LCMS Convention Workbook St. Louis, Missouri — 2004, Page 318

Transcription machine transcription, uncorrected

⤓ Download .txt · copy text

318 OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS

However, the Bylaws require that any delegate making a nomi-
nation from the floor shall have secured prior written consent of
the candidate to be nominated. Such delegate shall immediately
submit to the Secretary of the Synod this document and written per-
tinent information concerning the nominee as detailed in Bylaw
3.961, e.

Adopted July, 2001

Request for Reconsideration of Agenda Item 00-2211
(01-2227)

In a letter dated April 9, 2001, the President of Concordia Uni-
versity, Portland asked the Commission to revisit its opinion ren-
dered in agenda item 00-2211. This item concerned a resolution
passed by the Iowa District East (3-06) memorializing the conven-
tion of the Synod. Titled “To Promote Better Doctrine and Prac-
tice at Concordia Portland,” it calls for the President of the Synod
to “formally investigate the doctrine and practice of Concordia Uni-
versity, Portland with a view toward addressing the concerns about
false doctrine at that institution...” The Commission’s prior opin-

ion found that Bylaw 3.19 did not prohibit such an overture being

presented to the convention.
The April 9 letter raises two additional questions: (1) whether

the resolution (now listed in the Workbook for the 2001 Synod con-

vention as Overture 5-11) is contrary to Art. XII, 2, of the Synod’s
Constitution because it is in conflict with the procedures outlined
for dealing with complaints against members of a college’s faculty
or administration in Bylaw 6.47; and (2) whether, now that it has
notice of the complaints of false doctrine through publication of
Resolution 3-06, the Board of Regents of Concordia, Portland must
carry out the provisions of Bylaw 6.47 and conduct an investigation
according to the requirements of that section.

The short answer to both questions is “yes.” The Commission
finds that Bylaw 6.47 is the proper mechanism for dealing with a
complaint against a member of an institution’s faculty or adminis-
tration concerning any matter, and that this bylaw may not be cir-
cumvented by a convention resolution which seeks to establish a
different method of handling such allegations.

Art. XII, 2, of the Synod’s Constitution provides that “[EJach
District is at liberty to adopt such bylaws and pass such resolutions
as it seems expedient for its conditions, provided that such bylaws
and resolutions do not conflict with the Constitution and Bylaws
of the Synod.” The resolution in question, in its fourth WHEREAS,
asserts that “members of the faculty of Concordia Portland have
expressed doctrinal positions contrary to that of the Synod’s posi-
tions, such as advocating open communion and the ordination of
women to the Pastoral Office....” These allegations are serious
enough to warrant removal from the faculty of anyone who advo-
cates them (Bylaw 6.43, c, 6). The Board of Regents is responsible
for investigating such charges (Bylaws 6.45 and 6.47). There is no
other means stated in the Bylaws for dealing with such serious al-
legations which, though stated against unnamed faculty members,
are phrased in terms of specific complaints. Bylaw 3.101, A, 2 pro-
vides that the President of the Synod shall at regular intervals offi-
cially visit or cause to be visited all the educational institutions of
the Synod to exercise supervision over the doctrine taught and
practiced in those institutions. Art. XI, B, 2 and 3, of the Constitu-
tion give the Synod’s President the power to admonish and reprove
those whose doctrine he finds in error, which would include fac-
ulty members of a Synod university. In that regard, the Resolved
clauses of the resolution in question ask for action that is within
the President’s power. However, the WHEREAS clauses of the reso-
lution state specific complaints against unnamed faculty members.
Where such concrete and specific complaints exist, the proper pro-
cedure to follow is that given under Bylaw 6.47. The Commission
finds that the Iowa District East resolution is contrary to Art. XII, 2,
of the Synod’s Constitution because it seeks to establish a proce-
dure for investigating an allegation of false doctrine on the part of
specific faculty members in a Synod university which runs counter
to the procedure established in Bylaw 6.47 and therefore is out of
order. Because the resolution conflicts with the Synod’s Bylaws, it
is not one that the Iowa District East may properly adopt. (As a
practical matter, since the resolution has in fact already been

2004 Convention Workbook

adopted by the District, it might be more accurate to observe, as is
explained infra, that such a resolution could not be properly
adopted by the convention.)

The sixth WHEREAS of Resolution 3-16 states that attempts have
been made to address the concerns stated in the resolution pursuant
to Bylaws 2.27 and 6.47, without success. Does this support a res-
olution that mandates a different approach than the one under
Bylaw 6.47? The answer is no. The Commission notes that in the
case of an allegation of false doctrine, Bylaw 6.47, g, provides that
if the complaining party is dissatisfied with the results of the
process in that bylaw, a complaint may be taken to the appropriate
District President under Bylaw 2.27.' Likewise, under Bylaw 2.27,
b, if the complaining party is unhappy with the way the District
President deals with the matter (either because the District Presi-
dent fails to act within 90 days or declines to suspend the member),
the complaint may be taken to the Praesidium. By following the
procedures set forth in Bylaws 6.47 and 2.27 Iowa District East can
eventually request an investigation by the Praesidium if it is not
satisfied by the handling of the matter by the Board of Regents and
the District President. This would seem to be the same result that
the resolution in question seeks to achieve (or at least a very simi-
lar result), although the resolution seeks to cut out several interme-
diate steps. Those steps, however, are mandated by the Bylaws and
cannot be ignored or set aside unless the bylaw itself is amended.
Therefore the resolution conflicts with the Synod’s Bylaws and is
therefore improper.

What should the Board of Regents of Concordia University,
Portland do now that it has knowledge of Resolution 3-06, making
charges against its faculty? In a recent opinion (00-2199) this com-
mission held that Bylaw 6.47 requires the Board of Regents of a
Synod university to apply the procedure of Bylaw 6.47 any time a
complaint is made against a member of the faculty or administra-
tion of that university. The bylaw does not specify a particular way
in which complaints against faculty or administration members
must be “received,” but surely the publication of a resolution ac-
cusing unspecified members of the university faculty of false doc-
trine would be one way that the Board of Regents would receive
knowledge of such a complaint, if not the preferred way. The prior
opinion of the Commission made it clear that the Board of Regents
must apply the steps of Bylaw 6.47 to all instances where a com-
plaint is made. This one is no different.” It would elevate form over
substance and add requirements that are not in the Bylaws for this
commission to create some sort of requirement of a formal com-
plaint that must be brought to the Board of Regents in a specified
manner before the responsibilities of Bylaw 6.47 are triggered. The
intent of the bylaw is that the Board of Regents should investigate
all complaints. This is a broad responsibility and should be inter-
preted to give effect to its apparent intent. The Board of Regents
must follow Bylaw 6.47 in this case.

In its present form Resolution 3-06 (Overture 5-11) is out of
order because it conflicts with the method for dealing with specific
complaints against university faculty members under Bylaw 6.47.
Pursuant to Bylaw 3.905, a, this commission must review overtures
that “in any manner affect the Constitution and Bylaws” for agree-
ment with the Constitution and Bylaws. It reports its conclusions to
the floor committee responsible for each overture, and that com-
mittee “is to report its findings and recommendations to the con-
vention.” Presumably the floor committee that considers Overture
5-11 will follow the opinion of this commission and report that the
overture is out of order and recommend that it not be presented to
the Synod in convention, or that changes be made to bring it into
conformity with the Constitution and Bylaws of the Synod before it
is presented.’

Adopted July, 2001

Question re Terms of Office of University Regents
(01-2230)
A question was presented to the Commission during the 2001

convention of the Synod regarding the elections for the Board of
Regents of Concordia University, Selma at the 1998 convention.