LCMS Convention Workbook St. Louis, Missouri — 2004, Page 376

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376 ; OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS

cer. Officers of secular profit or nonprofit corporations typically
serve at the discretion of those in control and are appointed by
them.

As a church body, The Lutheran Church—Missouri Synod has
chosen to retain to itself the authority in the selection of officers
and does so in convention. In identifying its officers, the Articles of
Incorporation in Article V, entitled “Officers,” reads as follows
“The corporation shall have a board of directors of such number
and qualifications and who shall be elected in such manner and for
such terms of office as shall be set forth in the Constitution or By-
laws of The Lutheran Church—Missouri Synod. In addition, the
corporation shall have officers having such qualifications and who
shall be elected or appointed in such manner and for such terms of
office as provided for in the Constitution or Bylaws of The
Lutheran Church—Missouri Synod.” By this disclosure in the Ar-
ticles of Incorporation themselves, the Synod has given notice to
the world of its intent to operate as a church body and pursuant to
its Constitution and Bylaws.

The Constitution of the Synod, Article X, describes its officers
as “1. A President; 2. Vice-Presidents, in line of succession, as pre-
scribed by the Bylaws; 3. A Secretary; 4. A Vice-President-Fi-
nance—Treasurer not in line of succession; 5. A Board of Direc-
tors; 6. Other officers, as specified in the Bylaws.” Article XI of
the Constitution is entitled “Rights and Duties of Officers.” Con-
tained within that article are the description of the duties of the
President, the duties of the Vice-Presidents, the duties of the Sec-
retary, the duties of the Vice-President-Finance—Treasurer, and
the duties of the Board of Directors.

In a traditional sense, an officer is an individual and not a board
or other entity. However, in the context of the structural organiza-
tion of the LCMS, the Synod has chosen to identify the Board of
Directors collectively as an officer of the Synod. Since the Synod
has chosen to reserve to itself ultimate control of its affairs, such a
designation is consistent with the concept that an officer is chosen
by the controlling authority of a corporation or other legal entity to
perform specific functions within certain defined limitations, as is
the case with the Board of Directors. It is also consistent with the
Synod’s designation of the President under Article XI of the Con-
stitution as having supervision regarding the doctrine and adminis-
tration of the officers of the Synod. As such, the Board of Directors
of The Lutheran Church—Missouri Synod, both in its identifica-
tion in the Constitution and by identification of its function, within
the church is in fact collectively an officer of the Synod.

There are no provisions in the Constitution or Bylaws of the
Synod that give any authority or defined duties to the individual
members of the Board of Directors. Reference is always made to
the Board of Directors as a unit. As an example, Bylaw 3.183 ad-
dresses the authority of the Board of Directors, and Bylaw 3.185
addresses the power of the Board of Directors with respect to the
property of the Synod. These bylaws clearly refer to the Board of
Directors as a unit and not individual members of the Board of Di-
rectors. Further, as pointed out above, Article X of the Constitu-
tion, in designating the individual officers of the Synod, refers to
“A Board of Directors,” and does not use language that could be
interpreted to mean the individual members of the Board. Accord-
ingly, the individual members of the Board of Directors of the
Synod are not officers of the Synod.

It is therefore correct to assert that the Board of Directors col-
lectively is an officer of the Synod, but it would not be correct to
recognize the individual directors as individual officers of the
Synod.

Question 2: The LCMS Board of Directors has declared that it
“cannot agree with or accept” certain official opinions of the CCM
and that such opinions “are of no effect.” In such an instance of an
apparent conflict between a BOD resolution and a CCM opinion,
what, if any, specific directive of the Synod resolves such a con-
flict while honoring and upholding specific provisions of the syn-
odical Bylaws, including Bylaw 3.183 d and d 2 (“Authority of the
Board of Directors’): “to the extent of its responsibilities relative to
the general management and supervision of the business and legal
affairs of the Synod....[it] shall have the right to call up for review,
criticism, modification, or revocation any action or policy of a pro-

2004 Convention Workbook

gram board, commission, or council, except opinions of the Com-
mission on Constitutional Matters”; and Bylaw 3.905 d: “An opin-
ion rendered by the commission shall be binding on the question
decided unless and until it is overruled by a synodical convention”?

