LCMS Convention Workbook St. Louis, Missouri — 2004, Page 371

Transcription machine transcription, uncorrected

⤓ Download .txt · copy text

OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS 371

places ultimate authority in its members in convention assembled,
very much consistent with the pre-incorporation polity of the
Synod. In fulfilling its function as “church,” the Synod has deter-
mined in convention to establish boards and commissions as the
best way to carry out various church purposes and functions, as it
reserved the right to do in Article VII of the Articles of Incorpora-
tion. Bylaw 3.01 indicates that the Synod in convention “estab-

lishes general synodical positions and policies, provides overall:

program direction and priorities, and evaluates all such positions,
programs, policies, directions, and priorities in order to provide re-
sponsible service for and on behalf of its members.” The Synod has
chosen to allocate duties, powers, and responsibilities among vari-
ous officers, boards (including the Board of Directors of the
Synod), and commissions, holding each ultimately responsible to
the national convention of the Synod (Bylaw 3.73).

The Synod in convention has chosen to retain authority to iden-
tify and elect those persons whom it, as a church body and under
the guidance of the Holy Spirit, believes will most effectively carry
out its mission and ministry. The Synod in convention has identi-
fied specific mechanisms for the selection of others to be called
into the service of the church. In specialized areas of ministry, it
has created program boards. Bylaw 3.51 h defines a program board
as “an officially established group of persons elected or appointed
as prescribed in the Bylaws, charged with developing policies and
programs for an operating function of the Synod and supervising
their implementation.” The Board for Higher Education is one such
program board.

Historically, because of the ecclesiastical nature of The
Lutheran Church—Missouri Synod, it has operated as “church” and
not simply as a nonprofit entity. It has reserved in its governance
structure the right through the Synod in convention to contro] it-
self, delegating pursuant to its historic procedures the authority and
responsibility of church functions between conventions. Because
of its primary identity as a church and not simply a nonprofit cor-
poration, the Synod has authority and autonomy to limit the au-
thority of the Board of Directors of The Lutheran Church—Mis-
souri Synod in ways which directors of secular nonprofit
corporations may not be limited. Even a secular nonprofit corpo-
ration may limit the power of its board of directors with detailed
limitations in the Articles of Incorporation themselves.

In fulfilling its ecclesiastical purposes, the Synod in convention
has identified in its bylaws the duties and responsibilities of each of
the separate boards and commissions of the Synod, as well as Syn-
odwide corporate entities. With respect to the Board for Higher Ed-
ucation/Concordia University System, those duties and responsi-
bilities are described in Bylaws 3.401 through 3.415. With respect
to fiscal issues, the Board for Higher Education/Concordia Univer-
sity System has specific responsibility under Bylaw 3.409 e to “es-
tablish policy guidelines involving distribution of synodical sub-
sidy and efforts for securing additional financial support from other
sources,” and under Bylaw 3.409 i to “approve capital projects in
terms of constituency priorities and system and institutional needs
in accordance with campus property-management agreements.”

The issue of balancing responsibilities between the Board of Di-
rectors and the responsibilities of program boards and commissions
has been dealt with in past opinions of the Commission. For exam-
ple, Opinion 02-2315, after reviewing the general balance of re-
sponsibilities, observed:

The Commission concludes that the Board of Directors has been
given “general oversight responsibility” over the colleges, universities,
and seminaries of the Synod as its agencies (see CCM Opinion 02-
2259). As part of this general oversight, the Board has a legitimate in-
terest in any contemplated action of an agency which results in the
spending of funds beyond those currently budgeted or which will ob-
ligate future spending. By a request for such information, the Board ex-
ercises its right to call up an action for review, but this request is to be
made, in this case, to the BHE/CUS Board. The role of the BHE/CUS
Board and its staff will be to provide the requested information to the
Board of Directors through its chairman and chief executive officer.

