LCMS Convention Workbook St. Louis, Missouri — 2004, Page 333

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OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS 333

cision could be appealed by any member of the Synod to the Com-
mission on Constitutional Matters and/or to the Synod in conven-
tion, whichever would be appropriate.

It should also be noted that the prior opinion also discussed and
relied in part on former Bylaw 3.101 h which indicated that the
President remains “ultimately responsible for the day to day super-
vision of the synodical staff.” While that provision was dropped
from the Bylaws, the prior opinion was not premised on that provi-
sion but rather on the grant of power to the President to act in un-
foreseen circumstances, with the limitations specifically attached
thereto. Since that prior opinion, the power of the Board of Direc-
tors has also been expanded. The provisions of Bylaw 3.183 were
expanded by the 1998 convention to include the right to call up for
“modification, or revocation” rather than the prior right to merely
call up for “suggestion.”

Were the BCS actually presented with the factual situation
posed in the question submitted, one would expect the BCS to ex-
ercise its responsibilities after meeting with the Board of Directors
and the President urgently in an attempt to resolve the dispute.

Question 4: “If the President writes about a matter in dispute
and asks the Board for Communication Services to publicize that
writing through its various channels of communication, does the
Board of Directors order prohibit the BCS from doing so? In light
of the limitations placed on the Board of Directors by the Consti-
tution and Bylaws noted above, has the Board of Directors issued
an order that is unconstitutional?”

Opinion: The Commission has previously ruled that, according
to Bylaw 8.21 e, any party to whom the matter in dispute is pre-
sented and who is required to thoroughly investigate whether the
allegations can be substantiated, whether the President of the Synod
or a District President or the Praesidium of the Synod, is not to give
publicity to a matter in dispute (see CCM opinion 01-2243). The
Commission has also ruled that in dispute cases resulting from
Bylaw 2.27 g the President of the Synod is and remains a party
until the dispute is finally resolved (see CCM opinion 02-2261). In
such case, “use of the press or other means by a party involved in
the matter to bring to the attention of the public information re-
garding the matter or to advocate a position is ‘publicity’ and is
prohibited by the bylaw if it occurs while a matter in dispute is still
undecided or while an appeal is contemplated or pending” (see
opinion 01-2243). The President may therefore discuss underlying
doctrinal topics that are involved in a disputed matter, but he is not
allowed to discuss “matters in dispute,” specifically, “details of the
charges or allegations made, the correspondence or other commu-
nication which follow, the status of proceedings or deliberations,
the President’s actions pertaining thereto, and his opinion as to who
is right or wrong” (see opinion 02-2251).

Therefore, in response to the questions, the President may not
write about a matter in dispute or ask the Board for Communication
Services to publicize that writing through its various channels of
communication unless he is addressing underlying doctrinal topics
without reference to the matters in dispute as defined. If the Board
of Directors is aware that the Constitution or Bylaws (as interpreted
by relevant opinions of the Commission on Constitutional Matters)
are not being observed, the Board of Directors under Resolution 7-
03C has the right and responsibility to “call up for review, criti-
cism, modification, or revocation any action or policy of a program
board,” including those of the Board for Communication Services
(Bylaw 3.183 d 1). In such case, such action by the Board of Di-
rectors is not unconstitutional.

Question 5: “In light of the limitations placed on the jurisdic-
tion of the Board of Directors to the supervision of the property
and business affairs of the Synod (Const. Art. XI F 2; cf. Bylaw
1.07 c), has the Board of Directors by its resolution usurped the ju-
risdiction delegated by the Bylaws to the Board for Communica-
tion Services? Does the Board of Directors have the general power
to censor the Synod’s official periodicals and other communication
outlets for which the Board for Communications Services has been
given responsibility by the Synod, in light of the limitations placed
upon the Board of Directors by Bylaw 1.07 c? May the Board of
Directors exercise such censorship even if the periodicals have
complied fully with the long-standing ‘program policies, as well as

directions’ established for them by the Board for Communication
Services (Bylaw 1.07 d)? May the Board of Directors order that no
articles be written on a given subject?”

Opinion: As discussed above, the question fails to recognize the
extent of the responsibilities of the Board of Directors, including
its authority to call up for review the actions of all program boards
including the Board for Communication Services, and its responsi-
bilities under 2001 convention Resolution 7-03C. Accordingly, the
calling up for review, criticism, modification, or revocation by the
Board of Directors of an action of the Board for Communication
Services is not a usurpation of its jurisdiction or a censoring of the
periodicals of the Synod so long as the bylaws regarding the right-
ful responsibilities of the Board for Communications Services are
not violated. To the extent that the resolution of the Board of Di-
rectors, written without the benefit of opinion 02-2251 of this Com-
mission, attempted to restrict the Board for Communication Ser-
vices in the performance of duties mandated by Bylaw 3.813 b, c
and e, the Board of Directors was in error. Its good faith in at-
tempting to fulfill its mandate under Resolution 7-03C to correct a
perceived failure by the Board for Communication Services to
comply with the Constitution and Bylaws, particularly as it under-
stood those documents under opinion 02-2243, is not here ques-
tioned.

Question 6: “Conversely, may the Board of Directors order that
an article or statement on a given subject must be published? May
the Board of Directors order that an article be published and placed
in a specific location within an official periodical, with no deviation
in wording or content or placement?”

Opinion: According to Bylaw 11.01 a, the official periodicals
of the Synod exist, among other purposes, to “include official re-
ports and notices.” Insofar as an article or statement qualifies as an
official report or notice, the official periodicals of the Synod
“shall...include” such reports or notices without change in wording
or content. Furthermore, since the Board for Communication Ser-
vices is also required to “assist the appropriate officers of the
Synod in their communication responsibilities” (Bylaw 3.813 e),
the Board should be willing to cooperate with the officers of the
Synod as they look for the best way to carry out those communica-
tion responsibilities. Under the Constitution and Bylaws, one would
expect the Board for Communication Services to attempt to honor
the requests of the Board of Directors, but it must exercise its own
judgment in fulfilling its duties under Bylaw 3.813. The Board for
Communication Services should carefully consider input from all
officers of Synod, including the President and the Board of Direc-
tors, but it is ultimately responsible for determining itself how to
carry out its mandate in the Bylaws. As such, the Board for Com-
munication Services is not subject to the censorship of the Board of
Directors but is always subject to the actions of the Board of Di-
rectors and President to hold it accountable in the performance of
those duties.

Question 7: “Finally, if the Board of Directors’ order stands as
regards Board for Communication Services staff, including staff of
the official periodicals, does the Board’s order stand as regards all
reporting on the case at issue? For example, does the Board’s order
properly prohibit reporting on matters of procedure as well as mat-
ters of substance in the case? In other words, may the periodicals
report how the case is progressing through the process outlined in
the Bylaws (e.g., Bylaw 2.27)? For example, even if the periodi-
cals are prohibited by Board of Directors order from explaining the

. Tespective positions of the complainants and the person against

whom charges are brought, may they report that the case is now in
the hands of the synodical President, or before the Praesidium, or
before a Dispute Resolution Panel, as the case may be? Are the pe-
riodicals prohibited from reporting even an official statement of the
Praesidium concerning a vote of the vice presidents on the qualifi-
cation of the President to rule in a given case?”

Opinion: Bylaw 8.21 e requires that “while a matter in dispute is
still undecided or while an appeal is contemplated or pending, pub-
licity shall not be given to the issues in the matter by any of the
parties involved.” The Commission’s opinion 02-2251 clearly de-
fines what is to be included as a matter in dispute: “This phrase in-
cludes the details of the charges or allegations made, the corre-

2004 Convention Workbook