LCMS Convention Workbook St. Louis, Missouri — 2004, Page 335

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OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS 335

Questions re Eligibility of Recused Members
of Praesidium (02-2263)

A District President, in an April 4, 2002 e-mail letter, requested
answers to the following questions regarding the eligibility for sub-
sequent participation in a dispute case of recused members of the
Praesidium.

Question 1: If a complaint has been made against a District
President according to Bylaw 2.27 and the complaint involves re-
questing his removal from the Synod, may the President of the
Synod submit this matter to a vote of the congregations of the
Synod according to the Constitution of the Synod, Article XI B 8?

Opinion: Article XII 2 of the Constitution of the Synod pro-
vides that expulsion of a member from the Synod is to follow the
procedure set forth in the Bylaws. Bylaw 2.27 g is the bylaw that
establishes the procedure to be followed if the complaint is against
a District President and such procedure can be undertaken at any

time. Therefore, since action on such a complaint need not be de--

layed until the next convention of the Synod, the provisions of Ar-
ticle XI B 8 are not applicable to such a matter.

Further complaints under Bylaw 2.27 g cannot be brought be-
fore a convention of the Synod since the Bylaws created under the
authorization of Article XIII 2 make no provision for the dispute
to be resolved by a convention of the Synod.

Question 2: If a Vice-President of the Synod charged with in-
vestigating this case declines to suspend the District President, may
the complainants present their request to the Praesidium of the
Synod for a decision, according to Bylaw 2.27 b?

Opinion: The answer to this question is “yes.” As provided in
Bylaw 2.27 b, “the complainant may present the written complaint
to the Praesidium of the Synod, which consists of the President and
the Vice-Presidents of the Synod.”

Question 3: In the event that the case is submitted to the Prae-
sidium according to Bylaw 2.27 b, may any member(s) of the Prae-
sidium who have been recused and the member of the Praesidium
who was initially charged with the investigation of the case partic-
ipate in the process which engages the Praesidium in dealing with
the case?

Opinion: That member of the Praesidium who has conducted
the investigation according to Bylaw 2.27 g (in this case a Vice-
President because he is “the next qualified officer’) “shall not par-
ticipate as a member of the Praesidium” in its responsibilities de-
scribed in 2.27 a 1 and 2.27 b. Furthermore, any member of the
Praesidium who has been disqualified from investigating the case,
whether by action of the Praesidium or by personal decision “be-
cause he is a party to the matter in dispute, has a conflict of interest,
or is unable to act” (Bylaw 2.27 a 1), remains disqualified from fur-
ther participation in the Praesidium’s remaining responsibilities de-
scribed in Bylaws 2.27 a 1 and 2.27 b.

Adopted April 15—17, 2002

Questions re Council of Presidents’
Policy re Sexual Misconduct (02-2264)

In an e-mailed letter dated April 10, 2002, a pastor, upon re-
ceiving a public letter sent by the President of the Synod, raised
questions regarding the sexual misconduct “Zero Tolerance” policy
of the Council of Presidents and that policy’s relationship to the
dispute resolution process that is provided in the Bylaws of the
Synod.

Question 1: “I have grave concems that this policy might cir-
cumvent the dispute resolution policy by automatically reaching a
decision without any real defense possible for the one accused. I
am especially concerned about this since an investigation, which
was also mentioned, will destroy any ministry even if the individual
is found innocent. Is this policy in addition to the dispute policy al-
ready in place in our by-laws, something not covered by our current
by-laws, or is this policy exempt, and thus outside, from the normal
dispute resolution policy? The information I have does not men-
tion the possibility of an appeal.”

Opinion: Any policy developed by the Council of Presidents is
its internal elaboration of the dispute resolution process prescribed
in Chapter VIII of the Bylaws. Such policy cannot circumvent or
contradict the Constitution and Bylaws of the Synod.

Question 2: “In the president’s letter he states that ‘the appro-
priate District President shall, in his discretion, determine whether
the kind of sexual contact is “sexual intercourse” within the spirit
and purpose of this policy.” Does this mean that each District will
have a different definition of what sexual intercourse means and
thus make the zero tolerance policy different in each District? If
so, is this difference in what is needed to expel a pastor proper in
the LCMS?”

Opinion: Bylaw 2.27 charges each District President with the re-
sponsibility to conduct a thorough investigation when facts which
could lead to the expulsion of a member from the Synod under Con-
stitution Article XIII are presented to him or have otherwise become
known to him. It is his personal responsibility to investigate whether
the allegations can be substantiated and whether the facts form a
basis for expulsion. The Commission assumes that one purpose of
said policy of the Council of Presidents would be to provide some
uniformity as District Presidents carry out this responsibility. How-
ever, the responsibility to make these Bylaw 2.27 decisions rernains
with the President of that member’s District in each case.

Question 3: “Also in the letter it is stated that this policy is con-
tained in a Manuel (sic) that is meant for internal use only by the
ecclesiastical supervisors of our Synod. Is it proper in the LCMS to
have policies, especially ones that call for the dismissal of a pastor
from the Synod, that are kept secret except for a select few to
know?”

Opinion: Policies adopted by an agency of the Synod set forth
the internal operating procedures of that agency. Such policies have
no force beyond that agency. They are subordinate to the Constitu-
tion and Bylaws of the Synod. They are not approved by the Synod
but only by the agency that adopts the policies. Bylaw 3.905 sets
forth the function of the Commission on Constitutional Matters. In-
cluded in those functions is the duty to interpret the Synod’s Con-
stitution, Bylaws, and resolutions. The Commission does not have
the authority to interpret policies that are adopted from time to time
by the agencies of the Synod.

Adopted April 15-17, 2002

Request for an Opinion re Role of Bylaw 8.05
in Bylaw 2.27 Process (02-2267)

A party to a dispute, in a May 13, 2002 letter, requested an
opinion regarding the role of Bylaw 8.05 in a dispute process initi-
ated according to Bylaw 2.27.

Question: “Is it not incumbent upon any party complaining
against another party under the Constitution and Bylaws of The
Lutheran Church—Missouri Synod, to follow specifically the pro-
vision of Bylaw 8.05 before filing any charge?”

Opinion: The Preamble to Chapter VIII of the Bylaws states
that the words of Jesus in Matthew 18:15—20 grant guidance to all
Christians in seeking to settle disputes and that the steps of
Matthew 18 should be applied lovingly in both formal and informal
settings. It goes on to say that the parties and others attempting to
effect resolution of a dispute must always remain mindful that the
church has been given the “ministry of reconciliation” and that con-
flict resolution in the church is to lead to reconciliation.

Bylaw 8.05 provides as follows: “Before any matter is submit-
ted to the formal reconciliation process, the parties involved in a
dispute must meet together, face to face, in a good-faith attempt to
settle their dispute (Matt. 18:15).” It should be noted that this bylaw
relates to a complaint commenced under Chapter VIII of the By-
laws where there are specific provisions for informal and formal
reconciliation efforts before a matter can be presented to a dispute
resolution panel. However, the matter in question was commenced
under Bylaw 2.27 that sets forth the following steps:

1. The written complaint is presented to the President.

2. The President thoroughly investigates whether the charges can be
substantiated.

2004 Convention Workbook