LCMS Convention Workbook St. Louis, Missouri — 2004, Page 327

Transcription machine transcription, uncorrected

⤓ Download .txt · copy text

OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS 327

to respond thereto in view of the bylaw provision that its opinions
are binding on the question decided unless and until it is overruled
by a synodical convention.

Adopted Jan. 11, 2002

Question re Inability of Praesidium to Reach a Decision
(02-2246)

The Praesidium of the Synod, in a memo dated January 11,
2002, described its inability after four separate ballots to determine
the eligibility of the President to act in response to a complaint
against a District President and asked the following question:

Question: “Does a deadlocked Praesidium on the question of
the eligibility of the Synodical President to act in a case of formal
charges against a District President mean that the Synodical Presi-
dent is or is not disqualified from acting in this case?”

Response: Such a deadlock has neither effect. The bylaw in
question, 2.27 a 1, which applies in the instant case because of a
challenge to the synodical President’s authority to take action pur-
suant to Bylaw 2.27 g, requires that the Praesidium reach a defini-
tive conclusion. The bylaw does not allow for a deadlock. The mat-
ter at issue in all such cases, the ability of the President to act
impartially in investigating a disputed case, is far too important to
allow it to be decided by default, deadlock, the vicissitudes of par-
liamentary procedure, or the manner in which a motion is worded.
In the case of such a deadlock, given the importance of the issue,
the Praesidium must find a way to reach a definitive conclusion.

The Commission further observes that the Synod depends upon
the Praesidium to resolve such weighty issues. It notes that the
members of the Praesidium are all learned men, elected to impor-
tant and solemn office in the Synod because the delegates to the
Synod’s convention who elected them felt that they had the ability
to deal with difficult and weighty matters. The Commission there-
fore encourages the members of the Praesidium to continue to de-
liberate upon this important matter in order to arrive at a church-
man-like and God-pleasing decision.

Adopted Jan. 11, 2002

Questions re Relationship of Chapter IT
and Chapter VIII of Bylaws (02-2247)

A District President, in a letter dated January 9, 2002, submitted
a series of questions regarding the role of a District President in ad-
dressing complaints.

Question |: “If a complaint is made under Bylaw 2.27 that is
personal and relational in nature (such as alleged slander) wherein
the ultimate goal should be reconciliation between the parties who
are members of Synod, can a District President direct a com-
plainant to use Bylaw Chapter VIII as a more appropriate means
of dealing with the matter? If so, must the complainant use Chapter
VIII if he wishes to pursue the matter?”

Opinion: The criteria for use of the procedure set forth in Bylaw
2.27 is whether the facts which are the basis of the complaint could
lead to the expulsion of the member from the Synod. Article XIII 1
of the Constitution states: “Members who act contrary to the con-
fession laid down in Article II and to the conditions of member-
ship laid down in Article VI or persist in an offensive conduct shall,
after previous futile admonition, be expelled from the Synod.”
Thus, the District President must decide whether the facts of the
complaint are such that, if true, are a violation of Article XIII 1. If
they are, a proceeding under Bylaw 2.27 is appropriate. However,
if they are not, the matter must be commenced under the procedure
set forth in Chapter VIII of the Bylaws.

If a District President concludes that the matter does not qualify
to proceed under Bylaw 2.27, he declines to suspend the member.
The complainant may then (a) appeal such refusal to the Praesid-
ium under the provisions of Bylaw 2.27 b; (b) pursue the matter
under the procedure set forth in Chapter VIII of the Bylaws; or (c)
take no further action.

Question 2: “Can Bylaw Chapter VIII be used by a District
President as a means of accomplishing Bylaw 2.27 a | and 2? Ifa

District President so decides, must the complainant follow Chapter
VIII if he wishes to pursue the matter?”

Opinion: This question was answered in the opinion to Ques-
tion | above. It should be noted, however, that the procedure under
Chapter VIII of the Bylaws begins with a requirement (Bylaw 8.05)
that the parties involved in the dispute must meet together face to
face in a good-faith attempt to settle their dispute (Matthew 18:15).
In the same manner, Bylaw 2.27 a 2 requires that the District Pres-
ident follow the guidelines of Matthew 18:15—16 and may appoint
a small committee to assist in reconciliation efforts. Thus reconcil-
iation is the stated goal of procedures under Bylaw 2.27 as well as
Chapter VIII of the Bylaws. Further, a District President who fol-
lows the mandates of Bylaw 2.27 a 2 is acting and thus does “act
after receipt of the written complaint” (Bylaw 2.27 b).

Question 3: “Can a District President purposefully, for the good
of the church, decide to not ‘act’ (Bylaw 2.27 b) on a complaint
with the intention that, if the complainant wishes, the complaint be
forwarded to the Praesidium of Synod? If so, can a District Presi-
dent, prior to the 90 day deadline (Bylaw 2.27 b), notify the com-
plainant and/or the Praesidium of Synod to expedite the matter?”

Opinion: A District President can “fail to act” for any reason he
deems appropriate. The Bylaws are silent on the issue. In a previ-
ous decision (Ag. 2097) dated May 22, 1998, the Commission
stated the following regarding the term “fails to act”:

The CCM interprets “fails to act” to mean that a District President
takes no action within 90 days of receiving a complaint. Such inaction
would mean no measures were initiated within the 90 day period to as-
certain the truth or falsity of the complaint allegations. The same crite-
tia would apply to the First Vice-President, or next qualified District
officer under Bylaw 2.27 a 1. The words “fails to act” clearly prevent a
District President from stifling a complaint through the refusal to act,
i.e., by literally doing nothing. A complaint which is ignored by a Dis-
trict President for 90 days triggers the “fail to act” language. In that sit-
uation, an appeal to the Praesidium is the proper procedure anticipated
in the bylaw.

The Bylaws do not provide for a waiver of the 90 day passage
before the complainant may present the written complaint to the
Praesidium. Further, a District President has no authority to notify
the Praesidium that he will fail to act on a written complaint he has
received. The complainant alone is the party who must make the
decision as to whether or not he will appeal to the Praesidium the
decision of the District President to decline to suspend the respon-
dent or the failure of the District President to act within 90 days
after receipt of the written complaint.

Adopted Feb. 22, 2002

Proposed Amendment to the Bylaws of the
LCMS Foundation (02-2248)

Legal Counsel for The Lutheran Church—Missouri Synod
Foundation, in a letter dated January 15, 2002, requested that
amendments to the Foundation’s Bylaws, approved by the Board
of Directors of the Synod at its November 14—16, 2001 meeting,
be approved by the Commission.

Synod Bylaw 3.603 b requires that the Board of Trustees of the
LCMS Foundation consist of:

* Two members elected by the Synod in convention, one ordained
minister and one layperson

* The chairman of the Board for District and Congregational Ser-
vices or his representative from that board

* At least seven members appointed by the members, as provided i in
the Bylaws of the Foundation

¢ The Chief Financial Officer of the Synod as a nonvoting mémber
* The President of the Synod or his representative

The Commission notes that the amendment to Article II, Sec-
tion | of the Foundation’s Bylaws meets the requirements of Synod
Bylaw 3.603 b, including the requirement that seven members of
the Board of Trustees be appointed by the Members of the Foun-
dation as provided in the Bylaws of the Foundation. The Bylaws
of the Synod do not restrict the method of selection or the compo-
sition of the seven Trustees appointed by the Members of the Foun-

2004 Convention Workbook