The issue of balancing responsibility between the Board of Di-
rectors, charged with overall fiscal responsibility of the Synod, and
the responsibility of program boards, commissions, councils, and

departments of corporate Synod, charged with use of those allo-
cated funds, has also been dealt with in past opinions of the Com-
mission. A series of opinions dating back to 1976 involving imple-
mentation of New Orleans Resolution 6-31 (Ag. 591, Ag. 591A-B,
Ag. 927, Ag. 9-27A, Ag. 934, and Ag. 934B-J) recognize that the
Synod in convention is the highest legislative authority of the
Synod, both as to program and fiscal matters. Later, in Opinion Ag.
1934 (December 5, 1992), the Commission wrote:

Bylaw 3.183 dealing with the authority of the Board of Directors
states among other things, the Board of Directors shall...be authorized
to take, on behalf of the Synod, any actions not expressly or by reason-
able implication delegated to other officers, boards, or commissions.
When, for fiscal reasons, an action such as the transfer of the editorial
functions and the editors is deemed necessary, there appears to be no
other officer or group which would have the authority to take such ac-
tion. In addition, Bylaw 3.189 c states that the Board of Directors makes
the final determination if conflicts develop in the plans and policies of
two or more boards or commissions of the Synod.

The Board of Directors is required to act in a fiscally responsible
and prudent manner. Included in that responsibility is the establishment
ofa budget as outlined in Bylaw 9.55 which includes the adoption of a
final budget by the Board of Directors. That final budget may involve
the allocation of limited funds in such a way that it would be impossible
for a Board to carry out a specific function or at least to do so following
the normal procedure which may have been followed for many years.
In further review of the issue, the Commission was asked in

1998 to review the effort of the Board of Directors to move the
video studio of the Synod from the Board for Communication Ser-
vices to General Services. In Opinion Ag. 2094 (May 22, 1998) the
Commission ruled:

Bylaw 3.817 sets forth the functions of the Board for Communica-
tion Services (BCS). Subsection “g” thereof states that the BCS shall
“serve as a resource...by providing. ..production facilities, and other as-
sistance for...electronic media.” Therefore, if operation of the video
studio is part of the “production facilities,” it is one of the designated
functions of the BCS and cannot be removed from the BCS without a
change of the bylaw by a convention of the Synod.

Later in that same opinion the Commission noted:

Each board or commission is solely responsible for the organization
of its own staff. The Board of Directors of the Synod does allocate
available funds to the respective boards and commissions (Bylaw 3.191,
d) but the usage of such funds is the responsibility of the governing
board of each board or commission.

Given the specific question presented, under the present bylaws,
without consideration of emergency issues arising during the exe-
cution of a fiscal year’s budget and consistent with the prior opin-
ions of the Commission, the Board of Directors does not have au-
thority to “require” that allocated unrestricted dollars be spent in a
particular fashion. It is certainly anticipated that the Board of Di-
rectors will communicate its suggestions and the priorities its per-
ceives within the overall programs of the Synod, as is recognized as
its authority under Bylaw 3.183 b, to “communicate to the appro-
priate boards and commissions suggestions for improvement.”
While a particular board or entity is responsible to determine the
use of allocated funds, each board must keep in mind its responsi-
bility to consider input from the Board of Directors, the responsi-
bility of the Board of Directors to call up for review and modifica-
tion any action it takes, and ultimately the authority of the Board of
Directors to make allocations in future years based on its percep-
tion of the stewardship of given boards in prior years.

Adopted Sept. 30, 2003

Authority of Board of Directors to Direct Use of Funds
(Board for Communication Services) (03-2359)

The chairman of the Board for Communication Services, in a
letter received June 9, 2003, submitted a series of questions based
upon the following background:

In the recent allocation of restricted funds to the various synodical
program boards, commissions, councils, and departments, the Synod’s
Board of Directors (BOD) included a requirement that the Synod’s
Board for Communication Services (BCS) maintain the monthly RE-
PORTER newspaper at “current levels”—i.e., that circulation and fre-

2004 Convention Workbook