Opinion: The questioner correctly points out the two primary,
relevant provisions of the Bylaws. In order to understand these
bylaw provisions, it is helpful to review the development of the
Board of Directors, as well as development of the Commission on
Constitutional Matters. In addition, a review of the prior actions of
the Synod with respect to historical conflicts between the Board of
Directors and the Commission on Constitutional Matters may be
of assistance.

In 1961, a report entitled “The Development of the Formal Ad-
ministrative Structure of the LCMS from 1897-1961” was issued
under the authorship of Dr. August Suelflow, who was engaged as
Research Secretary for the Synodical Survey Commission. In that
report Dr. Suelflow identified the embryonic roots of the present
Board of Directors as being traced to the original “Synodical Board
of Control’ or “Supervision” established by the Synod in 1908. Dr.
Suelflow describes the Board as having been initially created as a
board to conduct interim business between conventions of the
Synod together with other boards in a horizontally related fashion,
such as the Mission Board and the Board for Higher Education.
The Synodical Survey Commission Report in the 1962 Convention
Workbook states, ‘“Synod’s Board of Directors was established in
1917 to replace the original ‘Synodical Board of Control’ orga-
nized in 1908 chiefly to coordinate and handle matters for Synod’s
educational institutions.” In the 1920’s the Proceedings continued
to be published both in English and German. Dr. Suelflow de-
scribes that the current Board of Directors was referred to as “Di-
rectors” in the English version of the 1920 convention, although
the official German version of the Proceedings still referred to the
Board as a “board of control,” the historic term. As the new Con-
stitution (considered merely “an amplification of the old Constitu-
tion made necessary by the expansion of the Synod’s work”—In-
troduction, 1924 synodical Handbook) was developed, the Board
of Directors was charged to serve as the legal representative of the
Synod, the custodian of all the property, and the manager of all
business affairs. These functions included the preparation of an an-
nual budget, the regulation of collection of monies, and the alloca-
tion of the finances of the Synod. While the bylaws pertaining to
the Board of Directors have evolved since that time, the essence of
the Board of Directors and the specific duties and responsibilities
assigned to it by the Synod and convention remain.

Of one particular note, particularly with respect to the issue pre-
sented, is the last series of amendments to Bylaw 3.183 d 2. Prior to
1998, the authority of the Board was described in the bylaw (then
numbered 3.191 e) which read: “The synodical Board of Directors
of The Lutheran Church—Missouri Synod shall receive periodic
reports on the operations of the various Synodwide corporations,
councils, boards, commissions, and departments and shall have the
right to call up for review, criticism, or suggestion any policy of a
corporation, council, board, or commission of the Synod.” By ac-
tions of the 1998 convention, that bylaw was amended and ulti-
mately renumbered. The Board’s authority from the Synod to call
up for review, criticism, modification, or revocation was amended
to expressly exempt opinions of the Commission on Constitutional
Matters from that right and authority, which became consistent
with Bylaw 3.905 d as quoted above.

The history of the Commission on Constitutional Matters may
also be of assistance in understanding the apparent conflict. Again,
as Dr. Suelflow reported, prior to 1923 constitutional matters
within the Synod were handled by ad hoc committees elected by
synodical conventions. In 1923, a standing Committee on Consti-
tutional Matters was created by resolution of the convention. Over
time, the responsibilities of the Commission were expanded. For
example, in 1932, the Synod resolved that all proposals seeking
changes and/or amendments to the Constitution and Bylaws would
first be submitted to the Committee on Constitutional Matters. The
current responsibilities of the Commission on Constitutional Mat-
ters are as set forth in Bylaw 3.905.