LCMS Convention Workbook St. Louis, Missouri — 2004, Page 374

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374 OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS

Opinion: Synod Bylaw 4.91 provides that a District board of di-
rectors “shall have such powers and duties as are accorded to it by
the Constitution, Bylaws, Articles of Incorporation, resolutions, and
policies of the Synod, as well as those of the District.” There is no
bylaw of the Synod that authorizes District boards of directors to
create visitation circuits. Therefore, unless authorized to do so by
the Constitution, Bylaws, Articles of Incorporation, resolutions, and
policies of the District, a District board of directors is not autho-
rized to realign Circuits.

The Northern Illinois District, most recently by its adoption of
Resolution 4-02 during its 2003 convention (which gave final au-
thorization to the division of an existing visitation Circuit into two
Circuits), has demonstrated its concurrence with this principle that
the District Board of Directors has not been given the final author-
ity to realign Circuits. Therefore, absent any direct provision in the
District’s Constitution, Bylaws, Articles of Incorporation, resolu-
tions, or policies, the Northern Illinois District Board of Directors
may not approve the dividing of two visitation Circuits into four
permanent visitation Circuits. As the Commission stated in its Feb-
ruary 8-9, 1974 opinion Ag. 500, “a District convention should re-
align Circuits or at least specifically authorize the [District’s] Board
of Directors to take certain actions in connection with such re-
alignment.”

Question 2: Is it permissible for a District Board of Directors to
approve the dividing of two visitation Circuits into four new and
permanent visitation Circuits if the individual congregations in
these Circuits have not formally approved and requested the same?

Opinion: See the opinion to question #1 above regarding the
right of a District board of directors to take such an action. The
Constitution and Bylaws of the Synod are silent concerning the
rights of affected congregations in a Circuit realignment.

Question 3: Is it permissible for a District Board of Directors to
take an official action before that Board has ever met for the first
time?

Opinion: A board of directors cannot conduct business outside
of a meeting properly called and constituted according to the Con-
stitution and Bylaws of the District and Synod. Synod Bylaw 3.69
b states: “b. Every agency shall organize itself as to officers and
subcommittees at its initial meeting after election or appointment
and shall conduct its business in accordance with accepted parlia-
mentary procedure.”

Question 4: Is it permissible for a District Board of Directors to
take official action when some of the members of the Board have
not, as of yet, been officially installed into their position?

Opinion: A board of directors cannot include in its decision-
making any members of the board that have not been inducted into
office until such induction takes place. For this reason, according to
Synod Bylaw 3.65 b, the initial meeting of the newly-constituted
board “shall ordinarily be held in association with the induction
and shall begin with a combined orientation program conducted
under the direction of the President.” If essential business must be
transacted in the interim, the existing board of directors “shall con-
tinue to function until the newly elected and re-elected members
[of the board] assume office....The newly elected members of [the
board of directors] shall attend whatever meetings are held in the
interim, without vote, to become acquainted with their new re-
sponsibilities and functions” (Bylaw 3.67).

Question 5: Is it permissible for a District Board of Directors to
take official action outside of an official meeting of that board—
where its members have not had the opportunity to enter into face-
to-face discussion and to vote on the issue within the construct of
an official meeting?

Opinion: Again, it is not permissible for a District Board of Di-
rectors to take an official action outside of an official meeting of
the board. However, face-to-face meetings of a board are not es-
sential if all other requirements are met. In its Opinion 00-2197,
the Commission spoke to the issue of telephone conference calls:

Already in 1974 the Commission on Constitutional Matters ruled
regarding conference calls, stating “that such a meeting, although irreg-
ular, could be permitted.” The Commission further stipulated that all
parties to the meeting should be “agreeable to the arrangement” and that

2004 Convention Workbook

the conference call should be “conducted in such a fashion as to pro-
vide for full and complete discussion and opportunity for statements
and for the raising of questions,” making certain “that the rights of all
parties are respected and protected.”

Adopted Sept. 30, 2003

Dispute Resolution Panel Decisions (03-2370)

In an August 26, 2003 e-mailed letter, a pastor of the Synod
asked two questions “recognizing that a Dispute Resolution Panel’s
unappealed ruling or Review Panel’s ruling is ‘final,’ and thus can-
not be ‘overturned,’ even by a convention of the Synod, and rec-
ognizing, further, that such rulings have no precedential value.”

Question 1: Can the Synod in convention consider an overture
that “repudiates” a specific decision—not with a goal of “over-
turning” the decision (which is, by bylaw, impossible), but of es-
tablishing a contrary finding that serves precedentially in future
cases?

‘Opinion: Bylaw 3.19 c and d specifies the kinds of overtures
that shall not be accepted for or must be withdrawn from conven-
tion consideration. Mention is not made of overtures treating sub-
ject matters related to dispute resolution or appeal panel final deci-
sions. It is a function of the conventions of the Synod to establish
general synodical positions (Bylaw 3.01), which, unlike panel de-
cisions that are not precedential (Bylaw 8.09 c 4 b and e 2), are to
be honored and upheld by its members (Bylaw 2.39 c). Doctrinal
resolutions and statements are governed by Bylaw 1.09. Amend-
ments to bylaws or constitutional provisions which were consid-
ered in a Dispute Resolution Panel decision may be modified as
provided by Article XIV of the Constitution and Chapter XIV of
the Bylaws. The Synod in convention may thereby consider an
overture that addresses an issue that was also an issue in a Dispute
Resolution Panel’s decision.

Question 2: If a rostered member of the Synod is a participant in
a Dispute Resolution Panel that makes statements in doctrinal error
in its ruling, is he able to be held accountable for such errors under
the Bylaws of the Synod?

Opinion: The proceedings before a Dispute Resolution Panel
are private and not subject to publicity. Thus, only the parties to
the dispute, as well as the members of the Dispute Resolution
Panel, have full knowledge of the evidence that was produced at
the hearing. Further, Bylaw 8.21 h provides that all records of dis-
putes in which a final decision has been rendered shall be sealed
and shall be opened only for good cause shown and only after per-
mission has been granted by a Dispute Resolution Panel, selected
by blind draw for that purpose.

Bylaw 8.09 c 4 d provides that a copy of the final decision of a
panel shall be publicized as deemed appropriate under the circum-
stances by the District or synodical President. In those limited cir-
cumstances, publicity would be given to the decision of the panel.
However, the decision is that of the panel and not of the individual
members of that panel. Accordingly, because the facts presented to
the panel at the hearing remain confidential and the opinion is that
of the panel and not of the individual members of the panel, indi-
vidual members of the panel cannot be charged with doctrinal error.

Adopted Sept. 30, 2003

President and Board of Directors’ Appointments
(03-2371)

In a letter received September 29, 2003, an ordained member
of the Synod submitted a series of questions regarding the Presi-
dent’s right and the Board of Directors’ practice of making board
and commission appointments for the new triennium prior to the
end of the previous triennium.

Question 1: CCM 01-2231 addresses the question, “May a Pres-
ident-elect of the Synod make appointments, which a President is
required to make under the Bylaws, prior to being inducted into of-
fice?” The CCM cites Bylaw 3.67 c, which applies to boards of di-
rectors as well as the President. Would the CCM’s answer regard-
ing the President-elect be the same, therefore, to this similar
question: “May a Board of Directors-elect of the Synod make ap-