# LCMS Convention Workbook_St. Louis Missouri_2007_S312 # Machine transcription, uncorrected — CHI Digital Archive (demonstration) 312 OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS 3.8.3.8.5 and other such bylaws. This Standard Operating Proce- dures Manual is to be made available to and for the benefit of each board of regents, the president of each educational institution, the parties in a dispute, each Review Committee that is formed, and others as necessary or required. The Commission recommends that the Board for University Ed- ucation proceed to develop the required manual for Bylaw 3.8.3.8.9, referring for resource help to the standard operating pro- cedures manuals already developed by the Commission and the Council of Presidents for Bylaw sections 1.10, 2.14, and 2.17. Upon its development, the Bylaw 3.8.3.8.9 manual should be sub- mitted to the Commission on Constitutional Matters for review. Adopted Oct. 16-18, 2005 Dissent by a Member Congregation of the Synod (05-2433) In a letter dated July 26, 2005, a district president asked for an opinion regarding the manner in which a congregation may express its dissent to decisions of the Synod. Question: If a congregation dissents, would Bylaw 1.8.2 of the 2004 LCMS Handbook apply and, if so, what steps would they follow to express their dissent? Who would be their peers, and where and how would they verbalize their dissent? Opinion: The question is correct in recognizing that a congregation has the right of dissent based on its membership in the Synod (Ar- ticle V of the Constitution). The right of brotherly dissent is granted to members of the Synod, including congregations, in Bylaw sec- tion 1.8. Bylaw 1.8.2 is silent on the question of steps to be taken by con- gregations to express dissent, including who would be their peers and how they would verbalize their dissent. However, the follow- ing paragraph of a 1969 CCM opinion on dissenting groups, “An Opinion Regarding Dissenting Groups and Activities Within the Synod,” is helpful in understanding who may be included in the fellowship of peers: Christians as well as non-Christians expect differences of opinion and judgment to arise when people walk together. The Synod has pro- vided for forums in which such differences can be discussed and evalu- ated beyond the confines of the local congregation. The pastors and teacher conferences; the circuit meetings; the synodical and district board, commission, and committee meetings; the doctrinal supervision and appeals procedures; and above all the conventions of the districts and of the Synod provide the proper channels through which the issues of opinion and judgment are to be discussed and decided. In the absence of a clear word of God issues must be decided by the majority principle, applied in Christian love and with Christian restraint (Article VIII, C). When the majority will has been determined, it must be respected. Oth- erwise life together (synod) becomes all but impossible. Discussion may indeed continue; but it needs to be carried on with full respect for the- majority will and within the forums established by the Synod for the preservation of synodical unity. If additional channels for discussion are needed, the Synod can provide for the same in its Bylaws through appropriate convention action. Adopted Oct. 16-18, 2005 Reconsideration of Opinion 04-2409 (05-2434) In a lengthy July 25, 2005 memorandum, two members of the Board of Directors speaking on behalf of the Board requested that the Commission review and reconsider its Opinion 04-2409, ex- pressing the Board’s concerns in four parts, sections of which are quoted here following. Question 1: The first issue involved in such reconsideration is the issue of the Board’s authority under Article XI F of the Constitution, posed by the Board’s memorandum as follows: Article VI of the Constitution states that the Synod has legal power to purchase, hold, administer, and sell property of every description. This power of the Synod always remains, even when the Synod has del- egated such authority as it has in Article XI. Thus it has been recog- nized since the formation of the Synod that the Synod through its dele- 2007 Convention Workbook gate convention has overriding authority over the property it owns. However, since a convention of the synod is incapable of carrying out the day-to-day management of its property, it has delegated that respon- sibility to the Board of Directors in Article XI of the Constitution. But, to repeat, the granting of authority in Article XI has always been under the umbrella of Article 1V. Hence, the question becomes, “what is the extent of the authority the Synod has delegated to the Board of Directors in Article XI?” Opinion: It is impossible to precisely delineate the extent of the Board’s authority and responsibility in the abstract. The Board de- rives authority and responsibilities both from the Synod’s Constitu- tion and from its Bylaws. The two documents together outline the framework of the Synod’s governance. Beyond this general frame- work, the Synod has also reserved the right to delegate further du- ties and authority by resolutions of the convention. Although the question as posed limits the inquiry to that authority granted under Article XI, a proper response to the question posed must make ref- erence both to the Constitution and to the Bylaws of the Synod and even then could not fully explore the full extent and limits on the Board’s authority without considering the existence of resolutions not incorporated into the Constitution and Bylaws. As a starting point, under Article XI, the Synod has identified the Board of Di- rectors as both the Synod’s legal representative and the custodian of the Synod’s property. Each of those functions has separate duties and authority. Legal Representative: A legal representative is someone autho- rized to act on behalf of another. West’s Law Dictionary suggests that “the term in its broadest sense means one who stands in the place of, and represents the interests of, another.” Examples of legal representatives include personal representatives and execu- tors of estates, persons acting under a power of attorney, a guardian or conservator, or an elected official. A corporation or other busi- ness entity by definition must have a representative to interact with those outside the entity. As the Synod’s Jegal representative, the Board’s authority includes the right to interact with the secular world as the Synod’s agent, and on its behalf is authorized to enter into and sign contracts, to buy and sell property in the name of the Synod, to open bank accounts, and to file reports with and respond to inquiries from federal, state, and other governmental agencies. As an agent of the Synod, the Board is to conduct itself as directed by its superior, the Synod itself. The Board’s authority as representative is limited both by im- plied and expressed limitations from the Synod. As with other offi- cers of the Synod, the Board is expressly restricted by Article XI A 1, which declares that the officers of the Synod “must assume only such rights as have been expressly conferred upon them by the Synod, and in everything pertaining to their rights and the perfor- mance of their duties they are responsible to the Synod.” Another expressed restriction is found in Bylaw 3.3.5.9, pursuant to which the Board may appoint vice-presidents not in line of succession, assistant officers, and other staff required from time to time to carry out the business and legal affairs of the Synod, but may only do so subject to the approval of the President of the Synod. Under current Bylaw 1.4.4, the Board’s role as determined by the Synod in con- vention is described as follows: The Board of Directors serves the Synod as its legal representative and as custodian ofall property of the Synod, and upon it is incumbent the general management and supervision of the business affairs of the Synod, except to the extent that management authority and duties have been delegated by the Articles of Incorporation, Constitution, Bylaws, or resolutions of a convention of th nod to other officers and agen- cies of the Synod or to separate corporate or trust entities (underline added). Although the current language reflects some changes by the 2004 convention, the same conceptual limitations were contained in the previous language. For example, paragraph a of 2001 Bylaw 3.185 contained the language: “Except as otherwise provided in these Bylaws, it shall have such 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, provided, how- ever....” The general allocation of responsibilities as currently found in Bylaw 1.4.5 was further described in paragraph c of 2001 Bylaw 1.07 as follows: