Kirlin, an employee of the Archdiocese, became pastor of Saint Augustine in June, 1999.

11. On March 21, 2001, Kirlin and the Archdiocese hired the Plaintiff to work as Saint Augustine's parish secretary.

12. After Plaintiff began working as parish secretary, Kirlin recommended Lorn Green ("Mr. Green"), Plaintiff's husband, for admission to the Archdiocese's Diaconate Program. From mid-2001 until the beginning of 2005, Plaintiff, Mr. Green and Kirlin developed a close friendship. Kirlin frequented Plaintiff's home for dinner at least once a week and would often dine with the Greens at good restaurants (paid for by the Greens). Kirlin also vacationed with the Greens on five occasions. One trip was to Rome with several other couples. Kirlin's expenses were paid on a prorated basis by the Greens and the other individuals who made that trip. The Greens also paid for Kirlin's expenses when they took cruises together to Scandinavia and the Caribbean. Additionally, they paid for Kirlin's expenses during mini-vacations to Naples, Florida.

13. In November, 2001, Pimentel, who was hired by Kirlin and the Archdiocese to work as the parish administrator, was ordained a Permanent Deacon.

14. In October, 2002, Kirlin purchased condominium unit 1004 at 2475 Brickell Avenue, Miami, Florida, for $307,000.00, and obtained financing on that property for $227,000.00 with a 15-year mortgage.

15. At the beginning of 2005, Mr. Green was hired by Kirlin and the Archdiocese to work as a Parochial Assistant at Saint Augustine. His duties included conducting baptismal and wedding intakes, overseeing various ministries and training and scheduling Eucharistic Ministers and Lectors. At that time, Mr. Green was in his last semester of the Archdiocese's Diaconate Program and scheduled to be ordained a Permanent Deacon on June 11, 2005.

16. During Mr. Green's employment orientation, Pimentel advised Mr. Green that because of the church's poor pay and lack of adequate retirement provisions for its clergy, he (Pimentel) needed to provide for himself as well as for Kirlin. He stated that this was a common practice among clergy in the Archdiocese and that even the Archbishop was involved in this practice. He said a similar arrangement would be contemplated for Mr. Green.

17. Based on Mr. Green's observation during the past several years that most of Pimentel's transactions (meals, etc.) involved cash, from small amounts to hundreds of dollars, Mr. Green understood Pimentel's orientation remark to mean taking money from the parish. This also made Mr. Green suspicious about the source of funds used by Pimentel to pay for his extensive travel abroad, oftentimes with his wife and in-laws. At Pimentel's direction, his in-laws frequently counted the monies collected from the Sunday Mass collections.

18. Prior to purchasing the condominium unit, Kirlin admitted to Plaintiff and Mr. Green numerous times that Pimentel had convinced him that providing for himself from the Church was acceptable because the Church owed him for his many years of service in hardship parishes, had inadequately compensated him during all those years and had failed to provide for sufficient retirement benefits. Both prior and subsequent to the purchase of the condominium unit, Kirlin expressed his concerns about Pimentel's suggestions on how to provide for himself. However, during the Christmas holiday season of 2004, Kirlin told Plaintiff and Mr. Green that he was not willing to give up the lifestyle he had become used to. Right around that time, the Greens stopped taking Kirlin out to dinner at expensive restaurants because they could no longer afford it. When told on another occasion by Mr. Green that he could write-off the interest on his condominium's mortgage, Kirlin responded that he could not deduct it because he could not justify an income sufficient to have paid for it.

19. During a meeting held March 28, 2005 with Kirlin, Mr. Green advised him that he was aware that Kirlin and Pimentel were both taking money from the church and that he should report them to the Internal Revenue Service. Kirlin did not deny Mr. Green's allegation. Kirlin appeared to "turn white" and in response exclaimed "why would you do that?"

20. In the morning of March 29, 2005, a locksmith changed the locks to the office doors for Kirlin, Pimentel and the parish bookkeeper. Two days later, the keys to the locks for those same offices were changed again to use Medeco keys.

21. After the March 28, 2005 meeting Mr. Green had with Kirlin, Plaintiff confided her objections to the illegal activities by Kirlin and Pimentel to several other Saint Augustine staff. As a result, Kirlin and Pimentel began to curtail Plaintiff's responsibilities and work assignments as parish secretary.

