Hill deposition holds new revelations

Former MBC executive director finally testifies

By Don Hinkle
Editor

October 18, 2005

JEFFERSON CITY – Surprising revelations about the role the former Missouri Baptist Convention (MBC) executive director played in the breakaway of five MBC ministries in 2000 and 2001 surfaced during his deposition testimony here Oct. 3-4.

James Hill appeared under subpoena to answer questions posed by MBC counsel Michael Whitehead concerning the three-year legal battle between the MBC and five of its agencies with assets totaling more than $240 million. On Oct. 11, lawyers for the defendant agencies – Windermere Baptist Conference Center, The Baptist Home, Word& Way, Missouri Baptist Foundation and Missouri Baptist College – cross-examined Hill. The deposition was video-taped and will be transcribed for use in the legal proceedings pending in Cole County Circuit Court between the MBC and the five agencies.

Documents produced during the deposition and reviewed by The Pathway revealed new details about the history of the breakaway. Many of the documents came from the legal files of Mark Comley, then MBC attorney hired by Jim Hill. Comley is a member of First Baptist Jefferson City, where Hill also attends. Among the revelations:

As early as October 1999, Jim Hill and Ray Giles were working on drafts of proposed first articles of incorporation for Windermere. Hill’s “New Directions” plan for church growth included the spin off of Windermere and Word & Way as separate corporations, although Hill admitted that the new corporations were not central to his church growth plan.
Early drafts of Windermere and Word & Way articles in Comley’s files referred to “self perpetuating boards.” Those drafts were eventually changed to provide for MBC election of trustees.
In a May 4, 2000 hand-written note on a legal pad, Mark Comley referred to a meeting with Jim Hill, and wrote the question: “What legal recourse would Convention have if agencies amended charter to exclude Convention.” Next question: “Windermere – look again at the Articles – can they break free – amend articles without approval of convention.”
On May 9, 2000, Mark Comley wrote a letter to Hill, commenting on a draft of Windermere articles, specifically Article 12, which: “… provides that the adoption of an amendment to the articles of incorporation is conditioned upon Missouri Baptist Convention’s approval. This practice is expressly authorized by Section 355.606 R.S. Mo 1994… .” Hill told Comley to omit Article 12 because it was not legally “mandatory.” Dr. Hill said he did not know whether that clause would have helped legally protect MBC’s rights or not. Such a clause did appear in the other agency articles, as required by the MBC Constitution.
In a June 17, 2000 letter to Dr. Hill, Mark Comley states: “You asked our office to review the charter documents of several agencies and institutions, which are in a covenant relationship with the Missouri Baptist Convention, to determine the extent, if any, to which the agencies were authorized to amend their respective articles of incorporation or agreement without approval of the Missouri Baptist Convention.” There is no explanation why Jim Hill asked for this review. This was three months before The Baptist Home amended its articles, the first agency to do so.

Comley’s June 17 letter reviewed the Missouri Baptist Foundation, Southwest Baptist University, The Baptist Home, the Missouri Baptist Children’s Home, Hannibal-LaGrange College and Missouri Baptist College. His conclusion was the same for each agency: “The charter…cannot be lawfully amended except upon approval of the Missouri Baptist Convention. . . An amendment made to the articles without Convention approval would be arguably void or voidable, and the Convention could enforce the terms of the article by appropriate legal or equitable action.”

In August 2000, Windermere’s first articles of incorporation were filed by Jim Hill with the Secretary of State, and were ratified by the convention in October 2000.

All of the above occurred before The Baptist Home amended its articles, to become self-perpetuating, on Sept. 12, 2000. Hill testified that, the day before, on Sept. 11, 2000, Larry Johnson, president, The Baptist Home, called Hill to tell him what the board was about to do. Hill told no one else about this phone call, and took no action to try to protect the convention’s interests.

In October 2000, Hill asked the Convention to authorize him “to work with the Executive Board, the Baptist Home, legal counsel. . . and others “to explore possible alternatives for addressing the legal and litigation issues that confront our institutions while maintaining our historic relationship and cooperation.”
On February 2, 2001, Hill convened the first of three meetings with Baptist Home leaders, convention officers, and others. Hill invited attorney Bart Tichenor and Comley to attend the meetings. The minutes of the meetings indicate that Hill claimed that he had not asked MBC attorneys for a legal opinion about The Baptist Home action, since “he did not want to recommend that we sue The Baptist Home.”
On March 13, 2001, according to the minutes of the second Baptist Home meeting, MBC Secretary John Martin asked Comley “if he had researched the legality of The Baptist Home’s ability to take this action. Comley responded that it is a corporate authority issue, and expects he would find an issue that could be argued one way or the other. So far he has not done anything really deep.”

“Jim Hill added that, if Mark Comley rendered an opinion, it might be in agreement or might be in conflict with the opinion rendered by the Baptist Home attorneys. It might tell us if we have a case to go to court with, but even if we take it to court and win, we loose.” (sic) “Therefore, we have not authorized Mark Comley to put together that kind of opinion.”

In contrast to these minutes, Hill was handed at his deposition several documents produced from the legal files of Comley’s law firm.

