LCMS Convention Workbook St. Louis, Missouri — 2004, Page 328

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328 OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS

dation pursuant to its own Bylaws, so long as there are at least
seven, and leaves to the wisdom of the Members of the Foundation
the method of selection of those trustees.

The Foundation’s amended Article I, Section 1 requires that four
of these seven members of the Board of Trustees be elected by the At
Large Members of the Foundation (identified by Foundation Bylaw
Article I, Section | as five individuals appointed by the Board of Di-
rectors of the Synod) and that the remaining three Trustees be elected
by all the Members of the Foundation (the At Large Members as well
as one representative from each District, college, university, semi-
nary, or other agency or auxiliary of The Lutheran Church—Missouri
Synod that has entered into a formal partnership with the LCMS
Foundation as defined under policies of the corporation’s Board of
Trustees). It is noted that the Synod’s Bylaw 3.603 b does not specify
how these appointments should be accomplished. The amended Foun-
dation bylaw calls for the “election” of those trustees as the method of
“appointing” them. Since the Bylaws of the Synod do not restrict the
manner of appointment, the Commission sees nothing that would pro-
hibit the appointment through an election process as outlined in the
amended Foundation bylaw. The amendment to Article II, Section |
is therefore approved.

Article II, Section 3 of the Foundation’s Bylaws governing the
filling of vacancies has also been amended. The amended bylaw
requires that any vacancy in a trusteeship be filled by that entity
that originally filled the position. This is in accord with Synod
Bylaw 3.63 and with prior Opinion 99-2143 of the Commission.
The amendment to Article II, Section 3 of the Bylaws is therefore
also approved.

Adopted Feb. 22, 2002

Questions re Academic Freedom
for Non-Member LCMS Faculty (02-2249)

In a letter dated January 15, 2002, a pastor referred to the Com-
mission’s previous Opinion 99-2142 and asked its application to a
professor at a synodical school who is not a commissioned minister
of the Synod but is a member of an LCMS congregation.

Question 1: “Page 320 of the 2002 Workbook of the Synod con-
tains your response to ‘Question regarding Academic Freedom
(99-2142).” You there write, ‘In the case of both categories of per-
sons, doctrinal resolutions and statements are to be honored and
upheld until such times as the Synod amends or repeals them’
(Bylaw 1.09 b). If there is disagreement, ‘Dissent from doctrinal
resolutions and statements shall be governed by Bylaw 2.39 c’
(Bylaw 1.09 d). In the meanwhile, dissenters are to ‘continue to
honor and uphold publicly...the position of the Synod, not with-
standing further study and action by the Synod’ (Bylaw 1.09 c 10)
or face removal from office (Bylaw 6.43 c 6). Does this apply to a
professor at a synodical school who is a member of a Missouri
Synod congregation but not a commissioned minister of the Synod?
Specifically, is such a person governed by Bylaw 2.39 c? The
above quotation certainly seems to indicate that such a person is.”

Opinion: Bylaw 6.23 c requires that when laypersons are em-
ployed in full-time teaching positions, they pledge to perform their
duties in harmony with the Holy Scriptures as the inspired Word
of God, the Lutheran Confessions, the Synod’s doctrinal state-
ments, and the policies of the Synod. Further, in speaking of doc-
trinal resolutions, Bylaw 1.09 b states that doctrinal resolutions are
to be honored and upheld until such time as the Synod amends or
repeals them.

Bylaw 2.39 applies to members of the Synod, and by definition
the professor in question is not a member. Bylaw 2.39 is therefore
inapplicable. Any expression of disagreement or dissent from such
faculty member with a position of the Synod must not violate such
non-member’s duty and agreement to perform his or her duties “in
harmony with the Holy Scriptures as the inspired Word of God, the
Lutheran Confessions, the Synod’s doctrinal statements, and the
policies of the Synod” (Bylaw 6.23 c), and to perform such duties
in a manner that does not violate the requirement to “honor and up-
hold the doctrinal position of the Synod...” (Bylaw 6.43 c 6).

