LCMS Convention Workbook St. Louis, Missouri — 2010, Page 254

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254

OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS

The Synod in convention has chosen to retain authority to identify and elect those persons whom it, as a church body and under the
guidance of the Holy Spirit, believes will most effectively carry out
its mission and ministry. The Synod in convention has identified
specific mechanisms for the selection of others to be called into the
service of the church. In specialized areas of ministry, it has created
program boards. Bylaw 3.51 h defines a program board as “an officially established group of persons elected or appointed as prescribed
in the Bylaws, charged with developing policies and programs for an
operating function of the Synod and supervising their implementation.” The Board for Higher Education is one such program board.
Historically, because of the ecclesiastical nature of The Lutheran
Church—Missouri Synod, it has operated as “church” and not simply
as a non-profit entity. It has reserved in its governance structure the
right through the Synod in convention to control itself, delegating
pursuant to its historic procedures the authority and responsibility of
church functions between conventions. Because of its primary identity as a church and not simply a non-profit corporation, the Synod
has authority and autonomy to limit the authority of the Board of
Directors of The Lutheran Church—Missouri Synod in ways which
directors of secular non-profit corporations may not be limited. Even
a secular non-profit corporation may limit the power of its board of
directors with detailed limitations in the Articles of Incorporation
themselves.
In fulfilling its ecclesiastical purposes, the Synod in convention
has identified in its bylaws the duties and responsibilities of each of
the separate boards and commissions of the Synod, as well as synodwide corporate entities. With respect to the Board for Higher Education/Concordia University System, those duties and responsibilities
are described in Bylaws 3.401 through 3.415. With respect to fiscal
issues, the Board for Higher Education/Concordia University System
has specific responsibility under Bylaw 3.409 e to “establish policy
guidelines involving distribution of synodical subsidy and efforts for
securing additional financial support from other sources,” and under
Bylaw 3.409 i to “approve capital projects in terms of constituency
priorities and system and institutional needs in accordance with campus property-management agreements.”
The issue of balancing responsibilities between the Board of Directors and the responsibilities of program boards and commissions
has been dealt with in past opinions of the Commission. For example,
Opinion 02-2315, after reviewing the general balance of responsibilities, observed:
The Commission concludes that the Board of Directors has been
given “general oversight responsibility” over the colleges, universities, and seminaries of the Synod as its agencies (see CCM Opinion
02-2259). As part of this general oversight, the Board has a legitimate
interest in any contemplated action of an agency which results in the
spending of funds beyond those currently budgeted or which will obligate future spending. By a request for such information, the Board
exercises its right to call up an action for review, but this request is to
be made, in this case, to the BHE/CUS Board. The role of the BHE/
CUS Board and its staff will be to provide the requested information to
the Board of Directors through its chairman and chief executive officer.

The issue of balancing responsibility between the Board of Directors, charged with overall fiscal responsibility of the Synod, and
the responsibility of program boards, commissions, councils, and
departments of corporate Synod, charged with use of those allocated
funds, has also been dealt with in past opinions of the Commission.
A series of opinions dating back to 1976 involving implementation

of New Orleans Resolution 6-31 (Ag. 591, Ag. 591A-B, Ag. 927,
Ag. 9-27A, Ag. 934, and Ag. 934B-J) recognize that the Synod in
convention is the highest legislative authority of the Synod, both as
to program and fiscal matters. Later, in Opinion Ag. 1934 (December
5, 1992), the Commission wrote:
Bylaw 3.183 dealing with the authority of the Board of Directors
states among other things, the Board of Directors shall … be authorized
to take, on behalf of the Synod, any actions not expressly or by reasonable implication delegated to other officers, boards, or commissions.
When, for fiscal reasons, an action such as the transfer of the editorial
functions and the editors is deemed necessary, there appears to be no
other officer or group which would have the authority to take such action. In addition, Bylaw 3.189 c states that the Board of Directors makes
the final determination if conflicts develop in the plans and policies of
two or more boards or commissions of the Synod.
The Board of Directors is required to act in a fiscally responsible
and prudent manner. Included in that responsibility is the establishment
of a budget as outlined in Bylaw 9.55 which includes the adoption of a
final budget by the Board of Directors. That final budget may involve
the allocation of limited funds in such a way that it would be impossible
for a Board to carry out a specific function or at least to do so following
the normal procedure which may have been followed for many years.

In further review of the issue, the Commission was asked in 1998
to review the effort of the Board of Directors to move the video studio
of the Synod from the Board for Communication Services to General
Services. In Opinion Ag. 2094 (May 22, 1998) the Commission ruled:
Bylaw 3.817 sets forth the functions of the Board for Communication Services (BCS). Subsection “g” thereof states that the BCS shall
“serve as a resource … by providing … production facilities, and other
assistance for … electronic media.” Therefore, if operation of the video
studio is part of the “production facilities,” it is one of the designated
functions of the BCS and cannot be removed from the BCS without a
change of the bylaw by a convention of the Synod.

Later in that same opinion the Commission noted:
Each board or commission is solely responsible for the organization
of its own staff. The Board of Directors of the Synod does allocate available funds to the respective boards and commissions (Bylaw 3.191, d)
but the usage of such funds is the responsibility of the governing board
of each board or commission.

Given the specific question presented, under the present bylaws,
without consideration of emergency issues arising during the execution of a fiscal year’s budget and consistent with the prior opinions
of the Commission, the Board of Directors does not have authority
to “require” that allocated unrestricted dollars be spent in a particular
fashion. It is certainly anticipated that the Board of Directors will
communicate its suggestions and the priorities its perceives within
the overall programs of the Synod, as is recognized as its authority
under Bylaw 3.183 b, to “communicate to the appropriate boards and
commissions suggestions for improvement.” While a particular board
or entity is responsible to determine the use of allocated funds, each
board must keep in mind its responsibility to consider input from the
Board of Directors, the responsibility of the Board of Directors to
call up for review and modification any action it takes, and ultimately
the authority of the Board of Directors to make allocations in future
years based on its perception of the stewardship of given boards in
prior years.
Adopted September 30, 2003
Authority of Board of Directors to Direct Use of Funds
(Board for Communication Services) (03-2359)
The chairman of the Board for Communication Services, in a letter
received June 9, 2003, submitted a series of questions based upon the
following background:

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