Hill was shown fee statements from the law firm, showing several entries in January 2001 by Comley’s law associate for “Legal research: approval of amendments to articles of incorporation of not-for-profit corporations by third parties.” The entries were dated Jan. 29, 30 and 31, just before the first Baptist Home meeting on Feb. 2, 2001.
Hill was shown a 26-page legal memorandum dated Jan. 31, 2001, by the Comley associate, researching Missouri law on approval of amendments to articles of incorporation of not-for-profit corporations by third parties . The memo included Missouri law and also a survey of all 50 states, attaching statutes and cases concluding that approval rights in a charter were legally enforceable.
On July 30, 2001, Hill was on the Windermere board at the time of the vote to become self-perpetuating. Hill abstained from the vote, and did not oppose it. He knew before the meeting what was going to happen, but he did not inform legal counsel or officers of the convention in advance, or do anything else to prevent this action.
Sometime in mid-2001, after several agencies had changed their charters, Hill went with H.K. Neely to visit Pat Taylor, president, Southwest Baptist University. Hill testified that he and Neely talked to Taylor about Hill’s meetings with Project 1000 leaders. (Project 1000 was the successful five-year effort by conservatives to elect conservative leaders in place of theological moderates and liberals who had previously led the convention.) Hill testified that he went to share information with Taylor about Project 1000’s agenda and Hill’s concern for the future of SBU and President Taylor. Hill said he did not suggest to Taylor that the SBU board should become self-perpetuating, but that he merely shared information. Neely later retired from the SBU faculty and became interim executive director for the Baptist General Convention of Missouri (BGCM), the competing denomination now headed by Hill.
On Oct. 4, 2001, Hill’s resignation and severance package were signed. In addition to a year’s salary, his car, his office furniture and his computer, Hill asked for a release agreement, preventing any legal claims against him personally for anything he might have done while MBC executive director. Hill said he worked with the Comley firm to draft the severance and release agreement, and that MBC paid the legal fees for these documents.
In April 2002, Hill was contacted by John Hardin, Missouri Baptist Foundation lawyer, who asked Hill to write a letter to the Internal Revenue Service (IRS) to help the Foundation get separate tax exempt status after its breakaway. Hardin said the IRS wanted the letter on MBC letterhead. Hardin asked Hill if he felt “comfortable” using MBC letterhead, and if so, Hardin offered to get some for Hill, if Hill didn’t already have it. Hill wrote the letter to IRS, and stated that when he resigned from MBC, the Foundation was in good standing with MBC. In fact, the Foundation had voted to amend its charter to be self perpetuating on Oct. 5, the day after Hill’s severance was signed. Neither Hill nor Hardin notified any current staff of the MBC about this letter, and did not send carbon copies to the MBC.
In April 2002, Jim Hill went to work for the Jester family companies, Resource Development, Inc. (RDI), in Springfield. His brother, Jerry Hill, is legal counsel for the Jesters’ business. Pursuant to court limitations on the scope of questions, Hill refused to answer questions during this deposition about his employment or ownership in RDI companies, or the involvement of those companies in the Wilderness Creek building project at Windermere. MBC attorneys say those facts may be explored in future depositions at the proper time.

The Hill deposition was held at the offices of Stinson, Morrison and Hecker in Jefferson City. Hill testified that, before the deposition, he consulted with attorney and friend Bart Tichenor, to get a referral for legal counsel. Hill retained Dale Doerhoff of Jefferson City to represent himself and the BGCM.

Hill was also shown, during the deposition, a memo prepared by Bart Tichenor in 1992, as MBC legal counsel. The memo was given to then-executive director Don Wideman. The memo was entitled “A Report on the Issue of Independent Boards of Trustees for Missouri Baptist Convention Educational Institutions.” It contained Tichenor’s legal advice to Don Wideman about whether Missouri Baptist College, Hannibal-LaGrange College, and Southwest Baptist College, could lawfully change their charters to be self-perpetuating boards, in the same manner that Baylor University and Furman University had done in 1991. Tichenor stated in his introduction: “There has been for some time in recent years a position in favor of the colleges electing their own boards advanced in particular from a part of the administrative leadership of Southwest Baptist University.” Tichenor noted that “the general provision that trustees be elected by the MBC is consistent in effect for all three institutions.” At the end of eight pages of analysis, Tichenor listed three conclusions and advice to the MBC:

“Under existing charter provisions, none of the educational institutions have the legal authority to elect their own trustees or amend their charters to do such (WJC excepted).

“An extra-legal attempt to carry out such an effort would appear to have little if any real chance of success in an appropriate court proceeding.

“An adequate and substantial case for giving self-perpeutation to the trustees of SBU, HLG, or MoBC has not been made and probably cannot be made in the minds of reasonable individuals.”

Tichenor told Wideman on the cover page: “I thought this might prove helpful to you in the future.”

Hill testified that he had never seen the 1992 report before, and was not aware that Mr. Tichener had given such legal advice to the MBC in 1992.

Since the Baptist Home breakaway in 1999, Tichenor has been an ardent supporter of the legal and moral right of the five agencies to break away. In 2002, Tichenor filed a friend of the court brief in the Cole County legal action, urging the court to dismiss the MBC petition. Tichenor has also been a leader in the Cooperative Baptist Fellowship, nationally and in the state.

In another development, a hearing was held Oct. 11 to determine which judge would hear the MBC case, and on Oct. 12 an order was entered dismissing the messenger case in Division II and allowing the Executive Board case to proceed in Division I before Judge Tom Brown (see related story on this page).