LCMS Convention Workbook St. Louis, Missouri — 1998, Page 311

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OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS 311

Election of Circuit Counselor

In one of the Districts, the initial ballot for Circuit Counselor in
a Circuit had resulted in a tie. The District Secretary had issued a
second ballot to all congregations in the Circuit, containing the
names of the pastors who had tied on the first ballot. On the second
ballot, one of these candidates received seven votes and the other
five, while two congregations wrote in the name of another pastor.
The Secretary wished to declare those two votes invalid, and the
man receiving seven votes as the choice of the Circuit for Circuit
Counselor. At least one of those two who had voted for another
person insisted that their vote be counted.

In reviewing Bylaw 5.11, the commission concluded that the
sentence, “If no candidate has received a majority, the District Sec-
retary shall forward to each congregation in that Circuit an addi-
tional ballot with the names of the two men, or more in case of a
tie, receiving the highest number of votes in the initial balloting”
was clear. The phrase “or more in case of a tie” required that at
least three names must be included on the additional ballot. Since
this had not been done, the ballot was invalid.

In view of the above, the commission concluded that the Dis-
trict Secretary should notify the congregations of the Circuit that
an error had been made and should issue a ballot containing the
names of at least three men. If time did not permit this, the Circuit
should caucus at the District convention and make its selection at
that time. In view of the fact that the District Secretary had indi-
cated that he was working under a Jan. 31 deadline, the decision of
the Commission was forwarded to him by e-mail.

Adopted Jan. 29, 1997

Removal from Roster

A District president had asked the Commission on Constitu-
tional Matters to provide an official opinion on the meaning of
Bylaw 2.19 a of the Handbook which states:

An ordained or commissioned minister who is eligible to perform
the duties of any of the offices of ministry specified in Bylaw 2.15 but
who is not currently performing those duties on a regular basis, and who
is not emeritus, may be continued on the roster for a period not to ex-
ceed two years by act of the President of the District through which the
person holds membership. For extension of candidate status beyond two
years, the Council of Presidents shal! require an annual application from
the candidate, as well as an evaluation by the District President. The
council shall determine by majority vote on written ballot whether or
not the request shall be honored, in each instance, for an additional year.

The basic question as stated was, “In the event the District Pres-
ident decides not to continue such a candidate on the roster for that
two-year period, does the District President have the right to simply
remove that candidate from the roster by his own independent ac-
tion or must that involved District President implement Bylaw
2.27, ‘Commencing an Action to Terminate Congregational or In-
dividual Membership’ ?”

The Commission responded as follows:

The commission, in reviewing the Bylaw, has concluded that the
decision to continue an individual member on the roster for a period not
to exceed two years is discretionary, allowing for decision on the part of
the District President regarding the matter. It notes that Bylaw 2.19 b
refers to criteria for determining whether candidate status should be
granted or continued [emphasis added].

Such discretion may not, however, be applied arbitrarily. Although
there is no inherent right to membership in the Synod, membership,
once gained, is to be regarded as an important right. In those cases in
which membership may have to be limited for cause or membership ter-
Minated, the process must be substantively and procedurally fair.

Consequently, if the District President concludes that a member
should not be retained on candidate status, he may exercise that option.
He must, however, exercise such discretion within the criteria estab-
lished in Bylaw 2.19 b namely, “the health of the applicant, the extent of
the current involvement on a part-time and assisting basis in the min-
istry of Word and Sacrament, and a demonstrated willingness to con-
sider a call or appointment to any of the offices of ministry specified in
Bylaw 2.15.” In any instance, the Dispute Resolution Process is avail-

able to the members if there is disagreement with the decision of the
District President.

Adopted March 7, 1997

Relation of LCMS Foundation and LCEF to Districts

A District president had raised a number of issues regarding
The Lutheran Church—Missouri Synod Foundation and LCEF in
its relation to the Districts. Specific concern seemed to revolve
around the relationship to a Gifts Planning Counselor of the foun-
dation being located in the District, and the authority of the Dis-
trict in relation to such a person, as well as to a representative of
LCEF. The commission carefully reviewed each of the questions
which were posed in relation to the Bylaws and responded as fol-
lows:

In your first question you asked, “Is the District in a position to de-
cline having a Gifts Planning Counselor located within the geographic
area of the District, even though this individual is not financially sup-
ported by the District? Or looking at it in another way, does an entity of
the Synod have the right to act arbitrarily of a District's wishes?”

Responding to your question, the commission would first note that
the District is the Synod in that place. Consequently, the functions and
relations of The Lutheran Church—Missouri Synod as defined in the
Handbook are the same to the District as they are to the Synod. While
reviewing these functions and relationships, the commission noted that
the foundation is a separate corporation established by the Synod to
carry out its work “synodwide” and “throughout the Synod,” character-
istics of its functions which specifically are cited a number of times in
Bylaw 3.403 b and by implication throughout the Bylaw. The Bylaws
contain no geographical restraints on its activities. In view of this, the
commission concludes that a District has no authority to direct that a
Gifts Planning Counselor may not be located within the geographic area
of the District. Whether either declining such a position or insisting on
one is the better part of wisdom and churchmanship is another matter.
While this opinion of the commission applies to the foundation because
of the provisions of the Bylaws, it is not necessarily true of other entities
of the Synod.

You have also asked whether a District can request the foundation
(or any other entity) to remove a representative from their geographic
area. The simple answer is that, yes, it can do so, but it cannot direct
that this be done. Whether it is required to do so is referenced in the an-
swer provided above.

A further question posed is whether the District is obligated to meet
with representatives from the entity of Synod at the request (or demand)
of that entity. To this question the commission would respond both yes
and no. The commission is concerned that there is an understanding that
as fellow Christians, particularly those of the same fellowship, we live
and serve together in community. As such it is clear that arbitrary deci-
sions should be avoided at all costs. It is well known that ‘‘a house di-
vided against itself cannot stand.” Consequently, the commission would
urge that the obligation placed on all parties, not only one, is the oblig-
ation of dealing with one another in Christian love for the purpose of
advancing the cause of the Gospel. We believe this also responds to
your fourth question.

The commission recognizes that its primary function is to interpret
the Constitution, Bylaws, and resolutions of the Synod and that it may
be beyond its purview to express the views stated above. However, the
commission also believes that responses to questions cannot always be
Stated in purely “legal” terms, but must also take into account the agree-
ments we make together as a Synod whose members understand them-
selves as members of the body of Christ.

With respect to the final questions dealing with the Lutheran Church
Extension Fund, the commission concludes that the same answers do
not apply since the Bylaws envision a different relation than that of the
foundation.

The commission first recognizes that the Bylaws differentiate in the
relationship of Lutheran Church Extension Fund (LCEF) to Districts
which do and do not hold membership in LCEF. Bylaw 3.390 b states
that there shall be a “Board for Church Extension of The Lutheran
Church—Missouri Synod, the functions and duties of which are set
forth in sections 3.397 and 3.398 of these Bylaws.” In those Bylaws it is
stated that the Board for Church Extension is to “aid Districts in moti-
vating individuals, congregations, and organizations in acquiring in-
vestments for church extension in a systematic manner” (3.397 a). It is
also to “confer with Districts in cooperatively promoting Church Ex-
tension Funds and seeking greater uniformity in the policies and pro-
grams of the District” (3.398 d).