LCMS Convention Workbook St. Louis, Missouri — 2023, Page 188

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188

OFFICER, BOARD, AND COMMISSION REPORTS

Such a conclusion does not expunge facts or evidence related to
prior accusations and/or investigations, or prevent a district president, on the basis of additional facts or evidence, from initiating
subsequent formal proceedings based in part on new evidence and
in part on evidence existing prior to the current matter, including,
without limitation, evidence connected with a previous accusation
that did not result in formal proceedings.
The materiality or relevance of facts and evidence to a subsequent
case is not diminished by the decision of a district president at some
prior point not to proceed to formal proceedings. It may be reassessed in a subsequent decision whether to suspend a member and
may be presented to a panel subsequently convened on the basis of
new accusations, facts, or evidence. As is the rule for all material
presented to a panel, provided by the Bylaw section 2.17 Standard
Operating Procedures Manual (SOPM), General Regulation K,
“Witnesses and Evidence,” 15:
(b) Panels shall be the judge of the relevance and materiality of evidence offered. Relevance of testimony will be
determined by whether such evidence will support (or not) an
issue in contention. A panel may reject and not consider evidence or testimony from a witness that it deems unnecessary
or unhelpful to its consideration of the matter.
Question 2:

Does the phrase “the ecclesiastical supervisor shall
close the investigation, terminating the matter” Bylaw 2.17.5 (SOPM 2.3 c) mean that evidence from
such a case may not be used in a subsequent case?

Opinion: No. See the answer to Question 1 above.
Question 3:

If evidence from an accusation was gathered and
considered by a district president, resulting in no
formal action, under a set of bylaws, and the bylaws were subsequently amended in such a way that
the admissibility of that evidence to a current case
is questioned, which bylaws pertain, those under
which the evidence was gathered and considered
without further action, or those under which a current case is being heard?

Opinion: The commission is unable to answer such a hypothetical
question. Should the panel encounter a specific question regarding
the applicability of specific provisions that have changed over time
in a way that appears relevant to the facts at hand, the panel may
inquire further.

would be. Such participation would therefore be confined to the
realm of strict necessity (i.e., it would be impossible or highly imprudent, reasonably speaking, for the panel member to be present
physically at the hearing) and not of preference or convenience.
The commission also notes that the determination of a panel to proceed with a hearing in which one or more members of the panel attends electronically (as opposed to proceeding without the member,
his or her being “unable to perform required duties,” 2.17 SOPM,
Detailed Flowchart 4.3 [d], or rescheduling the hearing if the number of members unable to attend physically would so necessitate)
is a discretionary act which may be reviewed for its impact on the
provision of a fair and impartial hearing.
Question 2:

May the entire Bylaw section 2.17 Hearing Panel
proceeding be conducted by electronic means
in such a way that no two members of the panel,
neither the accused or the accuser [sic, really “the
ecclesiastical supervisor”], nor any of the witnesses
are physically present with each other?

Opinion: Bylaw sections 2.14–17 and the corresponding SOPM
do not contemplate the possibility of a virtual hearing; rather they
reflect the established practice, heretofore without exception, of the
panel and parties meeting at an established time in a given single
place (e.g., Bylaw 2.17.7.6). Considerations that may strongly favor this practice, even given modern technological alternatives,
include the nonverbal cues generally more readily observable in
an in-person setting and process security (recordings are prohibited, except as made by the panel for its own use; access to the
proceedings is controlled to prevent witness “contamination” or
inappropriate “leakage” of sensitive information; sensitive documents can be shared in-person and collected for the official record).
A physical “face-to-face” meeting of the parties is required to
begin dispute resolution (e.g., Bylaw 1.10.5) and expulsion processes (except in the case of Bylaw section 2.17) for reasons that
have withstood recent scrutiny even in light of technology that, for
one-on-one meetings, is otherwise quite reasonable (Op. 19-2914).
While there is no similar explicit requirement that the hearing in a
Bylaw section 2.14 or 2.17 matter be “face-to-face,” some of the
same practical implications and value judgments might surely be in
play. Decisions regarding the adjudication of disputes, especially
regarding membership in the Synod and fitness for ministry, ought
be afforded the best reasonable means possible.

Opinion: The Bylaws and SOPM for Bylaw sections 2.14–17 do
not prohibit a hearing panel, in an emergency situation (such as a
weather emergency or flight cancellation), from allowing a panel
member who is unable physically to attend from joining the hearing
by electronic means.

Standard operating procedures have contemplated certain specific
uses of electronic means in connection with these proceedings.
Meetings ancillary to the main hearing, such as the one conducted by the panel to finalize its opinion, are explicitly authorized to
be conducted electronically (Bylaw section 2.17 SOPM, Detailed
Flowchart 4.6 [c], 43). Appeal Panels routinely (and almost exclusively) meet electronically (Bylaw section 2.17 SOPM, Detailed
Flowchart 4.9 [g], 47). Panels may also receive testimony electronically, at the discretion of the panel (e.g., Bylaw section 2.17
SOPM, General Regulation K, 17). As noted above, a panel may
determine to allow one or more of its members to join the hearing
electronically, although this should be limited strictly to cases of
necessity. These are circumscribed usages of virtual meeting technology, incidental to the main hearing at which the evidence and
testimony of the parties are to be given a “fair and equitable” hearing (Bylaw 2.17.7.2 [f]).

The observation that such participation is not prohibited does not
solve the manifold technical challenges that could arise in attempting to render such participation as effective as physical presence

The commission cannot at present exclude the possibility that future circumstances might occur in which law or reasonable care
might render it impossible to physically assemble the required

Virtual Meeting of Hearing Panels (20-2956)
Minutes of October 30–31, 2020
By the same email, the Hearing Panel in a Bylaw section 2.17 matter also requested an opinion on the following two procedural questions occasioned by the COVID-19 pandemic:
Question 1:

May one or more members of a Hearing Panel (under Bylaw section 2.17) attend a hearing by electronic means?

2023 Convention Workbook