LCMS Convention Workbook St. Louis, Missouri — 2004, Page 375

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OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS 375

pointments, which a Board of Directors is required to make under
the Bylaws, prior to being inducted into office?”

Opinion: In Opinion 01-2231, the Commission referred to
Bylaw 3.67, “Interim Authority,” and quoted paragraph c: “No ap-
pointments to synodical boards or commissions shall be made and
no new programs shall be initiated by the outgoing President [or
the boards of directors or elected or appointed boards or commis-
sions] during the interim.” The Commission concluded that “the
outgoing President may not make any appointments after the elec-
tion by which his successor was chosen,” noting that the President
has no powers or duties as President, including the power and duty
to make presidential appointments, until his induction into office
“on or subsequent to September Ist following the convention”
(Bylaw 3.65).

This same applies to the Board of Directors of the Synod, since
Bylaw 3.67 c specifically mentions “boards of directors” as well
as the President.

Question 2: Carrying the question a bit further, to before a con-
vention rather than after a convention: “May an outgoing Board of
Directors make appointments for a new triennium prior to being
elected (or re-elected) for that new triennium by the Synod in con-
vention?” Put another way, “May the BOD elected for one trien-
nium make appointments for the following triennium? For exam-
ple, may the Board of Directors that was elected by the 2001
convention for the 2001-2004 triennium make appointments to
agencies, boards and commissions that will not take office until
after a new Board of Directors is elected by the 2004 national con-
vention of the Synod?”

Opinion: Whereas paragraph c of Bylaw 3.67 provides that no ap-
pointments are to be made to synodical boards or commissions by the
outgoing President or any other boards or commissions during the in-
terim between the convention and induction into office, it does not
address this question. There is at present no bylaw that explicitly ap-
proves, forbids, or addresses the timing of these appointments with
the exceptions of interim authority in Bylaw 3.67 c and appointments
to the Commission on Structure in Bylaw 3.917 a.

It is reasonable to advocate that no appointments should be
made for a new triennium by an outgoing Board of Directors prior
to those positions becoming vacant at the end of the triennium. It is
also reasonable to conclude that it would be difficult for the Board
of Directors to make informed appointments upon taking office on
September Ist and expect those appointees also to take office on
September Ist (cf. Bylaws 3.59 b and 3.65). Therefore, the Com-
mission recommends that this matter be referred to the Commis-
sion on Structure for the development of a convention action that
will resolve this question.

Adopted Dec. 13, 2003

Special Legal Opinions Obtained by Board of Directors
(03-2372, 03-2373)

Two pastors of the Synod, in letters dated October 21 and 23,
2003, asked similar questions regarding the special legal opinion
obtained by the Board of Directors.

Question 1: Is the Bryan Cave opinion/Board of Directors re-
port on that opinion consistent with the LCMS Constitution and
Bylaws?

Opinion: Without specific questions deriving from the Board’s
report, the Commission cannot issue an opinion regarding either
the Bryan Cave opinion or the Board of Directors’ report on that
opinion because the function of this Commission, as set forth in
Bylaw 3.905, is limited to providing interpretations of the Synod’s
Constitution, Bylaws, and resolutions.

Question 2: If it is not, should the Board of Directors make the
total Bryan Cave opinion available to the entire LCMS prior to the
2004 convention?

Opinion: The question as posed requests a value judgment
rather than an interpretation of the Synod’s Constitution, Bylaws,
and resolutions. Nothing in the Constitution or Bylaws of the
Synod requires the Board of Directors to publicize the opinion it
obtained. It is within the discretion of the Board of Directors to de-

termine whether the Bryan Cave opinion should be publicized prior
to the convention.

Question 3: Again, if it is not consistent with the LCMS Con-
stitution and Bylaws, should the Board of Directors be required to
get a second opinion from a reliable law firm familiar with Mis-
souri law without disclosing to the second law firm the Bryan Cave
opinion?

Opinion: The Bylaws of the Synod do not give any direction as
to the methodology the Board of Directors is to follow in fulfilling
its functions. Bylaw 3.73 states: “All officers, boards, and com-
missions shall be accountable to the Synod for all their actions, and
any decision of such officers, boards, and commissions may be ap-
pealed to the national convention of the Synod.”

Adopted Jan. 28, 2004

Challenge to Circuit Forum Election
Procedure (03-2374)

- A Circuit Counselor in a November 6, 2003 e-mailed letter asks
the Commission’s opinion regarding procedure to be followed in
the case of a mistake in the procedure used to elect delegates to the
2004 convention of the Synod.

Question: We have a person in our Circuit who wants to protest
the vote for the lay delegate on the following bases: one of our
churches placed two names from their church to be the lay dele-
gate for the 2004 convention. We did not find out until it was too
late and the voting was done and I had sent off the names to the
District. The lay delegate was one of the two names given by [the
congregation]. With the October 10th [elections] deadline here and
gone and with November 7th being the deadline for me to have the
names in, we are unable to make a change. What is the proper way
to correct this problem before we send off the money or get to the
convention and have someone protest the person who is our lay
delegate to the convention?

Opinion: Bylaw 3.05 details the process to be used by electoral
Circuits to elect delegates to the conventions of the Synod. Should
errors occur, they must be corrected during the course of the meet-
ing or by calling another meeting, provided that such a meeting is
possible. The bylaw includes no provision for corrections following
the meeting if it is not possible to call another meeting.

Bylaw 3.11 provides that the names and addresses of elected
delegates are to be forwarded by the Secretary of the District to the
Secretary of the Synod and that this process constitutes certifica-
tion. Bylaw 3.25 requires that conventions of the Synod be con-
ducted according to parliamentary law, which allows for challenges
to the report of the credentials committee of the convention at the
time that it makes its report to the convention. In the present case,
therefore, the matter may be challenged at that time, in which case
the delegates (other than those whose credentials are challenged)
will decide the matter.

Adopted Dec. 13, 2003

Board of Directors as Officer of the Synod
Opinions of the Commission on Constitutional Matters
Executive Power of the President of the Synod
(03-2376)

The President of the Synod, in a December 3, 2003 e-mailed
letter, submitted a series of questions regarding the Board of Di-
rectors and the Commission on Constitutional Matters.

Question 1: LCMS Constitution Article X, “Officers,” states:
“The officers of the Synod are....5. A Board of Directors.” Are the
individual members of the Board of Directors individual officers
of the Synod? Is the Board of Directors collectively, as an entity, an
individual officer of the Synod?

Opinion: The dictionary defines an officer as one who holds an
office of trust, authority or command. In a legal context, an officer
has been defined as a high level management official of a corpora-
tion or unincorporated business, hired by the Board of Directors of
the corporation or the owner of a business, such as a president,
vice-president, secretary, financial officer or chief executive offi-

2004 Convention Workbook