22. In a dinner meeting that he requested through the Plaintiff for April 12, 2005, Kirlin revealed to Mr. Green that he had paid for the condominium with large stipends he had received from generous parishioners.

23. On April 20, 2005, Pimentel called Mr. Green for a meeting at 1:30pm that afternoon. Mr. Green believed that he and Pimentel would be meeting privately. Pimentel then informed Plaintiff that she was also summoned to this meeting. Although Mr. Green objected to including Plaintiff at the meeting, Pimentel insisted that she be present, as well as Kirlin. At that meeting, Pimentel read out loud verbatim, confidential details of the assessed weaknesses from the respective psychological reports of the Plaintiff and Mr. Green (which were prepared as a routine part of the diaconate formation process and property of the Diaconate office).

24. Kirlin then held up a letter that he had to return to the diaconate office with his recommendation and evaluation of Mr. Green's Diaconate ordination. Kirlin stated, in Plaintiff's presence, that he (Kirlin) could not do that unless Mr. Green assured him that he "would not pull that card again" (meaning informing the IRS). Believing he was being extorted and had no choice, Mr. Green told them he would not confront Kirlin again in that manner. Although Kirlin did not mention Plaintiff by name, the clear message was that Plaintiff was also not to disclose their unlawful activities. Kirlin also showed Plaintiff and Mr. Green an envelope supposedly containing Pimentel's resignation from Saint Augustine, indicating that he (Pimentel) was willing to leave for the good of the parish.

25. At a meeting with Mr. Green on May 4, 2005, Kirlin mentioned that the condominium was actually an investment he had with Pimentel, and that not even Pimentel's wife was aware of it. He also told Mr. Green that he had now decided to sell the condominium to avoid any scandal. At that same meeting, Kirlin told Mr. Green that he had not yet decided what he should write on the letter of recommendation for the Diaconate Program but felt he needed to say something to be totally honest. Kirlin said that, in all the years he had known him, he had never seen him erupt as when he (Mr. Green) threatened him (Kirlin) with the IRS and wondered what was to stop him from erupting in the future with him, another priest or even the Archbishop.

26. On May 20, 2005, Kirlin advised Mr. Green that his services as a parochial assistant were no longer needed, effective May 31, 2005. At that same meeting, Kirlin described how there was not much money coming into the parish and that the atmosphere around Saint Augustine had become poisoned since he had threatened them. Kirlin told Mr. Green that he felt like he was walking on egg-shells and that he couldn't continue to keep him on as an employee. Pimentel added that if he was "evil," he could also easily terminate Mr. Green's ordination with a couple of telephone calls. However, Pimentel did inform Mr. Green and Kirlin that Mr. Green was being assigned to Saint Augustine for one year, rather than the standard assignment of 3 years.

27. Later on May 20, 2005, Pimentel summoned Plaintiff to meet with him and Kirlin. After congratulating her about her husband's prospective ordination and explaining why Mr. Green's employment was being terminated at the end of May, both Kirlin and Pimentel asked Plaintiff if she wanted her job. At that moment, Plaintiff believed she was also going to be fired or was being asked indirectly to resign. In response to their question, Plaintiff said she did want her job because she needed it. Plaintiff further advised them that she felt they found her guilty by association. Both men said they had not and that she was just a victim of the fall-out caused by Mr. Green, as were they. Based on what had transpired with Mr. Green, they told her that it was important to be discreet because, although people at Saint Augustine did not know what was going on, they sensed something was up. They also told her that it was important to keep this quiet by not speaking to people in the parish, and named a few.

28. At the conclusion of the meeting, Kirlin told Plaintiff that they wanted her to continue working there and referred to the list of duties that she had been given when she was hired in March, 2001. Kirlin said that she would continue to have the same duties as before except that he had to consider whether or not she was going to once again be allowed access to Kirlin's office files, etc., in order to fulfill her secretarial duties. Although Kirlin said he would have to think about it and would get back to Plaintiff, he never did.

29. On June 11, 2005, Mr. Green was ordained and appointed as Permanent Deacon to Saint Augustine for a period of one year by Archbishop John C. Favalora.

