LCMS Convention Workbook St. Louis, Missouri — 2004, Page 341

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OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS 34]

and the opinions in response to questions 3 and 4 hereof are ren-
dered in the context of opinion 02-2282.

The question begins with an erroneous premise. The officer of
the Synod who is required to conclude whether the facts form a
basis for expulsion from the Synod under Bylaw 2.27 c is not
granted the authority of the President of the Synod. The dispute
resolution process commenced under Bylaw 2.27 designates the in-
dividual who is to make the decision required by Bylaw 2.27 c. The
individual initially designated to make that choice is the President.
If the President is a party to the matter in dispute, has a conflict of
interest, or is unable to act, the First Vice-President or the next
qualified synodical officer is designated to undertake the task. Such
officer is not granted the authority of the President to see to it that
the resolutions of the Synod are carried out. Rather, his authority
has as its source Bylaw 2.27.

The responsibility of the officer who carries out the provisions
of Bylaw 2.27 c is to determine whether the accused member of
the Synod has engaged in conduct which Article XIII of the Con-
Stitution states to be the basis for expulsion from the Synod:
“Members who act contrary to the confession laid down in Article
II and to the conditions of membership laid down in Article VI or
persist in an offensive conduct shall, after previous futile admoni-
tion, be expelled from the Synod.”

Question 3: If a convention resolution is brought forward as ap-
plicable in the matter before the officer who is to make a decision
under Bylaw 2.27 c and that officer under the duties of LCMS Con-
stitution Article XI B 4 fails either to distinguish the applicability of
the convention resolution or apply the convention resolution in his
decision, is that officer derelict in his constituted duties?

Opinion: As stated in the previous opinion, the duties of Article
XI B 4 are those of the President and not those of the officer who
carries out the function of Bylaw 2.27 c. Whether or not such 2.27
c officer is to distinguish the applicability of a convention resolu-
tion or to apply such resolution in his decision depends upon
whether such resolution relates to the causes for expulsion as set
forth in Article XIII of the Constitution.

Question 4: If the officer who makes the decision under Bylaw
2.27 c is deemed to be derelict in his constituted duties, is not the
decision rendered invalidated?

Opinion: Neither the Constitution nor the Bylaws of the Synod
use the word “derelict” and thus the Commission chooses not to
address that issue. The decision of the 2.27 c officer is put to the
test when the officer presents the matter to a Dispute Resolution
Panel and the accused is there given an opportunity to refute the
charges. The decision of the Dispute Resolution Panel or Appeal
Panel will determine whether the officer was correct in his deci-
sion rendered under the provisions of Bylaw 2.27 c.

Question 5: If the Secretary of the Synod offers questions to the
Commission on Constitutional Matters concerning the supervision
of the office of the President in an open case before the church
questioning the applicability of Bylaw 3.101 in the presidential su-
pervision and decision process of a complaint leading to the sus-
pension of a rostered worker, (1) can the Secretary participate in
the discussion of the issue since he has violated neutrality; and (2)
can the Secretary continue to be involved in the process of the com-
plaint under discussion in any way since he has violated neutral-
ity?

Opinion: Bylaw 3.905 d states that one of the duties of the
Commission on Constitutional Matters is to interpret the Synod’s
Constitution, Bylaws and resolutions upon the written request of,
among others, a member of the Synod or an official of the Synod.
Accordingly, the Secretary is qualified to ask for an interpretation.
The Secretary is a nonvoting member of the Commission. When
the Commission considers a question that is asked by a member of
the Commission or involves a conflict of interest by a member of
the Commission, such member does not participate in the discus-
sions leading to the opinion. As an example, the questions ad-
dressed in opinion 02-2282 were asked by the Secretary of the
Synod and the final paragraph of that opinion states that the Secre-
tary took no part in those discussions.

Both parts of the question addressed by this opinion state that
the Secretary has violated neutrality. Asking for an interpretation of
the Synod’s Constitution, Bylaws or resolutions is not a violation of
neutrality. Rather, it is an exercise of a right that the Synod grants
to its members and officials to gain a proper understanding of the
Constitution, Bylaws and resolutions of the Synod.

Once an opinion has been rendered on a question, such opinion
is binding on the question decided unless and until it is overruled
by a synodical convention (Bylaw 3.905 d). After the opinion is
rendered, the member of the Commission who asked the question
or had a conflict of interest resumes his full duties as a member of
the Commission.

Adopted Oct. 21-22, 2002

Authority of the President;
Participation of the Vice-Presidents
in the Reinstatement Process (02-2284)

In a letter dated July 11, 2002, a pastor of the Synod who is also
a member of a faculty of an educational institution of the Synod
submitted a series of questions regarding the rights and responsi-
bilities of the President and also the involvement of the Vice-Pres-
idents in the reinstatement process.

Question |: “When the Synod President and all parties to a dis-
pute are forbidden to comment publicly on that particular dispute,
may the Synod President still discuss in public the theological is-
sues that are behind the dispute, even though he would not refer di-
rectly to the dispute or the participants in the dispute?”

Opinion: The Commission discussed this issue in its opinion 02-
2251 wherein it stated: ‘There is no prohibition against the President
communicating with the members of the Synod as to the underlying
doctrinal topics that are involved in a disputed matter. The President
cannot give publicity to the particular matter in dispute.”

Question 2: “Do the articles of the Synod’s Constitution have a
greater authority than the Bylaws of the Synod? For example, if the
President of the Synod concludes that following a particular stipula-
tion in the Bylaws, namely, the final stipulation of Bylaw 2.27 g will
undermine Article XI B, may the President of the Synod disregard
that Bylaw stipulation in the interest of upholding Article XI B of the
Constitution?”

Opinion: In general, the Constitution of the Synod establishes
broad guidelines by which the Synod operates. Article VII of the
Articles of Incorporation of the Synod states: “This corporation
shall have and make such bylaws as may be necessary to accom-
plish its purposes and shall have power to create such corporations,
boards, offices, and other subordinate bodies as may be necessary
to accomplish its general and specific objectives and in such by-
laws assign responsibilities to those bodies.” Bylaw 2.39 a states:
“The Constitution, Bylaws, and all other rules and regulations of
the Synod apply to all congregational and individual members of
the Synod.” Nonetheless, bylaws must be irtaccord with and cannot
override the Constitution of the Synod. Whether or not a bylaw is
invalid because it is contrary to the Constitution is a matter to be
decided by the Commission on Constitutional Matters in accord
with Bylaw 3.905.

Article XI A 1 of the Synod’s Constitution states: “The officers
of the Synod must assume only such rights as have been expressly
conferred upon them by the Synod, and in everything pertaining to
their rights and the performance of their duties they are responsible
to the Synod.” Article XI B 4 states: “The President shall see to it
that the resolutions of the Synod are carried out.” Bylaws of the
Synod come into being by resolutions adopted by the Synod in con-
vention assembled. There is no provision in the Constitution or By-
laws of the Synod that gives to any officer of the Synod, including
the President, the right to disregard any provision of any bylaw. As
stated in Bylaw 1.07, “The delegate convention of the Synod is the
legislative assembly which ultimately legislates policy, program,
and financial direction to carry on the Synod’s work on behalf of
and in service to the member congregations, reserving to itself the
right to give direction to all officers and agencies of the Synod.”

2004 Convention Workbook