Question 2: “Is 7.3.3 (sic) of the BHE/CUS Policy Manual re-
vised statement of Academic Freedom, adopted by the BHE/CUS

2004 Convention Workbook

Board on July 9, 1998, but never approved by the Synod, in har-
mony with Bylaws 1.09 b, 1.09 d, and 2.39 c:

It is not inappropriate to present information regarding concepts that
conflict with synodical doctrinal statements/resolutions. This involves
(1.) a fair and accurate description of the synodical position, and (2.) a
manner of presentation that encourages constructive insights and en-
hanced understanding of the issues. Presentation of differing and even
disturbing concepts is appropriate within the context of a constructive
educational activity.”

Opinion: A policy manual adopted by an entity of the Synod
sets forth the internal operating procedures of that entity. Such poli-
cies have no force beyond the entity. They are subordinate to the
Constitution and Bylaws of the Synod. They are not approved by
the Synod but only by the entity that adopted the policies. Bylaw
3.905 sets forth the functions of the Commission on Constitutional
Matters (CCM). Included in those functions is the duty to interpret
the Synod’s Constitution, Bylaws, and resolutions. The CCM does
not have the authority to interpret policies that are adopted from
time to time by the entities of the Synod. Accordingly, the Com-
mission cannot respond to Question #2.

Adopted Feb. 22, 2002

Sundry Questions re the Bylaw 2.27 Process (02-2250)

In a January 22, 2002 letter, a pastor of the Synod submitted a
series of questions and concerns to the Commission regarding the
Bylaw 2.27 procedure for investigating complaints brought against
a member of the Synod.

Question 1: “In looking through the Bylaws of the Synod
(Bylaw 2.27 specifically), it speaks of the fact that the complainant,
if the District President declines to suspend, can appeal to the Prae-
sidium. I understand the 90 day rule. But what if the District Pres-
ident investigates and rules against the complainant. Can it be pur-
sued further by the complainant or is the matter over?”

Opinion: This question is answered by the provisions of Bylaw
2.27 b. If the District President declines to suspend the member or
fails to act within 90 days after receipt of the written complaint, the
complainant may present the written complaint to the Praesidium
of the Synod.

Question 2: “Does the process as it is set up in Bylaw 2.27 make
the Praesidium the de facto ‘Supreme Court’ of the Synod, if the
District President or synodical President or other supervisory en-
tity, after investigating a complaint, rules against the complainant?”

Opinion: Again, Bylaw 2.27 b provides the answer. If after in-
vestigation the Praesidium concludes that the facts form a basis for
expulsion of the member under Article XIII of the Constitution, the
Praesidium shall proceed in the same fashion as hereafter required
of the District President. If the Praesidium determines not to pro-
ceed, it shall in writing so inform the complainant and the involved
member, which shall terminate the matter. Thus, if the Praesidium
decides to pursue the matter, the Praesidium is the party that must
present the facts to the Dispute Resolution Panel that will decide
whether the member is to be expelled from the Synod. On the other
hand, if the Praesidium decides not to pursue the matter, such de-
cision is final and there is no further appeal of that decision.

Question 3: “What happens to the accused in all this? If the
complainant can bring the charges farther up the ladder, does this
not place the accused in a case of double jeopardy?”

Opinion: Double jeopardy involves being tried more than once
for the same violation. The procedure of Bylaw 2.27 b is not a trial.
It is an investigation. It is a procedure whereby a District President
investigates whether the matter should be formally presented to a
Dispute Resolution Panel for decision. If the conclusion of the Dis-
trict President is in the negative, the complainant has a right to ask
the Praesidium to undertake a similar investigation. Double jeop-
ardy does not attach to investigations. Double jeopardy is applica-
ble to the formal hearing at which the Dispute Resolution Panel
reaches a decision as to whether the accused is guilty of the charges
and that such guilt is of such a type that it requires expulsion from
the Synod. Once a decision is reached, the accused cannot be tried
a second time on the same facts.

Adopted Feb. 22, 2002