30. Based on two meetings with the Archdiocese's attorney (before and after his ordination) wherein Mr. Green disclosed the illegal activities of Kirlin and Pimentel, an in-house audit of Saint Augustine's finances was ostensibly ordered by the Archdiocese.

31. On July 11, 2005, Pimentel stated that he was sick of dealing with the situation at Saint Augustine and that if he decided to leave Saint Augustine, Kirlin would first have to fire Plaintiff because he (Kirlin) could not control Plaintiff.

32. At a parish staff meeting held on July 15, 2005, Kirlin said that based on allegations that had been made against him for misusing church funds, he requested an audit which would cost the parish $30,000.00. In response to accusations that he had used church funds to purchase his apartment, Kirlin explained that he did not take a vow of poverty and that he purchased the apartment with generous stipends that he received from parishioners, friends, family and his own money. He said it was difficult to obtain a mortgage and that he did not want to go through that process again.

33. At around 4:00 PM that same day, Pimentel told Plaintiff that she could go home early. Kirlin, Pimentel, the parish bookkeeper and her husband were observed remaining in their upstairs offices at Saint Augustine until approximately 8:30 PM. Early the next day, bags of shredded paper were recovered from a trash can inside Saint Augustine.

34. Upon information and belief, Kirlin requested the Archbishop to transfer Mr. Green's assignment as Permanent Deacon from Saint Augustine. In a letter dated October 4, 2005 from Archbishop John C. Favalora, who knew of the accusations made by Mr. Green against Kirlin and Pimentel, Mr. Green's assignment to Saint Augustine was terminated and he was transferred to the Detention Ministry, effective October 15, 2005.

35. On October 9, 2005, in an announcement contained in the Saint Augustine Sunday bulletin, Kirlin stated that he had been accused of misusing church funds but that the results of compilation and agreed-upon procedures reports had found no financial transgressions in the church.

36. At a parish council meeting held in late October, Kirlin stated that due to accusations made against him and Pimentel concerning misuse of church funds, the parish had to spend $50,000.00 for an audit, thus necessitating a reduction of personnel.

37. On November 15, 2005, Pimentel advised Plaintiff that her services as parish secretary were no longer needed. No reason was given to her for her firing.

38. On November 23, 2005, undersigned counsel sent the Archdiocese's attorney a letter requesting remedial action from his client as a result of Plaintiff's retaliatory termination as parish secretary.

39. On December 1, 2005, Kirlin paid $6,248.83 for the 2005 property taxes on the above-referenced condominium. In 2005, Kirlin paid $6,777.35 in maintenance fees ($564.78 per month) for his unit in addition to a monthly mortgage payment. Upon information and belief, Kirlin earns $19,000.00 a year from the Archdiocese and is responsible for paying all taxes on that amount.

40. In response to Plaintiff's claim for unemployment compensation, Saint Augustine stated that she was terminated for lack of work.

Relief Sought
41. "Pure bills for discovery have so long been an acknowledged subject of equity jurisdiction that statutes purporting to give other and simpler means of obtaining that identical relief are not regarded as ousting the equity jurisdiction, at least in the absence of some clear legislative declaration to that effect." Hernandez Perez v. Citibank, N.A., 322 F.Supp.2d 1374, 1376-77 (S.D. Fla. 2004)(quoting First National Bank of Miami v. Dade-Broward Co., 125 Fla. 594, 596, 171 So. 510, 511 (Fla. 1936)). This action in equity is "brought to obtain the disclosure of facts within the defendant[s'] knowledge, [and] writings in [their] custody, in aid of the prosecution ... about to be commenced in some other court." Campbell v. Knight, 109 So. 577 (Fla. 1926).

