LCMS Convention Workbook St. Louis, Missouri — 2001, Page 338

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338 OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS

workers. Oversight of such activities would reside with the indi-
vidual who had ecclesiastical supervision of the individual or entity
engaged in such activities.

Adopted Aug. 17, 2000

Questions re the Requirements of Bylaw 6.47 for a
Board of Regents of a Synodical School (00-2199)

Related questions were received in a May 1, 2000, letter from
the President of the Synod and a May 5, 2000, letter from the
chairman of the Board of Regents of a synodical school regarding
the requirements of Bylaw 6.47 when complaints are received
against a faculty member or school administrator.

In his letter to the Commission, the President of the Synod ex-
plained his decision to “call up for review” an action of a Board of
Regents which he believed to be “in violation of the Constitution,
Bylaws, and resolutions of the Synod,” in keeping with the author-
ity provided to him by Bylaw 3.101 B 5. The Board of Regents had
declined to reverse a decision it had previously made not to receive
a complaint brought forward by an individual against an adminis-
trator of their school, citing as a basis for their decision a recent
ruling of the Commission on Constitutional Matters. The President
in his letter questioned whether said ruling “gives the board of re-
gents the right to disregard the procedures clearly required by
Bylaw 6.47” and asked for further clarification from the Commis-
sion (question | below).

In his letter to the Commission, the chairman of the Board of
Regents noted that the complainant had accepted neither the ruling
of the Board of Regents regarding his complaint nor the applica-
bility of the opinion provided by the Commission to the board’s
earlier questions and had “taken his arguments to the office of the
President of the Synod,” who in turn “suggested that we return to
you for clarity in this matter.” Accordingly, the Chairman on behalf
of the Board of Regents addressed two additional questions (ques-
tions 2 and 3 below) to the Commission.

Question 1; When a university board of regents “receives a
complaint against a member of that institution’s faculty or admin-
istration concerning any matter, including those specified under
Bylaw 6.43 c 1-6” (Bylaw 6.47 a), may the Board of Regents
choose not to follow the requirements of Bylaw 6.47?

Opinion: Bylaw 6.47 requires a Board of Regents to follow the
prescribed procedure when it receives a complaint against a mem-
ber of that institution’s faculty or administration concerning any
matter. Thus the answer to the question is “no.” There are no ex-
ceptions. The prescribed procedure of Bylaw 6.47 must be fol-
lowed in every instance.

Question 2: Does the wording of Bylaw 6.47 a (“If the Board of
Regents receives a complaint against a member of that institution’s
faculty or administration concerning any matter ..."’) mean that
anyone can charge any faculty member or administrator with any-
thing and demand that the procedures of the Bylaw be set in mo-
tion? Or are there charges which by their nature under civil law or
synodical Bylaw are excluded from further consideration?

Opinion: See the opinion to question | above. Any complaint
from any person requires that the procedure set forth in Bylaw 6.47
be followed by a Board of Regents.

Question 3: In view of the Commission’s ruling of 28 July
1999, may an individual involved in the recommendation of a fac-
ulty member for appointment be lawfully charged under Bylaw
6.47 for his/her role in the recommendation process?

Opinion: Bylaw 6.23 establishes the following described pro-
cedure for the appointment of full-time members of the faculty of a
synodical educational institution:

1. The appointment must be recommended by the president of the
institution.

2. The candidate must meet theological and professional compe-
tency standards established by the Board for Higher Education
(BHE).

3. If it is an initial appointment to the faculty of a seminary or to a
faculty of a college/university theological faculty, the appoint-

2001 Convention Workbook

ment must have the prior approval of the BHE.

4. All other initial appointments shall include a thorough theologi-
cal review involving the District President and selected mem-
bers of the Board of Regents.

5. The terms of the proposed appointment must be set forth in writ-
ing and be in the possession of both the institution and the
prospective faculty member prior to the appointment.

6. When the prior five requirements have been met. the proposed
appointment must be considered by the Board of Regents and
then be approved by vote of the Board of Regents.

As answered previously, Bylaw 6.47 states that a complaint by
any person concerning any matter must be handled in the manner
set forth in the Bylaw. Therefore, a complaint regarding the actions
of a party involved in the recommendation process who is a mem-
ber of that institution’s faculty or administration triggers the pre-
scribed procedure for resolving a complaint. (Only the president of
the institution is involved in the process.) However, as pointed out
above, there are a number of parties involved in the recommenda-
tion process leading to the consideration of the recommendation by
the Board of Regents, and, it is the Board of Regents and not those
involved in the recommendation process, which bears the final re-
sponsibility for the quality of the appointment.

Adopted Oct. 26, 2000

Questions regarding Procedure
for Handling Complaints (00-2209)

A chairman of a Board of Regents of a synodical school in a
letter dated August 18, 2000 asks the opinion of the Commission
regarding the handling of a complaint brought to the president of
the school regarding the performance of a member of the faculty.

Question 1: Must there be a complainant who explicitly and in-
tentionally uses the word “complaint” to the Board of Regents be-
fore the board may “investigate, hear, and act on any complaint
arising out of Bylaw 6.43 c 1-6" (Bylaw 6.45 a)? Or is the Board at
liberty to direct that any individual whose concern with a faculty
member comes to the Board’s attention must meet with the faculty
member, if the Board is to consider the complaint or any related
concern (such as the manner in which someone with supervisory
responsibility for the faculty member deals with that faculty mem-
ber)?

Opinion: Bylaw 6.45 a does not stipulate that the word “com-
plaint” must be used in order for there to be a complainant or in
order to grant the authority or initiate the process for receiving a
complaint described in Bylaw 6.45. Such a complaint may concern
“any matter, including those specified under Bylaw 6.43 ¢ 1-6”
(Bylaw 6.47 a). More than at liberty, the Board of Regents is re-
quired by Bylaw to “direct the complainant first to meet face to
face with the respondent in an attempt to resolve the issue.” In the
case of a faculty member, “the president of the institution shall as-
sist in this attempt” unless he himself is the respondent. If the pres-
ident is the respondent, the chairman of the board is required to act
in his stead.

Question 2: Do the Bylaws of the Synod permit an individual
with supervisory responsibility for the public teaching of a faculty
member to be charged with “neglect of or refusal to perform du-
ties of office” (Bylaw 6.43 c 4) before the due process procedures
of Bylaw 6.47 have established that the public teaching of that fac-
ulty member, does, in fact, represent “advocacy of false doctrine
(Constitution, Art. II) or failure to honor and uphold the doctrinal
position of the Synod as defined further in Bylaw 1.09 fc]” (Bylaw
6.43 ¢ 6)?”

Opinion: The Bylaws of the Synod permit a member of an in-
stitution’s “faculty or administration” to be the subject of a com-
plaint “concerning any matter, including those specified under
Bylaw 6.43 c 1-6” (Bylaw 6.47 a), including “neglect of or refusal
to perform duties of office” (Bylaw 6.43 c 4). If “the president him-
self is the respondent, the chairman of the board shall act in his
stead” to assist in an attempt to resolve the issue (Bylaw 6.47 a). If
supervision of a faculty member is the stated cause for the com-
plaint, the president’s “neglect of or refusal to perform [his] duties