LCMS Convention Workbook St. Louis, Missouri — 2010, Page 255

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OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS
In the recent allocation of restricted funds to the various synodical
program boards, commissions, councils, and departments, the Synod’s
Board of Directors (BOD) included a requirement that the Synod’s
Board for Communication Services (BCS) maintain the monthly REPORTER newspaper at “current levels”—i.e., that circulation and frequency of publication stay the same and that REPORTER remain both
a paper publication as well as an electronic one. At the same time, the
BOD reduced the BCS allocation of unrestricted funds by more than
$150,000 from current-year levels, which means that BCS staff and programs not related to REPORTER must be cut or eliminated. The effect
is that the Board of Directors, rather than the BCS, is determining the
communication-program priorities of the Synod.
There seems to be a lack of clarity between the role of the Board
of Directors and that of the BCS regarding the management and prioritization of BCS activities, including oversight of REPORTER. While
the Synod’s Bylaws direct the Board of Directors to “allocate available
funds to the program boards, commissions, councils, and departments of
corporate Synod and hold them accountable therefore” (3.183 d), those
same Bylaws direct the Board for Communication Services to:
“organize the communications activities of the church …” (3.183
a); “authorize and supervise the production of the necessary print
and broadcast materials for the church and its publics” (3.813 b);
and “have responsibility for the official periodicals of the Synod”
(3.813 c).

The questions submitted to the Commission were as follows.
Question 1: Does the Synod’s Board of Directors have the authority to hold a program board “accountable” to the extent
that it, the BOD, can dictate how the unrestricted funds
allocated to that program board specifically are to be
spent?
Opinion: See Opinion 03-2358. The Board of Directors may suggest priorities in the use of funds and ultimately has responsibility
for the allocation of available funds. However, the Board of Directors may not mandate specific use of funds allocated to a program
board or commission where the Synod in convention has given responsibility for carrying out a particular function of the Synod to a
particular program board or commission.
Question 2: Does the Board of Director’s action usurp the prerogatives of the Synod acting in convention to make bylaws
delegating responsibility for the management of synodical programs to synodical program boards?
Opinion: The responsibilities of the Board of Directors as described
in Bylaw 3.183 have been discussed in other opinions (see Opinions 03-2357 and 03-2358). With respect to the general authority of
various boards and commissions, Bylaw 1.07 d states: “Each board
and commission or other agency that serves the Synod or a District
in a specific area of program or ministry in accordance with the
Synod’s Constitution and applicable Bylaws adopts programs in its
assigned area of responsibility; administers the programs and resources as provided or authorized by the Constitution and applicable Bylaws, or as assigned by the respective convention or agency;
and proposes modifications thereto. It also provides program policies, as well as directions, for its staff and shall establish, together
with staff, evaluation criteria for its programs.”
An action of the Board of Directors dictating, as opposed to suggesting, how the unrestricted funds allocated to a program board
specifically are to be spent would be a usurpation of the prerogatives
of the Synod acting in convention to make bylaws designed to achieve
its primarily ecclesiastical purposes by delegating responsibility for
management of synodical programs to synodical program boards created by the Synod in convention to achieve the convention’s stated
goals.
Question 3: May the Board of Directors in the exercise of its constitutional mandate to supervise the business affairs of

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the Synod “micro-manage” the policy, program, and
other day-to-day decisions of the program boards to
which the Synod in convention has delegated such
responsibilities?
Opinion: While the Board of Directors is responsible to hold others accountable under Bylaw 3.183, the Board of Directors is not
authorized to “micro-manage” the policy, program, and other dayto-day decisions of the program boards to which the Synod in convention has delegated such responsibilities.
Question 4: May the Board of Directors require what in effect are
unfounded mandates of the program boards by not providing along with its requirements the funds to carry
out those requirements? Is this, in effect, order the same
number of bricks but without providing any straw (Ex.
5:6–8)?
Opinion: Please refer to the answers above.
Adopted September 30, 2003
Synod Governance Issues (07-2486)
In a letter received January 5, 2007, a pastor of the Synod asked
a series of questions regarding Synod governance issues. The first
specifically relate to Bylaw 1.2.1 (d) (4), which states: “The Lutheran
Church—Missouri Synod, in referencing the laws of the State of
Missouri in these Bylaws and in the Synod’s Articles of Incorporation, intends to acknowledge its responsibility to be subject to civil
authority. In all such references, however, the Synod intends to retain
all authority and autonomy allowed a church under the laws and Constitution of the United States and the State of Missouri.”
[Note: Along with his questions the pastor provided a background
memorandum regarding constitutional First Amendment issues,
referencing quotations from various United States Supreme Court
opinions as well as State of Missouri Nonprofit Corporation Law
Section 355.316 (2).]
Question 1: (a) If the Synod wishes “to retain all authority and autonomy allowed a church” under various laws, what laws
should the Synod more closely observe, especially if
there is a conflict between the laws and Constitution of
the U.S. granting “free exercise” and the non-profit laws
of the State of Missouri? (b) What then takes greater
priority for the Synod’s Board of Directors to follow?
The non-profit laws of the State of Missouri, or the “free
exercise” rights as ruled by the U.S. Supreme Court in
order “to retain all authority and autonomy allowed a
church under the laws and Constitution of the United
States”?
Opinion: The role and responsibility of the Commission on Constitutional Matters under Bylaw 3.9.2.2 includes the interpretation of
the Synod’s Constitution, Bylaws, and resolutions. The Commission does not have the authority to interpret the laws and Constitution of the United States or the State of Missouri. The Commission
does certainly attempt, however, to be cognizant of that constitution and those laws. For example, where two reasonable interpretations of a resolution of the Synod would be possible, one of which
would clearly violate state or federal law and one of which would
not, a fundamental rule of interpretation that is assumed is that the
Synod intended to follow a lawful course of conduct rather than
one which is unlawful.
In fulfilling its specific service function to the Synod, the Board of
Directors is required to follow the directions of the Synod in convention. Presumably in doing so, to the extent some challenge whether
actions of the Synod are contrary to Missouri state law, the Board
of Directors will inquire, through legal counsel, whether or not the
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