LCMS Convention Workbook St. Louis, Missouri — 2016, Page 138

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138

I. OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS
(i)

Reduction of the size of staff in order to maintain
financial viability in compliance with policies concerning fiscal viability
(j) Discontinuance, merger, or consolidation of an entire
college or university operation
3.10.5.6.4.1	A faculty member who is on a roster of the Synod is under
the ecclesiastical supervision of the Synod. In the event a
member is removed from membership in the Synod pursuant to procedure established in these bylaws, then that
member is also considered removed from the position held
and shall be terminated forthwith by the board of regents.
3.10.5.6.4.2	An appeal process following Concordia University System’s Standard Operating Procedures Manual for Dispute
Resolution shall be in place for use by faculty members
who wish to challenge a termination decision.

Question 1: LCMS universities have various categories of faculty.
To which faculty does section 3.10.5.6.4 of the 2013
LCMS Handbook apply?
Opinion: Bylaw 3.10.5.6.4 makes no distinction between “categories of faculty” other than full-time and part-time. Its provisions,
therefore, apply to all faculty members.
Question 2: Does “termination of faculty employment” in the 2013
LCMS Handbook include refusing to renew a faculty
contract after it has expired, as well as firing a faculty
member during the term of a contract?
Opinion: Bylaw 3.10.5.6.4 excludes only “honorable retirement”
from its application. The provisions of the bylaw certainly apply
when “firing a faculty member during the term of a contract.”
However, preceding bylaw paragraphs clearly anticipate that contracts or other such documents will have a stated duration. After
a faculty contract has expired, employment is ended and Bylaw
3.10.5.6.4 no longer applies unless/until the contract is renewed.
Question 3: If, for the purpose of limiting the university’s responsibility toward faculty employment to the number of years
specified in faculty contracts, the policy of 2013 LCMS
Handbook 3.10.5.6.4 is modified to add the words in
italics, “Other than honorable retirement, termination
of faculty employment within a faculty contract may
only be the result of the following …,” is the modified
policy in agreement with the LCMS Handbook policy,
or does the modified policy unduly restrict the protection
granted to faculty by the LCMS Handbook policy?
Opinion: The Handbook of the Synod is not a policy manual. It
contains the Constitution and Bylaws of the Synod. Accordingly,
combining bylaw wording and policy wording by inserting additional wording into what is essentially a quotation of a bylaw of the
Synod may be confusing. That being said, however, the wording
in Question does not contradict or unduly restrict the protection
granted to faculty by Bylaw 3.10.5.6.4. As opined in the commission’s response to Question 2 above, refusal to renew a faculty contract does not fall under Bylaw 3.10.5.6.4 and its requirements for
termination of faculty employment.
Question 4: If “termination of faculty employment” in the 2013
LCMS Handbook does not include refusing to renew
a faculty contract, then could a university legitimately
have a policy to issue its faculty roll-over contracts on
a daily basis without violating the LCMS Handbook?
“Roll-over contracts on a daily basis” here means contracts that have a duration of one day, but automatically
reset the ending date of the contract ahead by one day
at the conclusion of the previous day, unless administrative action is taken to stop the roll-over contract. Such a
contract would allow the university to refuse to renew a
2016 Convention Workbook

faculty contract “at will” without having to show legitimate cause, if “termination of faculty employment” does
not include a refusal to renew a faculty contract.
­Opinion: Since roll-over contracts are not addressed in the Constitution, Bylaws, and resolutions of the Synod, this Question is
beyond the purview of the commission.
Question 5: If it would not be legitimate for a university to issue
faculty roll-over contracts on a daily basis, is there any
minimum time duration required for roll-over contracts,
after which the university could refuse to renew a faculty
contract without having to show legitimate cause?
Opinion: See the answer to Question 4.
Question 6: If it is legitimate for universities to issue faculty roll-over
contracts with some minimum time duration specified
in the contract, should any distinction be made between
contracts issued to faculty with divine calls as commissioned or ordained ministers, and to faculty without
divine calls? According to a CTCR report, Mörlin, with
Walther’s approval, “rejects the argument of those who
insist that since they pay the pastor’s salary, they can hire
and fire him at will, thus treating ‘the call of the preacher
as nothing other than a contract of the kind made with a
cow- or sow-herder.’ ... On the basis of the divine nature
of the call itself Walther argued against the idea of a
temporary call. The very idea that a divine call could be
issued for a set number of years was a contradiction in
terms. Since God is the one who issues the call, it is also
God who terminates a person’s service in a particular
location, and this for one of two reasons. First, God
issues another call to that person to serve elsewhere.
Second, God removes the individual altogether from
the office due to the false teaching or immoral life of the
one who holds it” (Theology and Practice of “the Divine
Call,” A Report of the Commission on Theology and
Church Relations of The Lutheran Church—Missouri
Synod).
Opinion: While this is an issue that is not addressed per se in the
Constitution, Bylaws, and resolutions of the Synod, special considerations are involved when contracts issued to faculty include
divine calls. While the commission is responsible for reviewing
such policies when developed, questions regarding the divine nature of the call are best directed to the Commission on Theology
and Church Relations or to the Synod in convention.
Question 7: Given the determination by the CTCR that calls normally should not be temporary, when universities issue
contracts to commissioned or ordained ministers of religion, should those contracts include an ending date?
Opinion: Commission on Theology and Church Relations reports
do not determine the practice of the Synod. The practice of the
Synod is determined by its Constitution and Bylaws where, for
example, university presidents serve five-year renewable terms of
office (Bylaw 3.10.5.5.1).
Question 8: Given the protection from termination of faculty employment in the 2013 LCMS Handbook, is it legitimate for a
university to state as its employment policy that junior
faculty “may be terminated during the contract period
for cause, and at the end of the contract period without
disclosure of cause” (CUS Faculty Handbook, July 1,
2014, p. 42)?
Opinion: Each educational institution is required to “state policies and procedures related to faculty appointments, employment