LCMS Convention Workbook St. Louis, Missouri — 2004, Page 354

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354 OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS

Constitutionality of 2001 Resolution 7-03C (02-2310)

In a letter dated October 2, 2002, an ordained minister of the
Synod questions the validity of 2001 convention Resolution 7-03C
in light of the Constitution and Bylaws of the Synod.

Question 1: Does the adoption of Resolution 7-03C (2001 Pro-
ceedings, p. 164), especially Resolve #3 and Resolve #4, conflict
with the Articles and Bylaws of the synodical Constitution (Duties
of the President, Duties of the Board of Directors) and therefore
such resolution should be deemed null and void?

Opinion: The third and fourth resolves of Resolution 7-03C read
as follows:

Resolved, That the President and Board of Directors of the Synod
shall see to it that the Constilution 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.

Article XI B 1 provides that the President has the supervision
regarding the doctrine and administration of all officers of the
Synod, all employees of the Synod, the Districts of the Synod, and
all District Presidents. Bylaw 3.101 A 1 adds to the list of those for
whom he is responsible the agencies of the Synod. It is his respon-
sibility to see to it that all the aforementioned act in accordance
with the Constitution of the Synod (Art. XI B 2) and its resolutions
(Art. XI B 4). He is to see to it that their activities are also in ac-
cordance with the Bylaws (Bylaw 3.101 B 1) and to call up for re-
view any action that in his view may be in violation of the Consti-
tution, Bylaws, and resolutions.

Bylaw 3.183 c provides that the Board of Directors has general
oversight responsibility over the officers and agencies of the Synod
as determined by the Constitution, Bylaws, and resolutions of the
Synod. The Board has the right to call up for review, criticism,
modification, or revocation any action or policy of a program
board, commission, or council, except opinions of the Commission
on Constitutional Matters (Bylaw 3.183 d 2).

Therefore, Resolution 7-03C does not conflict with the Consti-
tution and Bylaws of the Synod regarding the duties of the Presi-
dent and Board of Directors. Both are responsible for seeing to it
that the Constitution and Bylaws are observed to the extent of their
assigned responsibilities. Whichever is charged with supervision
or oversight is responsible to act to correct any failure to comply.

Question 2: When there is a conflict of governance on constitu-
tional adherence between the synodical President and the synodical
Board of Directors, who decides who has jurisdiction? Who has
authority over whom? The Board of Directors over the President,
or the President over the Board of Directors?

Opinion: The Commission has already responded to this ques-
tion in its Opinion 02-2259 pertaining to one of the agencies of the
Synod:

The President and the Board of Directors therefore share oversight
responsibilities for many program boards. Both are required to see to it
that the Constitution and Bylaws of the Synod are observed, including,
but not limited to, the requirements and responsibilities specifically enu-
merated in that board’s section of the Bylaws. In a case of non-compli-
ance 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 fail-
ure as quickly as possible, potential actions to include calling up for re-
view, criticism, 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 earnestly
consult with one another regarding proper supervision of the board in
question. (CCM Opinion 02-2259)

Adopted Jan. 20-21, 2003

2004 Convention Workbook

Accountability of Officers to Conventions of the Synod
(02-2311)

A pastor of the Synod, in an October 11, 2002 letter, questions
a recent ruling of the Commission (02-2263) in which the Com-
mission stated: “Further complaints under Bylaw 2.27 g cannot be
brought before 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.” He noted that
Bylaw 3.73 states: “All officers, boards, and commissions shall be

‘accountable to the Synod for all their actions, and any decision of

such officers, boards, and commissions may be appealed to the na-
tional convention of the Synod.”

Question: If an officer of the Synod charged a member of the
Synod under Bylaw 2.27 and did not follow approved synodical
resolutions in making his case, could not a national convention
overturn this decision under Bylaw 3.73?

Opinion: The Synod, upon instruction of Article XIII 2, has es-
tablished in its Bylaws the procedure to be followed for expulsion
of a member from the Synod. In that procedure, a Dispute Resolu-
tion Panel is given the responsibility for deciding whether or not
the Bylaw 2.27 investigating officer made a proper decision. The
Synod has also provided opportunity for appeal of the Dispute Res-
olution Panel’s decision regarding the investigating officer’s deci-
sion to an Appeal Panel, with the possibility of a second hearing
by a Review Panel to finally decide the case. The Synod has not
provided in its bylaws any opportunity for further appeal of the
final decision to a convention nor has it provided to itself opportu-
nity to question or overturn any part of its dispute resolution
process.

The bylaw in question, Bylaw 3.73, provides for the general ac-
countability of all officers, boards, and commissions, whose deci-
sions may be appealed to a national convention of the Synod. Men-
tion is not made in the bylaw of the panels employed by the dispute
resolution process, whose final decisions, including decisions re-
garding suspensions, are final and binding (Bylaws 8.09 c 4 a and
8.09 e 1) and therefore not subject to actions by conventions of the
Synod.

Adopted Jan. 20-21, 2003

Conflict of Interest (02-2313)

In an October 22, 2002 letter, the President of the Synod sub-
mitted a series of questions regarding the subject of conflict of in-
terest and its application to the duties of the President under Bylaw
2.27 g.

Question 1: Is there any definition of “conflict of interest” in
the Constitution, Bylaws, or resolutions of The Lutheran Church—
Missouri Synod, other than as discussed in Bylaw 3.75 and the
CCM’s prior opinion Ag. 2020?

Opinion: There is no clear definition of “conflict of interest” in
the Constitution, Bylaws, and resolutions of the Synod. In addition
to Bylaw 3.75 (repeated in Bylaw 4.109), the Bylaws also make
specific reference to conflict of interest in Bylaw 3.71, which re-
quires disclosure of conflicts of interest with regard to financial
matters and participation in activities that may be detrimental or at
odds with the activities of the Synod or in situations in which in-
formation obtained through relationship with the Synod could be
used in a way that is detrimental to the interests of the Synod. The
Bylaws also variously address conflict of interest issues through-
out, as in Bylaws 3.69 g, 3.981, 8.17, et al.

There have been numerous prior decisions by the Commission
on Constitutional Matters that pertain to conflict of interest issues,
most of which have addressed financial conflicts of interest. Apart
from those, the Commission has also addressed questions regarding
actual or potential conflicts of interest as a result of holding multi-
ple offices or positions, e.g., whether a District executive secretary
could hold elected or appointed membership on synodical boards
and commissions (Ag. 400, June, 1966), whether a member of a
District Board of Appeals could also serve on a District ad hoc
committee (Ag. 286, October, 1971), whether a conflict of interest
existed in an appointment of an advisory member of a District