42. The facts set forth above meet the test for sufficiency of a pure bill of discovery. See First National Bank of Miami v. Dade-Broward Co., supra. The prospective lawsuit will simply be about two individuals (Kirlin and Pimentel) who participated in an ongoing scheme to misappropriate funds from a corporation and who, upon having their activities exposed, fired Plaintiff from her job. The discovery sought herein is relevant and critical to at least three potential claims: a) an action under Florida's Whistle Blower's Act, F.S. § 448.102, based on her discharge by Kirlin, Pimentel and the Archdiocese in retaliation for her objection to, and refusal to participate in, the unlawful activities of Kirlin and Pimentel; b) for an accounting of Saint Augustine financial records, including donations. Matthews v. Adams, 520 So.2d 334 (Fla. 5 DCA 1988) and 3) a negligent supervision or retention claim against the Archdiocese for knowing or having reason to know of the unfitness of Kirlin and/or Pimentel and taking no further action such as investigating, discharge or reassignment. Malicki v. Doe, 814 So.2d 347, 362 n.15 (Fla. 2002). If the Archdiocese does not bring an action on its on behalf against Kirlin and Pimentel, Plaintiff may then file a derivative action on behalf of the Archdiocese. See Mt. Olive Primitive Baptist Church of Jacksonville v. Harris, 860 So.2d 520, 522 (Fla. 1 DCA 2003). Accord Salit v. Ruden, McCosky, Smith, Schuster, & Russell, P.A., 742 So.2d 381, 388 (Fla. 4 DCA 1999)(a derivative action is appropriate "where the corporation, because it is controlled by the wrongdoers or for other reasons, fails and refuses to take appropriate action for its own protection"). Depending on the discovery produced, other causes of action or defendants may be included in the lawsuit.

43. Since the Plaintiff is not a member of the clergy, this employment dispute will not require the Court to interpret the church law, policies, or practices; it will only involve the consideration of neutral principles of law. Thus, unless the Plaintiff's firing is shown to have been rooted in religious beliefs, the Free Exercise Clause of the First Amendment will not be implicated. Malicki v. Doe, 814 So.2d at 361. The danger that a Court in "resolving interchurch disputes ... will become entangled in essentially religious controversies ... [is] not applicable to purely secular disputes between third parties and a particular defendant, albeit a religious affiliated organization, in which fraud, breach of contract, and statutory violations are alleged. Id. at 356-57 (emphasis by Court).

44. The records and information requested below — Plaintiff's employment records, including evaluations, and records evincing the siphoning of funds from Saint Augustine — are in exclusive possession or control of the defendants and are material to the Plaintiff's prospective lawsuit. Production is necessary to ascertain who may be sued and under what theories. Without the requested discovery, Plaintiff will be limited to filing a lawsuit based only on the defendants' statements and upon information and belief. If this Court grants the pure bill of discovery in this case and the discovery produced indicates that a lawsuit would be groundless or frivolous, this would serve "the court['s] as well as the parties' best interests and advantage." Adventist Health System/Sunbelt, Inc. v. Hegwood, 569 So.2d 1295, 1297 (Fla. 5 DCA 1990). The seriousness of the proffered facts require the pre-suit disclosure of this discovery.

45. For the reasons set forth above, Plaintiff, MARIA H. GREEN, prays that the Court grant it the following discovery from the Defendants, which is in their care, custody or control:

Defendants Kirlin and Pimentel only
46. All 1099 or 1040 forms received from the Archdiocese for the years 1999-2005;

47. A list of all other sources of income (including amounts) or other benefits received for the years 1999-2005, from Saint Augustine or elsewhere, whether or not reported to the Internal Revenue Service;

48. The names of all other persons who received income (including amounts) or benefits for the years 1999-2005 from Saint Augustine which was not reflected in 1099 or 1040 forms issued by the Archdiocese;

49. All bank statements and cancelled checks for the years 1999-2005 from any banking institution, within or outside the United States wherein either Defendant has had an account, individually or jointly;

50. Names of all signatories of bank accounts for the years 1999-2005;

51. Income tax returns filed for the years 1999-2005;

52. Name(s) of accountants or other individuals who prepared income tax returns for the years 1999-2005;

53. A list of all real property owned in Miami-Dade County, Florida, or elsewhere, including foreign countries;

54. A list of all investments made, including trusts created or financed, during the years 1999-2005 and the source of those funds;

55. A list of all personal property acquired during the years 1999-2005;

56. A list of all credit cards issued to Saint Augustine, including account numbers and billing statements, used by Pimentel, Kirlin, other Saint Augustine personnel or Pimentel's relatives, during the years 1999-2005;

