LCMS Convention Workbook St. Louis, Missouri — 2004, Page 332

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332 OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS

The Synod in its 2001 convention, by Resolution 7-03C, also
charged both the President and the Board of Directors with specific
responsibilities:

Resolved, That the President and Board of Directors of the Synod
shall see to it that the Constitution and Bylaws of the Synod are ob-
served; and be it further

Resolved, That when a failure to comply with the Constitution and
Bylaws is discovered, the President or Board of Directors, whichever
is charged with supervision or oversight, shall act to correct such failure
to comply as quickly as possible; and be it finally...

The action of the Board of Directors was taken following the
issuance of CCM opinion 02-2243, and before the issuance of opin-
ion 02-2251 which clarified the information to which the prohibi-
tion of publicity applied. While the Board of Directors may allo-
cate funds to the President and hold him accountable for their use,
the Board of Directors may not control his ecclesiastical purposes,
including the expenditure of funds for ecclesiastical activities. The
Board of Directors cannot, consistent with the Constitution, restrict
the ecclesiastical power of the President and his communications
in fulfilling that responsibility. The resolution as passed restricts
the President in the performance of his ecclesiastical responsibili-
ties. In doing so, the Board of Directors acted outside the scope of
its authority in its resolution as directed to the President.

Question 2: “Does the Board of Directors likewise exceed its
jurisdiction and authority to act by attempting to restrict the means
by which the President may distribute such information?”

Opinion: It is the responsibility of the Board of Directors to “al-
locate available funds to the program boards, commissions, coun-
cils, and departments of corporate Synod and hold them account-
able therefore” (Bylaw 3.183 d). Insofar as the administrative
offices of the Synod are included in the “departments of corporate
Synod,” the Board is responsible for the allocation of funds and for
holding the recipients of those funds accountable, so long as other
provisions of the Constitution and Bylaws of the Synod are not
thereby violated. As discussed above, however, the Board of Di-
rectors cannot, consistent with the Constitution, restrict the eccle-
siastical power of the President or the means chosen by him in ful-
filling that responsibility within the resources available to him.

Question 3: “The Board for Communications Services and its
staff would face a conundrum were the Board of Directors to order
the Editor of the official periodicals or other BCS staff not to dis-
seminate certain information while at the same time were the Pres-
ident to specifically direct that the same information be dissemi-
nated. To whom would the BCS respond affirmatively in this
situation, the Board of Directors or the President?”

Opinion: The Board for Communications Services is created by
Bylaws 3.811 and 3.813. It “serves in a specific area of program
or ministry in accordance with the Synod’s Constitution and ap-
plicable Bylaws” (Bylaw 1.07 d). As a program board, it is
“charged with developing policies and programs for an operating
function of the Synod and supervises their implementation” (Bylaw
3.51 h). The “operating function” that the Synod has charged the
Board for Communications Services with is delineated in Bylaw
3.813. Included in that operating function are to “have responsibil-
ity for the official periodicals of the Synod” (Bylaw 3.813 c) and to
“assist the appropriate officers of the Synod in their communica-
tion responsibilities” (Bylaw 3.813 e). The official periodicals of
the Synod, among many services provided, are to “include official
reports and notices,... provide current synodical news,... serve as a
forum for the responsible exchange of opinion on issues con-
fronting the Synod, and report general church news of interest to
the Synod” (Bylaw 11.01 b).

While the Board of Directors significantly influences the Board
for Communication Services (appointing 5 of 7 board members, al-
locating funds for its operation, and holding it accountable for those
funds), the Board for Communication Services is an independent
board not directly answerable to the Board of Directors. Similarly,
while the President influences the Board for Communication Ser-
vices through his ecclesiastical role and as a primary recipient of
the services of the Board for Communication Services in facilitat-
ing his communications responsibilities, the Board for Communi-
cation Services is not directly answerable to the President. As re-

2004 Convention Workbook

gards the management and supervision of the business and legal
affairs of the Board for Communication Services, the Board of Di-
rectors has the power to call up for review, criticism, modification
or revocation the actions or policies of the Board for Communica-
tion Services under Bylaw 3.183 d 2. The President is to see to it
that the Board for Communication Services acts in accordance with
the Synod’s Constitution, to admonish it if it departs from the Con-
stitution, and, if such admonition is not heeded, to report such cases
to the Synod (Art. XI B 2). He is also to “see to it that the resolu-
tions of the Synod are carried out” (Art. XI B 4). As discussed
above, Resolution 7-03C of the 2001 convention of the Synod ad-
ditionally charged the President as well as the Board of Directors
with the specific responsibility to “see to it that the Constitution
and Bylaws of the Synod are observed” and that “when a failure to
comply with the Constitution and Bylaws is discovered, the Presi-
dent or Board of Directors, whichever is charged with supervision
or oversight, shall act to correct such failure to comply as quickly
as possible” (2001 Proceedings, p. 164).

The President and the Board of Directors therefore share over-
sight responsibilities for many program boards. Both are required
to see to it that the Constitution and Bylaws of the Synod are ob-
served, including, but not limited to, the requirements and respon-
sibilities specifically enumerated in that board’s section of the By- ‘
laws. In a case of non-compliance with the Constitution and
Bylaws, the President is to admonish those involved and, if such
admonition is not heeded, to report such cases to the Synod. To the
extent of his oversight and influence, he is to correct such failure to
comply as quickly as possible. In such case of non-compliance, the
Board of Directors is also to act to correct any failure as quickly as
possible, potential actions to include calling up for review, criti-
cism, modification, or revocation the errant action or policy of the
board. Therefore, if the President and the Board of Directors are
faithful to their duties and responsibilities, the question that is
posed should not happen. Should there be disagreement, they must
eamestly consult with one another regarding proper supervision of
the board in question.

The Board for Communication Services is independently re-
quired to honor the Constitution and Bylaws of Synod. Should di-
rectives and guidance be received from different officers (including
the President and the Board of Directors) or other boards or com-
missions of the Synod, the Board for Communication Services
must strive to honor those directives and guidance to the extent
consistent with its mandated functions under Bylaw 3.813.

The question specifically asks further as to its proper response
should the President submit an article regarding a matter in dispute
and asks the Board for Communication Services to publish that ma-
terial and, further, whether the Board of Directors’ resolution ref-
erenced above is unconstitutional. Opinion 02-2251, by defining
the term “matter in dispute” as it relates to the prohibition of pub-
licity under Bylaw 8.21 e, defines what matters may be published
and those which the Board for Communication Services should
properly decline to publish.

The Commission on Constitutional Matters previously re-
sponded to the question of whether the President could exercise
“censorship” over official periodicals of the Synod in opinion Ag.
2073, issued June 25, 1997. That opinion found authority for ac-
tions which might be considered censorship on the part of the Pres-
ident, but recognized extreme limitations on that authority. The
Commission found that, to the extent that such authority exists, it
flows from his general authority under Article XI B 1, which indi-
cates “the President has the supervision regarding the doctrine and
administration...” and Bylaw 3.10] C 11, which authorizes the ex-
ercise of executive power where there is no specific directive of
the Synod and action is required. As applied to the issue of censor-
ship, the opinion observed that “prohibiting or directing items for
publication in the official periodicals of the Synod should be done
by the President of the Synod only in exceptional circumstances.”
The opinion also recognized that the exercise of such extraordinary
measures under the bylaw, now renumbered as 3.101 C 11, would
require the President to first consult with the Vice-Presidents, the
Board of Directors, or the Council of Presidents, whichever in his
judgment would be most appropriate and, further, that any such de-