LCMS Convention Workbook St. Louis, Missouri — 1998, Page 298

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298 OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS

Is Res. 7-18A (adopted at the 1995 convention of the Synod) in con-
formity with the Bylaws of the Synod relative to the certification of a
person for ministry in The Lutheran Church—Missouri Synod?

Responding to the question, the commission stated

Resolution 7-18A adopted by the 1995 convention of the Synod
states as follows:

Rationale:

Overtures 7-84 and 7-85 request the Synod in convention to take
action in the matter of Herman Otten’s certification. As the legisla-
tive assembly of Synod (Bylaw 1-07 a) we recognize that the Synod
in convention is not an adjudicatory body and therefore is not de-
signed to render a decision concerning Rev. Otten’s request for cer-
tification. We also recognize that the Synod in convention is not a
certifying body. It is further noted that the many unique elements
involved in this issue make it difficult to apply normal Bylaw pro-
cedures: therefore be it

Resolved, That a committee of five be formed, three members
to be synodical reconcilers chosen by the synodical secretary in a
blind draw, one member to be a synodical Vice-President appointed
by the President of Synod, and the final member to be the President
of the Missouri District, who shall be the chairman; and be it further

Resolved, That this committee study the materials and issues
pertinent to the Herman Otten case: and be it further

Resolved, That this committee attempt by God’s grace to reach a
solution which will promote peace and harmony in the Synod; and
be it further

Resolved, That this committee report its findings and recom-
mendations to the President of Synod; and be it further

Resolved, That the President of Synod be respectfully directed to
take appropriate action to conclude this matter in accordance with
the Bylaws of the Synod; and be it finally

Resolved, That any solution achieved be viewed as unique to
this case without any precedential value.

In answer to this question it should be noted that in the fifth resolve
of Res. 7-18A it is stated that the action to conclude this matter must
be in accord with the Bylaws of the Synod. Thus, all the Bylaw provi-
sions relative to certification must be followed and are not in any man-
ner whatsoever negated by Res. 7-18A. The resolution requires the five
member committee to review the materials and issues pertinent to the
Herman Otten case and then report its findings and recommendation to
the President of the Synod. The President is then directed to take ap-
propriate action to conclude the matter in accordance with the Bylaws
of the Synod. However, any action taken by the President cannot be
contrary to or in lieu of the Bylaw provisions for certification. Although
Res. 7-18A indicates a strong desire by the voting members of the
Synod in convention assembled to bring the matter to a final conclu-
sion, it does not create an alternate procedure for certification.

Adopted Sept. 16, 1995

Offensive Conduct

Previously the commission had received a request for an opin-
ion from a pastor regarding the phrase, persist in an offensive con-
duct as this is found in Art. XIII of the Constitution.

After reviewing the matter, the commission determined to reply
as follows:

In a telephone conference held on Oct. 22, 1995, the Commission
on Constitutional Matters reiterated its previous response concerning
your request for an interpretation of the meaning of the term persist in
offensive conduct found in Art. XIII of the Constitution of the Synod.
Incidentally, an “opinion” of the Commission on Constitutional Mat-
ters is the same as an “interpretation” which it provides.

The commission understands that the term offensive conduct is to
be understood as conduct which causes another to lose faith, be weak-
ened in faith. or which keeps someone from coming to faith. Whether
one has conducted himself in such a manner and whether one persists in
doing so is a matter to be determined on a case-by-case basis. A District
President is called on to make such judgment, and if that judgment is
appealed, it is the responsibility of a Dispute Resolution Panel to deter-
mine whether the judgment is valid. The matter must be determined on
a case-by-case basis.

The commission would further note that even if a panel were to
identify a number of kinds of conduct which could be offensive, it
would still not be the responsibility of the Commission on Constitu-

tional Matters to determine whether such conduct would fall under the
provisions of Art. XIII. Such a determination is outside of the scope of
both its authority and responsibility.

Adopted Oct. 22, 1995

Service on Board of Regents
and Board for Higher Educations

The executive director of the Board for Higher Education had
asked for the clarification by the Commission on Constitutional
Matters of the President’s appointment of the First Vice-President
to both the Board for Higher Education/Concordia University Sys-
tem Board and Concordia Theological Seminary Board of Regents.
In explanation of his request he asked the commission to provide an
opinion regarding
!. the understanding and intent of Handbook 3.600 and 6.01 re-

garding representation of the President's office to the seminary

Board of Regents and the Board for Higher Education boards,

conflict of interest for a representative of the President’s office
to serve on two boards, one with governance responsibility for
the other.

The points which were emphasized in a response from the of-
fice of the President included

1. the President is not limited as to whom he may choose as his
representative to the Board for Higher Education or which of
the Vice-Presidents may be appointed to the seminary Board of
Regents.

a distinction must be made between the two positions, one being
the President’s representative, not acting on his own accord, and
the possibility that a different representative may be sent to each
meeting. The President is the member, the representative is his
spokesman.

The Vice-President serving on a Board of Regents is not the
President’s representative, but serves by virtue of the fact that
he is a Vice-President of the Synod.

During the discussion which took place, support was offered for
the opinion provided by the President’s office, while the position
was also suggested that the same person, though in one case he is a
representative of the President and in the other a Vice-President
serving on a Board of Regents, would be a violation of the Bylaw
which states that

No one, either in the Synod or in a District, or between the Synod
and a District. shall hold more than one elective office; or more than
two offices, although one or both be appointive; or ever hold two of-
fices of which one is directly responsible for work done by the other.
[Emphasis added]

By majority vote, the commission decided to respond by indi-
cating that while it recognized the rationale involved in the letter of
the President to the commission, the commission nevertheless be-
lieved that by use of the words no one the emphasis in Bylaw 3.75
is on the individual person, to a specific body, no matter how that
person receives his/her position. Given that conclusion, the major-
ity believed that the issue to be determined was whether the work
of one office or board was directly responsible for work done by
another.

In reviewing Bylaw 3.601, as well as the policies of the Board
for Higher Education/ Concordia University System Board of Di-
rectors, it became clear that the Board for Higher Education had
both direct and indirect responsibilities for actions of a Board of
Regents in such areas as the initial approval of faculty members,
the role of the institution, the support provided for the institution
from unrestricted funds of the Synod, approval of capital projects,
determination of institutional viability, and administration of poli-
cies for the administration of synodical student financial aid funds.

As further support for its opinion, the Commission concluded
that Bylaw 3.75 b could not be ignored even if the argumentation
was that the same person was sitting on two different boards in dif-
ferent capacities. If that were allowed, it would be possible for a
Board of Regents member elected by the Synod in convention to
serve as a member of the Board for Higher Education if chosen by
the members of the Concordia University System to be a member

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