57. The names of all Archdiocese officers, clergy or personnel (at Saint Augustine or elsewhere within the Archdiocese) who Kirlin and/or Pimentel informed that Plaintiff had been terminated from her position as parish secretary and the reason(s) given therefor;

58. Copies of any domestic partnership agreements or powers of attorney, whether or not recorded, wills or estate plans;

59. Copies of all United States and diplomatic passports.

Defendant Kirlin only
60. All closing documents and mortgage application relating to the acquisition of Unit 1004 by Kirlin, including the direct or indirect source of funds used to make the purchase;

61. A list of all property belonging to Saint Augustine Church which has been or is currently located in Unit 1004;

62. A list of all trips taken within or outside the United States for the years 1999-2005, individually or collectively, including 1) countries visited; 2) dates of travel; 3) purpose of each trip; 4) cost of each trip; 5) names of co-travelers; 6) who paid for trips; 7) who approved the trips; 8) whether Saint Augustine paid for any of the trips and if so, if Saint Augustine was reimbursed, with proof thereof;

63. Names, addresses and telephone numbers of all persons, from Saint Augustine or elsewhere, who have given stipends or anything of value, including cash money, to Kirlin during the years 1999-2005;

64. Copy of any resignation letter submitted by Pimentel.

Defendant Pimentel only
65. A list of all trips within or outside the United States for the years 1999-2005, taken by Pimentel, his wife or in-laws, individually or collectively, including 1) countries visited; 2) dates of travel; 3) purpose of each trip; 4) cost of each trip; 5) names of co-travelers; 6) who paid for trips; 7) who approved the trips; 8) whether Saint Augustine paid for any of the trips and if so, if Saint Augustine was reimbursed, with proof thereof;

66. Whether Pimentel has any financial interest in Kirlin's condominium or loaned Kirlin funds to purchase same;

67. The bases, whether it be individuals or documents, that support Pimentel's assertion that Archbishop John C. Favalora is also involved in misappropriating funds from the Archdiocese;

68. All employment agreements, written or at will, related to the Holy See, its affiliates, successors or assigns.

Defendant Archdiocese of Miami, Inc. only
69. The yearly income and expenses for Saint Augustine from 1999-2005;

70. The total amount owed in assessments by Saint Augustine to the Archdiocese;

71. List all past and current clergy and lay members of the Saint Augustine finance council for the years 1999-2005 and dates and minutes of meetings;

72. Copies of the agreed-upon procedures report (August 17, 2005) and compilation report (August 22, 2005) prepared by the accounting firm of Falkins and Wilson in response to the allegations against Kirlin and Pimentel;

73. Copy of Plaintiff's psychological report prepared as part of the Mr. Green's participation in the Diaconate Program (because of its confidential nature, it should only be disclosed to Plaintiff and not be made part of any record);

74. Copies of all letters or any other correspondence, electronic or otherwise, authored by Kirlin or Pimentel concerning Mr. Green's fitness to become a Permanent Deacon;

75. Copies of all correspondence between the Archdiocese and Kirlin and/or Pimentel or others concerning the firing of Plaintiff;

76. Copies of all correspondence between the Archdiocese and Kirlin and/or Pimentel or others concerning the allegations made by Mr. Green against Kirlin and/or Pimentel, and the transfer of Mr. Green's assignment as Permanent Deacon from Saint Augustine;

77. All records and documents, including letters, memoranda or accounting reports, which indicate the existence of financial transgressions at Saint Augustine for the years 1999-2005;

78. The names of all persons (and contact information) who have reported financial transgressions occurring at Saint Augustine, whether or not investigated, and all correspondence and documentation concerning same.

79. Plaintiff would further request such additional relief as this Court may deem to be just and appropriate.

80. Upon receipt of the above-requested discovery, Plaintiff, MARIA H. GREEN, would also request to depose and/or propound interrogatories to all witnesses provided, as well as the Defendants named herein.

See Adventist Health System/Sunbelt, Inc. v. Hegwood, supra (approved taking of depositions after pure bill of discovery granted); First National Bank of Miami v. Dade-Broward Co., 125 Fla. 594, 171 So. 510, supra (interrogatories upheld).

Dated: January 27, 2006


© Matt C. Abbott