# LCMS Convention Proceedings_St. Louis Missouri_2007_S172
# Machine transcription, uncorrected — CHI Digital Archive (demonstration)

172

LATE REPORT
• 3.3.5.2: “The Board of Directors shall have the powers and
duties that have been accorded to it by the Articles of Incorporation, Constitution, Bylaws, and resolutions of the
Synod, and the laws of the State of Missouri.”

those conveyed by the Articles of Incorporation, Constitution, and Bylaws of the Synod? Therein lies the source of
much of the confusion and conflict addressed by Resolution
7-02A and by this report of the 7-02A Committee.

• 3.3.5.4: “The Board of Directors shall be responsible for
the general management of the business and legal affairs
of the Synod and shall be authorized to take on behalf of
the Synod any action related to such business and legal affairs which has not been expressly delegated by the Constitution, Bylaws, and resolutions of the Synod to other officers or agencies of the Synod, and as to those shall have
general oversight responsibility.”

The 2004 convention in Resolution 7-02A retained the
authoritative nature of Commission on Constitutional Matters opinions, including those rendered on questions dealing with powers and duties of the Board of Directors. Yet
it recognized the difficulty and confusion that exists and
asked this committee “to address the matter and report to
the 2007 convention.”

• 3.3.5.5 (a) (2):“It shall have the right to call up for review
and criticism, and to request modification or revocation of,
any action or policy of a program board, commission, or
council, except opinions of the Commission on Constitutional Matters.”

A Brief History

• 3.3.5.7: “The Board of Directors shall serve as the custodian of all the property of the Synod as defined in Bylaw
1.2.1 (m). Except as otherwise provided in these Bylaws, it
shall have the authority and responsibility with respect to
the property of the Synod as is generally vested in and imposed upon a board of directors of a corporation.”

“The matter” at issue is: Does the authority granted or not
granted to the Board by these bylaws conflict with the laws
of the State of Missouri?
3. “The matter” includes the very important question: Who has
the authority to decide, when or if there is disagreement,
where certain boundaries of authority begin and end? These
questions include, but are not limited to, the following:
• Are there conflicts between the authority and responsibility of the Board of Directors defined by the Constitution and
Bylaws of the Synod on the one hand and those provided by
the laws of the State of Missouri on the other hand?
• Who determines the boundaries of the authority of the
Board of Directors when disagreement exists over whether
a matter to be decided pertains to secular or ecclesiastical or
property or business or legal affairs?
4. Bylaw 3.9.2.2 of our Synod’s 2004 Handbook states:
The Commission on Constitutional Matters shall interpret the Synod’s Constitution, Bylaws, and resolutions
upon the written request of a member (congregation, ordained or commissioned minister), official, board, commission, or agency of the Synod….
(b) An opinion rendered by the commission shall be binding on the question decided unless and until it is overruled by a convention of the Synod….
Does the authority granted by the Bylaws of the Synod to
the Commission on Constitutional Matters conflict with the
laws of the State of Missouri pertaining to the authority of
the Board of Directors?
5. As noted in these bylaws, the Commission is charged with
interpreting all the governing documents of the Synod except the Articles of Incorporation but has no such charge to
interpret the laws of the State of Missouri. Meanwhile, the
Board is accorded “the powers and duties” granted not only
by the governing documents of the Synod, but also by the
laws of the State of Missouri. Yet the Board is not authorized by the governing documents of our Synod to challenge
opinions of the Commission, which is not authorized to interpret state laws. Do state laws for not-for-profit corporations, under which the Synod has voluntarily placed itself,
convey to the Board “powers and duties” that supersede

2007 Convention Proceedings

The Board of Directors had taken certain actions as it
endeavored to carry out its responsibilities that it believed
were in concert with, and required by, the Constitution and
Bylaws of the Synod and the laws of the State of Missouri.
Some members of the Board and other individuals in the
Synod took issue with certain board actions. Questions regarding these matters were submitted to the Commission
on Constitutional Matters.
Several of the opinions rendered by the Commission reversed and/or nullified Board actions, raising questions regarding the authority of the Commission over against the authority of the Board in light of Missouri law for not-for-profit
corporations. The Board disagreed with and challenged some
Commission opinions, declaring them “of no effect.”
In July 2003, the Executive Committee of the Board of
Directors requested an opinion from an outside law firm
(Bryan Cave) regarding the Board’s authority under Missouri law. The Bryan Cave opinion articulated an understanding of the authority of the Board of Directors of the
Synod more similar to that of a corporate board of directors
than has generally been understood to be the historic polity
reflected in the governing documents of our Synod.
The conclusions of the Bryan Cave opinion were challenged by individuals in the Synod, prompting the Board to
request an opinion from a second outside law firm (Armstrong Teasdale). The second opinion was generally, but not
identically, in agreement with the first. Subsequently, unsolicited extensive legal perspectives were offered by three
individual attorneys, followed by briefer perspectives from
a number of other attorneys, all of which were not in agreement with, differed sharply from, and questioned the validity and accuracy of the Bryan Cave and Armstrong Teasdale opinions.
Confusion, disagreement, and significant tension developed in the Synod and resulted in the submission of a number of overtures to the 2004 convention of the Synod. The
President of the Synod also issued a Special Report to the
2004 LCMS convention titled: “LCMS Board of Directors
and Bylaws Regarding Opinions of Commission on Constitutional Matters.” This report is referenced in a WHEREAS
paragraph of Resolution 7-02A.
These documents, in addition to the research of Floor
Committee 7 of the 2004 convention and advice from the
Synod’s general legal counsel at that time (Stolar Partnership) contributed to the floor committee’s drafting and the
convention’s subsequent adoption of Resolution 7-02A. Neither the floor committee nor the convention had access to