LCMS Convention Workbook St. Louis, Missouri — 2004, Page 355

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OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS 355

board of directors to another position (Ag. 433B, August, 1973),
and whether a seminary president could also hold membership on
the Board for Admissions’ Services (Ag. 1668, September, 1985).

In one prior opinion, interpreting then-Bylaws 8.05 and 8.07
(Ag. 1873, December 1989), the Commission was asked to deter-
mine whether a synodical president could delegate his responsibil-
ities under then-Bylaw 8.05 a to one or more Vice-Presidents of
the Synod based upon real or perceived conflicts of interest. The
Commission ruled as follows:

Regarding the issue of responsibility you have inquired, “May
the synodical President delegate his responsibilities under Bylaw
8.05, a to one or more synodical Vice-Presidents, particularly in
cases where he feels that there may be a real or perceived conflict
of interest or that such a delegate of responsibility would enhance
the achievement of reconciliation, or where the president is rightly
or wrongly alleged by one of the parties to have an involvement in
the case under adjudication?” The Commission’s response is, “No,
he may not.” The Handbook makes it clear that “the President shall
have the right to authorize the Vice-Presidents to perform the duties
of his office and shall hold them responsibld for their performance.
Accountability, however, shall always remain with the President,”
Bylaw 3.101, m. The Commission respectfully points out that the
President may appoint a small committee to seek to effect recon-
ciliation. This committee may or may not consist of Vice-Presi-
dents of the Synod.

Question 2: If the answer to Question | above is “yes,” what
other definition of “conflict of interest” exists?

Opinion: See the opinion to Question 1.

Question 3: If the answer to Question 1 is “no,” do the Consti-
tution and Bylaws of the Synod allow for any other reason by
which the Vice-Presidents of the Synod could recuse the President
of the Synod from investigation of charges against a District Pres-
ident under Bylaw 2.27 g?

Opinion: Bylaw 2.27 g makes reference to Bylaw 2.27 a 1,
which allows for disqualification of the President due to one of
three grounds: (1) he is a party to the matter in dispute; (2) he has a
conflict of interest; or (3) he is unable to act. Therefore the Presi-'
dent can be disqualified from investigating charges against a Dis-
trict President for one of these three reasons. The Constitution and
Bylaws provide no other reasons for disqualification.

Question 4: If the answers to Questions 1 and 3 above are “no,”
would it ever be in accord with the Constitution and Bylaws of the
Synod for a majority of the Vice-Presidents of the Synod to deter-
mine that the President of the Synod should be recused from han-
dling charges filed against a District President that could result in
his being removed from the clergy roster of the LCMS?

Opinion: As indicated in the opinion to Question 3, the only rea-
sons which allow the Vice-Presidents of the Synod to determine
that the President should be disqualified from investigating charges
filed against a District President are the three reasons articulated in
Bylaw 2.27 a 1.

Question 5: If the answers to Questions 1 and 3 above are “no,”
what effect, if any, does the absence of a “conflict of interest” have
in a Bylaw 2.27 g case against a District President who has been
suspended and whose suspension is currently under appeal, when
the President of the Synod was recused by a majority of the Vice-
Presidents of the Synod on the basis of an alleged conflict of inter-
est?

Opinion: As indicated above in the opinion to Question 3,
Bylaw 2.27 a provides for the disqualification of the investigating
officer (in this instance the President) only where he is a party to
the matter in dispute, has a conflict of interest, or is unable to act. If
the President believes that the Vice-Presidents of the Synod have
misunderstood the issue of conflict of interest or have disqualified
him for a reason other than those provided in this bylaw, he should
request reconsideration by the Praesidium.

For another treatment of the issue of “conflict of interest,” see
the Commission’s response to question 8 of Opinion 02-2309.

Adopted Jan. 20-21, 2003

Right to Nominate and Elect a District President
on Suspended Status (02-2314)

The President of the Synod, in a memorandum dated October
22, 2002, requested an opinion from the Commission regarding the
right of a member of the Synod to be nominated and elected to the
office of District President while on suspended status.

Question: “The Constitution of the Synod states ‘The Synod,
under Scripture and the Lutheran Confessions, shall...provide pro-
tection for congregations, pastors, teachers, and other church
workers in the performance of their official duties and the mainte-
nance of their rights’ (LCMS Constitution Article ITI). Further-
more, Bylaw 2.25 b. states ‘While on suspended status, the member
shall continue to hold all rights under the Constitution and Bylaws
subject to the limitations set forth herein.’

“Accordingly, do the Constitution and/or Bylaws of the Synod
prohibit a District President from being nominated and re-elected to
the office of District President that he currently holds, while his
suspended status as a member of the Ministers of Religion—Or-
dained roster of the Synod is under appeal?”

Opinion: The answer to this question is: No. The Constitution
and Bylaws of the Synod do not prohibit a District President or any
other member of the Synod on its clergy roster from being nomi-
nated and elected to the office of District President while his sus-
pended status is under appeal. Bylaw 4.51 only requires that a Dis-
trict President “be elected from the clergy roster of the Synod.”

The Commission has addressed this question previously in its
opinion 98-2] 22 in which it stated:

It is correctly noted that “if a District President is placed on sus-
pended status, he is to be relieved of his duties as District President
under the provisions of Bylaw 2.25, c.” The bylaw states that a member
on suspended status shall “be relieved of the duties and responsibilities
which the member holds with the Synod, District, or other agency of
the Synod.” Also asked is, “But what of his office? Does he retain his
office until relieved by the next convention of the District?” While for-
mal proceedings are taking place, the District President retains his of-
fice, but he is relieved of the duties of that office until such time as a
final decision is reached under the dispute resolution process. However,
if while formal proceedings are underway, the term of office of the Dis-
trict President comes to an end, the District may, if it chooses, re-elect
the District President. If re-elected, the District President continues to be
relieved of the duties of his office and will only resume such duties if
the final decision in the dispute resolution process determines that the
District President has not violated Article XIII, 1, of the Constitution
of the Synod.

But “if a District chooses to keep the suspended District President in
office — as has happened with congregations and suspended pastors —
what recourse does the Synod have?” If at the conclusion of formal pro-
ceedings a District President is expelled as a member of the Synod, he is
also removed from the clergy roster of he Synod. Since Bylaw 4.51 re-
quires that a District President be on the clergy roster of the Synod, ex-
pulsion from the Synod also terminates the District Presidency of the
expelled member.

Adopted Oct. 21-22, 2002

Role of BHE/CUS Board in Light
of Board of Directors Resolution (02-2315)

The Executive Director of the BHE/CUS Board, in a memoran-
dum dated October 29, 2002, asked the Commission for assistance
in understanding the consequence of a recent action by the Board of
Directors of the Synod which resolved “That each agency of the
Synod keep the Board of Directors informed by direct communi-
cation with the administrative officer of the Synod and the chair-
man of the Board of Directors of any contemplated action which
falls under the supervision and oversight of the Board of Directors
and/or which will result in the spending of funds beyond that cur-
rently budgeted or which will obligate future funding, and such no-
tification is to be made while the contemplated action is still in the
planning stage.”

After asking a series of questions (“What is the role of the
BHE/CUS Board and staff? Is this an appropriate and proper inter-
pretation of the Constitution and Bylaws of the Synod? What does

2004 Convention Workbook