# LCMS Commission on Constitutional Matters Minutes_St. Louis Missouri_August 9 10 2024_S11
# Machine transcription, uncorrected — CHI Digital Archive (demonstration)

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Section 5.3: It would be prudent to include also the requirement that executive committee actions
must be reported to the plenary board (Synod Bylaw 1.5.3.2).

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Section 6.1: Indemnification statements should note exclusions (e.g., gross negligence, willful
misconduct, etc., and the director or officer’s advanced expenses in non-covered incidents).

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Section 7.1: The commission is concerned at the removal of a simple reference to the right of Synod
member congregations to inspect records, as required by Synod Bylaw 1.5.4. Bylaw 1.5.3.5 also
requires development of procedures for making minutes available, again for the information of the
Synod’s members; this should be mentioned as well.

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Section 7.5: In addition to the Synod’s Constitution, Bylaws, and resolutions, the board is subject
to the policies of the Synod Board of Directors, including those specifically mentioned in Bylaw
3.3.4.7. This likely pertains to the university’s encumbrance of property of the Synod, the
management of which is delegated as described in Bylaw 3.3.4.7 to the board of regents. Bylaw
3.10.6 also indicates the proper authority of Synod Board of Directors policies. The reference to
such should not have been removed.

Generally, the commission notes an extraordinary amount of detail and even appropriation regarding
appointment and removal of regents and presidents, as well as significant development and interpretation
of exclusions related to fiduciary responsibilities. The commission observes at the same time that there has
been no incorporation of material from Bylaws 3.6.6, 3.10.6, or the details of 3.10.6.1, setting forth the
responsibility of regents and providing how the regents will carry out these responsibilities in the CUSP
context. It is not necessary to reproduce into the university’s Bylaws all details of relevant Synod Bylaws
(which do control and supersede as the primary document). However, the presence of so much exclusionary
language in the CUSP Bylaws, combined with the virtual absence of positive obligations of the regents to
the Synod, or to the mission of the institution precisely as an institution of the Synod, may confuse or
mislead regents. This compounds the commission’s concern regarding the draft’s contention that the
fiduciary duty of the regents is owed to the university as a fundamentally independent entity, over against
separate obligations to the Synod. In truth, the regent’s duty is owed to the university as a university of the
Synod, conserving and furthering the mission for which the Synod has established it, within the polity
designed to conserve and further that mission.
The commission also reviewed the university’s articles of incorporation:
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Article XIII: The exclusion “except to the extent applicable law requires otherwise” is found to be
a deviation from the required relationship language of Synod Bylaw 1.5.3.6 (a), which either needs
to be removed or requires approval of the Synod Board of Directors.

While the accompanying memorandum indicated that it is not the board’s intention, in this draft, to “change
the relationship with the Synod, just to clarify the legal framework,” the commission finds the proposal as
stated would fundamentally change the university’s relation to the Synod. It will therefore require extensive
revision consistent with this opinion. As the commission desired to provide timely guidance to the board of
regents on these foremost matters, the commission reserves the right to raise further issues with other
aspects of this or future drafts. The university and its board of regents are thanked for submitting the
document for review.
44. Lutheran Church Extension Fund Canada Corporation (23-3005A)
The commission took up again the item discussed at its June 25 meeting, having in the meantime been
advised by the Lutheran Church Extension Fund and English District that it would be possible for them to
maintain present operations until the 2026 convention could make appropriate allowances, if necessary, for
the CanCorp entity to be transferred properly from English District to LCEF. (See minutes of March 15–
16, item 30; certain other adjustments would also likely need to be made to CanCorp governing documents,

CCM Minutes – August 9–10, 2024 – Page 34